Court Information

Court File No.: D70515/14 Date: 2015-04-13 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Irene V. Goryn, Applicant (mother)

- and - Eric Neisner, Respondent (father)

Before: Justice Robert J. Spence

Motion heard: 31 March 2015

Reasons for Judgment released on: 13 April 2015

Counsel

Ms. Heather Hansen — for the applicant, mother

Mr. Steven Benmor — for the respondent, father

Introduction

[1] This is a motion brought by the Respondent father ("father") to dismiss an application brought by the Applicant mother ("mother"), pursuant to the Family Law Act ("FLA") seeking custody and child support. More specifically, that motion requests:

1. Pursuant to the Family Law Rules ("rules") 2, 5(8), 8.1(4), 8.1(7), 14(22), 37 and the Interjurisdictional Support Orders Act ("ISOA"), an order dismissing the within Application or, in the alternative, the portions thereof pertaining to child support (Claims 11 and 32).

2. An order directing the Applicant to commence a new proceeding under the Interjurisdictional Support Orders Act pursuant to Rule 37 of the Family Law Rules, in the event that she wishes to seek child support from the foreign Respondent.

3. [costs and such other relief as seems just].

[2] The mother seeks a dismissal of the father's motion.

Background

[3] The parties were in an intermittent dating relationship which resulted in the birth of a child on February 14, 2014. The child was born in, and continues to live in Toronto with the mother. The father has at all material times lived in the State of New York, in the United States of America.

[4] The mother's initial FLA application was issued in this court on March 27, 2014.

[5] The father issued the within motion on August 20, 2014. That motion was originally made returnable March 10, 2015, but because the parties did not first obtain the court's permission to hear a lengthy motion, it was subsequently adjourned to March 31, 2015, to be argued before me.

[6] In the meantime, the parties adjourned a number of first appearances and court attendances, until January 26, 2015, when they consented to an order before Justice Debra Paulseth granting final custody to mother, as well as certain other incidents of custody and access. That left child support as the only remaining issue between the parties.

[7] On February 17, 2015, the mother filed an amended application, seeking not only the "table" amount of child support pursuant to the Child Support Guidelines ("Guidelines") but, additionally, support pursuant to section 7 of the Guidelines. At the same time, mother also filed her sworn financial statement.

[8] The mother's financial statement discloses that she earns about $148,000 per year. The father has yet to file an answer to the application, or to file a sworn financial statement or to disclose his income to the court, but he is voluntarily paying child support, pursuant to the Guidelines based on an annual income of $150,000.

Outline of Father's Objections

[9] The father has raised a number of objections to the method chosen by the mother for pursuing her claim for child support. I will attempt to summarize the father's objections as reflected in his factum and oral argument.

1. Jurisdiction – The court ought not to assume jurisdiction to deal with this case under the FLA because the mother is unable to establish that there is a "real and substantial connection" between Ontario and the subject matter of this litigation.

2. Forum non conveniens/fairness – the father lives in New York City. His income varies from year to year and "may require the involvement of a Chartered Income Valuator" for the purpose of adducing an opinion as to his income each year. Because the father lives in New York and the evidence pertaining to his income is in New York, the simpler and more straightforward process would be to proceed by way of ISOA, rather than an application under the FLA. The father's factum states:

ISO [sic] is an interjurisdictional support process that is much simpler and less expensive than the domestic procedure.

3. "Practicality of a Foreign Litigant" – under this heading in his factum, the father states that if he is forced to proceed under the FLA, he would be required to retain counsel in Ontario, and would be denied the opportunity to build a "trust relationship" with his lawyer, someone who he would never meet. Further, to require documents to be prepared in New York and then sent back and forth between New York and Ontario, for drafting and signing purposes, is a process which is "simply unfair".

Preliminary Objections to the Father's Motion

[10] Mother raised what I would characterize as two preliminary objections to the motion being heard by this court. The first objection is founded upon the wording in the notice of motion itself. The second objection concerns the substance of the motion.

[11] Paragraph 1 of the notice of motion cites a number of rules upon which the father relies in support of his argument. More specifically, he cites rules 2, 5(8), 8.1(4), 8.1(7), 14(22) and 37.

[12] There is no need to reproduce these rules. Suffice it to state that rules 5(8) (Transfer to another municipality), 8.1(4), 8.1(7) (rule 8.1 is about the Mandatory Information Program in the Superior Court of Justice) and 14(22) (no motions without the court's permission) have no material applicability to the father's motion.

