Superior Court of Justice - Ontario

Date: 2012-04-17

Docket: FS-11-367854

Re: Elizabeth Ogunlesi, Applicant

And:

Anthony Ogunlesi, Respondent

Before: Czutrin J.

Counsel: Vivian E. Rerri, for the Applicant

Lyle Belkin, for the Respondent

Heard: March 19, 2012

Endorsement

[1] The issue I have to decide is whether this court has the jurisdiction to consider the wife’s application for divorce, custody of a near seventeen year old son, spousal and child support, equalization of property and related remedies.

[2] Without attorning to the jurisdiction, or filing an Answer, the Respondent husband challenges the jurisdiction of this court, and asks that the action be dismissed.

[3] The husband commenced an action in Nigeria (subsequent to the wife’s Ontario Application) where he also seeks an annulment of the marriage, and has made claims on all of the couples’ properties. In doing so, he has continued to challenge this court’s jurisdiction, and has only participated in questioning to the extent necessary to challenge jurisdiction.

[4] The wife unsuccessfully sought to have the Nigerian court dismiss or stay the husband’s Nigerian action as being “duplication” and her request to register Justice Backhouse’s non dissipation order in Nigeria was adjourned.

[5] While this motion was being argued, I was advised that the Nigerian court had already begun hearing evidence in the absence of the wife. At the conclusion of submissions, I thus made an endorsement, to have the husband ask the Nigerian Court not proceed pending my determination of jurisdiction.

[6] I do not know if the trial in Nigeria continued.

[7] I need to determine two issues. First, whether this court has jurisdiction. Second, even if this court has jurisdiction, I need to decide whether this court is the appropriate forum. In doing so, I will have to consider the Divorce Act, RSC, 1985, c. 3 and the Family Law Act, RSO 1990, c F.3.

[8] The issue of jurisdiction is made difficult as there are significant credibility issues between the parties as to their intentions in seeking permanent resident status in Canada, the circumstances surrounding their arrival, their property holdings in Canada, United Kingdom and Nigeria, as well their ongoing businesses in Nigeria. There is also conflicting evidence as to their date of separation and their failed negotiations to resolve certain property issues. The husband also challenges the validity of the parties’ marriage and possibly date of marriage.

[9] Although I received affidavits from potential witnesses and the parties have been questioned, I am unable to resolve the credibility issues without a hearing. Moreover, I could use the benefit of a neutral expert on Nigerian law when it comes to deciding the validity of the marriage. (This may also be true for other issues relating to property and support rights for married or potentially non married couples.)

[10] While I received affidavits filed by the parties and other individuals on these issues and the husband was questioned in Nigeria and the wife was questioned in Canada, the evidence may still be incomplete, and I was unable to ask questions that may have provided me with answers to assist me.

[11] Unlike the very helpful decision of my colleague Perkins J. in Jenkins v. Jenkins, 8 RFL (5th) 96 (SCJ) who considered similar issues of jurisdiction at para.1 that “began with a case conference that turned into (on consent) a motion based on admitted facts to determine whether Ontario has jurisdiction to deal with issues in this case and, if there is jurisdiction here, whether, Ontario is the appropriate forum”. Unlike the Jenkins case, the parties here do not agree on facts.

[12] For jurisdiction under s. 3 (1) of the Divorce Act, I need to be satisfied that one of the spouses was “ordinarily resident in (Ontario) for at least one year immediately preceding the commencement of the proceeding”.

[13] The wife commenced her Application for Divorce April 4, 2011.

[14] The Divorce Application form requires the completion of a family history.

[15] The wife noted that both parties have been resident in Toronto, Ontario since July 2009. She noted that she was separated from her husband since April 1, 2010, but resided in the same house as him until March 12, 2011 when he locked her out of their home in Lagos, Nigeria.

[16] The wife claimed custody of one child, Pablo, (born March 27, 1995). She claimed child support for two children (Pablo and Nanio who was attending Ryerson and living with the mother).

[17] The wife sets out in important facts that both parties run successful businesses abroad.

[18] She stated that both parties were born and raised in Nigeria and became permanent residents of Canada in July 2009 “after successfully applying as investors in the Canadian Economy and committing $400,000 to the Canadian Government for three years (interest free). They currently own five properties in Ontario, three in the United Kingdom and several in Nigeria”.

[19] At paragraph six of her Application she stated: “After the parties separation in April 2010 the Applicant decided that she would continue to reside in Canada and to travel to Nigeria for business purposes. The parties continued to reside together until March 12, 2011 when the Respondent locked the Applicant out of their jointly owned home in Lagos, Nigeria. The Applicant returned to Ontario”.

[20] The wife further sets out in her facts: “The Respondent engaged the services of a moderator/arbitrator to assist the parties with the separation of their assets in the summer of 2010. However, this was a long time friend and relative of the husband who attempted to pressure her to transfer ownership of all the ‘choice’ assets to the husband and then divide the balance of the assets in a manner that gave her a minimal proportion. The wife engaged her own representative as she was concerned that the process was being patently unfair and a scam. The (husband) refused to continue the process if the (wife) had a representative”.

[21] The wife deposed that “Nigeria is a corrupt country where anything is possible if you can pay for it”. She did not provide any evidence supporting this assertion.

[22] The husband was served on May 17, 2011 in Nigeria with the wife’s Application.

[23] By July 25, 2011, the husband retained his Toronto counsel who challenged this court’s jurisdiction.

[24] The husband’s motion was supported by his affidavit signed in Nigeria.

[25] He claimed that he was born in Nigeria, has resided there all his life, and continues to reside in Nigeria up to the present time.

[26] He also deposed that the wife resided in Nigeria, all her life and continues to do so.

[27] He claims that they did not separate until March 12, 2011 and were “still residing in Nigeria at that time and on April 1, 2010 as well.”

[28] He deposes that while the parties have cohabited since 1990 they were married on February 9, 1999. In turn, the wife states that the couple cohabited since the birth of their son in 1985, were married through a customary ceremony in 1989, and had a civil marriage ceremony in 1999.

[29] He raises the issue of whether the wife was ever divorced from her first husband.

[30] He refers to three stores operated by the wife in Nigeria with the last one being opened in January 2011.

[31] He outlines the purchase and sale of properties in the United Kingdom and Canada. The first of the Toronto purchases was in 2003 and most recent was made in 2007.

[32] He claimed that in 2006 the wife applied for Canadian permanent residence as the principal applicant, and he was included in the application as her husband.

[33] He claims that because of three of their children’s schooling had taken place in Canada, so that they could one day obtain Canadian citizenship through the family permanent residency application. He also thought that by having permanent resident cards, they would not require visas to travel to and from Canada.

[34] He claimed that neither “the applicant nor I have ever actually changed our residency or our pattern of life.” “Both continued to reside and work in Nigeria with very little connection to Canada other than ownership of some investment properties and the fact that some of our children have attended school there from time to time.”

[35] He then sets out how long he was present in Canada from 2009, 2010 and 2011 to the date of signing his July 25, 2011 affidavit. This time amounts to 22 days in 2009, 30 days in 2010 and 11 days in 2011.

[36] According to the husband, the wife was only in Canada for 39 days in 2009 (landing July 15, 2009), 30 days in 2010 (May 13- July 13 and November 2 to November 9). He also claims that she was only in Toronto from February 12 to March 11 prior to signing his Divorce Application on April 1, 2011.

[37] Finally, he suggests that their issues would be “better and more conveniently adjudicated in Nigeria than Canada”.

