



COURT OF APPEAL FOR ONTARIO

CITATION:
Krause
    v. Bougrine, 2022 ONCA 161

DATE: 20220224

DOCKET: C69816

MacPherson, van Rensburg and Roberts JJ.A.

BETWEEN

Interjurisdictional Support Orders Unit Director,
    Family Responsibility Office for the benefit of Catarina Elisabet Krause

Applicant/Respondent

(Appellant)

and

Hassan Bougrine

Respondent/Appellant

(Respondent)

and

Catarina Elisabet Krause

Respondent/Respondent

(Respondent)

Heather Puchala and Michelle Douglas-Cummings, for the
    appellant

Dhiren R. Chohan and Matthieu M. Butler, for the
    respondent

Catarina Krause, acting in person

Heard: January 27, 2022 by video conference

On appeal from the judgment of Justice R. Dan Cornell of
    the Superior Court of Justice, dated August 10, 2021 and reported at 2021 ONSC
    5269, allowing the appeal from the judgment of Justice Andre L. Guay of the
    Ontario Court of Justice dated May 29, 2019 and the final order dated October
    19, 2020.

MacPherson J.A.:

A.

introduction

[1]

This appeal involves a payor (or, more accurately, a non-payor) who
    resides in Ontario, a recipient of child support for her two children who
    resides in Finland, and the Interjurisdictional Support Orders Unit (the ISO Unit)
    which is pursuing the appeal for the benefit of the support recipients.

[2]

The ISO Unit of the Family Responsibility Office administers Ontarios
Interjurisdictional
    Support Orders Act, 2002
, S.O. 2002, c. 13 (
ISO Act
), which
    streamlines the process for obtaining, varying and enforcing support orders
    involving one party who lives in Ontario and one party in a reciprocating
    jurisdiction. Once an order has been registered, established, or varied using
    the
ISO

Act
, it can be filed with the Family Responsibility
    Office (FRO) for enforcement. The FRO will then enforce such an order the
    same way it would enforce an Ontario order.

[3]

The central issue on the appeal is whether an Ontario court can make a
    support order when one already exists in Finland. More specifically, the appeal
    concerns the jurisdiction of the Ontario Court of Justice to hear a support
    application and make a support order pursuant to the
ISO Act
in
    circumstances where the registration for enforcement of a foreign support order
    from a reciprocating jurisdiction (Finland) has been set aside by an Ontario
    court.

B.

facts

(1)

The parties and events

[4]

Hassan Bougrine and Catarina Krause were married in Finland in 2003.
    They divorced in 2004. There are two children from their relationship, a son
    and a daughter.

[5]

Bougrine has resided in Ontario since 2007. He has been a professor at
    Laurentian University and was Chair of the Commerce Department.

[6]

Krause has resided in Finland and raised the two children there except
    for a 14-month period in 2012-2014 when Bougrine abducted the children to
    Morocco.

[7]

In 2010, the District Court of Varsinais-Suomi in Finland awarded
    custody of the two children to Krause and made a support order requiring
    Bougrine to pay child support of 350 Euros per month per child (the Finnish
    Order). In 2011, the Finland Turku Court of Appeal dismissed Bougrines appeal
    from this decision.

[8]

For a brief period in 2009 and 2010, Bougrine paid child support of 260
    Euros per month per child. From 2010 until a temporary support order was made
    in Ontario in June 2019, he paid no child support.

[9]

Finland is a reciprocating jurisdiction for the reciprocal enforcement
    of support orders with Ontario, pursuant to the
ISO Act
and Ont. Reg.
    53/03 
Reciprocating Jurisdictions
. Consequently, Finnish support
    orders can be registered for enforcement in Ontario pursuant to Part III of the
ISO Act
.

[10]

In
    2014, the ISO Unit received a letter from the Minister of Justice in Finland
    requesting the registration of the Finnish Order and the 2011 appeal Order in
    Ontario for enforcement against Bougrine and claiming support arrears of
    32,929.32 Euros as of September 17, 2014.

[11]

The
    ISO Unit sent the orders to the Ontario Court of Justice for registration for
    enforcement in Ontario under s. 18 of the
ISO Act
. The orders were
    registered on December 24, 2014 and a Notice of Registration of Order was
    served on Bougrine.

