COURT FILE NO.: FC-14-2698 DATE: 2016/09/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Galina Barkan, Applicant AND Alexander Ovodov, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Evgeny Kozlov, for the Applicant James Jeffcott, for the Respondent

HEARD: September 1, 2016

Endorsement

Overview

[1] The Respondent requests an order dismissing the Applicant’s claim for child support brought in Ontario due to lack of jurisdiction. The Applicant and the child reside in Russia and have never been in Canada. The Respondent lives in Ottawa, Canada, and is required to pay child support pursuant to a child support order rendered in Russia. In the alternative, if the Court has jurisdiction, the Respondent argues that it should not assume jurisdiction as he would face multiple proceedings and the Applicant is “forum shopping.” If the Court assumes jurisdiction, Russian law applies.

[2] The Applicant opposes the motion and indicates that due to the Respondent’s irregular support payments, she requires an Ontario Court child support order to enforce payments. She submits that the Court should assume jurisdiction and apply Ontario law.

[3] This motion raises the following issues: − Does this Court have jurisdiction to entertain the Applicant’s claim for child support in Ontario? (jurisdiction simpliciter) − Even if the Court has jurisdiction, should it be assumed? − If the Court assumes jurisdiction, what law applies, Russian law or Ontario law?

[4] For the reasons set out below, the Court finds that it has jurisdiction in this matter and it will assume jurisdiction. The appropriate law is the law of Ontario. The Respondent’s motion is dismissed.

Background

[5] The parties were married in Russia on October 6, 2000 and separated in August 2004. They were divorced in Russia on October 18, 2004. There is one child of the relationship, Alexander Ovodov, born in St. Petersburg, Russia on August 29, 2002.

[6] On October 11, 2004, the Russian court ordered the Respondent to pay 1/4 of his earnings as child support. Earnings were determined as those of an unemployed individual living in Russia. Child support was varied on October 8, 2015 in Russia and the Applicant was ordered to pay 1/6 of his earnings (with earnings determined as those of an unemployed individual living in Russia). At this time, the Respondent’s child support obligation is $142 (CDN) per month.

[7] The Respondent immigrated to Canada on November 7, 2005.

[8] In November 2014, the Applicant commenced an application for child support in Ontario and served the Respondent.

[9] The Respondent earns approximately $80,000 per year and has three dependents; his mother, his fiancée, and his infant daughter.

Respondent’s position

[10] The Respondent indicates that he has been consistent and regular in paying child support and it would be unfair to him if he had to face two support orders.

[11] The Respondent submits that the case at bar is similar to Sun v. Guilfoile, 2011 ONSC 1685 (“Sun”), where Justice Goodman found that the Ontario Court had no jurisdiction.

[12] The Respondent submits that since Russia is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”), the Russian court order cannot be varied in Ontario as it is not an order that can be registered pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Hence, as in the Sun case, the Applicant should not be permitted to vary the Russian order by commencing an application for child support in Ontario.

[13] He submits that if the Court determines that it has jurisdiction, then it should decline to exercise its jurisdiction as Ontario is not the forum conveniens for the following reasons: − the Applicant has no connection to Ontario; − the Applicant is forum shopping; − the child’s expenses are in Russia; − there is a multiplicity of proceedings as the Respondent continues to receive correspondence from Russia; − he is complying with support orders as otherwise he will be denied entry into Russia; − he does have a Russian bank account where child support is withdrawn; and − if an Ontario support order is rendered, he faces enforcement of two support orders in two jurisdictions.

[14] He submits that if the Court assumes jurisdiction, it must apply Russian law.

Applicant’s position

[15] The Applicant alleges that the Respondent has not been consistent in regularly paying child support, has no assets in Russia and consequently, she has applied for a support order in Ontario to permit her to enforce support in Ontario. The Applicant submits that the Court has “presence based” jurisdiction as the Respondent lives and works in Ontario and was properly served in Ontario. She relies on Long v. Seelman, 2012 ONSC 1342.

[16] She submits that a child support action is an action in personam and there is jurisdiction as of right.

[17] Once the court finds that it has jurisdiction to hear this matter, the onus is then on the Respondent to prove that Ontario is not the forum conveniens.

[18] The only recent ongoing issue in Russia is the enforcement proceedings through the bailiff’s office as the Applicant faces challenges in enforcing child support due to the Respondent’s residency in Ontario. She filed a termination of the enforcement. If Ontario assumes jurisdiction, then she would undertake to end the Russian court enforcement proceedings.

[19] From the outset, the Applicant states that she had to pursue him for child support. He was not co-operative in providing disclosure. In 2009, his mother paid the outstanding arrears owed at that time.

