COURT FILE NO.: FS – 13 - 00018737
DATE: 20130909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Adema Sangale
Applicant
– and –
Mohamed Abdalla
Respondent
Phyllis Brodkin, counsel for the Applicant
Karon C. Bales, counsel for the Respondent
HEARD: August 27, 2013
kiteley j.
[1] This is a motion by the Respondent to dismiss the Application pursuant to Family Law Rule 16(12)(c)(iii) or (iv); or alternatively to stay it pursuant to s. 106 of the Courts of Justice Act.
Background
[2] In March 2009, the parties married in Johannesburg, South Africa. Their daughter Lola was born in March 2010 in South Africa. The Applicant has a daughter from a previous marriage (Kale) who was born in July 2004. In February 2011, the parties signed a post-nuptial agreement that dealt with property only.
[3] The parties lived in Kenya where the Respondent held the position as Critical Care Director at the Aga Khan University Hospital. The evidence indicates many differences between the Applicant and the Respondent as to the events that occurred from the end of November 2011. I do not need to resolve those differences for purposes of dealing with this motion. Suffice it to say that, commencing in March, 2012, the Respondent began employment as an internal medicine specialist practicing in Tillsonburg, Ontario with privileges at the Tillsonburg Memorial Hospital. He has a visa that allows him to work in that position until November 2014.
[4] The Applicant moved to Toronto in November 2012 and has been employed as a Communications Director with Proctor & Gamble in Toronto.
[5] The children continue to reside in Nairobi with their maternal grandmother. The children have never been in Ontario or elsewhere in Canada.
[6] In her Application, she says that they separated on March 1, 2012 when the Respondent moved to Canada. In his material, the Respondent says that they separated in December 2012, having spent some months exploring reconciliation. I need not resolve that difference.
[7] The following summarizes the litigation history:
DATE
EVENT
October 2, 2012
Wife issued Kenyan Divorce Petition in which she claimed alimony, custody of Lola and maintenance for Lola and Kale. At paragraph 11, she confirmed that the High Court of Kenya had the jurisdiction to hear and determine the issues set out in her Petition.
November 2012
Wife moved to Toronto.
March 11, 2013
Having no knowledge of the Kenyan Divorce Petition, Husband issued Application for Divorce in Ontario.
March 15, 2013
Wife issued Kenyan Children’s Case and immediately brought an ex parte application.
March 19, 2013
In the Kenyan Children’s Case, Wife obtain ex parte custody order of Lola and an interim order restraining Husband from leaving the jurisdiction with Lola.
March 30, 2013
Husband was served with Wife’s Kenyan Divorce Petition.
April 3, 2013
Husband’s lawyer served Ms. Brodkin with Notice of Withdrawal of the Ontario Application for Divorce and advises that Husband will attorn to the jurisdiction of the Kenyan courts for all issues arising from the parties’ separation and will retain counsel in Nairobi to represent him.
May 9, 2013
Husband filed Statement of Defence and Replying Affidavit with respect to the Kenyan Children’s Case.
May 14, 2013
Husband filed Answer to wife’s Kenyan Divorce Petition as well as his Cross-Petition.
June 3, 2013
Wife issued Application in Toronto for child and spousal support as well as interim disbursements and costs.
June 24, 2013
Husband brought proceedings in Nairobi in the Children’s Case for an ex-parte order to set aside the March 19th order.
July 16, 2013
Counsel for Applicant issued a Chamber Summons and Supporting Affidavit that sought to extend the time for delivery of the Applicant’s Reply in the Kenyan Divorce Petition.
July 22, 2013
Husband caused to be issued a notice of motion returnable in Toronto on August 22, 2013 in which he asks for an order that the wife’s Ontario Application be dismissed and other relief.
July 24, 2013
Husband’s notice of motion to dismiss Ontario Application was served.
July 24, 2013
Husband returned to Nairobi. At the airport he was advised that a restriction had been imposed on his passport and, until removed, he could not leave the country.
August 1, 2013
Hearing in Kenyan Children’s Case initiated by Husband to request to set aside the order made March 19 and for access. At request of counsel for Wife, it was adjourned to September 19. Access to Lola once per week in the interim.
August 8, 2013
Wife’s counsel in Kenya submitted Notice of Intention to Withdraw her claims in the Kenyan Divorce Petition for alimony, custody of Lola and maintenance for both children.
August 18, 2013
Husband attempted to leave Kenya. Stop order barring him from travel still in effect.
August 20 or 21, 2013
Husband permitted to leave Kenya. Returned to Ontario.