[12]

Pursuant
    to s. 20(2) of the
ISO Act
, Bougrine brought a motion in the Ontario
    Court of Justice to set aside the registration for enforcement in Ontario of
    the 2010 and 2011 Finnish Orders.

[13]

In
    support of his motion, Bougrine deposed in his affidavit that he intended to
    move to Morocco soon and that he had not received notice of the Finnish
    proceedings that led to the 2010 Finnish Order. On March 9, 2015, the motion
    judge set aside the registration of the Finnish Order on the basis that
    Bougrine did not have proper notice or a reasonable opportunity to be heard in
    relation to the foreign proceedings that led to the Finnish Order.

[14]

As
    it turns out, much of the material in the Bougrine affidavit submitted on the
    motion was false. As explained by Cornell J. six years later in his decision in
    these proceedings:

Mr. Bougrine was personally served with the originating Finnish
    application, was present during those proceedings and had the benefit of legal
    counsel. Unhappy with the result of those proceedings, Mr. Bougrine appealed.
    His appeal was unsuccessful. How could it possibly lie in the mouth of Mr.
    Bougrine to allege that he had no notice of those proceedings when he filed an
    appeal?

It is also clear that Mr. Bougrine misled the court by
    suggesting that he obtained custody of the children on February 10, 2009, from
    a court in Morocco. The record before me discloses that no such order was ever
    made. Mr. Bougrine further misled the court by suggesting that he was
    temporarily in Sudbury for employment and that his permanent residence was in
    Morocco. This is patently false. Mr. Bougrine had worked at Laurentian
    University as a full-time professor since 2007. He was the Chair of the
    Universitys Commerce Department. The record before me indicates that Mr.
    Bougrine has had a drivers licence in Canada since 2007 and that he owns real
    property in Canada.

Given this background, it is clear that the order made by
    Lische J. to set aside the registration was based upon an incomplete record and
    the misleading information that was provided by Mr. Bougrine. Had the correct
    information been before the court, it is clear that Mr. Bougrines efforts to set
    aside the registration would have failed.

[15]

In
    2018, the ISO Unit learned that Bougrine in fact continued to live and work in
    Ontario. The ISO Unit commenced proceedings in the Ontario Court of Justice
    seeking support for the children in accordance with s. 21 of the
ISO Act
.

(2)

The court proceedings and judicial decisions

(a)

Ontario Court of Justice

[16]

The
    ISO Units motion for child support for Krause came before Guay J. in 2019.
    Because the registration of the Finnish Order had been set aside, the motion was
    brought under s. 21 of the
ISO Act
, which provides:

21(1) If the registration of an order made in a
    reciprocating jurisdiction outside Canada is set aside under section 20, the
    order shall be dealt with under this Act as if it were a document corresponding
    to a support application received under paragraph 2 of section 9 or a support
    variation application received under paragraph 2 of section 32.

[17]

The
    motion judge addressed the circumstances that led to the registration of the Finnish
    Order being set aside on a motion brought by Bougrine in 2015:

As it turned out, the information given to the court by the
    respondents was misleading. There was nothing transitory about his employment
    at Laurentian University. The respondent had actually worked there as a full-time
    professor since 2007. The evidence indicated that not only was the respondent a
    full-time professor at Laurentian University, but further that he was actually
    the Chair of the Universitys Commerce Department.

It is reasonable to infer from what the respondent told the
    court on the motion to set aside registration that his arguments were designed
    to mislead the court and to defeat the applicant's claim to enforcement of her
    child support order years after that order had been made.

[18]

The
    motion judge then moved on to explain how s. 21 would operate, after the
    Ontario registration of the Finnish Order was set aside. He stated:

Notwithstanding these facts and what can be reasonably deduced
    from them, it is clear that the registration of the June 8, 2010 Finnish order
    was set aside by the Ontario Court in Sudbury on March 9, 2015. This court is
    not an appeal court. The order setting aside registration was not appealed by
    the Director of Family Responsibility. As a result, the decision of the Ontario
    Court must stand. By virtue of section 21(1) of the ISO Act, 2002, S.O. 2002,
    c.13, when an order of a reciprocating jurisdiction has been set aside under
    section 20 of the Act, the order
shall
be treated as a support
    application under section 9 of the Act. This is what triggered the Director's
    motion for enforcement to be returned to this court. The enforcement procedures
    brought on behalf of the applicant by the Director of Family
    Responsibility/lSOA Unit had only been allowed to lapse because of the false
    information provided to this court respecting his permanent departure from
    Canada. This court was entitled to revisit the matter anew upon being requested
    by the Director to do so on information the Director had received presumably
    from the Finnish authorities. [Emphasis in original.]