[38] The wife deposed that they both decided to reside in Canada and “to send our children … to school in Canada because this is where we wished to make our home”.

[39] She stated that the parties retained an Ottawa Law firm and applied for Permanent Residence status in Canada in 2007.

[40] The Application was approved in 2009 and the parties landed in July 2009.

[41] According to the wife, she was ready to relocate after they landed in July 2009 but her husband “tried to dissuade me stating that my stores would go under if I left them without any direct supervision”.

[42] The husband left Canada two weeks after landing, but she remained until September 2009.

[43] She claimed that of the 18 properties listed by the husband 13 are in Toronto.

[44] While deciding where to live, she claimed they stayed at the Marine Parade Drive residence in Etobicoke.

[45] She deposed: “Our marriage really hit rock bottom in 2009. I knew I had to leave the last time he hit me in October 2009”.

[46] She claims that the husband took steps in “mid 2009 … to exclude me from our joint businesses. He removed all the business, property and accounting records from the safe of our home”.

[47] She deposed that by January 2010 she told her husband that she wanted out of the marriage.

[48] She suggested that she sought to negotiate a resolution to divide their property fairly, but it went nowhere. This is when she agreed to her husband’s suggestion of using his cousin, a lawyer, to mediate a division of property. She said discussions started in March 2010 and they had two meetings in the “lawyer cousin” office. The “last meeting was in October 2010”. She said that at the lawyer’s instructions she wrote a letter to her husband on May 17, 2010 to “request division of our property”.

[49] While consulting a lawyer in Canada, the wife retained her own lawyer in Nigeria in November 2010.

[50] While in June 2010 the parties spent time together in Toronto. She said she came to Toronto to support him because he was suggesting that he had prostate cancer. Thereafter, he left to go back to Nigeria.

[51] The wife outlined the husband’s efforts in August to September 2010 to withdraw all the couples’ funds kept in London, United Kingdom, Toronto and Nigeria. By September 2010 T.D. Canada Trust terminated their relationship with the husband.

[52] The wife states that she obtained an Ontario Driver’s Licence on June 15, 2010, an Ontario Health Card in June 2010, and obtained a family doctor in June 2010. She also incorporated a business in November 2011, had a Canadian Will and Power of Attorney drawn up and executed by September 2010, and changed her home address with various service providers in June 2010. In addition, she suggested she became a regular at a hairdresser in Toronto and a church.

[53] She concedes that she travelled a great deal outside of Canada, including extensive periods in Nigeria.

[54] The wife wants me to consider “the real issue of corruption in Nigeria”.

[55] She concludes by asking the court to find “I have been sufficiently resident in Ontario in the year preceding my Application and that there is enough of a connection with Ontario and that this court accept jurisdiction in this matter in the interest of justice”.

[56] The wife filed an affidavit from a shop manager in one of her Nigerian stores as to his knowledge of her residence in Canada.

[57] Much of what he says is based on what he was told by the wife, except his statement that : “… since March 2010, I handle the deposits and payments for utilities and maintenance, stock keeping, contracts and manage staff and payroll and … report directly (to the wife) by phone and email given that she was now living in Canada”.

[58] He refers to the wife being locked out of the family home in Nigeria in March of 2011.

[59] A local Yorkville hairdresser provided an affidavit where she states that she has been the wife’s hairdresser since 2007. The hairdresser states: “Since the spring/summer 2010 she has been here more”. “She told me that she would be spending more time here, but would [be] travelling back to Nigeria to check her business as to the Far East to shop for the stores”.

[60] An affidavit from the wife’s brother-in-law speaks of a trip to Nigeria in October 2010 “with the hope of bringing about a re-conciliation between (the parties)”.

[61] Her sister deposed to events in Nigeria when they visited. She stated: “my sister chose to make Canada her home and has actively resided there since her separation in the spring of 2010.”

[62] A Nigerian witness, who describes his employment as a steward also provided an affidavit. He states that he lived there on weekdays, and that the parties lived “together in Nigeria. They only travel outside Nigeria for business, to visit the children and for holidays”.

[63] He deposed that as of January 3, 2011 he saw no indication of separation and that the family hosted “New Year family barbecue party for the children and extended family members”. “Up until March 12, 2011 (the parties) lived together as husband and wife in the same house … (in) Nigeria”.

[64] Other affidavits were also filed to support the husband’s position on separation.

[65] Both parties were questioned. The wife testified that at the time of her questioning on February 28, 2012, she was residing at 58 Marine Parade Rive, Apartment 1212 with her son Pablo. Pablo, when in school, lives in Port Hope, Trinity College. He started there in September 2011.

[66] Her son from a previous marriage now resides in Newfoundland. He previously lived in Etobicoke and lived in Nigeria prior to landing in Canada in 2010.

[67] Another child lives in the United Kingdom.

[68] The parties’ son, Michael (Saye), is employed and lives on his own in an apartment in Toronto as of 2010, but has gone to school in Montreal, Ottawa and the United Kingdom.

[69] A child Mario was at Ryerson but did not finish.

[70] The wife testified that she was looking to start a business as soon as she finds a suitable place for its establishment. The business will be selling children’s clothes and maternity products. She claims she also operates a network marketing business as of the summer of 2011.

[71] She continues to operate her business “back home.” Her business in Nigeria has three locations with 16 employees.

[72] The business is incorporated and she has a 49% interest, while her husband has a 51% interest.

[73] The business’s bank accounts are in Nigeria. She has the only signing authority over the business accounts.

[74] When questioned about properties, the wife disclosed 27 properties that are jointly owned, but was not sure if that had changed, since as she stated: “…in Nigeria, anything is possible.”

[75] As the questions continued she described corporate and individual ownership of properties. It became clear that there was confusion as to who held title to the properties.

[76] The husband’s counsel asked the wife whether the marriage and the subsequent divorce to her first husband were both valid under Nigerian Law.

[77] I was advised that the husband is questioning the wife’s first divorce, and thus the validity of their own marriage.

[78] During the wife’s questioning, she was asked about the validity of her current marriage. She claimed she married her husband pursuant to Nigerian tradition.

[79] The husband denies that they are married because “he was a Roman Catholic and he was already married to his first wife.”

[80] The wife testified that the parties married three times. Specifically, the testified that they had a traditional wedding, a civil marriage, and were then married by the church.

[81] The husband concedes that the parties went through a marriage ceremony, but disputes that the wife was free to marry, as she might still have been married to her first husband.

[82] The wife testified that the marriage was over in 2009. She testified: “I think it was in September.”Also, that she told her husband in January of 2010, while in Nigeria, that their marriage was over.

[83] Later in the transcript of the questioning she said:

After we landed, I was ready to relocate.” ... he didn’t want to relocate.

Her answers were at times confusing.

[84] After landing in Canada in July of 2009, the wife left to visit family in the United States in August 2009. She then returned to Canada, only to leave to Nigeria from September to Christmas where she claimed she was assaulted by her husband in January 2010. She claimed her husband hid her Canadian Permanent Residency Card so she wouldn’t return to Canada. In the meantime she stayed in Nigeria while her husband was in Canada.

[85] She remained in Nigeria while attempting to settle her marital affairs with her husband. She then returned to Canada in June 2010.

[86] She travelled to the United States several times between September and November.

[87] On November 14, 2010 she returned to Nigeria and stayed until January 2011 in the matrimonial home, as she describes it. While in Nigeria, she retained a lawyer as an arbitrator. She claimed she was advised not to mention divorce, but only separating the business.

[88] In March, the wife once again returned to Nigeria to check on her business. She was locked out of the matrimonial home.

