Background
The parties were married in July 2003 and separated in November 2009. They resided in Michigan at the time but, post-separation, mother and child (now 16 years old), left to Ontario.
Despite being habitually resident with her daughter in Ontario, the mother commenced a divorce proceeding in Michigan, in April 2010, and this resulted in a final consent order that addressed all the family law issues (i.e. parenting time, decision-making responsibility, property and support claims…etc.).
The father now resided in Nebraska.
Parenting time took place with the parents meeting in London, Ontario, or Michigan.
In August 2016, the mother unilaterally suspended the father’s parenting time citing that their daughter was traumatized during parenting time with her father. The father denied these allegations and brought a motion in Michigan to vary the parenting time, but this was dismissed pursuant to the mother’s motion that alleged a lack of jurisdiction.
During the time of the father’s motion in Michigan, the mother commenced an Application in Ontario for sole custody (as it was known at the time), supervised access, child support and retroactive section 7 expenses, and a restraining order.
A parenting assessment (pursuant to section 30 of the Children’s Law Reform Act) was conducted consequent to the father’s request, and the assessor recommended a continuation of joint decision-making and parenting time in accordance with the child’s wishes. Supervised access was not needed per the assessment.
The father then brought a motion for summary judgment regarding the child support claims.
Issues
Does this Court have the jurisdiction to address the mother’s Application?
Should the father’s motion for summary judgment be allowed?
Analysis
The Mother’s Application
The Court noted that a “properly made” foreign support order that is in full force and effect is binding upon the parties, and there cannot be two outstanding support orders.
Moreover, a court is unable to vary a corollary support order contained in a foreign divorce per the Family Law Act, as the only way to do so is through inter-jurisdictional support statutes.
Citing the leading Court of Appeal case of Cheng v. Liu, the court highlighted the exceptions where a court can make a child support order, even though a valid foreign divorce order exists:
- where the foreign divorce order does not address child support;
- where the jurisdiction that issued the foreign divorce that includes child support provisions is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act (ISOA);
- where there is flagrant non-compliance with the existing child support order part of the foreign divorce; and
- where there has been a material change in circumstances leading to a legitimate claim for custody and access (now known as ‘decision-making responsibility and parenting time’) and where the court is satisfied that the foreign order should be superseded.
In this matter, these exceptions did not apply, and the ISOA needed to be used to pursue the variation the mother sought.
The Father’s Motion
The test for summary judgment, as set out in Rules16(1) and (6) of the Family Law Rules, had been met by the father, such that the court could dismiss the mother’s claims.
Conclusion
The mother’s claims for child support and section 7 expenses were dismissed, and she was ordered to pay costs of $10, 000 to the father.
The Court noted that the child had not agreed to, and was not bound by, the terms of the Michigan Divorce Order, such that she could bring a claim for child support against the father. It encouraged the parties to come to an agreement on the child support issues such that the child’s private school graduation could go through, as would be in the best interests of the child.
The parties were encouraged to try mediation.