[13] However, rules 2 and 37 arguably apply to the motion. In part, rule 2 states [my emphasis]:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[14] Because part of the father's argument is about fairness, rule 2 is relevant to his motion.

[15] Rule 37 is entitled "INTERJURISDICTIONAL SUPPORT ORDERS ACT, 2002" ("ISOA"). And because the father is arguing that the claim for support should properly be brought under ISOA, rule 37 is also relevant.

[16] The second, and stronger preliminary objection argument for the mother is that this motion is really a "wolf in sheep's clothing". By that, what Ms. Hansen on behalf of mother means is that the motion is in substance – regardless of what it purports to be about - a summary judgment motion, seeking a summary dismissal of the application pursuant to rule 16. I cite the relevant portions of rule 16, as follows [my emphasis]:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).

EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16 (13).

[17] As to this second preliminary objection, Ms. Hansen argues that the substance of father's motion is a motion for summary judgment on a legal issue, pursuant to subrule 16(12). In effect, she argues, the father is asking the court to summarily dismiss the application for child support, on the basis that there is no jurisdiction to proceed under the FLA and, more properly, the mother ought to have proceeded under ISOA.

[18] And, the argument goes, because this is in substance a motion for summary judgment on a legal issue, therefore subrule 16(13) applies. Specifically, that latter subrule prohibits the filing of evidence, unless the "parties consent or the court gives permission". In support of his motion, the father has indeed filed affidavit evidence, something which mother did not consent to, and something for which the court did not give permission. Accordingly, the father's motion for summary judgment to dismiss the application cannot be heard, given the father's breach of subrule 16(13).

[19] There is merit to Ms. Hansen's characterization of the substance of father's motion. The father has never responded to the mother's application for support under the FLA, as he is now arguing that the mother is not entitled to have that application heard by the court. He is, in substance, arguing that, as a matter of law, the application cannot go forward and ought to be summarily dismissed by the court, without a hearing on the merits.

[20] In fairness, Ms. Hansen did acknowledge that her preliminary objections, under the rules, were "technical" in nature. However, she submitted that if the rules are to mean anything, if they are to have any teeth, the court ought not to lightly dismiss a technical argument.

[21] I have some sympathy with that argument. However, a failure to follow the rules does not necessarily result in the death knell of a proceeding. The court in Coady v. Boyle, [2004] O.J. No. 922 (Ont. S.C.J.) held that such a failure is merely an "irregularity" which can be cured by the court in its exercise of judicial discretion, so long as the procedure is fair to the parties and consistent with the primary objective of the rules, as set out in rule 2.

[22] In my view, the father's failure to obtain court permission to file his affidavit evidence in support of the (in effect) motion for summary judgment has not resulted in inherent unfairness to the mother or in her ability to advance her argument in opposition to father's motion.

[23] Accordingly, while I agree with the characterization of mother's objection, I am not prepared to dismiss father's motion on the basis of that irregularity, as I am unable to conclude that proceeding with the present motion would be unfair to the mother.

Discussion of the Merits of Father's Motion

a) Jurisdiction

[24] Mr. Benmor on behalf of the father argues that, in theory, there are two ways in which the mother can pursue support. The first is by way of ISOA, and the second is the way in which she has in fact proceeded, namely, pursuant to the FLA. While it is beyond dispute that the FLA does permit claims for child support, Mr. Benmor argues that in the circumstances of this case, where the father resides in the United States, the only option is for mother to proceed by ISOA.

[25] There is conflicting case law in Canadian jurisdictions as to whether ISOA is a complete code for obtaining interjurisdictional support orders, or whether claimants may also pursue support under provincial legislation.

[26] For example, in Harman v. Harman, 2009 ABCA 410 the Alberta Court of Appeal held that ISOA is a complete code for varying a Washington order registered in Alberta. In Virani v. Virani, 2006 BCCA 63, the British Columbia Court of Appeal reached a similar conclusion.

[27] The leading case in Ontario is Jasen v. Karassik 2009 ONCA 245, a decision of the Court of Appeal. In that case, the father lived in New York, whereas the mother and the child lived in Ontario. The parties had previously entered into a paternity agreement which the mother subsequently filed under section 35 of the FLA, and then moved to vary it in the Ontario Court of Justice. The father argued that the Ontario Court had no jurisdiction to hear the matter under the FLA and, instead, the mother ought to have proceeded under ISOA.

