CITATION: Leavens v. Fry, 2020 ONSC 5077
COURT FILE NO.: FS-20-15449
DATE: 20200831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KENNETH LEAVENS
Applicant
– and –
JENNIFER FRY
Respondent
Alison Dennis, lawyer for the applicant
Kristin Whitley and Meaghan O’Connor, lawyers for the applicant
HEARD: August 6, 2020
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The parties, who originally met in Toronto, subsequently relocated to and were married in Australia. They have two children together, both born in Australia. Ultimately, the family moved to Connecticut where they resided until the parties separated in 2018.
[2] Upon separation, the respondent commenced a family proceeding in Connecticut. The parties entered into a Separation Agreement dated September 25, 2018, the terms of which were incorporated by reference into a divorce order dated September 25, 2018 of the State of Connecticut Superior Court (“the divorce order”).
[3] After a hearing in the summer of 2019, the Connecticut Superior Court granted the applicant’s motion to relocate with the children to Ontario (“the relocation order”). The applicant and the children moved to Toronto on September 1, 2019. The respondent remains resident in Connecticut, with her parenting time taking place primarily in Toronto (alternative weekends from Wednesday to Sunday/Monday morning).
[4] On February 11, 2020, the applicant commenced the within application in the Ontario Superior Court of Justice seeking, inter alia, (a) an order recognizing both the divorce order and the relocation order, (b) revised access terms for the respondent and (c) child support payable by the respondent in accordance with the Ontario Child Support Guidelines retroactive to September 1, 2019.
[5] Without attorning to the province of Ontario, the respondent has brought a motion seeking a declaratory order that Ontario lacks jurisdiction over the subject matter of this proceeding. Alternatively, the respondent seeks an order that Connecticut is the more convenient forum to hear and determine the issues in this litigation.
[6] The respondent’s motion was argued before me via videoconference on August 6, 2020. At the conclusion of that hearing, I took my decision under reserve.
[7] These are my Reasons.
Summary of Relevant Facts
[8] The majority, if not all, of the facts giving rise to both this application and the respondent’s motion are not significantly in dispute.
[9] The parties met in 2002 while they both were residing in Toronto. They relocated to Australia in 2005. Both children were born in Australia – one was born before the parties were married, and the other was born afterwards.
[10] After a brief move to Singapore, the parties returned to Australia with their children until April 2014 when they moved to Connecticut. They all resided in Connecticut until the parties separated in May 2018.
[11] As stated, the parties entered into a Separation Agreement dated September 25, 2018, and the terms of that Separation Agreement were incorporated into the divorce order. There is no dispute that the Connecticut Superior Court had jurisdiction over the parties and the issues in the Connecticut proceeding at the time of the divorce order.
[12] The Separation Agreement was comprehensive, addressing custody/access, child support, spousal support, property issues and (subject to the issues raised on this motion), the jurisdiction for future disputes between the parties. The parties agreed to share custody of both children. In addition, the parties expressly agreed to deviate from the governing Connecticut Child Support Guidelines, as the Separation Agreement provided for $0.00 in child support but an equal sharing of extra expenses (similar to section 7 expenses in Ontario).
[13] The Separation Agreement provides that it is to be construed under Connecticut law if at least one of the parties and/or the children still reside within the state of Connecticut. It is only upon both parties and the children relocating to Ontario that Ontario law becomes applicable.
[14] Of note, several paragraphs in the Separation Agreement reference a joint intention on the part of the parties to move to Ontario/Canada. The applicant relies upon the respondent’s sworn testimony at the divorce hearing on September 25, 2018 that she intended to relocate to Ontario/Canada.
[15] Notwithstanding that stated intention, the respondent subsequently changed her mind, and as a result the applicant brought a motion in the Connecticut Superior Court seeking an order permitting him to relocate with the children to Ontario. The Connecticut Superior Court conducted a three day hearing, and ultimately granted the relocation order dated August 27, 2019 permitting the applicant to move to Ontario with the children. Such a relocation was explicitly found to be in the children’s best interests.
[16] The children spent the majority of the summer of 2019 at the parties’ Ontario family cottages, and thereafter moved to Toronto on September 1, 2019.
[17] The respondent subsequently appealed, and sought a stay of, the relocation order. The respondent’s motion for a stay was unsuccessful, and in February 2020 she ultimately withdrew her appeal of the relocation order.
