Court File and Parties

Court File No.: FS-18-001906 Date: 2019-02-12 Ontario Superior Court of Justice

Between: Lucas Noguiera, Applicant – and – Caroline Kuczynski, Respondent

Counsel: Corinne A. Muccilli, for the Applicant Lisa Kadoory and Cara Senese, for the Respondent

Heard: January 31, 2019

Reasons for Judgment

Nakonechny, J.

[1] The Respondent brings this motion to dismiss the Applicant’s Application for a simple divorce on the grounds that this Court lacks jurisdiction to hear the matter. If this Court finds it has jurisdiction to hear the divorce, the Respondent seeks leave to amend her Answer to include claims for setting aside the parties’ Marriage Contract signed June 26, 2016, spousal support and equalization.

[2] The Respondent argues that the Applicant was not ordinarily resident in Ontario for one year immediately preceding the commencement of his Application for Divorce issued April 17, 2018. She bases this on the fact that the Applicant did not have a permanent Toronto address after September 2017. He used his Toronto counsel’s address as his address on the Application. He travelled extensively for his work and resided in his home in Florida during the period before the Application was commenced.

[3] The Respondent also relies on the evidence presented by the Applicant in a second legal proceeding he commenced in Florida in May, 2018. He swore an Affidavit which stated that the parties’ child, Stella, born November 18, 2016 (“Stella”) resided with him in his home in Boca Raton, Florida, commencing January, 2018.

[4] If I find that the Respondent was ordinarily resident in Ontario for the required period, the Applicant asks that I dismiss the Application on the grounds that Ontario is not the convenient forum because neither of the parties resides in Ontario. The Respondent resides in Florida with Stella. The Applicant currently resides in Florida where he owns a home and also in Brazil where he was born and raised.

Background

[5] The parties cohabited for a period prior to their marriage on June 26, 2016. They resided in Toronto during their cohabitation and marriage. They separated on September 20, 2016.

[6] At the time of the marriage, the Respondent was five months pregnant with Stella. A few weeks after separation the Respondent moved to Florida, where she is originally from and where she was residing before the parties’ relationship, to reside with her parents. Stella was born in Florida on November 18, 2016. The Respondent has resided in Florida with Stella since Stella’s birth. She is the child’s primary caregiver.

[7] The parties signed a Marriage Contract dated June 26, 2016, the day of the marriage (“the Contract”). The Contract was signed by the parties, dated and witnessed. The Contract contains a provision that states: “The interpretation of this Agreement is governed by the laws of Ontario, even if Lucas and Caroline are not living in Ontario at the date of the breakdown of the relationship.”

[8] There are no signed Certificates of Independent Legal Advice attached to the Contract. There is correspondence from counsel for the Respondent to counsel for the Applicant dated June 20, 2016, suggesting that the parties execute the Contract after the wedding to allow time for exchange and review of financial disclosure and negotiation of terms.

[9] The Applicant is a professional basketball player. At the time of the relationship he was playing with the Toronto Raptors. His original contract with the Raptors was signed in July, 2014. Thereafter it was renewed through to the 2017-2018 playing season. The Applicant played his last game with the Raptors on May 8, 2018. He was released from his contract with the team at that time.

[10] The Applicant signed a contract to play with a team in Fuelabrada, Spain, on September 17, 2018. He played there until December, 2018 when he was released from that contract. He has resided in Brazil, his country of origin, since December 2018.

[11] The Applicant states that he resided in various rental condominiums either alone or with the Respondent during their relationship and marriage. The Applicant states in about September, 2017 he moved in with friends and thereafter did not have a home address in Toronto in his name. He continued to play for the Raptors until he was released from his contract and resided with friends in Toronto until he moved to Spain.

[12] The Respondent states that the Applicant ceased having a permanent home in Toronto in 2017 and “crashed” at the homes of various friends when he was in Toronto playing home games with the Raptors. She alleges that the time he spent in Toronto was not substantial because the Applicant travelled with the team for away games and to Florida to visit Stella when he was not playing basketball.

