Court File and Parties
Date: 2020-07-20 Superior Court of Justice - Ontario
Re: Gregory Howard Borschel, Applicant And: Debaroti Mullick Borschel, Respondent
Before: Sossin J.
Counsel: Greg Howard Borschel for himself, with Diana Solomon making oral submissions Harold Niman and Jen-Yii Liew, Counsel for the Respondent
Heard: July 9, 2020
Reasons for Judgment
Overview
[1] This motion and cross-motion concern whether parallel divorce proceedings launched by the Applicant husband, Gregory Howard Borschel (the “Applicant”), in Tennessee, should be permitted to proceed. This determination turns on whether arbitration awards, issued to the parties in Ontario, are enforceable. The Respondent wife, Debaroti Mullick Borschel (the “Respondent”), seeks to restrain the Applicant from continuing the divorce proceedings in Tennessee, and to have the arbitration awards enforced as orders of this Court.
[2] The parties were married on June 15, 1996. They separated on October 9, 2015.
[3] There are two daughters of the marriage, ages 15 and 17 (the “children”).
[4] The parties and the children are American citizens. The Applicant and Respondent are both doctors who moved to Toronto for professional opportunities. They lived in Toronto until 2017, when the Respondent and the children moved to Memphis, Tennessee. The Applicant remained in Toronto, where he continues to work and reside.
[5] The Application for divorce was filed by the Applicant on November 12, 2015.
[6] The Respondent’s Answer was filed on January 14, 2016.
[7] An initial case conference was held before Justice Stevenson on February 8, 2016.
[8] After the case conference, the parties entered into arbitration before Mr. Stephen Grant. The Arbitration Agreement, dated April 7, 2016, set out the process which the parties agreed to follow. Both the Applicant and the Respondent received independent legal advice in advance of signing the Arbitration Agreement.
[9] On December 21, 2017, two arbitration awards were issued by Mr. Grant (the “Final Arbitration Awards”).
[10] There remain unresolved issues between the parties both as to spousal support and child support, including arrears. Attempts to schedule a further arbitration on these matters in 2018 and 2019 were not successful.
[11] The Respondent alleges that the Applicant, while unrepresented, has sought to delay and obstruct the resolution of the remaining support issues, and has failed to meet his support obligations.
[12] The Applicant also makes numerous allegations against the Respondent, including with respect to her parenting conduct, in addition to an allegation that he fears for his safety if he were to visit his children in Memphis, Tennessee.
[13] While these issues led to acrimonious correspondence between the parties, the catalyst for these motions was the launch of parallel divorce proceedings in the United States. Specifically, on May 26, 2020, the Applicant launched a divorce application in the Chancery/Circuit Court of Tennessee, and obtained an injunction restraining the Respondent from dissipating marital property and from removing the children from Tennessee.
[14] The Respondent in her motion seeks: a. an Order restraining the Applicant from proceeding with his action against her in Tennessee (or any other jurisdiction) and requiring the Applicant to withdraw the action that have already been commence immediately; b. an Order declaring void any Orders that have already been granted in that jurisdiction; and c. an Order enforcing Mr. Stephen Grant’s Final Arbitration Awards.
[15] The Applicant in his cross-motion seeks: a. An Order the issues in these proceedings pertaining to the children shall be dismissed as they will be determined in the proceedings underway in the Chancery/Circuit Court in Tennessee, bearing court file/docket no. CT-2085-20; and b. An Order that the Final Arbitration Awards are not enforceable pursuant to section 59.6(1) of the Family Law Act, R.S.O. c. F-3, and section 37 of the Arbitration Act, 1991, S.O., c. 17.
Analysis
[16] These motions require that I address the following questions: a. First, are the Final Arbitration Awards of Mr. Stephen Grant, issued on December 17, 2017, valid and enforceable? b. Second, is there a basis to set aside the Final Arbitration Awards under any statutory provision? c. Third, can the Final Arbitration Awards be enforced as Court Orders? d. Fourth and finally, should an anti-suit injunction should be granted, which would restrain the Applicant from pursuing the Tennessee action?
