ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 239/14
DATE: 2014-05-27
BETWEEN:
REGINA NAVARRO
Applicant
– and –
CLYDE FRANKLIN PARRISH JR.
Respondent
Marc A. D’Heureux, Counsel for the Applicant
Steven Benmor, Counsel for the Respondent
HEARD: May 21, 2014
REASONS FOR JUDGMENT
Gray J.
[1] This motion by the respondent is for an order staying an application for child support under the Family Law Act, where the prospective payor lives in Florida and the prospective payee and the child live in Ontario. Originally, the motion contested this court’s jurisdiction, and it was argued in the alternative that the court should decline to exercise its jurisdiction, on the basis of the principles of forum non conveniens, and that a preferable procedure is available under the Interjurisdictional Support Orders Act. During the argument of the motion, counsel for the respondent appeared to acknowledge that the court has jurisdiction to entertain the claim, and confined his submissions to the proposition that the court should decline to exercise it.
[2] For the reasons that follow, the motion is dismissed.
Background
[3] In his affidavit in support of the motion, the respondent deposes that he and the applicant were married on August 26, 1995 and separated in Florida on October 1, 1996. It was an eleven month marriage. The parties entered into “a Marital Settlement Agreement” in Florida, dated November 5, 1996. Among other things, the Agreement provided that “the parties have no un-emancipated minor children and none are expected.” The parties agreed to waive any rights that either of them may have to alimony and any other claims or demands. The Agreement also provided that “the laws of Florida shall govern the validity, construction, interpretation, and effect of the provisions of this Agreement.”
[4] The parties divorced on December 4, 1996 in Florida.
[5] The respondent deposes that the parties’ son, Ryan, was born in Canada on June 17, 1997. Until the respondent was advised by a relative some weeks before Ryan’s birth, he was not made aware that the applicant was pregnant. He deposes that he believes the applicant was pregnant at the time she executed the Marital Settlement Agreement.
[6] The respondent deposes that between 1997 and today, he has paid child support on an informal basis. He says the parties agreed to all child support issues without the applicant indicating that the respondent did not meet Ryan’s financial needs.
[7] The respondent deposes that on July 17, 2013, the applicant was terminated from her employment and asked the respondent for financial assistance. He swears that he was served in Florida with this application on January 16, 2014.
[8] In her affidavit, the applicant swears that at the time she executed the Marital Settlement Agreement, she had no knowledge that she was pregnant. She swears that in November, 1996, she left Florida and has lived in Ontario since then. She says Ryan was born on June 17, 1997, and has resided in Ontario since birth. He is currently in Grade 11 and intends to pursue a university degree.
[9] The applicant says she advised the respondent that she was pregnant in May, 1997. She denies that he was advised by someone else.
[10] The applicant swears that the respondent earns at least $257,000 US annually. She swears that despite such a significant income, the respondent’s only contribution towards Ryan’s support has been $60 per month towards the cost of Ryan’s cellphone and a payment of $500 for his school uniform. Since the commencement of this application, he has made two payments in the amounts of $1,500 US, and $938.93 US.
[11] The applicant swears that she has exhausted her severance package and is now in receipt of employment insurance benefits in the amount of $1,900 per month. She has been unsuccessful in securing alternate employment.
[12] It should be noted that after being served with this application, the respondent commenced his own case in Florida, seeking orders for paternity, parental responsibility, time-sharing, and child support.
Submissions
[13] Mr. Benmor, counsel for the respondent, submits that assuming this court has jurisdiction to entertain this application, the court should decline to entertain it, on two grounds.
[14] First, Mr. Benmor submits that this claim should be advanced, if at all, under the Interjurisdictional Support Orders Act. Second, the court should decline to entertain the claim on the basis of the traditional forum non conveniens criteria.
[15] As to the first ground, Mr. Benmor points out that the Interjurisdictional Support Orders Act provides for a convenient, inexpensive procedure that is designed to be fair to both sides.
[16] In a case where a claimant ordinarily resides in Ontario and the respondent ordinarily resides in a reciprocating jurisdiction, a proceeding may be commenced under section 5 of the Act. It is not in dispute that both Ontario and Florida are reciprocating jurisdictions.
[17] To start the proceeding, the complainant completes a simple support application that includes a supporting affidavit. The application is submitted to the designated authority in Ontario, which in this case is the Family Responsibility Office. The case is then processed under Rule 37 of the Family Law Rules.
[18] After being served, the respondent must file an answer and a financial statement.
[19] Unless the court orders otherwise, the application is then dealt with on the basis of written documents without the parties or their lawyers needing to come to court. The respondent may request an oral hearing. The court may request further information or documents, and may adjourn the hearing.