[89] She returned to Canada but also traveled to various countries including China, and the United States. She has been in Canada since January 16, 2012.

The Law on ordinary residence: Section 3(1) of the Divorce Act

[90] The wife must meet the requirements of section 3(1) of the Divorce Act in order for the court to consider accepting jurisdiction over the claim for divorce and corollary relief of custody. This section states:

3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

4. (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

1 (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

2 (b) both former spouses accept the jurisdiction of the court.

Jurisdiction where two proceedings commenced on different days

(2) Where corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding shall be deemed to be discontinued.

Jurisdiction where two proceedings commenced on same day

(3) Where proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the corollary relief proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

1 R.S., 1985, c. 3 (2nd Supp)., s. 4; 1993, c. 8, s. 1; 2002, c. 8, s. 183.

[91] For a Canadian court to take jurisdiction, one of the parties must be ordinarily resident in the province during the one year immediately preceding the commencement of divorce proceeding. Here, the husband challenges whether the wife meets this requirement.

[92] The wife commenced her Divorce Application on April 4, 2011. Thus, she needs to have been ordinarily resident in Canada as of April 4, 2010 for the court to entertain her claim for Divorce.

[93] There are no minimum residency requirements under the Family Law Act or the Children’s Law Reform Act, RSO 1990, c C.12.

[94] Even if I conclude that the wife fails to establish that she has met the residence requirement of the Divorce Act, she may be able to continue her corollary claims in Ontario. Certainly, if the couple is not legally married as claimed by the husband, she might still have property claims. (The claims would not be under the Divorce Act and property claims would not be under the Family Law Act.)

[95] Cases have considered what is meant by ordinarily resident in the context of the Divorce Act.

[96] In Jenkins v. Jenkins, 8 RFL (5th) 96 (SCJ), Perkins J. stated:

[13] In my view the leading case on ordinary residence is still Thomson v. Minister of National Revenue (1945), 1946 1 (SCC), [1946] S.C.R. 209 (S.C.C.). In that case, the tests enunciated include “residence in the course of the customary mode of life… contrasted with special or occasional or casual residence” (p. 224); and “one is ‘ordinarily resident’ in the place where in the settled routine of his life he regularly, normally or customarily lives” (p. 231). See also MacPherson v. MacPherson (1976), 1976 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), p. 112:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community.

Also interesting is Macrae v. Macrae, [1949] P. 397 (Eng. C.A.), in which the following appears:

Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in a particular place up till a particular day. He then cuts the connection he has with that place… and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place.

Later he finds:

15] The father’s counsel submitted that without legal immigration status as permanent or at least indefinite term Canadian residents, the parties and children could not be regarded as ordinarily resident here. I disagree. Ordinary residence as viewed by the case law is a question of fact, not dependent on citizenship, domicile or even immigration status. The cases have not gone so far as to say that only permanent residence or landed immigrant status will do. See Trotter v. Trotter reflex, (1992), 1992 8600 (ON SCDC), 90 D.L.R. (4th) 554 (Ont. Gen. Div.) (Wife in Canada on visitor’s visa for less than two years was ordinarily resident). The parties and children all were legally in the country throughout the entire three and a half year period and no one had taken any steps to terminate the mother’s or children’s residence here by the time this motion came before me. Absent any action by the mother to leave or by the government to remove them from Canada, the mother and children’s residence did not lose the quality of ordinariness.

[16] It may be that the English courts also have jurisdiction to entertain a divorce application. That does not speak to the issue of whether jurisdiction exists here, but rather impacts on whether it should be exercised. I will deal with the issue of which is the more convenient forum below.

[97] As in the current case, there was a competition over which court had jurisdiction. It is possible for both Ontario and Nigeria have jurisdiction over some issues.

[98] In Jenkins the major issue was one of custody. Custody is not at issue in the case at bar here given the age of the child. His support will be.

[99] In Alcaniz v. Willoughby, 2011 ONSC 7045 Madam Justice J. Mackinnon of this court had to decide the issue of jurisdiction. As with many jurisdictional cases, the facts and procedural history are often determinative of the jurisdictional issues.

[100] Mackinnon J. considered the meaning of “ordinarily resident”:

[28] The expression “ordinarily resident” has been judicially considered in Thomson v. Canada (Minister of National Revenue) 1946 1 (SCC), [1946] S.C.R. 209 (SCC) in the context of the Income War Tax Act. In that case Justice Rand stated:

The expression “ordinary resident” carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

But in the different situations of so-called “permanent residence”, “temporary residence”, ordinary residence”, “principal residence” and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests or conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of “stay” or “visit”.

[29] This decision has been followed in McFadden v. Sprague, [2005] O.J. No.4627 (SCJ) in the context of the Divorce Act. The court noted a person may be ordinarily resident although not actually resident. The husband was found to have been ordinarily resident in Ontario for the requisite period despite the fact that he was actually at the family cottage in Quebec for considerable portions of the twelve months in question.

[31] The purpose of the residence requirement in the Divorce Act is to demonstrate a sufficient connection between Ontario and the marriage which is sought to be dissolved. In this regard it is noteworthy that the Respondent himself sought a divorce in this jurisdiction and then subsequently withdrew his claim for it. I reject the Respondent’s assertion that no weight should be given to this because his Answer and Claim was improperly issued without a financial statement. He served and filed a claim in Ontario for a divorce, and he subsequently withdrew it. At most the absence of the financial statement was an irregularity.

[101] Even if this court has jurisdiction, the issue of whether Ontario is the appropriate forum remains, although I find that this issue was not adequately addressed by counsel. Justice Mackinnon continued:

Appropriate Forum

[32] Although the Respondent did not actually move for an order asking the court to determine that Florida is the more appropriate forum, he took this position in his factum. The Applicant agreed that this issue should be determined by the court in the same way as if a proper notice of motion had been delivered.

[33] The question of what is the most appropriate forum for trial of an action is a question of fact. The onus is upon the Respondent to satisfy the court that the Applicant’s claim should not be allowed to proceed even though Ontario has jurisdiction under the Divorce Act. The court has the discretion to decline to exercise its jurisdiction where there is another forum that is more appropriate. The factors that a court may take into account in determining this issue include:

• The location of the majority of the parties;

• The location of key witnesses and evidence;

• Contractual provisions that specify applicable law or accord jurisdiction;

• The avoidance of a multiplicity of proceedings;

• The applicable law and its weight in comparison to the factual questions to be decided;

• Geographical factors suggesting the natural forum;

• Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

[34] See Muscutt v. Courcelles 2002 44957 (ON CA), (2002), 60 O.R. (3d) 20 (Ont. CA). In addition, in Follwell v. Holmes, [220] O.J. No. 4387 (SCJ) specific to a family law case, the court added enforceability as a factor.

See: Stefanou v. Stefanou, 2009 ONCA 204.

Analysis

[102] Most of the submissions of counsel focused on the issue of whether the parties were “ordinarily resident” in Ontario at least one year prior to the commencement of the Divorce Application, as this is a requirement of the Divorce Act.

[103] Only one party, not both, need to satisfy the court of this requirement.

[104] Here, I am satisfied that the Respondent husband, did not ordinarily reside in Ontario, but that the wife made efforts to establish her ordinary residence in the province when the marriage appeared to be at an end.

[105] Part of the supporting evidence includes the wife’s landing as a permanent resident under immigration laws. However that in itself is not definitive.

[106] The wife obtained an Ontario Driver’s Licence and an Ontario Health Card.

