(WELLAND) COURT FILE NO.: 4281/12
DATE: 2012-12-05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Gavriluke, Applicant
AND:
Francois Mainard, Respondent
BEFORE: The Honourable Justice J. W. Scott
COUNSEL: Alexandra Abramian, Counsel, for the Applicant
Gene C. Colman Counsel, for the Respondent
ENDORSEMENT
[1] The sole issue for determination on this motion is whether the Ontario Superior Court of Justice has jurisdiction in a claim for child support where there is an order in the Superior Court of Paris in existence and being followed.
[2] The motion is permitted to proceed prior to a case conference pursuant to Family Law Rule 14(4.2) as the Court is of the view that in the interest of justice early identification of what issues are properly before the court is necessary.
BACKGROUND
[3] The parties are Anna Gavriluke, the applicant, who is a Canadian citizen residing in Niagara Falls, Ontario, and Francois Mainard, the respondent, a French citizen who lives in France. They are not married. There are two children of the relationship, Alexandre Mainard (born August 26, 2005) and Victoria Mainard (born February 15, 2007). Both children were born in Philadelphia, Pennsylvania, United States of America.
[4] The parties met in 2004 in New York. At the time, the respondent was working in the United States and the applicant was doing her medical internship in Philadelphia. Alexandre was born in 2005 and, as noted on the French court documents, resided primarily with the applicant while the parties were in the United States. Specifically, during the week the child was with the applicant, and on weekends and holidays the child was with both parties. When Victoria was born, the applicant was on maternity leave and both children lived with both parties.
[5] As a result of his employment, in 2008 the respondent was required to return to France. In August 2008, the applicant and children joined him, initially in Vannes where they resided with the respondent’s parents and then moving as a family into a home in Paris. In August of 2009, the parties separated.
[6] By 2010 the parties were in court and on July 16, 2010, the Superior Court in Paris ruled that the parties would “jointly exercise parental authority over the children”. The order also provided that the habitual residence of the children would be with the applicant in Canada and set out terms of access that took into account the fact that the respondent would be in France and the children in Canada. The amount of monthly child support was set in the amount of €300 per child and was indexed, with adjustment to be made on July 1st of each year commencing in 2011. Provision for mediation on a number of issues was ordered and this included support.
[7] The decision of July 16, 2010, was appealed by the respondent on all issues. The applicant, on the appeal, requested monthly support for the children be increased to €500 for each child. On August 20, 2010, the Appeal Court upheld the original decision, save and except the monthly child support term which they did modify in accordance with the applicant’s request. Indexation continued.
[8] Around August 27, 2010, the applicant and children left for Canada and settled in Niagara Falls, Ontario, where they continue to reside. Since April of 2011 the applicant has been employed at Millard Fillmore Suburban Hospital in New York State. The children attend school in Ontario and, as well, are involved in extracurricular activities in this jurisdiction.
[9] In January of 2012, the applicant filed a motion to change the custody, access and child support provisions of the French order. The respondent was served with these documents on February 19, 2012, being the last day of an access visit he was having with his children in Ontario.
[10] In response to this motion, the respondent took two separate steps. In March of 2011, he served a 14B motion on counsel for the applicant that asked, amongst other things, that the Motion to Change be dismissed on the basis that an Ontario Court does not have jurisdiction to vary a French order. On May 1, 2012, a regular form 14 motion was filed by the respondent with the same request but set out a return date for argument. On June 4, 2012, the applicant served counsel for the respondent a form 14 motion as well, requesting that she be permitted to serve and file an application in this proceeding (in place of the motion to change). The proposed application attached to that motion requested sole custody, child support, including support on account of s. 7 expenses, and an access order to address contact between the respondent and the children. Justice B. Matheson heard the motions on June 12, 2012. He endorsed “The notice of motion of Resp. and the Applicants two motions are struck.” He also endorsed that the applicant could file the application “that was contemplated in her second notice of motion” and that the court clerk was to accept that application. (In fairness, the applicant had initially attempted to bring these issues before the court by way of application, but the court office had rejected the documents requiring instead that a motion to change be filed.)
[11] The second thing that the respondent did in April of 2012, in response to being served with the applicant’s motion to change, was to commence proceedings in France asking that the custody and access issues be readdressed with a view to having the principal residence of the children with him and setting out an access regime for the applicant. On July 18, 2012, following the June 12, 2012 ruling of Matheson, J., the court in France declined to accept jurisdiction noting that the issues were currently before the Ontario Court.
