Gavriluke v. Mainard, 2013 ONSC 2337
DIVISIONAL COURT FILE NO.: 48/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HAMBLY AND HERMAN JJ.
BETWEEN:
ANNA GAVRILUKE Applicant (Respondent on Appeal)
– and –
FRANCOIS MAINARD Respondent (Appellant)
Brigitta Tseitlin, for the Applicant (Respondent on Appeal)
Gene C. Colman, for the Respondent (Appellant)
HEARD at Toronto: April 18, 2013
ASTON J. (ORALLY)
1This is an appeal of the order of J. W. Scott J. dated December 5, 2012, on a motion by the father that those parts of the mother’s court application dealing with child support be struck for want of jurisdiction. Scott J. found that the court did have jurisdiction.
2The father is a French citizen living in France. The parents have two children. From August 2008, the parents lived with the children in France. In August 2009, they separated. In 2010, the Superior Court of Paris made a custody and access order, as well as a child support order, which was affirmed by appeal on August 20, 2010. That order in France specifically contemplated the mother’s relocation to Canada with the children. The Court permitted her to move and reduced the child support that would have otherwise been ordered so as to reflect the father’s long distance access costs. Shortly after that order was made, in August 2010, the mother returned to Canada with the children and she has resided in Niagara Falls since that time.
3In January 2012, the mother filed in Ontario, a motion to change the child support and the custody and access provisions of the order in France. Ultimately, Matheson J. ordered that she could not proceed by way of a Motion to Change but instead could only proceed by an Application, which he directed the clerk of the Court to accept.
4In April 2012, the father commenced proceedings in France regarding custody and access. The French court declined jurisdiction, following the ruling of Matheson J. of June 12, 2012, permitting the mother to bring her application in Ontario. The father no long contests the jurisdiction of the Ontario court to deal with the custody and access issues.
5The standard of review on appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law reviewed on a standard of correctness. Questions of fact or mixed fact and law are reviewed on a standard of palpable and overriding error.
6The broad and general principles articulated in the jurisprudence cited on this appeal are only helpful in the context of the underlying facts of those cases. The appellant father would have us focus on the similarities between this case and Sun v. Guilfoile (2011) 2011 ONSC 1685, O.J. No. 1168 (S.C.J.). However, it is readily apparent that this case is significantly different. In the Sun case, neither the applicant mother nor the children had any connection whatsoever to the Province of Ontario and Goodman J. found as a fact that the mother’s application (an application limited to child support) was simply forum shopping. Scott J. made a different factual determination in this case.
7Cases which stand for the proposition that an Ontario court cannot vary the order of the French court, simply recognize that Matheson J. was correct when he determined that the applicant in this case could not bring a motion to change but could only seek relief by an application.
8Moreover, there is no appreciable conflict in the caselaw in Ontario if the first and foremost consideration is whether the children, for whom child support is claimed, are legitimately and ordinarily resident in Ontario.
9Attard v. Attard (2010), 2010 ONSC 810, 81 R.F.L. (6th) 144, [2010] O.J. No. 506, 2010 CarswellOnt 673 (Ont. S.C.J.) is one exception. However, the child support claim was dismissed based on the unusual facts, facts which the Judge described as “unique”. Those circumstances included a foreign order which had actually terminated the father’s child support obligation.
10Child support claims are usually advanced by parents but child support has been recognized as a right of the child (see s. 31 of the Family Law Act).
11The statement of the motions judge that “there are no other parties to this litigation” is technically correct. However, a parent claims child support not only as his or her own entitlement but also as a proxy for his or her child. Furthermore, the rationale and purpose of child support is to defray or share the costs of raising children. It is most appropriate that the quantum of child support should be connected to the costs the custodial parent is incurring in the jurisdiction where they reside.
12If, as is the case here, Ontario law would result in a more generous award, it is difficult to answer the question of why these children - Ontario residents who have an independent legal right to be supported by their father under s. 31 of the Family Law Act - should be denied their full entitlement under that Act on the basis of their father’s residency. There may be a good answer to that question. However, it should be decided by a trial judge, not by the denial of the opportunity to even advance the child support claim.
13The trial judge will have an opportunity to consider s. 33(12) of the Family Law Act and may conclude that the provisions of the present order of the Court in France ought to continue, or that the amount payable ought to be less than the full guideline table amount. The trial judge can also exercise discretion with respect to the claim under s. 7.
14The main point to be made here, is that unless it is quite clear that Ontario has no jurisdiction or ought not to accept jurisdiction, the child support claim on behalf of children residing here ought to be determined on the merits. There may well be cases where it is clear that the custody/access claim advanced in relation to children living in Ontario is nothing more than a ruse or a tactic for the purpose of establishing jurisdiction to claim child support. At the other end of the spectrum, there could be custody and access decisions that have far-reaching financial implications.
15The facts of this case do not clearly fall at either end of the spectrum but, because it is not clear that the custody and access claims are artificial or insignificant, we are not persuaded that jurisdiction is clearly excluded or that there is a clear justification for this Court to decline to exercise that jurisdiction at this stage.
16In holding that the Court should not decline to exercise its jurisdiction now, we do not intend to foreclose the possibility that a trial judge may conclude otherwise and may decline to make any child support order based upon a full appreciation of the evidence, the financial ramifications of any custody and access order and the equities of this particular case.
17For these reasons, the appeal is dismissed.
(Costs Submissions)
18I have endorsed the Appeal Book on behalf of the panel: “This appeal is dismissed for oral reasons given and recorded. The appellant to pay costs fixed at $6,000 all inclusive, including the motion for leave to appeal.”
ASTON J.
HAMBLY J.
HERMAN J.
Date of Reasons for Judgment: April 18, 2013
Date of Release: April 30, 2013
CITATION: Gavriluke v. Mainard, 2013 ONSC 2337
DIVISIONAL COURT FILE NO.: 48/13
DATE: 20130418
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HAMBLY AND HERMAN JJ.
BETWEEN:
ANNA GAVRILUKE Applicant (Respondent on Appeal)
– and –
FRANCOIS MAINARD Respondent (Appellant)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: April 18, 2013
Date of Release: April 30, 2013