Endorsement
COURT FILE NO.: FC-15-123
DATE: 20151216
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Courtney Gayle Roberts, Applicant
AND
Erik J. Bedard, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: James W. Jeffcott, for the Applicant
Mary Jane Binks, for the Respondent
HEARD: December 10, 2015 (at Ottawa)
ENDORSEMENT
[1] Mr. Bedard has brought a motion seeking an order to set aside registration of an Order pursuant to section 20(2) of the Interjurisdictional Support Orders Act, S.O. 2002, c. 13 (ISOA). The Applicant has registered an order for child support made in Pennsylvania for the purposes of enforcement in Ontario. She intends at a later date to seek variation of this registered order. The Respondent asks to set aside the registration on the basis that he is not ordinarily resident in Ontario as is required by legislation. He also opposes the registration on the grounds that it is contrary to public policy.
[2] Sections 20(2) and (4) of the ISOA provide:
(2) Within 30 days after receiving notice of the registration of the order, a party to the order may make a motion to the Ontario court to set aside the registration.
(4) On a motion under subsection (2), the Ontario court may,
(a) confirm the registration; or
(b) set aside the registration if the Ontario court determines that,
(i) in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,
(ii) the order is contrary to public policy in Ontario, or
(iii) the court that made the order did not have jurisdiction to make it.
[3] Section 18 of ISOA is also relevant in that it includes the premise that the person against whom enforcement is sought does have ordinary residence in Ontario:
- (1) To enforce an order to which this Part applies, the claimant or the appropriate authority of the reciprocating jurisdiction shall send a certified copy of it to the designated authority, together with information about the location and circumstances of any party who is believed to ordinarily reside in Ontario.
[4] I have concluded that Mr. Bedard is ordinarily resident in Ontario as required for registration of a foreign support order for enforcement in Ontario and that the other issues he raises are appropriately dealt with in the event the Applicant does apply in Ontario to change the terms of the Pennsylvania order.
[5] The salient facts may be stated briefly. The Applicant has no connection to Ontario. She and the parties’ child currently live in Kentucky, and neither has at any time lived in Ontario. The Respondent is a Canadian citizen, born and raised in Ontario. He has not worked or attended school in Ontario since 1998. He has been employed as a professional baseball player, and more recently coach, in various parts of the United States. His most recent job was in Arizona; however, he was laid off in October 2015. He is currently unemployed and seeking work with Major League Baseball in the United States.
[6] The Respondent files taxes in the United States. He owns a number of properties, including a house in Navan, Ontario, and cottages in Calabogie, Ontario, and Maniwaki, Quebec. The total value of his real estate in Ontario exceeds $1 million. However, the bulk of the Respondent’s investments and cash are based in the United States. He purchased a condominium in Phoenix, Arizona, on August 17, 2015. He asserts that this is his current residence.
[7] The Respondent holds two driver’s licences: one from Ontario listing the house near Ottawa as his address, and a second from Washington listing an address at which the Respondent no longer resides. He also owns a number of vehicles, some of which are registered in Texas, and one of which is registered in Ontario. In addition, the Respondent has two boats and a skidoo registered in Ontario.
[8] The Respondent deposes that his general routine is to live in the United States for nine months, and return to Canada from mid-October to the end of January for the baseball off-season. This period often includes a two to three week trip to the United States. In his affidavit of October 9, 2015, he indicated that he had purchased a condo in Phoenix, Arizona, and that his intention is to live there on a permanent basis for nine months of the year. His wife is establishing a shoe company that she intends to operate from the Arizona condo. His wife shares custody of her son with his father, who resides in Gatineau, Quebec. For this reason she spends more time in the Ontario house than Mr. Bedard to facilitate the shared custody arrangement.
[9] Over the course of his career, Mr. Bedard has played for a number of different American baseball teams, including in Pennsylvania, Texas, Maryland, Washington, California, and Arizona. He has also spent considerable time in Florida for spring training.