[17] Each of these questions is addressed below.
1. Are the Final Arbitration Awards Enforceable?
[18] The parties agreed to attend mediation-arbitration with Mr. Stephen Grant. The 2016 Arbitration Agreement covered a wide range of issues including custody and access, child and spousal support, section 7 expenses, retroactive support claims, equalization of the net family property, disclosure, preservation of assets, insurance, and non-harassment claims as well as costs.
[19] Mr. Grant made interim awards regarding parenting and property issues on September 7, 2016 and May 28, 2017.
[20] In August, 2017, the Respondent and the children relocated to Tennessee, pursuant to an agreement between the parties.
[21] A final arbitration hearing was scheduled on all issues to be heard May 29, 2017, but the parties reached an agreement beforehand on parenting and property issues.
[22] By an email exchange in November, 2017, counsel for each party confirmed that draft awards could be forwarded to Mr. Grant to execute as the arbitral awards.
[23] On December 21, 2017, Mr. Grant signed two Final Arbitration Awards, on consent, consistent with the accepted offers to settle and the terms agreed upon for the draft awards.
[24] The Final Arbitration Award regarding property issues provided that neither party will pay an equalization payment, but detailed other arrangements by which the parties would divide certain funds gifted by the Respondent’s parents to the children, divide their joint accounts, and keep their personal property. The Award also confirmed that all other property had been divided between the parties in a manner acceptable to them.
[25] The Final Arbitration Award regarding parenting issues set out a parenting plan which provided that the children would reside primarily with the Respondent in Tennessee.
[26] This Award specifically set out that Ontario would be the continuing jurisdiction for any disputes including disputes subject to the Applicant moving outside of Ontario.
[27] Finally, the Award appointed Mr. Herschel Fogelman as the Parenting Plan Arbitrator.
[28] A subsequent arbitration on the remaining support issues was scheduled first in the Summer of 2018, and later delayed to the Spring of 2019. This follow-up arbitration before Mr. Grant never took place. An attempt to have Mr. Fogelman take over the arbitration in the Spring of 2020 also was unsuccessful.
[29] In his affidavit evidence on this motion and cross-motion, the Applicant now takes the position that he had never consented to either of the Final Arbitration Awards. In his factum, he states:
Mr. Stephen Grant signed two arbitral awards on December 21, 2017. The Applicant did not consent to either award. Unfortunately, the Applicant’s counsel at the time did not correct Mr. Grant with respect to there having been no agreement between the parties at the time of him having made the consent awards, so they were finalized.
[30] In his affidavit, the Respondent states that he first became aware of the Final Arbitration Awards in September, 2018. The Applicant offers no explanation for why he took no steps to set aside the Final Arbitration Awards once he became aware of them.
[31] Indeed, throughout 2018 and 2019, notwithstanding the Respondent and the children’s move to Tennessee, the Applicant continued to pursue the scheduling of the additional arbitration with Mr. Grant on the remaining items in dispute.
[32] On February 7, 2020, the Respondent’s counsel wrote to the Applicant, at that time self-represented, and referred expressly to one of the Final Arbitration Awards. She wrote, “You are well aware that Mr. Stephen Grant has issued a final Award on parenting issues.”
[33] The Applicant wrote back on February 20, 2020 to deal with a number of matters, but took no issue with the reference to the Arbitration Award.
[34] On April 9, 2020, the Applicant wrote again to the Respondent’s counsel and referred to the fact that the continuing attempts to schedule the follow-up arbitration before Stephen Grant on financial and support related issues. Again, he did not mention any concern with the Final Arbitration Awards on parenting and property issues.
[35] On April 26, 2020, the Applicant wrote a further letter to counsel for the Respondent, in which he himself stated, “I and your client entered into a Mediation/Arbitration Agreement with Arbitrator Stephen Grant in April 2016 to deal with all issues. We commenced arbitration which resulted in the Parenting and Property Awards of December 2017.”
[36] Further, in late May, 2020, at the same time as he was bringing the action in Tennessee, the Applicant agreed to the scheduling of a case conference on the outstanding issues in dispute before this Court on July 31, 2020.
