Van v. Tep, 2017 ONCJ 286

ONTARIO COURT OF JUSTICE CITATION: Van v. Tep , 2017 ONCJ 286 DATE: May 2, 2017 COURT FILE No.: 450/16 BETWEEN: Trang Van Claimant — and — Visna Tep Respondent Before Justice Barry Tobin Heard on April 26, 2017 Reasons released on May 2, 2017 A.

Fernandes ................................................................................... counsel for the respondent Tobin, J.: Reasons on an Interjurisdictional Support Orders Act , 2002 Application [ 1 ] The claimant resides in Michigan with her child, Amelia Hong Tep, born January 28, 2013 (the “child”). [ 2 ] The respondent resides in Ontario. [ 3 ] Under the Interjurisdictional Support Orders Act, 2002 (“ ISOA ”) the claimant made an application for child support from the respondent. [ 4 ] The claimant seeks ongoing and retro-active child support for the child. [ 5 ] The respondent acknowledges paternity of the child and his obligation to pay child support. [ 6 ] The issues determined in this application are: a. the law to be applied in determining the child’s entitlement to support;

b. the amount of child support to be paid; and c. the start date for child support. [7]

Section 13 of ISOA deals with the rules to apply when determining entitlement to and quantum of child support. [8]

Section 13 ¶1 provides that in determining a child’s entitlement to support, the Ontario court shall first apply the law ofthe jurisdiction in which the child ordinarily resides but if the child is not entitled to support under that law, Ontario law will apply. [9]

Section 13 ¶3 provides that in determining the amount of support for a child, the Ontario court is to apply Ontario law. [10] As the child ordinarily resides in Michigan entitlement is determined by the law of that jurisdiction. [11] The Respondent proved the Michigan legislation as foreign law: see Lear v. Lear, (1974), (ON CA), 17R.F.L. 136 (Ont. C. A.) para. 10; followed in Works v Holt, (1976), (ON CJ), 22 R.F.L. 1 (Ont. Prov. Ct.). [12] The Respondent filed the affidavit of Chad David Engelhardt, an Attorney and Counsel of Law in the State of Michiganwith experience in Family Law. I am satisfied that Mr.

Engelhardt is qualified to provide an opinion as to the law in Michigan. [13] The evidence of Mr. Engelhardt is that the claimant’s entitlement to child support for the child is governed by the PaternityAct, Act 205 of 1956 of Michigan. That Act provides that where a child is born out of wedlock, as is the case here, the father of the child,which in this case is admitted to be the respondent, is required to pay child support. With respect to the start date for child support, theMichigan legislation provides that a child support obligation is only retroactive to the date that the paternity complaint was filed.

Theexceptions referred to in the Act do not apply to this case. [14] I accept Mr. Engelhardt’s opinion that under Michigan law the commencement of this child support claim is a paternitycomplaint within the meaning of Michigan legislation. [15] I therefore find that the start date for child support shall be June 1, 2016 being the first day of the month next following theclaimant’s signing a uniform support petition. [16] The respondent filed a sworn financial statement in which he discloses his income for child support purposes to be$37,411.00 per year.

The Ontario child support guidelines provide that the child support payable on this income for one child is $330.00per month. [17] There will be immediate child support arrears arising on the making of a support order in this case. Based on a review ofthe respondent’s financial statement he will be able to pay the arrears at the rate of $150.00 per month. [18] For these reasons, an order will issue as follows: 1.

Commencing the first day of June, 2016 and on the first day of each month thereafter, the Respondent shall pay to the Claimant forthe support of the child, Amelia Hong Tep, born January 28, 2013 the amount of $330.00 based upon:

a) the child’s entitlement to support under the Paternity Act of Michigan,

b) the Interjurisdictional Support Orders Act, 2002 s.13 ¶1,

c) Ontario Child Support Guidelines cl. 3(1)(a),

d) The respondent’s annual income of $37,411.00, and

e) Interjurisdictional Support Orders Act, 2002 s.13 ¶3. 2. Any arrears arising by reason of this order to and including May 30, 2017 shall be paid at the rate of $150.00 per month starting thefirst day of June, 2017 and on the first day of each month thereafter until paid in full provided however, should the Respondent be inarrears of a payment of ongoing or retroactive child support for more than 45 days, the entire amount of retroactive child support thenoutstanding shall than become immediately due and payable. Released: May 2, 2017 Justice Barry M. Tobin