Tricia Dawn Simons v. Michael Anthony Crow, 2020 ONSC 5940

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1708/10

DATE: 2020-10-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tricia Dawn Simons

Applicant

– and –

Michael Anthony Crow

Respondent

J. Grant, Counsel, for the Applicant

K. Fishman, Counsel, for the Respondent

HEARD: August 26, 2020

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

OVERVIEW

1This is a motion brought by the Respondent father, Mr. Crow, seeking the dismissal of the Applicant mother’s Application dated October 30, 2019 on the basis of lack of jurisdiction.

2The Applicant Mother, Ms. Simons, brought an Application in the Ontario Superior Court of Justice, Family Court Branch, seeking the following relief:

a. Custody of the parties’ adult children Geoffrey Grant Crow (born February 24, 1996), Michael Anthony Crow Jr. and Richard Jamie Percy Crow (both born January 23, 1997);

b. An order that the Respondent Father, Michael Crow (“Michael”) only have access to the children every other weekend on either Saturday or Sunday;

c. An order for child support;

d. An order that Michael maintain Tricia and the children on any health insurance he has;

e. An order that Michael designate the children as beneficiaries of any life insurance he has through his employment and that he designate Tricia as trustee for the children;

f. An order for costs.

3The Applicant’s claims for child support are brought under the Family Law Act and her claims for custody and access are brought under the Children's Law Reform Act.

4The Respondent father does not attorn to the jurisdiction of Ontario in this matter.

BACKGROUND

5The relevant background facts in this matter are largely undisputed.

6The parties were married in 1993. The Applicant mother is from Canada and the Respondent father is originally from the United Kingdom, however they are both Canadian citizens.

7Together they have three children: Geoffrey Grant Crow (born February 24, 1996), Michael Anthony Crow Jr. and Richard Jamie Percy Crow (both born January 23, 1997).

8The family resided together in Bermuda commencing in or around 1998. They were residing in Bermuda when they separated in 2005.

9The Applicant and Respondent were divorced in Bermuda in 2006.

10All three children have varying degrees of autism.

11All three children are now over the age of majority.

12The parenting and financial issues in this matter have been historically and litigated over the years in the Supreme Court of Bermuda. Specifically:

a. Order dated June 22, 2007 regarding parenting;

b. Order dated March 6, 2008 regarding parenting;

c. Order dated May 23, 2008 regarding parenting;

d. Order dated April 17, 2009 regarding property division and child support;

e. Order dated November 16, 2010 regarding (reduction of) child support.

13In or around May 2008 the Applicant mother returned to reside with the children in Ontario. The parties generally followed the terms of the parenting settlement incorporated into the March 6, 2008 Consent Order. The children resided primarily in Ontario with the Applicant mother, and the children resided with the Respondent father approximately one-third of the time, in a rented home which he maintained in Ontario. This arrangement continued until approximately 2018.

Child Support

14In late 2018 the Respondent father again commenced proceedings in Bermuda, to address child support changes resulting from a reduction of the father’s income (due to a catastrophic event), and the children had having attained the age of majority and being enrolled, to varying degrees, in post-secondary studies.

15A hearing was conducted in the Supreme Court of Bermuda on March 20, 2019. Both parties participated fully in the proceedings, providing both Affidavit and viva voce evidence to the court in Bermuda. The issues considered by the court included the father’s request for a termination and/or variation of child maintenance payments retroactive to June 2018.

16On August 12, 2019 the Registrar of the Supreme Court of Bermuda released a comprehensive written judgment in this matter. A variation of child support was ordered such that:

a. Support for the child Michael Jr. was terminated, retroactive to July 1, 2018;

b. Support for the child Richard was reduced to $800.00 per month, retroactive to July 1, 2018; and

c. Support for the child Geoffrey was reduced to $820.00 per month, retroactive to February 1, 2019.

17Costs were awarded in favour of the father, and the child support Order is being enforced through the Family Responsibility Office. This decision was not appealed and remains in-force to date.

Custody and Access

18For reasons that are disputed, the long-standing parenting arrangement between the parties was disrupted such that the father’s time with Richard has been reduced significantly, and he has not seen the children Michael Jr. or Geoffrey since June 2019. As a result, the father returned the parenting issues to court in Bermuda.