[37] Based on the record, it is apparent that both parties accepted and acted on the basis of the Final Arbitration Awards.
[38] Therefore, I find that the Final Arbitration Awards are valid and enforceable on their terms.
2. Is There a Basis to Set Aside the Enforcement of the Final Arbitration Awards due to any statutory provision?
[39] The Applicant’s cross-motion raises a number of arguments relating to the statutory scheme governing the Arbitration Awards, which he submits bar their enforcement.
[40] The Applicant relies on Rule 5(1) of the Family Law Rules, O. Reg. 114/99, which states that custody and access cases shall be started in the municipality where the child ordinarily resides. Rule 5(1) provides:
- (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, a case shall be started,
(a) in the municipality where a party resides;
(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,
(i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and
(c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality. O. Reg. 114/99, r. 5 (1) ; O. Reg. 298/18, s. 6 (1).
[41] Rule 5(8) of the Family Law Rules further provides that the test to determine whether a case should be transferred to another municipality is that it must be “substantially more convenient” to deal with the case there.
[42] While the test to meet for a transfer of proceedings is a high one (Children’s Aid Society of Toronto v. A.T., 2010 ONCJ 456 at paras 10, 16), the Applicant has not sought to transfer this proceeding to another municipality. Rather, the Applicant seeks an order dismissing these divorce proceedings as they pertain to the children, as he argues these issues ought to be determined by the Court in Tennessee.
[43] There is no dispute that Ontario was the proper jurisdiction in which to commence this divorce application in 2015. The parties and their children resided in Ontario at the time, and their income derived from employment in Ontario and the matrimonial property was situated in Ontario.
[44] The Final Arbitration Awards, based on a consent agreement between the parties, addresses the issue of venue for subsequent dispute resolution, and provides that Ontario will continue to be the jurisdiction for dispute resolution, unless the Applicant relocates to the United States, which has not occurred.
[45] The Applicant also argues that the Final Arbitration Awards should be set aside as invalid pursuant to section 46(1) of the Arbitration Act, 1991, S.O., c. 17 (the “Arbitration Act”), which provides:
(1) On a party's application, the court may set aside an award on any of the following grounds:
- A party entered into the arbitration agreement while under a legal incapacity.
- The arbitration agreement is invalid or has ceased to exist.
- The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.
- The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.
- The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
- The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.
- The procedures followed in the arbitration did not comply with this Act.
- An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
- The award was obtained by fraud.
- The award is a family arbitration award that is not enforceable under the Family Law Act.
[46] The Applicant submits that he was not treated “equally and fairly” within the meaning of s.46(1)(6) of the Arbitration Act, as he was not given notice of the Final Arbitration Awards, either by Mr. Grant or by his former counsel.
[47] The Applicant disputes the fact that the parties consented to the Final Arbitration Awards. In his affidavit, he states, “I did not become aware that the Property and Parenting Awards had been signed on December 21, 2017 until my Counsel mentioned them in correspondence to me in September 2018. I was shocked.”
[48] The Applicant has alluded to a dispute with his former counsel, and a LawPro investigation arising from that dispute. However, there is no evidence on these motions from the Applicant’s former counsel, and the Applicant acknowledged that he has yet to review his former counsel’s files.
[49] Whether or not the Applicant has a separate dispute with his former counsel, or may wish to attempt to set aside the Arbitration Awards on that basis, the Final Arbitration Awards remain valid and enforceable until a contrary finding is made.
[50] The Applicant also argues that Rule 17(19) of the Family Law Rules requires the parties themselves to sign any agreement reached as part of the Court process.
[51] This Rule addresses settlements and agreements that arise out of case conferences, but does not serve to invalidate an arbitration award where the consent of the parties has been communicated by counsel, and where the arbitration agreement governing the awards has been executed by the parties.
[52] Additionally, the Applicant argues that the absence of consent to the Final Arbitration Awards can be inferred by the fact that neither of the parties adhered to the terms of the Awards. The Applicant relies for this proposition on Cole v Cole, 2011 ONSC 4794 (“Cole”), at para 41; and Ward v Ward, 2011 ONCA 178 (“Ward”), at paras 68-69.
