Court File and Parties

COURT FILE NO.: FD897/13

DATE: February 28, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Bozena Karkulowski, applicant

AND:

Andrzej Karkulowski, respondent

BEFORE: MITROW J.

COUNSEL: Marie Tukara for the applicant

Cynthia L. Mackenzie for the respondent

HEARD: February 21, 2014

ENDORSEMENT

INTRODUCTION

[1] There are two motions before the court.

[2] The first motion is brought by the applicant, Bozena Karkulowski (“Ms. Karkulowski”). In her motion, Ms. Karkulowski asks for an order that this court assume jurisdiction over all matters involving this court case, including the granting of a divorce, equalization of net family property, child support and spousal support.

[3] The respondent, Andrzej Karkulowski (“Mr. Karkulowski”), then brought a motion in this court to stay Ms. Karkulowski’s claim for divorce on the basis that Mr. Karkulowski had already commenced a divorce proceeding in Poland and that the issue of the granting of a divorce should be determined by the court in Poland, and not by the court in London, Ontario.

[4] For reasons that follow, Mr. Karkulowski’s request for a stay of the divorce proceeding is dismissed and the relief sought by Ms. Karkulowski is granted.

ISSUES RAISED IN THE MOTIONS

[5] The claims made by the parties in their motions raise three main issues: the first issue is whether this court has jurisdiction to hear the claims made by Ms. Karkulowski in her application in this court; the next issue involves the application of the doctrine of forum non conveniens and whether this court should decline to take jurisdiction over the issue of the granting of a divorce; and, finally, issues are raised by each party as to whether the other has attorned to the jurisdiction of the foreign court.

RELEVANT BACKGROUND FACTS

[6] Ms. Karkulowski was born in Poland. She has two sons by a previous marriage, currently ages 18 and 20.

[7] Mr. Karkulowski was born in Poland. Mr. Karkulowski does not dispute Ms. Karkulowski’s evidence that he has been divorced twice before and has a child from his first marriage.

[8] When the parties met in 2006, Mr. Karkulowski was permanently residing in Canada and Ms. Karkulowski and her two sons were living in Poland.

[9] In early January 2008, Mr. Karkulowski signed a sponsorship agreement with Citizenship and Immigration Canada, in which he is named as the sponsor and Ms. Karkulowski is named as the “sponsored person.”

[10] The sponsorship application listed Ms. Karkulowski’s two sons as the “accompanying dependent children” of the family member (being Ms. Karkulowski) who is being sponsored by Mr. Karkulowski.

[11] In March 2008, Ms. Karkulowski and her two sons immigrated to Canada, specifically to London, Ontario and began residing in a home that was purchased by Mr. Karkulowski and was registered in his sole name. This became the matrimonial home.

[12] The parties separated in February 2010, at which time Ms. Karkulowski left the matrimonial home and, together with her sons, took up residence elsewhere in London. Mr. Karkulowski continued to reside in the matrimonial home.

[13] In or about August 2012, Ms. Karkulowski sought the assistance of a lawyer in London, Ontario, Mr. Lisowski, at which time a document was registered on title against the matrimonial home owned by Mr. Karkulowski in order to protect any interest Ms. Karkulowski may have in that matrimonial home as a spouse, pursuant to the Family Law Act.

[14] In early 2013, Mr. Karkulowski retained Ms. Mackenzie, a London lawyer, and in early March 2013, Ms. Karkulowski retained Ms. Wozniak, who is also a London lawyer. Through their respective lawyers, the parties made attempts to resolve matrimonial issues arising as a result of their separation.

[15] It is Mr. Karkulowski’s evidence, not disputed by Ms. Karkulowski, that a listing agreement was signed with a real estate agent in September 2012 for the purpose of listing the matrimonial home for sale.

[16] Both parties agree that the sale of the matrimonial home was completed in March 2013. Ms. Karkulowski states that the sale closed on March 15, 2013 and Mr. Karkulowski does not dispute this date. There is also no dispute between the parties that the net proceeds from the sale of the matrimonial home totalled $95,552.82 and that this money, on agreement of the parties, is being held in Ms. Mackenzie’s law firm’s trust account.