[19]

The
    motion judge continued, specifically rejecting the argument that the setting
    aside of the registration in Ontario invalidated the Finnish Order:


I do not read section 21 of the ISOA as
      invalidating the order whose registration has been set aside. Rather, I
      interpret this section of the Act as creating a mechanism for avoiding the need
      to commence a new child support application
.
        Setting aside registration of a foreign child support order for reasons of
        alleged improper service on a party or because a party alleges that he has not
        been given a reasonable opportunity to respond to the application giving rise
        to the order should not mean that the order is thereby rendered invalid,
        particularly when there is no reliable proof that such allegations are true and
        where, as in this case, that order has been upheld by an appeal court in the
        jurisdiction where it was made. It seems all too easy for a person opposed to
        registration of a foreign child support order to throw up meritless obstacles
        to its enforcement as seems to have happened in the present case. The ability
        to set aside [registration of] a presumptively valid foreign support order
        (ISOA operates on this basis) on the uncorroborated evidence of a person whose
        financial interests are likely adversely affected by that order is, I believe,
        a weakness in the enforcement procedure established by ISOA. [Emphasis added.]


[20]

Finally, with respect to Bougrines argument
    that, in the absence of an existing Ontario court order, the matter should be
    returned to the Finnish courts where the original 2010 support order was made
    and is still operative, the motion judge said:


It is illogical to argue that the applicant should be made to
      bring enforcement proceedings in Finland where the order was first issued and
      subsequently never complied with. If the respondent finds the present matter
      before this court, it is because he has worked in Ontario for many years and is
      still working here. Proceedings related to the enforcement of a valid support
      order ought logically to take place where the income of a payor can be attached
      and not in a jurisdiction where his income and assets cannot be attached.


[21]

Following the hearing, the motion judge made a
    temporary support order in June 2019. Then in October 2019, he made a final
    order with two components: (1) payment of child support of $2,463 per
    month for the two children commencing in June 2019, based on Bougrines Child
    Support Guideline income of $181,558; and (2) payment of child support arrears
    fixed at $179,667.20 as of May 1, 2019, payable at $300 per month.

[22]

Pursuant to this Order, the FRO assisted with
    enforcement through a support deduction notice to Laurentian University,
    Bougrines employer, and collected support payments that were then sent to
    Finland.

(b)

Superior Court of Justice

[23]

Bougrine appealed the motion judges decision to
    the Superior Court of Justice. Relying heavily on a decision of this court,
Cheng
    v. Liu
, 2017 ONCA 104, the appeal judge allowed the
    appeal and quashed the motion judges decision for want of jurisdiction.

[24]

The core of the appeal judges reasoning is:


Section 21 of the
ISO Act
is, in my
      opinion, a curious provision in that the court 
must treat the foreign
        order as if it were an application for support
. The learned judge did
      what the section mandates and proceeded to assess Mr. Bougrines total
      outstanding child support arrears as of May 1, 2019, to be $179,667.20. This
      was to be repaid at the rate of $300 per month. Based upon an imputed 2019
      gross annual income of $181,558, Mr. Bougrine was ordered to pay the sum of
      $2,463 Canadian for the support of the two children, such payments to commence
      on June 1, 2019.

In doing so, the court avoids addressing the
      issue that the result is that there are now two child support orders in
      existence, one in Finland and one in Canada. The court acknowledges that s. 21
      of the
ISO Act
does not invalidate the Finnish order and proceeds with
      the application saying in para. 24 because section 21 of the ISO has the
      effect of converting the original foreign order of 2010 into an application
      going forward. The Ontario proceedings, as the court correctly pointed out,
      have no bearing whatsoever on the existence and validity of the Finnish court
      order for child support. In my opinion, the existence of two valid court orders
      for support is quite problematic.


