Lafrance v. Ceccol, 2015 ONSC 2946

COURT FILE NO.: 5421/10

DATE: 20150506

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ELLEN LAFRANCE

Ray Warman, for the Applicant

Applicant

• and -

MICHEL CECCOL

The Respondent on his own behalf

Respondent

HEARD: April 23, 2015

D E C I S I O N

WILCOX, J.

BACKGROUND

[1] We are dealing here with the Respondent’s motion, originally returnable May 30, 2011, for an order for summary judgment dismissing the application on the ground that the Province of Quebec, not Ontario, has jurisdiction to hear the matter.

[2] The parties cohabited from August 1, 1999 until late in 2009 or early in 2010.

[3] The Application was issued on July 9, 2010. It was served on the Respondent on December 3, 2010 by substituted service at 117 Wood Street, Kirkland Lake, Ontario, following the order of November 29, 2010 for substituted service.

[4] The Application indicates that there were no children from the relationship. There is no request for spousal support. The relief sought is entirely with respect to dividing up the couple’s property. In this regard, it appears to be worded in a fashion that is more appropriate to a marriage situation than a common law one, so that amendments would be necessary to clarify the basis and extent of the relief claimed.

[5] The Respondent has not filed an Answer. His motion for summary judgment seeks, in the alternative, leave to file an Answer.

[6] On March 7, 2011, the matter was directed to an uncontested trial. However, on May 30, 2011, the first return date of this motion, it was adjourned to permit the Respondent to file an affidavit setting out by which province his health care had been provided since 1999 and who paid for his hospitalization in Timmins in 2010.

[7] The case was adjourned repeatedly. On June 27, 2011, it was to permit questioning. On September 6 and October 24, 2011, no reasons were noted.

[8] The Respondent was represented by counsel when this motion was first brought. Counsel obtained an order to get off the record on April 26, 2013, nearly two years later.

[9] A settlement conference was held on May 28, 2013, despite the Respondent’s request for an adjournment. It dealt with his address for service, satisfaction of undertakings, provisions for disclosure and arrangements for questioning. The endorsement went on to say that, “(i)f Mr. Ceccol wishes to dispute this court’s jurisdiction, his motion shall be brought by the end of December, 2013”.

[10] The Respondent brought a motion returnable and heard on August 30, 2013 seeking several heads of relief. One was in aid of making arrangements for the questioning ordered at the May 28, 2013 settlement conference, and resulted in an order being made. The rest, having to do with matters tangential to the present case, were dismissed.

[11] In December, 2013, the Respondent retained new counsel and moved to return this motion on December 13, 2013. The Applicant moved at the same time to strike the Respondent’s materials. The court noted, among other things, that the jurisdiction issue is fundamental and had been left unresolved for too long, and adjourned the matter to the trial coordinator to set a special date after January 2014.

[12] The Respondent’s second counsel got off record on February 26, 2015, leaving him self-represented, again.

[13] A case conference was held on February 27, 2015, by teleconference. The jurisdictional issue was set for hearing on April 23, 2015. The materials on file that were to be used in the hearing were identified. Provision was made for each side to deliver further affidavit evidence. Several admissions were also noted.

LAW

[14] For the Ontario Court to assume jurisdiction in this case, there must be a real and substantial connection to Ontario. To meet the real and substantial connection test, the onus is on the Applicant, being the party that is seeking to have Ontario assume jurisdiction, to identify presumptive connecting factors that link the subject matter of the case to Ontario (Club Resorts Ltd. v. Van Breda 2012 SCC 17, [2012] S.C.J. No. 17, para. 100). The Van Breda case was a torts case, and the Supreme Court of Canada listed several presumptive connecting factors while indicating that the list of such factors is not closed, and that other factors would apply in other types of cases.

