Jeffery v Jeffery, 2010 ONCJ 605

Windsor Registry No. 426/00 DATE: 2010·XII·09 CITATION: Jeffery v Jeffery , 2010 ONCJ 605 ONTARIO COURT OF JUSTICE BETWEEN: JANE JEFFERY, Applicant, — AND — DONALD BRUCE JEFFERY, Respondent. Before Justice Barry M.

Tobin Heard on 12 November 2010 Endorsement inscribed on 9 December2010 CONFLICT OF LAWS — Support of dependants — Final order of support — Registration of foreign order — Expunging registration — Grounds — Registration process void ab initio — About 8½ years ago, clerk of Ontario court had issued notice of registration of pair of Ohio support orders spaced 10 days apart for payment of support, but there was no indication that it had ever been served on respondent at that time — Five years later, clerk of Ontario court was again asked to register Ohio support orders — This time, clerk had also prepared administrative “certificate” that was inserted into court file, certifying new registration date (but making no mention of registration 5 years earlier) — Respondent was finally served (personally) with notice of registration (that spoke only of earlier registration date) but he apparently did nothing until 3 years later when police informed him at that time that his driver’s license had been suspended for non-payment of support — He got lawyer who reviewed court file, noticed that it contained “certificate” and then made belated motion to expunge registration of Ohio orders, not under subsection 20(2) of Interjurisdictional Support Orders Act, 2002 (“Act”) (where he was grossly out of time) but on basis that registration was nullity ab initio because: (

a) registration date in notice of registration was inconsistent with registration date set out in certificate; (

b) there was no authority allowing same order to be registered twice; (

c) by referring to 2 orders (spaced 10 days apart), certificate was ambiguous. Court rejected respondent’s arguments as follows: (

a) neither Family Law Rules nor Act referred to “certificate”, which had no juridical purpose, was never served on respondent and not been relied upon by Ontario enforcement authorities; thus certificate’s reference to second registration date did not result in inconsistency that could nullify earlier registration of Ohio orders; (

b) second registration, as described in certificate, did not invalidate earlier one described in notice of registration; it simply meant that orders were registered twice; second registration was superfluous as there was no evidence that first registration had ever been set aside; (

c) Act did not prohibit possibility that support obligation could arise from combination of orders; court had no evidence that 2 orders mentioned in certificate were inconsistent with each other or that 2 orders did not create support obligation made in Ohio; finally, there was no evidence that respondent was confused or uncertain about support obligation imposed upon him under Ohio orders. Court dismissed respondent’s motion. STATUTES AND REGULATIONS CITED Family Law Rules , O. Reg. 114/99 [as amended], rule 6 and subrule 37(18) , subrule 37(19) and Form 37D. General Regulation , O. Reg. 55/03, subsection 8(1) and

section 9 .

Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13,

section 18, subsection 18(1) ,

section 19 , subsection 19(1) , subsection 19(2) , subsection 19(4) , subsection 20(1) , subsection 20(2) , subsection 20(4) and subsection 54(1) . List of Reciprocating Jurisdictions , O. Reg. 53/03 [as amended], paragraph 1¶2. Reciprocal Enforcement of Support Orders Act , R.S.O. 1990, c. R-7 [now repealed]. Christopher G. Knowles ............................... agent for The Interjurisdictional Support Orders Unit, at the Office of the Director of Family Responsibility David W. Ziriada .................................................................................... counsel for the respondent JUSTICE B.M.

TOBIN ( endorsement ):— 1: INTRODUCTION [ 1 ] The respondent requested, by notice of motion, an order setting aside the registration of Ohio court orders dated 18 June 1999 and 29 June 1999 and the suspension of his driver’s licence at the behest of the Family Responsibility Office. [ 2 ] Notice of the motion was served upon the Interjurisdictional Support Orders Unit of the Family Responsibility Office (“the I.S.O. Unit”). It was represented by counsel on this motion. 2: FACTS [ 3 ] The only evidence filed on the motion was the affidavit of the respondent.

It disclosed the following. 2.1: 2002 [ 4 ] On 24 June 2002, the clerk of the Ontario Court of Justice at Windsor signed a Form 37D: “Notice of Registration of Final Order” (the “Notice of Registration”) under the Family Law Rules , O. Reg. 114/99, as amended. [ 5 ] The “Notice of Registration”, addressed to the respondent, stated that the Court of Common Pleas, Greauga County, Ohio, U.S.A., asked the courts in Ontario to enforce an order for the payment of support for dependants.

The “Notice of Registration” also states that the order was registered with the Ontario Court of Justice on 18 June 2002 under the Reciprocal Enforcement of Support Orders Act , R.S.O. 1990, c. R-7 (now repealed). 2.2: 2007 [ 6 ] By letter dated 8 June 2007, Angela Skora of the I.S.O. Unit wrote to the clerk of the Ontario Court of Justice at Windsor advising that, under

section 18 of the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13 (“I.S.O.A.”), it had received a foreign support order. The clerk was asked to register it with the court under

section 19 of the I.S.O.A. The foreign order was comprised of two orders, one dated 18 June 1999 and the other dated 29 June 1999. One certified copy and two photocopies of each were provided with the letter of request. The clerk was requested to arrange for the respondent to be personally served with the documents. [ 7 ] The admissibility of this letter was not challenged by counsel for the I.S.O.