[107] She also returned to Ontario from trips to abroad to visit family, conduct business, and attempt to deal with the issues arising from her separation.

[108] She and her husband had bank accounts and property here, and had at least one dependent child in Ontario.

[109] Mr. Philip Epstein recently commented on a decision of Mackinnon J. in Alcaniz v. Willoughby, 2011 ONSC 4075. in FAMLNWS 2012-11 Family Law Newsletters March 20, 2011 Epstein's This Week in Family Law

[110] The decision in Alcaniz was made in the context of a summary judgment motion as to whether Ontario can retain jurisdiction in a custody action when the children live in Florida. MacKinnon J. had to determine whether either spouse was ordinarily resident in Ontario for at least one year immediately before the commencement of the proceeding.

[111] The parties in that case were moving between Ontario and Florida. As here, the case required a review of the phrase “ordinarily resident".

[112] As Mr. Epstein points out, the phrase “ordinarily resident” was considered in Thomson v. Minister of National Revenue 1946 1 (SCC), [1946] SCR 209where Rand J. stated:

The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

But in the different situations of so-called "permanent residence", "temporary residence", "ordinary residence" . . . and that quality if chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests or conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of "stay" or "visit".

See also McFadden v. Sprague, 143 ACWS (3d) 706 (Ont. Sup Ct.) where the court noted that a person may be "ordinarily resident" although not "actually resident".

[113] The test is on the balance of probabilities. On that test, MacKinnon J. found that the respondent was ordinarily resident for the requisite period of time, even though he had stayed or visited in Florida for portions of two months during the preceding twelve month period. MacKinnon J. recognized that the purpose of the residency requirement is to demonstrate a sufficient connection between Ontario and the marriage that is sought to be dissolved. In that case the husband had served and filed a claim in Ontario for divorce and subsequently withdrew it, which became a very significant problem for him.

[114] In the case before me, the parties spent little time in addressing the issue of appropriate forum.

[115] The test for being ordinarily resident is fact specific and often a close call. In this case, I am satisfied that when the wife determined that she wanted to end the relationship, particularly when her efforts in Nigeria to resolve financial issues failed, she took steps to establish herself as being ordinarily resident in Ontario. In considering this issue, the fact that she returned and stayed in the parties’ home in Nigeria is not conclusive as to whether the parties were separated or whether she was ordinarily resident in Ontario. Husband and wife often separate under the same roof.

[116] Also, the fact that she travelled to many countries and often returned to Nigeria does not preclude the conclusion that she was ordinarily resident in Ontario.

[117] The wife’s book of authorities included a reference to the Castel and Walker text Canadian Conflict of Laws, sixth Edition, Volume 1, Lexis Nexis, pages 4-21 under the heading of ”Ordinary residence”, where the authors write:

“Ordinary residence” is residence in the ordinary, regular course of life, as opposed to residence that is casual, temporary or unusual. (Levene v. I.R.C., [1928] A.C. 217 (H.L.); I.R.C. v. Lysaght, [1928] A.C. 234 (H.L.) It is possible, in some contexts, for an individual to be ordinarily resident in two or more places, (Mester v. Kummu, 1957 424 (ON SC), [1957] O.W.N. 534 (H.C.); Tenold v. Chapman, 1981 2180 (SK CA), [1981] S.J. No. 1188, 12 Sask. R. 57, [1981] 6 W.W.R. 745 (C.A.). affg 1981 3031 (SK QB), [1981] S.J. No. 1361, 9 Sask. R. 278 (Q.B.): An independent single person with residence outside the province may be ordinarily resident in his or her parents’ home in Saskatchewan for the purpose of the Election Act, R.S.S.. 1978, c.E-6, as am., ss.29, 35. ), but this would be unhelpful in cases where ordinary residence is the basis for the jurisdiction of a court. (E.g., for divorce purposes.) Various views have been expressed on whether there is any difference between “residence” and “ordinary residence”. (For the view that there is a difference: Levene v. I.R.C, [1928] A.C. 217 at 232 (A.C.): I.R.C. v. Lysaght, [1928] A.C. 234 (H.L.) at 243-48: Stransky v. Stransky, [1954] 2 All E.R. 536 at 541. For the contrary view, see Hopkins v. Hopkins, [1951] P.116 at 121-22) It is clear that ordinary residence, like residence, can be changed in a day. (Macrae v. Macrae, [1949] P. 397 at 403 (C.A.), affg [1949] P.272; Lewis v. Lewis, [1956] 1 W.L.R. 200; Cullen v. Cullen (1969), 1969 879 (NS SC), 9 D.L.R (3d) 610 (N.S.T.D.)’ Nowlan v. Nowlan (1971), 1970 1555 (NS SC), 2 R.F.L., 67 (N.S.T.D.).

...The courts have held that is a question of fact not dependent on citizenship, domicile or even immigration status. (Jenkins v. Jenikins, 2000 22523 (ON SC), [2000] O.J. No. 1631 8 R.F.L. (5th) 96 at p. 101 (S.C.J.); Murphy v. Wlkowicz (2003), 2003 NSSC 181, 217 N.S.R. (2d) 156 (S.C.)

...The relative depth of inquiry in divorce cases (as compared to other contexts) results from the fact that for Divorce Act purposes as an individual is considered to have only one ordinary residence at or during a given time. Accordingly, the focus must be on the sole or at least, principal residence rather than one habitual residence among several. The Character of the expressions “customarily,” not extraordinarily,” or “according to the settled routine of life,” all of which are employed in both tax and divorce cases, changes when the element of exclusivity is introduced, and there is a comparative aspect to the investigation: a weighing of permanence or seriousness of the attachment to a place as against other places is necessary. Of the factors that become determinative is the weighing process where there are two legal units in which the individual has a settled attachment, intention to return or to remain becomes paramount.

The authors speak to the search to determine the “real home.”

[118] Here, I am satisfied that the wife sought to establish her ordinary residence in Ontario since she thought that the Ontario courts were preferable to protect her property and support claims.

[119] When Justice MacKinnon turned to the issue of the appropriate forum for resolution of the custody matter she considered the factors to be:

• The location of the majority of the parties;

• The location of key witnesses and evidence;

• Contractual provisions that specify applicable law or accord jurisdiction;

• The avoidance of a multiplicity of proceedings;

• The applicable law and its weight in comparison to the factual questions to be decided;

• Geographical factors suggesting the natural forum;

• Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

See the leading case of Muscutt v. Courcelles, 2002 44957 (ON CA), 60 O.R. (3d) 20 (CA) and Follwell v. Holmes, 152 ACWS (3d) 821 ((ON Sup Ct) where the Court also considered enforceability as a factor.

[120] Of course the Divorce Act first and foremost deals with jurisdiction to determine the dissolution of the marriage. In the Nigerian proceeding, the husband calls into question the validity of the parties’ marriage, by submitting that the wife was still married at the time he married her. That would require an inquiry of the law in Nigeria as to the validity of the marriage, or to call expert witnesses on Nigerian marriage and Divorce Laws here, if Ontario has or retains jurisdiction.

[121] If the court takes jurisdiction under the Divorce Act, then corollary issues of custody, child, and spousal support would be considered by this court.

[122] It is clear on the material that these parties have significant assets in Nigeria, Ontario and the United Kingdom.

[123] Each party individually, and to some degree together have businesses in Nigeria and real estate investments in the United Kingdome, Nigeria and Canada. They also have bank accounts in several jurisdictions. There will be enforcement issues regardless of what court ultimately takes jurisdiction.