[17] Shortly after the sale of the matrimonial home, Mr. Karkulowski left London, Ontario and returned to live in Poland. On April 9, 2013, Mr. Karkulowski issued a petition for divorce in Poland. This court document was issued in the XIII Civil Division of the Circuit Court in Wroclaw. It is Ms. Karkulowski’s evidence that in March 2013 she learned through an acquaintance that Mr. Karkulowski was intending to move back to Poland. Ms. Karkulowski’s affidavit evidence is that, although she had no details of Mr. Karkulowski’s plans to move, she had expected he would not leave until matrimonial matters were resolved. Ms. Karkulowski then learned from correspondence through lawyers in late March 2013 that Mr. Karkulowski was now residing in Poland. At that time, the correspondence between the lawyers also indicated that Ms. Mackenzie was no longer retained to act for Mr. Karkulowski.

[18] Mr. Karkulowski’s affidavit evidence is that in the late summer of 2012 he decided to return to Poland and begin a new life there. As a result, he listed the matrimonial home for sale. It was Mr. Karkulowski’s position that Ms. Karkulowski should have been aware of the fact that he was planning to return to Poland (given that he was selling the house) and Mr. Karkulowski resists the suggestion made by Ms. Karkulowski that his departure was sudden and without appropriate notice.

[19] To the extent that it is relevant to the issues before me, I find that the affidavit material, read as a whole, supports the inference that Ms. Karkulowski did not have any direct information that Mr. Karkulowski was planning to return to Poland almost immediately on the sale of the matrimonial home. Given that lawyers had been engaged in trying to resolve matrimonial matters, and given that the entire marital relationship of the parties was in London, Ontario, it was understandable and reasonable for Ms. Karkulowski to have some expectation that upon the sale of the matrimonial home that the parties, through lawyers, would continue to try and resolve matrimonial issues.

[20] The reality is that in less than four weeks following the sale of the matrimonial home, Mr. Karkulowski had returned to Poland and issued a petition for divorce. Mr. Karkulowski’s haste in leaving London, Ontario, relocating to Poland and issuing a petition for divorce suggests, at the least, that Mr. Karkulowski perceived some tactical advantage for himself in quickly starting legal proceedings in Poland.

[21] As a result of Mr. Karkulowski’s departure from Canada, Ms. Karkulowski issued an application in this court (referred to at times as the Ontario court) seeking a divorce, equalization of net family properties, spousal support and child support. This application was issued on June 11, 2013.

[22] There is no dispute that Ms. Karkulowski was unaware that Mr. Karkulowski had issued a petition for divorce in Poland at the time that Ms. Karkulowski issued her application in London.

[23] In late June 2013, Mr. Karkulowski was served in Poland with the application issued by Ms. Karkulowski in London.

THE COURT PROCEEDINGS IN LONDON, ONTARIO AND IN POLAND

[24] Mr. Karkulowski’s petition for divorce included a request for dissolution of the parties’ marriage by a no-fault divorce and some claims in relation to property that appear to relate mainly to savings in a bank account. There was no reference to the money being held in trust from the sale of the matrimonial home.

[25] Near the end of August 2013, Ms. Karkulowski was served with the petition for divorce issued by Mr. Karkulowski in Poland. Mr. Karkulowski served and filed his answer dated August 19, 2013 in the London application. In his answer, Mr. Karkulowski makes it clear that he does not accept the jurisdiction of the Ontario court to adjudicate the claims raised by Ms. Karkulowski. Mr. Karkulowski’s answer states that his answer does not constitute attornment by Mr. Karkulowski to the jurisdiction of the Ontario court.

[26] Shortly after being served with the petition for divorce, Ms. Karkulowski filed her motion dated September 6, 2013 in the Ontario court, with the motion being initially returnable September 25, 2013. Given the timeframe to respond to the petition for divorce, Ms. Karkulowski retained a lawyer in Poland, Mr. Wrzesinski, to represent her in the Polish proceeding. Ms. Karkulowski filed in Poland her “answer to the petition” dated September 23, 2013. In this document, Ms. Karkulowski requests that the action commenced by Mr. Karkulowski be dismissed in its entirety together with costs.

