CITATION: Doersam v. Doersam, 2022 ONSC 4095

COURT FILE NO.: FS-20-20567

DATE: 20220712

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KENDRA LAUREN DOERSAM

Gary S. Joseph and Stephen P. Kirby, for the Applicant (Responding Party)

Applicant (Responding Party)

• and -

RYAN CAMPBELL DOERSAM

Stephen J. Codas for the Respondent (Moving Party)

Respondent (Moving Party)

HEARD at Toronto by video conference: March 8, 2022

BEFORE: Kristjanson, J.

[1] The respondent father challenges the applicant mother’s ability to bring this application in Ontario, asserting that Ontario lacks jurisdiction simpliciter, and in any event, Costa Rica is a more appropriate forum under the doctrine of forum non conveniens. I agree. The mother’s application is dismissed.

Facts

[2] Kendra and Ryan Doersam, who are Canadian citizens, married in Canada in 2008, and separated in May 2020. During the marriage, they decided to move to Costa Rica. They built a rewarding life there with their children. Ms. Doersam moved to Costa Rica with their three children in March 2016. Their youngest child was born in Costa Rica in September 2017 and is a Costa Rican citizen. Mr. Doersam continued to work in Canada until the fall of 2017. He moved to join the family in Costa Rica in September 2017. The mother, father and three older children obtained permanent residency status in Costa Rica in February 2019.

[3] The three older children have attended private school full-time in Costa Rica since relocating in March 2016. The youngest has started pre-school in Costa Rica. The mother and the three older children have not had OHIP coverage since 2016; the youngest has never been covered by OHIP; the father’s coverage ended in 2018. They are all covered by private insurance in Costa Rica.

[4] The parties sold their matrimonial home in Toronto in June 2019, and do not own or lease real property in Ontario. Both parties have bank accounts in Costa Rica, and neither party is a Canadian tax resident.

[5] Most of the family’s wealth is in Costa Rica (over C$10 million). Their active income source is Costa Rican real estate held through a Costa Rican corporation, Garfield KRD Holdings Limitada (“Garfield”). All the shares are in Ms. Doersam’s name. The parties reside in separate homes in Costa Rica: the homes and the properties are owned by Garfield. The parties hold some assets outside Costa Rica. The parties jointly own a business incorporated in Ontario, Private Label Laundry Ltd., also known as “No Sweat.” The parties jointly own an RBC account. Other than this, Ms. Doersam has no assets in Ontario. Ontario assets owned by Mr. Doersam include an RESP, investments held with “foreign client” status, investments in private companies in Canada, the United States and Australia, and some bank accounts.

[6] The parties and their children reside in Costa Rica and have travelled only occasionally to Canada since relocating to Costa Rica. I reject Ms. Doersam’s sworn evidence that she and the children would “generally return to Ontario twice per year” prior to COVID, and “stay in Ontario for 4-6 weeks during the summer.” I accept the evidence of Mr. Doersam, based on Costa Rican border records and other documents, that Ms. Doersam and the children have spent very little time in Ontario – for Ms. Doersam, for example, 0 days in 2017, 2018, 2020, 2021 and 2022, three weeks in 2016, and 48 days in 2019 (pre-separation). Ontario time for the three older children is similar – 0 days in 2018, 2020, 2021 and 2022, and a cumulative total since 2016 of 47 to 68 days. There is nothing to support her bald claim that she and the children returned to Ontario annually for 4 to 6 weeks, and documentary evidence which clearly contradicts the bald assertion. Ms. Doersam also swore that the youngest child, who was born in Costa Rica, “has strong ties to Canada through our regular travel and his extended family there.” However, under cross-examination, she conceded that the youngest has only been in Canada once in his life, for 14 days in 2019. I find that the parties have lived in Costa Rica and Ms. Doersam and the children visited Ontario sporadically, and rarely, since their move. Mr. Doersam visited more frequently, but I accept his evidence that he moved to Costa Rica in 2017 when his employment terminated.