[25]

Following a reference to
Cheng v. Liu
, a case involving the relationship between the federal
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.) and the
Ontario
Family Law Act
, R.S.O. 1990, c. F.3, the appeal judge
    continued:


In this case, both children were born in
      Finland and, with the exception of the period of time that they were abducted
      and taken to Morocco, have always lived in Finland with their mother. The
      parties were divorced by a Finnish court order. The Finnish court also made an
      order granting Ms. Krause custody of the children and awarding her child
      support. As previously set out, Mr. Bougrines appeal from this order was
      dismissed. According to
Cheng
, this means that the Finnish court has
      exclusive jurisdiction over child support because such court granted the
      divorce and issued an order for child support. According to
Pageau
[
Pageau v. Szabo
, [1986] O.J. No. 1675], a court acting under a provincial statute
        would be barred from dealing with the issue of child support in these
        circumstances.

On the facts of this case,
Cheng
would also preclude the situation that we have here, namely the existence of
      two valid child support orders. The
ISO Act
was created to establish a
      uniform method and system for the parties seeking to obtain, to challenge or to
      vary child support orders issued where the parties reside in different
      jurisdictions. The chaos created by competing child support orders is surely
      inconsistent with these objectives and can hardly be said to be part of a
      uniform system.


C.

issue

[26]

There is a single issue on the appeal: does an
    Ontario court have jurisdiction under s. 21 of the
ISO Act
to order child support in the face of a valid but unenforceable (in
    Ontario) foreign child support order?

D.

analysis

[27]

The
ISO Act
allows for the establishment, variation and enforcement of support orders where
    one party resides in Ontario and the other party resides in a reciprocating
    jurisdiction.
[1]
Support recipients can register domestic or foreign support orders in order to
    enforce them against residents of Ontario or those who have income or assets in
    the province. Support recipients can also apply to obtain or vary support
    orders in Ontario that can then be enforced against the resident of Ontario.

[28]

A principal purpose of the
ISO Act
is to facilitate the enforcement of the support obligations of
    persons resident in one jurisdiction whose dependants (spousal or child) are
    resident in another jurisdiction. Reciprocal support enforcement statutes are
    enacted because of historical difficulties encountered by parties seeking to
    obtain, vary or enforce a family support order when one party is no longer
    residing in the jurisdiction where the original order was made. The core scheme
    of the
ISO Act
is to establish a fair and
    workable system for providing support for children and spouses who have a
    parent or former partner living in a different jurisdiction.

[29]

As explained by Attorney General David Young
    when he introduced the proposed
ISO Act
in the
    Ontario Legislature in 2002:


The proposed bill is further proof that we are
      committed to ensuring that children and families who rely on support payments
      receive every cent of the amount they are entitled to. Failure to pay child
      support and spousal support is a social problem; there should be no doubt about
      that. It is a problem that should and does concern us all. Thousands of
      families rely on support payments to buy food and other basic necessities, including
      rent. Without those payments, some families may be forced to live in poverty.
      They may be forced to turn to food banks and, in some cases, social assistance.
      This simply shouldnt be happening. It is simply unacceptable. When children
      and families do not receive money, or do not receive money in a timely fashion,
      we all suffer.

Ontario Legislative Assembly,
      Official Report of Debates (Hansard), 37
th
Parl., 3rd Sess, No. 30
      (23 September 2002), at p. 1497.


[30]

Against this backdrop, I turn to consider s. 21
    of the
ISO Act
.

[31]

In statutory interpretation, the language of a
    statutory provision must be interpreted in light of the purpose of the
    provision and the entire relevant context:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at
    para. 118.

[32]

In my view, the precise language of s. 21 of the
ISO Act
was triggered by Bougrines conduct in
    this case. He took steps to set aside the Ontario registration of the Finnish
    support order for his children. He did this under s. 20 of the
ISO
    Act
and he was successful; the Ontario registration was
    set aside, thus removing his obligation, enforceable in Ontario, to provide
    support to his children.

[33]

This result elicited a response from the
    appellant Interjurisdictional Support Orders Unit. When it became aware that the
    registration of a valid court support order of a reciprocal jurisdiction
    (Finland) had been set aside
and

that the
    non-paying father still lived and worked in Ontario, contrary to his submission
    to the Ontario court, it invoked s. 21 of the
ISO Act
in an attempt to remedy an egregious situation  dishonest
    obtaining of an Ontario court order and concomitant non-compliance with a valid
    Finnish court order.

[34]

In my view, the steps taken by the Unit were
    appropriate and the initial decision by Justice Guay granting the relief sought
    by the Unit was correct. Section 21 of the
ISO Act
specifically empowers an Ontario court to hear a new support
    application that takes into account the unenforceable foreign order as well as
    other information the court considers necessary and to make a new support
    order.