[27] In that same document, Ms. Karkulowski makes application for various relief should the court in Poland not dismiss the petition. The relief sought by Ms. Karkulowski includes a divorce on the grounds of the fault of Mr. Karkulowski, an order dealing with the matrimonial home sale proceeds and costs.

[28] In relation to the grounds in support of her answer to the petition, Ms. Karkulowski gives her version of the events and why Mr. Karkulowski is at fault. Also in this document, Ms. Karkulowski states that the proceedings initiated in Poland should be dismissed because of the proceeding commenced in London, Ontario.

[29] On September 25, 2013, Ms. Karkulowski’s motion in London came on before Mr. Justice Vogelsang. He ordered that this motion be adjourned to October 2, 2013 for the purpose of receiving an undertaking from Mr. Karkulowski’s Polish counsel not to proceed in Poland to a final order until Ms. Karkulowski’s London motion has been decided. It was also ordered by Mr. Justice Vogelsang that a special appointment would have to be required and this special appointment was tentatively fixed for November 29, 2013.

[30] Pursuant to this order, Mr. Karkulowski’s lawyer in Poland, Mr. Chojka, filed an undertaking dated September 30, 2013 in the London application. The statement portion of the undertaking indicated that Mr. Chojka represented Mr. Karkulowski in an action in the Divorce Circuit Court in Wroclaw, Poland (court file number XIII RC 975/13). The statement also indicated that Mr. Karkulowski seeks the following relief: dissolution of the marriage; determination of the joint property of the spouses; division of the joint property of the spouses; and other relief.

[31] Regarding the undertaking, Mr. Chojka stated as follows:

“The first Court date set in the Polish Court is November 7, 2013. The purpose of this Court date is preliminary hearing of the parties. As Mr. Karkulowski’s Polish divorce lawyer, I undertake not to proceed to obtain a final order at this Court date.”

[32] Given Mr. Chojka’s undertaking, on October 2, 2013 in this court, an order was made confirming that the argument on the motion will proceed on November 29, 2013.

[33] Later, Mr. Karkulowski filed a motion dated November 25, 2013 in the London application returnable November 29, 2013, being the same date that was set for a special appointment to hear Ms. Karkulowski’s motion.

[34] The affidavit material filed by Mr. Karkulowski includes a description of what occurred in the Polish proceeding on November 7, 2013.

[35] The evidence filed on behalf of Mr. Karkulowski indicates that he attended at court in Poland on November 7, 2013. On that date, the court dismissed Mr. Karkulowski’s claims with respect to division of property. Mr. Karkulowski states in his affidavit that he accepts the jurisdiction of the Ontario Superior Court of Justice, Family Court Branch at London to assume jurisdiction over Ms. Karkulowski’s claim for an equalization of the parties’ net family property, costs relating to the equalization claim and interest, if any, to be paid on the equalization claim.

[36] Mr. Karkulowski’s lawyer, Mr. Chojka, filed an affidavit sworn November 28, 2013 in the London application. In that affidavit, Mr. Chojka describes the proceedings in Poland on November 7, 2013. It is Mr. Chojka’s evidence that as a result of Ms. Karkulowski’s pleadings in the Polish action, where she asserted that Mr. Karkulowski should be found at fault for the breakdown of the marriage, that Mr. Chojka sought leave of the court to amend the divorce petition to allow Mr. Karkulowski to give evidence regarding the issue of fault raised by Ms. Karkulowski, and that this leave was granted.

[37] Mr. Karkulowski was then examined by the presiding judge and questioned by both Mr. Chojka and Mr. Wrzesinski who was there as the lawyer on behalf of Ms. Karkulowski.

[38] On November 29, 2013, Mr. Karkulowski, through his counsel in the London application, sought an adjournment of the motions to permit time for various documents filed by Mr. Karkulowski to be translated from Polish to English and this included translation of some of the court documents filed in the Polish action.