[124] The wife recognized the importance of attempting, as she did, to resolve financial issues in Nigeria and made efforts to do so.

[125] Once her efforts appeared to be futile, she sought the Ontario courts to assist her, as she feared how well she might do in Nigeria.

[126] Cross border family issues have become more common place for many reasons that need not to be explored in this judgment. Even as I write, the residency requirements for Canadian Courts to take jurisdiction in divorce cases are being considered by the Federal Government.

[127] On balance, I find that she has met (prima facie) that she is ordinarily resident in Ontario. While on the facts surrounding the wife’s stay in Canada I could conclude that she does not meet the test, (she has not spent an overwhelming amount of physical days in Canada), but I find that she has made efforts to settle into Canada by changing her address to Canada for certain purposes, applying for a driver’s licence, health card and engaging in activities consistent with such findings The fact that she is a business woman will inevitably require her to have to travel to Nigeria and East Asia for commercial purposes. She also has family in the United States of America and Nigeria and so it is natural for her to spend some time there. Her jet-setting lifestyle does not preclude her from being ‘ordinarily resident’.

[128] The case of Stefanou v. Stefanou 2008 5117 (ON SC), 50 RFL (6th) 345 (ON Sup. Ct.) highlights jurisdictional issues.

[129] In that case the parties, like here, differed on separation dates, and had properties in several countries.

[130] The parties, who were born outside of Canada, married in Toronto. When the husband retired in 1993, the parties made Greece their primary residence. They came to Toronto periodically (approximately one month per year). They stayed with family.

[131] In February 2004, the parties attempted to negotiate a marriage contract with Toronto lawyers, but it was never concluded.

[132] Like here, the parties had differing views of the marriage and when they separated, which was about some time in 2004.

[133] The parties returned to Toronto after separation, and their counsel attempted to negotiate a Separation Agreement unsuccessfully.

[134] The husband commenced a Divorce proceeding in Greece. The wife did not contest the Divorce and never applied for corollary relief in Greece.

[135] The Divorce was granted in Greece in May 2006. The Greek court did not deal with any corollary relief, support or property at that time.

[136] In April 2005, the wife commenced support and property claims in Ontario. She claimed she did so because her husband withdrew substantial amounts of money from a joint bank account. As in the current case, the wife obtained an order from an Ontario judge freezing the husband’s interest in a bank account and some of her other assets.

[137] A trial to determine the appropriate forum was ordered since the husband challenged the court’s jurisdiction. Herman J. wrote in reasons:

[26] In September 2005, Mr. Stefanou initiated this motion to dismiss Ms. Stefanou’s claim on the basis that Ontario did not have jurisdiction simpliciter and was a forum non conveniens. He has since withdrawn the claim that Ontario does not have jurisdiction simpliciter. The claim of forum non conveniens remains. Mr. Stefanou has not, to date, filed an Answer or Financial Statement in the Ontario proceeding initiated by Ms. Stefanou.

[138] Unlike the case before me, Herman J. heard evidence and had a far better picture of the financial picture of the parties. Unlike here, the validity of the marriage in Stefanou was not questioned, and the judge had the benefit of hearing from the parties.

[139] I do not know the law of Nigeria as it relates to divorce, support or property. Nor was I given sufficient reliable evidence that might assist me to have some understanding as to the law or the process.

[140] In Stefanou, Herman J. was able to hear evidence concerning the property owned by the parties in Canada and the United States (worth more than 1.5 million dollars at separation), a jointly owned boat located either in Greece or Turkey (purchase price approximately $200,000), property in Greece owned by the husband (with issues related to value, costs of construction) and the wife’s property in Japan (worth approximately $136,000 and inherited by her).

[141] For Herman J., the question was the appropriate forum to decide the issues. Here the husband was served outside of Ontario and argued that Ontario is not the appropriate jurisdiction. The burden of proof rested on the wife to establish that Ontario was the more appropriate forum (Frymer v. Brettschneider 19 OR (3d) 60 (CA), 1994 1685 (at para. 70; Anchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 124 (SCC), [1993] 1 SCR 897 at para. 33) 1993 124 (SCC),)

[142] Herman J. outlines the factors in determining the appropriate forum:

Forum Non Conveniens – Factors

[33] Canadian courts may decline to exercise their jurisdiction where there is another forum that is more appropriate. The court should make this determination on the basis of relevant factors to ensure, where possible, that the action is tried in the jurisdiction with the closest connection with the action and with the parties (Frymer v. Brettschneider at para. 57; Anchem Products Inc. v. British Columbia (Workers’ Compensation Board) at para 26).

[34] Various factors have been applied by courts to determine the most appropriate forum. These factors include: the location of the majority of the parties; the location in which the factual matters arose; the location of key witnesses and evidence; contractual provisions that specify a particular jurisdiction (not a factor here); the avoidance of a multiplicity of proceedings; the applicable law and its weight in comparison to the factual questions to be decided; geographical factors suggesting the natural forum; and whether declining jurisdiction would deprive the applicant of a legitimate juridical advantage available in the domestic court (see Muscutt v. Courcelles, 2002 44957 (ON CA), [2002] O.J. No. 2128 (C.A.) at para 41).

[35] Other factors that Ms. Stefanou puts forward as relevant are: her inability to speak or understand Greek; her medical condition; her fear of Mr. Stefanou; bias in the Greek legal system against women and foreigners; and her refusal to go to Greece. Ms. Stefanou also submits that the Ontario proceedings can proceed more expeditiously than proceedings in Greece.

Herman J. then outlines the issues for trial in Stefanou.

[143] Here, I will have less ability to outline the issues than Justice Herman did in Stefanou since the evidence has not been as well flushed out in the current case. At best, this case has only been fleshed out by the competing Application of the husband in Nigeria (to which the wife has not replied) or the Application here of the wife (to which the husband has not replied).

[144] On August 11, 2011 the Respondent petitioned a Nigerian court to declare his marriage to the Applicant a nullity. Both the Respondent and Applicant were previously married, He admits that he went through a marriage ceremony with the Applicant on February 9th, 1999, but only after receiving a decree of nullity for his first marriage. He contends however, that the Applicant’s first marriage, performed according to customary law, was never dissolved. Therefore, he states that he did not enter into a legally binding marriage with the Applicant, as she could not have been legally married to more than one person at a time.

[145] The husband in his Nigerian action claims custody of their youngest son Pablo. He also requests absolute title over the properties that he and the Applicant held jointly during the course of their relationship.

[146] This Nigerian petition was served on the Applicant on October 28, 2011. Upon receipt, the Applicant’s Canadian counsel requested an adjournment of the proceedings in Nigeria, but was denied. A second and almost identical petition to the above was filed on December 29, 2011 by the Respondent in Nigeria, and served on the Applicant.

[147] A motion was then commenced in Nigeria by the Applicant alleging that the Respondent had engaged in a duplicity of proceedings. This motion was withdrawn by the Applicant once the Nigerian trial was adjourned. The Applicant has not responded to the substance of the Respondent’s Nigerian petition.

[148] For her part, on April 4, 2011 the Applicant requested an order for the dissolution of her marriage, custody of Pablo, and child and spousal support at the Superior Court of Justice in Canada. The Respondent has only responded to this motion to challenge this court’s jurisdiction.

[149] I am aware that values of assets in the United Kingdom, Nigeria, and Canada will be in issue and likely require expert testimony from these three different jurisdictions.

[150] Additionally, the validity of the marriage has been put into issue. This will likely require both fact witnesses and knowledge of the law in Nigeria as to marriage and divorce.