[20] In considering whether the Respondent has discharged his onus that Ontario is a forum non conveniens, the Court should consider the following: − there is no ongoing matter in Russia and hence there are no parallel proceedings; − she undertakes not to enforce the Russian order if this Court assumes jurisdiction; − the Russian order is based on the income that an unemployed Russian would earn, not the Respondent’s actual income; − he has failed to respect the Russian order, and he is on the “wanted list” for failure to pay child support; − his non-compliance of the Russian child support order has forced the Applicant to come to Canada to request child support; − the subject matter is dealing with a child, and declining jurisdiction would be a denial of the Applicant’s rights and the child’s rights; and − the Respondent has a moral and legal obligation to pay child support. He is paying less than the Child Support Guidelines. If the Court declines to exercise its jurisdiction, the Applicant cannot enforce child support.

Legal Principles

i) Legislative provisions

[21] The Respondent brings this motion pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106 which states:

“A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.”

[22] Rule 16(12) of the Family Law Rules, O. Reg. 114/99 (“FLR”), permits the Court to render a decision on an issue of law:

The Court may, on motion, (a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs; (b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or (c) dismiss or suspend a case because, i) the Court has no jurisdiction over it, ii) a party has no legal capacity to carry on the case, iii) there is another case going on between the same parties about the same matter, or iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).

[23] FLR 2(2)-(3), states that the court must deal with cases justly which includes: (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[24] The support provisions under the FLA do not require that a child be resident in Ontario when there is an application for child support.

[25] The ISOA deals with the registration and enforcement of orders made outside Ontario. Sections 17 and 18(1) read as follows:

17. This Part applies in respect of support orders, temporary support orders and orders varying support orders made in reciprocating jurisdictions in and outside Canada, but not in respect of provisional orders or provisional variation orders.

18. (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.

[26] O. Reg 53/03 establishes reciprocating jurisdictions. Russia is not a signatory.

ii) Jurisprudence

Jurisdiction

[27] As discussed in Muscutt v. Courcelles, 60 O.R. (3d) 20 (Ont. C.A.) and Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 (“Club Resorts”), a court’s jurisdiction to hear a matter may be established in a variety of ways. The most fundamental way is through what is called “presence-based” jurisdiction, i.e. the defendant or responding party is present within the jurisdiction of the court.

[28] An application for child support is an action in personam which can be exercised based on a Respondent’s submission by agreement or attornment, his ordinary residence in the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum.

[29] In addition, the FLA contains no residency requirement as it relates to the child. It would appear that the legislature intended the Ontario Courts to be able to make child support orders if the payor lives in the jurisdiction, regardless of where the other parent and child live. See the Alberta Court of Appeal decision in G. (A.) v. S. (L.), 2006 ABCA 311 (Alta. C.A.).

Forum non conveniens

[30] Once the Court finds that it has jurisdiction to hear the matter, the onus shifts to the Respondent to show that Ontario is forum non conveniens and that some other forum is more appropriate.

[31] In Muscutt v. Courcelles, the Ontario Court of Appeal established factors to consider when determining if a matter has a real and substantial connection to a jurisdiction and if the venue would be the most appropriate. These factors are: − the location of the majority of the parties; − the location of key witnesses and evidence; − contractual provisions that specify applicable law or accord jurisdiction; − the avoidance of a multiplicity of proceedings; − the applicable law and its weight in comparison to the factual questions to be decided; − geographical factors suggesting the natural forum; and − whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

[32] In Club Resorts, the Supreme Court dealt with individuals who were injured while vacationing in Cuba and subsequently brought actions for damages in Ontario. The Respondents brought a motion staying the actions on grounds that Ontario lacked jurisdiction or alternatively, the Court should decline to exercise its jurisdiction on the basis of forum non conveniens.

[33] For the Court to assume jurisdiction, it was found that the Respondent has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. There are presumptive connecting factors that prima facie, entitle a Court to assume jurisdiction over a dispute, including that the defendant is domiciled or resident in the province.

[34] At para. 104, the Supreme Court stated:

When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine

[35] The court in Nagra v. Malhotra, 2012 ONSC 4497 (“Nagra”) considered multiplicity of proceedings in relation to enforcement.

[36] The court stated at para.8:

As a constitutional principle, the courts of Ontario will have jurisdiction over a civil dispute where there is a "real and substantial connection" between the Province of Ontario and the dispute between the parties. It is only in such circumstances that the Ontario courts can legitimately exercise the state's power of adjudication over the dispute. In an effort to provide greater certainty and stability as to the existence of this jurisdiction simpliciter, the Supreme Court of Canada has adopted an analytical approach that recognizes certain "presumptive connecting factors". This approach focuses upon the identification of "objective factors" that might link the subject matter of the litigation to the court that has adjudicative jurisdiction over the dispute. This reliance upon a set of recognized (but not exhaustive) presumptive factors provides greater predictability than a regime based on the exercise of purely individualized discretion. This approach also promotes the key goals of fairness and efficiency. The presumption of jurisdiction that flows from the existence of any one of these objective connecting factors is not, however, irrebuttable. Accordingly, where the Ontario court finds that one or more of these recognized presumptive connecting factors applies (or is prepared to acknowledge a new presumptive factor), then the court will assume jurisdiction over the dispute unless the defendant can [page450] rebut the operating presumption by demonstrating the absence of any "real and substantial connection" between Ontario and the dispute. Where none of the recognized or new presumptive connecting factors exist, however, the onus remains on the plaintiff to establish a sufficient connection between Ontario and the litigation. See Club Resorts Ltd. v. Van Breda, at paras. 30-35, 64, 75, 78-81.

