M.A. v. H.M., 2022 BCPC 52

Citation: M.A. v. H.M. 2022 BCPC 52 Date: 20220218 File No: 129038 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE INTERJURISDICTIONAL SUPPORT ORDERS ACT , S.B.C. 2002 c. 29 BETWEEN: M.A. APPLICANT AND: H.M. RESPONDENT RULING ON s. 19 APPLICATION OF THE HONOURABLE JUDGE A. TAM Counsel for the Applicant: A. Boland, by telecommunication Counsel for the Respondent : R. Choudhry, by telecommunication Appearing for Ministry of Attorney General as amicus curiae: J. Kahan Place of Hearing: Kelowna , B.C. Date of Hearing: February 10, 2022 Date of Judgment: February 18, 2022

Background [ 1 ] This is M.A’s application to set aside the registration of a foreign support order pursuant to s. 19(2) of the Interjurisdictional Support Orders Act ( ISOA ). Very briefly, the parties were married for about 22 years and have two daughters together. At one point, the family lived in the state of California, in the United States of America. In or around 2006, H.M. commenced family law proceedings in California, seeking, among other things, child and spousal support.

After attempts to personally serve M.A. with legal documents were unsuccessful, H.M. applied successfully for an order for substituted service. At the time, M.A. lived and worked in Dubai, in the United Arab Emirates. [ 2 ] The case then proceeded uncontested on the part of M.A. and the Superior Court of California made a child support order of $2,232 (USD) per month with respect to the child S.M., and a spousal support order of $3,848 (USD) in favour of H.M.. These orders were made on April 23, 2007. H.M. subsequently moved to Kelowna, BC in 2008.

After she learned that M.A. had purchased property in Toronto, she filed the California Court order with the Kelowna Court registry in November 2020. This then triggered the operation of ss.18 and 19 of the ISOA , whereby the Court sent notice of the registration to M.A.. Pursuant to s. 19(2), M.A. now applies to set aside the registration. M.A.’s Position [ 3 ] According to his initial pleadings, he said that the registration ought to be set aside because he did not have proper notice or a reasonable opportunity to be heard at the original California proceeding (see s. 19(3)(b)(

i) of the ISOA ). However, at this hearing, he has abandoned that ground. Instead, he now says that the order ought to be set aside because of s. 19(3)(b)(ii), namely that the California order is contrary to the public policy of British Columbia. [ 4 ] Relevant portions of sections 18 and 19 read as follows: Registration of extraprovincial or foreign order 18

(1) On receiving an eligible copy of an order under section 17 (2), the British Columbia court must register it as an order of that court.

(2) On an order being registered under subsection (1), the order, from the date it is registered, has the same effect as a support order made by a court in British Columbia. Foreign orders after registration 19

(1) After registration of a foreign order under

section 18, the British Columbia court must send notice of the registration (

a) either (

i) directly to the party required to pay support under the order, whether or not that party habitually resides in British Columbia, or (ii) indirectly, in the prescribed manner, to the party required to pay support under the order, and (

b) to every other party to the order who resides in British Columbia.

(2) A party to the foreign order may apply to the British Columbia court to set aside the registration (

a) within 30 days after receiving notice of the registration, and (

b) on giving notice of the application in accordance with the regulations.

(3) On an application under subsection (2), the British Columbia court may (

a) confirm the registration, or (

b) set aside the registration if the British Columbia court determines that (

i) a party to the foreign order did not have proper notice or a reasonable opportunity to be heard in the proceeding in which the foreign order was made, (ii) the foreign order is contrary to the public policy of British Columbia, or (iii) the court or administrative body that made the foreign order did not have jurisdiction to make the order. [ 5 ] On behalf of the applicant, Ms. Choudhry advances three grounds. Firstly, she says that the original child support amount was not made in accordance with the California Child Support Guidelines.

Secondly, she says that since the separation and divorce, H.M. had an obligation to make reasonable and good faith effort to become self-sufficient. To the contrary, she quit her well paying job as an accountant, moved to Kelowna and has not made efforts to be self-sufficient since. Thirdly, Ms. Choudhry says that H.M. remained silent and in essence laid in the weeds for all these years. The California order was made in 2007 and she waited until 2020 to register it in British Columbia. In the dealings she has had with M.A. over the years, never once has she mentioned the existence of a court order.

During this time, M.A. has supported the children to some degree. For all of these reasons, M.A.’s position is that it would be contrary to public policy for this Court to register the foreign order, and so it ought to be set aside.

Jurisprudence [ 6 ] Although not dealing specifically with the ISOA , the Supreme Court of Canada had occasion to comment on the general concept of enforcing a foreign judgment in Beals v. Saldanha , 2003 SCC 72 . At para. 75 of the judgment, Major J. said, speaking for the majority: 75 The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly.

The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application. 76 The award of damages by the Florida jury does not violate our principles of morality. The sums involved, although they have grown large, are not by themselves a basis to refuse enforcement of the foreign judgment in Canada.