[18] Around the same time, the applicant commenced the within application. Shortly thereafter, the respondent filed three motions in the Connecticut Superior Court seeking the return of the children to Connecticut, child support and a variation to the vacation schedule. In response, the applicant filed an objection to the jurisdiction of the Connecticut Superior Court to deal with the matters raised by the respondent in her motions.
[19] The applicant and the children remained in Ontario, with the respondent commuting from Connecticut to exercise her access rights. In addressing the respondent’s three motions, the Connecticut Court held a hearing/status conference on July 8, 2020 to address the issue of jurisdiction. The applicant submits that the Connecticut Court stayed its proceedings on the basis that it was more important for the matters to be addressed in Ontario since the children reside here. The respondent disputes the applicant’s interpretation of the Court’s comments made during the hearing/status conference, and submits that the Connecticut Court simply took a “wait and see” approach to the issue of the jurisdiction while this motion was pending.
[20] In any event, based upon my review of the record, no formal order implementing a stay of the Connecticut proceedings was seemingly ever issued or registered.
[21] Since September 1, 2019, the children have attended elementary school in Toronto, and continued with online learning here during the COVID-19 pandemic. The children are enrolled in several extra curricular activities in the Greater Toronto Area, and have extended family within Ontario.
Issued to be Decided
[22] There are three issues to be decided on this motion:
Issue #1 Does the Ontario Superior Court of Justice (“the Court”) have jurisdiction to hear the application for custody/access?
Issue #2 Does the Court have jurisdiction to hear the application for child support?
Issue #3 If the answer to Issue #1 and/or Issue #2 is “yes”, should the Court nevertheless decline to exercise its jurisdiction and recognize Connecticut as the more convenient forum?
[23] I shall now proceed to decide each issue in turn.
Issue #1 Does the Court have jurisdiction to hear the application for custody/access?
[24] As conceded by the respondent during argument, under the provisions of Part III (Custody, Access and Guardianship) of the Children’s Law Reform Act R.S.O. 1990 C.12 (“CLRA”), this Court has jurisdiction simpliciter to hear the application for custody/access.
[25] Under section 22(1)(a) of the CLRA, the Court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order.
[26] In cases where parents reside separate and apart, section 22(2)(b) of the CLRA defines habitual residence as the place where the child last resided with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
[27] The children have been residing with the applicant in Toronto since September 1, 2019, and that arrangement is explicitly permitted under the relocation order. The children were therefore habitually resident in Ontario as at the commencement of this application.
[28] Section 41 of the CLRA mandates the Court to recognize an extra-provincial order for custody of or access to a child unless:
a) the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
b) the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
c) the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
d) the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
e) in accordance with section 22 of the CLRA, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
[29] None of the above exceptions are applicable to the case before me.
[30] Section 42 of the CLRA permits the Court to supersede an extra-provincial order in respect of custody of or access to a child where the Court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child, and that the child is habitually resident in Ontario at the commencement of the application for the order.
[31] It is apparent that there has been a material change in circumstances since the issuance of the divorce order, namely the relocation of the children to Toronto carried out in accordance with the terms of the relocation order.
[32] The divorce order and the relocation order are both final orders of the Connecticut Court. While the respondent has brought motions to seek an order relocating the children back to Connecticut, the merits of those motions are irrelevant to the disposition of Issue #1.
[33] I find that the Court has jurisdiction to hear the application for custody/access. That said, under section 42(2) of the CLRA, the Court may still decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario
[34] Accordingly, and subject to the disposition of Issue #3, the answer to Issue #1 is “yes”.
Issue #2 Does the Court have jurisdiction to hear the application for child support?
[35] The answer to Issue #1 was quite straightforward. The answer to Issue #2 however is admittedly murkier.
[36] The respondent submits that the divorce order is not silent on the issue of child support, and I agree with that submission. The divorce order codifies the terms of the Separation Agreement, and the applicant and the respondent explicitly agreed that neither party would pay child support to the other, but would equally share in day to day expenses, medical expenses and post-secondary school expenses. This decision was based upon “the shared physical custody arrangement, similar incomes of the parents and coordination of total family support.”
[37] As the divorce order includes a determination of child support and day to day (akin to section 7) expenses, the respondent argues that the applicant’s request for child support from this Court is not an originating application, but rather a request to vary an existing and subsisting foreign order for child support, which is unavailable in Ontario.