[37] The defendant in Nagra had no assets in Vermont so if the matter was heard in Vermont, the plaintiff would have had to register the order in Ontario for enforcement. The court stated:

Transferring the litigation to Vermont would clearly raise potential practical difficulties in the eventual recognition and enforcement of the judgment from this litigation, and would itself potentially cause a multiplicity of proceedings.

It is an accepted reality of this case that the defendant has no assets in the United States. All of his assets, including his family home, his medical practice, his corporate business interests and his other real estate properties are all located in Ontario.

Accordingly, for the plaintiff to eventually realize the proceeds of any monetary award that might potentially follow upon any successful litigation against the defendant, the plaintiff would have to secure a judgment that is recognized and enforced in Ontario. This reality is a factor that weighs in favour of permitting the proceedings to continue in Ontario (See Nagra, paras. 34-6).

Application of the legal principles in family law cases

[38] In Sun, the Respondent was successful in obtaining a stay of the Applicant’s application for child support. A Tokyo court granted a divorce and ordered the Respondent to pay child support in the amount of $600 per month per child. Both parties and their counsel were present at the time of the making of the order. The parties abided by the support terms from May 2008 until the application was brought in Ontario in 2010. At the time of the application, the Applicant had remarried and moved to Hong Kong.

[39] The Respondent had been in Ontario for six months working on a secondment for his American employer. There was a dispute of whether there was a “resident based” jurisdiction as he intended to return to the United States after his work had been completed. He had a Japanese bank account, no property in Ontario, and had not made an application for permanent residency in Canada.

[40] The court found that where a valid and subsisting foreign court order provides for support, there is no jurisdiction in Ontario to proceed with an originating application for support under s. 33 of the FLA as this would be a disguised variation application. The Ontario Court cannot vary a foreign order as Japan was not a reciprocating jurisdiction under the ISOA.

[41] Justice Goodman ruled that even if her conclusion that the court had no jurisdiction was wrong, Ontario was not the forum conveniens. Japan and Hong Kong were both the more appropriate forums. Hong Kong is a reciprocating jurisdiction under ISOA. The Applicant could have proceeded in Hong Kong but chose not to. The court stated that it was also a matter of public policy and the court should frown on “forum shopping.” There was no evidence that orders in those jurisdictions would be lower than those in Ontario. In addition, the Applicant was not alleging that the Respondent was in arrears.

[42] In Prichici v. Prichici, Justice Mesbur allowed an appeal from a support order rendered in the Ontario Court of Justice. The parties were married and divorced in Romania. The Romanian divorce judgment provided for child support and the payor immigrated to Canada while the recipient wife and children remained in Romania. The payor had pre-paid child support to a certain age and agreed to pay additional support if a child went to university. The mother subsequently started an application for child support in Ontario. There were some initial jurisdictional issues as to whether the wife was proceeding under the Divorce Act or the Family Law Act. The mother then took the position that she was moving to vary the Romanian agreement. Even though the appellate court stated that it was unclear upon what basis the court had taken jurisdiction, the court found that it had jurisdiction simpliciter.

[43] Nevertheless, the Court found that the appropriate place in which to litigate the support issue was Romania because the main witnesses and evidence were in Romania, the children’s expenses were incurred in Romania and the mother’s income was earned in Romania. The Court found that there was no inconvenience in dealing with this matter in Romania, even if the father was not there. Justice Mesbur remarked that matters had proceeded in his absence before. Also, the father remained a Romanian citizen and he travelled to Romania often to see the children.

[44] She also found that the parties agreed to be bound by Romanian law and jurisdiction. She then considered the loss of juridical advantage to the Applicant if she was forced to pursue her remedies in Romania which included the loss of the advantage of higher support orders in Canada. In addition, since Romania is not a reciprocating state, she could not avail herself of the enforcement remedies in Canada. As in the Sun case, the court found that that the father had always paid support and would continue to do so.

