Court File and Parties

Ontario Court of Justice

Date: 2018-10-24

Court File No.: Toronto DFO-18-15652

Between:

Alison Kathleen Lowry Applicant

— And —

Thomas Heiner Steinforth Respondent

Before: Justice Sheilagh O'Connell

Heard on: September 14, 2018

Reasons for Judgment released on: October 24, 2018

Counsel:

• Julia Tremaine, Counsel for the applicant
• Steven M. Bookman / Maia Rabinovitch, Counsel for the respondent

O'CONNELL J.:

Introduction

[1] The issue for determination on the motions before me is whether the Ontario Court of Justice or the Family Regional Court of Frankfurt, Germany has jurisdiction to address the custody, access and child support issues between the parties regarding their four year old son.

[2] The Applicant mother, Ms Alison Lowry, seeks an order granting this Court jurisdiction to decide matters of custody, access and child support. She further seeks an order staying the access provisions of the order of Justice Schmidt of the 4th Senate for Family Matters of the Frankfurt Higher Regional Court in Germany, dated September 22, 2017 (the "German Order").

[3] The mother also seeks leave to amend her pleading so that she may apply to supersede the German Order under section 42 of the Children's Law Reform Act (the "CLRA") in the event that the German Order is recognized in Ontario under section 41 of the CLRA.

[4] The Respondent father, Mr. Thomas Steinforth, seeks an order declaring that this court lacks jurisdiction to hear the mother's application, or parts of it, and an order that the Frankfurt Higher Regional Court in Germany (the "German Court") is the forum conveniens for the determination of custody and access issues.

[5] The Respondent father, Mr. Thomas Steinforth, seeks an order declaring that this court lacks jurisdiction to hear the mother's application, or parts of it, and an order that the Frankfurt Higher Regional Court in Germany (the "German Court") is the forum conveniens for the determination of custody and access issues.

[6] The motions were permitted to proceed prior to a case conference in accordance with Rule 14(4.2) of the Family Law Rules as it was in the interests of justice to determine the issue of jurisdiction as soon as possible, prior to taking any further steps.

Background

[7] Ms Lowry and Mr. Steinforth are the parents of the child, Niklas Lowry Steinforth ("Niklas"). Niklas was born on April 7, 2014 in Frankfurt, Germany.

[8] The mother is a Canadian citizen. She has been residing in Toronto, Ontario with Niklas since February of 2018.

[9] The father is a German citizen and he resides in Frankfurt, Germany.

[10] The mother moved to Frankfurt, Germany in approximately 2000 where she worked as a teacher and eventually started her own language education business. The father works for the Federal Bank of Germany in Frankfurt.

[11] The parties met in Germany in March of 2011 and married on May 24, 2013.

[12] The mother had a difficult pregnancy and the parties separated just after Niklas was born in April of 2014.

[13] The parties began litigation shortly thereafter in Frankfurt. Both parents described a 'high conflict' separation and acrimonious court proceedings, with the involvement of German child protection authorities and a guardian at litem for Niklas, given the concerns and allegations raised by both parents.

[14] It is not disputed that the child has always lived with the mother. The mother deposes that although she always made efforts to ensure that the father could see the child, the father did not always take advantage of the opportunities provided. The father deposes that the mother has limited and denied his access to the child and has sought to marginalize him since the child's birth.

[15] It is further not disputed that the mother wanted to return with Niklas to Ontario, where she has family support and a network of friends. After a lengthy court process, the parties reached a final agreement concluding the German proceedings on September 22, 2017. Their consent was incorporated into the Order of Justice Schmidt and provided the following:

1. The parties were granted joint custody of the child;

2. The mother was granted primary residence of the child and she and the child were permitted to move to Canada;

3. The father was granted eighteen weeks of access each year, until Niklas entered onto Grade 1, or the child's "mandatory school attendance begins", whereupon the access would be renegotiated. The father was granted six weeks of access in Germany in the summer, commencing on July 1st, two periods of three weeks each in Germany in the winter and the spring, and two periods of up to three weeks with the child in Canada.

4. The mother will bring Niklas to Germany to be with the father on July 1st for the six weeks of summer access and take Niklas back to Canada after the six week period.