[28] The Superior Court of Justice agreed with the father, but on appeal to the Court of Appeal, that Court held that a resident of Ontario may choose which path to take – that is, she may proceed either under ISOA or the FLA.

[29] The Court first reviewed a number of cases from other jurisdictions which purported to hold that the ISOA is a complete code and concluded, at paragraph 60:

In my view, both decisions are distinguishable and neither stands for the proposition that the ISOA is a complete code for interjurisdictional support proceedings in all cases. To the extent that they can be taken to stand for this proposition, I would decline to follow them.

[30] At paragraph 66, the Court continued [my emphasis]:

Despite the language used [in the cases which the Court reviewed], I do not take either of them to stand for the proposition that the ISOA provides a complete code that excludes resort to provincial legislation in all cases where the payor [sic] is seeking support from an out-of-province father who resides in a reciprocating jurisdiction.

[31] And at paragraph 68, the Court stated [my emphasis]:

There is no reason why an applicant may not pursue an out-of-province father for support or for variation of a support provision in a domestic contract where service ex juris has been properly effected and the real and substantial connection test has been met. The real and substantial connection test was developed with the interests of comity in mind.

[32] And finally, the Court recognized the very practical reasons why the ISOA process should not be taken as a complete code for pursuing support entitlement, by stating at paragraph 69 [my emphasis]:

Finally, as a practical matter, I note that if the father's argument that the only means for obtaining an original support order or varying a support agreement is under the ISOA, then issues of child access and custody would in some cases have to be dealt with in a different proceeding than child support where there is a non-resident payor. That would be an unfortunate result and one that would run contrary to the principle that a multiplicity of legal proceedings should be avoided: see Courts of Justice Act, R.S.O. 1990 c. C43, s. 138.

[33] Mr. Benmor argues that there is no real and substantial connection between Ontario and the subject matter of this litigation and, accordingly, the test in Jasen, supra, has not been met. I disagree with that submission, as it would appear to fly in the face of the decision of the Ontario Court of Appeal in Navarro v. Parrish, 2014 ONCA 856.

[34] In Navarro, the parties were married in Florida and separated some months later. The mother then moved to Toronto shortly afterwards, where the child was born. At the time of the court proceeding, the mother and the child had lived continuously in Toronto.

[35] The mother sought support under the FLA, but the father objected, claiming that the mother could only proceed under ISOA. The Court of Appeal stated [my emphasis]:

[The father's] first argument is conclusively answered by Jason . . . holding that the [ISOA] provides an alternative procedure and does not bar an applicant from seeking support from an out-of-province respondent under the Family Law Act provided that the court has jurisdiction to hear the claim. An Ontario court has jurisdiction under the Family Law act provided that there is a real and substantial connection between the claim and Ontario. Here, the child was born in Ontario and the child and his mother have resided in Ontario for all of the child's life. Here, the ordinary residence of the child in Ontario is a sufficient basis to conclude that there was a real and substantial connection between Ontario and the subject-matter of the litigation.

[36] The holding in Navarro applies to the facts of this case. Because the applicant mother lives in Ontario with the child, and Ontario is their ordinary residence, that is sufficient to establish a real and substantial connection between Ontario and the subject matter of the mother's claim.

[37] While the existence of the real and substantial connection establishes jurisdiction simpliciter, that is not a complete answer to the father's position. The court still retains discretion to stay an Ontario court proceeding under the doctrine of forum non conveniens. I now turn to a discussion of that doctrine.

b) Forum Non Conveniens/Fairness/Practicality of a Foreign Litigant

[38] Under this subheading, I have chosen to conflate the father's other objections for the following reasons. First, as the discussion below will reveal, the issues of forum non conveniens and fairness to the parties are inextricably woven together. And second, the argument under the heading "practicality of a foreign litigant" is also very much tied into the issue of overall fairness.

[39] The leading case in Canada on jurisdiction and forum non conveniens is the decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda 2012 SCC 17. In that case, the plaintiffs were injured while on vacation outside Canada, at resorts owned by non-Canadian corporations. The plaintiffs brought a tort proceeding in Ontario, which the defendants sought to block, claiming that the Ontario courts lacked jurisdiction. The Supreme Court of Canada held that there was a real and substantial connection between the subject matter of the claim and the Ontario Courts.

[40] Once the real and substantial connection test has been met, the Court held that there is jurisdiction simpliciter for a court to then hear the case.