[45] She weighed the factors in determining whether the court should assume jurisdiction and her reasoning, succinctly elaborated in para. 38, is worth reproducing below:

Is the loss of potential juridical advantage enough to have the Ontario court take jurisdiction? When weighed against the other factors, it is not. As Sopinka J. said in Amchem at p.120, where there is a lack of connection between Ontario and the subject matter of the action, the Applicant “can have no reasonable expectation of advantages available in a jurisdiction which the party and the subject matter of a litigation has little or no connection.” Similarly, the court must also weigh the advantage to the Applicant of proceeding in Ontario against the disadvantage to the Respondent of doing so. Because this application is overwhelmingly connected to Romania, the father is entitled to have his obligations determined there, according to the law he and the mother agreed would apply. The mother must be discouraged from “forum shopping.”

It is clear that, in this case, the father, if not the Ontario Court of Justice judge, was concerned about the jurisdiction the court had to make an order for support in the face of a valid and subsisting foreign support order.

[46] In G. (A.) v. S. (L.), the parties had separated in Kazakhstan. A Court order in that jurisdiction required the father to pay child support, which he was irregularly complying with but more diligently after the mother applied for child support under the Alberta provincial child support legislation. The Court of Appeal noted that the motion judge had not specified the statutory basis for his conclusion that there was jurisdiction in Alberta that ought to be exercised. The appellate court found that jurisdiction simpliciter was present and that was subject-matter jurisdiction, based on Alberta's Parentage and Maintenance Act which did not contain a residency requirement. Therefore, the Alberta court had jurisdiction even if the mother and children lived elsewhere.

[47] The Court of Appeal noted the father’s concern that he would have two competing orders if the matter were to proceed in Alberta. However, the court was of the view that the concern could be answered by the undertaking made by the mother's counsel to ensure that the Kazakhstan order was vacated. The Court dismissed the father's appeal, but on the condition that no further steps are taken in the action until proof was filed in the Court of Queen's Bench that the Kazakhstan order had been vacated.

[48] In Kasprzyk v. Burks (“Kasprzyk”), the parties were married in Michigan, had one child in Michigan and were divorced by a Michigan court which required that the Respondent pay child support. The divorce judgment had been varied six times by the Michigan court and during that time, the Respondent moved to Ontario.

[49] According to the laws of Michigan, a court in that jurisdiction cannot order support for a child who is older than 19½ years unless the parties formally agreed otherwise and that agreement was included in the original judgment for divorce.

[50] The Court held that the Court has jurisdiction as he was properly served in Ontario. It held that an application for child support is an action in personam and according to J.M. Castel and J. Walker Canadian Conflict of Laws, 5th ed, (Markham: Butterworths, 2003), “the presence of the defendant in the territory of the forum has consistently been held at common law to be an independently sufficient basis for jurisdiction, sometimes called ‘jurisdiction as of right’ for actions in personam.”

[51] The next issue is whether the Court will assume jurisdiction under the question of forum non conveniens. The onus is on the Respondent to show that another forum is the convenient one. The Court in Kasprzyk held:

Considering those factors outlined, one comes to the conclusion that Michigan is the appropriate jurisdiction in which this matter should be heard. The majority of the key witnesses and evidence are located in Michigan. The child’s expenses are incurred in Michigan. The Respondent receives his income in Michigan. There is no inconvenience to any party in dealing with this matter in Michigan. Further, the Child Support Guidelines developed in Canada relate to Canadian costs and Canadian tax rates and the table amounts may not be an appropriate standard to apply in these circumstances. Therefore, all but one of the factors supports Michigan as the appropriate jurisdiction. The only factor that militates in favour of Ontario assuming jurisdiction is that the Applicant would lose juridical advantage if she was denied the ability to proceed. Indeed, she will only have a cause of action if this application proceeds in Ontario.

[52] In Sangale v. Abdalla, 2013 ONSC 5655 (“Sangale”), Justice Kiteley, dealt with a number of issues in proceedings straddling both Kenya and Ontario. On the issue of child support, the Court found that Ontario had jurisdiction but she chose not to assume jurisdiction for the following reasons: − the Respondent was disputing that he stood in loco parentis to one of the children and hence the evidence regarding that issue was available in Kenya (at para. 31); − the Guidelines provide for table amounts of support based on child related expenses incurred in Canada based on Canadian tax rates. She states that this does not mean that they are automatically applicable if the children live elsewhere (at para. 32); and − interestingly, she did not order a trial of an issue on whether Ontario was a forum non conveniens for the hearing of support. At para. 35, she states: “for reasons of justice, necessity and convenience, as well as the requirements of order and fairness, Kenya is the clearly the more appropriate jurisdiction for the determination of child support and spousal support issues than is Ontario.”

[53] In Gavriluke v. Mainard, 2013 ONSC 537, the Court dismissed a leave to appeal of the decision of a motions’ Judge who found that the Court had jurisdiction regarding child support and so should assume jurisdiction. The parties were subject to a final Order from France which included parenting and a provision that the Respondent pay child support. The Applicant and child moved to Ontario where she commenced an application for child support and change of custody. The French Superior Court declined to hear the Respondent’s motion to vary custody and access as a result of the outstanding application in Ontario. The Respondent took the position that the child support could not be heard in Ontario as there was a final Order in France. He conceded that custody/access could be heard in Ontario.

