COURT OF APPEAL FOR ONTARIO
CITATION: de Somer v. Martin, 2012 ONCA 535
DATE: 20120810
DOCKET: C55362
Feldman, Gillese and Epstein JJ.A.
BETWEEN
Marc de Somer
Respondent
(Appellant)
and
Isabella Martin
Applicant
(Respondent in Appeal)
W. Douglas R. Beamish, for the appellant
Ella L.J. Bernhard, for the respondent
Heard: June 22, 2012
On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice, dated March 12, 2012.
Epstein J.A.:
OVERVIEW
[1] This appeal arises out of competing child support orders in two jurisdictions – Ontario and Nancy, France.
[2] On March 11, 2004, O’Connell J., on consent, ordered the appellant father, Mr. de Somer, to pay child support pursuant to the Canadian Federal Child Support Guidelines, S.O.R./97-175. The actual amount payable by Mr. de Somer has fluctuated over the years, in accordance with changes to his income. Currently, Mr. de Somer is paying monthly support in the amount of $3,299.00.
[3] In January 2011, Mr. de Somer brought an application in France for a revision of his Ontario-ordered child support obligations. On September 23, 2011, Justice Sombrin of the High Court of Nancy granted the revision, ordering Mr. de Somer to pay monthly child support in the amount of €950. This order remains in effect pending the appeal of the respondent mother to the Court of Appeal for Nancy.
[4] In June 2011, Mr. de Somer brought a motion before the Ontario Superior Court for a declaration that France is the proper forum for the determination of child support, an order staying the Ontario proceedings and an order terminating his support and financial disclosure obligations under various Ontario court orders.
[5] The motion judge dismissed Mr. de Somer’s motion by order dated March 12, 2012, and on April 5, 2012, awarded costs against him, assessed on a full indemnity scale, in the amount of $51,190.48.
[6] Mr. de Somer appeals on the basis that the motion judge erred in his determination that Ontario is the more convenient forum. Mr. de Somer challenges the motion judge’s application of the forum non conveniens test and, specifically, claims that he failed to apply the principle of comity.
[7] At the conclusion of the hearing, the appeal was dismissed with reasons to follow. Here are the reasons.
FACTS
[8] Mr. de Somer and Ms. Martin lived together in Toronto when their son Matthieu was born in November of 2003. The parties separated shortly thereafter. They resolved all issues relevant to their separation on terms set out in Minutes of Settlement dated March 11, 2004.
[9] The agreement gave sole custody of Matthieu to Ms. Martin. The parties inserted several provisions into the Minutes of Settlement to take into account their future plans. First, they explicitly referenced the fact that Ms. Martin, who was to have sole custody of their son, would be moving to France to live, and that the flexible access given to Mr. de Somer was based on his need to travel extensively for work. Second, they identified the Canadian Federal Child Support Guidelines as the method by which Mr. de Somer’s child support obligations would be determined. Third, they agreed that they did “not want any court to order a change which deviates from or overrides the terms of these Minutes of Settlement” as they were “basing their future lives upon [the settlement]”.
[10] On the same day as the Minutes of Settlement were signed, O’Connell J. granted judgment in accordance with the parties’ agreement. The judgment, applying Guideline support to Mr. de Somer’s income at that time, ordered him to pay monthly child support in the amount of $1778.00.
[11] Shortly after entering into the settlement, Ms. Martin and Matthieu moved to France. Mr. de Somer remained in Ontario until March of 2010, when he relocated to Massachusetts.
[12] Ms. Martin, concerned that Mr. de Somer was not meeting his financial disclosure obligations set out in the Minutes of Settlement and related judgment, brought a motion in November 2006 for an order requiring production of financial information for the years 2005 and 2006. Once the motion was brought, Mr. de Somer consented to an order granting the disclosure sought. However, the motion judge assigned to hear the motion, Wilson J., awarded Ms. Martin her costs in the amount of $2000, holding that it should not have been necessary for her to have brought the motion.
[13] In October of 2007, Mr. de Somer brought a motion before the Ontario Superior Court for an order terminating his child support obligations on the basis that he had no income. Frank J. dismissed the motion and ordered Mr. de Somer to pay support arrears of $28,766.00 and on-going support of $1994 per month, based on an imputed annual income of $250,000. The motion judge also required Mr. de Somer to pay Ms. Martin’s costs fixed at $15,000.
[14] In January 2011, Mr. de Somer initiated the French proceedings detailed above.
[15] On June 13, 2011, Ms. Martin brought a contempt motion, alleging that Mr. de Somer had breached his court-ordered disclosure obligations and had not paid Guideline child support in amounts commensurate with his income.
