CITATION: Ahmad v. Khalid, 2017 ONSC 7495

COURT FILE NO.: FS-15-0164-00

DATE: 2017 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANUM AHMAD

Lindsay G. Mills, for the Applicant

Applicant

• and -

SANAULLAH SAMEER KHALID

Roslyn M. Tsao, for the Respondent

Respondent

HEARD: November 30, 2017

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

1The Applicant has before me a motion for summary judgment pursuant to Rule 16 of the Family Law Rules, by which she is requesting an order that paragraph 1 of the temporary order of Emery J., made on consent and dated February 25, 2016, be made a final order.

2Paragraph 1 states,

“Ontario is the proper jurisdiction, to determine the issues raised in the Application, including but not limited to the custody and access issues relating to the child, Arman Essa Khalid, born January 9, 2015.”

3It is conceded by the Respondent that this court has jurisdiction in regards to the issues of custody, access and child support. The issues regarding property and the divorce are before a court in Pennsylvania.

4Accordingly, what the Applicant is seeking is a finding that this court, in effect, has jurisdiction over the issue of spousal support.

5The Respondent is currently, on a temporary basis, under order to pay spousal support of $7,500 per month.

6Rule 16(1) states,

“After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgement for a final order without a trial on all or part of any claim made or any defence presented in the case.”

7If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly (ss. 6).

8Unless it is in the interest of justice for such powers to be exercised at trial I am entitled to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence (ss. 6.1).

BACKGROUND

9The parties were married on November 22, 2013, and separated on January 9, 2015. During the marriage the parties resided together in the State of Pennsylvania. The Applicant deposes that the Respondent unilaterally arranged to have all of her and the child’s possessions shipped to the Applicant’s parent’s home in Brampton and on March 20, 2015, drove the Applicant and the child to Brampton.

10The Respondent continues to reside in Pennsylvania, where he maintains a medical practice.

11The Respondent, shortly after separation, commenced a divorce action in Pennsylvania and, as noted above, therein put before the court the issues of the granting of a divorce decree and the equitable division of property. The issues of custody, access, child support and spousal support were not claims initially sought in the Pennsylvanian action.

12On July 28, 2015, the Applicant commenced this Ontario application.

13The Respondent then commenced a custody proceeding in Pennsylvania and served the Applicant on August 5, 2015. A motion for interim custody was stayed pending the resolution of the jurisdictional issue.

14In November, 2015, it was determined that Ontario courts would determine the issue of jurisdiction.

15By order dated January 29, 2016, Justice Bloom found that the Respondent conceded that section 22(a) of the Ontario statute, the Children’s Law Reform Act, applied in regards to child related issues and noted that the Respondent did not contest the jurisdiction of the Ontario court to determine child support.

16Under s. 22(a) an Ontario court has jurisdiction in regards to custody and access where the child is habitually resident in Ontario at the commencement of the application for the order.

17Justice Bloom also ruled, that with respect to the issue of spousal support the Respondent may contest jurisdiction simpliciter and may raise the status of this court as the forum conveniens.

18Thereafter, in the temporary order of Emery J., dated February 25, 2016, as noted above, the parties consented to Ontario being the proper jurisdiction to determine the issues raised in the application, including but not limited to custody and access issue. Spousal support is an issue raised in the application.

EVIDENCE AND SUBMISSIONS

19Amanda Cook is the Applicant’s lawyer in Pennsylvania. In her Affidavit sworn on November 15, 2017, (Vol. 3, Tab 13, Continuing Record), Ms. Cook deposes that she believes that the Respondent will ask the court in Pennsylvania to take jurisdiction over the issue of spousal support.

20Ms. Cook also explains the various forms of spousal support recognized in Pennsylvania.

21In Pennsylvania, the term, “spousal support” means support paid before any litigation is commenced.

22“Alimony pendente lite” is support paid while litigation is ongoing. In that regard, it is comparable to interim spousal support in this jurisdiction. Such support ends when the divorce is finalized.

