Szostek v. Szostek, 2011 ONCJ 663

Toronto (North York) Registry No. DR-51904-10 DATE: 2011·VI·16 CITATION: Szostek v. Szostek , 2011 ONCJ 663 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) SYLWIA KARINA MORAWSKA SZOSTEK ) ) ) NO ONE APPEARING, for the APPLICANT ) APPLICANT ) ) - and - ) ) DOMINIK STEFAN SZOSTEK RESPONDENT ) JACEK MIKOLAJKO, for the RESPONDENT ) ) ) ) ) ) ) ) HEARD: JUNE 15, 2011 JUSTICE S.B.

SHERR ENDORSEMENT Part One: Introduction [ 1 ] The respondent seeks an order setting aside the registration of two child support orders, the first dated May 26, 1998, that was made by the District Court, Family and Juvenile Division of the Republic of Poland, and the second, a Divorce Judgment dated November 26, 2001, made by the Regional Court Civil Division Branch in Rybnik, in the Republic of Poland.

Both of these orders provide that the respondent pay child support to the applicant for the child, Katarzyna, born on February 24, 1995, in the sum of $168.88 per month (Canadian dollars), starting from March 1, 1997. The second order essentially confirms the first support order. These

orders were both registered in this court on August 26, 2010 pursuant to the Interjurisdictional Support Orders Act, 2002 (the Act). [2] The respondent filed an affidavit sworn on October 6, 2010 in support of his motion to set aside the registration of these orders. Both the applicant and the designated authority in Ontario[1] were served with the respondent’s motion and supporting affidavit.

Theapplicant did not respond and the designated authority in Ontario did not attend on the return of the motion.[2] [3] The respondent seeks an order setting aside the registration of these orders on the basis that he did not have a reasonableopportunity to be heard. He claims that he was not served with either application for support in the Poland cases.

He deposed that he wasunaware of the support orders made in Poland until he was served with the Notice of Registration, in this proceeding, on September 15,2010. [4] The respondent also states that he should not be required to pay child support because he is not the biological father of the childand has never acted as a father towards her. The respondent deposed that he dated the applicant in Poland for many years “on andoff” in the early 1990’s. He claims that they did not cohabit. He said that they were apart in 1994 during the time that the child couldhave been conceived.

He claims that they dated again briefly, from the middle of July of 1994 until August 22, 1994, at which time hemoved to Canada. He said that he travelled to Poland in April of 1995 (after the child was born) and married the respondent onSeptember 30, 1995. He said that the parties separated within a month and he returned to Canada. He deposed that he has lived in Canadasince that time and has never reconciled with the applicant. [5] The respondent deposed that he was not seeing the applicant during the time that the child would have been conceived.

He saysthat the applicant was dating Piotr Morawski (her current husband) during that time. He claimed that the applicant turned down hisrequest for paternity testing, telling him, “let it remain a sweet mystery who her father is”. [6] The respondent has not had a relationship with the child since he returned to Canada in October of 1995. He deposed that he wasnever asked to pay child support until he received notice of the registered orders. [7] This matter first came before me on November 26, 2010. The threshold issue was whether the respondent had been given noticeof either of the two court cases in Poland.

There was no information about this in the court file. I made an order directing the designatedauthority in Ontario to ask the applicant and the reciprocal designated authority in Poland to serve and file all documents from the casesin Poland showing proof of service. [8] There was no response. Part Two: Motion to set aside the registered orders [9] Clause 20(4)(

b) of the Act reads as follows:

(4) Power of court.— On a motion under subsection (2), the Ontario court may, . . . (b)set aside the registration if the Ontario court determines that, (i)in the proceeding in which the order was made, a party to the order did not have propernotice or a reasonable opportunity to be heard, (ii)the order is contrary to public policy in Ontario, or (iii)the court that made the order did not have jurisdiction to make it. [10] There have been several cases decided under the Act finding that a respondent did not have a reasonable opportunity to be heard,when notice of the proceeding was deficient. See: Gal v.

Lukasiewcz 2008 ONCJ 676 and Nowosielska v. Nowosielski, 2004ONCJ 282 ; Milewska v. Anisko, 2008 ONCJ 168, 90 O.R. (3d) 614, 53 R.F.L. (6th) 94, [2008] O.J. No. 1752, 2008 Cars​well​Ont2541 (OCJ). [11] Here we have more than a deficient service issue. I accept the respondent’s evidence that he was not given any notice of either ofthe support applications in Poland.

The applicant and the designated authority in Ontario have not provided any evidence establishingservice, despite the request of this court. [12] I find that the respondent did not have a reasonable opportunity to be heard in either case in Poland and set aside the registrationof these orders. Part Three: The next steps [13] Subsection 21(1) of the Act provides that, if the registration of an order made in a reciprocating jurisdiction outside of Canadais set aside under

section 20, the order shall be dealt with under the Act as if it were a document corresponding to a support applicationreceived under

section 9 of the Act. The court must determine if the applicant is entitled to an order for child support, and if so,determine the amount and start date of the support order. [14] There are two important pieces of information that this court needs to determine this case. The first is whether the respondent isthe biological father of the child.