[41] However, the Supreme Court of Canada stated that, notwithstanding the existence of jurisdiction, a court nevertheless has discretion to stay an Ontario court proceeding on the basis of the doctrine of forum non conveniens. At paragraph 100, the Court stated [my emphasis]:

If jurisdiction is established, the claim may proceed, subject to the court's discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.

[42] At paragraph 103, the Court continued [my emphasis]:

If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules . . . and must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

[43] And continuing at paragraph 104, the Court states [my emphasis]:

[the doctrine of forum non conveniens] is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute.

[44] Applying this analysis to the present case, the father has in fact raised the issue of forum non conveniens. Having done so, the burden rests on him to demonstrate that "fairness to the parties and the efficient resolution of the dispute" requires this court to decline to exercise its jurisdiction, otherwise exercisable pursuant to the decisions in Jasen and Navarro, supra.

[45] As I noted earlier, rule 2 directs the court to "deal with cases justly" and to "ensuring a procedure that is fair to all parties".

[46] In keeping with the court's mandate to be fair, the father asserts in his factum that "the ISOA process is the one process that achieves fairness, speediness, lowest cost and enforcement of any orders".

[47] Father relies on rule 37, which, in part, provides [my emphasis]:

RULE 37: INTERJURISDICTIONAL SUPPORT ORDERS ACT, 2002

APPLICATION

37. (1) This rule applies to cases under the Act. O. Reg. 56/03, s. 6.

DEFINITIONS

(2) In this rule,

"Act" means the Interjurisdictional Support Orders Act, 2002; ("Loi")

"appropriate authority" has the same meaning as in the Act; ("autorité compétente")

"designated authority" has the same meaning as in the Act; ("autorité désignée")

"general regulation" means Ontario Regulation 55/03; ("règlement général")

"send", when used in reference to a person, means to,

(a) mail to the person's lawyer or, if none, to the person,

(b) send by courier to the person's lawyer or, if none, to the person,

(c) deposit at a document exchange to which the person's lawyer belongs, or

(d) fax to the person's lawyer or, if none, to the person. ("envoyer") O. Reg. 56/03, s. 6.

NOTICE OF HEARING

(3) When the court receives a support application or a support variation application the clerk shall, under section 10 or 33 of the Act,

(a) serve on the respondent, by special service,

(i) the notice of hearing mentioned in clause 10 (b) or 33 (b) of the Act (Form 37),

(ii) a copy of the documents sent by the designated authority, and

(iii) blank response forms; and

(b) send to the designated authority a copy of the notice of hearing and an information sheet (Form 37A). O. Reg. 56/03, s. 6.

INFORMATION AND DOCUMENTS TO BE PROVIDED BY RESPONDENT

(4) The respondent shall file, within 30 days after service of the notice of hearing,

(a) an answer in Form N under the general regulation,

(i) identifying any issues the respondent intends to raise with respect to the support application, and

(ii) containing the financial information referred to in subsection 21 (1) of Ontario Regulation 391/97 (Child Support Guidelines), if the support application includes a claim for child support;

(b) an affidavit (Form 14A) setting out the evidence on which the respondent relies; and

(c) a financial statement in Form K under the general regulation. O. Reg. 56/03, s. 6.

RESPONDENT'S FINANCIAL STATEMENT

(5) The respondent is required to file a financial statement whether he or she intends to dispute the claim or not. O. Reg. 56/03, s. 6.

APPLICANT'S FINANCIAL STATEMENT

(6) The fact that the applicant has provided financial information in a form different than that required by these rules does not affect the case. O. Reg. 56/03, s. 6.

WRITTEN HEARING

(7) Unless the court orders otherwise under subrule (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court. O. Reg. 56/03, s. 6.

REQUEST FOR ORAL HEARING

(8) The respondent may request an oral hearing by filing a motion (Form 14B) within 30 days after being served with the notice of hearing. O. Reg. 56/03, s. 6.

ORDER FOR ORAL HEARING

(9) The court may order an oral hearing, on the respondent's motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly. O. Reg. 56/03, s. 6.

DIRECTION TO REQUEST FURTHER INFORMATION OR DOCUMENTS

(10) A direction to request further information or documents under clause 11 (2) (a) or 34 (2) (a) of the Act shall be in Form 37B, and a statement of the court's reasons for requesting further evidence shall be attached to the direction. O. Reg. 56/03, s. 6.