[54] Leave was denied as the Court found that the motions’ judge properly determined Ontario to be the proper forum for hearing all issues of custody, access and child support.

[55] In Kaur v. Guraya, 2011 ONSC 2853, the mother and children moved to Ontario from Washington. The Court found that it would take jurisdiction on the following conditions:

“ (1) her success in obtaining an order for custody or access which supersedes the parenting provisions contained in the Washington order; and (2) her undertaking not to enforce the child support provisions contained in the Washington order should a new order for child support be made.”

[56] In Long v. Seelman, 2012 ONSC 1342, Justice Gray found that the Ontario Court had jurisdiction to entertain the claim and that it should exercise it. The Court found that the Respondent had not discharged the onus of proving that Ontario was not a forum conveniens.

[57] The Applicant pleaded a juridical advantage both in terms of the merits of her claim and the enforceability of any child support order she may obtain. On the other hand, the Respondent perceived an advantage on the merits of the claim and the enforceability perspective, if the matter was heard in China.

[58] The child was born in China and lived with her mother there. The child has no connection to Ontario. The Respondent lived in Ontario and travelled to China seven times per year on business.

[59] Justice Gray considered the factors set out in Muscutt and found as follows: − the Respondent’s income and assets were in Ontario; − no other proceeding has been commenced, and there was no risk of multiplicity of proceedings; − the Applicant would have had significant juridical advantages if the proceedings were conducted in Ontario as the Court order was enforceable; − China is not a reciprocating jurisdiction under the ISOA; − in order to enforce an order from a Chinese court, a separate proceeding would have to be commenced, and it was uncertain as to whether the order would be enforceable in Ontario; and − the claim for child support was provable and calculable and there was no evidence as to how the Chinese courts would deal with such a claim.

[60] Justice Mackinnon briefly considered the matter of juridical advantage and forum shopping in Roberts v. Bedard, 2015 ONSC 7918. This case concerned a father who requested the quashing of an Ontario registration of a U.S. child support order. The mother and child had always been based in the U.S. While Justice Mackinnon upheld the order, she inferred that attempts to vary the order based on Ontario’s child support guidelines could potentially be seen as forum shopping.

[61] Juridical advantage is not in itself determinative but it remains one of several factors. Where the balance of factors indicate that one jurisdiction is preferable to another, then the court is likely to deem that jurisdiction forum conveniens, even if a party correctly asserts that it will lose juridical advantage. In Knowles v. Lindstrom, 2014 ONCA 116, a common law spouse who lived in Ontario moved to Florida to reside with her wealthy partner. Her partner purchased properties in Muskoka and she claimed an interest in them based on unjust enrichment. She also claimed support based on Part III of the FLA. The Respondent claimed that Ontario was not the appropriate forum but the motions judge rejected this. The Respondent appealed, claiming that the motions judge placed undue weight on juridical advantage. The Court of Appeal upheld the decision, noting that Ontario was deemed forum conveniens on a balance of the relevant factors, not just juridical advantage (at para.43-4).

Analysis

Does this Court have jurisdiction to entertain the Applicant’s claim for child support in Ontario?

[62] The Court finds that it has jurisdiction to hear this Applicant’s claim for child support for the following reasons.

Presence-based jurisdiction

[63] There is no dispute that the Respondent is present in this jurisdiction, resides in Ontario’s jurisdiction and was properly served with the application.

In personam claim

[64] This application for child support is an action in personam which can be exercised based on a Respondent’s his ordinary residence in the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum.

[65] As this application for child support is an action in personam and the Respondent’s ordinary residence is in this jurisdiction, the Court has jurisdiction.

[66] The Court does not agree with the argument that it lacks jurisdiction because Russia is not a reciprocating state under the ISOA so orders from its courts cannot be registered here for the purposes of a variation.

[67] Rather, as Russia is not a reciprocating jurisdiction under the ISOA, the Court cannot vary the Russian Order pursuant to s. 37 of the FLA, as it cannot be registered in Ontario.

[68] However, this is not a variation application but an application in first instance and the Court has jurisdiction on an issue which deals with an in personam issue.

No residency requirement under the Family Law Act

[69] The FLA contains no residency requirement as it relates to the child.

[70] Unlike the Children's Law Reform Act, RSO 1990, c C.12 (“CLA”) which deals with custody and access, there is nothing in the FLA requiring a child to be resident in Ontario for a child support order to be made.

Even if the Court has jurisdiction, should it be assumed?

[71] Once the Court has determined that it has jurisdiction to entertain this claim, then the onus shifts to the Respondent to establish that this Court is not the “forum conveniens”.