[10] The Respondent is currently in the United States on a visitor visa, which restricts his stay in the United States to six months at a time. The Respondent intends to work in the United States and maintain his current living arrangements of nine months there and approximately 3 months in Ontario. He hopes to find work in baseball in Arizona, or elsewhere in the United States. He and his spouse have retained U.S. counsel to assist in obtaining permanent immigration status in the United States.
[11] The leading case on determining “ordinary residence” is Thomson v. Minister of National Revenue, 1946 1 (SCC), [1946] S.C.R. 209. In this case, the Supreme Court of Canada addressed the issue of whether the appellant was “ordinarily resident in Canada” for the purposes of the Income War Tax Act.
[12] The Court issued a number of rulings in this case, but the generally quoted interpretation of “ordinary residence” is that given by Estey J. at pages 231-232:
A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives. One "sojourns" at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question.
[13] In Thomson, the court relied on, among other circumstances, the “family ties of his wife…the erection of a substantial house, [and] the retention of servants” to find that the appellant was more than just a sojourner in Canada (at 214). The appellant had an established practice of moving into his residence in New Brunswick each spring, and remaining there until the fall before returning to the United States. On a normal year he would spend around 150 days or more in the New Brunswick home. The house was maintained so as to be available at any time, and Estey J. found that “his activities of life were centred on that point. It was from there he made his visits to other places” (at 231).
[14] This test was refined in MacPherson v. MacPherson (1977), 1976 854 (ON CA), 13 O.R. (2d) 233. The Court of Appeal held that the intentions of the parties are an important consideration in determining ordinary residence: “the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes the person ordinarily resident in that community” (at 239). However, the Court went on to note that intention alone cannot determine the issue.
[15] The issue of ordinary residence was considered most recently by the Ontario Court of Appeal in Knowles v. Lindstrom, 2014 ONCA 116. The Court affirmed that in family law matters a person can be “ordinarily resident” in more than one place at a time. This principle can be traced to Thomson and “reflects the reality of the lifestyle that some people lead” (at para. 32). As in Thomson, this case dealt with a wealthy individual who maintained residences in many jurisdictions.
[16] In Knowles, the wife brought an application for support under the Family Law Act – the Court noted that this application could also have been brought under the ISOA. The parties’ primary home was a mansion in Florida, and most of the husband’s assets were located in the United States. However, the couple spent a significant amount of time each year at a cottage property in the Muskoka region – between 40% and 60% of the year. On these facts, the court upheld the motion judge’s finding that they “had set up a pattern that included residence in Ontario, in a home owned by the respondent, on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence’” (at para. 31). The motion judge was not limited to considerations of “principle” or “primary” residence when determining “ordinary residence” for the purpose of jurisdiction.
[17] Determining the ordinary residence of a party is a heavily fact-based determination. The court must determine where in the settled routine of life the party regularly, normally or customarily lives. Where the settled routine involves customary residence in more than one home, the court may find that the party is ordinarily resident in more than one jurisdiction. Simply owning or maintaining property in a jurisdiction does not make one ordinarily resident there. It must be shown that residence at the property was part of the regular routine. The court may also consider the intentions of the party when determining where the party is ordinarily resident. This is not determinative, but can help clarify whether a stay at a given property was meant as a sojourn or as a long-term relocation, such as to establish ordinary residence.
[18] In this case Mr. Bedard spends three months of each year in Ontario. He has maintained a home here throughout. This has been the case for at least ten years and perhaps longer, although the record is not specific on a commencement date. He has maintained this pattern throughout his professional career, notably with many moves to a variety of the United States along the way. Mr. Bedard has worked and paid taxes in the United States, and has recently bought a home in Arizona. His stated intention is to reside in Arizona and to find work in baseball in Arizona, or elsewhere in the United States, for at least nine months of the year. He does not state an intention to abandon his established practice of returning to Ontario each year for the remaining three months. I find he does have the intention to maintain this practice.