[20] In the final analysis the procedure under the Interjurisdictional Support Orders Act is much simpler and less expensive than the regular procedure. Rule 2 of the Family Law Rules contemplates that cases will be dealt with justly, by ensuring that cases are dealt with in accordance with a procedure that is fair to all parties and that saves time and expense. The procedure prescribed by the Interjurisdictional Support Orders Act does exactly that. It should be concluded that the procedures under that Act are exclusive.
[21] Mr. Benmor points out that his submission in this respect is supported by decisions in the Courts of Appeal of British Columbia and New Brunswick: L.R.V. v. A.A.V. (2006), 2006 BCCA 63, 264 D.L.R. (4th) 524 (B.C.C.A) [Supplementary Reasons at 2006 BCCA 341, 270 D.L.R. (4th) 532]; and Leonard v. Booker (2007), 2007 NBCA 71, 286 D.L.R. (4th) 451 (N.B.C.A.).
[22] Mr. Benmor acknowledges that there are decisions in Ontario that appear to be contrary to his position, but he submits that those cases are distinguishable: see Jasen v. Karassik (2009), 2009 ONCA 245, 95 O.R. (3d) 430 (C.A.); leave to appeal refused, [2009] S.C.C.A. No. 205; Pollard v. Wells, [2013] O.J. No. 6016 (O.C.J.); and Cawdrey v. Cawdrey, [2011] O.J. No. 593 (S.C.J.).
[23] In the alternative, Mr. Benmor submits that the court should decline to exercise its jurisdiction on the basis of the traditional forum non conveniens criteria. He submits that the parties, in their agreement, specified that the applicable law is that of Florida, and, while child support was not contemplated under that agreement, nevertheless the parties agreed that Florida law would prevail in terms of anything to do with the dissolution of their marriage. Most of the relevant evidence will have to do with the respondent’s income, and it will be most convenient to deal with that issue in Florida, which is where most of the witnesses live. A multiplicity of proceedings will be avoided, since there is already a proceeding in Florida that will determine the issue of child support, as well as other issues.
[24] Mr. D’Heureux, counsel for the applicant, submits that this court has jurisdiction to entertain this application, and the court should exercise it.
[25] Mr. D’Heureux acknowledges that the Interjurisdictional Support Orders Act provides a procedure that might be used by the applicant to advance her claim for child support, but he submits that it is not an exclusive procedure. He submits that an ordinary claim for child support under the Family Law Act can be pursued under the regular procedures of this court, and there is nothing in the Interjurisdictional Support Orders Act that suggests otherwise. He submits that there may be advantages one way or the other for the applicant to choose either procedure, and it is for her to make that choice. In this case, she has chosen to utilize the regular procedure, which requires that all evidence be heard in Ontario at a trial, and the normal pre-trial procedures will be used.
[26] Under the Interjurisdictional Support Orders Act, there would be disadvantages to the applicant. There would be a somewhat abbreviated, but cumbersome, process put in place that would allow the respondent to, in effect, “filter” the evidence to be tendered on his behalf, and would make it more difficult for the applicant to cross-examine on that evidence or challenge it.
[27] Mr. D’Heureux submits that the Ontario caselaw makes it clear that, in Ontario, the procedures under the Interjurisdictional Support Orders Act are not exclusive, and it is for the applicant to choose which procedure she will use. In particular, the Court of Appeal in Jasen, supra, was made aware of the British Columbia and New Brunswick Court of Appeal decisions and chose not to follow them.
Analysis
[28] It is not entirely clear whether the respondent concedes this court’s jurisdiction, or whether he has made submissions simply on the assumption that this court has jurisdiction. Thus, I will conduct some brief analysis on the jurisdictional issue.
[29] The leading case on jurisdiction is Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572; affirming (2010), 2010 ONCA 84, 98 O.R. (3d) 721 (C.A.). In that case, the Supreme Court of Canada took the opportunity to canvass the appropriate principles to be applied where litigants reside or do business in different countries. The court canvassed the appropriate principles with respect to both the question of jurisdiction and forum non conveniens.
[30] In the Court of Appeal, a five-judge panel took the opportunity to review the principles discussed in some earlier cases, particularly Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20 (C.A.). The judgments in both Muscutt and Van Breda were written by Sharpe J.A.
[31] In Van Breda, both in the Court of Appeal and the Supreme Court of Canada, it was confirmed that the appropriate test for jurisdiction is what is termed the “real and substantial connection test”. What must be examined is the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum. What must be applied are analytic tools to assist the court in assessing the significance of the connections between the forum, the claim, and the defendant.
[32] In both courts, it was made clear that the criteria to be used in assessing jurisdiction are to be considered entirely separately from those applicable to the issue of forum non conveniens.
[33] In both courts, it was decided that what must be assessed are “presumptive connecting factors” that will assist in determining jurisdiction. The courts differed to a degree on what are appropriate presumptive connecting factors.