[39] Over the opposition of Ms. Karkulowski, Mr. Justice Henderson granted the adjournment and in his reasons for granting the adjournment, he indicated that he would encourage Ms. Karkulowski to bring an application to stay the Polish action (hopefully with the consent of Mr. Karkulowski) pending the hearing of motions in the London application. Mr. Justice Henderson also set out a time schedule for the filing of additional documents by both parties and Mr. Justice Henderson noted in his reasons that he has not prohibited Ms. Karkulowski from bringing an emergency motion in the London application to request the court to sever Ms. Karkulowski’s request for a divorce from the other issues raised in the London action, in the event that the court in Poland refuses Ms. Karkulowski’s request for a stay of the proceedings in Poland. It is clear from his endorsement that Mr. Justice Henderson had some concern regarding the divorce action in Poland proceeding before the motions were dealt with by the court in London, Ontario.

[40] It appears from translated documents that Ms. Karkulowski filed documents dated December 2, 2013 in the Polish action. In those documents, Ms. Karkulowski seeks an order in the Polish court to dismiss a motion by Mr. Karkulowski to hear evidence from two additional witnesses. Also, in those documents, it appears that Ms. Karkulowski is asking the court in Poland to suspend the Polish proceedings until the court in Canada has made a decision.

[41] As to the court proceedings in Poland in December 2013, Ms. Karkulowski submits through her London counsel that the court in Poland requested information from Mr. Wrzesinski regarding the proceedings in London, Ontario, including the stage of the proceedings. Ms. Karkulowski submits that the court in Poland made an order that Ms. Karkulowski has until March 7, 2014 (being two months from the date the order was made) to provide requested information to the court in Poland.

[42] A copy of the order from Poland was attached to Ms. Karkulowski’s amended supplemental factum filed in the London application. Unfortunately, no translation of this order was provided.

[43] There is no affidavit evidence before this court to explain what happened during the court proceedings in Poland in December 2013.

[44] Accordingly, I am not in a position to make any findings on what the court in Poland ordered as a result of the hearing in December 2013. However, this does not, in my view, prevent this court from dealing with the motions based on the evidence that has been filed.

DISCUSSION – ISSUES OF JURISDICTION AND FORUM NON CONVENIENS

Jurisdiction

[45] In Van Breda v. Village Resorts Ltd., 2012 SCC 17, the Supreme Court of Canada set out the guiding principles in dealing with jurisdiction and forum non conveniens.

[46] In dealing with the interplay between jurisdiction and forum non conveniens, the Supreme Court of Canada stated that a clear distinction must be drawn between the existence of jurisdiction and the exercise of jurisdiction. Forum non conveniens only comes into play when jurisdiction has been established and it has no relevance to the jurisdictional analysis itself: Van Breda, para. 101.

[47] Once jurisdiction is established, then the litigation proceeds if the defendant does not raise further objections. A court cannot decline to exercise jurisdiction unless a defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties and not with the court: Van Breda, para. 102.

[48] Accordingly, I deal first with the issue of jurisdiction in the present case.

[49] In relation to the property issues, as noted above, Mr. Karkulowski has conceded that this court has the jurisdiction to deal with the property issues pursuant to the Family Law Act.

[50] As to the remaining issues, namely the granting of a divorce, spousal support and child support, this court has statutory jurisdiction to hear those claims based on the following:

a) Pursuant to section 3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] (“Divorce Act”), 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. Ms. Karkulowski meets this condition;

b) As Ms. Karkulowski has commenced a proceeding under the Divorce Act and claimed a divorce, this court also has jurisdiction under the Divorce Act to deal with child support and spousal support: see sections 15.1 and 15.2 of the Divorce Act;

c) Pursuant to the Family Law Act, Ms. Karkulowski is married to Mr. Karkulowski and is a “spouse” within the definition of the Family Law Act. The extended definition of “child” in section 1 of the Family Law Act is also applicable based on the allegations. Accordingly, this court also has jurisdiction under the Family Law Act to deal with spousal support and child support; and

d) Pursuant to sections 21.8 and 21.11 of the Courts of Justice Act, the Ontario Superior Court of Justice, Family Court, at London, Ontario, has jurisdiction to hear the application because the Ms. Karkulowski resides in the County of Middlesex, in the Province of Ontario.

[51] The substantial argument on the motions before this court related to the issue of forum non conveniens and I now turn to a discussion of that issue.

Should the Ontario Superior Court of Justice decline to hear any of the remaining claims, namely divorce, child support and spousal support?