[35]

On appeal, the appeal judge disagreed with
    Justice Guays analysis and conclusion. Central to his reasoning was his view
    that the decision of this court in
Cheng v. Liu
, compelled a different answer. I have set out the key passages of
    the appeal judges discussion of
Cheng v. Liu
in the Facts portion of this judgment.

[36]

In my view,
Cheng v. Liu
does not support the respondents position or the appeal judges
    analysis. The issue in
Cheng v. Liu
was
    whether an Ontario court had jurisdiction to adjudicate a claim for corollary
    relief under the federal
Divorce Act
despite
    the fact that the parties divorce had been validly granted by a foreign court,
    without providing  for corollary relief. The division of powers between the
    federal and provincial governments was at issue in that case. That is, while
    the federal government has jurisdiction over marriage and divorce, the province
    governs matters of property. In this way, the power to award support under the
    federal
Divorce Act
is
limited to cases where
    the support is a corollary to the divorce. This court concluded that since the
    foreign divorce was silent on support, support could be awarded under the
    Ontario
Family Law Act.

[37]

Cheng v. Liu
recognizes
the jurisdiction of the province to legislate in
    matters of property. After considering, and rejecting, the jurisdiction of
    Ontario courts to grant corollary relief under the federal
Divorce
    Act
after a foreign court has validly issued a divorce
    decree, the court went on to consider whether an Ontario court had jurisdiction
    under a provincial law, the
Family Law Act
, to
    determine the issue of child support after a foreign court has issued a divorce
    decree without providing for child support. The court answered this question in
    the affirmative and said, at paras. 45 and 52:


There is also no statutory prohibition against utilizing
      the
FLA
in such circumstances. Indeed, the use of the
FLA
to
      provide a remedy is entirely consistent with the statutory objective of
      ensuring that parents provide support for their dependent children.



Ontario courts have authority to award child support under s.
      33 of the
FLA
. There is nothing in the legislation that restricts
      that authority in situations where a divorce order has been granted outside of
      Canada. The use of the
FLA
in circumstances where relief
      under the
Divorce Act
is unavailable does not engage the
      paramountcy doctrine, as there is no operational incompatibility between the
      federal and provincial statutes. To the contrary, the two statutes are
      operating harmoniously to ensure that a remedy for child support is available.


[38]

In
    this case, a different provincial statute, the
ISO Act
,

that is coincident in intent and purpose, explicitly
    provides for the exact remedy sought.  Absent a finding that the specific
    provisions relied on were unconstitutional, which would have required notice to
    the Attorney General,
it simply was not open to the appeal judge to
    quash the Order of the Ontario Court of Justice for want of jurisdiction.

[39]

I
    make a final observation. The appeal judge mentioned the potential for double
    recovery as a danger that might arise if the Ontario court had jurisdiction to
    make a support order in the face of an existing Finnish support order.

[40]

For
    two reasons, with respect, I do not think this is a compelling point.

[41]

First,
    the international support order regime is grounded in cooperation between knowledgeable
    governments and their agencies that administer the governing laws, treaties and
    intergovernmental agreements. Under the umbrella of international agreements
    between cooperating governments, there are government support systems and
    personnel dedicated to, and experienced in, providing high quality assistance
    to the enforcement of valid foreign orders, sharing information and avoiding
    duplication. In short, the potential for double recovery is a red herring.

[42]

Second,
    this case and the vast majority of similar cases point to the real problem. It
    is not potential double recovery; it is no recovery. The
ISO Act
, and
    the people who administer it, are an important provincial, national and
    international vehicle in the attempt to ameliorate this real problem.

E.

disposition

[43]

I
    would allow the appeal, set aside the Order of the Superior Court of Justice
    dated August 10, 2021, and restore the Order of the Ontario Court of Justice
    dated October 19, 2020.

[44]

I
    would award the appellant costs of the appeal fixed at $25,000, inclusive of
    disbursements and HST.

Released: February 24, 2022 J.C.M.

J.C. MacPherson
    J.A.

I agree. K. van
    Rensburg J.A.

I agree. L.B.
    Roberts J.A.





[1]

There are substantially similar statutes across Canadian
    provinces and territories that include a provision the same or similar to s. 21
    of the
ISO Act
.


