Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231206 DOCKET: COA-23-CV-0250 & COA-23-CV-0580

Trotter, Sossin and Monahan JJ.A.

DOCKET: COA-23-CV-0250

BETWEEN

Raha Mehralian Applicant (Appellant)

and

Michael Paul Dunmore Respondent (Respondent)

DOCKET: COA-23-CV-0580

AND BETWEEN

Raha Mehralian Applicant (Respondent)

and

Michael Paul Dunmore Respondent (Appellant)

Counsel: Anthony Macri, for the appellant (COA-23-CV-0250)/respondent (COA-23-CV-0580) Michael J. Stangarone and Meghann P. Melito, for the respondent (COA-23-CV-0250)/appellant (COA-23-CV-0580)

Heard: October 31, 2023

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated February 13, 2023, with reasons reported at 2023 ONSC 1044, and the order of Justice Lisa Brownstone of the Superior Court of Justice, dated May 1, 2023, with reasons reported at 2023 ONSC 2616.

Monahan J.A.:

[1] Raha Mehralian (the “applicant”) and Michael Paul Dunmore (the “respondent”) appeal two separate orders of the Ontario Superior Court dealing with issues arising from the breakdown of their marriage and parenting arrangements for their child, M.

[2] The applicant appeals the February 13, 2023 order (the “Divorce Recognition Order”), which recognized the validity of an Omani foreign divorce between the parties, for the purposes of Ontario law.

[3] The respondent appeals the May 1, 2023 order (the “Parenting Jurisdiction Order”), dismissing his motion seeking the return of the party’s child M. from Ontario to Oman, and granting the applicant’s cross-motion for an order that the Superior Court has jurisdiction to determine parenting time and decision-making for M.

[4] For the reasons that follow, I would dismiss both appeals.

A. BACKGROUND

[5] The complex procedural and factual history of these proceedings is set out in some detail in the two judgments under appeal and need not be repeated here. Rather, I will merely highlight certain background facts relevant to the issues raised before this court.

[6] The parties were married in Japan on June 26, 2015. They lived in Japan until 2016, when they moved to the United Arab Emirates. They separated for a period in 2017 but reconciled in 2018 and then lived together in Oman until March 2020.

[7] In March 2020, the parties travelled to Ontario for a number of reasons, including to visit the respondent’s parents. They had planned to return to Oman in early April 2020. However, the COVID-19 pandemic precluded them from doing so and they stayed with the respondent’s parents in Ontario until January 2021. In the meantime, the applicant became pregnant, and their son M. was born in Ontario on December 30, 2020.

[8] The parties, together with M., returned to Oman on January 23, 2021 but came back to Toronto on April 4, 2021. They were on vacation in Québec on May 30, 2021 when an altercation occurred, which led to the parties separating with no prospect of reconciliation.

[9] After the incident, the respondent moved to the United Arab Emirates, and later Oman, while the applicant remained in Ontario with M.

[10] In June of 2021 the applicant commenced an Ontario proceeding seeking a divorce, corollary relief and equalization of property. At the same time, the respondent commenced a court proceeding in Oman seeking a divorce and joint custody of M. [1]

[11] The applicant contested the jurisdiction of the Omani courts in relation to the proceeding commenced there by the respondent but, on March 7, 2022, the Omani Court of Appeal found that Oman had jurisdiction. In subsequent litigation in which both parties participated, an Omani lower court as well as the Omani Court of Appeal found that the parties had been validly divorced in accordance with Omani law and awarded primary custody of M. to the applicant.

[12] The two appeals before this court arise from a motion by the respondent in the Ontario Superior Court in which he sought an order recognizing the validity of the Omani divorce in Ontario, as well as an order returning M. to what he claims is the child’s habitual residence in Oman pursuant to s. 40 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). These two issues – the recognition in Ontario of the Omani divorce and whether the applicant should be ordered to return M. to Oman – were heard separately by two different judges.

