Court File and Parties
COURT FILE NO.: FC-16-135 DATE: 2016/05/05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Hae Rim Jung Applicant – and – Hwa Jin Jung Respondent
Counsel: Julie Audet, for the Applicant Self-Represented
HEARD: April 21, 2016 (Uncontested)
REASONS FOR JUDGMENT
Mackinnon J.
[1] The applicant issued an application in this court on January 20, 2016. Included was a claim for a divorce. Neither the applicant nor the respondent had been resident in Ontario for the 12 months preceding the issuance of the application.
[2] The application also includes claims for relief under the CLRA and FLA, for custody of the parties’ child and for child support for him. In addition the parties are joint owners of real property located in the Province of Quebec. Part of the relief requested is that the Ontario court make in personam orders against the respondent requiring him to sell the property, or to enable the applicant to sell it for them, so that his share of the net equity in that property would then be paid to the applicant as child support.
[3] The respondent was served pursuant to an order permitting service by email and substitutional service upon his brother. He did not defend the case. He has not contributed to the support of the child since separation on April 20, 2014, and he is said to have moved to the Island of Fiji to join a religious order.
[4] Jurisdiction is asserted against the father on the basis of Ontario’s “real and substantial connection to the matter being litigated”: Jasen v. Karassik, 2009 ONCA 245, 95 O.R. (3d) 430, at para. 16. Of particular importance, the mother and the child live in Ontario. This is sufficient to establish a real and substantial connection between Ontario and the litigation: Parrish v. Navarro, 2014 ONCA 856, at para. 5. In addition, refusing jurisdiction would work unfairness on the mother and child, while assuming jurisdiction would work no unfairness on the father who has chosen not to defend the case. There is no more convenient forum for the action.
Jurisdiction to grant the Divorce
[5] Section 3 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), sets out the jurisdiction of courts to hear and determine divorce proceedings:
3(1) 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.
Jurisdiction where two proceedings commenced on different days
(2) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.
Jurisdiction where two proceedings commenced on same day
(3) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.
[6] The Applicant acknowledges that neither spouse has “been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding”. However, the Applicant argues that this section “was not intended to preclude the filing of a divorce application by a spouse who has been a resident of Canada for well over one year from claiming a divorce in the province in which he or she resides ordinarily at the time the application is filed, in circumstances where such divorce application cannot be filed in any other Canadian province.” The applicant resided in Quebec from 2009 until October 2015, when she moved to Ontario.
[7] The Applicant referred me to Willenbrecht v. Willenbrecht (1999), 120 O.A.C. 274 (C.A.). However, in that case the court’s jurisdiction under s. 3(1) was never at issue. Rather, Willenbrecht dealt with s. 3(2), which determines which court has jurisdiction where an application is commenced in two different provinces, both of which have jurisdiction under s. 3(1).
[8] The Applicant also referred to Butt v. Mills (1990), 82 Nfld. & P.E.I.R. 42 (Nfld. U.F.C.). That court found jurisdiction under s. 3(1), ruling that the mother’s absence from Newfoundland in the previous 12 months was temporary or transitory: her ordinary residence remained Newfoundland for the entire period of time (at paras. 19-21). The judge noted in obiter that “if circumstances forced her to move to another province a second time in the near future, it could be she would have to wait an additional 12 months from the date of that move before another petition for divorce could be heard.” The specific finding that the absence from the province of ordinary residence had only been temporary or transitory does not apply to the facts before me.
[9] In general, courts have strictly interpreted s. 3(1). The prevailing view is that “there is no naturally existing right to a divorce, but rather a right, based in statute, to present a petition for a divorce”: Garchinski v. Garchinski, 2002 SKQB 323, at para. 25. The leading case for this proposition is Winmill v. Winmill (1974), 47 D.L.R. (3d) 597 (F.C.A.). In Winmill, the applicant argued that the Federal Court should exercise jurisdiction to hear her divorce under s. 25 of the Federal Court Act, which provision allows the Federal Court to hear claims for relief where no other courts in Canada have jurisdiction. The applicant did not meet the residency requirement in any individual Canadian province. The Federal Court of Appeal rejected her argument, holding that the Divorce Act does not grant a right to divorce, but a limited right to apply for divorce subject to the conditions of the Act:
Unless the petitioner is domiciled in Canada and he or his spouse has been ordinarily resident in a province for at least one year immediately preceding the presentation of a petition to the court for that province, no right to a divorce or to present a petition for a divorce or to relief in respect of such a petition in any court has been conferred. (at pp. 600-601).