[19] This case appears to fit within the framework of Knowles and Thomson, namely that Mr. Bedard is a wealthy individual who owns property in many jurisdictions. He lives in the United States during baseball season, and then returns to Ontario each off-season. Ontario is not just somewhere he intermittently visits. In Thomson, the Court identified an “element of permanence” as a defining feature of a place that someone is ordinarily resident. Mr. Bedard has lived in a number of different States to pursue his career, but has consistently returned to Ontario for the off-season. He maintains vehicle registration and licencing in Ontario, owns properties in Ontario, and returns to Ontario when he is not working. This suggests that he is not “sojourning” in Ontario. Living in Ontario is a part of his annual routine.
[20] In my view this establishes ordinary residence in Ontario for the purpose of registering the Pennsylvania order here for purposes of enforcement.
[21] Further the Respondent has not established any of the grounds set out in ISOA section 20(4) upon which the court could set aside the registration of the order. His submission was not that the Pennsylvania order is contrary to public policy in Ontario, but that the act of registering it here for enforcement purposes was an abuse of process, therefore contrary to public policy, and should not be allowed.
[22] In support of this submission Mr. Bedard relies on a variety of facts. First, he notes that Pennsylvania itself is no longer enforcing the order, and that it has been transferred to Kentucky for enforcement, at least temporarily. In my view, this argument is without merit. The order remains a valid order. Second he notes that he is not in arrears under the order, so that the Applicant has no need to enforce the order at this point in time. Nonetheless I do not agree it offends public policy for a support order recipient to want to register the order for enforcement in advance of arrears rather than having to wait until arrears actually accrue. This is particularly so where the payor’s mobility is such that enforcement, if necessary, may be very difficult to achieve.
[23] Third, the Respondent submits that what the Applicant really wants to achieve is the ability to bring a motion to change the Pennsylvania order in Ontario. In his submission this should not be allowed because he has already commenced a variation application in Kentucky, returnable for hearing tomorrow. He is seeking a reduction in support based on his current unemployment. In addition, he also has a pending case in Kentucky seeking contact with his daughter and counselling to repair their relationship. Accordingly were the Applicant to bring a motion to change in Ontario, as she says she intends to do, the outcome will be a multiplicity of proceedings, which the policy of the law is against. Additionally in his view, the Applicant is trying to gain a juridical advantage in the form of the Ontario Child Support Guidelines. In other words, he says she is forum shopping.
[24] Ontario may not be the most appropriate forum to deal with any future variation of the child support order. That issue was not properly before me for the simple reason that no such application has been commenced in Ontario. The Applicant declined the court’s offer to address it as part of the motion that was before the court, preferring to have the opportunity to do so fully at a later stage.
[25] Accordingly should the Applicant bring a motion to change the child support order in Ontario, this court will have to determine then whether Kentucky is clearly the better place to address the quantum of child support having regard to the actual residence of the mother and child, and other pertinent issues. See for example Knowles at paragraph 36: “in those cases that do smell of forum shopping, the doctrine of forum non-conveniens can relieve against the rigid application of a jurisdictional rule based upon residency where it is necessary to ensure a fair and efficient resolution of the litigation”.
[26] My conclusion on the Respondent’s third point is that it remains to be determined in the event the Applicant does bring a motion here to change the child support order.
[27] Based on my finding of ordinary residence the registration of the Pennsylvania order for enforcement in Ontario is not set aside.
[28] At the conclusion of the oral hearing counsel provided their costs envelopes and requested to make written submissions on costs after the release of my endorsement. Barring any offers to settle I may not be aware of, it does appear that the Applicant is the successful party and is entitled to costs of this motion. Should counsel be unable to resolve the issue, I will receive written submissions not to exceed three pages in length, and to be delivered by January 31, 2016.
Madam Justice J. Mackinnon
Date: December 16, 2015
COURT FILE NO.: FC-15-123
DATE: 20151216
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Courtney Gayle Roberts, Applicant
AND
Erik J. Bedard, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: James W, Jeffcott, for the Applicant
Mary Jane Binks, for the Respondent
ENDORSEMENT
Mackinnon J.
Released: December 16, 2015