[13] Myers J. (the “Divorce Recognition Judge“) found that the Omani divorce should be recognized in Ontario, a decision that is appealed by the applicant. On the other hand, Brownstone J. (the “Parenting Jurisdiction Judge”) found that M. should not be ordered to be returned to Oman, a decision that is appealed by the respondent.

B. THE DIVORCE RECOGNITION PROCEEDINGS

[14] The Divorce Recognition Judge noted that, although the applicant had initially contested the jurisdiction of Omani courts, she subsequently voluntarily participated in the Omani proceedings on the merits. This included claiming substantive relief from the Omani court regarding the validity of the marriage, the validity of the divorce and custody of M. As such, the Divorce Recognition Judge found that, “by any definition, the applicant attorned to the jurisdiction of the Omani courts.”

[15] The Divorce Recognition Judge noted that attornment is a common law principle of long-standing, and that a party’s decision to voluntarily submit to a foreign jurisdiction has been a basis for recognition of foreign judgements for hundreds of years. Because the applicant had voluntarily submitted to the jurisdiction of Omani courts and participated in proceedings there, she could not be heard to challenge that court’s jurisdiction in Ontario. As such, it was unnecessary to consider other issues that are often relevant in determining whether to recognize foreign judgments, such as the parties’ connection to the foreign jurisdiction. It was also unnecessary to consider other objections by the applicant to the Omani divorce, such as that she had not received valid notice of the divorce, or that the respondent had made false statements in procuring the divorce, since those issues had been considered and decided against her by the Omani court.

[16] The Divorce Recognition Judge did briefly consider the issue of whether the recognition of the Omani divorce would violate Canadian public policy. He noted that the applicant had offered no evidence to find that Omani law violates the public policy of Ontario, beyond the simple assertion that there is no provision for spousal support upon divorce in Oman. The Divorce Recognition Judge noted that although Ontario law has strong policies favouring support for divorced spouses, there was no evidence before him about how Omani law expects people to support themselves before and after divorce. He found that the applicant bore the burden of proof on this issue and that “she did not provide me with nearly enough evidence to rule in her favour on this very narrow ground of attack”.

[17] The Divorce Recognition Judge concluded by noting that failing to recognize the results of a contested hearing in another jurisdiction is contrary to principles of comity. Further, not acknowledging the decisions made by the Omani courts would also provide incentive for multiple proceedings in different jurisdictions, which would favour the wealthy. By contrast, it is just and equitable to recognize that a party be bound by a decision in a court proceeding in which they have voluntarily participated. He therefore declared that the parties’ Omani divorce be recognized in Ontario.

C. THE PARENTING JURISDICTION PROCEEDINGS

[18] The parties were agreed that the issue of whether M. should be ordered to return to Oman turned on whether Ontario courts have jurisdiction over parenting issues in relation to M., in accordance with either ss. 22 or 23 of the CLRA.

[19] The Parenting Jurisdiction Judge found that M. was habitually resident in Ontario at the time the applicant’s proceeding was commenced in June 2021, and that Ontario therefore had jurisdiction to make a parenting order under s. 22(1)(a) of the CLRA. In her view, it was not necessary to find that the parties had a “settled intention” to remain in Ontario in order to find that M. was habitually resident here. In any event, the Parenting Jurisdiction Judge found that the respondent’s evidence on these issues was not credible, and she therefore rejected his claim that the parties were merely visiting Ontario in April and May 2021. Although the Parenting Jurisdiction Judge also had some concerns about the credibility of the applicant, she ultimately accepted her evidence that the parties had decided to move to Canada with M. in March 2021.

[20] M. was therefore habitually resident in Ontario from April 2021 onwards, including on the date the applicant’s Ontario proceeding was commenced in June 2021. This gave the Ontario courts jurisdiction to make parenting orders in relation to M. under s. 22(1)(a) of the CLRA. In the alternative, the Parenting Jurisdiction Judge found that Ontario courts could exercise parenting jurisdiction in relation to M. on the basis of the six criteria set out in s. 22(1)(b) of the CLRA.