[7] The parties separated in Costa Rica in May 2020. In July 2020, Mr. Doersam began divorce proceedings in Costa Rica. He obtained a child support order in Costa Rica in August 2020. Ms. Doersam was aware of the family proceedings by at least August 2020. She retained a family lawyer in Costa Rica, and responded with her own claims in Costa Rica, serving a response and counterclaim in February, 2021. Ms. Doersam obtained a restraining order in Costa Rica. Parenting, support, community property, preservation and disclosure are all being dealt with in Costa Rica. Several Costa Rican court orders in the family law proceedings have been made.

[8] A child support hearing set for December 2020 in Costa Rica was adjourned, on consent. After consenting through her lawyer to the adjournment, Ms. Doersam commenced her application in Ontario seeking support, equalization, preservation orders and disclosure, similar to some of the relief sought in Costa Rica. Ms. Doersam is not asserting parenting claims in Ontario, nor does she seek a divorce in Ontario. I find that similar relief for financial and property issues is being sought in both jurisdictions. Ms. Doersam claims a right to participate in marital assets in the Costa Rica proceedings, and the expert evidence establishes there is a community property regime in Costa Rica. She is seeking letters rogatory in Costa Rica to obtain information from Canadian and U.S. financial institutions and corporations, although she complains of delay in obtaining letters rogatory. Mr. Doersam has produced disclosure in Costa Rica. There is expert evidence from both parties confirming that “precautionary measures” are available in Costa Rica, which may be used to secure marital property, including property located outside Costa Rica and are similar to preservation orders.”

Issues

[9] There are two issues:

1. Does Ontario have jurisdiction simpliciter to deal with the mother’s application?

2. If it does, should this court decline jurisdiction on the basis that Costa Rica is the more appropriate forum?

Law and Analysis

[10] Whether or not Ontario has jurisdiction must be decided first; the doctrine of forum non conveniens only applies where Ontario has jurisdiction. The burden is on the party claiming jurisdiction simpliciter to establish jurisdiction. In this case, the court may assume jurisdiction if (1) the respondent attorns to the court's jurisdiction, (2) the respondent is present and served in the jurisdiction, or (3) there is a real and substantial connection between the forum and the parties or the subject matter of the dispute.

Attornment

[11] Mr. Doersam has not attorned to the jurisdiction: this motion is brought specifically without attorning, and he has not filed an Answer or Financial Statement. Ms. Doersam argues, however, that Mr. Doersam attorned to Ontario’s jurisdiction in October 2020 when he brought an application against Ms. Doersam and Private Label Laundry under the Canada Business Corporations Act, R.S.C. 1985, c. C-44. The only relief sought was corporate disclosure from Private Label Laundry, the corporation jointly owned by the parties – passwords, records, and a declaration of audit and examination rights. There is a unanimous shareholder’s agreement. That agreement provides that the governing law is that of Ontario, and Ontario courts have non-exclusive jurisdiction to deal with issues arising under the shareholder’s agreement. Ms. Doersam sought to have the proceeding consolidated with the family proceeding, stayed pending the Ontario family application, or alternatively dismissed as there is an action/proceeding commenced in another jurisdiction between the same parties in respect of the same subject matter. I find that in commencing the CBCA application as a shareholder to obtain disclosure from a jointly owned company, at a time when he had commenced family law proceedings in Costa Rica but there were no family law proceedings in Ontario, Mr. Doersam did not attorn to Ontario for all family law proceedings. Mr. Doersam was entitled to the information as a shareholder, and brought the application as a shareholder to obtain corporate information and rights to which he was entitled. The matter was ultimately settled. I find he did not attorn to the jurisdiction for family law purposes.

Real and Substantial Connection Test

[12] I must then consider whether there is a real and substantial connection to Ontario for the family law litigation. The court must be alert to the issue of forum shopping. Jurisdiction may be established through a real and substantial connection of the legal situation or litigation with the forum. The “presumptive connecting factors” identified by the Supreme Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Van Breda”) are set out at para. 90:

(a) The defendant lives in the province;

(b) The defendant carries on business in the province;

(c) The tort was committed in the province; and

(d) A contract connected with the dispute was made in the province.