[72] For reasons set out below, the Court finds that the Respondent has failed to discharge his onus.

[73] The various factors to consider are as follows:

(1) The location of the majority of the parties

[74] The parties are in separate jurisdictions. Therefore this factor is neutral in the analysis.

(2) The location of key witnesses and evidence

[75] In Ontario, child support is calculated with reference to parental income and the child’s expenses. The Respondent’s income information is in Ontario. The Applicant’s income information is available in Russia. Although the child’s expenses are in Russia, the Applicant has not specifically requested a sharing of s. 7 expenses.

[76] The Respondent is claiming undue hardship in his answer and the evidence regarding that claim is found in Ontario.

[77] There is no inconvenience to the Respondent in having the matter heard in Ontario. He will not need to travel, and any relevant witnesses in relation to his income or assets will, in all likelihood, be from Ontario. It will be far less costly for the Respondent to litigate the matter in Ontario. Any inconvenience in having the matter heard in Ontario will be primarily to the Applicant, and the Applicant is willing to suffer the inconvenience.

[78] The Court has no information on what Russian law would expect in evidence.

[79] This factor is in favour of the Ontario forum.

(3) Contractual provisions that specify applicable law or accord jurisdiction

[80] This factor is not relevant here.

(4) The avoidance of a multiplicity of proceedings

[81] The Respondent is currently the payor under a support order. He continues to receive correspondence regarding the enforcement of the same. He submits that allowing the Ontario Court to assume jurisdiction will expose him to two proceedings and two different court orders.

[82] The Applicant indicates that there are no proceedings regarding the variation of the support order in Russia.

[83] She indicates that she will withdraw the enforcement of the Russian support order in the event that this Court assumes jurisdiction.

[84] This factor weighs in favour of the Russian forum but if the Applicant withdraws her Russian order, then this factor may not be an issue for the Respondent.

(5) The applicable law and its weight in comparison to the factual questions to be decided

[85] The Applicant now has the Respondent’s tax information. She submits that she could obtain a higher support order in Russia than in Ontario. Her counsel submits (without providing any Russian jurisprudence) that if support is determined based on the Respondent’s annual income of $80,000, his child support obligation in Russia would be $1,111 per month. In Ontario, his guideline amount would be $724 per month.

[86] The law in Ontario is that he pays the table amount in accordance with the province where he resides. If he claims undue hardship, then he must apply the rigors of the formula and considerations set out in s. 10 of the Guidelines.

[87] The Court has no information regarding Russian law and hence cannot make a true comparison of the two jurisdictions and how each of them would determine the issues of child support. Therefore this factor does not favour either jurisdiction.

(6) Geographical factors suggesting the natural forum

[88] There are no geographical factors that weigh in favour of either jurisdiction. Each party will endure costs and inconvenience regardless of the forum. It is noteworthy, that the Respondent prefers the Russian jurisdiction even though the support order would be higher for him there and he would incur costs. On the other hand, the Applicant is prepared to incur the costs of the forum being in Ontario which will likely provide a lower support order. However, she wishes to avail herself of the support enforcement mechanisms.

(7) Would declining jurisdiction deprive the Applicant of a legitimate juridical advantage available in the domestic court?

Overview

[89] Does the Applicant have a legitimate juridical advantage available in Ontario?

[90] If this Court assumes jurisdiction, it will provide the Applicant with the ability to enforce child support through the Family Responsibility Office.

[91] The Applicant submits that the Respondent has not been regular in his payment and that support is not based on his actual income as he previously failed to disclose his income. Her pleadings set out that the reason for her institution of proceedings. The prime thrust of the Applicant’s position is that she has had many challenges enforcing the child support order against the Respondent as he resides in Ontario and has no eligible assets in Russia.

[92] Upon advice from various sources, she commenced her action here in Ontario.

[93] In Breeden, the Supreme Court stated at paras. 27:

Juridical advantage not only is problematic as a matter of comity, but also, as a practical matter, may not add very much to the jurisdictional analysis. As this Court emphasized in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, “[a]ny loss of advantage to the foreign plaintiff must be weighed as against the loss of advantage, if any, to the defendant in the foreign jurisdiction if the action is tried there rather than in the domestic forum” (p. 933). Juridical advantage therefore should not weigh too heavily in the forum non conveniens analysis.

Russian proceedings

[94] The brief history of enforcement in Russia provides a record that is contradictory, and inconsistent. Nevertheless, the history does demonstrate that the Applicant has experienced some challenges in enforcing the Russian order.

[95] In summary, the evidence below confirms that the Respondent has been derelict in his duty to pay child support on a consistent and regular basis. The evidence demonstrates a mixed record of being in arrears, up to date in payments, missed payments and at times, the payor was in a credit position.

[96] The Court finds that the Applicant, while trying to enforce support, was told on several occasions that the Russian authorities had limited ability to pursue child support from the Respondent as was not a resident of Russia.