19On September 25, 2019 the matter was heard in the Supreme Court of Bermuda. The court determined that it had inherent jurisdiction to deal with the parenting issues due to the mental disabilities of Geoffrey, Michael Jr., and Richard. The mother participated at the court attendance by teleconference. The court confirmed the existing order for joint custody pursuant to the May 23, 2008 court Order and provided for specific parenting time for the father for the balance of September, October, and November of 2019. The matter was adjourned for further argument and timelines were set for the mother to file her responding materials. A further order for costs against the mother was made.

20The matter returned to court again on October 17, 2019. The mother failed to attend and did not filed responding materials. She was found in contempt of court in relation to the specified time-share arrangement ordered on the previous occasion. The court ordered the contempt order be registered for purposes of enforcement in Canada. Further specified parenting time with the father was ordered for the months of December 2019 and January 2020. Another costs award was made against the mother.

21On November 14, 2019 the Applicant mother’s Application in the Ontario Superior Court of Justice, Family Court was served upon the Respondent father. On November 28, 2019 counsel for the mother advised in writing that the mother now disputes the jurisdiction of the Bermuda Court to make any orders concerning custody and access to the children. The mother did not make an Application in Bermuda for the ongoing proceedings to be dismissed or to have the matter transferred to the jurisdiction of Ontario.

22On January 15, 2020 the matter again returned to court in Bermuda. The mother did not attend and did not file materials. On that occasion the Honourable Justice N. Stoneham gave written reasons as to the inherent jurisdiction of the Supreme Court of Bermuda. In her written decision the court explained that Bermuda does not have a statutory scheme for the making of custody care and control orders in respect of vulnerable adults. However, the court ruled that it had inherent jurisdiction/parens patraie authority to address matters pertaining to the welfare of vulnerable adult children. In exercising her jurisdiction to hear the matter, the court noted that the parties had repeatedly submitted to the jurisdiction of the Supreme Court of Bermuda in matters concerning these children since 2006. After confirming the authority of the Supreme Court of Bermuda over the adult children, Justice Stoneham made the following orders:

1. The Court declares that Geoffrey Grant Crow, born 24 February 1996, and Michael Anthony Crow Junior and Richard Jamie Percy Crown, both born 23rd January 1997 (hereinafter “the adult children”) lack capacity to make decisions regarding their custody, care and control;

2. The Court confirms and declares that the order dated 23 May 2008 granting the parties joint custody and shared care and control of the adult children shall continue notwithstanding that the children are no longer minors;

3. The Respondent shall make the adult children available to the Petitioner for him to exercise his shared care and control for up to 50% of any given month. The Petitioner shall provide notice of his intended travel dates to the Respondent no less than 1 month prior to his scheduled visits by e-mail;

4. The Respondent shall make the adult children available to the Petitioner for him to exercise care and control during the holidays on the following basis:

a. For up to 1 month during the summer;

b. For 2 weeks over the Christmas period, alternating annually with the Petitioner to have care of the children for Christmas 2020.

23The most current governing court orders in this matter are therefore:

1. The Order of Wheatley J. (Supreme Court of Bermuda) dated August 12, 2019 as it pertains to child support; and

2. The Order of Stoneham J. (Supreme Court of Bermuda) dated January 16, 2020 as it pertains to custody and access.

THE LAW AND ANALYSIS

24This motion for final disposition of a legal issue (lack of jurisdiction) is permissible under Rule 16 of the Family Law Rules: O. Reg. 114/99, as am.

25Two separate jurisdictional issues present themselves on the facts of this case:

1. Subject matter jurisdiction (or subject matter competence): The ability of the court to hear the type of dispute in question, considering issues such as whether its jurisdiction was limited by statute or factors other than territorial competence; and

2. Territorial jurisdiction: The authority of the court to hear the dispute in question, in consideration of physical boundaries. This analysis typically requires consideration of jurisdiction simpliciter (a determination of whether the court has territorial competence to hear an action), and forum non conveniens (a determination of whether there is a more appropriate forum).

26With respect to territorial jurisdiction, the burden of establishing jurisdiction simpliciter falls upon the party exerting its existence. The burden of establishing forum non conveniens rests upon the party asserting that another forum is more appropriate: Van Breda v. Village Resorts Ltd., 2012 SCC 17.

27It is appropriate to deal with these jurisdictional issues as they arise in relation to custody/access and child support separately.