[10] This issue was more recently considered in Thurber v. Thurber, 2002 ABQB 727 and in Jadavji v. Jadavji, 2001 BCSC 767 (Mast.), aff’d 2001 BCSC 1027. Faced with a situation where neither party had been ordinarily resident in any one Canadian province for the preceding year, these courts acknowledged that the residency requirements of the Divorce Act may leave spouses temporarily without a jurisdiction in which to apply for a divorce.
[11] In my view, that is the situation in which this applicant finds herself. The claim for divorce in the application is dismissed for want of jurisdiction.
The Quebec property
[12] The general rule is that Canadian courts cannot determine title to or an interest in a foreign immovable – including real property in other provinces: Montagne Laramee Developments Inc. v. Creit Properties Inc. (2000), 47 O.R. (3d) 729 (S.C.), at paras. 8-10. If a Canadian court cannot grant an effective judgement or an enforceable remedy concerning land outside its boundaries, it should decline jurisdiction to decide the dispute.
[13] The Applicant is correct, however, in pointing out that the Ontario Court of Appeal has held that Canadian courts can make orders to enforce personal obligations between parties that would affect land in foreign jurisdictions when exercising in personam jurisdiction over the defendant: Catania v. Giannattasio (1999). At para. 12 the court held that, “in order to ensure that only effective in personam jurisdiction is exercised pursuant to the exception, the courts have insisted on four prerequisites:”
(1) The court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court.
(2) There must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it...
(3) The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment.
(4) Finally, the court will not exercise jurisdiction if the order would be of no effect in the situs. The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.
[14] Catania refers to Canadian courts and foreign jurisdictions, but the same principles apply within Canada amongst provinces and territories. Unless the circumstances fit within the exceptions an Ontario court ought not to accept jurisdiction over land situated in another province.
[15] This court does have in personam jurisdiction over the respondent. An application for child support is an action in personam: see e.g. Prichici v. Prichici (2005), 14 R.F.L. (6th) 425 (Ont. S.C.), at para. 27; Kasprzyk v. Burks (2005), 15 R.F.L. (6th) 221 (Ont. S.C.), at para. 12; Montrichard v. Mangoni, 2010 ONCJ 252, at para. 45. Canadian courts have also held that a support obligation meets the second requirement: see e.g. Welsh v. Welsh, 2011 ABQB 686, at paras. 20-22.
[16] In this case the real question, then, is whether this court can make an in personam order against the respondent capable of meeting the third and fourth criteria.
[17] This question has been addressed in a number of family cases, with mixed results. In Macedo v. Macedo (1996), 19 R.F.L. (4th) 65 (Ont. Gen. Div.), the parties had been married in Portugal and held property both there and in Canada. The payor husband had not been making support payments, and resisted the sale of the Portuguese property. The wife sought an order vesting title in the Portuguese property absolutely in her.
