COURT FILE NO.: FS-13-384007

DATE: 20220926

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Audrey Violetta Simpson-Campbell

Applicant

– and –

Michael Andrew Stark-Campbell

Respondent

Paul Cooper, for the Applicant

Self-represented

HEARD: September 12, 13, 2022

J. steele j.

1This was a focused trial of an issue regarding the jurisdiction of the Superior Court of Justice.

2Among other things, Mr. Stark-Campbell seeks:

a. A dismissal of the January 2013 Application due to lack of jurisdiction;

b. An order that all temporary judgments based on that Application be retroactively reversed, set aside and/or dismissed;

c. An order that the applicant refund the respondent $96,000 spousal support received under the temporary orders; and

d. An order that the applicant refund the respondent $93,522 as an overpayment of child support under the temporary orders.

Background

3The parties, both originally from Scotland, were married on January 2, 2012 in Scotland. Their relationship commenced about 15 years prior to then. The parties differ on whether they cohabited.

4They have four children: C.S.C., born August 7, 1999, N.S.C., born September 5, 2000, Ch. S.C., born December 23, 2008, and T.S.C., born June 12, 2010. The children reside with Ms. Simpson-Campbell in Toronto. The two older children now attend university in Toronto and Montreal.

5The parties separated on or about June 8, 2012.

6The application in this matter was issued on or about January 21, 2013 (the "Application"). In the Application, Ms. Simpson-Campbell seeks, among other things, a divorce, spousal support, a restraining order, custody of the children and child support.

7Mr. Stark-Campbell's Answer, among other things, states that the Application should be dismissed, and the children ordered to return to Scotland.

8Mr. Stark-Campbell invoked the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") alleging that the children had been wrongfully removed to Canada by Ms. Simpson-Campbell and should be returned to Scotland. In Simpson-Campbell v. Stark-Campbell, 2013 ONSC 1328, W.D.F.L. 2696, Kiteley J. dismissed Mr. Stark-Campbell's application pursuant to the Hague Convention. No appeal was sought.

9On March 7, 2013, Kiteley J. issued a temporary order pursuant to which Mr. Stark-Campbell was ordered to pay child support to Ms. Simpson-Campbell for the four children in the table amount of $2,481 per month based on an income of $115,360, commencing March 1, 2013. The order does not reference the legislation under which the order was made: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (the "Divorce Act") or the Family Law Act, R.S.O. 1990, c. F.3. (the "Family Law Act" or the "FLA"). The order does, however, reference section 24.1 of the Child Support Guidelines, regarding providing updated disclosure. Although it does not specify that it refers to the Child Support Guidelines, O.Reg. 391/97 (the Ontario child support guidelines), the appropriate section reference for that provision in the order (s. 24.1) is the Ontario Child Support Guidelines.

10The applicant brought a motion for, among other things, interim spousal support and child support. Pursuant to the temporary Order of Whitaker J., dated April 4, 2013, Mr. Stark-Campbell, was ordered to pay Ms. Simpson-Campbell spousal support in the amount of $1,000 per month. Whitaker J. ordered the continuation of the child support ordered by Kiteley J. (the "2013 Orders"). Neither the order, nor the endorsement, refers to either the Divorce Act or the Family Law Act. However, Whitaker J.'s order similarly referred to section 24.1 of the Child Support Guidelines.

11Mr. Stark-Campbell commenced divorce proceedings in Scotland and a divorce was obtained at the Court of Session in Scotland on September 26, 2019. Ms. Simpson-Campbell acknowledges that this is a valid divorce.

Analysis

12Mr. Stark-Campbell's position is that this Court does not have and never had jurisdiction. He asserts that the Application was incorrectly commenced in Ontario by Ms. Simpson-Campbell and the Court erroneously made temporary spousal and child support Orders that he has been paying.

13Rule 5 of the Family Law Rules, O.Reg. 114/99 (the "Family Law Rules") provides that a case shall be started in the municipality where a party resides, and if the case deals with parenting time, among other things, it shall be started in the municipality where the child habitually resides.