Even if it could be argued in another case that the arbitrariness of the award can properly fit into a public policy argument, the record here does not provide any basis allowing the Canadian court to re-evaluate the amount of the award. The public policy defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada. 77 There was no evidence that the Florida procedure would offend the Canadian concept of justice.

I disagree for the foregoing reasons that enforcement of the Florida monetary judgement would shock the conscience of the reasonable Canadian. [ 7 ] As it relates to the ISOA , there are not that many cases in British Columbia that deal with what is or is not against “public policy” in the context of this section. Counsel before me did, however, draw to my attention the case of Genova v. Knight , 2005 BCCA 425 . In that case, a separation agreement was entered into whereby Mr. Knight agreed to pay child support in exchange for Ms. Genova dropping charges in an outstanding domestic violence case.

The separation agreement was filed and incorporated into a court order in the Superior Court of New Jersey. The Supreme Court of British Columbia set aside the New Jersey order on the basis that it was a contract which had the effect of interfering with the proper functioning of the criminal justice system. However, on appeal, that decision was overturned. At para. 24 in the Court of Appeal decision, Mr.

Justice Low said: [24] In the case at bar, caution dictates against finding that enforcement in this jurisdiction of the child support provisions of the 1988 New Jersey divorce order would be offensive to public policy in this province. In my opinion, enforcement would not offend our concepts of justice and morality and would not be inconsistent with the good order and solid interest of society .

I reach this conclusion because the fundamental principles of child support in our law and in our society, in the circumstances of this case at least, overwhelm the relatively minor concern that there might have been an attempt to stifle a public offence completely unrelated to the issue of child support. This case is distinguishable from Hadfield , supra, because the agreement in that case expressly purported to vary a condition of bail in the criminal proceeding. (Emphasis Added.) [ 8 ] As a very general observation, I cannot imagine M.A. to be in a better position to set aside the foreign order than Mr.

Knight was. If an agreement to pay child support based on a quid pro quo for dropping criminal charges does not offend our concepts of justice and morality to the degree required by s. 19(3)(b)(ii), none of the circumstances before me comes close to what would be required. Having made that general observation, I turn now to the specific issues raised by the Applicant. California Child Support Guideline [ 9 ] Ms. Choudhry argued that the original child support order was not made in compliance with the California Child Support Guideline.

However, at this hearing, there was no submission made, and no evidence proffered, as to what the proper amount should have been. There was also no dispute as to the income the California Court imputed to M.A.. I agree with Mr. Boland, on behalf of H.M., that the Court in California appeared to have gone through the same type of process a court in British Columbia would have undertaken. Appended to the court order is a worksheet entitled “DissoMaster Data Screen”, which bears some resemblance to the DivorceMate program that would be more common in this jurisdiction.

On that work sheet, the “Presumed Child Support” figure was $2,232 which is exactly what the Court ordered by way of child support. [ 10 ] Accordingly, the California Court did not come to its conclusion arbitrarily. Rather, it was based on the assessment of the evidence it had before it, including M.A.’s income, which evidence is not challenged at this hearing. Furthermore, hearkening back to Knight , there is every public policy reason to enforce a child support order.

As has been said time and again, child support is the right of the child, and every parent has a legal and moral obligation to provide for the child. If this Court were to set aside this registration, it would be amount to saying, on a very practical level, that no child support should be paid (or should have been paid). In my view, it is the setting aside of the registration that would be contrary to public policy. H.M.’s obligation to become self sufficient [ 11 ] The California court made a spousal support order for $3,848 USD per month in favour of H.M..

It also contained a provision that H.M. has an ongoing obligation to make reasonable and good faith efforts to become self-sufficient. A term of the order reads: It is the goal of this state that each party must make reasonable good faith efforts to become self-supporting as provided for in Family code

section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support. [ 12 ] This is in line with the objective enunciated in s. 161(

d) of the Family Law Act which says: Objectives of spousal support 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

… (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 13 ] At this hearing, however, the evidence tendered does not support the conclusion M.A. urges on the Court. I have nothing other than M.A.’s assertion as to H.M. quitting her job as an accountant. This was not even proffered through affidavit evidence, but rather through counsel’s submissions. On the contrary, I have H.M.’s affidavit evidence where she talked about having lost her job in California as a result of her responsibilities for her children.

She deposed also that, after moving to Canada, she got her licence as an insurance broker, started her own business, and had occasional seasonal jobs. If anything, the evidence tends to show that she has made reasonable efforts to become self-sufficient. In addition, all of this must be put in the context that M.A. initially pled that the foreign order ought to be set aside on the basis that he did not receive proper notice of the original proceedings. It was very late in the day that his argument changed to that of the “public policy” ground.

Counsel for H.M. was surprised at this change in position and understandably did not fully prepare the relevant material to answer to this argument. It seems to me, even as a matter of procedural fairness, this ground cannot succeed. [ 14 ] Furthermore, and perhaps fundamentally, I also cannot imagine that H.M.’s failure to make reasonable efforts to be self-sufficient subsequent to the order would amount to the public policy concern envisioned by s. 19(3)(b)(ii).