[52] Mr. Karkulowski wants the Polish court to deal with the divorce: he has raised the issue of forum non conveniens. Where a party raises an issue of forum non conveniens, the burden is on that party to show why the court should decline to exercise its jurisdiction in favour of the forum chosen by the other party. This principle was set out as follows by the Supreme Court of Canada in Van Breda at para. 103:

[103] If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

[53] In Van Breda, the Supreme Court of Canada also discussed the burden that is on the party who is requesting a stay on the basis of forum non conveniens. The court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose of the litigation fairly and efficiently. The Supreme Court of Canada stated in part of para. 109 in Van Breda as follows:

[109] ... The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.

[54] In relation to the factors that a court may consider, while those factors might vary depending on the context, those factors may include locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties: Van Breda, para. 110. These factors are not exhaustive.

[55] I find on the evidence that Mr. Karkulowski has failed to discharge the onus of demonstrating that the court in Poland is in a better position to dispose “fairly and efficiently” of the litigation.

[56] Mr. Karkulowski’s position will necessarily result in matrimonial proceedings being conducted in both Poland and in Canada. This is an unnecessary and wasteful expense. It is not efficient.

[57] Mr. Karkulowski has conceded that the property issues will have to be heard in London, Ontario. Accordingly, if the matter is not settled, there will be a trial in London. The issues of spousal support and child support have not been raised in the divorce proceeding in Poland. Those issues have properly been raised by Ms. Karkulowski in her application in this court.

[58] Mr. Karkulowski does not dispute Ms. Karkulowski’s allegations that he resided in London from 2001 to March of 2013, at which time he left for Poland. London, Ontario was the matrimonial residence of both parties throughout their marriage.

[59] Both children, although they are now adults, attend school on a fulltime basis and as such they fall within the definition of a dependant under either the Divorce Act or the Family Law Act.

[60] Significantly more of the relevant evidence in relation to issues of child support and spousal support is in Ontario rather than in Poland.

[61] Mr. Karkulowski relies on the fact that both parties were born in Poland and continue to be Polish citizens. This fact bears little relevance to the issue of forum non conveniens on the facts of this case. In any event, it is Ms. Karkulowski’s evidence that she anticipates obtaining her Canadian citizenship early in the spring of 2014.

[62] Mr. Karkulowski relies on the fact that Ms. Karkulowski’s two children were born in Poland and are Polish citizens. This factor has little or no impact on the issue of forum non conveniens. In any event, it is Ms. Karkulowski’s evidence that her eldest son has already passed his test for Canadian citizenship and she expects her youngest son to be able to obtain his Canadian citizenship independently.

[63] Mr. Karkulowski relies on the fact that the children’s father is from Poland and has a legal obligation to pay child support, and therefore the child support claim should be brought in Poland. I reject that argument. Mr. Karkulowski does not dispute Ms. Karkulowski’s evidence that her sons’ biological father cannot be located, and is wanted by police in Poland as there is an outstanding warrant for his arrest as a result of his breach of court orders, including a failure to pay court-ordered child support. Ms. Karkulowski, on the facts, has a right to pursue child support in Ontario against Mr. Karkulowski.

[64] Mr. Karkulowski relies on the fact that he apparently owns some property in Poland that he inherited from his grandparents. However, he has already conceded that all property issues are to be dealt with in the London action and this argument bears little relevance as to why the divorce should be heard in Poland.

[65] Mr. Karkulowski also submits that both he and Ms. Karkulowski have substantial ties to Poland and he adds that both his parents and many extended family members reside in Poland. However, given that Mr. Karkulowski resided in London for many years and this is where the parties resided as a married couple, Mr. Karkulowski fails to explain how all of these persons in Poland could give relevant evidence to the issues before this court.