[13] In about January, 2018, the Applicant purchased a home known municipally as 17760 Fieldbrook Circle West, Boca Raton, Florida, (“Fieldbrook”). Fieldbrook was purchased in the name of a corporation. The Applicant is the sole shareholder of the corporation. I do not find that anything turns on how title to the property is held as there is no evidence that anyone but the Applicant and Stella resided at Fieldbrook.

The Litigation

[14] The Applicant commenced the within proceeding seeking a divorce only on April 17, 2018. In the style of cause he lists his address in Toronto as care of his counsel, Baker & Company.

[15] On May 8, 2018, the Applicant issued a Petition to Establish Parenting Plan, Timesharing, Child Support and other Relief in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, State of Florida (“the Florida Petition”).

[16] The Respondent filed an Answer in this proceeding seeking to traverse the divorce to be dealt with in the Florida Petition with the corollary issues.

[17] The Respondent filed an Answer and Counter Petition in the Florida Petition seeking custody of Stella, child support, spousal support, and to set aside the Contract.

[18] In support of the Florida Petition the Respondent swore an Affidavit dated May 12, 2018 (“the UCCJEA Affidavit”) which lists, inter alia, the child’s residence for the past five years including “Name and present address of person child lived with” (my emphasis). The Affidavit lists the child’s residence from January, 2018 to present with her father at Fieldbrook.

[19] Based on his sworn statement, the Respondent believed his “present address as at January, 2018” was Fieldbrook. Presumably he could have also listed an address in Toronto, Ontario, but he did not.

[20] The Applicant commenced two court proceedings in two different jurisdictions within a month of one another at the time his contract with his employer in Toronto was nearing its end. His evidence is that he believed he had to start the divorce in Toronto because the parties resided here during their brief marriage and the Contract was signed here. The custody and child support proceedings were commenced where Stella resides.

[21] This is not a case where each party commenced a proceeding in a different jurisdiction and the court must decide between the two. In this case, one party chose to commence and intends to pursue litigation in two different jurisdictions. He asks this Court to permit what is arguably the only procedural issue, the dissolution of the marriage, to proceed separately from the child related substantive issues which will be determined in the Florida Petition.

[22] If this Application for divorce proceeds, and the Respondent amends her pleadings to bring her claim to set aside the Contract and claim spousal support and equalization, both parties will have to travel from Brazil and Florida respectively to Ontario to participate in the litigation.

Law and Analysis

[23] The Divorce Act s. 3(1) provides: “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 proceedings.”

[24] The Divorce Act does not define “ordinarily resident”. In Thomson v. M.N.R., (1946) 1 (S.C.C.) the Supreme Court of Canada defined “ordinarily resident” for purposes of an income tax matter as follows: “one is ordinarily resident in the place where in the settled routine of his life, he regularly, normally, customarily lives.”

[25] In MacPherson v. MacPherson, (1977), 13 O.R. (2d) 233 (C.A.), the Ontario Court of Appeal stated that in determining whether a party was “ordinarily resident” the court must consider “where the Petitioner regularly, normally or customarily lived in that year.”

[26] It is clear that the Respondent did not live only in Toronto in the year immediately preceding April 17, 2018. The regular season schedule for the Raptors shows that in most months between October 2017 and April 2018, the team played home and away games about equally. The Applicant states he played 40 games in Toronto in that season. He states that he was based in Toronto and travelled for his employment. The fact that a person travels for their employment does not mean that they are not “ordinarily resident” in the place they return to when their work travel is completed.

[27] The issue in this case is not only that the Applicant travelled away from Toronto for his employment between April, 2017 and April, 2018. I must consider the inconsistency of the Applicant’s evidence to this court that Toronto was his ordinary residence and his sworn evidence in the Florida Petition that Fieldbrook was his present address where he resided with Stella as at January 2018.

[28] I do not doubt the Applicant’s reason for the purchase of Fieldbrook in January, 2018 was to have a home for him to reside in with Stella. I do doubt his evidence that when he swore the UCCJEA Affidavit he believed he was only listing Stella’s address and not his own. The test of “ordinarily resident” set out in the case law has a subjective component of a party’s “settled routine of life” where he “normally, customarily lives”. The listing of only Fieldbrook and not a Toronto address shows the Applicant’s intention to be part of Stella’s life in Florida. All of his parenting time with her was spent in Florida. There is no evidence that the Applicant spent any time with Stella in Toronto.