14Under section 3(1) of the Divorce Act:

A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately proceeding the commencement of the proceeding.

15The language of the Divorce Act was changed. The prior section referred to "ordinarily resident" instead of "habitually resident".

16Under section 4(1) of the Divorce Act:

A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

a) Either former spouse is habitually resident in the province at the commencement of the proceeding; or

b) Both former spouses accept the jurisdiction of the court.

17Under the Family Law Act, the effect of a divorce proceeding is as follows:

36(1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.

Were either or both of the parties ordinarily resident in Ontario one year prior to the issuance of the Application?

18For the Court to have jurisdiction to make orders for corollary relief under the Divorce Act at least one of the parties must be ordinarily resident in the province during the year immediately preceding the start of the divorce proceeding.

19Whether either party was ordinarily resident in Ontario for at least one year prior to the issuance of the Application is a factual issue that was heard at trial. For the reasons set out below, I have found that neither party was ordinarily resident in Ontario for at least one year prior to the issuance of the Application.

20As noted above, the Divorce Act now uses the term "habitually resident". Prior to March 1, 2021, the Divorce Act contained the term "ordinarily resident". The reason for the amendment and its practical effect are explained by the Department of Justice as follows:

The change aligns the English and French versions of the Act. In the corresponding sections, the French version uses "réside habituellement." Many provincial and territorial statutes also include "habitually resident" in relation to jurisdiction for parenting matters. Case law indicates no practical difference in meaning between "ordinarily resident" and "habitually resident". ¹

21The leading case on determining "ordinary residence" is Thomson v. Minister of National Revenue, 1946 1 (SCC), [1946] S.C.R. 209. In this case the Supreme Court of Canada addressed the issue of whether the appellant was "ordinarily resident in Canada" for the purposes of the Income War Tax Act. Estey J., at pages 231-232 described "ordinary residence" as follows:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives. One "sojourns" at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a generally way the essential difference. It is not the length of the visit or stay that determines the question.

22In MacPherson v. MacPherson (1976), 1976 854 (ON CA), 13 O.R. (2d) 233, the Court of Appeal held that the intentions of the parties are an important consideration in determining ordinary residence: "the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes the person ordinarily resident in that community" (at 239). However, the court went on to note that intention alone cannot determine the issue.

23The court in MacPherson distinguished between situations where the individual moved with an intention of establishing residence, and situations where the move was imposed by work, but the individual maintained their original residence to return to whenever possible (see, e.g., Stransky v. Stransky, [1954] 2 All E.R. 536), or lived in military housing and returned to the home of a parent whenever on leave (see, e.g., Hardy v. Hardy, 1969 342 (ON SC), [1969] 2 O.R. 875). In these situations, the "real home" of the person would be the place that they returned to, not the location of their work (at 236-237).

24It is possible for a person to be "ordinarily resident" in more than one place at a time in family law matters: Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763.

25The test is on the balance of probabilities.

26Ms. Simpson-Campbell did not move to Ontario until March 2021. Accordingly, irrespective of her intentions with regard to making Ontario her home, she had only resided in Ontario for 10 months when the Application was issued.

27Mr. Stark-Campbell came to Ontario on a leave of absence from his employer in the fall of 2011. He had obtained a permanent resident card in 2010.

28Mr. Stark-Campbell was derisive about Canada throughout the proceedings, and steadfast in his assertion that he would never want to live in a "second world country" or "slum". The documentary evidence supports his assertion that he was merely a temporary sojourner in Ontario and in Canada, never intending to make Ontario or anywhere else in Canada his home. In particular:

• Mr. Stark-Campbell had taken a leave of absence from his employer and was expected to return to IBM UK in 2013.

• Mr. Stark-Campbell was never employed by a Canadian employer.

• Mr. Stark-Campbell continued to pay taxes in the UK.

• Mr. Stark-Campbell maintained his residence and cars in the UK.

• Mr. Stark-Campbell rented a room in a house in Ontario until his family moved over to join him in March 2012. At that time, an apartment was rented.