[53] In Cole, the Court found a “Proposal for Settlement” between the parties was not binding or enforceable as the agreement itself provided that “The signing of a settlement agreement is a condition of a binding agreement being reached between the parties.”
[54] In Ward, however, the court upheld a handwritten “Memorandum of Understanding” as the parties had conducted themselves as though they had a binding agreement, even though the MOU had a preamble stating it was conditional on counsel working out a satisfactory separation agreement.
[55] In this case, however, the need to determine the intent of the parties to form a binding agreement does not arise. The Final Arbitration Awards by their own terms bind the parties, and there is no language to suggest their enforcement depends on some other action or agreement taking place as in Cole and Ward.
[56] For these reasons, I am satisfied that the Final Arbitration Awards should not be set aside under s.46(1)(6) of the Arbitration Act.
[57] Even if the Final Arbitration Awards purported to bind the parties, the Applicant submits that the Final Arbitration Awards should be set aside under s.46(1)(10) of the Arbitration Act, as the Awards are not enforceable under the Family Law Act since the matters dealt with by the Awards properly fall under the jurisdiction of the Tennessee Court.
[58] The Applicant submits that once the Respondent and the children moved to Tennessee, any dispute resolution process relating to parenting should have occurred in Tennessee.
[59] The Applicant relies on s.22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Children’s Law Reform Act”), which provides that a Court shall only exercise its jurisdiction to make an order for custody of or access to a child where:
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
[60] With respect to the application of s.25 of the Children’s Law Reform Act, the Applicant relies on Dovigi v. Razi, 2012 ONCA 361 (“Dovigi”). In Dovigi, the Court of Appeal stated that the Ontario Court had no jurisdiction over the case because none of the four possible bases under the Children’s Law Reform Act which could provide an Ontario court with jurisdiction to make an order for custody of a child was met.
[61] The Applicant argues that none of these bases are met in the present case either, while there is in an application with respect to the children pending before the Tennessee Court, where the children are habitually resident.
[62] According to the Applicant, the Children’s Law Reform Act requires subject matter jurisdiction, not merely in personam jurisdiction, and therefore the parties cannot confer jurisdiction by attornment.
[63] These arguments are not persuasive. The statutory scheme relied upon by the Applicant governs where applications including custody and access orders may be commenced or transferred. In this case, the children were habitually resident in Ontario at the time the Applicant commenced his Ontario application in 2015. This case is distinguishable from the situation in Dovigi, for example, where the child in question had never resided in Ontario.
[64] The fact that the children in this case were no longer habitually resident in Ontario in December, 2017, at the time of the Final Arbitration Awards, does not invalidate these Awards or render them unenforceable, especially as the parenting plan developed as part of the Final Arbitration Awards anticipated that the Respondent and the children would be resident in Tennessee.
[65] In the alternative, to the extent Ontario continues to have jurisdiction over the subject matter of the Awards and the application more broadly, the Applicant argues that I should decline to exercise this jurisdiction in favour of the Tennessee action, under the authority of s.25 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[66] The Applicant submits that s. 25 of the Children’s Law Reform Act affords a statutory basis for refusing to exercise that jurisdiction. Section 25 provides: “A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”
[67] In Haggarty v Haggarty, 1997 CarswellOnt 742 (“Haggarty”) at paras 10-20, the Court considered the question of whether it was more appropriate that Ontario rather than New Hampshire deal with matters of custody and access based on the “balance of convenience”, as set out in s. 22(1)(b)(vi) of the Children’s Law Reform Act, which the Court treated as it would an analysis under s. 25.
