ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4281/11
DATE: 2013-01-23
BETWEEN:
Anna Gavriluke
Applicant/Responding Party
– and –
Francois Mainard
Respondent/Moving Party
Brigitta Tseitlin, for the Applicant/Responding Party
Gene C. Colman, for the Respondent/Moving Party
HEARD: January 14, 2013
THE HONOURABLE JUSTICE J. R. HENDERSON
ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL
[1] The respondent, Francois Mainard, brings this motion for leave to appeal the decision of Justice J. W. Scott (“the Motions Judge”) dated December 5, 2012 whereby the Motions Judge dismissed the respondent’s motion to strike those portions of the application that deal with the issue of child support.
[2] The respondent had submitted that the Ontario courts did not have jurisdiction to deal with child support as there was an existing final order for child support that had been made by a court in France. The Motions Judge determined that the Ontario courts have jurisdiction over child support in these circumstances; determined that Ontario was the most appropriate forum; and dismissed the respondent’s motion.
BACKGROUND FACTS
[3] The Motions Judge, in her written reasons, provided a thorough analysis of the background facts. I note that the applicant is a Canadian citizen; that the respondent is a French citizen; and that the two children are U.S. citizens, having been born while the parties resided together in the U.S.A.
[4] The respondent, the applicant, and the children all moved to France in 2008, but the applicant and respondent separated in August 2009. On July 16, 2010 the Superior Court at Paris, France, made a final order that provided among other things that the parties would exercise joint parental authority over the children; that the children would reside with the applicant in Canada; and that the respondent would pay child support of €600 per month.
[5] In a decision dated August 20, 2010, the French Court of Appeal upheld the Superior Court decision with the exception that the Court of Appeal increased the quantum of child support to €1,000 per month. That order remains in effect.
[6] On August 27, 2010, the applicant and the children moved to Niagara Falls, Ontario, where they continue to reside. After some procedural difficulties regarding the applicant’s initial motion, a judge of the Superior Court of Justice in Ontario gave the applicant permission to start an originating application in Ontario. The applicant then brought her current application in which she requests a change in custody and access, child support in accordance with the Child Support Guidelines, and payment of s. 7 expenses.
[7] Thereafter, the French Superior Court declined to hear the respondent’s motion to vary the French custody and access order because of the outstanding application in Ontario. As a result, the respondent agrees that the portions of the current application that relate to custody and access can be heard in Ontario. However, the respondent takes the position that the Ontario courts do not have jurisdiction to deal with child support (including s. 7 expenses) in light of the fact that there is an existing final order for child support in France.
[8] In detailed reasons, the Motions Judge determined that the Ontario courts have jurisdiction to deal with child support even though there is an existing order in France. Having made that determination, the Motions Judge found that Ontario was the most appropriate forum in which to decide all of the issues, including child support. Accordingly, the respondent’s motion to strike out parts of the application was dismissed.
THE LAW
[9] The respondent relies upon the grounds set out in Rule 62.02(4)(a) and (b). The Rule is reproduced here:
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
ANALYSIS
[10] Although the current application is an originating process, the respondent submits that the application is in effect an attempt by the applicant to vary the existing French order, and that the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”) does not permit an Ontario court to vary a foreign order. Furthermore, France is not a reciprocating state with Ontario under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13 (“ISOA”), and therefore the ISOA legislation is not applicable to this case.
[11] I accept that if the Ontario courts have jurisdiction to deal with the child support aspects of the current application, then the decision of the Motions Judge that Ontario is the most appropriate forum in which to decide these issues should not proceed to an appeal. Therefore, my decision on this motion for leave to appeal turns solely on the jurisdiction question.
[12] There are three significant decisions that are relevant to the jurisdiction question, namely the Ontario Court of Appeal decision 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 case of Sun v. Guilfoile (2011) 2011 ONSC 1685, 105 O.R. (3d) 439, 96 R.F.L. (6th) 397, [2011] O.J. No. 1168 and the case of Kaur v. Guraya (2011) 2011 ONSC 2853, 4 R.F.L. (7th) 346, [2011] O.J. No. 2133. All three of these cases were thoroughly analysed by the Motions Judge in her reasons.
[13] In the Jasen decision, the father lived in New York and the mother and child lived in Ontario. They entered into a domestic agreement regarding custody, access, and child support. Then, the mother brought an application in Ontario to register the domestic agreement pursuant to s. 35 of the FLA, and to vary it pursuant to s. 37 of the FLA.