• The vast majority of Mr. Stark-Campbell's personal property remained in the UK. Even Ms. Simpson-Campbell's evidence was that they only brought suitcases with clothes and shoes.

29Mr. Stark-Campbell was physically located in Canada for a couple of years, but he was not ordinarily or habitually resident here. He had no intention of making Ontario or Canada his home. He was here temporarily. His home was in Scotland.

30Accordingly, I find that neither party was ordinarily resident in Ontario for at least one year prior to the issuance of the Application for divorce.

Corollary Relief Proceedings.

31Ms. Simpson-Campbell argues that the Court still has jurisdiction to hear the corollary matters even if it does not have jurisdiction over the divorce. "Corollary relief proceeding" is defined in the Divorce Act as a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order. As noted above, under section 4 of the Divorce Act the Court has jurisdiction to hear and determine a corollary relief proceeding if either former spouse is habitually resident in Ontario at the commencement of the proceeding.

32As stated by Czutrin J. in Ogunlesi v. Ogunlesi, 2012 ONSC 2112, [2012] O.J. No. 1659, (aff'd 2012 ONCA 723) at para. 121: "If the court takes jurisdiction under the Divorce Act, then corollary issues of custody, child, and spousal support would be considered by this court."

33However, the corollary relief proceedings under the Divorce Act are corollary to the divorce. As I have determined that the Court did not have jurisdiction for the divorce under the Divorce Act, the corollary proceedings similarly cannot be considered under this statute.

Family Law Act

34While there was no jurisdiction of the Court to make the 2013 Orders under the Divorce Act, there was jurisdiction of the Court to make the orders under provincial legislation.

35Under the Family Law Rules, a case is started in the municipality where a party resides.

36Under the Family Law Act, "spouse" for support purposes is defined to include either of two persons who are married to each other. "Dependant" is defined under the FLA as a person to whom another has an obligation to provide support under the statute. This may be a spouse and/or children: sections 30 and 31, FLA.

37Under section 33 of the FLA, a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. This order may be an interim or final order.

38When the Application was commenced, the parties were married. Mr. Stark-Campbell was Ms. Simpson-Campbell's spouse. They were residing in Toronto with the children. The parties' older children were permanent residents and were attending school in Toronto. Ms. Simpson-Campbell, also a permanent resident, was not working. Mr. Stark-Campbell was working.

39The youngest child, T.S.C., was about 2 years old at the time of the Application. Although Mr. Stark-Campbell had sponsored Ms. Simpson-Campbell and the older three children, at the time the sponsorship application was made T.S.C. was not yet born. Accordingly, T.S.C., age 2, living in Canada with her mom and siblings, did not yet have permanent residence. At the time she was here under temporary permits that Ms. Simpson-Campbell renewed as required. She was still, however, a "child" of Ms. Simpson-Campbell and Mr. Stark-Campbell. Under section 31 of the FLA every parent has an obligation to provide support for his or her unmarried child who is a minor. Although T.S.C. was not, strictly speaking, a "resident" of Toronto, Ontario at the time, T.S.C. was not the party making the application under the Family Law Rules. Ms. Simpson-Campbell, who was a resident, made the application in the municipality in which she resided. I further note that at the time the 2013 Orders were made, the court had already heard Mr. Stark-Campbell's Hague Convention application, which was in respect of the four children, which was dismissed. No forum conveniens application had been made by either party.

40There is no doubt that the Court had jurisdiction to make the 2013 Orders under the provincial Family Law Act. The Application refers to both the Divorce Act and the Family Law Act in reference to Ms. Simpson-Campbell's claim for spousal support. Frequently, applicants will include both the federal Divorce Act and the provincial Family Law Act as grounds, in the event the divorce fails. In this case there was no jurisdiction under the Divorce Act so that ground of relief was not possible.

41For the child support claim, which is a right of the children, the Application references the Divorce Act and the Child Support Guidelines. It would have been preferable for the Application to also reference the Family Law Act, but this is not fatal. The Court has inherent jurisdiction, or parens patriae, over minor children.