[13] In Wang v. Lin, 2013 ONCA 33, the Court of Appeal accepted that in the context of marriage breakdown the presumptive connecting factors are necessarily different from those identified in Van Breda, which was a tort case. The Court of Appeal held that the list of presumptive connecting factors is not closed and the location of the “real home” or “ordinary residence” is an important presumptive connecting factor in family cases: Wang, at paras. 46-47. In Li v Li, 2021 ONCA 669 at para. 38, the Court of Appeal held that “a single presumptive connecting factor, in the absence of any rebuttal of that presumption by the appellant, is sufficient to establish jurisdiction under the Van Breda analysis.” A real and substantial connection must be established primarily based on objective factors that connect the legal situation or the subject matter of the litigation with the forum: Li v Li, para. 31.

[14] There is very little connection to Ontario. Neither of the parties, nor their children, reside in Ontario. Their ordinary and habitual residence is Costa Rica: sporadic vacations in Ontario or a professed intention to return to Canada eventually do not create an Ontario residence. They have lived in Costa Rica for six years. They own property in Costa Rica through a Costa Rican corporation. The children go to school in Costa Rica; their doctors are in Costa Rica. Living expenses and private school fees are incurred in Costa Rica.

[15] Parenting, property, and financial issues are being litigated in Costa Rica. There is an existing child support order in Costa Rica. Both parties are participating in the Costa Rica family litigation and are represented by counsel. There is no evidence that Ms. Doersam objected to Costa Rica’s jurisdiction within those proceedings.

[16] I find that the last common habitual residence of the parties is Costa Rica. As a result, even if the matter were to be heard in Ontario, property claims are governed by the law of Costa Rica because of s. 15 of the Family Law Act, R.S.O, 1990, c. F.3. That section provides:

The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario.

[17] The parties married in Ontario in 2008 and entered a marriage contract, the interpretation of which is to be governed by the laws of Ontario. Ms. Doersam does not argue that the courts in Costa Rica are not able to apply Ontario law to the marriage contract in Costa Rica.

[18] The only real connection to Ontario are some assets: two jointly held accounts, others held solely by the respondent, and a jointly held corporation, and the fact that the parties, while non-resident for tax purposes, remain Ontario citizens. The Ontario assets are relevant to any increase in the value relevant to equalization (a property right governed by the laws of Costa Rica), and potentially to income for purposes of support (which is being litigated in Costa Rica). This is not a constructive trust case over a piece of property. In Wang v. Lin, 2013 ONCA 33, the parties held most of their assets in China. The only connection to Ontario was an encumbered real property and a bank account, while the parties had three real properties in China and significant bank accounts. The court found that the value of the parties’ assets in Ontario paled in comparison to their assets in China. Recognizing that a plaintiff must establish that one or more presumptive connecting factors exists and if she does, a rebuttable presumption of jurisdiction arises, the court found based on the preponderance of assets in China that Ontario lacked jurisdiction simpliciter. The same analysis applies here.

[19] I find that Ms. Doersam has failed to meet her burden to establish that Ontario has jurisdiction simpliciter, and would grant the respondent’s motion to dismiss the application.

Forum Non Conveniens

[20] If I am wrong in this conclusion, I turn to the respondent’s alternative argument that even if Ontario has jurisdiction, I should decline to exercise jurisdiction on grounds of forum non conveniens because Costa Rica is clearly the more appropriate forum. As Coroza J.A. states in at paras. 42-43:

[42] In essence, the doctrine focuses on the circumstances of the case, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient: Van Breda, at para. 105. The factors that come into play in considering the question of forum non conveniens depend on the context and may include the locations of parties and witnesses, the cost of transferring the case to another place, the impact of a transfer on the case or a related case, the possibility of conflicting judgments, problems relating to recognition or enforcement of judgments, and the relative strengths of the connections of the parties: Van Breda, at para. 110.

[43] Loss of juridical advantage to one or the other of the parties is also a relevant consideration: Knowles, at para. 43. Even then, however, comity and an attitude of respect for the courts and legal systems of other countries may be in order: Van Breda, at para. 112. A court must not lean too instinctively in favour of its own jurisdiction: Van Breda, at para. 112.