DIRECTION TO BE SENT TO RESPONDENT

(11) When a direction is sent to the designated authority under clause 11 (2) (a) of the Act, the clerk shall also send a copy to the respondent. O. Reg. 56/03, s. 6.

ADJOURNMENT

(12) When the court adjourns the hearing under clause 11 (2) (b) or 34 (2) (b) of the Act, it shall specify the date on which the hearing is to continue. O. Reg. 56/03, s. 6.

COPIES OF FURTHER INFORMATION OR DOCUMENTS

(13) When the court receives the further information or documents, the clerk shall promptly prepare a notice of continuation of hearing (Form 37C) and send it, with copies of the information or documents, to the respondent and to the designated authority. O. Reg. 56/03, s. 6.

RESPONDENT'S AFFIDAVIT

(14) If the respondent wishes to respond to the further information or documents, he or she shall file an affidavit (Form 14A) containing the response with the court, within 30 days after receiving the notice of continuation of hearing. O. Reg. 56/03, s. 6.

PREPARATION OF ORDER

(15) The clerk shall prepare the order for signature as soon as it is made, in accordance with subrule 25 (11). O. Reg. 56/03, s. 6.

SENDING COPIES OF ORDER TO RESPONDENT AND DESIGNATED AUTHORITY

(16) The court shall send,

(a) a copy of the order to the respondent, addressed to the respondent's last known address if sent by mail; and

(b) a certified copy of the order to the designated authority. O. Reg. 56/03, s. 6.

SENDING COPY OF ORDER TO APPROPRIATE AUTHORITY

(17) The designated authority shall send the certified copy of the order to the appropriate authority. O. Reg. 56/03, s. 6.

NOTICE OF REGISTRATION, ORDER MADE OUTSIDE CANADA

(18) For the purpose of subsection 20 (1) of the Act, the clerk of the Ontario court shall give notice of the registration of an order made outside Canada by providing a notice in Form 37D, as described in subrule (19), to any party to the order who is believed to ordinarily reside in Ontario. O. Reg. 56/03, s. 6.

SENDING OR SPECIAL SERVICE

(19) If the party to whom notice is to be provided applied for the order in Ontario, the clerk shall send the notice to the party, but in any other case, the clerk shall serve the notice on the party by special service. O. Reg. 56/03, s. 6.

MOTION TO SET ASIDE REGISTRATION

(20) For the purpose of subsection 20 (3) of the Act, a party shall give notice of a motion to set aside the registration of an order made outside Canada by,

(a) filing in the Ontario court a notice of motion (Form 14) setting out the grounds for the motion;

(b) sending the notice of motion and supporting documents to the claimant at the address shown in the order; and

(c) serving the notice of motion and supporting documents on the designated authority by regular service at least 10 days before the motion hearing date. O. Reg. 56/03, s. 6.

DESIGNATED AUTHORITY NEED NOT APPEAR ON MOTION

(21) The designated authority is not required to appear on the motion to set aside registration. O. Reg. 56/03, s. 6.

NOTICE OF DECISION OR ORDER

(22) When the court makes a decision or order under section 20 of the Act, the clerk shall send copies of the order, with the court's reasons, if any,

(a) to each party, addressed to the party's last known address if sent by mail; and

(b) to the designated authority. O. Reg. 56/03, s. 6.

PARTY IN RECIPROCATING JURISDICTION

(23) If a party ordinarily resides in a reciprocating jurisdiction and the order was originally sent to Ontario for registration by the appropriate authority there, the clerk may send it to that appropriate authority rather than sending it to the party as set out in clause (22) (a). O. Reg. 56/03, s. 6.

PROVISIONAL ORDERS

(24) When the court makes a provisional order under section 7 or 30 of the Act, the clerk shall send the following to the designated authority, to be sent to the reciprocating jurisdiction:

1. One copy of,

i. the application (Form A under the general regulation),

ii. the applicant's financial statement (Form K under the general regulation), and

iii. a statement giving any information about the respondent's identification, whereabouts, income, assets and liabilities.

2. Three certified copies of,

i. the applicant's evidence and, if reasonably possible, the exhibits, and

ii. the provisional order. O. Reg. 56/03, s. 6.

FURTHER EVIDENCE

(25) When the court that made a provisional order receives a request for further evidence from the confirming court under subsection 7 (4) or 30 (4) of the Act, the clerk shall send to the applicant a notice for taking further evidence (Form 37E) and a copy of the documents sent by the confirming court. O. Reg. 56/03, s. 6.