42The division of powers in Canada between the federal and provincial governments under the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No. 5 (the "Constitution Act, 1867") are such that the federal government has jurisdiction over marriage and divorce (section 91(26), Constitution Act, 1867). However, the provincial governments have jurisdiction over the solemnization of marriage in the province, property and civil rights in the province and the administration of justice in the province (section 92(12), 92(13) and 92(14), Constitution Act, 1867). Accordingly, support can be granted under either Ontario's Family Law Act or as corollary relief under the federal Divorce Act, to address the fact that unmarried spouses would only have jurisdiction under the provincial statutes and married spouses have the option to seek relief under both the Divorce Act and the Family Law Act. The seemingly parallel system for remedies such as support can be confusing. However, the laws are there.

43As noted above, the 2013 Orders do not specify the legislation under which the orders are made. The only reference to legislation or regulations in the 2013 Orders is to section 24.1 of the Child Support Guidelines.

44The 2013 Orders could not have been made under the Divorce Act as discussed above. Accordingly, the 2013 Orders would have been made under the Family Law Act, as the Court had jurisdiction to make the support orders under that statute.

45As the 2013 Orders were not appealed or set aside, they continue to be in effect.

46Mr. Stark-Campbell argues that Alexiou v. Alexiou, 1996 10440 (AB KB), [1996] A.J. No. 696 is the perfect case example. In that case the respondent had brought an application asking the Court to decline to exercise its jurisdiction to hear and determine the divorce proceedings on the grounds that Alberta was not the proper forum, or the forum conveniens. Mr. Stark-Campbell did not do that. This was not a forum conveniens application. Mr. Stark-Campbell sought the divorce in Scotland in 2019, which was granted. While Mr. Stark-Campbell retained a Scottish lawyer to prepare an expert report on this issue, the expert was not called as a witness at the trial. Mr. Stark-Campbell was unwilling to pay the expert fee for attendance, despite the Court's willingness to accommodate the expert's timing. Accordingly, I do not have evidence from a Scottish lawyer.

Notice of Approaching Dismissal

47Mr. Stark-Campbell submits that the Court was negligent in not dismissing the case. He points to Rule 39 of the Family Law Rules and, in particular, Rule 39(11). The historical Rule 39(11) in place in 2013 provides:

The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or electronic mail if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3).

48Mr. Stark-Campbell argues that the clerk was required to serve this notice of approaching dismissal and, by failing to do so, was negligent.

49There is no question that there was no notice of approaching dismissal issued in this case. The issue is whether that has any bearing on these proceedings.

50The Rules of Civil Procedure contain a similar rule – Rule 48.14(1) with mandatory language. It provides:

Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) and (8):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.

2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.

51The purposes of Rule 48.14 of the Rules of Civil Procedure and Rule 39(11) of the Family Law Rules are identical: Williams v. Williams, 2010 ONSC 2636. There has been judicial consideration of Rule 48 that is instructive.

52These rules exist so that the applicant or plaintiff cannot delay and must progress the litigation in a timely manner. As set out by the Court of Appeal in Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 33:

The purpose of Rule 48 is to enable the court to control the pace of litigation and ensure that disputes are resolved in a time-effective manner, imposing the onus on the plaintiff to show cause why the action should not be dismissed for delay is fair. This court has held that the responsibility to move the action along lies chiefly with the plaintiff.

53Had Mr. Stark-Campbell requested the Court clerk to issue the notice of approaching dismissal after 365 days had passed, the Court clerk would have been obligated under the Family Law Rules to do so. This would have moved the matter along. Mr. Stark-Campbell did not. He continued to pay support under the 2013 Orders. Mr. Stark-Campbell did not seek a case conference before a judge or appeal the 2013 Orders or the Hague Convention order.

54Rule 39 cannot now be used as a weapon by Mr. Stark-Campbell who has done nothing to appeal or try to dismiss the case for years. Litigants must take some responsibility for their proceedings. The Court is tremendously backlogged and overburdened. Litigants cannot sit in the weeds and wait, then years later blame the Court for not issuing a document that was not requested or brought to the Court's attention.