[14] On appeal, the Ontario Court of Appeal (“OCA”) determined that in consideration of the factors set out in Muscutt v. Courcelles (2002) 2002 44957 (ON CA), 60 O.R. (3d) 20 (OCA), the Ontario courts had jurisdiction over the respondent. Then, the OCA went on to determine that the Ontario courts also had jurisdiction over the subject matter in that particular case. In my view, the Jasen decision only stands for the proposition that the courts have jurisdiction under the FLA to permit a resident applicant to register a domestic agreement to which a foreign resident is a party. Therefore, the Jasen decision does not assist either party on the jurisdiction question in the present case.
[15] In the Sun decision, both the father and mother were U.S. citizens who resided and worked in Japan. They had two children together while they resided in Japan. After they separated, the Japanese courts made a final order for divorce, custody, access, and child support.
[16] Thereafter, the mother and children moved to Hong Kong, and the father was seconded for employment to Toronto, Ontario. At that point, the mother commenced an originating application in Ontario under s. 33 of the FLA for child support in accordance with the Child Support Guidelines.
[17] In Sun, Justice Goodman determined that there was no jurisdiction for the Ontario courts to hear an application for child support where there was an existing order for child support in a foreign jurisdiction. That is, there was no jurisdiction over the subject matter of the Sun application. As a result, Justice Goodman granted the father’s request for a stay of the application.
[18] At para. 48 of the Sun decision, Justice Goodman described the mischief that would occur if a person were permitted to engage in forum shopping, as follows:
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.
[19] At para 55, Justice Goodman summarized the law as follows:
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.
[20] In the Kaur decision, which was released only a few months after Sun, Justice R.D. Gordon dealt with a situation in which the parties were divorced in Louisiana and then obtained an order in the Superior Court in Washington with respect to custody, access, and mobility. The Washington court subsequently made an order that required the father to maintain certain benefits for the children. The mother and the children moved to Ontario, and thereafter the mother brought an application in Ontario for custody, access, and child support.
[21] Because the children were habitually resident in Ontario, in consideration of the provisions of s. 42 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, Justice Gordon accepted that the Ontario courts had jurisdiction to deal with the custody and access issues. Further, given that the Ontario courts had jurisdiction over custody and access, Justice Gordon determined that the child support issue arose anew, and therefore the Ontario courts had jurisdiction over child support as well.
[22] At para. 22 of the Kaur decision Justice Gordon 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.
[23] Of significance, Justice Gordon considered the Sun decision and recognized that his decision in Kaur may be in conflict with the decision in Sun. At para. 20 of Kaur, after referring to the abovementioned statement made by Justice Goodman at para. 55 in Sun, Justice Gordon wrote:
This statement does reflect the findings of most of the courts which have considered the matter. However, in most such cases there was no concurrent claim to supersede an existing custody order based on material change in circumstances.
[24] In the present case, the Motions Judge recognized that neither the circumstances in Sun nor the circumstances in Kaur were identical to the present case. Therefore, the Motions Judge considered the legal analysis in both cases, and ultimately followed the decision of Justice Gordon in Kaur. Thus, at para. 33 of her reasons the Motions Judge concluded that the Ontario courts do have jurisdiction to deal with an application for child support under s. 33 of the FLA even though there is an existing order for child support in a foreign jurisdiction.
[25] The Motions Judge may or may not be correct to follow the Kaur decision. However, there is no previous decision that considers the same set of circumstances as are present in this case. Further, on the jurisdiction issue the decisions in Kaur and Sun would seem to be in conflict with one another, as was apparently recognized by Justice Gordon in Kaur. Because the Motions Judge in the present case followed Kaur, I find that the decision of the Motions Judge is in conflict with the decision in Sun.
[26] For this reason, I am satisfied that the respondent has shown that the first branch of Rule 62.02(4)(a) applies. As to the second branch, given the unsettled state of the law, in my opinion it is desirable that leave to appeal be granted.
CONCLUSION
[27] For the above mentioned reasons, I find that there is a conflicting decision by another judge or court in Ontario, and it is desirable that leave to appeal be granted. Rule 62.02(4)(a) applies. Leave to appeal is hereby granted.
[28] If either party wishes to make submissions with respect to costs, that party may do so in writing to the trial co-ordinator at Welland within 20 days of the date of this decision.
Henderson, J.
Released: January 23, 2013
COURT FILE NO.: 4281/11
DATE: 2013-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Gavriluke
Applicant/Responding Party
– and –
Francois Mainard
Respondent/Moving Party
D E C I S I O N
Henderson, J.
Released: January 23, 2013