[18] At paragraphs 18-19, Justice Beaulieu held that the court lacked that jurisdiction to grant the requested order, but did have the jurisdiction to make an order for the sale of the property:
With respect to the Portugal property, the petitioner has asked the court to make an order vesting title to the property in her absolutely. There is no doubt that such an order would facilitate the sale of the property, and the subsequent distribution of the proceeds of sale. Other than the Respondent's counsel pointing out the enforcement difficulties associated with the making of such an order, no case law was provided to the court. Although the point was not argued before the court, a consideration of the relevant authorities has convinced the court that it lacks the jurisdiction to make such an order. It is trite law that the only court having jurisdiction to entertain proceedings with respect to immovable property is the court of the situs. Thus, Canadian courts do not have jurisdiction to make an order concerning right, title, or interest, to a foreign immovable (see J.-G. Castel, Canadian Conflict of Laws, 3rd ed., Toronto, Ont.: Butterworths, 1994, at p. 433; British South Africa Co. v. Companhia de Mocambique, [1893] A.C. 602 (H.L.); Duke v. Andler, [1932] S.C.R. 734; Re Palmer and Palmer (1980), 107 D.L.R. (3d) 401 (Sask. C.A.); Burns et al. v. Davidson et al. (1892), 21 O.R. 547 (H.C.J.); Aga v. Aga (Abad) (1990), 26 R.F.L. (3d) 67 (B.C.S.C.); Hanuse v. Hanuse (1984), 40 R.F.L. (2d) 250 (B.C.S.C.)). Therefore, the court has no jurisdiction to make an order vesting title to the Portugal property in the PetitionOntario Courtser. If the court had the jurisdiction to make such an order, it would have done so without hesitation in the circumstances of this case.
Having said this, the court is satisfied that it retains jurisdiction in personam against the Respondent in this jurisdiction. Consequently, the court is empowered to make an order for the sale of the property (see Braithwaite v. Braithwaite (1984), 40 R.F.L. (2d) 415 (Ont.H.C.J.) and Renshaw v. Renshaw (1983), 33 R.F.L. (2d) 252 (Ont. Co. Ct.)). Therefore, there will be an order that the Respondent sell the property as soon as possible, and the net proceeds are to be divided equally amongst the parties. The Respondent shall pay to the Petitioner one-half of the rental proceeds from the property in Portugal until such time as it is sold. I would further order that the Respondent has the choice of otherwise paying the Petitioner a lump sum payment of $57,000.00, representing her share of the family asset in question. The court recognizes that this part of the order may be difficult to enforce, however trusts that it shall be pursued as enforceable.
[19] In Wu v. Ng, 2014 ONSC 7126, 6 E.T.R. (4th) 104, the dispute before the court concerned an alleged interest in a condominium in Guangzhou City. The defendant brought a motion for summary judgment, claiming that Ontario lacked jurisdiction simpliciter and was forum non-conveniens. In this case, the defendant and two of the plaintiffs lived in Ontario, with all but one of the other plaintiffs living elsewhere in Canada.
[20] Justice Perell found that while an order vesting ownership in the Chinese property would be unenforceable, the court did have jurisdiction to grant an order relating to the claim for damages arising from the breach of a contractual obligation associated with this foreign property. This jurisdiction was grounded on the court’s in personam jurisdiction over the defendant as a resident of Ontario. As a result, Justice Perell dismissed the summary judgment motion, noting at paragraph 49 that:
The approach of exercising an in personam jurisdiction in circumstances where the court has no jurisdiction to make an order concerning the ownership of right, title or interest to a foreign property is frequently used in family law cases. For example, in Macedo v. Macedo (1996), 19 R.F.L. (4th) 65 (Ont. S.C.J.), Justice Beaulieu found that the court did not have jurisdiction to make an order vesting property located in Portugal to the non-titled wife but the court did have the jurisdiction to order the husband to sell the property and divide the proceeds.
[21] Other judges have refused to grant orders for the sale of foreign property where the order would be of no effect. Aning v. Aning (2002), 30 R.F.L. (5th) 237 (Ont. S.C.), involved an application for equalization of net family property, exclusive possession of the matrimonial home, custody, and spousal and child support. The husband was in arrears of support. The wife sought a court order transferring certain investment accounts into her name, along with the husband’s interest in the matrimonial home and a number of properties held by the husband in Ghana to satisfy the equalization payment and support arrears.
[22] In Aning, as in the case before me, the main issue was whether the third and fourth requirements were made out. After citing the test from Catania, Justice Pardu found at paragraphs 23-24 that the plaintiff could not meet the test:
In this case, the defendant was served in Ontario with the statement of claim and delivered a statement of defence. The defendant is obliged to make an equalization payment to his wife. On the other hand, there is nothing to indicate that this court could supervise the execution of a judgment for sale in Ghana, or that the order would be of any effect in Ghana.