[48] I have reproduced this rule at length so that a clear understanding can be gleaned about the process involved, in order to ascertain if the process is fairer, faster and less expensive than an application under the FLA. In particular, I have emphasized first, those portions of rule 37 which address the process for a written hearing versus the process for an oral hearing and, second, the various subrules which invoke the necessary involvement of the "designated authority".

[49] Father relies heavily on subrule 37(7) which presumes a written hearing over an oral hearing, unless the court orders otherwise. However, the likelihood that these parties would be able to resolve their incomes and child support issues by written documents alone is extremely low.

[50] There are a number of reasons why this is the case. A written hearing is more likely when the parties are simple T-4 (or equivalent) earners, with no complicating factors pertaining to valuations of income or the applicability of section 7 expenses under the Guidelines.

[51] That is not the case here. Mother is a substantial income earner, reporting income of more than $314,000 in 2013 and more than $223,000 in 2012. Her current income is reported to be about $148,000. Clearly, her income is highly variable. There may be reasons why this is the case, and reasons why the father would want to challenge her self-reported income in any one year. This is particularly relevant given mother's claim for section 7 expenses.

[52] Second, while father says he has made income disclosure to the mother, there is no such disclosure in the court file. Notwithstanding this lack of formal disclosure, I rely on certain portions of the father's factum which state the following [my emphasis]:

Factum paragraph 23 - The Respondent's income must be ascertained now and every year onward after accounting for the following sections under the Guidelines: section 17 (pattern of income), section 20 (non-resident status) and Schedule 3, sections 1d, 1f, 1f.1, 1h, 6 and 13.

Factum paragraph 24 - That is because the Respondent is employed in New York at an investment management firm where his annual compensation is made up of multiple components, including a base salary and several forms of variable incentive compensation. The variable compensation is in the form of a performance-based bonus, as well as performance-based restricted stock and stock options. While the incentive compensation is material, it is not guaranteed and is variable depending on a number of factors including his performance, the performance of his department, the performance of his firm as a whole, and the stock price of the firm that employs the Respondent.

Factum paragraph 25 – The reason this is so important is that the Respondent's income is highly variable and the parties therefore need a process that would allow them to change the child support amounts every year with little cost.

Factum paragraph 26 – A determination of the Respondent's income may require evidence from his employer.

Factum paragraph 27 – A determination of the Respondent's income may require the involvement of a Chartered Income Valuator in order to adduce opinion evidence as to his income for child support purposes.

Factum paragraph 28 – In any case, all of this evidence – both lay evidence from the Respondent and his employer – and any expert evidence are in New York.

Factum paragraph 29 – Thus, it would be extremely unfair for this litigation to proceed in Ontario when all of the evidence necessary and relevant for the court to consider is in the State of New York, and none of the evidence for the court to consider is in Ontario.

Factum paragraph 30 – Then, after any order is made, it would need to be enforced through reciprocal interstate enforcement – which again requires cooperation with the State of New York.

Factum paragraph 31 – If this motion is dismissed, and this Application proceeds, then every year that the Respondent's income changes (and it is expected to change annually), he will be forced to retain Ontario counsel and possibly travel to Ontario to seek a variation to the order for child support. If witnesses are required, then they too would need to travel to Ontario or participate via video conference.

[53] I make the following observations and comments about the father's concerns respecting the issue of fairness, as reflected in the foregoing excerpts from his factum.

[54] First, the father is obviously not a simple wage earner. His income determination may be a highly complex exercise, something requiring evidence from a number of persons, both lay as well as experts. This is not the type of income earner who simply fills out a two or three-page financial statement, signs it, and then sends it to the designated authority in Ontario, to then be forwarded to an Ontario court which, in turn, rubber-stamps the father's income, as determined solely by him.

[55] Given the income determination complexities, including the father's stated likely need for expert opinion evidence, this is almost certainly the kind of case where the mother would request an oral hearing pursuant to subrule 37(8) of ISOA, and almost certainly the kind of case where the court would grant such a request pursuant to subrule 37(9).

[56] If an oral hearing is required, then for all practical purposes, what is the difference between an oral hearing under the ISOA and an oral hearing under the FLA? In my view, while the respective statutory provisions may be somewhat different, the logistics of conducting the hearing itself are little different.