[68] In Haggarty, the court found that Ontario was not the more appropriate forum, notwithstanding that the children were born and raised in Ontario, that there were many connections to the province, and that there were financial barriers for the mother to litigate the matter in New Hampshire. Perkins J. stated that the public policy behind the legislation dealing with custody and jurisdiction is "that children's custodial arrangements should be dealt with in their 'home' jurisdiction unless there is very good reason for the courts of another place to assert jurisdiction based on physical presence and balance of convenience." (at para. 19)
[69] In this case, however, Ontario was the “home” jurisdiction at the time the Application was commenced in 2015, and was designated through the Final Arbitration Awards to remain the “home” jurisdiction by the parties, until such time as the Applicant leaves Ontario. For this reason, even if the Court had the discretion to decline jurisdiction in these circumstances, I would decline to exercise that discretion to do so in this case.
[70] For the reasons set out above, I find there is no basis under any statutory provision to set aside the enforceability of the Final Arbitration Awards in this case.
3. Can the Final Arbitration Awards be Enforced as Court Orders?
[71] The Respondent submits that the statutory threshold for converting the Final Arbitration Awards into Court Orders in this case has been met.
[72] The Respondent relies on the Arbitration Act, 1991 S.O. 1991, C.17, which confirms the binding nature of Final Arbitration Awards. Section 37 of the Arbitration Act provides that, “An award binds the parties, unless it is set aside or varied under section 45 or 46... .”
[73] Section 59.8(2) of the Family Law Act, R.S.O. 1990, c. F.3 (the “Family Law Act”), and Rule 32.1(2) of the Family Law Rules, O. Reg. 114/99 provides that a party entitled to enforcement of an arbitration award shall make a motion in an existing proceeding rather than an application.
[74] Section 59.8(4) of the Family Law Act further governs enforcement of family arbitrations awards and provides that:
(4) If the family arbitration award satisfies the condition set out in subsection 59.6(1), the court shall make an order in the same terms as the award, unless:
(a) the period for commencing an appeal or an application to set the award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; or
(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.
[75] Section 59.8(5) of the Family Law Act provides that if clause (4)(a) or (b) above applies, the Court may make an order in the same terms as the award; or order, on such conditions as are just, that the enforcement of the award is stayed until the period has elapsed without an appeal or application being commenced or until the pending proceeding [i.e. an appeal or application to set aside or for a declaration of invalidity] is finally disposed of.
[76] Paragraph 15.1 of the parties’ Arbitration Agreement with Mr. Grant confirms that the Final Arbitration Awards were intended to bind the parties within this statutory context:
Subject to the appeal remedies and rights to apply to set aside Mr. Grant’s Award under sections 45 and 46, respectively, of the Arbitration Act and subject to the other applicable provisions of the Arbitration Act, and the Family Law Act, Mr. Grant’s awards are binding on the parties. Any temporary, interim or final award may be incorporated into a consent order of the Ontario Superior Court of Justice. Either party may apply for the enforcement of any award under section 59.8(5)(a) of the Family Law Act.
[77] The Respondent relies on this Court’s decision in DeCraemer v. Decraemer, 2012 ONSC 1182 (“DeCraemer”), in which the parties entered into minutes of settlement which formed the basis of a consent arbitration award. In that case, both parties sought enforcement of the minutes of settlement as a final settlement of all issues. Justice Bielby found that the parties’ agreement met the criteria set out in s. 59.6 of the Arbitration Act and was therefore enforceable. Justice Bielby stated the following (at paras. 34-35):
34 The Family Law Act, sections 59.6 and 59.8 allow for the enforcement of arbitration awards by the court. I find that the agreement met the criteria set out therein and that the agreement is enforceable. Accordingly, I can make an order in accordance with the award. An action remains outstanding and the matter was properly brought before the court by way of a motion.
35 If an order is made incorporating an arbitration award, it is subject to all the powers of the court: Thibodeau v. Thibodeau, 2009 CarswellOnt 2638 (Ont. S.C.J.). The court has the authority to make orders on the same terms as the award: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.).
[78] In Thibodeau v. Thibodeau, 2011 ONCA 110, the Court of Appeal described the operation of s.59.8 of the Family Law Act as a mechanism for enforcing arbitration awards, not an opportunity to update or vary such awards (at para. 72):
Section 59.8 is essentially an enforcement proceeding designed to turn a family arbitration award into a court order with the enforceability that goes with such an order. Respectfully, it is not an opportunity for the Superior Court judge hearing the application to tweak or alter the arbitration award to conform to what the judge may think the arbitrator should have done. Nor is it an opportunity to "correct" the award retroactively, the better to protect a payee spouse in the event of a subsequently occurring bankruptcy at the expense of other creditors.