[34] In the Supreme Court of Canada, LeBel J. for the court, at para.78, stated:
In my view, identifying a set of relevant presumptive connecting factors and determining their legal nature and effect will bring clarity and predictability to the analysis of the problems of assumption of jurisdiction, while at the same time ensuring consistency with the objectives of fairness and efficiency that underlie this branch of the law.
[35] At para. 80, LeBel J. stated:
The plaintiff must establish that one or more of the listed factors exists. If the plaintiff succeeds in establishing this, the court might presume, absent indications to the contrary, that the claim is properly before it under the conflicts rules and that it is acting within the limits of its constitutional jurisdiction.
[36] LeBel J. went on to discuss what he considered to be appropriate presumptive connecting factors for claims in tort, and at para. 90, concluded as follows:
To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
a) the defendant is domiciled in the province;
b) the defendant carries on business in the province;
c) the tort was committed in the province; and
d) a contract connected with the dispute was made in the province.
[37] At para. 91 and following, LeBel J. considered the issue of what other presumptive connecting factors might be identified. At para.91, he stated:
As I mentioned above, the list of presumptive connecting factors is not closed. Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction. In identifying new presumptive factors, a court should look to connections that give to rise a relationship with the forum that is similar in nature to the ones which resulted from the listed factors. Relevant considerations include:
a) similarity of the connecting factor with the recognized presumptive connecting factors;
b) treatment of the connecting factor in the caselaw;
c) treatment of the connecting factor in statute law; and
d) treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.
[38] As for the issue of forum non conveniens, LeBel J. stated at para.101, “Forum non conveniens comes into play when jurisdiction is established. It has no relevance to the jurisdictional analysis itself.”
[39] At para.103, LeBel J. stated:
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.
[40] In the Court of Appeal, at para. 49, that court adopted a list of factors to assess a claim of forum non conveniens, that had been referred to in its earlier decision in Muscutt, as follows:
a) The location of the majority of the parties;
b) The location of key witnesses and evidence;
c) Contractual provisions that specify applicable law or accord jurisdiction;
d) The avoidance of a multiplicity of proceedings;
e) The applicable law and its weight in comparison to the factual questions to be decided;
f) Geographical factors suggesting the natural forum;
g) Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.
[41] Without specifically disagreeing with that list, the Supreme Court of Canada was less definitive. LeBel J. stated at para. 105:
A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focuses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.
[42] At para. 110, LeBel J. stated:
As I mentioned above, the factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the 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 or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strength of the connections of the two parties.
[43] At para. 111, LeBel J. noted that loss of juridical advantage is a difficulty that could arise should the action be stayed in favour of a court of another province or country.
[44] While the issue in Van Breda involved the jurisdiction of the court respecting a tort claim, it is understood that the same analysis will apply in any case, including a family law case. While the specific connecting factors identified in Van Breda will not necessarily apply in a non-tort case, it is nevertheless necessary to identify one or more presumptive connecting factors in order that an Ontario court will have jurisdiction. The issue was considered in the context of a family law case in the recent decision of the Court of Appeal in Knowles v. Lindstrom (2013), 2014 ONCA 116, 118 O.R. (3d) 763 (C.A.).
[45] In Knowles, the parties lived in Florida from 2002 to 2012. Ms. Knowles left Florida in February, 2012, and came to Ontario. Shortly after her arrival, she commenced an application in this court seeking spousal support and a declaration that she was the beneficial owner of two Muskoka properties. Mr. Lindstrom argued that this court had no jurisdiction, and that if Ontario had jurisdiction, Florida was the forum conveniens.
[46] The court accepted that the Van Breda analysis applies to the jurisdictional inquiry in a family law case. At para. 17, Doherty J.A. noted that the inquiry focuses on the connection between the forum and the subject matter of the litigation and the defendant. In the particular case, there were two claims: a property claim, and a spousal support claim.
[47] At para. 21, Doherty J.A. held that the location of the property was a presumptive connecting factor. He stated “the analogy between the situs of the tort, a presumptive connecting factor in tort cases, Van Breda, at para. 88, and the location of the property in a property case is an apt one.”
[48] With respect to the spousal support claim, Doherty J.A. first noted that the court had held that the “real home” or “ordinary residence” of the parties is a presumptive connecting factor in litigation arising out of a marriage breakdown. He noted that in Thomson v. Minister of National Revenue, 1946 1 (SCC), [1946] S.C.R. 209 it had been held that a person may have more than one ordinary residence at a given time. He held that there was evidence sufficient to conclude that the parties’ ordinary residence was Ontario, and he was not prepared to disturb the trial judge’s conclusion that Ms. Knowles’ ordinary residence in Ontario was sufficient to ground jurisdiction in Ontario. At para. 38, Doherty J.A. stated “ support claims are arguably quite different from tort or contract claims in that, absent appropriate support from the former partner, the burden of support may fall on the state where the party seeking support resides.”