[57] If the matter were to proceed under ISOA, then contrary to the father's concerns that he and his witnesses might have to travel to Ontario, such would not necessarily be the case. Not only do the rules provide for hearing by video conference but the courthouse in which this proceeding is currently taking place has a courtroom, with brand new, state-of-the art video conferencing facilities. Utilizing this state-of-the-art technology, conferences and trials can be held seamlessly, in the same way as though the party was physically present in the courtroom.

[58] The courtroom technology would permit the father and all of his witnesses to testify from New York, should they prefer to do so rather than coming to Toronto.

[59] The father also expresses concern that as his income changes each year he would possibly have to travel to Ontario to seek a child support variation order. Apart from the fact that physical travel to Ontario would not be necessary because of the availability of video conferencing facilities, a variation of a child support order does not require a court attendance under the FLA.

[60] If the father were to seek a variation in subsequent years, he would provide all of his disclosure to the mother who would either agree to the requested variation, or disagree. If she were to disagree, then the same procedure would follow whether under the FLA or ISOA, namely, the setting of a hearing date so that witnesses could testify and be cross-examined by each party.

[61] On the other hand, if there is agreement on the variation, the proceeding under the FLA would only require the parties to sign a Form 15D. Not only would this be a very simple procedure, it would be much faster than proceeding under ISOA, where the respective "designated authorities" under the legislation are required to send documents from one jurisdiction to another, and then back again – a process which can take a number of months.

[62] An application under the FLA can proceed as expeditiously as the parties themselves wish. This means that, from the date of a first appearance on the application to a settlement conference might be as little as a few weeks; and from the settlement conference to a date for a hearing could be as little as three or four months later – depending on the anticipated length of the trial.

[63] On the other hand, the ISOA process would require the father to commence a variation proceeding in New York, complete his forms and then have those forms sent to the designated authority in Ontario, for personal service on the mother. This is a process which, as I noted earlier, typically takes several months.

[64] Following service on the mother, if she were to request an oral hearing, this would have to be communicated to the designated authority and the matter would then return to New York – again, requiring the passage of several months. Once this next step has been accomplished, the court in Ontario would arrange a case conference or settlement conference with the parties to discuss the logistics of disclosure and a hearing date. Overall, because of the need to invoke the process of the designated authority in the transmission of documents internationally, the process would likely be considerably longer and more drawn out, as compared to proceeding under the FLA.

[65] In terms of the speediness of the process, the critical factor here is that the designated authority as intermediary, which is a necessary component of ISOA, is entirely eliminated under the FLA.

[66] Of course, all of the foregoing – whether the process is by FLA or ISOA, will be subject to the particular exigencies in place at the time, as well as any peculiarities which might exist, arising from the particular facts of the case. The purpose of the foregoing analysis is not to demonstrate conclusively, in every case that FLA is a fairer, a speedier and a less expensive process but that, in many cases, it will be.

[67] More importantly, for the purpose of the present case, the father does not satisfy the burden of proof, as required by the Supreme Court of Canada in Van Breda, supra, that if the matter proceeds under the FLA, rather than proceeding by ISOA, the parties will be deprived of "fairness and the efficient resolution of the dispute".

[68] As I noted at the outset of this section of my reasons, I have conflated the fairness issue with the "practicality of the foreign litigant" issue as, in my view, they overlap. The nature of the overlap is also about fairness – not so much about legal process fairness, but about fairness to a litigant who often experiences the typical stresses which accompany family litigation.

[69] The thrust of this aspect of the fairness argument raised by Mr. Benmor is essentially the following. Litigation is difficult enough for an individual to experience. It is therefore important for a litigant to be able to meet with his lawyer in person, to have face-to-face contact and to build a solicitor-client trust relationship in the way that should normally be afforded to a client.

[70] Further, Mr. Benmor argues, the expense required for a foreign litigant to courier documents from his local lawyer to the agent in Ontario is "more challenging, cumbersome and expensive for the out-of-state-client".

[71] And finally, the argument goes, that as a foreign litigant the father is deprived of the opportunity to be present in the courtroom.

[72] The father's concerns are not entirely without merit. But these are issues which are both relatively minor in nature and relatively easy to address, should the father choose to do so. He can certainly retain his own counsel in New York and use Ontario counsel only for argument.

[73] And in the particular circumstances of this case where the father is undoubtedly a very high income earner, he can choose to travel from New York to Toronto, to meet and to sit in the office of his Ontario lawyer and spend some time getting to know that lawyer. Alternatively, this kind of meeting can be done through Skype or other similar technology process.