Unit. [ 8 ] On 28 June 2007, the respondent was personally served with the “Notice of Registration”, judgment entry: 9 August 1999, and magistrate decision: 29 June 1999. [ 9 ] The respondent attached to his affidavit as exhibits the affidavit of service (exhibit “A”) and the “Notice of Registration” (exhibit “B”). The respondent did not attach a copy of the judgment entry or magistrate decision. (Counsel for the I.S.O.

Unit declined the opportunity given by me to adjourn the motion so that responding material could be served and filed.) [ 10 ] The court file contains a “Certificate of Registrar/Clerk” (the “certificate”), which certifies that two orders, dated 18 June 1999 and 29 June 1999 respectively, were registered on 20 June 2007 under the I.S.O.A. and that the Ohio order had the same effect as a support order made by a court in Ontario. 2.3: 2010 [ 11 ] On 19 October 2010, the respondent was stopped while driving his vehicle by an O.P.P. Officer.

The officer told the respondent that his licence had been suspended since 7 June 2010. [ 12 ] The respondent had not received any notice from the Family Responsibility Office that steps were being taken to suspend his driver’s licence.

[ 13 ] Subsequent to being stopped by the O.P.P. officer, the respondent retained counsel who reviewed the court file, observed that it contained the certificate and then brought this motion by notice of motion dated 26 October 2010. 3: LAW: THE LEGISLATIVE SCHEME [ 14 ]

Part III of the I.S.O.A. sets out the law to be followed when a claimant wishes to register in Ontario a court order that was made in a reciprocating jurisdiction. [ 15 ] Ohio is a reciprocating jurisdiction: see List of Reciprocating Jurisdictions , O. Reg. 53/03 , paragraph 1¶2. [ 16 ] The claimant, which includes the designated authority in the reciprocating jurisdiction, is required to send a certified copy of the support order to the I.S.O.

Unit in Ontario together with information about the location and the circumstances of the party (that is, the support payor) who is believed to ordinarily reside in Ontario: see subsection 18(1) of the I.S.O.A. [ 17 ] When the designated authority in Ontario receives the certified copy, it is sent to the clerk of the Ontario court sitting nearest the place where the support payor is believed to reside: see subsection 18(2) of the I.S.O.A. and subsection 8(1) of the General Regulation , O.

Reg. 55/03 . [ 18 ] On receiving the order from the designated authority in Ontario, the clerk of the Ontario Court registers it as an order of the court: see subsection 19(1) of the I.S.O.A. [ 19 ] From the date the order is registered, it has the same effect as a support order made by an Ontario court: see subsection 19(2) of the I.S.O.A.

This means that the order can be enforced or varied under the I.S.O.A. with respect to arrears that accrued before registration of the order as well as with respect to obligations accruing after its registration: see subsection 19(4) of the I.S.O.A. [ 20 ] An order made or registered under the former Act , the Reciprocal Enforcement of Support Orders Act , remains effective and may be varied, enforced or otherwise dealt with, as if it had been made or registered under the I.S.O.A.: see subsection 54(1) of the I.S.O.A. [ 21 ] After the order made outside of Canada is registered, the clerk of the Ontario court gives notice of the registration of the order to any party (that is, the support payor) who is believed to ordinarily reside in Ontario in accordance with subrule 37(18) of the Family Law Rules : see subsection 20(1) of the I.S.O.A. and

section 9 of the General Regulation , O. Reg. 55/03 . [ 22 ] The Family Law Rules provides that, for the purposes of subsection 20(1) of the I.S.O.A. , the clerk of the Ontario court shall give notice of the registration of the order made outside of Canada by providing a notice in Form 37D to the party who is believed to be ordinarily resident in Ontario.

Service upon this party is to be by way of special service, which includes personal service: see rule 6 and subrules 37(18) and (19) of the Family Law Rules . [ 23 ] Within 30 days after receiving the “Notice of Registration”, the party served may make a motion to the Ontario Court to set aside the registration. [ 24 ] On a motion to set aside the registration of the order, the court may confirm the registration or set it aside if it is determined that (

a) in the proceeding that gave rise to the foreign order the party did not have proper notice or a reasonable opportunity to be heard; (

b) the order is contrary to public policy in Ontario; or (

c) the court that made the order did not have jurisdiction to make it: see subsection 20(4) of the I.S.O.A. 4: APPLICATION OF LAW TO THIS CASE [ 25 ] The respondent did not bring this motion to set aside the registration of the Ohio order under subsection 20(2) of the I.S.O.A. Instead, he asked for an order that the registration be set aside on the basis that it is a nullity because: (

a) the registration date of 18 June 2002 set out in the “Notice of Registration” is inconsistent with the registration date of 20 June 2007 set out in the certificate; (

b) the certificate is ambiguous in that it refers to two orders, one of 18 June 1999 and the other of 29 June 1999; and (

c) there is no authority allowing this same order to be registered twice. [ 26 ] The respondent also submitted that, if the registration is a nullity, the enforcement of the Ohio orders by licence suspension should be set aside. 4.1: Are the Notice of Registration and Certificate Nullities because the Documents Refer to Different Registration Dates? [ 27 ] On the face of the “Notice of Registration”, an Ohio support order was registered on 18 June 2002.