One must keep in mind that the setting aside of the registration would amount to, in practical terms, a cancellation of spousal support in its entirety. Without deciding on the issue, M.A. may have a point to press and that spousal support ought to be reduced or varied. But that remedy needs to be pursued in the context of an application for variation (either in British Columbia or California). It would be entirely inappropriate for this Court, on the basis of M.A.’s assertions, to effectively cancel spousal support altogether.

This is so especially when H.M. has had virtually no notice of this argument to marshal her reply. As a general rule, there is a high degree of public interest for foreign court orders to be enforceable in reciprocating jurisdictions. This is obvious by the very existence of the ISOA , and made more apparent by the mandatory language under s. 18. To allow the applicant to so easily set aside a foreign order in its entirety, under circumstances such as these, would be, in my view, contrary to public policy.

H.M.’s Silence [ 15 ] Lastly, M.A. says that H.M. laid in the weeds for 14 years after the California Order was pronounced. She has been in communication with M.A. and not once did she mention the California Order. In the interim period, she and the children have been receiving some measure of support from M.A.. [ 16 ] In addressing this last argument, I find Mr. Boland’s reply compelling. For the majority, if not the entirety, of this 14-year period, M.A. lived in the United Arab Emirates, a non-reciprocating jurisdiction under the ISOA .

Throughout this period, it was acknowledged that M.A. had been providing some support, although not to the degree he was obligated to under the California order. H.M., therefore, found herself in a very precarious and vulnerable position. If she had broached the topic of the court order with M.A., she risked souring the relationship to the degree where M.A. would refuse to give any money to the family at all. And she would be left with absolutely no recourse. The money she was receiving was completely at the mercy of M.A..

When she learned in 2020 that M.A. purchased property in Toronto, she acted promptly to file the California order in British Columbia, reasoning that, for the first time, there was a realistic legal mechanism to enforce it. [ 17 ] On the facts before me, I cannot say that H.M. acted unreasonably. Again, without deciding on the issue, it may well be that the passage of the 14 years without any notice to M.A. with respect to his obligations warrants an examination of whether the arrears owing ought to be reduced to some degree.

But it seems to me, like with the previous grounds, this argument will need to be advanced in an application for a variation, or reduction or cancellation of the arrears. Only after an analysis of the relevant facts, including filing of financial statements, and likely each party having an opportunity to cross-examine the other, could a court come to a fair conclusion as to whether a reduction or even cancellation of arrears is warranted. But to cancel the registration, which amounts to a very drastic remedy, on the basis of the little evidence before the Court, would not be in the public interest.

As I said above, public policy generally favours the registration of foreign orders in reciprocating jurisdictions. The circumstances here fall well short of what would justify its cancellation. Conclusion [ 18 ] For all of the reasons above, M.A.’s application is denied. The California Court concluded that M.A. was given a reasonable opportunity to participate in the proceedings. It decided that it was appropriate to proceed with the case without his participation.

It then made an order based on the evidence it had before it, including an imputation of M.A.’s income at the time, which income is not disputed here. The California Court then appeared to have gone through the type of analysis a court in British Columbia would have undertaken with, for example, the DivorceMate program. In other words, it did not come to its conclusion arbitrarily. With all of that background, in my view, it would be contrary to public policy not to register this order. [ 19 ] This, of course, does not mean M.A. is without recourse.

He may still pursue an application to vary the order, or apply to cancel or reduce the arrears on the basis that it would be grossly unfair. All of these remedies may be available to him under s. 35 of the ISOA . My conclusion in this case, then, is consonant with Judge Blake’s

interpretation of the interplay between s. 19 and s. 35 of the Act . At para. 29 of Fitchett v. Mellin , 2017 BCPC 208 , the Court said: [29] In conclusion on this aspect of the matter, I emphasize that sections 19 and 35 of the Interjurisdictional Support Orders Act , when seen in the context of the statutory framework in which they appear, differ fundamentally from one another.

Section 19 is intended to govern the situation in which an applicant calls into question the foreign order as being so fundamentally flawed that it should be considered invalid.

Section 35 , on the other hand, is intended t o come into play if the applicant accepts the validity of the foreign order but takes the position that some adjustment of that order would be appropriate. In my view, the outcome of the present applications is substantially determined by the failure to distinguish between the two types of application, as I will now attempt to explain. [ 20 ] To use Judge Blake’s phrasing, the California order in the case at bar was not so fundamentally flawed that it should be considered invalid. M.A.’s relief, should he wish to pursue it, must lie in an application to vary or cancel under s. 35 of the ISOA .

Accordingly, his present application under s. 19 is dismissed. [ 21 ] The Court wishes to express its thanks to counsel for their submissions, and especially to Ms. Kahan for her assistance as amicus curiae throughout the proceedings. ____________________ The Honourable A. Tam Provincial Court Judge