[21] The respondent had also argued that the issue of whether Ontario courts had jurisdiction to make parenting orders in relation to M. was res judicata in light of the Omani court’s divorce order. The respondent’s argument was that because the Divorce Recognition Judge had recognized the Omani court’s divorce order for purposes of Ontario law, and that order dealt with parenting issues in relation to M., the jurisdiction of Ontario courts to make parenting orders in relation to M. had been ousted. The Parenting Jurisdiction Judge rejected the respondent’s submission on the basis that the Divorce Recognition Judge’s order expressly dealt only with the divorce issue, and left open the issue of whether Ontario courts had parenting jurisdiction in relation to M.

[22] The Parenting Jurisdiction Judge therefore denied the respondent’s motion for an order that M. be returned to his care in Oman, and instead granted the applicant’s cross-motion for an order that the Superior Court has jurisdiction to determine parenting time and decision-making in respect of M.

D. THE DIVORCE RECOGNITION APPEAL

[23] The applicant appeals the Divorce Recognition Order on a number of grounds, including that the Divorce Recognition Judge erred when he held that the applicant had attorned to the jurisdiction of the Omani courts. The applicant argues that her participation in the legal proceedings in Oman was limited to challenging the jurisdiction of that court.

[24] The applicant also renews her challenge to the Divorce Recognition Order on the same grounds that were raised before the Divorce Recognition Judge. This includes her submission that the parties did not have a real or substantial connection to Oman; that the applicant did not have valid notice of the Omani divorce; that the respondent committed fraud in the Omani proceedings; and that it would be contrary to public policy to recognize the Omani divorce because the respondent sought a divorce there simply in order to avoid his support obligations to the applicant.

[25] It is well established that findings of fact, or of mixed fact and law that do not involve an extricable principle of law, can be overturned on appeal only in cases of a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 26-28.

[26] In this case, the Divorce Recognition Judge’s finding that the applicant attorned to the jurisdiction of Omani courts is one of fact. He found that, although the applicant initially contested the jurisdiction of the Omani courts, she subsequently made a voluntary and rational choice to participate fully on the merits. This included litigating the merits of the divorce, in which she asserted that under Omani law her marriage to the respondent was invalid and that the respondent had made false statements in the course of obtaining the divorce. The applicant also sought and obtained relief from the Omani court, through the award of custody of M.

[27] The applicant has failed to identify any palpable or overriding error in the Divorce Recognition Judge’s finding that she attorned to the jurisdiction of the Omani courts. Rather, the applicant invites this court to substitute its own factual finding in place of that of the Divorce Recognition Judge.

[28] The Divorce Recognition Judge’s finding was firmly grounded in the factual record. Indeed, as he pointed out, his findings in this regard were based on facts that were essentially uncontested. I see no basis for disturbing his finding that the applicant attorned to the jurisdiction of Omani courts.

[29] In my view, this is sufficient to dispose of this appeal.

[30] Parties to an action are free to select or accept the jurisdiction in which their dispute is to be resolved: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37. As the Divorce Recognition Judge noted, a party that has voluntarily attorned to the jurisdiction of a court has consented to having the issues in dispute determined by that court. Where jurisdiction is established through such consent, as in this case, it is unnecessary to consider whether there are other grounds upon which a court’s jurisdiction might be either recognized or challenged, such as whether the parties had a real and substantial connection with the jurisdiction in question: Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43-44.

[31] For the same reason, the Divorce Recognition Judge did not err in his finding that the applicant could not relitigate issues that she had unsuccessfully raised before the Omani court. These issues included whether the applicant had received valid notice of the Omani divorce and whether the respondent had committed fraud in obtaining the divorce.

[32] Although the Divorce Recognition Judge did consider whether the Omani divorce should not be recognized in Ontario because the divorce laws of Oman are contrary to Canadian public policy, in my view it was unnecessary for him to do so. This is because consent to the jurisdiction of the foreign court necessarily involves consent to the laws applicable in that jurisdiction.