August 22, 2013
Husband’s motion to dismiss Ontario Application. Counsel for the Wife took the position the motion ought not to be heard without a case conference. That request was denied. Husband’s motion adjourned to August 27, 2013.
August 27, 2013
Husband’s motion to dismiss Ontario Application heard.
September 19, 2013
Hearing in Kenyan Children’s Court of Husband’s motion to set aside ex parte order.
October 17, 2013
Hearing in Divorce Case of Wife’s motion to extend time for delivery of Reply.
Position Taken by Counsel for the Respondent
[8] In her factum, counsel for the respondent summarized the reasons for granting the motion as follows:
(a) There are two other proceedings between the Applicant and Respondent with respect to the same subject matter in Nairobi, Kenya, which were commenced by the Applicant long before she brought the Ontario Application;
(b) The children for whom Ms. Sangale seeks child support do not live with the Applicant. They live in Kenya with the maternal grandmother. Neither child has ever been in Ontario;
(c) The biological father of one of the children for whom the Applicant is seeking child support is resident and domiciled in Kenya; and
(d) The courts in Nairobi, Kenya are best able to deal with the issues set out in the Ontario Application.
Position taken by Counsel for the Applicant
[9] In the factum filed on behalf of the Applicant, the following is a summary of the position taken:
(a) It is settled law that a party can commence an application for child support and spousal support in the municipality where that party resides. The Applicant and the Respondent both live and work in Ontario.
(b) The applicant is claiming child support in these proceedings. There are no parallel proceedings for child support in any other court either in Kenya or Canada.
(c) The Respondent cannot meet the requirement under rule 16(12)(c)(iii) or (iv) and his motion must fail with respect to a summary decision on any issue of law.
(d) In support of his argument pursuant to rule 16(12)(c)(iv), the Respondent is also claiming that Ontario is not the best forum for the motion. This is a triable issue.
Family Law Rules
[10] Rule 5(1) provides that a case shall be started in the municipality where a party resides.
[11] Rule 16 contains the summary judgment procedure in family law. According to rule 16(1) it is available after the respondent has served an Answer. Rule 16(4) provides that the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial and rule 16(6) directs the court to make a final order if there is no genuine issue requiring a trial of a claim or defence. Pursuant to rule 16(8), if the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. Pursuant to rule 16(9), the court may give directions for a trial of an issue.
[12] Rule 16(12) provides as follows:
The court may, on motion,
(a) Decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) Strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) Dismiss or suspend a case because,
(i) The court has no jurisdiction over it,
(ii) A party has no legal capacity to carry on the case,
(iii) There is another case going on between the same parties about the same matter, or
(iv) The case is a waste of time, a nuisance or an abuse of the court process.
[13] Pursuant to rule 16(13), evidence on a motion pursuant to subrule (12) is admissible only if the parties consent or the court gives permission.
Courts of Justice Act
[14] The following sections are relevant:
s. 106 A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
s. 138. As far as possible, multiplicity of legal proceedings shall be avoided.
Analysis
[15] As the chronology indicates, when the motion pursuant to rule 16(12) was served, there was another case going on between the same parties about the same matter. Indeed, there are and have been two cases going on between the same parties. They continue to address the question of divorce and custody and access to Lola. What has changed is that after the Applicant was served with notice of this motion, and during the extension of time she was granted to deliver a Reply in the Divorce Case, she voluntarily gave notice of withdrawal of her claims in the Kenyan Divorce Petition for alimony, custody of Lola and maintenance for both children. In her affidavit sworn August 16, 2013, she explained the withdrawal as follows:
In response to paragraphs 14, 18 and 25 of the affidavit in support of the motion to strike, there is a Notice to Withdraw some prayers in the case that has been filed in the High Court in Kenya, which is Divorce Cause no. 179 of 2012. Attached hereto and marked as Exhibit “G” to this my affidavit is a copy of the Notice of Intention to Withdraw.
The reason why it was necessary to file the aforesaid Notice is because it became apparent that after filing the Application for Support there were some orders sought in the Divorce Petition in the High Court in Kenya that needed to be amended, since the Respondent had already shown his intent to live and work in Canada. It became clear that it made more sense to pursue support in Canada as this is where the payor is living and working.
The Respondent has only made one payment of approximately $1500 (CDN) for [Kale and Lola] during the entire calendar year of 2013. He has always sought to use money, as well as other means as a weapon for financial and emotional abuse towards me to the detriment of both children.
The other reason why the application for support should proceed is because of enforceability of the Order would be much easier than if we obtained the order in Kenya.