1. Custody and Access

28Counsel for the Respondent father referred the court to the following sections of the Children’s Law Reform Act, R.S.O., 1990, c. C.12, as amended, in relation to determination of territorial jurisdiction:

a. Reference to the purposes of the CLRA which recognize the importance of avoiding concurrent jurisdiction by judicial tribunals and domestic and enforcement of foreign orders: s. 19(b), and s. 19(c);

b. Statutory jurisdiction and habitual residence of children: s. 22;

c. Special considerations of serious harm to a child: s. 23;

d. Judicial discretion to decline jurisdiction where the court is of the opinion that there is a more appropriate jurisdiction: s. 25;

e. Preservation of the court’s parens patriae jurisdiction to protect children as a Superior Court power: s. 69; and

f. Enforcement of extra-provincial custody and access orders: s. 41.

29The principles of jurisdiction simpliciter and forum non conveniens specific to custody and access issues regarding children are clearly codified under the CLRA.

30It is obvious to the court that Geoffrey, Michael Jr. and Richard are habitually resident in Ontario where they have resided primarily since May 2008. The Applicant mother meets the burden of establishing jurisdiction simpliciter under the CLRA without difficulty. The burden would therefore normally shift to the Respondent father to establish forum non conveniens and the court was referred to the following cases by counsel in this regard: Sheidaei-Gandovani v. Makramati, 2016 ONCJ 326, Lowry v. Steinforth, 2018 ONCJ 744, Hartmann Jorgensen v. Hartmann Jorgenson, 1986 6250 (ON SC), [1986] O.J. No. 1821, Khan v. Khan, [2006] O.J. No. 5604, and Murray v. Ceruti, [2014] O.J. NO. 4684.

31However, before venturing into the realm of whether the Bermuda Supreme Court is the more convenient forum, it is important to note that none of the caselaw provided to the court pertained to ‘children’ over the age of majority. Before this court may consider the balance of the parties’ arguments regarding territorial jurisdiction over custody and access issues in this action, this court must be concerned with its jurisdiction to address custody and access at all in relation to ‘children’ who are all over the age of majority: Geoffrey is 24 years of age and Michael Jr. and Richard are both age 23.

32This matter could not be (and was not) brought under the Divorce Act, as the issue of a divorce between these parties was determined by the Supreme Court of Bermuda in 2006. Instead the Applicant has brought her claims in relation to custody under the Children’s Law Reform Act.

33Part III of the Children’s Law Reform Act governs matters of custody, access and guardianship of children. Section 18(2) of the CLRA specifies as follows

18.(2) CHILD – A reference in this Part to a child is a reference to the child while a minor.

34By contrast, the Divorce Act uses the terminology “child of the marriage” which means: a child of two spouses or former spouses, who, at the material time,

(a) Is under the age of majority and who has not withdrawn from their charge, or

(b) Is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., s. 2.

35There is no distinction under the Divorce Act as between a minor child of the marriage and an adult child of the marriage in relation to custody, access, and support and courts have therefore found jurisdiction to address matters of custody and access for adult ‘children’ under the federal legislation: See for example Ross v. Ross, 2004 BCCA 131, Perino v. Perino, 2009 41900 (ONSC).

36However, as noted above, this case has not been commenced under the Divorce Act, but rather under the provincial Children’s Law Reform Act. This court does not have jurisdiction under the provincial legislation to order custody or access in respect to a child who is not a minor: see for example Ciolfe (Caravatta) v. Ciolfe: 2006 ONCJ 118. As a result, this court does not have jurisdiction to grant the relief sought by the Applicant as it pertains to the custody and access raised in this action in relation to Geoffrey, Michael Jr. and Richard. Likewise, this court would not have jurisdiction to order the enforcement of the extra-provincial custody and access order of the Supreme Court of Bermuda under s. 41 of the CLRA because the order must pertain to the custody of, or access to, a “child” as defined under Part III.

37The parties cannot confer jurisdiction on a court through consent: “The common law unanimously supports the general proposition that parties cannot empower a court with the authority to make a determination where it otherwise has no authority to do so or it its authority is limited by statute: Rothgiesser v. Rothgiesser, 2020 1153 (ONCA) at para. 19. Jurisdiction is not optional: it “cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered”: J.N. v. Durham [Regional Municipality] Police Service, 2012 ONCA 42 at para. 25. Notwithstanding the parties’ agreement that Geoffrey, Michael Jr. and Richard are incapable of making decisions in their own best interests, the court cannot order, and cannot enforce custody and access terms (arising in any territorial jurisdiction) because they are not children as defined by the applicable legislation. The court lacks jurisdiction over the claims for custody and access in relation to Geoffrey, Michael Jr., and Richard.