[151] The outcome of the validity of the marriage may make significant difference in the property claims as well.

[152] If there is a valid marriage, then Ontario law may also be significant to determining the separation and valuation date.

[153] All of the witnesses who can speak to the validity of the couple’s marriage and separation, save for the wife, are abroad.

[154] Title to property and issues relating to bank accounts held here, as well as the details surrounding T.D Bank’s termination of its relationship with the husband may be issues that independent witnesses in Ontario can assist with.

[155] Similarly, the witnesses related to the acquisition and reasons for purchasing several properties are here.

[156] According to s. 15 of the Family Law Act, property rights of married spouses are governed by the internal law of the place where both had their last common habitual residence:

Conflict of laws

15. 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. R.S.O. 1990, c. F.3, s. 15.

[157] While the ordinary residence of the wife may be Ontario for Divorce purposes, her property rights may be determined by Nigerian law. In Stefanou, Herman J. found that Greek Law applied to the couple’s property rights. This was even though Ontario had jurisdiction simpliciter, and the Divorce had been previously granted on an uncontested basis and without determining any corollary claims.

[158] Herman J. had evidence on Greek Law, Greek court processes, and when claims could be made.

[159] The main legal issue over the property claim in Stefanou was the extent to which the wife had a claim in Greece over property in the husband’s name.

[160] Again unlike this case, Herman J. seemed to be able to outline the Greek Law.

[161] Similarly, she outlined the spousal support rights the wife may have under Greek Law.

[162] Of importance in Stefanou was whether the wife could maintain a support claim in Ontario after the divorce was granted in Greece. The discussion was as follows:

Spousal Support – Ontario Law

[56] There is a question as to whether Ms. Stefanou is entitled to claim support in Ontario now that a Greek court has granted the divorce. This issue is relevant, in particular, to the potential for multiple proceedings.

[57] Mr. Stefanou maintains that Ms. Stefanou has no spousal support claim in Ontario on the basis that a court in another country has granted a divorce and she is no longer a spouse. Ms. Stefanou submits, however, that because she applied for support prior to the final divorce order being granted, she is entitled to pursue her claim.

[58] In Rothgiesser v. Rothgiesser 2000 1153 (ON CA), (1999), 46 O.R. (3d) 577 (C.A.), the Ontario Court of Appeal considered whether the Ontario court could vary a support order obtained in divorce proceedings in another country. The parties were divorced in South Africa. The divorce order provided for a monthly spousal support payment to the wife. The husband subsequently applied to an Ontario court to vary spousal support. Labrosse J.A., writing for the court, noted that the application to vary could not be brought pursuant to the Family Law Act, R.S.O. 1990, c. F. 3, because the parties were not spouses (at para 26). Furthermore, a Canadian court does not have jurisdiction under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 to order corollary relief, including spousal support, where a court in another country has granted the divorce (at para. 29).

[59] In the case of Okmyansky v. Okmyansky 2007 ONCA 427, (2007), 86 O.R. (3d) 587 (C.A.), the Ontario Court of Appeal considered the ability of an Ontario court to deal with support and property claims after a valid divorce had been obtained in another country. In that case, the applicant wife had commenced her property and support claims in Ontario after the divorce had been granted in Russia. The court concluded that an Ontario court does not have the jurisdiction to hear and determine corollary relief under the Divorce Act after a valid foreign divorce has been granted. Furthermore, there is no provision under the Family Law Act that would permit a support claim by someone who was no longer a spouse (paras. 41, 42). This is to be distinguished from an equalization claim, which can be made by a “former spouse” under the Family Law Act (s. 7).

[60] The one fact that distinguishes the case at hand from the above two cases is that Ms. Stefanou’s claim for spousal support was made before the divorce was granted in Greece. (Ms. Stefanou commenced her application in April 2005 and the divorce order was granted in May 2006.) This raises the question of whether the operative time for determining jurisdiction is when the application is first made or when a court hears and determines the claim. Ms. Stefanou submits that because she instituted her claim for support in Ontario prior to the Greek divorce order being granted, she should be able to pursue it. I note that Ms. Stefanou neither opposed Mr. Stefanou’s application for divorce in Greece nor has she appealed the divorce order, although she was aware of both.

[61] The case of Nicholas v. Nicholas, [1995] O.J. No. 28 (Ont. Gen. Div.) is similar to the case at hand in so far as the application for support was commenced prior to the granting of the divorce by a foreign court. In Nicholas, the husband commenced divorce proceedings in Trinidad in November 1993. The wife initiated divorce proceedings in Ontario in December 1993. The Trinidadian court granted a decree nisi in April 1994. Smith J. concluded, at para 35, that once the Trinidadian divorce was issued, the wife was no longer a spouse for the purposes of an application for spousal support under the Ontario Family Law Act. The issue of support therefore had to be dealt with by the Trinidadian court. The decision was affirmed on appeal (1996 1240 (ON CA), (1996) 94 O.A.C. 21 (C.A.)), but the court did not deal specifically deal with the issue of the application having been commenced in Ontario prior to the granting of the divorce order by a foreign court.

[62] I have not been asked to decide whether Ms. Stefanou has a valid support claim under Ontario law. I note, however, that the weight of the case law and the language of the Divorce Act and the Family Law Act suggest that she would have difficulty pursuing such a claim in Ontario.

[163] Herman J. outlined the competing factors specific to the Stefanou case in determining the proper forum and discusses using foreign law. I find her conclusions to be very helpful:

[88] If the claim were to proceed in Ontario, it would be necessary to have evidence with respect to the applicable Greek law. Foreign law is a matter of fact that must be specifically pleaded and proved by expert evidence (Castel and Walker, Canadian Conflicts of Laws, 6th ed. (Markham: LexisNexis Canada Inc., 2005 at chapter 7, para 7.1). The parties may be able to agree on one expert witness. In the absence of such an agreement, each party would have to present expert evidence. It is likely that these witnesses would come from Greece.

[89] If a spousal support claim is pursued, evidence with respect to Ms. Stefanou’s needs, particularly with respect to her medical condition, would be in Ontario.

[90] On balance, this factor favours Greece. Most of the evidence in Ontario is relatively straightforward (bank records and receipts), with the exception of the brother-in-law’s evidence regarding the loan. The evidence in Greece is relatively more complex and multi-faceted (the value of the Greek properties at the relevant times; how the improvements to the properties were paid for; the value of the yacht; and Ms. Stefanou’s contribution of labour, should she pursue that aspect of her claim). Evidence on Greek law would be required if the matter proceeded in Ontario.

[164] She also spoke to the applicable law and its weight in comparison to the factual questions to be decided:

[91] The parties agree that Greek law is to be applied to all property issues. A court in Ontario would require expert evidence as to what the applicable law is. Greek laws and cases would have to be translated. Mr. Stefanou submits that each party would have to retain Greek counsel to advise Canadian counsel, in addition to each party’s expert witness on Greek law.

[92] As noted above, there is a question as to whether an Ontario court has the jurisdiction to deal with Ms. Stefanou’s claim for spousal support. However, she is entitled to make a claim for corollary relief, including spousal support, in Greece.

Multiplicity of Proceedings

[93] This factor favours Greece in so far as Ms. Stefanou’s ability to pursue her spousal support claim in Ontario is problematic.

Juridical Advantage

[94] There is no issue of a juridical advantage with respect to the property claim since it is agreed that Greek law has to be applied, regardless of which court determines the claim.