5. The child will spend alternating Christmases with each parent, in odd-numbered years he will spend Christmas with the father in Germany and in even-numbered years he will spend Christmas with the mother in Canada. The father's access to the child at Christmas will be part of the three week stays that he has been granted in Germany and will be deducted from the access times that the father has been granted.

6. The travel costs incurred for the father's twelve weeks of access in Germany shall be shared equally by the parties.

7. With respect to any future legal disputes concerning custody and or access to Niklas, the parties confirmed "the applicability of the international jurisdiction of courts in Germany and the applicability of German laws." Both parties agree that this provision in the final German Order meant that the German Court retains jurisdiction to address any custody and access issues.

[16] The father also pays child support for the child in accordance with an enforceable child maintenance order pursuant to the "Dusseldorfer Tabelle", which is similar to the Ontario Child Support Guidelines. He currently pays child support in the amount of 304 Euros per month, or the equivalent of $461.00 Canadian per month, based on an income of $55,530.00 annual income for child support purposes. The support order is enforced through a German support agency and is apparently in good standing.

[17] The mother and Niklas arrived in Toronto in February of 2018, where her extended family live. The mother states in her affidavit that it quickly became apparent to her that there were a number of factors that would have a significant impact on her ability to co-parent with the father under a joint custody order, of which she was previously unaware. She submits that there have been a number of material changes in circumstances affecting the child that justify a variation of the German Court Order, including difficulties reaching decisions with the father about Niklas' schooling and education. The father denies this in his affidavit.

[18] The mother deposes that she was unable to bring Niklas to Germany on July 1st as a result of difficult financial circumstances. She has yet to secure employment and therefore unable to pay the costs of travel or accommodation in Germany, for reasons that she explains in her affidavit. She further states that Niklas is too young to travel alone.

[19] The father states that the mother represented in the German court proceedings that her employment prospects were infinitely more stable in Canada although she ran a successful language education business in Germany for many years.

[20] The mother commenced her application in the Ontario Court of Justice on June 19, 2018, approximately four months after she arrived in Canada and shortly before the father was to commence his first six weeks of access with Niklas in Germany on July 1st, 2018, pursuant to the German Order.

[21] In her Ontario court application, the mother seeks the following orders:

1. An order for sole custody of the child;

2. An order that the child's principal residence remain with his mother;

3. An order the child's principal residence be in Toronto, Ontario and that neither party can move his primary residence absent consent of the other party or a court order;

4. An order for "reasonable and generous access" to the father;

5. An order that income be imputed to the father for child support purposes and that the father be required to pay child support pursuant to the Ontario Child Support Guidelines;

6. An Order granting this court jurisdiction to decide matters regarding custody, access and support;

7. An interim without prejudice order staying the current access provisions of the German Order dated September 22, 2017, pending a decision on jurisdiction.

[22] On June 25, 2018, the mother sent an email to the father advising him that "it would be financially and logistically impossible" for her to bring Niklas to Germany" on July 1, 2018. She further advised him that she had commenced court proceedings in Ontario to review the original visitation plan and that he would be receiving court papers in the future. She invited the father to visit Niklas in Toronto over the summer for as long as he wanted.

[23] On June 26, 2018, the father wrote to the mother by email advising her that if she was unable to afford to travel to Germany with Niklas, then he would come to Toronto to get Niklas and fly with him to Frankfurt. The mother acknowledges receiving this email but states that the father did not address how Niklas would return to Toronto at the end of the visit in Germany. She responded by advising the father that her lawyer had recommended that Niklas and she do not go to Germany until everything has been sorted out at court. She again invited the father to come to Toronto in the summer.

[24] The father did travel to Toronto in August of this year and had an extended visit with Niklas, which according to the mother, went very well. The father has had two extended visits in Toronto with Niklas in 2018, one in April and one in August. In addition, the mother deposes that Niklas 'skypes' four times a week with the father and twice a month with the paternal grandmother in Germany.

The Mother's Position

[25] It is the mother's position that this court does have jurisdiction to hear this application and should take jurisdiction, as the child is habitually resident in Ontario. After lengthy court proceedings in Germany, the parties entered into a consent order that gave the mother primary residence of the child and permitted her and the child to move to Canada permanently, where they now reside, with the consent of the father and by order of the German court.

