Fiona Johnston v. Christopher Johnston, 2013 CanLII 65964 (ON SCDC)

Court File and Parties

DIVISIONAL COURT FILE NO.: 420/13

DATE: 20131018

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU J.

BETWEEN:

FIONA EILEEN JOHNSTON

Applicant /Moving Party

– and –

CHRISTOPHER LAWRENCE KERR JOHNSTON

Respondent/Responding Party

Laurie H. Pawlitza, for the Applicant/Moving Party

Sarah M. Boulby, for the Respondent/Responding Party

HEARD: October 15, 2013

Reasons for Decision

PARDU J.:

[1]

Introduction

The Applicant Fiona Johnston moves for leave to appeal from a decision of Paisley J. declining to determine whether the law of Georgia, in the United States of America or the law of Ontario applied to the determination of the issues of child and spousal support in an Ontario court, and reserving that issue to the trial judge.

[2]

Background

The motion judge set out the factual background in paragraph [2] of his reasons:

The parties married in Toronto in 1998. There are two children of the marriage, Olivia (8) and Georgia (5) who were born in Toronto. The parties are Canadian citizens, and resided in Toronto with the children until 2008, when they moved to Costa Rica to further the Respondent’s employment. The parties continue to own the residential property which was the matrimonial home in Toronto. In 2010 the parties moved to Atlanta Georgia, again as a result of the Respondent’s employment. The Applicant and children had limited visas to reside in the USA. In April 2013 the Respondent obtained a transfer of his employment to Australia. The Respondent moved to Australia to commence that employment on May 13, 2013, while the Applicant and children remained behind in Atlanta.

3The parties disagree as to the decision making process leading to the separation, however in any event, the mother moved back to Toronto with the children in June 2013, where she now resides and the father continues to reside in Australia, a place where the family has never resided.

4The motion judge concluded that Superior Court of Justice had jurisdiction to deal with custody and access, and that the balance of convenience also favoured Ontario, as opposed to Georgia.

5While both parties also asked the motion judge to determine whether the Ontario court should apply Ontario law or the law of the state of Georgia to the issues of spousal and child support he declined to do so, saying “it would be preferable to leave to the trial judge the determination of the applicable law re the issue of spousal support.”

6The parties requested clarification, and in an addendum, the motion judge indicated:

At the request of counsel, who requested clarification on the issue of applicable law pending trial, it is my view that interim issues of child and spousal support, disclosure and discovery should be determined in accordance with Ontario law, and that the trial judge shall determine the applicable law re child support.

[7]

Analysis

The Applicant submits that she is now caught in a procedural limbo. The Respondent has appealed the determination by the motion judge that Ontario had jurisdiction and was the convenient forum. Any attempt by the Applicant to obtain interim relief would likely result in a stay because the Respondent has not attorned to the jurisdiction. Both parties asked the motion judge to determine the issue of the applicable law on the basis of the written record before him. Absent such a determination the Applicant will have to prepare for trial on the basis of both Ontario law and the law of Georgia.

8Both parties agree that the jurisprudence as to what law would govern in these circumstances is unsettled. It appears that the test could depend on domicile, the last common residence of the parties, or the law of the jurisdiction having closest connection to the parties and the issues.

9The husband’s work commitment in Australia is for 36 months. He indicated in his affidavit that he would likely return to Georgia at the end of that period. He has indicated to his employer that his home country was Canada, that his annual leave allowance should permit him to return to Toronto and that repatriation at the end of his employment would be to Toronto. The wife and children’s presence in the United States was permitted by short term visas.

10There were few relevant facts in dispute. Both parties asked the motion judge to decide whether Ontario law or the law of Georgia would apply. Both parties would benefit from advance determination of this issue. Under these circumstances, there is good reason to doubt the correctness of the motion judge’s decision to defer this issue to the trial judge. It is difficult to see what basis there is to apply Ontario law to interim proceedings, but leave open the possible application of the law of Georgia at trial. The proposed appeal involves an important legal question which is unsettled. Given that the Court of Appeal will be dealing with the jurisdictional issues in this case in any event, it would be an opportune time to address the issues raised by the wife’s proposed appeal. This interlocutory appeal will not fragment the proceedings, as further progress must await the decision of the Court of Appeal in any event.

[11]

Disposition

For these reasons, I grant leave to appeal the interlocutory order of Paisley J. of August 13,2 013 as amended by the addendum dated September 9, 2013, in so far as it reserves the decision as to the applicable law governing spousal and child support to the trial judge. Costs of the leave application are fixed at the agreed upon sum of $4,000.00 but are reserved to the court hearing the appeal.

Pardu J.