Monday, August 10, 2009

Jasen v. Karassik: Interjurisdictional Agreements

Unmarried parties had a child. born in Ontario and living there with mother. Father living in the U.S. Parties entered 1994 domestic contract dealing with custody and child support and mother moved to vary its terms after filing it with Ontario Court of Justice under s. 35(1) of the Family Law Act. Father defended application and did not argue jurisdiction. Judge awarded higher support and retroactive support. On appeal, award overturned on basis of lack of jurisdiction as the agreement was said to be an "interjurisdictional". Appeal judge said it was a U.S. agreement and the Interjurisdictional Support Orders Act ("ISOA")was a complete code. Mother appealed.

Appeal allowed.

Original judge had jurisdiction. Father living out of Ontario at time of variation application irrelevant to jurisdiction as the father had attorned to the Ontario court. As well there was a real and substantial connection between Ontario and the parties and the subject matter of the application.

The agreement was a domestic contract within the meaning of the Family Law Act and s. 35 of that act refers to the subject matter of the agreement rather than to territorial or jurisdicttional matters. It was a paternity agreement within the meaning of the act. That it had provisions afoul of the Income Tax Act didn't mean that it was not entered into in accord with Ontario internal law as provided by s. 58(a) of the act.

"...[45] The second interpretation of s. 58(a), which is arguably more consistent with the language and purpose of s. 58, is that it provides an alternative ground for upholding a domestic contract that is governed by foreign law. On this view, resort to s. 58(a) is only necessary if the contract is invalid or unenforceable under the foreign law. In that situation, a domestic contract is nonetheless valid and enforceable in Ontario if it is entered into in accordance with Ontario’s internal law: see Mittler v. Mittler reflex, (1987), 17 R.F.L. (3d) 113 (Ont. H.C.), at pp. 129-131; Ghavamshirazi v. Amirsadeghi, 2007 CanLII 62844 (ON S.C.), 2007 CanLII 62844 (Ont. S.C.), at paras. 11-13; James G. McLeod, The Conflict of Laws (Calgary: Carswell, 1983), at p. 386.
[46] It is not necessary in this case to decide which interpretation is correct. For the reasons that follow, I am satisfied that the agreement was “entered into in accordance with Ontario’s internal law”. That conclusion provides a complete answer to the father’s s. 58(a) argument under either interpretation of the section..."

The appeal judge erred in finding the ISOA a complete code. Any Ontario resident can apply either the FLA or the IOSA and proceeding under the former against a non resident requires service ex juris and a showing of a real and substantial conection between Ontario and the subject matter of the application. If the aplicant is successful the IOSA regime can be available for enforcement in the reciprocating jurisdiction.

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