38Interestingly, the Supreme Court of Bermuda was also obliged to consider its jurisdiction to make custody orders regarding the ‘vulnerable adults’ Geoffrey, Michael Jr., and Richard, as there is no statutory scheme in Bermuda which makes express provision for care and control of such individuals. As a result, the Order of Stoneham J. was made was granted pursuant to the court’s inherent jurisdiction to safeguard the interests of vulnerable adult children. There is no such legislative gap in Ontario: Part II of the Substitute Decisions Act, 1992 governs decision making for adults deemed incapable of understanding information or unable to appreciate foreseeable consequences of decisions relating to personal care: S.O. 1992, Chapter 30. Further, the obligations of a guardian appointed for personal care for such an individual include assessment of enumerated ‘bests interests’ of the incapable person and a duty to foster regular personal contact between the incapable person and supportive family members: Substitute Decisions Act, s. 66.

39The issues raised by the Applicant ought to have been commenced as an Application under the Substitute Decisions Act. Likewise, should the Respondent wish to commence future proceedings to compel compliance with the Order of Stoneham J. (Supreme Court of Bermuda) dated January 16, 2020, that too will likely need to be commenced under the authority found in the Substitute Decisions Act.

40The Applicant’s action has been commenced in the Superior Court of Justice, Family Court Branch. The jurisdiction of the Family Court does not include stand alone applications under the Substitute Decisions Act: Courts of Justice Act, R.S.O. 1990, c. C.43 at s. 21.1(3) and s. 21.8. This court does not have subject matter jurisdiction over such a claim unless consolidated with an action for which the Family Court has exclusive jurisdiction: Rules of Civil Procedure, R.R.O. 1990, reg. 194, Rule 6. As such, a determination of whether this court has jurisdiction over the financial issues raised by the Applicant is necessary to determine whether amendment and consolidation are viable options.

1. Child Support

41The Applicant has brought her claim for child support under the Family Law Act, R.S.O. 1990, c. F.3, as am. In contrast to custody and access proceedings under the CLRA, child support is not limited to “minor” children. Specifically, section 31 of the FLA provides that:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

42There is therefore no preliminary issue as to subject-matter jurisdiction.

Jurisdiction Simpliciter

43Unlike the Children’s Law Act, the Family Law Act does not specifically address the question of jurisdiction simpliciter.

44In the context of child support, jurisdiction may be asserted against an out-of-province payor in three circumstances:

a. The payor is physically present in Ontario;

b. The payor consents, agrees, or attorns to the jurisdiction; or

c. Ontario has a ‘real and substantial connection’ to the matter being litigated and servis ex juris has been properly effected: Muscutt v. Corcelles, 2002 444957 (ONCA) at para. 19, Jasen v. Karassik, 2009 ONCA 245, Naeli v. Ghaeinizadeh, 2013 ONCA 2 at para. 13.

45A ‘real and substantial connection’ must be established on the basis of objective facts that connect the legal situation or the subject matter of the litigation with the forum. The language is deliberately general to allow for flexibility and evolution in application of the test: Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 SCR 1077, Club Resort Ltd. v. Breda, supra at para. 82.

46The following factors have emerged as relevant in assessing ‘real and substantial connection’:

a. The connection between the forum and the plaintiff’s claim;

b. The connection between the forum and the defendant;

c. Unfairness to the defendant in assuming jurisdiction;

d. Unfairness to the plaintiff in not assuming jurisdiction;

e. The involvement of other parties to the suit;

f. The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

g. Whether the case is interprovincial or international in nature;

h. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere: Muscutt v. Corcelles, supra at paras. 77-110.

47The burden falls to the Applicant mother to satisfy the court that the Ontario Superior Court of Justice has territorial competence (jurisdiction simpliciter) to hear her claim for child support under the Family Law Act in this matter.

48An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction: Okymansky v. Okymansky, 2007 ONCA 427. However, Ontario courts do have authority to award child support under the Family Law Act, where the foreign order is silent on the issue: Cheng v. Liu, 2017 ONCA 104 at para. 52.