[16] Mr. de Somer responded on June 23, 2011, by bringing a cross-motion for a declaration that France was the proper forum for the determination of child support, as well as an order staying proceedings in Ontario and terminating his Ontario child support and disclosure obligations.
THE MOTION JUDGE’S REASONS
[17] In his brief endorsement, after setting out some background facts, the motion judge noted that Mr. de Somer had breached his child support obligations in the past, quoting passages from the reasons of Frank J. culminating in her observation of “[Mr. de Somer’s] failure to recognize the significance of and to do what is necessary to comply with court orders”.
[18] The motion judge then turned to the current situation: Mr. de Somer was living in the United States, had an admitted income of more than $400,000 U.S. and had brought proceedings in France that resulted in a significantly reduced support order.
[19] Before specifically addressing jurisdiction and the forum non conveniens test, the motion judge first held that this was not a case of “forum shopping” on the part of Ms. Martin. In fact, he expressed the view that Mr. de Somer “likely” applied to have his support obligations resolved in France to take advantage of the lower amount that that jurisdiction would require him to pay.
[20] The motion judge then turned to the issue before him, the essence of which was whether the Ontario court should decline to exercise its jurisdiction over the determination of child support in favour of the French court.
[21] The motion judge’s analysis of which forum was the most appropriate for the determination of child support is contained in the following portion of his reasons:
Neither party now resides in France. I am not satisfied that a court in France is a more convenient or appropriate forum to determine [Mr. de Somer’s] ongoing child support obligation than this court...The parties agreed in 2004 that they did not want a court to override the terms of their minutes of settlement. [Mr. de Somer] has apparently succeeded in persuading the court in France to disregard the Canadian child support guidelines, which the parties had agreed were applicable.
[22] On the basis of this reasoning, the motion judge concluded that he was “satisfied that [Ms. Martin’s] preference that the issue of ongoing child support should continue to be decided by the Superior Court of Justice should be respected.”
ISSUES
[23] As a preliminary matter, Ms. Martin brought a motion to have the appeal quashed or stayed on the basis that Mr. de Somer is in default of various court orders.
[24] In his appeal, Mr. de Somer submits that the motion judge erred by misapplying the doctrine of forum non conveniens.
ANALYSIS
Motion to Quash
[25] Ms. Martin, relying on decisions such as Dickie v. Dickie (2006), 2006 576 (ON CA), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 8, [2007] 1 S.C.R. 346, submitted that Mr. de Somer is in breach of child support, costs and disclosure orders of the Ontario court, and his appeal should therefore not be heard until his breaches are cured.
[26] In Dickie, Laskin J.A. held that the Court of Appeal had the discretion to refuse to hear an appeal when the appellant had not cured a wilful breach of a court order (at para. 86). This discretion was based on the court’s power to prevent abuse of process, and it should be exercised where necessary to prevent a litigant from impeding the course of justice or undermining the court’s ability to enforce its own orders (at para. 85). Laskin J.A. was in dissent, but, on appeal, his reasoning was adopted by the Supreme Court.
[27] At the outset of the hearing, the panel dismissed Ms. Martin’s motion. The evidence presented on the motion demonstrated that Mr. de Somer was current with his court-ordered support obligations, save for any potential amount found owing if and when further disclosure is ordered that warrants an increase in support. The only costs award that remained unpaid is the one related to the matter under appeal.
[28] The parties disagreed on whether Mr. de Somer has provided full financial disclosure. Mr. de Somer had produced his 2010 and 2011 tax returns as well as a stock option certificate awarded in his favour from 2011. Ms. Martin alleged that Mr. de Somer had failed to provide details of employer pension contributions, while Mr. de Somer maintained that his employer does not make contributions to his retirement account. While it may ultimately be found that Mr. de Somer must produce more financial information and therefore pay more child support under the Federal Child Support Guidelines, the end result of this dispute was not clear. What was clear was that the mere existence of a debate over whether Mr. de Somer was in breach of his disclosure obligations and perhaps, therefore, behind in child support yet to be determined, did not come close to amounting to conduct of a nature so as to deprive a party of his right to appeal.
Forum Non Conveniens
[29] The parties agree that both Ontario and France have jurisdiction, and therefore, the forum non conveniens test should be used to determine the most appropriate location for the resolution of their dispute. In the recent decision of Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 343 D.L.R. (4th) 577, in which this area of the law was comprehensively considered, the Supreme Court held it was not possible to draw up an exhaustive list of relevant factors. However, at para. 110, the court identified such factors as including:
• the locations of parties and witnesses,
• the cost of transferring the case to another jurisdiction or of declining the stay,
• the impact of a transfer on the conduct of the litigation or on related or parallel proceedings,
• the possibility of conflicting judgments,
• problems related to the recognition and enforcement of judgments, and
• the relative strengths of the connections of the two parties.
