ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6108/11
DATE: 2012-02-28
BETWEEN:
SHUQIN LONG aka FIONA LON Applicant
– and –
GREGORY SEELMAN Respondent
Farrah Keshwani, for the Applicant
Susan S. Powell, for the Respondent
HEARD: February 22, 2012
REASONS FOR JUDGMENT
GRAY J.
[1] The applicant lives in China with her young daughter. The respondent lives in Georgetown. The applicant has brought an application under the Family Law Act for child support.
[2] The respondent has brought a motion to dismiss the application on the ground that this Court has no jurisdiction to entertain it, or in the alternative, that this Court should decline to exercise its jurisdiction because Ontario is a forum non conveniens . The applicant has brought a cross-motion for interim child support. Both motions were brought before the holding of a case conference.
[3] In the result, I hold that this Court has jurisdiction to entertain the claim, and that the Court should exercise it. However, the applicant’s cross-motion for child support should be heard after a case conference.
Background
[4] Some of the facts are in dispute, but for the purpose of the jurisdictional issue the dispute is not material.
[5] The applicant is 29 years old, and lives in Dongguan City, China. She was born in China and has always lived there. She is not married.
[6] The respondent is 42 years of age and lives in Georgetown. He has always lived in Ontario. He is married and has three children. He is self-employed and travels to China approximately seven times per year on business.
[7] On August 19, 2011, a female child was born to the applicant. DNA testing has established that the respondent is the father.
[8] The dispute between the parties, which is not relevant to the issue of the Court’s jurisdiction, relates to the relationship between the parties after they met. The applicant says they met in a bar where the applicant was working, and thereafter entered into a romantic, sexual relationship. The applicant says the respondent falsely told her he was not married. Subsequent to being advised of the pregnancy, he encouraged her to have an abortion. Ultimately, until DNA testing established that he is the father, he disavowed any responsibility for the child.
[9] The respondent, for his part, says his relationship with the applicant was entirely sexual, and was on the basis of payment for sexual services. He says that once the applicant became pregnant, she tried to blackmail him by threatening to tell his wife about the matter unless he paid money to her.
[10] The respondent now says that he may make a claim for custody and/or access, which would be heard in China, and the courts in China should determine the issue of child support.
[11] To date, the respondent has made no claim for custody and/or access. The only outstanding claim is for child support.
Submissions
[12] Counsel for the respondent submits that this Court has no jurisdiction to entertain the applicant’s claim for child support, or in the alternative that Ontario is a forum non conveniens .
[13] Counsel for the respondent submits that the Court clearly has no jurisdiction to entertain a claim for custody or access where the child is not habitually resident in Ontario, and where the child has no real and substantial connection with Ontario. This is clear, counsel submits, under s. 22 of the Children’s Law Reform Act .
[14] Counsel submits that since the Court has no jurisdiction over a case involving custody or access, it also has no jurisdiction over a parallel claim for child support. These claims overlap, and are related. It cannot have been intended by the legislature that this Court could exercise jurisdiction over one species of claim, namely child support, if it could not exercise jurisdiction over the related claims of custody or access.
[15] In the alternative, counsel for the respondent submits that Ontario is not a convenient forum for the determination of the child support claim.
[16] In addition to the fact that child support is linked to the issues of custody and access, there are other features that favour China as the appropriate jurisdiction to entertain a claim for child support.
[17] The child was born in China, and lives in China with her mother. Clearly, the child has no connection to Ontario. It is best that all incidents of the child’s welfare, including custody, access and support, are litigated in the jurisdiction in which the child resides.
[18] It is submitted by the respondent that the matter can be more conveniently heard in China. It is likely that most of the witnesses will be from China. The courts in China will have a much better appreciation of what is in the child’s best interests than would this Court. It is probable that the law to be applied on all of the issues, including custody, access and support, is Chinese law.
[19] Counsel for the applicant submits that this Court has jurisdiction to entertain the applicant’s claim for child support.
