ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA ANN SYER
Applicant
– and –
JAMES MICHAEL SYER
Respondent
Self-Represented
Gerry Smits – Counsel for the Respondent
HEARD: July 10, 2015
THE HONOURABLE MR. JUSTICE PAZARATZ
On March 13, 2015 the Applicant mother commenced a motion to change in Hamilton, Ontario.
She wishes to change an order dated January 29, 2013 pronounced by Justice P.R. Jeffrey of the Court of Queen’s Bench in Alberta. That order relates to the parties’ only child Alex, born March 17, 1997.
The January 29, 2013 order changed an earlier final order dated August 25, 2002 pronounced by Justice Romaine, also of the Court of Queen’s Bench in Alberta.
On May 1, 2015 the Applicant amended her Hamilton motion to change, requesting broader relief.
On June 23, 2015 the Respondent brought a motion for a declaration that the proper jurisdiction for the determination of the issues herein should be in the Court of Queen’s Bench of Alberta, Judicial District of Calgary – where the Respondent resides.
The Applicant’s original motion included requests for the following:
a. Termination of child support effective February 28, 2015.
b. Arrears of child support owing to the Respondent father to be fixed at $12,000.00 as of March 1, 2015.
c. Respondent to be found in contempt of five separate paragraphs of the January 29, 2013 order.
d. Reimbursement by the Respondent for half the cost of past Christmas flights for the child.
e. Recalculation of extraordinary expenses to ensure the Applicant does not contribute to fees paid under the Respondent’s health benefit plan.
- The Applicant’s allegations of contempt relate to:
a. Whether the Respondent provided at least one month’s advance notice in relation to certain access arrangements.
b. Whether the Respondent paid certain costs of transportation for the child between Alberta and Ontario.
c. Whether the Respondent paid his share of section 7 expenses.
d. Whether the Respondent made annual financial disclosure.
- The Applicant’s amended motion set out a request for different relief including:
a. Termination of child support retroactively.
b. Arrears owing to the Respondent father to be fixed at $2,000.00, repayable at $250.00 per month.
- In addressing the threshold jurisdictional issue, the Respondent submits:
a. The child Alex lived with the Respondent in Alberta until he turned 18, just a few months ago.
b. At all material times Alex has resided in Alberta with the Respondent.
c. The Respondent still resides in Alberta.
d. The child support arrears which the Applicant now seeks to rescind relate to periods when the child was in Alberta.
e. The Applicant’s request for a retroactive determination that Alex ceased to be entitled to receive support even prior to his 18th birthday relates to facts and evidence all situated in Alberta.
f. The Applicant’s request that the Respondent be found in contempt of the Alberta order relates to factual allegations based in Alberta.
g. If the Respondent is to face multiple allegations that he is in contempt, fairness requires that the determination of those issues occur where the Respondent – and potentially available evidence to defend the allegation – are situated.
h. In any event, given the long-standing and exclusive involvement of the Alberta courts, it is preferable that allegations of contempt be dealt with by the same court which made the original order.
- Perhaps most importantly, the Respondent notes that paragraph 8 of the Alberta order dated August 25, 2002 stated:
“The Court of Queen’s Bench of Alberta Judicial District of Calgary shall retain jurisdiction over the custody, access and support issues concerning the child of the marriage, namely, ALEX JAMES SYER.”
The Respondent submits this means the Alberta court is already seized of these issues.
The Applicant submits the August 25, 2002 order is no longer relevant on the jurisdictional issue.
a. Alex is now 18.
b. He has moved to Ontario.
c. He is independent so there is no ongoing child support.
The Applicant notes the more recent January 29, 2013 Alberta order did not continue the provision that the Calgary court would retain jurisdiction. The Respondent counters that the January 29, 2013 order simply varied certain specified portions of the August 25, 2002 order. He argues paragraph 8 of the original order was never specifically changed or rescinded, so it remains in effect.
The Respondent does not dispute the Applicant’s contention that Rule 5 of the Family Law Rules makes it possible for the Applicant to bring her motion here. But he submits that quite apart from the Alberta Court having seized itself of the issues, it is substantially more convenient that the collection of issues raised herein be determined where the original order was made, and where the child resided at all material times.
The Applicant referred to Club Resorts Limited v. Van Breda, 2012 SCC 17.
a. She submitted that on the threshold issue, there is a real and substantial connection with Ontario, because the Applicant resides here and the Family Responsibility Office is enforcing the Alberta order here.
b. On the secondary issue of forum conveniens she submitted it is more convenient and productive to deal with the case in Ontario because the Applicant is self-employed in this Province; all of her financial information is here; and if the child needs to give evidence he is also now residing in Ontario.
- The Applicant referred to Karkulowski v. Karkulowski 2014 ONSC 1222 where Mitrow J. stated:
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.
- I agree with the Respondent that the appropriate jurisdiction to deal with these issues is in the Court of Queen’s Bench of Alberta, in the Judicial District of Calgary, where the child always resided and where the Respondent continues to reside:
a. Paragraph 8 of the August 25, 2002 order remains in effect and is presumptively determinative of the jurisdictional issue.
b. This specific (and unusual) retention of jurisdiction was broad and open ended, reflecting specific considerations including the fact that the Applicant was already out of Alberta at the time.
c. The extensive variation of that 2002 order in 2013 was also in the Alberta Court. At that point the Applicant was well situated in the Hamilton area.
d. I do not accept the Applicant’s submission that the 2013 variation order terminated the jurisdictional provisions in paragraph 8 of the 2002 order.
e. In my view, for the Applicant to proceed in this jurisdiction, she would first have to commence a proceeding in Alberta to rescind paragraph 8 of the August 25, 2002 order.
- Even if rescission of paragraph 8 of the August 25, 2002 order is either available or unnecessary, the facts of this case otherwise satisfy me that the issues would most appropriately be dealt with in Alberta.
a. The Applicant seeks very broad relief, including a significant reduction of arrears and a retroactive termination of entitlement to child support. Those issues – particularly the latter – are very fact driven. And the majority of the evidence would appear to be available in Calgary.
b. I make no comment as to whether some of the Applicant’s complaints about the Respondent (such as non-payment of section 7 expenses) are appropriately the subject matter of a contempt proceeding. But contempt is a very serious allegation. Given the potential consequences of a contempt finding, it would be unfair to the Respondent to require that he defend these allegations in a Province he has no connection with.
c. Weighing all of the factors, and considering the availability of evidence and witnesses, I find that the Alberta court is in a better position to deal with this litigation fairly and efficiently.
The motion commenced by the Applicant in Hamilton, Ontario is stayed. The issues should be dealt with in the Court of Queen’s Bench of Alberta, in the Judicial District of Calgary.
Counsel can arrange to appear before me if any clarifications or amendments are required, other than in relation to costs. If only costs need to be determined, counsel should file written submissions on the following timelines.
a. The party seeking costs to serve and file written submissions within 21 days.
b. Responding submissions to be served and filed within 14 days.
c. Any reply submissions to be served and filed within 7 days.
d. These deadlines may not be extended by the parties.
Pazaratz, J.
Released: July 14, 2015
COURT FILE NO.: 4187/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA ANN SYER
Applicant
-and-
JAMES MICHAEL SYER
Respondent
REASONS FOR JUDGMENT
Mr. Justice A. Pazaratz
Released: July 14, 2015