[12] On August 20, 2012, the respondent filed this current motion with the court requesting that those parts of the application relating to support be struck. His position is based on the fact that there is an existing French order in good standing and that the request is nothing more than “a disguise variance application”. He points out that the respondent lives in France and has no assets in Ontario.
LEGAL CONSIDERATIONS
[13] France is not a reciprocating state with Ontario under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, and as such no jurisdiction is conferred under that legislation that would assist in the case at hand. Consequently, the court must determine if it has jurisdiction on the issue of child support and, even if it does, whether it should accept jurisdiction in the face of the foreign order that addresses this issue.
[14] In Jasen v. Karassik (2009) 2009 ONCA 245, 62 R.F.L. (6th) 63, 95 O.R. (3d) 430, [2009] O.J. No. 1175, the out-of-province respondent father raised the issue of jurisdiction on the appeal. The matter originally had come before the court as a motion to change a New York State agreement that was registered in Ontario pursuant to s. 35 of the Family Law Act, R.S.O. 1990, c. F.3. When the father was unsuccessful in the trial court, he raised the issue of jurisdiction on the appeal before the Superior Court of Justice and the Ontario Court of Appeal. He was successful in his argument at the Superior Court level; however, the matter then proceeded to the Court of Appeal. Part of this case revolved around the issue of whether the Interjurisdictional Support Orders Act was all encompassing or whether a party could simply bring a fresh support proceeding under the Family Law Act. At para. 56 of that decision the Court of Appeal stated:
…. In my view, a resident of Ontario may bring an application for support or variation of a support agreement under either the FLA or the ISOA. Applicants who choose to bring a support proceeding under the FLA against a non-resident father are required to effect service ex juris and to show that Ontario has a real and substantial connection to the subject matter of the application.
[15] At para. 16 of that same decision, the court noted:
Jurisdiction may be asserted against an out-of-province father in three circumstances: the father is physically present in Ontario; the father consents, agrees or attorns to the jurisdiction; or Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected: Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 (Ont. C.A.), at paras. 19-20.
[16] Although in this proceeding Mr. Mainard was served in Ontario, the reality is that ordinarily he is not physically present in Ontario. While ordinary residence is not necessarily a prerequisite in concluding that jurisdiction may be asserted, it seems to me that simply serving someone who is here to visit his children is not enough to conclude that physical presence in Ontario exists sufficient for the court to accept jurisdiction on the basis of presence-based jurisdiction. Mr. Mainard, undoubtedly swayed by the recent position of the court in France, has accepted the jurisdiction of the Ontario Superior Court to deal with custody and access but resists having the support issue determined here. Put another way, he has not attorned nor consented to Ontario having jurisdiction on the support issue.
[17] Consequently, if jurisdiction is to be asserted here over the respondent, the court must decide whether there is a real and substantial connection between the matter being litigated and Ontario. To answer that question this Court must consider those factors set out in Muscutt v. Courcelles, supra. At para. 18 in Jasen v. Karassik, supra, the court listed the factors from Muscutt relevant to the real and substantial connection inquiry:
- The connection between the forum and the plaintiff’s claim;
- The connection between the forum and the defendant;
- Unfairness to the defendant in assuming jurisdiction;
- Unfairness to the plaintiff in not assuming jurisdiction;
- The involvement of other parties to the suit;
- The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
- Whether the case is interprovincial or international in nature;
- Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
[18] The claim for support for these children now resident in Ontario clearly is connected to Ontario. While there is no connection between Ontario and the respondent solely from his perspective, I would conclude that to address support in Ontario where other child-related issues are also before the court would not be unfair, particularly when he will be participating in that process on the custody and access issues in any event. Counsel for the respondent argues that there is an unfairness to the respondent in that the Canadian support tables will likely result in a higher award of child support required to be paid by him. When considering unfairness to a litigant where children and their well-being are the issue, any unfairness must be looked at in that context. Paying a higher amount of child support, on its own, will not result in the court concluding unfairness.
[19] The material suggests that the applicant is permanently resident here with the children and has been since August 2010. From the applicant’s standpoint there is a certain fairness in permitting the claim to proceed here rather than severing this issue out of the current application and compelling her to return to France to initiate a separate new proceeding. I would agree with Justice Gordon’s comments, however, in Kaur v. Guraya (2011) 2011 ONSC 2853, 4 R.F.L. (7th) 346, [2011] O.J. No. 2133 that for fairness to be achieved any support order also would need to reflect that it is premised on no support being enforced pursuant to the provisions of the French order and/or the French order being withdrawn. These are terms that easily could be attached to an order. We do know that France has declined jurisdiction on custody and access on the basis that there is already this claim in Ontario.