[21] The burden is on the respondent to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the applicant. As noted above, all parenting issues are in Costa Rica, and the other financial and property issues are all raised in the Costa Rica litigation. Child support is being pursued in Costa Rica as well as in Canada. The division of community property is pursued in Costa Rica, and equalization in Canada. The parties have not lived in Canada together since 2016. Given that the family has lived in Costa Rica since 2016, there is a comparative convenience and expense for the parties, and for their witnesses, in litigating all issues in one proceeding in the court in Costa Rica. Avoidance of a multiplicity of proceedings is important for courts and for the parties. Efficient, fair resolution speaks to dealing with all matters together in Costa Rica.

[22] I go on to consider fairness. In giving weight to the concept of comity, it is important for a domestic court to respect the laws and procedures of other jurisdictions. We cannot expect a foreign jurisdiction to be identical, but the law does consider loss of juridical advantage. Based on the expert evidence before me, Costa Rica has a community property regime. In her response and counterclaim, Ms. Doersam claims “half the net value of the assets acquired by the plaintiff [Mr. Doersam] during the marriage.” She claims half the income received during the marriage as constituting community property. She claims the shares of Garfield, Private Label Laundry, and another company, are part of community property. She makes a claim for bank accounts and assets held by Mr. Doersam in the United States and Canada and other countries as community property.

[23] The expert evidence establishes that there a right to disclosure and preservation orders in the Costa Rica family litigation. Indeed, Ms. Doersam is seeking letters rogatory in Costa Rica for access to financial information in Canada, although she claims of delay. To the extent that some family law rights may be different, Ms. Doersam has not established that they are unfair, nor has she pointed to the loss of a juridical advantage that would indicate Ontario is clearly the more convenient forum. Ms. Doersam has not established that there are any claims raised in Ontario that she cannot or has not raised in Costa Rica.

[24] Although neither party resides in Ontario, I consider recognition and enforcement of a Costa Rican judgment in Ontario. The framework in Ontario for recognition and enforcement of foreign judgments is based on Ontario law: see Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5. A monetary judgment made in a foreign court where the parties or subject matter had a real and substantial connection to the litigation will generally be enforced in Ontario, subject to defences as set out in Beals v Saldhana, 2003 SCC 72 at para. 79 (fraud, denial of natural justice, or contrary to public policy). I do not accept Ms. Doersam’s expert evidence from a Costa Rican lawyer, who appears to suggest that a Costa Rican judgment would not be enforceable in Canada since Canada is not a signatory to the “Bustamante Code International Treaty.” Whether a foreign judgment will be recognized in Canada is a question of Canadian law upon which the opinion evidence of a Costa Rican lawyer is not admissible.

[25] A substantial part of the property is in Costa Rica. Even if equalization were considered in Ontario, Costa Rican law applies to property issues, including equalization. While Ontario law applies to the marriage contract, it deals with only a part of the property, and may be applied by the foreign court.

[26] There is no need for a multiplicity of litigation in this family law case. The issues in the Ontario proceeding can be dealt with more efficiently together with the child related issues in the Costa Rican proceeding. It was commenced by the respondent in the jurisdiction where the applicant, the respondent, and the children reside.

[27] In assessing all the relevant factors, I find that the respondent has satisfied the burden of showing that Costa Rica is a clearly more appropriate forum for this case. I exercise my discretion to dismiss the Ontario proceeding.

[28] Given these findings, the applicant’s claims for a preservation/freezing order were not considered by the court.

Costs

[29] I encourage the parties to come to an agreement on costs. If unable to do so, then the respondent may make written costs submissions (4 pages plus Costs Outline and Offers to Settle) by July 29. The applicant may make responding costs submissions (4 pages plus Costs Outline and Offers to Settle) by August 17th. If there are any issues in making submissions due to holidays, counsel are to contact me with an alternate schedule.

Kristjanson J.

Released: July 12, 2022

CITATION: Doersam v. Doersam, 2022 ONSC 4095

DIVISIONAL COURT FILE NO.: FS-20-20567

DATE: 20220712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KENDRA LAUREN DOERSAM

Applicants

– and –

RYAN CAMPBELL DOERSAM

Respondent

REASONS FOR DECISION

Released: July 12, 2022