[66] Mr. Karkulowski submits that he is currently unemployed, looking for work, and he claims he has health issues that prevent him from working. He submits that some of his family and friends can attest to his medical issues. However, on the issue of imputation of income to Mr. Karkulowski, there is also substantial evidence on that issue from Ms. Karkulowski, her sons and other persons who knew the parties while they lived in London, Ontario. Mr. Karkulowski had a reasonably steady work history while living in London

[67] It is difficult to understand why the divorce claim needs to proceed in Poland when it can be dealt with, together with the other issues, including property, by the Ontario court. Ms. Karkulowski seeks a divorce on the grounds of the parties living separate and apart for a period of one year. No allegations are made by Mr. Karkulowski in his answer that would amount to a defence to a divorce being granted on the basis that the parties have lived separate and apart for one year (see section 8(2)(a) of the Divorce Act). Most of the applications for divorce, in this court, are based on the grounds of living separate and apart and divorces are granted routinely on that ground based on filing of appropriate documents pursuant to rule 36 of the Family Law Rules without the necessity of the parties appearing in court.

[68] I also find there is potential prejudice to Ms. Karkulowski if a divorce is granted in Poland.

[69] The Court of Appeal for Ontario has ruled that there is no jurisdiction under the Divorce Act to deal with spousal support as corollary relief unless the parties have been divorced pursuant to a divorce granted under the Divorce Act: Okmyansky v. Okmyansky, 2007 ONCA 427, 225 O.A.C. 60 (Ont. C.A.). Therefore, parties who have a foreign divorce that is regarded as valid in Canada cannot obtain spousal support under the Divorce Act. Secondly, as stated in Okmyansky, Ms. Karkulowski also would not be able to obtain spousal support under the Family Law Act because entitlement to spousal support pursuant to the Family Law Act is not available to a person who was married and is subsequently divorced, whether the divorce occurred in Canada or elsewhere. Accordingly, if a divorce is granted in Poland and is recognized as valid in Canada, Ms. Karkulowski will not be able to pursue spousal support in Ontario. This is prejudicial to Ms. Karkulowski. Her employment income is a little over $30,000 annually, and with two dependent children, she has no financial ability to pursue spousal support in Poland, nor should she be required to do so.

[70] The situation that Ms. Karkulowski finds herself in is not dissimilar from a situation faced by the wife in Gyuzeleva v. Angelov, 2012 CarswellOnt 14936 (S.C.J.). In that case the parties were born in Bulgaria, were both citizens of Bulgaria and they were married in Bulgaria. The parties had one child, also born in Bulgaria, who was a Bulgarian citizen. After being married in Bulgaria in 1997, the parties moved to Ontario in 2006. A condominium was purchased in the husband’s name and the family resided in the condominium until they separated in July 2012. After separation the husband returned to Bulgaria and on July 24, 2012 he filed in Bulgaria for divorce, custody and access. The wife filed in Ontario for divorce, custody, access and a restraining order. In early October 2012, the wife brought a motion in Bulgaria asking the court to terminate its proceeding and that was denied on the basis of insufficiency of evidence. In Gyuzeleva, the court in the Ontario proceeding applied the principles in Van Breda in its analysis of jurisdiction and forum non conveniens and dismissed the husband’s motion to stay the Ontario proceeding. The court also gave little weight to the fact that the husband had commenced his application first in Bulgaria.

[71] In Gyuzeleva, the court considered, as a factor, the potential juridical disadvantage to the wife if a divorce was granted in Bulgaria, because the wife (similar to Ms. Karkulowski in the present case) would be barred from seeking spousal support in her own place of residence, namely Ontario.

[72] I place little weight on the fact that Mr. Karkulowski started his divorce proceeding first. This factor should have minimal weight given the discussion earlier in these reasons as to the haste with which Mr. Karkulowski departed from Ontario and issued his petition.

[73] There is also a potential issue that may arise if the court in Poland grants a divorce. Section 22 of the Divorce Act deals with the recognition of a foreign divorce. The relevant subsections are 22(1) and 22(3) and they are as follows:

Recognition of foreign divorce

22(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

[74] In the event that Mr. Karkulowski should proceed with his petition in Poland, despite the order being made by this court, then a further issue may be created in Ontario regarding the recognition of a foreign divorce in Poland if one is granted. For the purpose of these reasons, I express no opinion as to whether a Polish divorce, in the circumstances of this case, would be recognized in Canada.

[75] The reality of the situation is this: the jurisdiction with the most substantial connection to the parties, and the jurisdiction that is best able to deal with all of the issues in one proceeding, on a cost efficient basis, is the Ontario court.