49Although there is conflicting jurisprudence as to whether or not authority exists under the FLA to consider child support in the face of an existing foreign order for support, it is generally accepted that a court should not entertain a support application in Ontario when there is already an order in a foreign jurisdiction which deals with this issue - the court should be alert to possible forum shopping: Sun v. Guilfiole: 2011 ONSC 1685, [2011] O.J. No. 1168 (ONSC) at para. 48. An exception to this general practice may be found where an Applicant legitimately brings an application for custody and access regarding children who are habitually resident in Ontario and satisfies the court that a foreign order dealing with custody and access should be superseded: Kaur v. Guraya, 2011 ONSC 2853 at para. 22.

50In Ontario, a foreign support order may be registered under the Interjurisdictional Support Orders Act, so as to be enforced or varied: 2002, SO 2002, c. 13. Where available, this is the appropriate procedure to be followed: See Rothgiesser at para. 20 and Rubio v. Joslin, 2018 ONCJ 167 at para. 45.

51The Respondent father is not physically present in Ontario and does not attorn to the jurisdiction of Ontario. Application of the real and substantial connection test is therefore necessary.

1. Connection between the forum and the Applicant’s claim:

52The Applicant mother, Geoffrey, Michael Jr., and Richard all reside in Ontario. They have resided primarily in Ontario for more than a decade. The location of the Applicant’s mother’s home in Ontario and the “ordinary residence” of the children is a presumptive connecting factor to this jurisdiction as per the reasoning in Wang v. Lin, 2013 ONCA 33 at para. 47.

53The mother’s financial holdings and income are Ontario-based. It appears that each of Geoffrey, Michael Jr. and Richard receive various levels of income from the Province of Ontario in the form of disability payments. Further, all of the expenses incurred on behalf of Geoffrey, Michael Jr. and Richard, including but not limited to daily living expenses, therapy, programming, transportation, recreational expenses, and education originate in Ontario.

54The Applicant mother, Geoffrey, Michael Jr., and Richard no longer have a significant physical or financial connection to Bermuda. The Applicant’s claim for child support, absent other considerations, has a very strong connection to the jurisdiction of Ontario.

1. Connection between the forum and the Respondent:

55By contrast, the Respondent father is ordinarily resident in Bermuda. His source of income for purposes of child support originates in Bermuda. Although he appears to retain Canadian citizenship the father’s only remaining connection to Ontario is Geoffrey, Michael Jr. and Richard and his need to visit Ontario to spend time with them.

1. Unfairness to the Respondent in assuming jurisdiction:

56I am concerned about the significant level of unfairness which would result upon the Respondent if the Ontario Superior Court of Justice were to assume jurisdiction over this child support proceeding.

57At the outset, it is important to note that the Judgment of Wheatley J. of the Supreme Court of Bermuda dated August 12, 2019 is Final. The matter was commenced, litigated, and judgment was rendered before the Applicant made any objection as to forum, and before she commenced any proceedings in Ontario. This is a critical feature to the analysis: all of the jurisprudence brought to the attention of this court pertained to competing actions in two jurisdictions wherein either: (a) the action in the foreign jurisdiction was not complete; or (b) the concluded action in the foreign jurisdiction did not consider the issues brought before the Ontario court. This causes the court obvious concern as to a potential abuse of process. The child support questions which were decided by Wheatley J. were noted in the headnote to the decision as “Cessation and/or variation of child maintenance; Change in financial circumstances; Children with special needs; Definition of tertiary education; Consideration of requirement for children being enrolled in tertiary education on a full-time basis”. The 25-page written decision which follows demonstrates a legal framework and analysis strikingly similar to child support variation motions heard in this court under the Divorce Act, or the Family Law Act. The same questions that would require judicial determination in relation to Applicant mother’s Ontario action were considered and have already been decided (quite recently) by the Supreme Court of Bermuda. With some minor changes in phraseology, the decision of Stoneham J. could easily be mistaken for the decision of an experienced Ontario Superior Court of Justice judge considering a child support variation motion under the Divorce Act or the FLA. The Applicant mother did not object to the forum, participated fully in that hearing, and did not appeal the decision.

58The Respondent father appears to have participated in good faith throughout the Bermuda action, making appropriate financial disclosure, tendering relevant evidence, and advancing his legal argument in accordance with the procedure of that court. The Respondent father was represented by counsel and incurred legal expense. He obtained judgment through proper legal channels, without objection from the Applicant, and should not be required to relitigate this issue in another court without compelling reason. Although the father did not specifically argue issue estoppel, the court is alert to the need to promote finality in litigation, to avoid duplicative action which increases costs to families, and to enforce its positive obligation to promote the primary object of the Family Law Rules: to deal with cases justly: O.Reg. 322/13 at Rule 2.(2).