[15] The Ontario Court of Appeal in Knowles v. Lindstrom, 2014 ONCA 116, 2014 O.N.C.A. 116, applied the Van Breda analysis to a Family Law case in which there was a dispute as to whether Ontario had jurisdiction. That case arose from a common law situation and involved the Applicant’s claims for spousal support and an interest in real estate owned by the Respondent in Ontario. Prior to separation, the parties had lived in Florida but spent 40 to 60 percent of their time in Ontario, and there were properties in both jurisdictions. The court found that the location of the property in Ontario was a presumptive connecting factor, and that a single presumptive factor was sufficient to establish jurisdiction. However, the court went on to find that the ordinary residence of the parties is also a presumptive connecting factor and that it is possible to be ordinarily resident in more than one jurisdiction at the same time as a matter of lifestyle.

[16] The court in Van Breda went on to say that, “(i)f jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay proceedings on the basis of forum non conveniens (para. 100). This is to mitigate concern for the potential rigidity of the rules around jurisdiction, and to address concerns for their lack of consideration of the parties’ actual circumstances, assuring fairness to them and the efficient resolution of their dispute (para. 104).

FACTS

[17] The Respondent alleges that he and the Applicant never resided in Ontario during their common law relationship. Rather, they began a relationship in 1993, at which time he was living at his father’s house at 100 Wood Street in Kirkland Lake, where he had grown up, having been born in Kirkland Lake. The Applicant was living with her mother at 649 Government Road West in Chaput Hughes, Ontario. In 1997, he got a job in the Province of Quebec and moved there permanently, becoming a resident of Quebec in that year. The parties cohabited in rental accommodations until a house was bought in his name at 168 rue Pelletier, Saint-Roch-des-Aulnaies, Quebec on June 19, 2004. They cohabited there as a couple until September 2009. They returned to Ontario to visit at times, including a period of weeks in the fall of 2009.

[18] The Respondent’s father died in November 2006. The Respondent stayed at the Wood Street house when he went to Kirkland Lake to deal with estate matters. The father had added him on title in order to facilitate the transfer of the property after his death. The Respondent continues to hold the property, but stated in submissions that he now plans to sell it. There is also mention of a cottage in Ontario that the Respondent received as part of the estate.

[19] The Respondent contends that he remains a resident of Quebec.

[20] The Respondent has apparently commenced family law proceedings in the Province of Quebec which have been stayed pending the decision on whether Ontario has jurisdiction.

[21] In support of his contention that he was a Quebec resident in the relevant time period, the Respondent provided evidence including:

• documents relating to a business he incorporated in 2000 and operated out of his Quebec address into 2009; - bank records; - firearms records; - income tax records; - land ownership records.

[22] Other documents were given as evidence of his efforts to further consolidate his status as a Quebec resident post-separation. For example, he had never obtained a Quebec health card, but had continued to possess his old one from Ontario until these proceedings caused him to rectify that situation.

[23] Still other documents were tendered to show that property that might indicate Ontario residency was in fact property related to his late father’s estate.

[24] On the other hand, the Respondent admitted that he was also in possession of an Outdoors card issued by the government of Ontario for all of the years during which the parties cohabited.

[25] Turning to the Applicant’s information, some of the “important facts supporting my other claims” that are set out in her Application are useful at least for background and also to the extent that they constitute admissions relevant to the issue of jurisdiction. These include:

• the relationship started in Ontario, they purchased a house together in Quebec and relocated; - the family home is in Quebec at 168 rue Pelletier, Saint-Roch-des-Aulnaies; - the home is registered solely in the Respondent’s name; - the Respondent’s father passed away on November 1, 2006 leaving property to the Respondent; - the Respondent and his father had properties, real and otherwise, held jointly prior to the father’s death. The Respondent did not become owner by way of the father’s estate. Thus the property is not subject to the will which contained a non-matrimonial property condition; - property the Respondent became the owner of was placed into a pre-existing joint account with the Applicant, thus becoming mixed. Funds in the joint account cannot be traced; - the parties supported themselves on jointly held property; - the parties invested funds from their joint account; - the parties have been unemployed for some time and have been living on savings and other incomes.