[76] The factors raised by Mr. Karkulowski in support of his motion, that Ontario is a forum non conveniens, are substantially outweighed by the factors raised by Ms. Karkulowski that Ontario is the proper forum to deal with this family law case.

ATTORNMENT

[77] I reject Ms. Karkulowski’s submission that Mr. Karkulowski has attorned to the jurisdiction of the Ontario court because he filed an answer and because his answer contained a defence to the various claims sought. Mr. Karkulowski’s answer was very clear that he was disputing the jurisdiction of the Ontario court.

[78] The Court of Appeal for Ontario discussed the issue of attornment in Van Damme v. Gelber, 2013 ONCA 388, [2013] O.J. No. 2750 (Ont. C.A.). In that case, the court dealt with some principles relevant to attornment. If a party appears in a court to challenge jurisdiction or seek a stay on the basis of forum non conveniens, then any additional steps taken by a party pursuant to an order of the court will also not amount to attornment (see para. 23). The test as enunciated in Van Damme is that where a party appears in court and goes beyond challenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens, then that party will be regarded as appearing voluntarily, thus giving that court consent-based jurisdiction (see para. 22).

[79] It was submitted by Mr. Karkulowski that Ms. Karkulowski’s responding pleadings filed in the Polish action went beyond appearing in court and challenging the jurisdiction. He submits that Ms. Karkulowski advanced claims and sought to show that Mr. Karkulowski was at fault for the divorce.

[80] In reading the petition for divorce in the Polish action and Ms. Karkulowski’s answer to the petition for divorce, as a whole, I find that Ms. Karkulowski did properly raise the jurisdiction issue and that she entered a defence to the petition for divorce as an alternative in the event that the court in Poland should decide to continue with the proceedings commenced by Mr. Karkulowski.

[81] I find that both Mr. Karkulowski and Ms. Karkulowski each opposed the jurisdiction of the foreign court and they each filed court documents in the foreign court to set out their position should the foreign court decide to continue with the case. Accordingly, Mr. Karkulowski did not attorn to the jurisdiction of the Ontario court, and Ms. Karkulowski did not attorn to the jurisdiction of the Polish court.

[82] Accordingly, jurisdiction, on the facts of this case, is not to be decided on the basis of attornment.

[83] It is necessary to deal with one further argument advanced by Mr. Karkulowski. He submits that the Polish court has heard some evidence and has therefore started the trial. Accordingly, he submits the Ontario court should not assume jurisdiction over the granting of a divorce and should allow the Polish court to decide that matter.

[84] I reject that argument. Mr. Chojka had filed an undertaking in this court not to proceed to a final order in the Polish action until the motions in this court were dealt with. It was on the basis of that undertaking that this court adjourned the motions on Mr. Karkulowski’s request.

[85] It is now somewhat disingenuous for Mr. Karkulowski to argue that because he called some evidence in Poland, that the Ontario court should now not assume jurisdiction over the divorce issue. This argument undermines the spirit of the undertaking given by Chojka. Mr. Karkulowski was given an indulgence by the Ontario court when that court granted the adjournment based on Mr. Chojka’s undertaking. In these circumstances, it was inappropriate for Mr. Karkulowski, during the period of the adjournment, to start calling evidence in the Polish action, and then use that fact in support of his motion.

[86] It is necessary to be clear. It is this court’s expectation that when Mr. Karkulowski receives these reasons that he will immediately instruct his Polish lawyer to discontinue the action he started in Poland.

ORDER

[87] For reasons set out above, I make the following order:

1. Mr. Karkulowski’s motion is dismissed.

2. This court has jurisdiction to hear all claims advanced by Ms. Karkulowski in her application issued in this court, including the granting of a divorce, child support, spousal support, equalization of net family property, pre-judgment interest and costs.

3. If Mr. Karkulowski fails to provide immediate written confirmation satisfactory to Ms. Karkulowski that he has, or will, discontinue the action he commenced in Poland, then Ms. Karkulowski is at liberty to bring an emergency motion in this case on short notice, requesting that her claim for divorce be severed from the corollary issues and for an immediate granting of a divorce.

4. If the parties cannot agree on the costs of the motions, then written submissions on costs shall be forwarded to the trial coordinator within 30 days of the date of this order.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 28, 2014