[26] The mother submits that she had no choice but to bring an application to a Canadian court requesting a variation of the German Order based on material change in circumstances. She submits that it was only when she returned to Ontario that she discovered that the terms of the German Order were such that it was impossible for her to comply with them.

[27] The mother submits that she never could have anticipated her difficult financial circumstances upon arriving in Canada, or the difficulties in making decisions with the father under the terms of the joint custody provision in the German Court Order. Although the mother did not originally plead this in her application, she submits that if the German Court Order is recognized and "registered" in Ontario, then she is seeking to supersede that order under section 42 of the CLRA, based on what she submits are material changes in circumstances that affects or is likely to affect the best interests of the child.

The Father's Position

[28] The father submits that this court should decline jurisdiction in order to deter the mother from breaching the German Final Order, and from attempting to re-litigate all of the same terms of custody and access that the parties finally agreed to after protracted court appearances in the German Court. The father believes that the mother never intended to comply with the German Order and entered into the consent order under false pretences with the sole purpose of inducing the father to agree that she could relocate to Canada with the child.

[29] The father asserts that he never would have agreed that the mother be permitted to move with Niklas to Ontario had he known that she intended to blatantly ignore the German Court Order and engage in forum shopping by attempting to re-litigate this matter in the Ontario Court of Justice.

[30] The father further submits that the German Order, made on consent of the parties, contains a jurisdictional provision which clearly mandates the parties to litigate any variations of custody and access in Germany. Given that this proceeding deals with issues currently before the German Court, and there have been no material changes in circumstances, then the German Court is the appropriate venue.

[31] Finally, the father submits that this court lacks the jurisdiction to make a new order for child support under section 33 of the Family Law Act in her application. A fresh application for child support under the Family Law Act is in substance a variation of the German child support order disguised as an originating application. The German support order can only be varied under the Interjurisdictional Support Orders Act ("ISOA"). Germany is a reciprocal jurisdiction under ISOA.

The Law and Governing Principles

[32] The Ontario Court's jurisdiction to determine custody and access issues is governed by Part III of Ontario's Children's Law Reform Act (the "CLRA" or "Act").

[33] The purposes of Part III of the CLRA are set out under section 19 of the Act as follows:

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario. R.S.O. 1990, c. C.12, s. 19.

[34] The Ontario Court of Justice can only exercise its jurisdiction to make an order pertaining to custody and access of a child pursuant to sections 22 (1) (a), 22 (1)(b) or 23 of the CLRA. A court shall only exercise its jurisdiction to make an order for custody of or access to a child where:

1. The child is "habitually resident" in Ontario at the commencement of the application (section 22(1) (b) of the Act);

2. Although the child is not habitually resident in Ontario, the court is satisfied that one of six factors that establish jurisdiction without habitual residence is established (section 22 (1) (b) of the Act); or

3. Although the child is not habitually resident in Ontario, the court is satisfied on a balance of probabilities that the child would suffer serious harm if the child remains in the custody of the person legally entitled to custody, the child is returned to the custody of the person legally entitled or the child is removed from Ontario (section 23 of the Act).

[35] However, these provisions must be read in conjunction with sections 40, 41 and 42 of the Act, which address the recognition and enforcement of extra-provincial orders.

[36] Section 41(1) of the CLRA requires that a court shall recognize a custody order made by an extra-provincial tribunal unless the court is satisfied that any one of five possible grounds are met:

41 (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

a. that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

b. that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

c. that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

d. that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

e. that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. R.S.O. 1990, c. C.12, s. 41 (1).

[37] Section 41(2) of the CLRA provides that an order made by an extra-provincial tribunal that is recognized by the court shall be deemed to be an order of the Ontario court and enforceable as such.

[38] Section 42 of the CLRA provides that even if an extra-provincial order is recognized by the Ontario Court, it can be superseded by the Ontario Court where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child:

42 (1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,

a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,

(iii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iv) that the child has a real and substantial connection with Ontario, and

(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 42 (1).

[39] Section 42 therefore provides two paths by which a court can supersede an extra-provincial custody order:

1. Where the child is "habitually resident" in Ontario at the start of the application; or

2. Where the child is not habitually resident but the five conditions listed above have been met.

[40] "Habitual residence" is defined by s. 22(2) of the CLRA as follows:

22(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

Whichever last occurred. R.S.O. 1990, c. C.12, s. 22(1).