[20] There are no other parties to this litigation and consequently that consideration is not a factor in this case.
[21] These children are now residents of Ontario and have been since August of 2010. The material suggests that will continue to be the case. Although the respondent is from France, as France has declined jurisdiction on the basis of the ongoing litigation here, it appears that the children’s future interests as they pertain to custody and access will be governed by the laws of Ontario. In that scenario, it appears that France is open to accepting and recognizing orders from other jurisdictions, even where the result potentially might differ from the orders originally made by their courts. There is nothing to suggest that they would not recognize support orders in the same way, even where there might not be reciprocal enforcement measures in place.
[22] On the basis of the facts identified in the preceding paragraphs, I would find that the Muscutt factors have been met sufficiently for this Court to conclude that there is a real and substantial connection between the subject to be litigated and Ontario so as to assert jurisdiction over the respondent.
[23] Even though Ontario has jurisdiction over the respondent, the next question is whether we have jurisdiction over the issue of child support.
[24] Counsel for the respondent directed the court’s attention to Sun v. Guilfoile (2011) 2011 ONSC 1685, 105 O.R. (3d) 439, 96 R.F.L. (6th) 397, [2011] O.J. No. 1168. In that case, both parties were American citizens, although the respondent father had been born and educated in Japan. They were the married parents of two children born in Japan but who held American citizenship. In May of 2008, the Tokyo Family Court granted a divorce and made orders dealing with custody, access and child support. The mother, who had been awarded “parental authority”, remarried and moved from Japan to Hong Kong with the children. As a result of his employment, the father was on a work secondment in Ontario at the time of the litigation. He was working for an American company and was paid in U.S. dollars. While the length of time he would remain in Ontario was unclear, there was no doubt the secondment was temporary in nature and in fact, since the separation, the father had already had a secondment in Ecuador.
[25] The mother, in 2010, applied for child support in Ontario where the father was working and the father defended on the basis he was only temporarily in Ontario. He suggested that the proper jurisdiction should be either Japan, where the original order had been made, or in Hong Kong, where the mother was residing with the children.
[26] In deciding that Ontario was not the proper place to address child support, Goodman, J., at para. 48, wrote:
…. To permit a party to obtain an order from a court of one jurisdiction and, if unsatisfied or when no longer satisfied with it, then simply obtain a “fresh” order in another jurisdiction with which he or she has a connection (which is what Ms. Sun actually said that she would do as soon as she left Japan) would be contrary to public policy. If in every situation in which one spouse or parent moved from one jurisdiction to another for work purposes, the recipient spouse could simply ignore the original support order and simply apply for relief in any location in which the other party was working and the support laws were perceived to be more favourable, the incidence of “forum shopping” would undoubtedly rise.
[27] Further at para. 55, the Court stated:
Where a valid and subsisting foreign court order provides for support, there is no jurisdiction in Ontario to proceed with an originating application for support under section 33. Such an application is nothing more than a disguised variation application. Ontario does not have the jurisdiction to either vary or supercede the Japanese order.
[28] This Court has also been referred to Kaur v. Guraya, supra. In this case the parties divorced in the state of Louisiana in the United States of America. It was the Superior Court of Washington, however, that addressed where the children primarily would reside. Reflected in the order was the possibility that the children would be moving to Canada with their mother. While no specific child support was awarded, the order directed that the respondent father would be responsible for the cost of visiting whether the children resided in the United States or Canada. In 2006 the mother and children did move to Ontario. In 2010 the father returned the issue of access to the court in Louisiana, but that court declined jurisdiction. Following that, the mother filed an application with the court in Ontario seeking to deal with custody, terms of access and child support. The father disputed jurisdiction.