[30] In order to succeed in this appeal, Mr. de Somer must demonstrate that France is “clearly more appropriate” as the forum for the determination of child support: Van Breda, at para. 109.
[31] In this case, several points are pertinent to the analysis.
[32] First, I attach considerable importance to the parties’ agreement set out in the Minutes of Settlement. After separation, with the assistance of experienced counsel, Mr. de Somer and Ms. Martin explicitly agreed that: 1) child support would be determined in accordance with the Federal Child Support Guidelines, and 2) no court should order a change that deviates from or overrides the terms of their agreement.
[33] Mr. de Somer’s and Ms. Martin’s resolve that the Canadian Guideline formula be used as a basis for the calculation of child support made sense at the time since both parties and young Matthieu then lived in Ontario. However, in my view, the parties’ specific identification of the Guidelines and the additional provision that they did not want any court to interfere with this resolution take on additional significance in the context of two facts they went out of their way to identify in the Minutes of Settlement: Ms. Martin had immediate plans to relocate to France and Mr. de Somer’s employment could very well involve periodic relocation.
[34] Mr. de Somer resists any import being given to the agreement that the Federal Child Support Guidelines would apply on the basis that Matthieu’s residence in France with different expenses and standard of living has given rise to circumstances that are materially different. He also argues that the Guidelines cannot apply, as neither he nor Ms. Martin were living in Canada at the time the motion judge determined Ontario to be the more appropriate forum.
[35] I do not accept either of these arguments.
[36] First, in my view, they fly in the face of the specific term in the Minutes of Settlement, concerning which Mr. de Somer mounts no argument, that he and Ms. Martin did “not want any court to order a change which deviates from or overrides the terms of these Minutes of Settlement” as they were “basing their future lives upon [the settlement]”.
[37] Second, in my view, they are based on a misreading of the agreement concerning the application of the Guidelines. The parties contractually agreed upon a specific formula for the determination of child support - the formula set out in the Canadian Federal Child Support Guidelines. The agreement does not say that the legislation applies to the determination of child support. It follows that the wording of the statute, in terms of its legislated jurisdiction, is not relevant.
[38] Mr. de Somer further argues that, while he agreed that the Federal Child Support Guidelines would govern, they could just as well be applied by a French court. However, his conduct belies this argument. In his application to the French court, Mr. de Somer did not seek to have the court apply the Guidelines. He relied on French law. I suggest, as did the motion judge, that he did so for reasons that should be obvious – the application of French law resulted in an order providing for significantly reduced child support.
[39] Finally, Mr. de Somer contends that several factors favour France as the most convenient forum, and the motion judge erred in not giving them more weight. Specifically, he argues that Ms. Martin was living in France at the time of the French judgment and had been living there since 2004. Furthermore, key witnesses, particularly Ms. Martin, reside in France.
[40] The fresh evidence provides a complete response to these points.
[41] On appeal, Ms. Martin brought a motion to introduce fresh evidence disclosing her pending move to Montreal. In addition to her affidavit evidence, Ms. Martin produced an employment agreement she has entered into with a Montreal employer identifying a start date between July 16 and August 1, 2012, and a letter from a Montreal school admitting Matthieu for the 2012-2013 academic year.
[42] I would admit the fresh evidence as it satisfies the requirements set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759; see also Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.).
[43] As a result, the location of the parties and witnesses does not favour France.
[44] This takes me to the issue of comity upon which Mr. de Somer heavily relies.
[45] It is always important to show respect for an order made by a court in another jurisdiction. However, in this case it was Mr. de Somer himself who created the conflict by bringing proceedings in France from which only he stood to benefit. Given these circumstances, I have difficulty giving much weight to this factor.
[46] My conclusion that there is no reason to interfere with the motion judge’s conclusion that Ontario is the most appropriate forum for the determination of Mr. de Somer’s obligations to provide financial support for his son, Matthieu, can be succinctly summarized: Staying the Ontario proceedings in favour of those in France would allow Mr. de Somer to resile from the clear terms of the agreement he freely entered into with Ms. Martin for their benefit and for the benefit of their son. This should not be sanctioned by this court without compelling reasons. Here, there are none. Furthermore, and in any event, the other factors identified above, relevant to the test for the determination of the most appropriate forum for the resolution of child support, unequivocally lead to the conclusion that Ontario is the appropriate forum.
DISPOSITION
[47] I would therefore dismiss the appeal with costs to Ms. Martin, as agreed, in the amount of $24,000 inclusive of disbursements and HST.
Released:
“KF” “Gloria Epstein J.A.”
“AUG 10 2012” “I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”