On the face of the certificate, the Ohio orders of 18 June 1999 and 29 June 1999 were registered on 20 June 2007. [ 28 ] The respondent argues that this makes the “Notice of Registration” inconsistent with the certificate and, because of this inconsistency, the registration is a nullity. [ 29 ] I disagree with this argument. The certificate is not a form provided for in the Family Law Rules nor referred to in the I.S.O.A. It was not served upon the respondent nor relied upon by the I.S.O. Unit as “Notice of Registration” of an order made outside of

Ontario. [ 30 ] It is not clear on the evidence what purpose is served by the certificate within the scheme of the I.S.O.A. ’s registration and enforcement of orders made outside of Ontario. [ 31 ] I am of the opinion that reference to the different registration dates does not result in an inconsistency that caused the 24 June 2002 registration of Ohio orders to be a nullity. 4.2: Is the Registration a Nullity because the Same Order Was Registered Twice? [ 32 ] The “Notice of Registration” and certificate do refer to different dates of registration.

If the certificate and the “Notice of Registration” refer to the same orders, I am of the opinion that the second registration, as described in the certificate, does not invalidate the first one described in the Notice of Registration. It simply means that the orders were registered a second time. The second registration was superfluous as there was no evidence that the first registration was ever set aside. [ 33 ] The “Notice of Registration” dated 24 June 2002 has not been shown to be defective. Therefore, the order referred to in the “Notice of Registration” remains validly registered.

Subsection 54(1) of the I.S.O.A. specifically provides that orders registered under the Reciprocal Enforcement of Support Orders Act remain effective and may be enforced as if registered under the I.S.O.A. [ 34 ] What is of concern is that, in the letter from the I.S.O. Unit to the clerk of the court, the two orders are described as being dated 18 June 1999 and 29 June 1999. However, in the affidavit of service, the judgment entry is described as being “signed, issued, sworn, etc.” on 9 August 1999. On the face of the affidavit of service, one of the orders sent by the I.S.O.

Unit is not described in the same way as the one served on the respondent in purported compliance with the I.S.O. Unit’s instructions. I have not been provided with any evidence that explains the difference in these dates. [ 35 ] I am of the opinion, however, that this difference in dates does not make the service of the “Notice of Registration” a nullity. Subsection 20(1) of the I.S.O.A. requires notice of the registration of an order made outside Canada be made in accordance with the regulations. The regulations are the General Regulations , O. Reg. 55/03 and the Family Law Rules . [ 36 ]

Section 9 of the General Regulations provides that, for the purposes of subsection 20(1) of the I.S.O.A. , the clerk of the court is to give notice of the registration of the order made outside of Canada in accordance with subrule 37(18) of the Family Law Rules . [ 37 ] Subrule 37(18) provides that, for the purposes of subsection 20(1) of the I.S.O.A. , notice of the registration of the order made outside of Canada is to be given by special service of Form 37D.

In this case, special service was effected by personal service upon the respondent. [ 38 ] Service of the support order does not appear to be required under the I.S.O.A. or regulations. [ 39 ] I am therefore of the opinion that service of the “Notice of Registration” was valid and that the registration is not a nullity by reason of the difference in the description of the orders in the I.S.O.

Unit letter and the affidavit of service. 4.3: Is the Certificate Ambiguous in That It Refers to Two Orders? [ 40 ] The respondent also argues that the certificate is ambiguous and therefore the registration of the foreign order is a nullity because it refers to the registration of two orders. I do not agree. Although I have found that the certificate does not affect the validity of the “Notice of Registration”, I will address the argument in case I am incorrect. [ 41 ] Under the I.S.O.A., a support order means an order requiring the payment of support that is made by a court or administrative body.

There is no prohibition against a support order being comprised of a combination of orders. There is no evidence that the two orders referred to in the certificate are inconsistent with one another or that the two do not comprise the basis of the support obligation made in Ohio.

There is no evidence that the respondent was confused or uncertain about the support obligation imposed upon him under the Ohio orders. [ 42 ] The orders themselves were not made part of the evidence on this motion. 5: CONCLUSION AND ORDER [ 43 ] I find that the support order referred to in the “Notice of Registration” was and remains validly registered and therefore enforceable in Ontario. I also find that the “Notice of Registration” was properly served upon the respondent on 28 June 2007. [ 44 ] For these reasons, the motion brought by the Respondent is dismissed.