[16] The last paragraph about enforceability arises from the fact that Kenya is not a signatory to the Interjurisdictional Support Orders Act (ISOA).
[17] The Applicant has not withdrawn her claim for custody of Lola in the Children’s Case. Indeed there is a hearing scheduled for September 19th to address the application by the Respondent to set aside the ex parte order made in March, 2013. The questions of custody and access remain in the Children’s Case.
[18] Counsel for the Respondent made a written inquiry of the lawyer acting for the Respondent in Nairobi. She noted that counsel for the Applicant had indicated that the Notice of Intention to Withdraw was issued because once the Children’s Case was commenced, all matters relating to the children need to be dealt with in that proceeding. She asked Mr. Tebino to confirm if that was correct. She also asked whether it is possible for the Applicant to amend the relief sought in the Children’s Case to seek maintenance for Lola and Kale. Mr. Tebino’s answer was that all matters in regard to children are heard and determined by the Children’s Court and that any amendments to a party’s pleadings once pleadings have closed, must seek the leave of court.
[19] Counsel for the Applicant took the position that rule 16(12)(c)(iii) was no longer available and therefor the motion launched pursuant to that subrule had to be dismissed. I disagree. At the time the motion was served on July 24th, there clearly was duplication in that the same issues of child support and spousal support were before the courts in Nairobi and in Ontario.
[20] On the evidence, there is a second explanation for the Notice of Withdrawal, namely that the claims for child maintenance had to be withdrawn because the Children’s Court had jurisdiction, not the Divorce Court. If that is the case, then the issue of child maintenance can be raised in that case.
[21] I cannot determine whether the pleadings have been closed in either proceeding although it does appear that on October 17th, the court will decide on the Applicant’s request to extend time to file a Reply, which suggests that pleadings are not closed in the Divorce Case. If pleadings are closed in the Children’s Case (which I cannot determine), I infer that a court would undoubtedly grant leave to introduce claims for child maintenance if such claims can only be made in the Children’s Case.
[22] Having commenced the Kenyan Divorce proceeding in October 2012, it is not open to the Applicant to rely on a Notice of Withdrawal of the very claims that gave rise to the motion after the motion was served and use such a Notice to her advantage in these proceedings.
[23] There are two further relevant points. The first is that immediately upon being served with the Applicant’s Kenyan Divorce Case, the Respondent withdrew his Ontario Application, thereby leaving her to proceed in Kenya unchallenged by the jurisdiction of Ontario. I consider it unfair for the Applicant to take advantage of the absence of challenge to the jurisdiction in Kenya, only to subsequently challenge the jurisdiction of Kenya herself.
[24] The second is that the Kenyan Children’s Court has already made a critical order restraining the Respondent from removing Lola from Kenya. It appears that the immigration authorities were operating under a misapprehension of the implications of the March 19th order in that they prohibited the Respondent from leaving Kenya and consequently his stay was prolonged several weeks beyond his intended departure date until the mistake could be fixed. Even if the Applicant bears no responsibility for those mistakes, the fact is that the Children’s Case that she started in Kenya caused considerable inconvenience to the Respondent.
[25] In Canam Enterprises Inc. v. Coles[1], the majority defined abuse of process as a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy. In dissent, Goudge J.A. observed that the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedures, in a way that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute. As the Supreme Court held in Toronto (City) v. C.U.P.E., rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process.[2]
[26] To allow the Applicant to achieve a tactical advantage by use of a strategy that can only be described as forum shopping to defeat this motion brought by the Respondent is inconsistent with the objectives of public policy against multiple proceedings and undermines the integrity of the adjudicative process and constitutes an abuse of process.
[27] I am satisfied that, pursuant to rule 16(12)(c)(iii) and (iv), counsel for the Respondent has met the burden of proof required in a motion for summary judgment on a question of law and that the application must be dismissed because at the time the motion was served there was another case going on between the same parties about the same matter; and because to allow the Applicant to defeat the motion by relying on a Notice of Withdrawal would be an abuse of process.
[28] That disposes of the motion. However, both counsel made submissions on jurisdiction simpliciter and on forum non conveniens.
[29] I agree with Ms. Brodkin that pursuant to rule 5(1), this court has jurisdiction over the issue of child support even though the children are not in Ontario and over the issue of spousal support.
[30] Ms. Bales accepted that the court has jurisdiction but argued that I should exercise my discretion and not accept that jurisdiction.