Section 12 of the Act reads as follows: 12 (1)- If a child’s parentage is in issue and has not previously been determined by a court of competent jurisdiction, the Ontario courtmay determine the matter. (2) – Restriction – A determination of parentage under this

section has effect only for the purposes of proceedings relating to support for

the child. [ 15 ] I have reviewed the court documents received from Poland. It does not appear that paternity was in issue. The respondent did not receive notice of either of these proceedings. I find that the child’s parentage has not been determined by a court of competent jurisdiction. This court will make that determination for the purposes of child support. [ 16 ] The respondent has established a prima facie case that he is not the child’s biological father. DNA testing would resolve this substantive issue and is appropriate in these circumstances.

This leaves the issue as to who should pay for the initial costs of the DNA testing. [ 17 ] The Act is silent as to who should pay for paternity testing. I find that none of the presumptions of paternity set out in subsection 8 (1) of the Children’s Law Reform Act apply to this case. If this case had fallen into any of the circumstances set out in this subsection I would have likely ordered the respondent to pay the entire initial costs of the DNA testing. [ 18 ] I find that it is appropriate for the parties to equally share the initial DNA testing costs since:

a) None of the presumptions with respect to paternity set out in subsection 8 (1) of the Children’s Law Reform Act apply;

b) The respondent has established a prima facie case that he is not the child’s father. He has provided viable evidence that the applicant’s husband is the biological father of the child. However, the time frame where the respondent claims that he was not involved with the applicant is a tight one (especially given the lapse of time since the child was born).

c) The applicant delayed nine years in applying to register the last of the two Poland orders. Entitlement to child support is very much in issue. I am not prepared to presume at this point that one party is more likely to be successful on this issue than the other. [ 19 ] The second piece of information that this court needs is the law of Poland with respect to child support entitlement. If DNA testing supports the respondent’s position, he still may have a support obligation under Polish law. Paragraph 1 of

section 13 of the Act directs, when there is a conflict of law, that the court first apply the law of the jurisdiction in which the child ordinarily resides, in determining the child’s entitlement to support. This reads as follows: 13. Choice of law rules.— The following rules apply with respect to determining entitlement to support and the amount of support: 1.

In determining a child’s entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law. [ 20 ] This court would also like to receive affidavit evidence from the applicant that responds to the respondent’s affidavit in order that it can make a decision based on a complete evidentiary record. [ 21 ] Subsection 21(2) of the Act provides that, if the Ontario court needs further information or documents from the applicant, the Ontario court shall send the designated authority a direction to request the information or documents from the applicant or the appropriate authority in the reciprocating jurisdiction and adjourn the hearing. [ 22 ] The efficacy of the interjurisdictional support scheme is premised on reciprocating jurisdictions facilitating the exchange of evidence and information.

It is always a concern to this court when a reciprocating jurisdiction does not respond to a request for information. The court is left to wonder whether the interests of the applicant and children are being appropriately protected and whether the result, in the absence of the information requested, is just.

This court strongly urges the designated authority in Ontario to be vigilant in following up with the reciprocal designated authority in Poland to obtain the necessary information to justly determine this case. [ 23 ] This court orders that DNA testing be conducted on the parties and the child on the following terms:

a) The designated authority in Ontario is requested to facilitate the DNA testing with the reciprocal designated authority in Poland.

b) The designated authority in Ontario is requested to first coordinate the DNA testing of the respondent. They should contact the respondent’s counsel to arrange this. The respondent shall pay the costs of this testing.

c) The designated authority in Ontario is requested to facilitate the transfer of the testing specimen to Poland.

d) The applicant and the child are to attend to complete the DNA testing in Poland.

e) The applicant shall be responsible for paying any costs of the DNA testing in Poland.

f) The designated authority in Ontario is asked to request the designated authority in Poland to facilitate the completion of the DNA testing in Poland.

g) The designated authority in Ontario is requested to follow through on obtaining and filing the DNA test results.

h) The costs of the DNA testing are subject to reapportionment once the results are received.

i) The DNA test results will be admitted into evidence without the need to call the persons conducting or interpreting the testing.

j) The DNA testing is to be completed within 180 days. [ 24 ] In addition, the designated authority in Ontario is directed to seek the following information from the applicant or the designated authority in Poland:

a) Information concerning the law of Poland with respect to the child’s entitlement to support, which this court is directed to first apply under paragraph 1 of

section 13 of the Act.

b) Any response by the applicant to the respondent’s affidavit.

c) Evidence that supports the respondent’s being the child’s biological father.

d) Evidence that the applicant relies upon to establish that the child is entitled to support from the respondent, whether under Polish or Ontario law.

e) Evidence as to when support was first requested from the respondent and subsequent efforts by the applicant to obtain support from him.

f) Evidence of the applicant’s financial circumstances since 1997.

g) Evidence about the circumstances of the child since 1997, including details of any prejudice that the child may have suffered due to not receiving any support from the respondent. [ 25 ] I will not make a temporary support order as the evidence has not established at this point that the respondent has a legal obligation to support this child. [ 26 ] The clerk of this court is directed to forward a copy of these reasons and this order to the designated authority in Ontario so that it may remit this material as soon as possible to the applicant and the reciprocal designated authority in Poland.

A copy of this endorsement should also be faxed to counsel for the respondent. [ 27 ] This case will return to court on December 22, 2011 at noon. 16 June 2011 Justice Stanley B. Sherr