1. Should this Court Assume Jurisdiction?

[41] In my view, for the reasons that follow, the Ontario court should assume jurisdiction in this case to address matters related to custody, access and child support.

[42] It is not disputed that the parties consented to a Final Order in Germany that Niklas' habitual residence will be Ontario. After lengthy and protracted proceedings in Germany in which both parties fully participated, the parties agreed that the child's primary residence would remain with the mother and that the mother and the child could relocate to Ontario.

[43] It is also clear from reviewing the German Order that the parties intended that the mother and child's move to Ontario to be permanent. This was not a time limited agreement. In the settlement reached and approved by the German Court, according to the English translation provided by both of the parties, the first line of the settlement reads, "Both parents agreed that the center of Niklas' life is with the mother in Canada."

[44] Niklas has now lived here for approximately nine months, he is registered in school here, and according to the mother's evidence, not disputed by the father, Niklas is also registered in soccer and German language lessons. He also maintains regular weekly contact with the father over Skype, as well as having two extended visits with him in Toronto in April and August of this year.

[45] The fact that the German Court Order contains a provision that the German Court would retain jurisdiction with respect to any future legal disputes concerning custody and or access to Niklas, does not assist the father.

[46] It is trite law that parties cannot confer jurisdiction on a court that it does not have. As the Ontario Court of Appeal stated in J.N. v. Durham Regional Municipality, "Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered." Courts cannot assume jurisdiction simply because it is on consent. See J.N. v. Durham Regional Municipality Police Service, 2012 ONCA 428 (C.A.) at para. 25. See also the decision of Justice Manjusha Pawagi in Moldonado v. Feliciano, [2018] O.J. No. 5026 at paragraphs 33 to 35.

[47] I further do not agree that it would be appropriate in the circumstances of this case to stay the mother's application and decline jurisdiction pursuant to sections 25 and 42(2) of the CLRA, or based on the doctrine of forum non conveniens, as father's counsel argues.

[48] In my view, it would not be more appropriate for the German court to determine these issues, given that the child is now habitually resident and physically present in Ontario and registered in school here. He is living with his mother, who has always been his primary caregiver. It is not disputed that the child has never lived with the father, the parents having separated immediately after the child's birth.

[49] In order to succeed on applying for a stay on the basis of forum non conveniens, the moving party must show that the alternative jurisdiction is clearly more appropriate to determine the issues. 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, at paragraph 109.

[50] Regarding the issue of child support, it is well settled law that the Interjurisdictional Support Orders Act (ISOA) is not a complete code with respect to the variation of foreign child support orders or agreements. See Jasen v. Karassik, 2009 ONCA 245. 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, supra.

[51] The only exception to the above is when the foreign support order is made under a valid foreign divorce. I agree with father's counsel that the Ontario Court of Appeal has made it clear that a Canadian court cannot vary a corollary support order related to a valid foreign divorce under the terms of the Divorce Act or the Family Law Act and that the only mechanism for so doing is set out under interjurisdictional support statutes.

[52] However, in the materials before me, there was no evidence that the child support order was made under a German Divorce Order or corollary to a German divorce.

[53] Further, in Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, the Ontario Court of Appeal held 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.

[54] Finally, given that the child is habitually resident in Ontario and I have determined that the Ontario Court of Justice has jurisdiction over the custody and access issues, it seems reasonable and appropriate that any variation of child support also should be determined in Ontario regardless of how the German child support order was made. See Kaur v. Guraya, 2011 ONSC 2853, at par. 28; Gavriluke v. Mainard, 2013 ONSC 2337; Morwald-Benevides v. Benevides, [2014] O.J. No. 444, 2014 ONSC, 44 R.F.L. (7th) 432.

2. Should this Court Recognize the German Court Order?

[55] The mother argues that if the Ontario Court has jurisdiction in this matter, it should not recognize the custody and access provisions of the German Court Order pursuant to section 41(1) of the CLRA because the German Order "has not been registered in Ontario."

[56] If the German Order is recognized by this court, then it shall be deemed to be an order of the Ontario Court and the custody and access provisions in the Order are enforceable as such, in accordance with section 41(2) of the CLRA.