23“Alimony” is the word used for payments made after the divorce is finalized.

24It is submitted by the Applicant that the Respondent wishes to put the issue of spousal support before the Pennsylvania court and for the support he is currently paying to be considered, “alimony pendente lite” and terminate on the granting of the divorce.

25Ms. Cook also deposes to the standard Decree of Divorce in Pennsylvania and its wording. Included therein is the following wording:

“It Is Further Ordered that the Court hereby retains jurisdiction of any claims raised by the parties to this action for which a final order has not been entered.”

26Counsel for the Applicant submits that unless there is a final order for support issued by the Ontario Court, once the Divorce Decree in Pennsylvania is made final, any interim Ontario order for spousal support or such an order made subsequent to the finalization of the divorce decree may not be recognized in Pennsylvania and presumably, may be unenforceable (Vol. 3, Tab 13).

27Counsel for the Respondent submits that although the Applicant framed this motion for summary judgment as a procedural step, to convert a temporary order into a final order, it is a disguised attempt to confer legal jurisdiction over all the Applicant’s claims, including spousal support.

28The Respondent did note that at paragraph 50(18) of the application, the Applicant claims,

“If necessary, an Order that Ontario is the proper jurisdiction for these proceedings to take place.”

29Counsel for the Respondent submits that the jurisdictional issue is not a claim as contemplated by Rule 16(1) and therefore is not the proper subject matter for a summary judgment motion and the motion ought to be dismissed.

30The Respondent argues that the motion is more properly a motion pursuant to Rule 16(12), because in essence the Applicant is asking the court to determine a legal issue.

31Further, pursuant to Rule 16(3) no evidence is permitted on a motion to determine a legal issue, unless the parties agree otherwise or with leave of the court.

LAW AND ANAYLSIS

32In regards to no genuine issue requiring a trial summary judgement concept, I agree as noted in the Applicant’s factum, it equates to there being, “no chance of success”, where the outcome is a “foregone conclusion” or “where there is no realistic possibility of an outcome other than that sought by the Applicant” (Children’s Aid Society of Toronto v. A. G., [2015] O. J. No. 3142, at para. 30).

33The summary judgment process under the Family Law Rules should be used cautiously and clear cases may be disposed of summarily if no denial of fairness results (F.B. v. S.G. 2001 CanLII 28231 (ON SC), [2001] O.J. No. 1586, paras. 13-15).

34To determine whether there is no genuine issue requiring a trial, I must follow the two–stage test set out in, Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87.

35First, I must determine if there is a genuine issue requiring a trial based only on the evidence before me without using the new fact-finding powers.

36Second, if there appears to be a genuine issue requiring a trial, at my discretion, I may exercise the powers under Rule 16, to determine if the need for a trial can be avoided.

37Counsel for the Applicant submits there is no genuine issue requiring a trial and I am able to reach a fair and just determination and asks the court to consider:

(a) The Respondent has already consented to the relief sought, albeit on a temporary basis. It is unconditionally conceded that the Ontario Court has jurisdiction over all child related claims.

(b) The Applicant has not, within her Ontario application, sought a divorce judgment or an equalization of net family property, claims before the court in Pennsylvania.

(c) The Respondent has attorned to the Ontario jurisdiction by filing an Answer.

(d) The Children’s Law Reform Act, section 22, speaks to the issue of jurisdiction in relation to matters of custody and access. It is submitted that under this section the Applicant has met the test, a submission that is uncontested and noted by Bloom J.

38Under the Common Law there are three grounds upon which the court may assume jurisdiction:

(a) A real and substantial connection to the jurisdiction;

(b) The defendant’s consent to submit to the jurisdiction; or

(c) The defendant’s presence in the jurisdiction (Club Resorts Ltd. v. Van Breda 2012 SCC 17, [2012] 1 S.C.R. 572, paras. 79, 8).