[29] After deciding that there was a real and substantial connection between the subject matter of the litigation and Ontario, Gordon, J. determined that Ontario was the most convenient forum to have the issues addressed. He distinguished Sun v. Guilfoile on the basis that in addition to the request to have support addressed, custody and terms of access were also before the court. At para. 22 he wrote:
I accept that the court generally should not entertain a support application in Ontario when there is already an order in a foreign jurisdiction which deals with the issue. The situation whereby a parent who is unhappy with a child support order in one jurisdiction can relocate to another jurisdiction and have the matter re-litigated is to be avoided, as is a regime which would allow a payee to seek a new order for support in each jurisdiction to which a payor relocates. But where an Applicant legitimately brings an application for custody of children who are habitually resident in Ontario and satisfies the court that a foreign order dealing with custody and access should be superseded, surely the issue of support for those children arises anew. In such circumstances the foreign custody order upon which child support was previously considered no longer reflects the circumstances of the children or the parents. The children’s needs ought to be determined having regard to the new order and the provisions of the new custody regime.
[30] Justice Gordon, at para. 27 in this decision, also sets out a potential road map for courts to consider when deciding whether to deal with child support when there already exists a foreign order addressing that issue. In permitting the request for child support to proceed, Justice Gordon is clear that to be successful, there must be a change in the custody/access terms set out in the foreign order and the recipient must undertake to withdraw enforcement of the foreign order.
[31] Neither Sun v. Guilfoile, nor Kaur v. Guraya are exactly on point with the facts in this case. In the former case the mother and children were not in Ontario; nor was any issue concerning custody or access raised here. Neither did the father have any significant attachment to Ontario in that he was in Ontario temporarily, working for an American company and being paid in U.S. dollars into a U.S. account. In reality there was no meaningful connection by anyone with Ontario. In Kaur v. Guraya, the mother and children moved to Ontario in 2006. No litigation occurred until 2010 when the father attempted to return the issues of custody and access to the court in Louisiana who declined jurisdiction. Following that, the mother applied to address all issues, including child support in Ontario. There had been no specific periodic support ordered by any court before, only the general provision concerning travel costs. With the mother being Canadian and having lived here with the children for a number of years prior to the application in Ontario, it is clear that there was a connection to Ontario and the application was not simply a forum shopping expedition.
[32] I accept the sentiments expressed by both Justice Goodman and Justice Gordon in the above decisions, that courts generally should not accept support applications in Ontario when there is a valid foreign order dealing with the issue. I also agree with Justice Gordon that in those situations where there is a proceeding before the court in Ontario that deals with custody and access and that proceeding is able to proceed in this jurisdiction because of s. 42 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, it is appropriate to accept jurisdiction over the issue of child support as well, recognizing that the outcome of the changed order could well impact on the support issue. One obvious example is if custody or residency were transferred.
[33] In this current application, the applicant has requested changes in the custody/access order. Those requests were made by her even in the original motion to change that was filed. Noting that the respondent too attempted to raise these issues again in France, there is an obvious desire on the part of each party to re-open that aspect of the current regime for further consideration. While there might be a general concern that an applicant would simply include custody and access claims even where no change was really being sought in an effort to bring the support issue before the court in Ontario, with both parties in this matter requesting changes, that does not appear to be the situation in the case at hand. Consequently, following the analysis of Justice Gordon, I would find that this Court does have jurisdiction over the subject matter, specifically child support, under s. 33 of the Family Law Act.
[34] Having determined that the Court does have jurisdiction over the respondent and over the subject matter, the remaining aspect for the Court to rule on is whether Ontario is the appropriate forum for addressing child support or should this Court decline jurisdiction on the basis that the issue of child support should be left with the courts in France?
[35] At para. 41 in the Muscutt case, a non-exhaustive list of factors is set out for determining the appropriate forum:
- 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.
[36] The Court of Appeal, at para. 69, in Jasen v. Karassik, supra, expressed the general view that having proceedings for custody and access issues separate from the support issues would be unfortunate and would be contrary to the principle of avoiding a multiplicity of proceedings.
[37] In the current matter, in considering forum, the most significant factor is avoidance of multiplicity of proceedings and, to that, I would also add delay. If the issue of child support were not to be included in the current proceeding, another action would be necessitated and if that were unable to occur before the determination of the custody and access issues, there would be obvious delay.
[38] With respect to whether Ontario is the appropriate forum for determining child support, I would find in the affirmative.
CONCLUSION
[39] For the foregoing reasons the respondent’s motion to strike those parts of the Application issued on 12 July 2012 that relate to child support be struck, is dismissed.
Scott, J.
Date: December 5, 2012.
(WELLAND) COURT FILE NO.: 4281/12
DATE: 2012-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Gavriluke
Applicant
- and –
Francois Mainard
Respondent
ENDORSEMENT
Scott, J.
Released: December 5, 2012