Court File and Parties
Ontario Court of Justice
Date: March 14, 2018
Court File No.: Toronto DFO-14715/16
Between:
Erika Edith Soto Rubio Applicant
— And —
Timothy Allen Joslin Respondent
Before: Justice Sheilagh O'Connell
Heard on: November 28, 2018
Reasons for Judgment released on: March 14, 2018
Counsel:
- Audrey Lee, Agent for the Applicant
- Nicole Savin/Yunjae Kim, Counsel for the Respondent
Reasons for Judgment
O'CONNELL J.:
Introduction
[1] The Respondent father, Mr. Timothy Joslin, seeks a summary decision on the legal issue of this court's jurisdiction to make a new child support order or to retroactively vary the child support provisions of the Divorce Order of the 16th Family Court, Bogotá, Colombia dated November 7, 2006.
[2] If this court determines that it has no jurisdiction, then Mr. Joslin seeks an order that the mother's application for child support and retroactive child support be dismissed.
[3] Mr. Joslin moves pursuant to Rule 16(8) of the Family Law Rules, O. Reg. 114/99. This Rule states that where the only genuine issue is a question of law, the court shall decide the issue and make a final order. Mr. Joslin also relies on Rule 16(12) which allows the court to dismiss or suspend a case because the Court has no jurisdiction over it.
The Issues
[4] The issues for me to determine are the following:
Does this court have jurisdiction to vary a valid Colombian court order for child support, made under a Colombian Divorce order?
Does this court have jurisdiction to retroactively vary the Colombian child support order?
If not, does this court have jurisdiction to make a fresh order for child support pursuant to section 33 of the Family Law Act and if so, can this order have a retroactive effect?
The Father's Position
[5] The father submits that this court does not have jurisdiction to vary or alter the child support provisions in a foreign court order unless the foreign court order was from a reciprocating jurisdiction as defined under the Interjurisdictional Support Orders Act ("ISOA"). In such a case, the mother must proceed to register the order and commence a variation proceeding under the ISOA.
[6] Given that Colombia is a non-reciprocating jurisdiction under the ISOA, the father submits that there is no common law or statutory authority that would allow the mother to vary, including retroactively, the Colombian court order for child support. According to the father, the mother's only recourse is to seek relief in the Colombian forum, either by varying or vacating the order there.
[7] The father submits that this court lacks the jurisdiction to make a fresh order for child support under section 33 of the Family Law Act. A fresh application for child support under the Family Law Act is in substance a variation of the Colombian court order disguised as an originating application. The mother cannot bypass the requirements of the ISOA or the Family Law Act by commencing an originating application for child support in the face of a valid and existing foreign divorce order which includes a child support provision.
[8] The father further submits that the only way that this court could have assumed jurisdiction was if the mother had filed the parties' earlier Colombian child support agreement under section 35 of the Family Law Act. Section 35 provides that a provision for support under a domestic contract may be enforced or varied under section 37 of the Family Law Act as if it were an order of the court. However, once the child support terms of the agreement were incorporated into the Colombian Divorce Order, it ceased to have effect on its own and the mother is now precluded from filing the Colombian Agreement with the court.
The Mother's Position
[9] The mother submits that to deny her the ability to vary the Colombian child support order in Ontario leaves her with no recourse, as Colombia is not a reciprocating jurisdiction under the ISOA. Neither party nor the child have lived in Colombia for a number of years. The custody and access proceedings regarding the child are now proceeding in Ontario and the father has attorned to the jurisdiction regarding custody and access.
[10] The mother submits that the Ontario court does have or may take jurisdiction over the child support issues and that the Ontario court ought to do so in the interest of justice. The mother submits that the Ontario court's jurisdiction may be asserted on the basis of a real and substantial connection to the subject matter being litigated, applying the factors identified by the Ontario Court of Appeal in Muscutt v. Courcelles, and Jasen v. Karassik.
[11] The mother further submits that the Ontario court may take jurisdiction on the basis of the forum of necessity doctrine as described by the Ontario Court of Appeal in Van Breda v. Village Resorts Ltd., as there is no other forum in which the mother could reasonably seek the relief claimed.
Background Facts
[12] The applicant mother, Ms. Rubio ("the mother") resides in Ontario with the child who is the subject of this application. The mother has an older child of a previous relationship who is not the subject of this application. She and both of her children have permanently resided in Ontario since 2014.
