Court File and Parties
Court File No.: 4362/11
Date: 2012-03-09
Superior Court of Justice - Ontario
Re: AMIRA YOUNIS, Applicant
And:
FARRIS BAR, Respondent
Before: HOURIGAN J.
Counsel:
Novalea M. Jarvis, Counsel for the Applicant
Michael Stangarone, Counsel for the Respondent
Heard: February 14, 2012
Endorsement
[ 1 ] The issue for determination on this motion is whether this court has jurisdiction to deal with issues of spousal support and net family property. The applicant asserts that the court has jurisdiction. The respondent submits that these issues have been determined by a court in Texas and thus this court has no jurisdiction.
Background
[ 2 ] The parties were married on November 21, 2009 in Oakville, Ontario. They lived apart until July 17, 2010, the applicant in Ontario and the respondent in Texas. From July 17, 2010 to September 18, 2010 they resided together in Texas.
[ 3 ] On or about September 18, 2010, the applicant, who was pregnant with the couple’s child at the time, left Texas and returned to Ontario. There is an issue between the parties regarding why she returned but it is not germane for present purposes.
[ 4 ] The couple’s only child, Mariam, was born on December 16, 2010 in Ontario.
[ 5 ] The respondent takes the position that he was first informed by the applicant that she would not be returning to Texas in March of 2011.
[ 6 ] The respondent commenced a matrimonial proceeding in the District Court of Texas on July 27, 2011.
[ 7 ] The applicant commenced this proceeding on August 4, 2011 after being served with the Texas pleadings.
[ 8 ] On August 5, 2011 Justice Lemon of the Ontario Superior Court granted an ex parte order for substituted service and an order that the applicant have temporary, without prejudice sole custody of Mariam.
[ 9 ] On September 29, 2011, a Temporary Hearing was held in the District Court of Texas. The Texas court made the following ruling:
Respondent’s request for special appearance IS DENIED.
Respondent’s Plea to the Jurisdiction and Request for the Court to Decline Jurisdiction IS GRANTED. The Court finds that the Home State of the child is Ontario, Canada and that the Superior Court of Justice in Ontario, Canada has Jurisdiction of the child under the UCCJEA and 152.201 of the Texas Family Code. The Court further finds that the parties divorce action may proceed in Texas but all matters pertaining to the child, the subject of this suit must proceed in the Superior Court of Justice, Ontario, Court File Number FS-11-00004362-0000.
[ 10 ] The effect of that order was that the Texas court declined to assume jurisdiction on all matters related to Mariam but that the divorce could otherwise proceed in Texas. That order was not appealed by either party.
[ 11 ] According to the affidavit of the respondent’s Texas counsel, Meredith Selmer, there followed an exchange of correspondence between Texas counsel for the respondent and Texas counsel for the applicant, Ryan Dougay, regarding a divorce order. I note that initially Ms Selmer did not propose including a provision in the order regarding spousal support but that at some point in her exchange of correspondence with counsel for the applicant she made that suggestion. Ultimately no agreement was reached regarding the divorce order.
[ 12 ] On December 7, 2011, the respondent and his Texas counsel, John Izzo, and the applicant’s Texas counsel, attended in the District Court of Texas. The respondent’s counsel made submissions and called evidence. The applicant’s counsel did not call evidence. According to Ms Selmer, during the course of that hearing Mr. Dougay stated on behalf of his client that “they had no objection to a final divorce decree being entered”.
[ 13 ] The court made the following ruling:
Petitioner, Farris Ahmad Bar, appeared in person and through attorney of record, John Thomas Izzo, and announced that the parties had reached an agreement.
Respondent, Amira Younis, has made a general appearance and has agreed to the terms of this judgment to the extent permitted by law, as evidenced by Respondent’s signature and the signature of Respondent’s attorney of record, Ryan Dougay, below.
The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed since the date the suit was filed. The Court finds specifically that it has personal jurisdiction over Respondent and that Texas is the appropriate jurisdiction to adjudicate the spousal support (if any) and property rights of the parties, and that the Court has taken jurisdiction over the spousal support (if any) and property rights of the parties.
The Court further finds that, at the time this suit was filed, Petitioner had been a domiciliary of Texas for the preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly cited.
IT IS ORDERED AND DECREED that Farris Ahmad Bar, Petitioner, and Amira Younis, Respondent, are divorced and that the marriage between them is dissolved on the ground of insupportability.