[95] Ms. Stefanou argues that she would have difficulty enforcing a Greek order. The Greek legal opinion says that the spouse may register a mortgage until the conclusion of the court’s proceedings in order to secure his or her claim to the other spouse’s property. Mr. Stefanou has agreed to an order freezing the parties’ assets pending trial.

[96] Neither party introduced evidence as to the means of enforcing a Greek order. I therefore am unable to conclude that there would be a juridical advantage or disadvantage related to the enforcement of a court order.

[97] Upon a review of the Greek legal opinion, there is one issue which could arguably deprive Ms. Stefanou of a juridical advantage. It appears that in determining spousal support under Greek law, the court may consider whether a party was at fault in the divorce. I make no finding as to whether there was fault in this case. I note only that it is a relevant factor in Greece. If, however, Ms. Stefanou cannot pursue her support claim in Ontario, this is a moot point.

Efficiency and Timing

[98] Ms. Stefanou argues that it would be more efficient and timely to proceed in Ontario because there is already a proceeding in this court; no claim has been initiated in Greece. Ms. Stefanou says that this matter could proceed to trial within a matter of months.

[99] Mr. Stefanou disagrees. He notes that, since the property law of Greece is the applicable law, Ms. Stefanou’s application will have to be amended. He has yet to file an Answer or Financial Statement. Although there has been cross-examination on the affidavits in support of Mr. Stefanou’s motion for a stay, there has been no questioning on the substantive issues of property and support.

[100] There is no evidence before me as to how quickly a claim of this nature could proceed in Greece. There are significant steps that remain to be done in Ontario. I therefore cannot conclude that this is a significant factor in favour of Ontario.

Language

[101] A trial in Greece would be conducted in Greek. A trial in Ontario would be conducted in English. In either jurisdiction, there would likely be documents and witnesses that would require translation from one language to the other.

[102] Mr. Stefanou speaks English and Greek; Ms. Stefanou speaks English and Japanese. Neither party would be disadvantaged by reason of language in Ontario.

[103] Mr. Stefanou argues that Ms. Stefanou would not be disadvantaged in a Greek court because everything could be translated, she would have no difficulty finding a bilingual lawyer and most people on the island of Rhodes speak English. It is nonetheless the case that the trial proceedings would be conducted in Greek and Ms. Stefanou would require a translator to understand what was going on and to fully participate. It is undoubtedly easier and more comfortable for a person to participate in a trial in her or his own language.

Ms. Stefanou’s Perception of the Greek Justice System

[104] Ms. Stefanou believes that the Greek justice system would favour her husband, as a Greek male and that she, as a foreigner and female, would be disadvantaged.

[105] I have no evidence that a non-Greek female would be disadvantaged as a party in a Greek court. In order to successfully argue that one would not receive fair treatment from a foreign justice system, a party must present evidence that supports this position (Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), BCCA 243 at para. 52; appeal dismissed [2001] 1 S.C.R. iv). While Ms. Stefanou may perceive that she would be unfairly treated by a court in Greece, perception alone is not sufficient in determining the more appropriate jurisdiction.

Inability to get a Greek lawyer

[106] Ms. Stefanou says that before she left Greece in the fall of 2004, she tried to get a lawyer in Greece. The British consulate recommended five English-speaking lawyers, none of whom would take her case. She believes that this was because she was a foreigner and her husband was Greek.

[107] Ms. Stefanou has presented no further evidence that demonstrates that she would be unable to get a Greek lawyer. Her counsel was able to get a Greek lawyer to provide a legal opinion for use in this motion.

Ms. Stefanou’s Fear of Being in Greece

[108] Ms. Stefanou testified that she is afraid to go to Greece because of her husband’s abusive behaviour. Ms. Stefanou claims ongoing verbal abuse and a physical altercation in May 2004. Mr. Stefanou vehemently denies any abuse.

[109] I found Ms. Stefanou’s evidence confusing on this point. She did not claim abuse in her application or in the affidavits that she filed in this court. While her explanation that she did not claim abuse in her application because it is not relevant to her property and spousal support claims makes sense, it is more difficult to understand why she did not set out this information in her affidavit in response to this motion.

[110] In cross-examination, Ms. Stefanou indicated that when she was with her husband, he did not harm her, but that she was fearful now that she had left him. She said that was why she stayed with him. She also testified that she moved to her current address because it has good security; but she also moved there because she has no car and there is easy access to the subway.

[111] Ms. Stefanou claimed that Mr. Stefanou threatened her. According to her, Mr. Stefanou told her not to come back to Greece and that the police would be waiting for her if she did. Correspondence between the parties’ lawyers indicates that Ms. Stefanou’s lawyer asked if Ms. Stefanou and her sisters could go to the Greek property during their vacation. Mr. Stefanou’s lawyer replied that Ms. Stefanou and her sisters were not welcome there.

[112] In a letter from her lawyer in February 2005, there is a reference to the jurisdiction of Ontario courts to deal with “claims of spouses that have been economically disadvantaged and abused as a result of their marriage”. It is unclear what is meant by the term “abused”. There is also a reference to Mr. Stefanou’s alleged abusive behaviour and difficulty in controlling his anger in a letter from Ms. Stefanou’s lawyer to the Chief Firearms Officer of Ontario in response to a “Notice to a Conjugal Partner”. This notice was sent to Ms. Stefanou when Mr. Stefanou applied to renew his firearms licence.

[113] The evidence with respect to the nature of the parties’ relationship and, in particular, whether it was abusive was confusing and inconsistent. I cannot conclude on the basis of the evidence before me that Ms. Stefanou would be at risk of harm if she were to return to Greece for a trial.

Ms. Stefanou’s Refusal to Go to Greece

[114] Ms. Stefanou testified that she refuses to go to Greece if it is determined that Greece is the more appropriate forum. However, a letter from her lawyer in April 2007 refers to the possibility of starting an action in Greece in the event that an Ontario court determines that it does not have jurisdiction.

[115] Substantial weight should not, in my opinion, be given to a party’s stated refusal to go to another jurisdiction to litigate. Such a statement is self-serving in the absence of evidence to substantiate such a refusal. Ms. Stefanou has not presented convincing evidence as to why she cannot go to Greece for a trial, although it is understandable that she would prefer to pursue her claim in Toronto.

Balancing of Factors

[116] The various factors must be weighed in order to determine the more appropriate jurisdiction. The burden of proof is on Ms. Stefanou because Mr. Stefanou was served out of the jurisdiction.

[117] The main factors in favour of this matter proceeding in Ontario are as follows. It would be more difficult for Ms. Stefanou to attend a trial in Greece than it would be for Mr. Stefanou to attend a trial in Ontario. The majority of the parties’ joint accounts and investments are in North America. Proof of purchases made in Toronto for the home in Greece would be in Ontario. Mr. Stefanou’s brother-in-law, who lives in Toronto, may be a witness with respect to the purported loan.

[118] The main factors in favour of this matter proceeding in Greece are as follows. Evidence with respect to the Greek properties is in Greece. If Ms. Stefanou pursues her claim for a contribution based on her labour, that evidence would also be in Greece. Evidence on the value of the boat would be in Greece or, nearby, in Turkey. Greek law applies to the property claims. Experts on Greek law would be required in an Ontario court. If Ms. Stefanou can only pursue her spousal support claim in Greece, there is the potential for multiple proceedings if the property claim proceeds in Ontario.