[20] There is no dispute that the respondent resides in Ontario. The jurisdiction of the Court is based simply on the respondent’s presence, and indeed ordinary residence, in Ontario. Nothing more need be established in order to give the Court jurisdiction.
[21] Counsel for the applicant submits that the real issue is whether the Court should decline to exercise its jurisdiction on the ground that Ontario is a forum non conveniens .
[22] Counsel for the applicant notes that the clam for child support is brought under the Family Law Act . Under that Act , unlike the Children’s Law Reform Act , there is no requirement that the child be resident in Ontario. The legal and factual issues to be resolved in the dispute are simple:
what is the respondent’s income?
based on the respondent’s income, what level of child support is required under the Child Support Guidelines (Ontario) ?
[23] Counsel for the applicant submits that once it is established, as here, that this Court has jurisdiction, the onus shifts to the respondent to show that Ontario is not a convenient forum, and that some other forum is more convenient.
[24] Counsel for the applicant submits that the following factors are to be considered on the forum conveniens issue:
the location of the majority of the parties;
the location of key witnesses and evidence;
contractual provisions that specify applicable law or accord jurisdiction;
geographical factors suggesting the natural forum;
the avoidance of a multiplicity of proceedings;
the applicable law and its weight in comparison to the factual questions to be decided; and
whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.
[25] Counsel for the applicant submits that the first factor is neutral. Most of the evidence relating to the respondent’s income and assets is undoubtedly to be found in Ontario. There are no contractual provisions that are relevant. There are no geographical factors suggesting the natural forum. No other proceeding has been commenced, and there is no potential, at this point, of a multiplicity of proceedings. Most importantly, the applicant will have significant juridical advantages if proceedings are conducted in this Court.
[26] One of the juridical advantages for the applicant is that any order obtained from this Court is easily enforceable. That is not the case if an order is obtained from a Chinese court. China is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act . In order to enforce an order from a Chinese court, a separate proceeding must be commenced, and it is highly uncertain as to whether the order would be enforceable here.
[27] Another juridical advantage that the applicant will have is that the claim is easily provable, and the quantum is easily calculable. There is no evidence as to how the Chinese courts would deal with such a claim.
[28] Counsel for the applicant submits that there is no inconvenience to the respondent in having the matter heard in Ontario. He will not need to travel, and any relevant witnesses in relation to his income or assets will, in all likelihood, be from Ontario. It will be far less costly for the respondent to litigate the matter in Ontario. Any inconvenience in having the matter heard in Ontario will be primarily to the applicant, and the applicant is willing to suffer the inconvenience.
[29] Relevant case law, referred to by the parties and unearthed by me in my own research, includes Amchem Products Inc. v. British Columbia (Workers Compensation Board) , 1993 124 (SCC) , [1993] S.C.J. No. 34; Muscutt v. Courcelles (2002), 2002 44957 (ON CA) , 60 O.R. (3d) 20 (C.A.); Van Breda v. Village Resorts Ltd. (2010), 2010 ONCA 84 () , 98 O.R. (3d) 721 (C.A.); Montrichard v. Mangoni (2010), 2010 ONCJ 252 () , 88 R.F.L. (6 th ) 225 (Ont. C.J.); Kasprzyk v. Burks (2005), 2005 2062 (ON SC) , 15 R.F.L. (6 th ) 221 (Ont. S.C.J.); Cheng v. Liu (2010) 2010 ONSC 2221 () , 83 R.F.L. (6 th ) 62 (Ont. S.C.J.); Sun v. Guilfoile (2011), 2011 ONSC 1685 () , 105 O.R. (3d) 439 (S.C.J.); Prichici v. Prichici (2005), 2005 16626 (ON SC) , 14 R.F.L. (6 th ) 425 (Ont. S.C.J.); Follwell v. Holmes , [2006] O.J. No. 4387 (S.C.J.) ; G.(A.) v. S.(L.) (2006), 2006 ABCA 311 () , 34 R.F.L. (6 th ) 266 (Alta. C.A.); and Maguire v. Maguire (1921), 1921 510 (ON CA) , 50 O.L.R. 100 (Appellate Div.).