59A significant level of procedural unfairness would befall the Respondent father if the Applicant were permitted to commence a new Application for support in this jurisdiction.

1. Unfairness to the Applicant in not assuming jurisdiction:

60There is no indication that the Applicant was denied natural justice by the Supreme Court of Bermuda. After a detailed review of the evidence, including financial circumstances of the parties, the special needs and educational status of Geoffrey, Michael Jr., and Richard, and their specific expenses and benefits the court ordered that:

a. Child support payable by the Respondent father to the Applicant mother for Geoffrey was reduced to $820.00 per month;

b. Child support payable by the Respondent father to the Applicant mother for Michael Jr. was terminated as at July 1, 2018;

c. Child support payable by the Respondent father to the Applicant mother for Richard was reduced to $800.00 per month.

61This child support order is being enforced through the Family Responsibility Office in Ontario and the court is advised that there have been no issues relating to enforcement.

62When pressed by the court as to the basis of the Applicant’s claim for child support under the Family Law Act, the Applicant was unable to point to any deficiencies in the August 12, 2019 Judgment of Wheatley J. of the Supreme Court of Bermuda. Her counsel advised that she simply “checked the box” for child support because that is what is routinely done when a custody and access claim is made.

63Child support is not a static concept. The mother is not precluded from seeking to change the Order of the Supreme Court of Bermuda in future through the legal process prescribed under the Interjurisdictional Support Orders Act should future circumstances arise warranting such an application: 2002, S.O. 2002, c. 13. Bermuda is a reciprocating jurisdiction to the ISOA, as per O. Reg. 53/03. The Applicant mother is not prejudiced if this matter does not proceed anew before the Ontario Superior Court of Justice.

64I can find no unfairness to the Applicant in declining to assume jurisdiction over this action.

1. The involvement of other parties to the suit:

65There are no other interested parties to this action who would be affected by any result.

1. The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis:

66As noted above, the Family Responsibility Office is enforcing the child support order of the Bermuda Supreme Court without issue. Bermuda is a reciprocating jurisdiction for enforcement purposes.

1. Whether the case is interprovincial or international in nature:

67The case is international in nature.

1. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere:

68Bermuda is a reciprocating jurisdiction in the enforcement of child support. It is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction which recognizes the paramount importance of the interests of children. Bermuda’s legal system is also based upon the British common law.

69A review of the judgment of Wheatley J. reveals obvious similarities between Bermuda’s Matrimonial Causes Act, and Ontario’s Family Law Act, and Child Support Guidelines, O. Reg. 391/97, as am., and in the judicial application of these laws. For example:

a. Section 35 of the Matrimonial Causes Act of Bermuda pertains to “variation discharge, etc., of certain orders for financial relief” and requires the court to “have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates”. Similarly, the Family Law Act of Ontario requires the court to consider “a change in circumstances” in a variation proceeding. In considering support for a child over the age of majority, Ontario courts consider “the condition, means, needs and other circumstances of the child and the financial ability of each party or spouse to contribute”. Wheatley J. then cites precedent requiring a “material change in circumstances” before the court may vary the order. This is the exact phraseology used in Ontario jurisprudence.

b. Section 33 of the Matrimonial Causes Act of Bermuda limits the duration of child support such that it shall not extent beyond the child’s eighteenth birthday, unless:

…the child is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment, or (b) there are special circumstances which justify the making of an order…”.

The similarities of these provisions with section 31 of the Family Law Act, regarding entitlement to child support over the age of majority, as reproduced in the analysis above, are obvious.

70In light of such significant similarities in legislation regarding entitlement to child support for children over the age of majority, and the thorough application of those similar principles to the child support issues determined by the Supreme Court of Bermuda, and raised again in these proceedings, it would be contrary to principle and inconsistent with comity if this court were to refuse to recognize the decision of Wheatley J. as relevant, binding, and enforceable.