Child of the Marriage
The Court finds that Petitioner and Respondent are the parents of the following child:
Name: Mariam Farris Bar
Sex: Female
Birth date: December 16, 2010
Home state: Ontario, Canada
The Court finds that, pursuant to its order of September 29, 2011, the Superior Court of Justice of Ontario, Canada has jurisdiction over the child under the Uniform Child Custody Jurisdiction and Enforcement Act and Section 152.201 of the Texas Family Code. IT IS ORDERED that all matters pertaining to the child, including custody, support, and visitation, are to be taken up in the Superior Court of Justice of Ontario, Canada, Court File Number FS-11-00004362-0000.
IT IS ORDERED and DECREED that no portion of this decree shall be construed as alimony under the Internal Revenue Code. IT IS ORDERED that any claim by Respondent for ongoing spousal support or maintenance, or alimony, is hereby DENIED.
Clarifying Orders
IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.
[ 14 ] Counsel for the applicant take issue with this order. She says that it was obtained through misrepresentation and notes that it indicates in the recitals that the order was made on consent. She denies that her client consented. She has also filed a letter from her client’s Texas counsel wherein he indicates that neither he nor the applicant consented to the order.
[ 15 ] The order of December 7, 2011 was not appealed by the applicant. According to the affidavit of the Texas counsel for the respondent, the time for appeal has now passed.
Positions of the Parties
[ 16 ] Counsel for the applicant submits that her client never attorned to the Texas court’s jurisdiction. She argues that the order in Texas was not validly obtained and that in any event counsel for the respondent must register the order pursuant to the provisions of the Interjurisdictional Support Orders Act. It is the applicant’s position that this court has jurisdiction to determine issue of spousal support and the division of property.
[ 17 ] Counsel for the respondent submits that this court has no jurisdiction as the Texas court has issued a final divorce order. He also submits that the Interjurisdictional Support Orders Act has no application in this case .
Analysis
[ 18 ] The law is very clear that where a foreign court has made a valid divorce, an Ontario court does not have jurisdiction to determine a corollary relief proceeding under the Divorce Act (see Okmyansky v. Okmyansky , 2007 ONCA 424 and Rothgiesser v. Rothgiesser , 2000 CarswellOnt 50 (Ont. C.A.) ).
[ 19 ] Similarly, once a foreign court grants a final divorce order, a spouse is no longer a spouse for purposes of an application for support under the Ontario Family Law Act (see Nicholas v. Nicholas , [1995] O.J. No. 28 (Ont. Gen. Div.) ).
[ 20 ] As noted above, counsel for the applicant makes two arguments in response to those well established legal principles. First, she argues that her client did not attorn to the jurisdiction of the Texas court and that the order in Texas was not validly obtained. She alleges misrepresentation and fraud, and submits that we should have a trial in Ontario to determine its validity.
[ 21 ] I reject that submission and find specifically that she attorned to the jurisdiction of the Texas court. The applicant never appealed the Texas court’s jurisdiction order. In order to maintain her position that the court had no jurisdiction, she should have appealed the decision on jurisdiction. She certainly cannot argue that the court has no jurisdiction when she went on to participate, albeit in a limited manner, at the December 7, 2011 hearing.
[ 22 ] I also find that a trial is not necessary to determine the issue of the validity of the Texas court. I appreciate that the applicant has raised concerns with that order but the place to deal with those issues is Texas given that she attorned to the jurisdiction of that court.
[ 23 ] The second argument made by the applicant is that the respondent cannot rely upon on the Texas judgment because he did not register it pursuant to the provisions of the Interjurisdictional Support Orders Act. Counsel submits that the respondent should have registered the order and her client would then have an opportunity to attack the validity of the order.
[ 24 ] I find that the Interjurisdictional Support Orders Act is not applicable in this case. That legislation provides inter alia for a method of enforcing foreign “support orders”. Obviously, the legislation would have no application to the applicant’s property claims.
[ 25 ] It also does not apply to the Texas court’s order regarding spousal support. That order provides that no spousal support is payable. The definition of the term “support order” in the legislation makes clear that it is limited to orders which provide for the “payment of support”. The statute does not apply, therefore, in this case as there was no order for the “payment of support”. There is no obligation on the part of the respondent to register the order pursuant to the Act.
Disposition
[ 26 ] I find that this court has no jurisdiction to deal with the issue of spousal support or net family property.
[ 27 ] If the parties cannot agree on the issue of costs they may make brief written submissions. The respondent’s submissions are due on or before March 23, 2012. The applicant’s submissions are due by March 30, 2012. Any reply submissions are due by April 5, 2012.
HOURIGAN J.
Date: March 9, 2012