[38] The respondent relies upon the decision of Justice Goodman in Sun v. Guilfoile 2011 ONSC 1685 in support of her position. In Sun, the parties obtained a Japanese court order dealing with the material aspects of their separation, including child support. When the mother subsequently sought child support in Ontario, Justice Goodman refused to hear the application in the face of a subsisting foreign order because “such an application is nothing more than a disguised variation application.”
[39] The respondent further submits that that the Court cannot vary a corollary support order related to a valid foreign divorce order under the terms of the Divorce Act R.S.C. 1985 c.3 or the Family Law Act R.S.O. 1990 c.F3 (the “FLA”). In such circumstances, the applicant’s only recourse would be to proceed under the Interjurisdictional Support Orders Act 2002, S.O. 2002, c. 13 (the “ISOA”). The ISOA governs support orders between parties residing in different jurisdictions, and is designed to facilitate the enforcement and variance of support obligations of persons resident in one jurisdiction whose dependents are resident in a different jurisdiction.
[40] While the respondent insists that the applicant must proceed under the ISOA to vary the child support terms of the divorce order, the applicant has not sought such relief in his application. The applicant takes the position that this Court does have jurisdiction to hear his application for child support, and he maintains that proceeding under the FLA is preferable so as to avoid a multiplicity of proceedings.
[41] In support of his position, the applicant relies upon the Court of Appeal for Ontario’s decision in Jasen v Karassik 2009 ONCA 245 which held that the ISOA is not a “complete code” for interjurisdictional support. In Jasen, the parties were never married and had one child. Shortly after the child was born, the mother commenced an application against the father in the Ontario Court of Justice for child support under the FLA. The father never attorned to the jurisdiction of the Ontario court, but with the assistance of U.S. counsel, entered into an agreement with the mother for child support. After several years, the mother brought another Ontario application in the Ontario Court of Justice under the FLA to vary the child support provisions of the agreement. The trial judge granted the variation, and the father successfully appealed to the Ontario Superior Court of Justice which held that the mother was required to proceed under the ISOA as the father was an out-of-province payor.
[42] In restoring the original decision of the Ontario Court of Justice, the Court of Appeal for Ontario stated as follows:
“The appeal judge accepted the father's argument that even if the FLA gave the Ontario Court of Justice jurisdiction to vary the agreement, that jurisdiction is displaced by the ISOA, which provides a scheme for the variation of support agreements. The father argues that the ISOA provides the only means by which an applicant can apply to vary an agreement when the payor resides out of Ontario in a reciprocating jurisdiction.
With respect, I conclude that in accepting the father's argument, the appeal judge erred. In my view, a resident of Ontario may bring an application for support or variation of a support agreement under either the FLA or the ISOA. Applicants who choose to bring a support proceeding under the FLA against a non-resident father are required to effect service ex juris and to show that Ontario has a real and substantial connection to the subject matter of the application. If the applicant is successful, the regime provided in the ISOA may be available to the applicant to enforce the resulting order in a reciprocating jurisdiction.”
[43] The Court of Appeal for Ontario also held that jurisdiction may be asserted against an out-of-province parent in three circumstances: the parent is physically present in Ontario, the parent consents/agrees/attorns to the jurisdiction, or Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected upon the parent.
[44] While Jasen holds that the ISOA does not in and of itself preclude a parent from pursuing support remedies against an out-of-province parent under the FLA in Ontario, the facts in Jasen are somewhat different than those before the Court. In Jasen, the parties were never married and there was no extra-provincial divorce order setting out the support provisions.
[45] The respondent relies upon the subsequent decision of the Court of Appeal for Ontario in Cheng v Liu, 2017 ONCA 104. In Cheng, two questions were before the panel:
a) does Ontario have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction (China)?
b) does Ontario have jurisdiction under the FLA to determine the issue of child support after a foreign court has issued a divorce?
[46] I agree with the applicant that the real issue in Cheng was the doctrine of paramountcy, and whether there was any operational incompatibility between the Divorce Act and provincial family law legislation. That said, the Court of Appeal for Ontario did state as follows:
“This line of jurisprudence is helpful in the analysis of the issue in the present case. It stands for the proposition that where a court issuing a divorce has not adjudicated the issue of child support, provincial legislation is a valid means of seeking a child support remedy.
In my view, the principles developed in the case law are analogous to a situation where a foreign court grants a valid divorce, but does not deal with child support. In the present case, while there is a valid divorce in place issued by the Chinese court, that court has expressly ruled that the issue of child support is better determined by the Ontario courts.
