The father in Canada was not given proper notice of the foreign proceedings
The Ontario Superior Court of Justice has refused to register a child support order issued by a German court because the father did not receive proper notice of the proceedings.
In German Federal State of Bavaria v. Gobeo, 2023 ONSC 5804, Domenico Gobeo has a son who lives in Germany. Gobeo claimed that the child is the product of a brief relationship that he had with the mother, which ended after a couple of years. He said the last communication he had with the mother and child was in 2008.
The applicant, in this case, the German Federal State of Bavaria, commenced child support proceedings in Munich. The applicant served the process on Gobeo by registered mail, but he allegedly failed to pick up the mail, and consequently, he was unaware of the proceedings in Munich.
In 2019, the court in Munich issued a child support order against Gobeo. The order was then registered in Canada under the Interjurisdictional Support Orders Act 2002 (ISOA).
Gobeo brought an application before the Ontario Superior Court of Justice, seeking to set aside the registration of the child support order issued by the Munich court. He claimed that he was never served with the process concerning the German child support proceedings and never had a chance to defend himself. He further alleged that the amount of child support he would be required to pay according to his income under the Child Support Guidelines would be about $107 monthly. On the other hand, the child support ordered by the German court was nearly four times more.
The Ontario Superior Court of Justice ultimately ruled to set aside the registration of the child support order. The court explained that under the ISOA, the court may set aside the registration of foreign orders concerning child support proceedings if the Ontario court determined that in the foreign proceeding, a party to the order did not have proper notice or a reasonable opportunity to be heard.
The court found that Gobeo did not receive proper notice of the proceedings and had no reasonable opportunity to be heard. The court said that “proper notice” is not necessarily the same as legal notice. The court was not satisfied that the method of service of the Munich court reasonably brought the child support proceedings to the attention of Gobeo.
The court observed that although Gobeo was served according to German law, he did not pick up his registered mail, and he may very well not have known what was in the registered mail that was waiting for him in the post office.
The court emphasized that a “proper notice” implied that the mailed notice of the German child support proceedings would have come to the attention of the respondent payor and allowed him to respond. In Ontario, service would have had to be through “special service,” as defined in the Family Law Rules. Special service allows for personal service on the responding service, ensuring that he has notice of the proceeding.
The court pointed out that registered mail alone may not be a good service to a responding party precisely because of what occurred in this case—the respondent did not pick up the mail. As a result, there was uncertainty as to whether the proceedings came to his knowledge.
In addition, the court said it did not receive a copy of the notice of the German application for child support. The parties did not advise the court whether there was an English translation of that notification, especially considering that the respondent does not speak or understand German.
Ultimately, the court found that Gobeo did not receive proper notice or a reasonable opportunity to be heard in the child support proceedings in Germany. Accordingly, the court ruled that the registration of the order must be set aside.