[26] In addition, the Applicant admitted at the case conference that:

• she filed her income tax returns for the years 2000 through 2008 in the Province of Quebec and that for the year 2009, although she filed her return in Ontario, it was with respect to income earned in Quebec; - for the years 2000 through 2009, she was issued a driver’s licence in Quebec. She applied for a licence in Ontario after separation.

[27] The Applicant’s financial statement lists in her assets the home at 168 rue Pelletier, Saint-Roch-des-Aulnaies, Quebec, and numerous items of personal property, including accounts in RBC and Caisse populaire. The locations of the financial institutions are not specified, but the Applicant’s affidavit of October 21, 2010 says most of their banking and investments were in Kirkland Lake, Ontario. Certainly, some of the records attached as exhibits to that affidavit are for the Royal Bank in Kirkland Lake in the 2006 to 2010 timeframe.

ANALYSIS

[28] Taking the available information into account, I find that, on the balance of probabilities, the parties were ordinarily resident in the Province of Quebec during their common law relationship and until it ended in separation. They maintained some historical connections to Ontario, and more specifically to the areas within it where they had their roots, but I do not find that these rise to the level of either of them being ordinarily resident in both provinces. That connecting factor would be sufficient to ground jurisdiction in the matter in Quebec. Likewise, the presence of property in Ontario is a connecting factor which would ground jurisdiction here.

[29] In saying this, I am aware that the Applicant’s counsel stated in submissions that she was not seeking a share of the “matrimonial home” in Quebec, and also that the Applicant did not list the Respondent’s Ontario real estate in her financial statement. However, I am concerned here with connecting factors and jurisdiction. It remains to be seen how the case evolves, whether positions change, what amendments might be sought to the pleadings, and what the merits of the respective claims might be.

[30] However, that is not the end of the analysis. Forum conveniens must be considered. There are a number of factors that point to Ontario being the forum conveniens in this matter.

[31] Although the couple’s house is located in Quebec, any interest that the Applicant would have in that property would be based on a claim in equity. The Ontario Superior Court of Justice has jurisdiction to declare that a party has an equitable claim on property in Quebec (Johnston v. Adam, 2011 ONSC 3808).

[32] The balance of the property, whether or not it is ultimately in issue, is either personal, or is real estate in Ontario.

[33] The Respondent’s motion challenging jurisdiction was first returnable nearly four years ago. It has not been pursued diligently.

[34] In the meantime, the case has proceeded here in Ontario to some extent. A substantial amount of information has been produced in the form of pleadings, affidavits, financial statements and exhibits. Some examinations have also taken place, as have some conferences. There would be a considerable cost to starting over in another jurisdiction.

[35] At least arguably, the Respondent has attorned to Ontario’s jurisdiction, but this point was only mentioned, not strenuously pursued.

[36] Both parties have a connection to this area in Ontario, historically and ongoing. The Respondent would not be forced to travel to an unfamiliar setting for court purposes in Ontario. He would be doing so at times anyway, one would suspect, because of his properties and ongoing estate matters here. Unless and until he sells his house in Kirkland Lake, he would have a place to stay, reducing the costs involved in dealing with this matter in Ontario.

[37] There appears to be no concern for conflicting judgments, as the Respondent’s proceedings in Quebec have been stayed, as previously mentioned.

[38] Enforcement would be possible, as there are assets in Ontario.

ORDER

[39] Therefore, there shall be an order as follows:

1- The case shall continue in the Province of Ontario. 2- The Respondent’s motion for summary judgment is dismissed. 3- The Respondent shall serve and file his Answer and Financial Statement within 45 days of the date this order is issued. 4- The Respondent may file his documents with the court by regular mail, provided the appropriate filing fee accompanies the documents, and the court office is directed to accept those documents for filing notwithstanding any apparent deficiency in the documents. 5- Costs of this motion are reserved to the trial judge.

Justice J.A.S. Wilcox

Released: May 6, 2015