Accordingly, the request of the wife for an order for sale of the real property owned by the husband in Ghana in order to effect payment of the balance of the equalization payment is dismissed.
[23] The court reached a similar conclusion in Cork v. Cork, 2014 ONSC 2488. In this case, the parties disputed the value and ownership of a family cottage located in Quebec, registered solely in the wife’s name, allegedly for tax planning and risk avoidance purposes. The husband had a proceeding before the Quebec court seeking a declaration that he was the real owner of the cottage. He asked the Ontario court to temporarily stay the calculation of the equalization of the parties’ net family properties pending that determination. Justice Warkentin found that the wife had been unjustly enriched, and that the elements regarding unjust enrichment existed with respect to the husband’s interest in the cottage property. The case turned on the remedy to be provided. Justice Warkentin was not satisfied that a monetary award would be appropriate in the circumstances of the case. To the contrary she was the view that he had established the elements on which a court could find that a proprietary remedy was the appropriate remedy. For that reason Justice Warkentin held at paragraph 86 that this was not an appropriate case to exercise the exceptional in personam jurisdiction over the trust issues related to the Quebec cottage:
This Court would not be capable of supervising the execution of a judgment should I find that the Husband has a proprietary interest in the cottage, the third prerequisite set out in Catania. It is also questionable as to whether the fourth criterion in Catania could be satisfied if I accepted in personam jurisdiction - that an order of this Court would be of no effect in the situs, - however, no evidence was led with respect to this possibility.
[24] I conclude from this that Justice Warkentin was not satisfied that were she to make an in personam order against the wife requiring her to transfer all or part of the title to the Quebec property to the husband, that such an order would meet the third criteria in Catania. While failure to comply with such an Ontario order could be sanctioned in Ontario by the court’s power of contempt, the Ontario court could not actually “supervise the execution” of its judgement.
[25] Acknowledging that the case law is divided on the point, my view is that the ability to find this respondent in contempt of an Ontario order to sell the Québec property would not meet the third criteria. I do not think that a finding of contempt simpliciter amounts to the ability to supervise the execution of the order.
My Order
[26] Based on the affidavit evidence filed, an order will go awarding sole custody of the child, Eun Hyo Jung, born April 24, 2005, to the applicant. Access between the respondent and the child shall be as agreed between the parents, and subject to any further order of this court. The applicant may obtain a Canadian passport and any other official documents for the child, without the respondent’s consent or signature. The applicant may also travel outside of Canada with the child without the respondent’s consent or written authorization.
[27] The respondent has a legal obligation to support the child and has not done so since the parties separated on April 20, 2014. The jointly owned matrimonial home was purchased in 2011 for $204,000. The current balance on the mortgage is $158,207. The applicant deposes that the house may currently be valued at $234,000, which is what the house next door sold for in 2015. Accordingly, based on these figures, there may be $75,793 of equity in the house, of which each joint owner is entitled to one half, or $37,896.50. The child of the marriage is only eleven years of age, and will be financially dependent upon the parents for many years to come. The respondent has chosen not to respond to this application or to file any financial information with the court. I am entitled to draw an inference from his conduct and do so. I infer that he has the ability to contribute to the child’s support by way of child support and section 7 expenses to an extent that will exceed his share of equity in the home.
[28] Section 34 of the Family Law Act sets out the powers of the court on an application for child support under s. 33. This provision allows the court to order a lump sum payment. I order the respondent to make a lump sum payment for child support equal to his one half share of the equity in the jointly owned home at 499 Sainte-Maxime, Gatineau, Quebec.
[29] It may be that the applicant will have the ability to register this judgment for enforcement under the Quebec legislation, An Act Respecting Reciprocal Enforcement of Maintenance Orders, c. E-19, that states that “A judgment rendered in a state, province or territory designated under section 10 ordering payment of maintenance may be executed in Québec in accordance with the conditions and formalities prescribed by this Act.”
[30] The applicant is entitled to costs of the proceeding. I have reduced the amount requested to reflect her mixed success. Costs are fixed at $6,500.00 inclusive of fees, disbursements and HST.
Madam Justice J. Mackinnon