[97] A Russian court order confirmed that she obtained a child support order on October 11, 2004 from the Justice of the Peace of the Judicial District No. 190 of St. Petersburg, Russia and that she instituted a writ of execution and enforcement. The level of support was set at ¼ of all his earnings based on the income of an unemployed individual.

[98] On October 25, 2005, the bailiff of the Federal Bailiffs’ Service instituted enforcement proceedings for recovery of child support arrears as he did not make payments. He was required to appear within five days.

[99] On November 7, 2005, the Respondent moved to Canada.

[100] A statement dated March 28, 2006 from the federal bailiff’s service child administration of St. Petersburg states that he has a debt of non-payment of support for 17 months and 24 days in the amount of RUB 34,131.78 based on the average wage in the Russian federation which is RUB 1920.30 (1/4 per one child). The Certificate of non-collectability dated March 28, 2006, confirmed that no property of the Respondent’s was found in St. Petersburg. The Bailiff’s report dated March 28, 2006 states “on impossibility to recover due to non-availability of the property of the debtor…”

[101] The Applicant states that he refused to provide proof of his Canadian income.

[102] A reference on the child support debt document dated August 9, 2006 states that the Applicant wanted to place the Respondent on the wanted list. On August 16, 2006, she received confirmation that the investigation procedure was terminated as he had paid the arrears. A further affidavit from the bailiff’s office confirmed that the Respondent was removed from the wanted list as he had repaid the debt on October 3, 2006.

[103] She states that his mother paid the accumulated arrears on March 10, 2009.

[104] The Applicant states that he did not pay child support for October 2013 and that from June 2014 to October 2014, he did not pay child support regularly. The September 2014 payment was short.

[105] A ruling for enforcement and recovery of child support dated April 10, 2014, shows the Respondent did not appear. It is not clear from the ruling if there were arrears but the document states that the Bailiffs’ Service would be granted a duplicate of the 2004 enforcement order as its copy had been misplaced.

[106] A December 16, 2014 reference shows enforcement proceedings were initiated on July 10, 2014 for enforcement and that the child support debt from June 17, 2011 to November 1, 2014 accumulated over 40 months and 15 days.

[107] His monthly child support was RUB 7982.25 as of November 1, 2014.

[108] In the February 3, 2015 decision in the name of the Russian federation, the Court stated that: “He did not appear at court, she was asking for termination of his parental rights for failure to pay child support. It is a measure of last resort. Contact by father is a phone call each year on his birthday, and sends him a present annually. Court noted that an account was opened for the Applicant for the deposit of child support for years 2008 and 2009. The court warned the defendant that in the future his rights could be terminated if “he did not modify his attitude to the upbringing of his child regarding the insufficient attention to the son’s life”.

[109] On May 26, 2015, the Respondent, through his power of attorney, presented a claim to reduce alimony to 1/6 of his earnings.

[110] The Applicant’s affidavit sworn in Russia states that the Respondent’s 2011, 2012 and 2013 tax returns were filed in St. Petersburg and that based on the recalculation, he now owes 2,310,441.68 rubles. She thought he had agreed to the recalculation of child support based on his actual income. He then changed lawyers and no longer agreed to a change of support.

[111] The Bailiff’s ruling on assessment of child support debt dated February 3, 2016 states that the debt recoverable from the Respondent was RUB 2,310,441.68

[112] On the other hand, the Respondent indicated that he advised the Russian enforcement of his immigration to Canada and contact information, and was in constant communication with them. His mother returned on several occasions to deal with the ongoing Russian proceedings.

[113] He states that from 2004 to 2005, child support was withdrawn from his Russian bank account and paid to her account.

[114] From 2005 to 2015, child support was paid in person at the Russian enforcement office by his mother on his behalf and paid to the Applicant’s bank account.

[115] He states that the resolution dated February 3, 2015, confirms that money was transferred to her account. af dated August 25, 2016 with attached exhibits documents in Russia.

[116] In his affidavit of August 25, 2016, the Respondent alleges that some of the documentation was falsified by the Applicant. A resolution dated July 26, 2016 purports to be a resolution terminating the enforcement proceedings by the execution creditor but can be reserved on the initiation of the creditor. Therefore, according to him there are no arrears.

[117] He states that the 2011, 2012 and 2013 tax returns were sent and he disagreed with them as they wished to calculate support based on gross income rather than net income (after taxes).

[118] The bank account statements show payments for the years 2003 to 2016. The Applicant indicates that the payments were not consistent. Some of the documentation is in Russian and hence not comprehensible to the Court. Nevertheless, recent years’ documentation shows a more consistent pattern of payments than in earlier years.

[119] A July 26, 2016 resolution states that the enforcement proceedings be terminated, as requested by the creditor.