[13] The mother is currently unemployed and engaged to be married in Ontario. The mother was previously employed as a sales representative and earned a base salary of $45,000 per year, plus sales commission and benefits. The mother and the children recently moved to Vaughan, Ontario with her fiancé.
[14] The respondent father, Mr. Joslin, resides in California, United States. He has resided in California since on or about 2006. He is employed as the Chief Executive Officer of Community Medical Centers in Clovis, California. The father has three other minor children for which he pays child support pursuant to a shared parenting arrangement in California. He also has two other adult children.
[15] The father's gross annual employment income in 2016, according to his most recent sworn financial statements dated November 27, 2017 is approximately 1.7 million USD or 2.1 million Canadian.
[16] The parties married on April 4, 2003 in Bogotá Colombia. The mother is Colombian and the father is American.
[17] There is one child of the marriage, namely Erika Nicole Joslin Soto, born April 20, 2004 ("Nicole"), the subject child of this application. Nicole is almost 14 years old.
[18] After the parties separated, the mother and Nicole remained in Colombia until 2014 and the father returned to the United States.
[19] In 2006, the parties entered into an agreement regarding custody and child support, which was approved by the 18th Family Court of Bogotá on October 20, 2006.
[20] The parties divorced on November 7, 2006, pursuant to a Divorce Decree of Justice Luis Guillermo Arbodela Martinez the 16th Family Court of Bogotá. The Order incorporated the terms of the parties' custody and child support agreement dated October 20, 2006 ("the Colombian Order").
[21] The Colombian Order provides the following relevant provisions:
The mother will be responsible for the physical custody, guardianship and personal care of the child who reside with the mother in the city of Bogotá. Both parents shall have parental authority or joint custody regarding the decision-making for the child. The mother will inform the father of any change of address.
The father agrees to provide for the maintenance, housing, clothing, and personal care and recreation for the child by paying the sum of $500 US per month within the first five days of each month, which amount shall be increased by 6% as of January 2007 and continuing each year until the child reaches the age of majority in Colombia, namely the age of 18.
[22] It is not disputed that father has been complying with the Colombian support order and increasing the child support by 6% each year pursuant to the Colombian order.
[23] There is no provision in the Colombian Order requiring the father to regularly provide the mother with his income disclosure.
[24] At the time the parties entered into the child support agreement, the father's annual income was approximately $500,000 USD. There is a dispute between the parties regarding the mother's knowledge of the father's income at that time.
[25] The father states that the mother knew his income the outset and that she never requested financial disclosure or an increase in child support.
[26] The mother states that she was not aware of the father's income at the time that she entered into the child support agreement and that she regularly and repeatedly asked the father to increase his child support payments. She further states that until she moved to Ontario, she had no procedural means in Colombia to compel the father to disclose his income or to provide updated disclosure.
[27] The mother, Nicole and the mother's other child ("Samy") from a previous relationship lived in Colombia until 2014. The mother and her children immigrated to Canada from Columbia in 2014. They settled in Toronto, Ontario. They are now permanent residents.
[28] On November 16, 2016, approximately two years after the mother immigrated to Ontario, the mother brought an application in this court for sole custody of Nicole, child support in accordance with the Child Support Guidelines for Ontario, and financial disclosure. She further sought a retroactive increase in child support dating back a number of years.
[29] The father was properly served. The father delivered his answer to the mother's application. In his original answer, the father sought joint custody of Nicole and an order that he be provided with generous and liberal parenting time with Nicole in the United States in accordance with a parenting schedule to be determined with regard to the father's work schedule, the mother's work schedule, the child's educational needs and best interests, including a claim for 100 percent of the summer holidays with Nicole in California.
[30] Regarding the mother's claim for child support, the father did not agree that the table amount for support under Ontario Guidelines was appropriate, based on his current income, well in excess of $150,000, and having regard to the condition, means, needs and other circumstances of the child, pursuant to section 4 of the Child Support Guidelines. The father further did not agree that he owed retroactive child support.
[31] The first case conference in this matter was on April 25, 2017. On that date, the parties consented to a temporary order for child support order in the amount of $3000.00 per month, commencing May 1, 2017, pending further financial disclosure and negotiations. This temporary order continues to be in full force and effect.
