Binding Nature of Foreign Orders:
A valid foreign support order remains binding on the parties and should not coexist with a conflicting Ontario order. This is a matter of public policy. Where child support is included in a foreign divorce order any variation must proceed in accordance with Interjurisdictional Support Orders Act (ISOA).
- Limits on Ontario Courts’ Jurisdiction:
- Ontario courts generally lack the authority to vary foreign divorce orders with child support provisions under the Family Law Act. Variations must follow inter-jurisdictional support statutes.
- Respect for foreign judgments aligns with the principle of comity.
- Exceptions Allowing Ontario Jurisdiction:
- The Court of Appeal in Cheng v. Liu, 2017 ONCA 104 established that Ontario courts may adjudicate child support if no foreign divorce order addresses the issue.
- The following exceptions allow for original child support orders in Ontario despite a foreign divorce order:
- Silent Foreign Divorce Order: If the foreign order omits child support provisions, Ontario courts can issue an original order
- Non-Reciprocating Jurisdiction: If the foreign jurisdiction is not reciprocating under the Interjurisdictional Support Orders Act (ISOA), Ontario courts have jurisdiction.
- Flagrant Non-Compliance: Courts may intervene if the foreign order is being flagrantly ignored, but compliance negates this
- Material Change in Circumstances: Significant changes that affect custody or access may justify revisiting child support, provided it is not an attempt to forum-shop.
- Mandatory Use of ISOA for Variations:
- Any variation to a foreign divorce order with child support terms must proceed through the ISOA. No alternative legal framework is available in Ontario for such cases.
Conclusion:
Ontario courts respect foreign support orders but can exercise jurisdiction in limited, clearly defined circumstances, primarily when the foreign order is silent on child support or significant changes in circumstances arise. Variations to foreign orders require adherence to the ISOA process.
DISCLAIMER: The information provided in this Blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this Blog.