39Apart from whether or not the Respondent has consented to or is present in this jurisdiction, I find that there is a real and substantial connection to the jurisdiction of Ontario and in doing so note the factors set out above in paragraph 37.

40Further, In Cheng v. Liu 2017 ONCA 104, Simmons J. A. stated, at paragraph 31,

“Ontario has a real and substantial connection in this case by virtue of the appellant’s residence in Ontario.”

41Clearly the Applicant and the child have resided in the Province of Ontario for more than two years. They both arrived here at the same time and under the same circumstances. It has been determined that the child is habitually resident in Ontario at the time the application was commenced, a higher threshold than ordinary residence. It is only logical then that the applicant’s residence in Ontario creates a real and substantial connection.

42I also note that the Respondent played a significant role in establishing their place of residence and as a result thereof, it seems disingenuous to argue a lack of jurisdiction in relation to the jurisdiction to which his wife and child were delivered.

43I agree with the submissions of counsel for the Applicant that, in regards to the principle of forum conveniens, the Respondent has failed his onus and has not shown that Pennsylvania is the more convenient venue. It is only he who lives there. The court in Ontario has jurisdiction over the child related issues. Evidence as to the parties’ income will be necessary in order to determine child and spousal support which make it more expedient to have those two issues tried together.

44I also have regard to the actual wording of paragraph 1 of the order of Emery J. Therein, with the consent of the parties, he declares that Ontario is the proper jurisdiction to determine the issues.

45This order is after the endorsement of Bloom J. and his notation that the issue of jurisdiction as it relates to spousal support remains outstanding.

46It seems to me if a court has jurisdiction over the issue of spousal support on a temporary basis, it must have jurisdiction on a final basis. Either a court has or has not, jurisdiction over spousal support, regardless of whether or not the order is temporary or final.

47Based on all of the above and particularly taking into account that the Applicant and child reside in Brampton, Ontario and thereby, as noted, have a real and substantial connection with this jurisdiction, I have concluded that the Ontario Court has the jurisdiction over the issue of spousal support, whether temporary or final. The issue of jurisdiction was a claim properly put before the court in the application at paragraph 50(18).

48There is no genuine jurisdictional issue requiring a trial.

49I do not agree however that I am able to amend the order of Emery J. by amending paragraph 1 therein by making it final. Such an act would be a variation of an order. Family law orders can be varied for specific reasons such as a material change of circumstances. I know of no authority which allows me to amend or vary an order as requested by the Applicant.

50Rather, I will grant, pursuant to Rule 16, partial summary judgment by declaring on a final basis that Ontario is the proper jurisdiction to determine the claims raised in the application, including but not limited to custody, access and child support (already conceded) and spousal support. This ruling disposes of the issue of jurisdiction and has such will shorten the trial.

51By making such a ruling I do not have to consider the application of Rule 16 (12).

52I have also had regard to Okmyansky v. Okmyansky, 2007 ONCA 427, in which, at para. 31, Simmons J.A. wrote,

“I nevertheless agree with the conclusion that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction.”

53Further, it was said that a former spouse is not entitled to advance a support claim under the Family Law Act in the face of a foreign divorce judgment (para. 42).

54However, the State of Pennsylvania has not yet issued a Decree of Divorce. The Applicant continues to have the status of a spouse in regards to the support provisions of the Family Law Act.

55Further from the standard wording of a Pennsylvanian Decree of Divorce a final order for support would be recognized.

RULING

56Accordingly, I declare that the jurisdiction for determining the issues and claims set out in the application, including spousal support, is the Province of Ontario and on that issue grant partial summary judgment to the Applicant.

COSTS

57If the parties cannot agree on costs I will accept submissions of no more than three pages in length, double spaced, together with a Bill of Costs.

58The cost submission of the Applicant are to be received within 21 days of the release of this decision and the Respondent shall have 10 days to respond.

Bielby J.