[32] The parties were unable to resolve the issues of custody and access at the first case conference. The father sought extended summer access with Nicole, to be exercised in California. Given Nicole's age, on consent of the parties, the issues of custody and access were referred to the Office of the Children's Lawyer ("OCL") for further investigation of her views and preferences, among other issues.
[33] The Office of the Children's Lawyer appointed a lawyer for Nicole in June 2017. Counsel for the child completed his investigation on an expedited basis and a disclosure meeting was scheduled on July 13, 2017 with the parties. The parties were unable to reach an agreement.
[34] The father brought a motion for extended summer access to be exercised in California on August 3, 2017. OCL counsel participated in the argument of this motion on behalf of the child.
[35] On August 3, 2017, following argument, for oral reasons delivered on that day, the court dismissed the father's motion but made a temporary 'without prejudice' access order for access to be exercised in Ontario on a graduated basis, commencing Friday, October 13, 2017. The temporary order reflected Nicole's views and preferences at that time, in accordance with the OCL's recommendations.
[36] The issue of child support was then scheduled for a two-day focused hearing to be heard in November 2017.
[37] Shortly before the hearing dates, the father brought this motion for a summary legal decision on the threshold issue of this court's jurisdiction to determine child support. The father also sought to amend his answer seeking a dismissal of all of the mother's child support claims for lack of jurisdiction in the face of a valid and subsisting Colombian court divorce order. He further sought to declare the temporary child support order of April 25, 2017 a nullity.
[38] In his motion materials, the father states that the reason the issue of jurisdiction was not raised by him before was because the mother had failed to indicate in her application for child support that there was in fact a Colombian court order for child support. The application only referred to an agreement or domestic contract, which could have been filed in the Ontario court under section 35 of the Family Law Act. The father's counsel states that it was not until the parties' Colombian divorce decree was translated and examined did it become apparent that the child support provisions of the parties' earlier agreement had been incorporated into the Colombian divorce order.
Analysis
[39] In the case before me, for the following reasons, I find that this court does have jurisdiction to consider the mother's claim for child support under the Family Law Act, notwithstanding the existence of the Colombian divorce order and the ancillary child support provisions.
General Principles Regarding the Ontario Court's Territorial Jurisdiction
[40] Generally, an Ontario court will have jurisdiction to determine child support against an out of province payor in the following circumstances: 1) the out of province party is physically present in Ontario; 2) the out of province party consents to the process and attorns to the jurisdiction; or 3) if Ontario has a real and substantial connection to the matter being litigated and proper service has been effected. See Muscutt v. Courcelles (2002), 60 O.R. (3d) 20; Jasen v. Karassik, 2009 ONCA 245.
[41] In determining whether there is a real and substantial connection, the Ontario court must consider the factors articulated in Muscutt v. Courcelles, supra, which are summarized at paragraph 18 of Jasen v. Karassik, supra, as follows:
The connection between the forum and the plaintiff's claim;
The connection between the forum and the defendant;
Unfairness to the defendant in assuming jurisdiction;
Unfairness to the plaintiff in not assuming jurisdiction;
The involvement of other parties to the suit;
The court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
Whether the case is interprovincial or international in nature;
Comity and standards of jurisdiction, recognition and enforcement prevailing elsewhere.
[42] Even though an Ontario court may have jurisdiction under the above criteria, it is open to the court to decline jurisdiction based on the doctrine of forum non conveniens. The onus is on the party asserting forum non conveniens to convince the court to decline jurisdiction. In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 343 D.L.R. (4th) 577, the Supreme Court of Canada identified some of the relevant factors that the court must consider when assessing this issue at paragraph 110 of the decision:
(1) The locations of parties and witnesses,
(2) The cost of transferring the case to another jurisdiction or of declining the stay,
(3) The impact of a transfer on the conduct of the litigation or on related or parallel proceedings,
(4) The possibility of conflicting judgments,
(5) Problems related to the recognition and enforcement of judgments, and
(6) The relative strengths of the connections of the two parties.
Existence of an Out of Province or Foreign Support Order and ISOA
[43] However, other considerations clearly arise when there is already an out of province support order or foreign support order, and in particular a foreign support order that is corollary to a valid foreign divorce.