[79] The Respondent submits that the conditions in the Family Law Act and the Arbitration Act for the enforceability of the Final Arbitration Awards have been met in this case.
[80] I agree.
[81] The 2016 Arbitration Agreement, under which the Final Arbitration Awards were made, was executed by both parties, as well as Mr. Grant.
[82] Each of the parties was represented by experienced senior legal counsel at the time of the Arbitration Agreement. The parties’ counsel signed Certificates of Independent Legal Advice.
[83] Both parties also were represented when the terms of the Final Arbitration Awards were agreed upon.
[84] Mr. Grant issued the Final Arbitration Award in writing and delivered the issued awards to the parties’ respective counsel.
[85] The Awards were made on consent, and there has been no application to set the Awards aside or for a declaration of invalidity.
[86] Justice Nelson dealt with a similar situation in A.S. v. A.S, involving a request for a court order incorporating Ontario arbitration awards in circumstances where the child in question was no longer habitually resident in Ontario. Nelson J. held (at para. 13):
[13] I raised the question with counsel of whether jurisdiction could be lost by the arbitrators, notwithstanding the jurisdiction provisions of the separation agreements, as a result of the child no longer being habitually resident in Ontario. Counsel for the mother took the [sic] position that the jurisdiction of the arbitrators was lost due to this fact. It is my view however, that simply because [sic] an Israeli court has made an order in relation to this matter does not mean the jurisdiction of the arbitrators is lost. Under the present circumstances involving an access dispute, which was well within the contemplation of the parties when they signed the agreements, the arbitrators still have jurisdiction. On this motion I am simply deciding whether to incorporate the terms of an arbitration award into an order pursuant to the Arbitration Act. The contracts between the parties with respect to the issues of access, custody, and jurisdiction are valid and subsisting contracts. …
[87] On Appeal, the Court of Appeal affirmed Justice Nelson’s conclusion that where the statutory conditions have been satisfied, it is justified for the Court to enforce an arbitration award as a Court Order (Shoval v. Shoval).
[88] For similar reasons, I find that the Final Arbitration Awards in this case are enforceable as Court Orders.
4. Should an Anti-Suit Injunction be Granted?
[89] In light of the agreement of the parties to resolve the issues pertaining to their divorce in Ontario, should the Applicant be restrained from continuing a parallel action in Tennessee?
[90] The Respondent seeks an anti-suit injunction against the Applicant to restrain him from continuing the Tennessee action. The issue before me is whether the threshold for granting such an injunction has been met.
[91] An anti-suit injunction is a discretionary, equitable remedy. As Jennings J. emphasized in Shaw v. Shaw, [2007] O.J. No. 2758 at para. 24, this remedy does not restrain a court from hearing or deciding a matter, but rather restrains a person from pursuing a court proceeding:
Remembering that an anti-suit injunction is not an order restraining action by the foreign court, but an order restraining action by the plaintiffs over which this court has in personam jurisdiction, in my view, the injunctive relief for requested should be granted.
[92] For this reason, even if an anti-suit injunction is granted, the Respondent’s additional, requested relief to declare void any orders issued pursuant to the Applicant’s Tennessee action, is not available.
[93] In Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), [1993] 1 SCR 897 (“Amchem”), the Supreme Court set out the threshold which must be satisfied to be entitled to an anti-suit injunction. These were summarized in Bell'O International LLC v. Flooring and Lumber Co., [2001] O.J. No. 1871, at para. 9, as follows:
(a) A foreign proceeding is pending;
(b) The applicant has failed to obtain a stay from the foreign court;
(c) The domestic court is a potentially appropriate forum;
(d) The domestic forum has the closest connection to the action and the parties and no other forum is clearly more appropriate; and
(e) There is no injustice to the parties if the forum proceeding does or does not go forward and an injunction will not deprive the forum plaintiff of advantages in the foreign jurisdiction which would be an unjust deprivation.
