Case Update (12 Aug 2025): Capone v. Fotak; Court must Determine the Classification of Other Country to determine how to apply UIFSA to Child Support Order enforcement
The parties are parents to children who are the subjects of an Ontario child support order. The children were born in Canada and reside in Canada. Their Mother is a Canadian Citizen. Their Father is a dual Canadian and Croatian citizen. He moved from Canada to NYC in 2001, and then apparently commenced residing in Bermuda since January 2014, however, with medical treatment regularly undertaken in NY, where he then stays in Jersey City. [The NJ courts found that the Father had been in NJ for a number of years and has a NJ address at the time of these proceedings]. The Ontario child support order at issue here was part of a Divorce Order issued by the Ontario courts in 2016. It included retroactive child and spousal support and arrears. In November 2019, the Father sought to set aside or quash all orders issued from the Ontario court for lack of jurisdiction and/or lack of proper service, and argued that the orders were made without notice to him. In 2021, the court dismissed his arguments. The Ontario Court of Appeals affirmed in 2022. The Supreme Court of Canada denied leave to appeal in 2023.
On March 19, 2020, a representative from the Canadian child support office sought registration of the Ontario support order in New Jersey pursuant to the Uniform Interstate Family Support Act. On July 1, 2020, the Father filed objections and a request to contest the registration of the order. The order at issue was presumably the 2016 child support order that was affirmed through the appellate process in Ontario. Among the Father’s arguments, which included lack of personal jurisdiction over him in Ontario and NJ, he argued that the child support office sought enforcement under Article 6 of UIFSA, when it should have sought enforcement under Article 7 of UIFSA, which applies to “Convention Orders”, i.e., orders that fall under the Hague Child Support Convention. He argued that Article 7 provided different arguments that he should be entitled to make against the enforcement of that order in NJ, but he was not given that opportunity to make those arguments.
On appeal, in a non-precedential opinion, the NJ Superior Court-Appellate Division found that the trial court had not addressed whether Article 6 or Article 7 of UIFSA applied. On remand, the trial court should make this determination - whether this case falls under Article 6 or Article 7. There was apparently a dispute “at oral argument the date Canada became a signatory to the Hague Support Convention.” The Appellate Division did correctly note the following: while Canada signed the Convention in 2017, it did not ratify until 2023, and the Convention did not enter into force in Ontario until February 1, 2024. The Convention entered into force in the USA in 2017.
The Appellate Division did not seemingly refer, however, to the Convention’s Article 56, which states, “(1) The Convention shall apply in every case where - (a) a request pursuant to Article 7 or an application pursuant to Chapter III has been received by the Central Authority of the requested State after the Convention has entered into force between the requesting State and the requested State; (b) a direct request for recognition and enforcement has been received by the competent authority of the State addressed after the Convention has entered into force between the State of origin and the State addressed.” The Appellate Division’s opinion did include the following salient dates: the Ontario order was issued in 2016, and the NJ Family Part granted the registration application on December 19, 2023.
The important detail in this case is, however, that one really needs to be able to classify the country that issued the foreign child support order correctly to understand how to apply UIFSA when that order is trying to be registered and enforced in a U.S. state. Remember the prior cases where this type of classification was critical, such as Kiya v. Jackson.