71As explained by the Supreme Court of Canada, the real and substantial connection test permits a general and flexible application. No factor need be given more weight than any other, but there is no prohibition against finding some factors to be more influential than others. While in normal circumstances the primary residence of the “children” and the recipient parent would weigh heavily in favour of establishing jurisdiction simpliciter, on the specific facts of this case, I am not satisfied that the Applicant mother has discharged the burden of establishing the court’s territorial competence in this matter. The strength of the factors which establish significant prejudice to the Respondent father if this matter is permitted to be (re)litigated in Ontario, and the lack of prejudice to the mother in awaiting a material change (if any) before returning this matter through the available procedure under the Interjurisdictional Support Orders Act, and the strong need for comity in this matter demand respect for and recognition of the existing Order of the Supreme Court of Bermuda. In reaching this conclusion I am guided by the factual similarities and reasoning of Goodman J. in Sun v. Guilfoile. I adopt his comments: “Where a valid and subsisting foreign court order provides for support, there is no jurisdiction in Ontario to proceed with an originating application for support under s. 33. Such an application is nothing more than a disguised variation application”: supra, at para. 55. There are no legitimate custody and access claim before this court which warrant a deviation from this general practice.

72I conclude that the Applicant mother has not satisfied the burden of establishing the territorial competence (jurisdiction simpliciter) of the Ontario Superior Court of Justice to hear her claim for child support under the Family Law Act in this matter.

73In the event I am wrong, I am satisfied that the Respondent father has established that the Supreme Court of Bermuda is the more appropriate forum.

Forum Non Conveniens

74The exercise of assessing a discretionary determination of forum non conveniens at this time seems rather moot: the litigation is complete, the same issues raised in Ontario were recently decided in Bermuda, the decision of the Supreme Court of Bermuda is final, costs were awarded, and the decision was not appealed. There is nothing further to do. The Applicant mother attorned to the jurisdiction of the Supreme Court of Bermuda at the time, and she participated fully at trial. It seems rather a pointless exercise to retroactively reconsider whether she should have. However, if this court is wrong in finding that Ontario does not have territorial competence to hear a fresh Application for child support in this matter, the circumstances of this case weigh strongly in favour of upholding the Supreme Court of Bermuda’s judgment as having already been decided in the more appropriate forum.

75Very often there is more than one forum capable of assuming jurisdiction and it is necessary to determine where the action should be litigated. At times, there are several equally suitable alternatives and the most appropriate forum is determined through the forum non conveniens doctrine, which allows a court to decline to exercise its jurisdiction on the ground that there is another forum more appropriate to entertain the action: Muscutt v. Corcelles, supra at para. 40.

76Several considerations have evolved in the determination of the most appropriate forum, including but not limited to:

a. The location of the parties;

b. The location of key witnesses and evidence;

c. Contractual provisions that specify applicable law or accord jurisdiction;

d. The avoidance of multiplicity of proceedings;

e. The applicable law and its weight in comparison to the factual questions to be decided;

f. Geographic factors suggesting the natural forum;

g. Whether declining jurisdiction would deprive the plaintiff of a legitimate judicial advantage available in the domestic court: Muscutt v. Corcelles, supra at para. 41, and Jasen v. Karassik, supra.

77In this court’s opinion, many of the factors that are relevant to consideration of whether the Ontario Superior Court of Justice has territorial competence (jurisdiction simpliciter) are also relevant to determining whether Bermuda is a more convenient forum. Again, the strength of the factors regarding prejudice to the Respondent father, lack of prejudice to the Applicant mother, and the need for comity weigh significantly in favour of the Supreme Court of Bermuda being found to be the more convenient forum. I reiterate my comments above in that regard. In addition:

a. The location of the parties has been addressed above, and in my view favours the jurisdiction of Ontario.

b. However, the history of legal proceedings between these two parties in the Supreme Court of Bermuda dates back to their Divorce in 2006 and the matter has returned to court multiple times in the intervening period. The Supreme Court of Bermuda is the repository of those historic court records. This favours the jurisdiction of Bermuda.

c. The court in Bermuda conducted an extensive review of the financial circumstances of both parties, Geoffrey, Michael Jr., and Richard, including a detailed analysis of income and expenses of each individual, whether residing in Bermuda or Ontario. No witnesses were called other than the parties. There is no suggestion that the location of the witnesses or evidence had any impact upon the proceeding. This is a neutral feature.

d. The court’s attention was not drawn to any contractual terms between the parties which specify the applicable law or jurisdiction. This is a neutral feature.

e. The Ontario action is only in the preliminary stages of the proceeding (no Conference has yet been held), whereas the Bermuda action has been brought to full completion. The Order is being enforced in Ontario. This raises the very real potential for two competing orders for child support if the Ontario action is permitted to proceed. The desirability of avoiding multiplicity of proceedings strongly weighs in favour of the forum of Bermuda.