[120] In summary, the Court finds that despite the Respondent’s evidence that payments were made, the payment history demonstrates a checkered and inconsistent payment record.

Conclusion

[121] After applying the various factors set out in Muscutt, the Court finds that the majority of the evidence is Ontario, the juridical advantage to the Applicant in obtaining a support order which is enforceable is more attractive to her than proceeding in the Russian court to obtain a higher support order which is unenforceable in Ontario, the child will benefit from regular support and the Respondent will not be prejudiced as he will pay a lower amount of support. In addition, if he proceeds with his undue hardship claim, then the evidence to establish this claim is in Ontario.

[122] As Justice Sopinka noted in Amchem at para. 21:

The choice of the appropriate forum is still to be made on the basis of factors designed to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage to one of the litigants at the expense of others in a jurisdiction that is otherwise inappropriate”.

[123] For additional clarity, the Supreme Court of Canada in Bredeen ruled that while no one factor is determinative, the overall picture should lean one way or another (at para. 37)

[124] The Nagra case acutely addresses how problems enforcing judgments can lead to a multiple proceedings. In the matter at hand, it could be argued that by the court assuming jurisdiction in Ontario, the enforcement matter is likely to find closure.

[125] In Prichici, the judgment was varied several times under Romanian law, to take into account the husband’s changed circumstances in terms of his income, and the impact of rampant inflation in Romania. The last of these variations occurred in 1994. As a condition of his application to Canada, the father had to resolve the support issues by way of a separation agreement before leaving Romania. The Court did not assume jurisdiction holding that the loss of potential juridical advantage is not enough to have the Ontario Court take jurisdiction and that the Court must weigh all the factors.

[126] Here, the Court must weigh the advantage to the Applicant of proceeding in Ontario against the disadvantage to the Respondent of doing so. What is the disadvantage of the Respondent’s case being decided in his jurisdiction? He will pay lower amount of support and if his undue hardship claim (which will require evidence from Ontario), he could potentially pay less than the Guideline amount. Based on the current income, he would have to pay more in Russia.

[127] The Court cannot find that this application is overwhelmingly connected to Russia.

[128] The Applicant cannot avail herself of the enforceability of support orders in the foreign jurisdiction, i.e. Russia is not a signatory of ISOA.

[129] Although the Applicant should not be encouraged in “forum shopping,” it is clear that she has expended much time and effort through the Russian agencies to pursue child support. She was told repeatedly that there was little they could do as he had no assets in Russia. She was encouraged from various third parties to pursue child support in Ontario.

[130] Unlike the Sun and Prichici case, the Respondent has not been regularly paying support. This case is not similar to the Kasprzyk case where variation of the Michigan order occurred six times and key witnesses and evidence were in Michigan. The Canadian laws and tax rates are different. However, information here is that he would pay more in Russia.

[131] In Sangale, the father was contesting the allegation that he stood in loco parentis to a child. The evidence regarding this issue was in Kenya. In the Gavriluke and Kaur case, there were parenting issues that were required to be dealt as well.

[132] In Long there was no other proceeding in China and no ISOA so enforcement was necessary. Even though the Respondent visited China three times per year, it was important for enforceability purposes that the application be allowed to continue.

[133] Unlike the Sun case, there were different facts at play including the fact that the mother lived in Hong Kong which was a reciprocating jurisdiction under ISOA. The Respondent was not unequivocally determined to be a resident of Ontario and the father had been diligently paying support and had assets in Japan.

[134] This case is more in line with the Alberta Court of Appeal case of G.(A.) v. S.(A.) where the Respondent was irregularly paying child support ordered in Kazakhstan but more so after the Canadian application was commenced. The Court there assumed jurisdiction on the condition that the mother withdraw the foreign court order.

[135] Therefore, the Court finds that the Respondent has not discharged the onus of satisfying this Court that this is “forum non conveniens.”

[136] Ontario is the appropriate forum for the disposition for the support claim. In doing so, there will be a timely and enforceable child support order that will be available to the Applicant on behalf of the child. The child’s financial needs will be met on a regular basis.

[137] Therefore, the application may proceed on the condition that no further steps be taken in the action until proof is filed that the Russian order has been vacated and the enforcement proceedings in Russia have terminated.

If the Court assumes jurisdiction, would Russian or Ontario law apply?

[138] There is no evidence before the Court that the proper law to apply is Russian law. No jurisprudence was provided that would support a ruling that an Ontario court in this matter should apply Russian law. Accordingly, the Court will apply Ontario law.

Costs

[139] If the parties cannot agree on the issue of costs, the Applicant may provide her two-page written submissions on costs, along with a bill of costs and offers to settle by October 11, 2016 and the Respondent may provide his two-page written submissions on costs and offers to settle by October 25, 2016. The Court notes that the Respondent filed his sealed bill of costs at the commencement of the motion.

Madam Justice A. Doyle

Date: 2016/09/29