There is also no statutory prohibition against utilizing the FLA in such circumstances. Indeed, the use of the FLA to provide a remedy is entirely consistent with the statuary objective of ensuring that parents provide support for their dependent children.”
[47] Despite the respondent’s able submissions, I do not read Cheng as standing for the general proposition that Ontario will only have jurisdiction to make an order for child support under the FLA following a valid foreign divorce when the divorce order is silent about child support and/or the foreign court has not adjudicated the issue of child support. In my view, the Court of Appeal for Ontario determined that Ontario courts have authority to award child support under the FLA and there is nothing in the legislation that restricts that authority in situations where a divorce order has been issued outside of Canada.
[48] My reading of Cheng finds support in the decision of Rubio v Joslin, 2018 ONCJ 167 when Justice O’Connell stated as follows:
“Can the Court of Appeal's ruling in Cheng v. Liu be extended to permit an applicant to claim child support under the Family Law Act if the foreign divorce contains a support order?
The Court of Appeal in Cheng v. Liu did not answer this question. Prior to the release of Cheng v. Liu, there appears to be a number of conflicting lower court decisions regarding this issue.”
[49] There does not appear to be any appellate authority squarely on point with the facts of this application. However, a review of further relevant jurisprudence discloses that while the Court should typically refrain from exercising jurisdiction under the FLA over issues of child support where there is a valid and subsisting foreign order (ie. the “disguised variation” concern in Sun), when child support claims are brought together with custody claims, the Court does maintain a discretion to take jurisdiction over both issues and hear them together.
[50] In Sun, the mother’s application sought an order for child support only, and was stayed due to the Court’s lack of jurisdiction over a request to vary a foreign order. However, there are other cases which yield a different result in the face of a concurrent request for custody as well as child support.
[51] In Kaur v Guraya 2011 ONSC 2853, the parties were divorced in Louisiana and then obtained a final order dealing with, inter alia, parenting and child support from the Superior Court of Washington. The mother subsequently relocated to Ontario and brought an application for custody, access, and child support. The father did not attorn, and brought a motion to stay the mother’s Ontario application for want of jurisdiction.
[52] In finding that Ontario did have jurisdiction, Justice Gordon stated (my emphasis in bold):
“In the case of Sun v. Guilfoile 2010 ONSC 1685, Justice Goodman concluded at para. 55 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 section 33. Such an application is nothing more than a disguised variation application.” This statement does reflect the findings of most of the courts which have considered the matter. However in most such cases there was no concurrent claim to supersede an existing custody order based on material change in circumstances.
Although not cited by either of the parties, I have reviewed the case of Leonard v. Booker (2008) 2007 NBCA 71, 44 R.F.L. (6th) 237 (N.B.C.A.) in which the New Brunswick Court of Appeal held as follows:
‘A foreign support order must be registered under the Interjurisdictional Support Orders Act before it can be varied. In addition, a foreign custody order can be recognized under the Family Services Act, and then it can be varied under that Act where “there has been a material change in circumstances that affect or is likely to affect the best interests of the child” (s. 130.3(1)). While this two-step procedure may not be the most efficient, it respects the domestic division of powers in that custody and support matters outside of the context of a Canadian divorce can only be dealt with through provincial legislation. In addition, as the British Columbia Court of Appeal phrased it succinctly in Virani 4, the registration process for foreign support orders “engages public officers in both jurisdictions,” which respects international comity rather than disregarding the foreign orders that are legally binding.
I am of the opinion that if the respondent had invoked the appropriate provisions of the Family Services Act, the motion judge would have had jurisdiction to deal with the custody of the child and related matters...’
I accept that the court generally should not entertain a support application in Ontario when there is already an order in a foreign jurisdiction which deals with the issue. The situation whereby a parent who is unhappy with a child support order in one jurisdiction can relocate to another jurisdiction and have the matter re-litigated is to be avoided, as is a regime which would allow a payee to seek a new order for support in each jurisdiction to which a payor relocates. But where an Applicant legitimately brings an application for custody of children who are habitually resident in Ontario and satisfies the court that a foreign order dealing with custody and access should be superseded, surely the issue of support for those children arises anew. In such circumstances the foreign custody order upon which child support was previously considered no longer reflects the circumstances of the children or the parents. The children’s needs ought to be determined having regard to the new order and the provisions of the new custody regime.”