55The fact that this notice was not issued by the Court clerk has no bearing on these proceedings.

Effect of Scottish Divorce on these Proceedings

56As noted above, Mr. Stark-Campbell sought and obtained a divorce in Scotland with Ms. Simpson-Campbell's consent. Ms. Simpson-Campbell agrees that this is a valid divorce. Accordingly, now there is a divorce that was obtained in Scotland in 2019 and an application that was commenced in Ontario in 2013 that is ongoing. There are temporary support orders under the Family Law Act in place.

57In my view, there ought to have been a forum conveniens application before the Scottish divorce was sought. There was not.

58In Cheng v. Liu, 2017 ONCA 104 the Court of Appeal confirmed that the Ontario Superior Court had jurisdiction to determine the issues of child support and equalization of net family property under the FLA where the parties' divorce had been validly granted by a foreign court. In Cheng the court determined that there was no jurisdiction under the FLA or otherwise for the Superior Court to order spousal support in such circumstances. Ms. Simpson-Campbell submits that Cheng ought to be distinguished on the spousal support issue. She argues that in her case spousal support was adjudicated by way of a temporary order in 2013.

59There is no evidence before me that child support was addressed by the Court in Scotland. Child support, a right of the child, is not impacted by a foreign divorce. As stated in Cheng:

Ontario courts have authority to award child support under s. 33 of the FLA. There is nothing in the legislation that restricts that authority in situations where a divorce has been granted outside Canada. The use of the FLA in circumstances where relief under the Divorce Act is unavailable does not engage the paramountcy doctrine, as there is no operational incompatibility between the federal and provincial statutes. To the contrary, the two statutes are operating harmoniously to ensure that a remedy for child support is available.

60Accordingly, Mr. Stark-Campbell shall continue to pay child support in accordance with the 2013 Orders. I note that there have been changes since the 2013 Orders were made (for example, two of the children are now in university). There was no motion to change before me.

61Had the divorce in Scotland been obtained prior to the commencement of the Ontario proceedings, it is clear that Ms. Simpson-Campbell would not have been entitled to spousal support: Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587. However, the Ontario Application was commenced prior to the divorce in Scotland. Mr. Stark-Campbell has been paying temporary spousal support under the 2013 Orders.

62The 2013 Orders are temporary. The issue of spousal support has not been adjudicated in Ontario. Ms. Simpson-Campbell is now Mr. Stark-Campbell's former spouse as the parties divorced under the laws of Scotland. There is no entitlement to spousal support for a former spouse under the FLA, as confirmed by the Court of Appeal in Okmyansky.

63Accordingly, the 2013 Orders shall be modified. Effective immediately Mr. Stark-Campbell is not required to pay spousal support to Ms. Simpson-Campbell.

Disposition and Costs

64I make the following findings:

a. The Court did not have jurisdiction under the Divorce Act to make the 2013 Orders;

b. The Court had jurisdiction under the Family Law Act to make the 2013 Orders;

c. The 2013 Orders, having not been appealed or dismissed, continued in full force and effect until these proceedings; and

d. Effective immediately, the 2013 Orders shall be modified such that Mr. Stark-Campbell is no longer required to pay spousal support to Ms. Simpson-Campbell.

65The parties shall forthwith schedule a case conference before a judge to address disclosure and next steps in the Ontario proceedings.

66I encourage the parties to settle the issue of costs between them. If they are unable to do so by October 21, 2022 they shall notify my judicial assistant and make submissions in accordance with the following timeline. Ms. Simpson-Campbell shall serve and file written submissions (up to 3 pages in length) plus her Bill of Costs by November 4, 2022. Mr. Stark-Campbell shall serve and file written submissions (up to 3 pages in length) plus his Bill of Costs by November 18, 2022. In addition to uploading the costs submissions on Caselines, the parties shall send their written submissions by email to my judicial assistant.

J. Steele J.

Footnotes

1. 1Government of Canada, The Divorce Act Changes Explained (2022), online: Government of Canada https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html.