[33] The Divorce Recognition Judge found that although the applicant was not required to agree that the validity of the parties’ divorce should be decided by the Omani courts, she voluntarily chose to do so. In so doing, she agreed to have the validity of the divorce determined in accordance with Omani law. Having consented to the application of Omani law, the applicant cannot now argue that the decision of the Omani court should not be recognized in Ontario because the law on which it was based is contrary to Canadian public policy.

[34] I would therefore dismiss the applicant’s appeal of the Divorce Recognition Order.

E. THE PARENTING JURISDICTION APPEAL

[35] The respondent appeals the Parenting Jurisdiction Order on the basis that the Parenting Jurisdiction Judge failed to consider the “settled intention” of the parties in determining whether M. was habitually resident in Ontario at the time of the parties’ separation in May 2021. The respondent argues that he and the applicant did not have a shared intention to move to Toronto when they travelled here in April 2021. Instead, he argues that they were merely visiting Ontario temporarily and planned to return to the Middle East.

[36] In the alternative, the respondent argues that, because the Omani court’s divorce order dealt with custody of M., and that order was recognized by Myers J., the Parenting Jurisdiction Judge had no jurisdiction to make parenting orders regarding M.

[37] Dealing first with whether M. was habitually resident in Ontario at the relevant time, it is true that at paragraphs 42 to 44 of her reasons, the Parenting Jurisdiction Judge stated that she did not have to determine whether the parties had decided to move to Ontario in determining M.’s habitual residence. However, she then proceeded to review the evidence to determine whether the parties were merely visiting Ontario, as the respondent claimed, or whether they had decided to reside here, as the applicant had claimed.

[38] As described above, the Parenting Jurisdiction Judge had credibility concerns with respect to the evidence of both parties. However, she ultimately preferred the evidence of the applicant on the issue of the parties’ residence in April and May of 2021. She found that the applicant’s evidence was more aligned with the documentary evidence and made more narrative sense than did that of the respondent.

[39] The Parenting Jurisdiction Judge therefore found that the parties decided to move to Toronto and began residing here in early April 2021, and were not merely temporarily visiting, as the respondent had claimed. The Parenting Jurisdiction Judge concluded that this was sufficient to establish that M. was habitually residing here, in accordance with s. 22(1)(a) of the CLRA.

[40] The Parenting Jurisdiction Judge’s finding that the parties had decided to move to Ontario in early April 2021 is one of fact. Moreover, it was based upon a careful and detailed review of the evidence, in light of credibility findings made by the Parenting Jurisdiction Judge. As such, it is entitled to a high degree of deference.

[41] The respondent has not identified any palpable or overriding error in the Parenting Jurisdiction Judge’s factual analysis. He merely invites this court to accept the same evidence that was expressly rejected by the Parenting Jurisdiction Judge and accept his submission that the parties were merely visiting Ontario in April 2021.

[42] I see no reviewable error in the Parenting Jurisdiction Judge’s factual finding that the parties were residing in Ontario at the relevant time, or in her conclusion that this was sufficient to establish habitual residence of M. for purposes of s. 22(1)(a) of the CLRA.

[43] Moreover, the Parenting Jurisdiction Judge did not err in finding that the recognition of the Omani divorce by the Divorce Recognition Judge did not oust the parenting jurisdiction of Ontario courts in relation to M. The Parenting Jurisdiction Judge correctly pointed out that the Divorce Recognition Judge’s mandate was to determine the divorce issue only, reserving to the Parenting Jurisdiction Judge the determination of parenting jurisdiction over M.

[44] I would therefore dismiss the respondent’s appeal of the Parenting Jurisdiction Order.

F. DISPOSITION

[45] For the reasons set out above, I would dismiss both appeals. Given the fact that success is divided, I would not order costs in respect of either appeal.

Released: December 6, 2023 “G.T.T.” “P.J. Monahan J.A.” “I agree Gary Trotter J.A.” “I agree L. Sossin J.A.”

[1] I note that the respondent had initially commenced a proceeding in the Ontario Court of Justice on June 2, 2021 but withdrew that application on June 17, 2021.