[44] It is well settled law that a Canadian court cannot vary a corollary support order related to a valid foreign divorce under the terms of the Divorce Act. Neither can the court alter or vary the corollary support order of a foreign divorce under provincial legislation such as the Ontario Family Law Act. The only mechanism for so doing is set out under interjurisdictional support statutes. See Rothgiesser v. Rothgiesser (2000), 46 O.R. (3d) 577 (Ont. C.A), and Okymansky v. Okymansky, 2007 ONCA 427, 86 O.R. (3d) 587.
[45] In Ontario, a foreign child support order made under a foreign divorce should be altered or varied under the procedures set out under the Interjurisdictional Support Orders Act ("ISOA"). The ISOA permits the Ontario Court of Justice to change or vary support orders from any foreign reciprocating jurisdiction, including those support orders made corollary to a foreign divorce order or by a federally appointed judge. The level of the foreign court does not matter, so long as the procedural requirements of the ISOA are met. See Rothgiesser, supra, at paragraph 20.
[46] However, in this case, the ISOA is not applicable. Colombia is not a reciprocating jurisdiction under that legislation. The mother therefore has no recourse to alter or vary the Colombian support order under the ISOA.
[47] The statutory authority for the variation of child support orders under the Family Law Act is found in section 37(2.1) of the Act. The court's authority to vary is limited to orders "made or confirmed" under the Family Law Act or to support provisions in a separation agreement filed under section 35 of the Act.
[48] The Colombian Order was clearly neither made nor confirmed under the Family Law Act. Further, once the child support terms of the Colombian agreement were incorporated into the Colombian Divorce Order, the agreement ceased to have effect on its own and the mother is now precluded from filing the Colombian Agreement with the court for variation under section 35 of the Act.
[49] Although there is no jurisdiction to vary the Colombian support order under the Family Law Act, the case law is uncertain regarding the court's jurisdiction to make an originating child support order under the Act in the face of a foreign order or to supersede a corollary support order under a valid foreign divorce.
[50] In Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, the Ontario Court of Appeal held, following Okymansky above, that although the Ontario Court does not have the jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction, an Ontario Court could make a child support order under the Family Law Act when the foreign divorce order is silent about child support.
[51] In that case, the wife and child resided in China and the husband resided in Canada. The parties married and separated in China. The wife applied for a divorce and corollary relief in Canada. The husband applied in China for a divorce. The Ontario judge acknowledged that the custody and access issues would have to be determined in China where the wife and child resided and that China was therefore the more appropriate forum to determine child support. The Chinese court granted a divorce and awarded the wife custody of the child but declined to make a child support order. The wife subsequently applied again in Ontario for child support.
[52] Can the Court of Appeal's ruling in Cheng v. Liu be extended to permit an applicant to claim child support under the Family Law Act if the foreign divorce contains a support order?
[53] The Court of Appeal in Cheng v. Liu did not answer this question. Prior to the release of Cheng v. Liu, there appears to be a number of conflicting lower court decisions regarding this issue.
[54] Counsel for the father relies upon the cases following Sun v. Guilfoile, 2011 ONSC 1685, to assert that the court cannot make a new order for child support as it in essence a variation under the guise of a fresh application.
[55] In Sun v. Guilfoile, supra, Justice S. Goodman was faced with the following facts. The parties were residing in Japan with the children of the marriage when they separated. The Tokyo family court granted a divorce and made orders relating to custody, access and child support. The mother subsequently moved to Hong Kong with the children. The father subsequently moved to Ontario on a temporary employment contract. While the father was in Ontario on a temporary basis, the mother started an application for child support in Ontario. The mother alleged that the child support tables in Japan were lower than they were in Ontario and did not properly reflect the father's ability to pay child support.
[56] Justice Goodman held that there was no jurisdiction for the Ontario court to make a new child support order since "such an application is nothing more than a disguised variation application." Further, Justice S. Goodman was clearly concerned in this case that the mother was engaged in forum shopping and that the jurisdiction of Hong Kong or the jurisdiction of Japan were more appropriate forums then Ontario for the determination of the child support issues.
[57] This case can be distinguished from the case before me for a number of reasons. In Sun v. Guilfoile, the mother and the children were residing in Hong Kong at the time that she brought her application for child support in Ontario. The children were not habitually resident in Ontario. Further, Hong Kong is a reciprocating jurisdiction under the ISOA. The mother acknowledged that she had the ability to change the Tokyo order in Hong Kong, but brought her application in Ontario because the child support tables were higher than Japan. The father was only in Ontario on a temporary work assignment and not residing here on a permanent basis. The court was clearly concerned that the mother was "forum shopping". Finally, the Tokyo order had only been made two years prior to the mother bringing her application. There was no evidence before the court that the Tokyo child support order was unfair or unreasonable.