Analysis
[30] In my view, it is clear that this Court has jurisdiction to entertain this claim, restricted as it is to child support.
[31] Unlike the Children’s Law Reform Act , which deals, among other things, with custody and access, there is nothing in the Family Law Act that requires that a child be resident in Ontario in order that a claim for child support can be made.
[32] As discussed in Muscutt and Van Breda, supra , there are a number of ways in which jurisdiction for a court to hear a matter may be established. The most fundamental way is through what is sometimes called “presence-based” jurisdiction. That simply means that the defendant or responding party is present within the jurisdiction of the court. There is no dispute that that is established where, as here, the responding party is resident in the jurisdiction. As stated by the Alberta Court of Appeal in G.(A). v. L.(S.), supra , at para. 15:
An application for child support is an action in personam . ... In personam jurisdiction simpliciter can be exercised based on a defendant’s submission by agreement or attornment, his ordinary residence in the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum.
To the same effect, see Kasprzyk , supra , at paras. 11 – 13 .
[33] Also, because the Family Law Act does not contain a residency requirement as it relates to the child, it suggests that the legislature intended the Ontario courts to be able to make child support orders under the Act if a putative father lives in the jurisdiction, even when the mother and child live elsewhere. The same reasoning was applied by the Alberta Court of Appeal in G.(A.) v. L.(S.), supra , at para. 16.
[34] The real question, in my view, is whether this Court should exercise its jurisdiction, or whether it should defer to the courts in China. For the following reasons, this Court should exercise its jurisdiction.
[35] The factors to be considered by the Court on a forum conveniens issue are listed above, at para. 24, and are reproduced in Muscutt at para. 41 , and Van Breda at para. 49 .
[36] First of all, I would note that it is somewhat ironic that it is the respondent who is arguing that it would be more convenient to litigate the issue in China. In fact, it would be far more convenient to the respondent to litigate the matter here.
[37] In my view, none of the factors listed in Muscutt and Van Breda compels a conclusion that one jurisdiction is necessarily more favourable than the other. At this point, there is no claim for custody or access, and there is no spectre of a multiplicity of proceedings. Even if custody and/or access proceedings were commenced in China, I do not think that necessarily mandates that the issue of child support should be dealt with in China. As noted earlier, there are statutory restrictions on the jurisdiction of this Court as it relates to claims for custody and access, while there are no such restrictions on the issue of child support.
[38] Whether there are juridical advantages to one party or the other really depends on the perspective of each party. Clearly, the applicant thinks there may be an advantage in terms of the merits of her claim, and it is clear that she will have a distinct advantage in terms of the enforceability of any order she may obtain. The respondent may perceive that it is to his advantage, from the perspective of the merits of the claim and from an enforceability perspective, that the matter be heard in China.
[39] In the final analysis, the onus is on the respondent to show that Ontario is not a convenient forum for the litigation of the claim, and that some other forum is clearly more convenient. The respondent has not satisfied his onus in that respect. If it were necessary to decide the matter, I think Ontario is a more convenient forum than China. However, it is sufficient to simply hold that the respondent has not satisfied his onus to show that China is more convenient.
[40] For these reasons I hold that this Court has jurisdiction to entertain the claim for child support, and that the Court should exercise it.
[41] As far as the motion for interim child support is concerned, in my view it should proceed in the ordinary course, commencing with a case conference. Since there is only one issue outstanding, it is open to the applicant to arrange an early case conference, and I assume she will do so. This can be arranged through the trial office.
Disposition
[42] For the foregoing reasons, the motion by the respondent to dismiss or stay this application on the ground that this Court lacks jurisdiction, or to stay it on the basis of forum non conveniens , is dismissed. The applicant’s application and interim motion for child support can proceed in the ordinary course.
[43] I will entertain written submissions with respect to costs, not to exceed three pages, together with a costs outline. Ms. Keshwani shall have five days to file submissions, and Ms. Powell shall have five days to respond. Ms. Keshwani shall have three days to reply.
GRAY J.
Released: February 28, 2012