[53] In exercising the Court’s discretion to take jurisdiction over the mother’s claims, Justice Gordon considered the traditional factors (in force at the time) in Muscutt v Courcelles 2002 CanLII 44957 (ONCA) and determined that there was a real and substantial connection between the claim and Ontario. Justice Gordon went on to hold that while Ontario had jurisdiction to hear the mother’s application for child support, she would only be successful on that issue if she was also successful in obtaining a superseding order dealing with the custody/parenting terms of the foreign order. In my view, this is a reasonable and practical approach given that a relocation of children will almost always amount to a material change in circumstances. Where appropriate, issues of custody and support ought to be determined in the same jurisdiction, in part to reduce the risk of multiplicity of proceedings.
[54] This approach is buttressed by the decision of Justice Scott in Gavriluke v Mainard 2012 ONSC 6928, appeal dismissed 2013 ONSC 2337. In Gavriluke, the mother moved with the children from France to Ontario while the father remained in France. The Superior Court in Paris issued an order in relation to custody, access, child support and the children’s primary residence with the mother in Canada. The mother subsequently brought an application in Ontario to vary child support, custody, and access. The father brought his own proceeding in France to change custody and access, however the French court declined jurisdiction as the issues were before the Ontario court. The father brought a motion to stay the mother’s Ontario application for want of jurisdiction, and that motion was dismissed. Justice Scott acknowledged the apparent conflict between the Sun and Kaur decisions, but found that neither case was exactly on point with the facts before him. In the end, Justice Scott preferred the approach in Kaur, stating:
“I also agree with Justice Gordon that in those situations where there is a proceeding before the court in Ontario that deals with custody and access and that proceeding is able to proceed in this jurisdiction because of s. 42 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, it is appropriate to accept jurisdiction over the issue of child support as well, recognizing that the outcome of the changed order could well impact on the support issue. One obvious example is if custody or residency were transferred.”
[55] After granting the father leave to appeal from Justice Scott’s order, the Divisional Court dismissed his appeal. I rely upon Justice Aston’s comments from that decision:
“The broad and general principles articulated in the jurisprudence cited on this appeal are only helpful in the context of the underlying facts of those cases. The appellant father would have us focus on the similarities between this case and Sun v. Guilfoile (2011) 2011 ONSC 1685, O.J. No. 1168 (S.C.J.). However, it is readily apparent that this case is significantly different. In the Sun case, neither the applicant mother nor the children had any connection whatsoever to the Province of Ontario and Goodman J. found as a fact that the mother’s application (an application limited to child support) was simply forum shopping. Scott J. made a different factual determination in this case.
The main point to be made here, is that unless it is quite clear that Ontario has no jurisdiction or ought not to accept jurisdiction, the child support claim on behalf of children residing here ought to be determined on the merits. There may well be cases where it is clear that the custody/access claim advanced in relation to children living in Ontario is nothing more than a ruse or a tactic for the purpose of establishing jurisdiction to claim child support. At the other end of the spectrum, there could be custody and access decisions that have far-reaching financial implications.
The facts of this case do not clearly fall at either end of the spectrum but, because it is not clear that the custody and access claims are artificial or insignificant, we are not persuaded that jurisdiction is clearly excluded or that there is a clear justification for this Court to decline to exercise that jurisdiction at this stage.”
[56] As stated, I do not believe that Cheng has overruled or altered the approach taken in Kaur and Gavriluke. On the record before me, I do not agree with the respondent’s submission that this application is no more than a ruse on the part of the applicant to seek a variance of child support “though the back door” by including a potentially spurious claim for custody and access in order to bypass the ISOA. The applicant is not engaging in forum shopping. Ontario is the jurisdiction where he and the children reside pursuant to the relocation order which he sought and obtained on notice to the respondent. I agree with the applicant that the respondent’s decision to remain in Connecticut (a decision that appears to run contrary to the parties’ intentions at one point) should not deprive the applicant of the right to seek relief in Ontario.
[57] I therefore find that Ontario has jurisdiction simpliciter to hear the application for child support. As held by the Court of Appeal for Ontario in Jansen, I still must find a real and substantial connection to the matters being litigated (since there is no dispute that personal service ex juris on the respondent was properly effected).