[31] I agree with Ms. Bales that this court ought not to exercise jurisdiction for two reasons. The first is that the Applicant seeks child support for both Lola and Kale. There is no question that the Respondent has a legal obligation to support Lola. However, in the Children’s Case he has taken the position that he is not in loco parentis with Kale. Before support can be ordered for Kale, a determination must be made about whether he has that obligation. Kale is in Nairobi. The issue of whether he is in loco parentis must be determined where she resides because that is where witnesses reside. Related to that is the biological father of Kale. Assuming for the moment that the legal context is similar to Ontario, I agree that there is a prospect that Kale’s father will have to be a participant in any legal process involving support for Kale. He is in Kenya as well.
[32] The second reason is that the Child Support Guidelines provide for table amounts of support that are based on child-related expenses incurred in Canada and based on Canadian tax rates and are not necessarily automatically applicable when the children reside elsewhere. Simply because the parents now both reside in Ontario does not mean the Guidelines must apply.
[33] I understand the submission by Ms. Brodkin that if an order is made in Kenya, the Applicant will not have the advantage of the ISOA. That might constitute a juridical advantage associated with Ontario but in itself does not warrant this court taking jurisdiction particularly given the circumstances under which the Applicant withdrew the claims in the Kenyan Divorce Petition.
[34] It stands to reason that if the child support claims must be addressed in Kenya, that the spousal support claims should remain there as well. As indicated above, it is not clear whether an order is required to re-introduce spousal support in the Kenyan Divorce Petition or to introduce child support into the Children’s Case. As was the case in Sun v. Guilfoile 2011 ONSC 1685, I am assuming that the Respondent will consent to whatever amendments are required on both matters.
[35] I need not order a trial of an issue as to whether Ontario is the forum non conveniens for the hearing of the claims for child and spousal support. Given the unique factors at play in this case, I am persuaded that for reasons of justice, necessity and convenience, as well as the requirements of order and fairness, Kenya is clearly the more appropriate jurisdiction for the determination of the child support and spousal support issues than is Ontario.[4]
[36] Towards the conclusion of her submissions, Ms. Brodkin raised an issue about the admissibility of all of the evidence that was before me. As indicated above, rule 16(13) provides that evidence on a motion under subrule (12) is admissible only if the parties consent or the court’s permission. On August 22nd, when I adjourned the motion to August 27th, I gave leave to the Respondent to file a responding affidavit. On August 27th, Ms. Brodkin agreed that I could receive a letter from the Respondent’s Ontario lawyer that included the Notice of Withdrawal of his Ontario Application but she said she had not consented to all the other evidence. I am satisfied that the evidence was before me either by consent of the parties through their counsel or by my order on August 22nd.
[37] Counsel for the Respondent asked that if I dismissed the Ontario Application, that I also make an order that the Applicant be prohibited from bringing any further claims until “such matters are properly dealt with in the Kenyan proceedings including the Divorce Case and the Children’s case”. The evidence indicates that there has been discussion between the parents about the children emigrating to Canada and moving to Ontario. I do not want to make any order that affects that decision. If I make such an order, it might suggest that even if the children leave Kenya, that Kenya retains jurisdiction. It is not necessary that I make such an order and would be inappropriate to do so.
[38] Having said that, based on the record before me, the issue about where the children will live needs to be resolved. I encourage the parties and their counsel to explore how that decision could be made at an early opportunity because so many of the other live issues will be resolved as a result.
[39] Ms. Brodkin made no submissions on the request that the filing of an Answer be waived.
[40] Counsel agreed on the amount of costs, dependent on outcome.
ORDER TO GO AS FOLLOWS:
[41] The Application issued June 3, 2013 bearing court file number FS – 13 – 00018737-0000 is dismissed pursuant to rule 16(12)(c)(iii) and (iv).
[42] The filing of an Answer in accordance with rule 16(1) is waived pursuant to rules 2(2) to 2(4).
[43] The Applicant shall pay costs to the Respondent in the amount of $10000 payable by September 23.
Kiteley J.
Released: September 9, 2013
COURT FILE NO.: FS – 13 - 00018737
DATE: 20130909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Adema Sangale
Applicant
AND
Mohamed Abdalla
Respondent
REASONS FOR DECISION
Kiteley J.
Released: September 9, 2013
[1] Canam Enterprises Inc. v. Coles, 2000 CarswellOnt 4739 (C.A.), para. 55
[2] Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, 2003 CarswellOnt 4328 (S.C.C.) para 51
[3] Sun v. Guilfoile 2011 ONSC 1685 at para 97
[4] Sun v. Guilfoile at para 91 and 96; Van Breda v. Village Resorts Ltd. 2010 ONCA 84, 2010 CarswellOnt 549 (C.A.) at para 109