[58] In the case before me, Ms Rubio and Nicole had been residing permanently in Ontario for almost four years. The mother has no other forum in which to reasonably seek relief. While the mother in Sun v. Guilfoile could vary the Tokyo order under the ISOA legislation in Hong Kong, Ms Rubio has no such option since Colombia is not a reciprocating jurisdiction. Ms Rubio is clearly not engaged in forum shopping as she had been residing in Ontario for more than two years before she commenced this application and she had been planning to come to Ontario since 2013. Further, the mother is seeking to update a child support order that is more than ten years old. There have been a number of significant changes in circumstances over the past decade. The father's income has more than tripled from what he himself claims was his income at the time that the child support order was made in Colombia 2006, almost twelve years ago.
[59] A second line of case law, relied upon by the mother, follows Kaur v. Guraya, 2011 ONSC 2853, an Ontario court decision that was released a few months after Sun v. Guilfoile, supra. In that case, Justice R. Gordon comes to a different conclusion than Justice Goodman, although the facts are significantly different. The parties were divorced in the state of Louisiana. The divorce judgment did not contain terms relating to custody, access or child support of the parties' children. The parties subsequently obtained a Final Order in the Superior Court in Washington regarding custody, access and child support. The mother and the children subsequently relocated to Ontario. Four years after relocation, the mother brought an application in Ontario seeking custody, terms of access and child support.
[60] The court in that case held that it was appropriate to supersede a foreign custody order pursuant to section 42 of the Children's Law Reform Act. The court was then left with a foreign child support order that was no longer appropriate on its face. Justice Gordon then went on to hold that in these circumstances the applicant mother could proceed with a new child support claim under the Family Law Act in Ontario.
[61] Justice Gordon held the following at paragraph 25 of the decision:
"It seems reasonable to me that when such material changes are alleged and the children are habitually resident in Ontario such that Ontario has jurisdiction to issue an order relative to their custody and access, it is appropriate that the matter of their support also be determined in Ontario. The alternative, as required by the position of the Respondent, would be to have a trial on the issue of custody and access here in Ontario and then to have a separate proceeding once that is complete pursuant to the ISOA to determine the issue of child support. In Jasen v. Karassik, the Court of Appeal touched on this difficulty when it stated at paragraph 69: 'Finally, as a practical matter, I note that if the father's argument that the only means for obtaining an additional 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 then child support where there is a non-resident pay order. 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. C. 43, s. 138.'"
[62] Accordingly, Justice Gordon found that the court had jurisdiction to hear the application notwithstanding the valid and subsisting foreign support order. However, the court held that the mother's success with respect to the child support claim is conditional upon her success in obtaining an order for custody or access which supersedes the parenting provisions contained in the foreign order and on her undertaking not to enforce the child support provisions contained in the foreign order should a new order for child support be made.
[63] Justice Gordon also set out a potential road map at paragraph 27 of his decision for courts to consider when deciding whether to deal with child support when there already exists a foreign order addressing that issue. Justice Gordon held that in order to be successful, there must be a change in the custody and access terms of the foreign order and the recipient must undertake not to enforce the foreign order, or to withdraw enforcement.
[64] Counsel for Mr. Joslin attempted to distinguish the above case on the basis that it involves a child support order from Louisiana, which is a reciprocating jurisdiction under ISOA. Since Ms. Rubio does not have recourse to ISOA in the case before me, she would not have to commence two separate proceedings in Ontario, one under the ISOA for a child support variation and one under the Children's Law Reform Act for custody and access thereby, avoiding a multiplicity of proceedings in the same jurisdiction.
[65] However, if this court lacks the jurisdiction to determine the mother's claim for child support, then the parties in this case would still face a multiplicity of proceedings, although in different jurisdictions, namely Ontario and Colombia, assuming Columbia would even entertain jurisdiction to determine child support now that the mother and the child has been ordinarily resident in Ontario for a number of years and the father resides in California.