[74] Obviously, it is somewhat more expensive and time-consuming for the father to travel from New York to Toronto, as compared to getting into his car and driving to his lawyer's office in the same city where he resides. However, again in my view, this is a relatively minor consideration in the overall context of this case. Had the father been a resident of, for example, Australia instead of New York, then this particular consideration would have to be viewed through a different lens.

[75] Likewise, the "challenging and cumbersome" process of sending documents back and forth, while not a factor to entirely dismiss is, in my view, a very minor consideration; this is particularly so on the facts of this case where the father is obviously a sophisticated individual and a high income earner.

[76] And because of the obvious level of sophistication of this particular litigant, the "hand-holding" that another, perhaps more socio-economically deprived litigant might require, would most likely either not exist in this case, or certainly be significantly lessened.

[77] In summary then, the court cannot conclude that the father would be deprived of the fairness and justice to which he is entitled under the rules and, more particularly rule 2, if he were required to proceed with the present application, as opposed to an ISOA process.

[78] As the Supreme Court of Canada stated at paragraph 108 in Van Breda, supra [my emphasis]:

Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate. The expression "clearly more appropriate" is well established.

[79] And at paragraph 109, the Court continued [my emphasis]:

The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin.

[80] On the facts of this case, I find:

1. If the court were to do a straight comparison between the ISOA process and the FLA process, it would appear that the while both processes are relatively comparable in cost, if anything the ISOA process would be more time-consuming, due to the necessary involvement of the designated authority as intermediary, as set out in rule 37.

2. Because the ISOA process would be more time-consuming, it would be less fair to the parties, as compared to proceeding under the FLA.

3. Even ignoring numbers 1 and 2 above, and putting father's argument at its highest, the choice between ISOA and FLA would, in my view, amount to little more than "flipping a coin".

[81] Because of these findings, I conclude that the father has failed to discharge the burden of proving that the ISOA process is "clearly more appropriate" than proceeding under the FLA.

[82] Although the following statement is clearly obiter, I would hard-pressed to think of a situation where, except in the rarest of cases, once having established jurisdiction simpliciter, that a responding party to a FLA proceeding could successfully argue that Ontario would be a forum non conveniens.

Conclusion

[83]

1. For the foregoing reasons, I dismiss the father's motion in its entirety.

2. In the event the mother seeks her costs of this motion, she shall file by Form 14B her written submissions within 30 days of the date of the release of this decision, submissions not to exceed 3 pages in length, exclusive of any Bill of Costs and Offer to Settle and any relevant authorities. Thereafter, the father may provide his response by Form 14B, also not to exceed 3 pages in length, exclusive of similar attachments, within 21 days.

3. As I noted at the outset of these reasons, the father has not filed his answer and financial disclosure. I recognize that while his financial circumstances may be somewhat complex, he stated that he has already provided financial disclosure to the mother. Nevertheless, I will permit him 45 days to assemble and file all of his financial disclosure, as required by the rules and the Guidelines, together with his answer. The financial disclosure is not to be filed in the Continuing Record and, instead, it shall be filed in a discrete disclosure brief, tabbed and indexed.

4. In the event father's counsel requires additional financial disclosure from the mother, he shall notify mother's counsel as quickly as possible, following which mother shall provide her financial, also in a discrete disclosure brief, tabbed and indexed.

5. In the event either counsel is of the view that the opposite party's financial disclosure is deficient, he or she shall notify opposing counsel of any deficiencies within 21 days following receipt of that disclosure, specifically setting out what is required to remedy those deficiencies. Counsel shall agree on a reasonable time-frame for remedying any such deficiencies. In the event counsel are unable to agree on the resolution of any disclosure issues, they may speak to this issue on the next court date.

6. The mother shall be at liberty to file her reply, if any, within 14 days following receipt of father's answer and financial disclosure.

7. As Justice Paulseth's involvement with this case has been minimal, I will assume the responsibility to act as case management judge.

8. Unless the parties agree otherwise, the next court date shall be on Wednesday July 7, 2015 at 2:00 o'clock p.m., a date which will allow the parties more than sufficient time to complete their respective pleadings and financial disclosure. Of course, if this date is not convenient for either counsel, I expect counsel to cooperate in agreeing on a mutually convenient date which is available to the court, in which event they may file a Form 14B consenting to the new date.

[84] I wish to thank both counsel for their helpful and well organized facta and submissions.

Justice Robert J. Spence

April 13, 2015