[49] In my view, this court has jurisdiction to entertain the applicant’s claim for child support. The ordinary residence of the child, in Ontario, is a sufficient connecting factor to ground jurisdiction in Ontario. The child has resided in Ontario since his birth. The respondent is connected to the jurisdiction, Ontario, through his child. The issue of support for that child is most closely connected to his needs and requirements where he lives, in Ontario. The courts in Ontario are best equipped to make a determination of the issue based on the respondent’s income and the child’s needs. The child will be attending university shortly, which may give rise to a need for a contribution to section 7 expenses.
[50] In my view, this is sufficient to conclude that Ontario has jurisdiction to entertain this claim. The real and substantial connection test has been met.
[51] I reject the respondent’s submission that the existence of the procedures prescribed in the Interjurisdictional Support Orders Act means that this court ought not to exercise its ordinary jurisdiction. In my view, this issue has been definitively determined by the Ontario Court of Appeal in Jasen, supra.
[52] While the facts of this case are obviously different from the facts in Jasen, nevertheless it is clear that the Court of Appeal held that the Interjurisdictional Support Orders Act does not displace jurisdiction under the Family Law Act. Rather, it provides an alternative process.
[53] In Jasen, Czutrin J. had held that the Ontario Court of Justice did not have jurisdiction under the Family Law Act to vary an agreement, because the agreement was interjurisdictional in nature. The father lived in the United States, and Czutrin J. concluded that the Interjurisdictional Support Orders Act provided a complete code for interjurisdictional support proceedings, and as a result the Ontario Court of Justice did not have jurisdiction under the Family Law Act to vary the agreement. The Court of Appeal disagreed. At para. 3, O’Connor A.C.J.O. stated, “In the case of interjurisdictional support proceedings, the ISOA does not displace jurisdiction under the FLA; rather it provides an alternative process.”
[54] At para. 56, O’Connor A.C.J.O. 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.
[55] At para. 57, he stated:
There is nothing in the ISOA to suggest that it was intended to remove the right of applicants to proceed under the FLA by effecting service ex juris and demonstrating that the Ontario court has jurisdiction to hear the application.
[56] At para. 60, O’Connor A.C.J.O. referred to the British Columbia and New Brunswick decisions relied on by the respondent, and stated:
In my view, both decisions are distinguishable and neither stands for the proposition that the ISOA is a complete code for interjurisdictional support proceedings in all cases. To the extent that they can be taken to stand for this proposition, I would decline to follow them for the reasons stated above.
[57] At para. 68, O’Connor A.C.J.O. concluded:
There is no reason why an applicant may not pursue an out-of-province father for support or for variation of a support provision in a domestic contract where service ex juris has been properly effected and the real and substantial connection test has been met.
[58] In this case, the respondent does not dispute that service ex juris has been effected and, as I concluded earlier, the real and substantial connection test has been met. Accordingly, as was concluded by the Court of Appeal in Jasen, the existence of the procedures under the Interjurisdictional Support Orders Act does not affect the ability of this court to proceed under the Family Law Act.
[59] That leaves for consideration the issue of forum non conveniens.
[60] As noted earlier, the onus is on the respondent to show that another jurisdiction is clearly more convenient than Ontario for the litigation of this claim. In my view, the respondent has not done so.
[61] There is no compelling evidence that conducting the proceedings in Florida would be any less expensive or faster than conducting the proceedings here. The agreement made in Florida does not deal with the issue of child support. Thus, there is no agreement that specifies the applicable law as it relates to this dispute. The proceeding commenced in Florida was commenced after this proceeding was commenced and, in my view, has no impact on the exercise of this court’s jurisdiction. Since Florida law apparently requires that child support cease at age 18, there is at least some prospect that the applicant will be deprived of a juridical advantage if the proceeding is conducted in Florida. It is anticipated that the child will attend university, and he may well require support after he turns 18. As noted earlier, the proceeding relates to the appropriate care of a child who has resided in Ontario since his birth, and who was born in Ontario.
[62] In my view, there is no factor that strongly points to Florida as the more appropriate forum. Accordingly, the respondent has not met his onus to show that Florida is clearly more convenient than Ontario.
Disposition
[63] For the foregoing reasons, the motion of the respondent is dismissed.
[64] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Mr. D’Heureux shall have five days to file his submissions, and Mr. Benmor shall have an additional five days to respond. Mr. D’Heureux shall have three days to reply.
Gray J.
Released: May 27, 2014
COURT FILE NO.: 239/14
DATE: 2014-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REGINA NAVARRO
Applicant
– and –
CLYDE FRANKLIN PARRISH JR.
Respondent
REASONS FOR JUDGMENT
Gray J.
Released: May 27, 2014