[57] There is no requirement under the Act that the German Order needs to be "registered" in order for it to be recognized by the Ontario Court. All that is required is that a certified true copy of the extra-provincial order to be produced for proof of its validity, in the absence of evidence to the contrary, pursuant to section 44 of the Act.

[58] Both parties provided certified copies of the German Order and certified translations from the German language. The parties relied upon exactly the same copies and certified translation, which were included in the court record.

[59] Section 45 of the CLRA provides that for the purposes of an application under Part III, "a court may take notice, without requiring formal proof, of the law of a jurisdiction outside of Ontario and a decision of an extra-provincial tribunal." This section permits a court to take judicial notice of the law of a foreign jurisdiction and foreign orders when appropriate.

[60] Section 41(1) provides that an Ontario court "shall" recognize a custody order made by an extra-provincial tribunal unless the court is satisfied that any one of the five possible grounds set out in that section are met. (These grounds were previously set out at page 7 of this decision.)

[61] The mother acknowledged that none of the five grounds set out under Section 41(1) of the Act apply in this case.

[62] It was not disputed by the parties that the German court was required by law to have regard for the best interests of the child. A guardian at litem was appointed for the child, the German court had gathered "expert evidence by obtaining an expert opinion on the child's needs and the parents' ability to raise the child and the court based its decision on how to "best ensure the child's well-being."

[63] The mother, father and child were ordinarily resident in Germany at the time the German court proceedings commenced. There is no dispute that the mother was given reasonable notice of the commencement of the proceedings, represented by counsel throughout and was given ample opportunity to be heard over the protracted length of those proceedings. It is clear from reviewing the German Court Order and the settlement reached that German law required the court to consider the child's best interests. The Order is not contrary to public policy.

[64] Sections 41 and 42 of the CLRA are specifically designed to discourage forum shopping. The German Court Order satisfies all of the conditions to be recognized as a valid and enforceable court order by the Ontario Court of Justice, in accordance with section 41 of the Act.

[65] I am concerned in this case that the mother is attempting to re-litigate the custody and access provisions that the parties negotiated extensively while the mother and child were living in Germany and which the German Court reviewed and approved in a thoughtful and comprehensive Final Order in accordance with the child's best interests.

[66] In my view, the only way that the mother can revisit the custody and access terms of the German Order is pursuant to section 42(1) of the CLRA, which permits this court to supersede the German order in respect to custody and access of a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The mother's counsel acknowledged this in her oral submission during argument.

[67] As such, I have granted leave for the mother to amend her application to seek this relief.

[68] The mother has asked me to stay the access provisions of the German Court Order while she amends her pleading and pending any further proceedings.

[69] I am not prepared to do so at this time. The mother and child's relocation to Ontario and the child's registration in school in Ontario were clearly contemplated in the German Order. Other than the mother's current financial circumstances, I am not certain what material change in circumstances the mother is claiming that warrant a review of the custody and access provisions in the German Order. In fairness, there should be a further hearing on this issue.

[70] The parties have scheduled a case conference before me on November 8, 2018. The parties are to file Case Conference Briefs setting out their respective positions.

Order

[71] For the reasons above, I make the following order:

1. The Ontario court has jurisdiction to address the matters of custody, access and child support in this matter.

2. The Order of Justice Schmidt of the 4th Senate for Family Matters of the Frankfurt Higher Regional Court in Germany dated September 22, 2017 is recognized by the Ontario Court of Justice and shall be deemed to be an Order of the Ontario court and enforceable as such.

3. The mother's request to stay the custody and access provisions of the German Order, dated September 22, 2017 is refused at this time, without prejudice to renew at a later date.

4. The mother is granted leave to amend her pleading to apply for an order superseding the custody and access provisions of the German Order pursuant to section 42(1) of the CLRA.

5. The father is granted an extension to serve and file an Answer/Claim to the mother's application or amended application.

6. The application is adjourned to November 8, 2018 at 10:00 AM for a case conference before me. Both parties are to file case conference briefs.

[72] If counsel cannot resolve the issues of costs, then they shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settles attached within 30 days. Any response to be submitted within 15 days.

[73] Finally, I thank counsel for their helpful submissions, facta and case law provided.

Released: October 24, 2018

Signed: Justice Sheilagh O'Connell