[58] In Wang v. Lin 2013 ONCA 33, the Court of Appeal examined the presumptive factors to establish jurisdiction in a family law proceeding (as opposed to a tort claim under the analysis in Club Resorts Ltd. v. Van Breda 2012 SCC 1), and stated as follows:
“Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:
In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:
(a) Similarity of the connecting factor with the recognized connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.
While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA,respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.”
[59] Both the applicant and the children are ordinarily resident in Ontario in accordance with the relocation order. On that basis alone, there is a real and substantial connection. However, I also rely upon the following additional facts in support of my conclusion:
• The applicant and the children’s extended family reside in Ontario;
• The children are registered for school and extra-curricular activities in Ontario, and most if not all of their significant extraordinary expenses are incurred in Ontario; and,
• The respondent is originally from Ontario. Her immediate (and most of her extended) family members reside in Ontario. She spends parts of the summer in Ontario cottage country. She visits Ontario at least twice per month to visit the children per the existing access terms.
[60] I thus find the presence of a real and substantial connection between Ontario and the matters in dispute in this application.
[61] Accordingly, the answer to Issue #2 is “yes”.
Issue #3 If the answer to Issue #1 and/or Issue #2 is “yes”, should the Court nevertheless decline to exercise its jurisdiction and recognize Connecticut as the more convenient forum?
[62] Even though I have found that Ontario has jurisdiction to hear this application, sections 19(b) and 25 of the CLRA allow the Court to consider declining jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario especially in cases where it is more appropriate for the matter to be determined by a court having jurisdiction in another place with which the child has a closer connection.
[63] Where, as in this case, two different courts have concurrent jurisdiction, the Court must determine whether Ontario is the forum non conveniens or the forum conveniens. The overarching inquiry is whether there is a more (or perhaps most) appropriate forum for the proceeding to be heard, having regard to all the factors connecting the litigation and the parties to the competing jurisdictions. As held by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda 2012 SCC 17, “the court must engage in a contextual analysis, but refrain from leaning too instinctively in favour of its own jurisdiction”.
[64] I therefore embark upon an analysis of the seven Van Breda factors to determine whether the respondent has met her onus of displacing Ontario at the forum conveniens.
The location of the majority of the parties
[65] The parties are obviously located in separate jurisdictions. That said, the respondent comes to Toronto every second weekend for her parenting time, and spends at least part of the summer at her family cottage in Ontario.
[66] This factor is in favour of Ontario.
The location of key witnesses and evidence
[67] The respondent argues that the majority of evidence regarding the family, the parties, and the children is in Connecticut, which has been the family’s home for longer than the applicant’s current home in Toronto. The children have spent the majority of their lives in Connecticut.
[68] The parties’ daughter was receiving special education resources via her Individual Education Plan ("IEP") in Connecticut with three full-time special education teachers and a psychologist to assist her there. The respondent submits that there is over four years of evidence to support that both children were thriving in Connecticut, and there is no similar evidence in Ontario especially due to their 2020 school years being interrupted due to the COVID-19 pandemic (which I note would have occurred in any event had the children stayed in Connecticut).
[69] The respondent gave evidence that as part of the court process in Connecticut, a Family Support Worker is assigned and that individual began working with the family in February 2019 to perform an assessment akin to a custody and access assessment. That individual resides in Connecticut and her viva voce evidence was given in the Connecticut proceedings.
[70] Evidence relating to the respondent’s income for the purpose of seeking child support is also in Connecticut.
[71] The applicant submits that since September 2019, the key witnesses and evidence is mainly in Ontario as the children have resided her for a year and will continue to reside in Ontario. Evidence relating to their adjustment to life since relocation (including school, health, extended family and extra-curricular activities) is all in Ontario.
[72] I find that there is merit in both parties’ positions on this issue. The respondent is correct that the majority of the evidence of the history of the family, its breakdown, and the divorce is in Connecticut. However, this application seeks custody and child support retroactive to September 1, 2019 (ie. post-relocation), and the relevant evidence will relate the current needs and best interests of the children. While this does not negate the importance of any Connecticut evidence, I find that the relocation order and current residence of the children requires the court (whether here or in Connecticut) to evaluate how the children are faring in Ontario.
[73] This factor is in favour of Ontario.
Contractual provisions that specify applicable law or accord jurisdiction
[74] The Separation Agreement provides that Connecticut law will apply if one party is still residing in Connecticut. While that may be an issue for this Court to decide at a later date, even assuming that the law of Connecticut would apply, foreign law is a factual issue to be tendered and proved by expert evidence. In addition, it appears that, at least conceptually, the law of child support is similar to that of Ontario in that child support guidelines and extraordinary expenses are implemented. Simply put, the law of Connecticut may be foreign, but it does not include foreign concepts.