f. The law of child support in Ontario and Bermuda is similar. This is a neutral feature.

g. There are no other geographic factors which favour one jurisdiction over the other.

h. I cannot accept that declining jurisdiction in Ontario would deprive the Applicant of a legitimate judicial advantage. There is no support for any position that Bermuda child support law falls below Canadian standards. To the contrary, the Bermuda Matrimonial Causes Act appears more lenient towards payment of child support for adult children in that “full-time” attendance at a post-secondary institution is not required as it is under s, 31(1)(b) of the Family Law Act in establishing entitlement to child support. This distinction appears to have worked in favour of the Applicant mother in the proceedings before Wheatley J. She points to no deficiency in the judgment or dissatisfaction with the result. This feature favours Bermuda as the more appropriate forum.

78The Respondent father has discharged the burden of establishing that the Supreme Court of Bermuda is the more appropriate forum as it pertains to this action. This court should not entertain the Applicant’s fresh Application for child support. However, as child support is not a static concept, this does not mean that Bermuda will always be the more appropriate forum. If future variation of the Bermuda order for child support is necessary, the Applicant mother is certainly entitled to proceed under the Interjurisdictional Support Orders Act to address such issues.

1. Appropriate Remedy

79I have concluded that:

a. This court lacks subject matter competence over the claims for custody and access in relation to Geoffrey, Michael Jr., and Richard; and,

b. This court lacks territorial competence over the Applicant’s claim for child support.

80As opined above, issues pertaining to the personal care and control over Geoffrey, Michael Jr., and Richard should have been commenced as an Application under the Substitute Decisions Act.

81It is incumbent upon this court to consider whether an amendment to the Applicant’s pleadings would remedy this deficiency.

82Rule 11 of the Family Law Rules addresses amendments to pleadings in family law actions. There is a general right to amend pleadings absent non-compensable prejudice. Even where the motion to strike the pleading is for a failure to disclose a cause of action, the court should consider whether an amendment could remedy the deficiency: Beaver v. Hill, 2018 ONCA 816 at para. 20, Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296 at para. 37.

83The Family Law Rules impart a positive obligation on the court to promote the primary objective: to deal with cases justly. Dealing with cases justly includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with cases in ways that are appropriate to their importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases: Family Law Rules, Rule 2.(3). In my view, permitting an amendment to the Applicant’s materials would be contrary to the primary objective of the Family Law Rules.

84This is not an appropriate case to permit amendment to the Applicant’s materials:

1. The Family Court is not the appropriate forum for stand-alone applications brought under the Substitute Decisions Act;

2. As a result of my ruling against assuming jurisdiction over the child support issues in this matter, there are no other outstanding family law issues before this court to which the Substitute Decisions Act issues might be consolidated;

3. The required amendments would not be simple semantics: the pleadings themselves require a new and distinct set of court forms under a different procedural code (i.e. as prescribed under the Rules of Civil Procedure rather than the Family Law Rules);

4. Permitting an amendment to the Applicant’s pleadings would also necessitate a transfer of the action to the correct court.

85I conclude that it is procedurally less complicated and more consistent with the primary objective to dismiss the Applicant’s claims for custody and access on a without prejudice basis for her to commence a new action under the proper legislation in the appropriate court.

86Likewise, the Applicant is not precluded from bringing future variation proceedings in relation to child support through the separate procedure established under the ISOA.

ORDER

87On the basis of the above, there shall be an Order to go as follows:

1. The Applicant’s Application dated October 30, 2020 is dismissed.

2. If the parties cannot resolve the issue of costs:

a. The party seeking costs shall serve and file written submissions not exceeding two pages in length plus bill of costs on or before October 22, 2020;

b. The party responding to the request for costs shall serve and file responding submissions not exceeding two pages in length plus bill of costs on or before November 5, 2020;

c. Reply submissions, if any, shall be limited to one page in length and shall be served and filed on or before November 12, 2020; and

d. If no cost submissions are filed on or before October 22, 2020, the issue of costs shall be deemed to have been settled.

Bale J.

Released: October 1, 2020

COURT FILE NO.: 1708/10

DATE: 2020-10-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tricia Dawn Simons

Applicant

• and -

Michael Anthony Crow

Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice L. Bale