DATE: 20030328

DOCKET: C39076

COURT OF APPEAL FOR ONTARIO

RE: DAWN HILLMAN (Plaintiff/Appellant) v. IAN LETCHFORD (Defendant/Respondent)

BEFORE: DOHERTY, ABELLA and LASKIN JJ.A.

COUNSEL: Catherine A. Haber and

Peter F. Haber

for the appellant

Gordon E. Wood

for the respondent

HEARD: March 25, 2003

ORALLY

RELEASED: March 25, 2003

On appeal from the order of Justice K.A. Langdon, dated September 30, 2002.

E N D O R S E M E N T

[1] The motion judge concluded that the appellant could not assert the constructive trust claims advanced in the proposed amendments to her claim because those claims were res judicata based on a consent order made in previous proceedings between the parties in Ireland. We are not satisfied that the respondent established that the terms of the consent order extended to the claims which the appellant seeks to advance. While it may be that the parties agreed to settle all claims, including the claims the appellant now seeks to advance, at the time they entered into the consent order in Ireland, the evidence on that point is conflicting and it can only be resolved at trial.

[2] There is also conflicting evidence as to the respondent’s domicile which, in our view, can only be resolved at trial. Consequently, the respondent’s claim that the Ontario court had no jurisdiction to determine the constructive trust claims as they related to the respondent’s pensions, can only be determined at trial. In so holding, we leave open the question whether the respondent’s domicile will necessarily be determinative of the court’s jurisdiction to hear either or both of the constructive trust claims which the appellant seeks to advance at trial. The trial judge will decide that question.

[3] We also reject the respondent’s contention that Ontario is not the appropriate forum in which to litigate the constructive trust claims. In our view, the factors in favour of Ireland as the appropriate forum are more than counterbalanced by the fact that it is acknowledged that Ontario is the appropriate forum for the determination of the appellant’s support claims. As the support claim is properly before the Ontario court, we cannot agree that the court should decline to hear the constructive trust claims.

[4] The appeal is allowed and the order of the motion judge is set aside.

[5] Costs of the motion will be left to the trial judge. The appellant is entitled to her costs of the appeal on a partial indemnity basis fixed at $7,000.

“Doherty J.A.”

“R.S. Abella J.A.”

“John Laskin J.A.”