[66] In Mittoo v. Nanda, 2015 ONCJ 401, 2015, CarswellOnt 11370, Justice Marion Cohen followed the approach taken by Justice S. Goodman in Sun v. Guilfoile and was not persuaded by the reasoning of Justice Gordon in Kaur v. Guraya. However, this case is clearly distinguishable on the facts.
[67] In the case before Justice Cohen, the parties were married in Maryland. They separated and obtained a consent divorce judgment in Maryland. The judgment contained corollary relief provisions including custody, access and child support. In 2010, the applicant mother and the child relocated to Ontario. The respondent father was residing in Florida. In 2015, the applicant mother commenced an application for child support under the Family Law Act.
[68] Justice Cohen determined that the mother's application was in essence a motion to vary a foreign corollary relief order under the guise of a fresh application for support. She held that there was no potential basis for jurisdiction under the Family Law Act as section 37, the variation section, is restricted to applications for variations of orders made or confirmed under the Family Law Act. She distinguished the case from Jason v. Karassik, which was a case involving a support agreement that could be filed and varied under section 35 of the Family Law Act.
[69] Justice Cohen stated the following at paragraph 40 of her decision:
"… I conclude that this court does not have the jurisdiction to either vary or supersede the Maryland order, nor to make a fresh order in the face of the Maryland order. As the court states in Rothgiesser, jurisdiction to vary a foreign support order may only be derived from provincial legislation respecting enforcement of support orders. That legislation is the ISOA. The applicant must proceed with her claim through the ISOA."
[70] In the case before me, as previously indicated, Ms Rubio cannot proceed with a claim under the ISOA. The mother has no other forum in which she could reasonably seek relief. It would be difficult, extremely costly, and impractical to return to Colombia to seek a variation of the Colombian child support order, particularly when the mother, father and the child have not resided in Colombia for a number of years and the custody and access proceedings are being actively pursued in Ontario where the child is habitually resident. It is also questionable whether the Colombian court would even assume jurisdiction, which the father's counsel fairly acknowledged during argument.
[71] In Gavriluke v. Mainard, 2013 ONSC 2337, 2013 CarswellOnt 5108, an appellate decision, the Divisional Court upheld the lower court decision of Justice Scott which permitted the mother to bring an application for custody and child support for the children in Ontario in the face of a valid French Superior Court Order for custody, access and support. In that case, the mother and the children had relocated to Ontario, with the French court's permission, and had been residing in Ontario for more than two years at the time of the application. The father commenced proceedings regarding custody and access in France which the French court declined to hear. It is also important to note that France is not a reciprocating jurisdiction with Ontario under the ISOA, so the mother was precluded from proceeding with a variation of the French support provisions under that legislation, as is the case before me.
[72] In dismissing the father's appeal, Justice David Aston, speaking for the Divisional Court, had this to say on the apparent conflict in the case law regarding this issue, at paragraphs 6 to 8 of that decision:
"The 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 ONSC 1685, [2011] 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.
Cases 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.
Moreover, 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."
[73] Similarly, in Morwald-Benevides v. Benevides, [2014] O.J. No. 444, 2014 ONSC, 44 R.F.L. (7th) 432, 2014 CarswellOnt 1128, also an appellate decision, Justice J. S. O'Neill distinguished Rothgiesser and Okymyansky and permitted a respondent mother residing in Ontario to claim child support not as corollary relief to a divorce, but as a matter of provincial law under the Family Law Act in the face of a valid and subsisting Bermuda claim for child support. Justice O'Neill held that the fact situation in that case was not parallel to the facts and circumstances in Okymyansky.
[74] In Morwald-Benevides, the parties and the children primarily resided in Bermuda during their marriage. The parties separated. The mother and the children started permanently residing in Ontario. The father resided in Bermuda. The mother brought an application for custody of the children in the Ontario Court of Justice. The father commenced a petition for divorce and corollary relief in Bermuda. The father had attorned to the Ontario court on issues relating to child custody and access, however, he sought to determine child support before the Bermuda divorce court. The mother then amended her application in Ontario and sought child support in the Ontario Court of Justice. The Ontario Court of Justice assumed jurisdiction over the issue of child support.
[75] The father appealed the lower court decision. In distinguishing Okymyansky, Justice O'Neill applied the Muscutt jurisdictional factors referred to earlier and held that jurisdiction weighed heavily in the mother's favour for the following reasons, set out at paragraphs 19 to 23 of that decision:
The children are habitually resident in Ontario. Their needs and best interests are now largely defined by their circumstances in Ontario.