[75] The Separation Agreement also provides that “in the event that the parents are unable to agree as to what is in the children’s best interests, a court of competent jurisdiction shall make the determination.” This term contemplates the real possibility of a court other than the Connecticut Court determining what is in the children’s best interests.
[76] Although not determinative, the contractual choices of the parties should generally be respected. This factor is slightly in favour of Connecticut.
The avoidance of a multiplicity of proceedings
[77] As stated, while I am not prepared to find that the Connecticut Court issued a formal stay of the respondent’s pending motions, a review of the transcript from the hearing/status conference discloses that the Connecticut Court is certainly alive to, and respectful of, Ontario possibly being the appropriate jurisdiction to hear the matters in dispute as the children reside here. It appears reasonable to conclude that for the purposes of comity, the law of jurisdiction in Connecticut shares some similarities to the law of Ontario.
[78] There is no doubt a lengthy litigation history of this matter in Connecticut. However, until this motion is determined (and presumably any potential appeals herefrom are exhausted), the Connecticut Court has chosen to employ a “wait and see” approach to the respondent’s pending motions. As such, any risk of contradictory orders being issued has been minimized.
[79] As I have found that Ontario has jurisdiction to hear this application, it is reasonable to believe that the Connecticut Court will not hear the same issues (especially based upon the excerpts from the transcripts from the hearing/status conference).
[80] The applicant has undertaken not to enforce the divorce order. As such, proceeding with the application in Ontario should not inherently produce a multiplicity of proceedings.
[81] This factor is in favour of Ontario.
The applicable law and its weight in comparison to the factual questions to be decided
[82] The applicant argues that the respondent has refused to provide financial disclosure and thus child support cannot be calculated in accordance with either Ontario or Connecticut law. The applicant is seeking an order recognizing the divorce and relocation orders, together with superseding orders under (i) the CLRA in relation to custody/access, and (ii) the FLA in relation to child support, all due to a material change in circumstances.
[83] I have already found that Ontario has jurisdiction to hear these issues anew. This factor is slightly in favour of Ontario.
Geographical factors suggesting the natural forum
[84] I come to the same conclusion as the first and second factors (location of parties, witnesses and evidence). This factor is in favour of Ontario.
Whether declining jurisdiction would deprive the applicant of a legitimate juridical advantage available in the domestic court
[85] The respondent argues that since the Connecticut Court determines child support based on guidelines similar to those in Ontario (although the Connecticut child support guidelines appear to be more complex and based on inputs and calculations that Ontario does not employ or have), and based on the best interests of the child, the applicant would not suffer a loss of juridical advantage.
[86] As held by the Court of Appeal for Ontario in Goldhar v Haaretz.com 2016 ONCA 515, juridical advantage (which is distinct from forum shopping) can only be raised on one’s own behalf and is only relevant to one’s own preferred forum. The question to be posed is whether it would be unjust to deprive the applicant of certain reasonable expectations of personal advantage available in Ontario.
[87] Allowing this application to proceed in Ontario does provide the applicant with the advantage of having the issues of custody and support determined where the children reside, and the current evidence is located.
[88] This factor is slightly in favour of Ontario.
[89] The weighing of the Van Breda factors lends to the conclusion that it is not only convenient, but more logical, to hear this application in Ontario. I find that the respondent has failed to discharge her onus to prove that Ontario is not the forum conveniens.
[90] Accordingly, the answer to Issue #3 is “no”. The respondent’s motion is dismissed.
Costs
[91] I would urge the parties to exert the necessary efforts to come to an agreement on the costs of this motion. If they are unable to do so, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:
a) the applicant’s costs submissions shall be served and filed within ten (10) business days of the release of these Reasons for Decision; and,
b) the respondent shall thereafter have an additional ten (10) business days from the receipt of the applicant’s costs submissions to serve and file her responding costs submissions.
Diamond J.
Released: August 31, 2020
CITATION: Leavens v. Fry, 2020 ONSC 5077
COURT FILE NO.: FS-20-15449
DATE: 20200831
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KENNETH LEAVENS
Applicant
– and –
JENNIFER FRY
Respondent
REASONS FOR DECISION
Diamond J.
Released: August 31, 2020