[94] Applying these components of the threshold to this case leads to the following conclusions.
[95] First, there is clearly a Tennessee divorce proceeding pending.
[96] Second, the Tennessee proceeding is not stayed, and it appears the Respondent has retained Tennessee counsel.
[97] Third, Ontario remains an appropriate forum for this litigation. The existing Final Arbitration Awards provide for a resolution of the parenting and property issues and are themselves subject to oversight under Ontario law. The parties have agreed to a further case conference before this Court on the remaining financial and support issues in dispute on July 31, 2020.
[98] Fourth, Ontario remains the jurisdiction with the closest connection to the divorce application. Not only does it remain the jurisdiction for oversight of the existing Final Arbitration Awards, it also remains the jurisdiction where the Applicant resides, is employed and where his income is derived.
[99] Fifth and finally, there is no injustice to preventing the Applicant from continuing his action in Tennessee. Ontario Court awards may be enforced in Tennessee and the dispute resolution process in Ontario already is well-advanced. The Applicant has not alleged any significant difference in the substantive claims that would result in a loss of juridical advantage should the matter proceed in Ontario.
[100] Further, where support issues remain to be determined, there is no statutory requirement that a child be resident in Ontario at the time a claim for child support, or section 7 expenses, is resolved. As Gray J. stated in Long v. Seelman, 2012 ONSC 1342 at para. 33:
Also, because the Family Law Act does not contain a residency requirement as it relates to the child, it suggests that the legislature intended the Ontario courts to be able to make child support orders under the Act if a putative father lives in the jurisdiction, even when the mother and child live elsewhere. The same reasoning was applied by the Alberta Court of Appeal in G.(A.) v. L.(S.), supra, at para. 16.
[101] As set out above, the fact that the Respondent and the children took up residency in Tennessee in 2017, as contemplated by the Final Arbitration Award, is no bar to this litigation or other dispute resolution between the parties continuing in Ontario.
[102] In addition to the fact that the Final Arbitration Awards are governed by Ontario law, much of the evidence with respect to the remaining issues of support will involve the Applicant’s evidence of employment and income in Ontario.
[103] Based on the analysis above, I find the threshold for an anti-suit injunction as set out in Amchem has been met.
[104] In light of the continuing Application before this Court and the Final Arbitration Awards, the Applicant should be restrained from pursuing parallel proceedings in Tennessee, and should take all reasonable steps to undo the orders that have been obtained pursuant to the Tennessee litigation.
Conclusion and Orders
[105] The Respondent’s requested relief on her motion for an anti-suit injunction is granted.
[106] The Respondent’s requested relief on her motion for an Order enforcing the Final Arbitration Awards is granted.
[107] However, the Respondent’s requested relief on her motion for an Order declaring void the Orders issued by the Chancery Circuit Court of Tennessee in this matter is not granted.
[108] The Applicant’s cross-motion for an Order dismissing the proceedings before this Court as they will be determined in the proceedings underway in Chancery Circuit Court in Tennessee is dismissed.
[109] The Applicant’s cross-motion for an Order that the Final Arbitration Awards are not enforceable pursuant to section 59.6(1) of the Family Law Act, and section 37 of the Arbitration Act, 1991, is dismissed.
[110] Therefore, the following Orders shall issue: a. The Applicant is restrained from continuing divorce proceedings in Tennessee, namely Court File No. CT-2085-20 at the Chancery Circuit Court of Tennessee for the Thirtieth Judicial District in Memphis; and b. The Final Arbitration Awards issued by Mr. Stephen Grant on December 17, 2017, are enforceable as an Order of this Court.
[111] If the parties cannot agree on costs, they shall make brief submissions as to costs of no more than three pages, together with a bill of costs. The Respondent will have until August 10, 2020 to deliver her submissions on costs. The Applicant will then have until August 24, 2020 to deliver his submissions.
Sossin J.
Released: 2020-07-20