The assumption of jurisdiction will not result in any significant unfairness to the father. As custody and access are now being addressed in the Ontario court, the father will be involved with the Ontario court, one way or another.
If child support is severed from the mother's Ontario court application, she will be required to complete proceedings in Bermuda and to initiate a further proceeding for child support under the ISOA. This will increase legal costs and expenses, and cause additional delays.
The issue of child support is directly linked to the issue of where and with whom the children reside. Further, custody and access issues are clearly linked to child support issues, to the extent that a court is guided by the best interests of children. In this respect, the court accepted the mother's position that it would be contrary to the best interests of the children to fragment the decision-making mechanism by arriving at the conclusion that in effect confers child jurisdiction issues upon two different courts.
There will be ongoing costs, expenses and uncertainty in attempting to secure a child support order in the Bermuda Supreme Court. This will include new filings and attendances.
[76] The appellate decisions of Morwald-Benevides and Gavriluke v. Mainard are very persuasive. Although the material facts and circumstances in both cases are not identical, they bear a striking resemblance to the facts before me.
[77] In my view, given that the ISOA is not applicable in this case, the relevant Muscutt jurisdictional factors reviewed and analyzed in those cases should be applied here in determining whether there is a real and substantial connection between the matter being litigated and Ontario, and whether this court should assume jurisdiction. In doing so, I conclude that this court does have jurisdiction to hear the Applicant's claim for child support for the following reasons:
The mother and child have been habitually resident in Ontario since 2014, approximately four years. Neither party nor child have resided in Colombia for a number of years. The father has not resided in Colombia since approximately 2006.
This is not a case of forum shopping. The mother did not apply for child support in Ontario until approximately two years after she arrived. The Colombian child support order is approximately twelve years old and there are a number of significant changes in the parties and the child's circumstances since the order was made, including the facts that the child is now 14 years old and the father's income has tripled since 2006.
The mother cannot proceed with a variation under the ISOA because Colombia is not a reciprocating jurisdiction under that legislation. The mother has no other forum in which she could reasonably seek relief. It would be extremely difficult, costly and impractical to attempt to vary the child support order in Colombia, or to seek other relief in that forum. It is also questionable whether Colombia would assume jurisdiction given that no one resides there or has been connected to that jurisdiction for a number of years. It would be unfair to the mother and the child if Ontario did not assume jurisdiction.
Further, the custody and access proceedings are being actively pursued in Ontario. The father has attorned to this jurisdiction to address the custody and access issues only. The father is actively engaged in those proceedings. It would be unfair and costly to the parties and the child to have two separate proceedings in Colombia and Ontario. The issue of child support is directly linked to the issues of custody and access, particularly given the father's position that the joint custody order should continue and the child should spend 100 percent of the summers with him in California.
The assumption of jurisdiction in Ontario will not result in any unfairness to the father as he is already involved with this court to address the custody and access issues. It is very likely true that Ontario law would result in a more generous child support award. However, as the Divisional Court in Gavriluke v. Mainard, supra, pointed out at paragraphs 11 and 12 of its decision:
"…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.
If, 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 right to be supported by their father under section 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."
- Finally, the mother has undertaken not to enforce the Colombian court order if the Ontario court makes an order for child support. Given that Colombia is not a reciprocating jurisdiction under the ISOA, it is difficult to see how the Colombian order could be enforced in any event. In the absence of authorizing legislation (ISOA), the Colombian support order would be of little or no effect outside of that jurisdiction. There is no real possibility of conflicting judgments.
Conclusion
[78] Accordingly, I find that this Court does have jurisdiction to determine the issue of child support, including any retroactive claims. The mother shall provide a written undertaking that she will not seek to enforce the Colombian court order.
[79] The parties shall contact the trial coordinator to canvass dates to continue the child support focused hearing.
[80] As the successful party, the Applicant is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settles attached within 30 days. Counsel for the Respondent shall submit a written response not to exceed 3 pages with any Offers to Settle and a Bill of Costs, within 15 days of receipt of the Applicant's costs submissions.
[81] Finally, I thank counsel for their helpful submissions and the case law provided.
Released: March 14, 2018
Signed: Justice Sheilagh O'Connell