[29] In Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, Doherty J.A. held that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time. The parties in Knowles lived in Florida, but spent significant time in Muskoka and Toronto. Doherty J.A. agreed with the motion judge below that “the parties had set up a pattern that included residence in Ontario… on a regular basis for part of every year, for months at a stretch, for more than five years. That amounts to ‘ordinary residence.’”

[30] In Roberts v. Bedard, 2015 ONSC 7918, the court considered the ordinary residence of a former professional baseball player and coach who owned property in Ontario and lived there in the off-season. He had lived and worked in various U.S. cities over the years. Mackinnon, J. stated that “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”.

[31] I find that between April, 2017 and April, 2018 the Applicant lived and worked in Toronto and travelled to work in other cities. After January 2018, he also resided with his child in Florida pursuant to his evidence in the Florida Petition. He was ordinarily resident in Ontario one year immediately preceding the commencement of this proceeding. He may also have been ordinarily resident in Florida.

[32] As such, I find this Court has jurisdiction over the Applicant’s claim for a divorce under the Divorce Act.

[33] My finding that the Applicant was ordinarily resident in Ontario does not end the analysis. I must also consider the question of forum non conveniens. The burden is on the Respondent to show that Florida is the clearly more appropriate forum: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 at paras. 108-109.

[34] The Supreme Court states in Van Breda at para. 105: “A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.”

[35] The factors for a forum non conveniens analysis as set out in Van Breda at para. 110 and Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.) are as follows:

1. The location of the majority of the parties;
2. The location of key witnesses and evidence;
3. Contractual provisions that specify applicable law or accord jurisdiction;
4. Geographical factors suggesting the natural forum;
5. The avoidance of a multiplicity of proceedings;
6. The applicable law and its weight in comparison to the factual questions to be decided; and,
7. Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

[36] The majority of the evidence in the case will come from both parties, neither of whom live in Ontario. The issue of the validity of the Contract must be interpreted according to the law of Ontario, but this does not require that issue to be heard in Ontario.

[37] Neither party has given evidence that he or she will be deprived of a juridical advantage if the matter proceeds in Ontario or Florida. For the Applicant, the divorce he seeks can be granted by the Florida court based on the Respondent’s residency there.

[38] The key factor in this case relates to the efficiency of the litigation and the avoidance of a multiplicity of proceedings. I do not believe that Ontario is the most convenient forum for the divorce and corollary issues to proceed in. Although the Applicant states that he has to travel to participate in the litigation regardless of where it is, he will already be travelling to Florida to participate in the Florida Petition.

[39] The Respondent has not resided in Toronto since September 2016. The Applicant has not resided in Toronto since September 2018. He did not attend the Case Conference in Toronto, which took place on October 22, 2018. He was scheduled to attend by conference call but that was not possible.

[40] Both parties have had difficulties filing original sworn materials in this proceeding. The Applicant was only able to provide an unsworn Affidavit to the Respondent to permit her to prepare and file her reply materials for this motion. His sworn Affidavit was provided to the court as a copy, with an original following after the motion was argued.

[41] There is no need for a multiplicity of litigation between these parties. The issues in the within proceeding, including the divorce, the validity of the Contract and the corollary issues arising out of that determination can be dealt with more efficiently with the child related issues in the Florida Petition commenced by the Applicant in the jurisdiction where the Respondent resides.

[42] In assessing all of the relevant factors, I find that the Respondent has satisfied the burden of showing that Florida is a clearly more appropriate forum for this case.

Order

[43] This court Orders that the Respondent’s motion to dismiss the Applicant’s Application for a divorce is granted.

[44] If costs cannot be agreed upon between the parties, counsel may provide me with written costs submissions of no more than three pages (not including supporting documents and authorities) within 10 business days of the date of release of this Order. The Respondent may serve a reply submission of up to two pages within 5 business days thereafter, if required.

E. L. Nakonechny, J. Released: February 12, 2019