[119] On weighing these factors, it is my opinion that the balance tips in favour of this matter proceeding in Greece. In coming to this conclusion, I do not want to minimize Ms. Stefanou’s sincerity in not wanting this matter to proceed in Greece. I accept that it may be difficult for her. However, a determination of the value of the Greek properties and Ms. Stefanou’s contribution to them is a more complicated issue from an evidentiary standpoint than is the other major issue in dispute, that is, whether there was a loan to Mr. Stefanou’s brother-in-law. Added to this is the fact that an Ontario court would have to apply Greek law in order to determine Ms. Stefanou’s interest in these properties. Finally, the jurisdiction of the Greek court to deal with both property and spousal support claims is clear.

Conclusion

[120] Ms. Stefanou has not established that Ontario is the appropriate forum. On weighing the various factors, I conclude that Greece is the more appropriate forum. It is therefore ordered that Ms. Stefanou’s application in Ontario be stayed, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43.

[121] In order to preserve the parties’ respective rights pending trial, it is further ordered that neither party will have access to any of the accounts listed in Schedule 1 to the order of Justice Ferrier, dated April 12, 2005, and to any other North American accounts in which the parties have an interest, until and unless the parties agree otherwise or until further order of a court of competent jurisdiction.

[165] Herman J.’s decision was appealed to the Ontario Court of Appeal and heard approximately one year later. The result in Stefanou v. Stefanou 2009 ONCA 204 is interesting, in that the Court of Appeal set aside Herman J.’s decision, but only on the basis of fresh evidence presented to that court. The Ontario Court of Appeal concluded that the case should be heard in Ontario, although Greek law would be applied.

MacPherson J.A.:

A. INTRODUCTION

[1] The appellant, Setsuko Stefanou (the “wife”), appeals from the judgment of Herman J. dated February 13, 2008 on the trial of an issue, namely, whether Greece or Ontario was the more appropriate forum for the adjudication of the wife’s claims for equalization of net family property and spousal support in matrimonial proceedings. The trial judge held that Ontario was a forum non conveniens for the proceedings and, accordingly, that the appropriate forum was Greece, where the parties had habitually resided from 1993 to the date of their separation in 2004.

[2] The main issue on the appeal is whether the fresh evidence – the application filed by George Stefanou (the “husband”) in matrimonial proceedings he initiated in Greece after the trial decision in Ontario – should be admitted and, further, whether it should serve as a basis for allowing the appeal to set aside the trial judge’s decision in favour of an order that the matrimonial proceedings continue in Ontario.

[3] At the conclusion of the appeal hearing, this court allowed the appeal on the basis of the fresh evidence only, with reasons to follow. These are the reasons.

[166] The Court of Appeal found no error on the part of the trial judge, but found in favour of allowing the fresh evidence:

... Simply put, the wife’s submission is that if the trial judge had known then what this court can see now, her decision on the forum non conveniens issue would invariably have been different.

[21] I agree. The difference between the husband’s position about the marriage and property issues before the trial judge in Ontario in December 2007 and his position about those same issues in his April 2008 application in the Greek court is, in my view, quantitatively significant and, quite frankly, qualitatively shocking.

[167] The Court of Appeal concluded at para.26 that: “The trial judge expressly recognized that her decision on the forum non conveniens issue was a close one and stated near the end of her reasons that “the balance tips in favour of this matter proceeding in Greece.” The court went on to state:

[27] In her application of the forum non conveniens factors, the trial judge singled out the need to value the Greek properties (favouring Greece as the appropriate forum) and the loan to the husband’s brother-in-law (favouring Ontario). She chose to emphasize the former, in part because it was agreed that Greek law would have to be applied to determine the wife’s interest in the Greek properties.

[28] The fresh evidence tendered does not change the requirement that Greek law govern the determination of the property issues in this litigation. However, it has radically changed the parameters of the property issues. Although the Greek home and land are still in play, with an estimated combined value in the hundreds of thousands of dollars, in light of the husband’s pleadings in the Greek court the more significant property issue is now the roughly $2,000,000 in various North American bank and investment accounts. There can be no question that, in addition to the quantum involved, a need will invariably arise, if the parties continue to disagree about who had responsibility for retaining their investment advisor and for overseeing their financial affairs, to hear evidence from bank officials, accountants, tax advisers and officials, and perhaps other experts, to determine this issue. Because the money is located in Canadian financial institutions, nearly all of the evidence will likely come from witnesses in Canada.

[29] In my view, in these new circumstances, the balance tips heavily in favour of Ontario as the appropriate forum for resolving the parties’ property issues. Moreover, in my view, the new state of affairs is so different from that which was before the trial judge, that it is appropriate for this court to dispose of the matter on the basis of the record before us, rather than order a new trial of the issue: see R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480, at p. 492. Accordingly, I would conclude that Ontario is the appropriate forum for dealing with the property issues in this matrimonial litigation.

[168] The Court of Appeal concluded that issues changed as a result of the Husband’s new position.

[169] In the current case, I appear to be missing a clear understanding of the property rights of the parties according to Nigerian Law and the spousal support differences, whether they are legally married or not.

[170] When deciding the financial claims of spouses (married or not), the first issue to be decided is property, because the result of the property issues may have a significant impact on support claims. If the wife here realizes a large property claim it might eliminate, or minimize her spousal support claims.

[171] While I find that prima facie, and on a balance of probabilities, that the wife separated from her husband on the date she claims, and was ordinarily resident in Ontario for the requisite period, the court needs better evidence on the Nigerian family law to consider the issue of forums non conveniens.

[172] The parties apparently applied for permanent resident status in Canada as married spouses, and now the husband suggests otherwise.

[173] The parties have significant assets in Canada and the United Kingdom, and while the court may conclude that Nigerian law may apply, I find that knowing the range of outcomes and enforcement under that law will be a factor.

[174] On the face of the husband’s claims, he appears to be attempting to deny any rights to the wife.

[175] The Nigerian courts appeared to have moved quickly, knowing that the wife had already commenced an application in Ontario. As I understand it, the court proceeded expeditiously to trial and to hear evidence knowing that the wife was attempting to establish jurisdiction in this court.

[176] While the wife chose to challenge the court in Nigeria on the basis of multiplicity proceedings, I was advised she could not challenge the court’s jurisdiction without attorning to its jurisdiction. I do not know if that is correct.

[177] The wife submitted that “proceeding in Nigeria would be oppressive and vexatious for the applicant”, but as Justice Herman pointed out in Stefanou at para.105:

In order to successfully argue that one would not receive fair treatment from a foreign justice system, a party must present evidence that supports this position (Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), BCCA 243 at para. 52; appeal dismissed [2001] 1 S.C.R. iv). While Ms. Stefanou may perceive that she would be unfairly treated by a court in Greece, perception alone is not sufficient in determining the more appropriate jurisdiction.

[178] In summary therefore:

1. On the evidence provided to date, I am satisfied that the wife has established the residency requirement of the Divorce Act.

2. On the evidence as presented, there are certain credibility issues that require a trial. Specifically, the court must deal with determine the appropriate forum. This requires more knowledge about the Nigerian Court process and the parties’ rights as between Ontario and Nigeria relating to property, spousal support, validity of marriage and divorce, any differential treatment of married an unmarried spouse. Also need is a better understanding of the parties’ holdings since 2009 in Canada, the United Kingdom, Nigeria and elsewhere.

3. The court also requires a list of potential fact and expert witnesses and the nature of their evidence, as well as the Westec, supra, factors and expert evidence relating to the family justice system in Nigeria.

[179] The husband will be permitted to give and present evidence without having his participation considered a factor in attorning to the jurisdiction of this court.

[180] Costs reserved to the hearing of the trial of an issue.

Czutrin J.

Released: April 17, 2012