Luongo v. Luongo, 2025 ONSC 1513

Vincenzo Ruso, for the Respondent

1The Applicant, Michelle Luongo (the “Mother), requests that the court grant summary judgment dismissing this proceeding on the issues unrelated to the Hague Convention raised by the Respondent Father in his Answer, on the basis that this court lacks jurisdiction in the face of her family law proceedings commenced in Costa Rica.

2The Respondent, Antonio Luongo (the “Father”), submits that there are genuine issues requiring a trial with respect to the Mother’s alleged consent-based attornment, this court’s jurisdiction, and the choice of court under forum non conveniens.

3Subsequent to hearing this motion, The Family Court of Santa Cruz (“Costa Rica Family Court”), per Gomez J., rendered judgment on December 9, 2024 (the “Foreign Divorce Judgment”), raising two further issues for this motion: first, whether the Foreign Divorce Judgment is recognized in Canada; and second, if so, what the impact is on this court’s jurisdiction analysis.

Preliminary Issue – Father’s Request to Consolidate

4The Father sought to consolidate this proceeding with a civil proceeding commenced by the maternal grandparents in which the Mother and Father are named defendants. That action is to enforce a mortgage debt registered on title against the matrimonial home by the maternal grandparents to allegedly secure a loan provided to the parties in order to purchase the matrimonial home in Toronto. However, no notice was provided to the maternal grandparents, nor was a notice of motion requesting this relief served and filed. Hence, I did not address this issue.

Juridical History of these Proceedings and the Costa Rica Family Court Proceedings

5The Mother filed this application (the “Hague Application”), dated July 25, 2023, and issued on July 28, 2023, under the Convention of the Civil Aspects of International Child Abduction (the “Hague Convention”), seeking an order declaring that the children of the marriage had been wrongfully retained in Ontario by the Father, an order that the children’s habitual residence was Costa Rica, and an order requiring the Father to return the children. She did not seek any relief under the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) or Family Law Act, R.S.O. 1990, c. F.3 (FLA) in the Hague Application.

6In the Father’s Answer, he not only responded to the issues related to the Hague Convention, but also advanced the following claims arising from the marital breakdown: a divorce, spousal support, equalization, and property.

7In the Mother’s Reply, she only responded to the Father’s responses as they related to the Hague Application. She did not respond to any of the Father’s claims for divorce or corollary relief and expressly pleaded that she did not attorn to this jurisdiction for the family law-related claims raised by the Father.

8Justice Brownstone heard the Hague Application on October 16, 2023, and released a decision on October 25, 2023. Justice Brownstone found that as of August 11, 2023, the children were habitually resident in Guanacaste, Costa Rica (Luongo v. Luongo, 2023 ONSC 6013, 98 R.F.L. (8th) 201). Justice Brownstone further ordered that the children be placed in the Mother’s primary care and be returned to Costa Rica. The children were returned to the Mother and are now living with her and the maternal grandparents in Costa Rica.

9Upon the Mother’s return to Costa Rica, she immediately commenced a family law proceeding seeking a divorce and corollary relief, including equalization, parenting orders, and child support. Unlike the Father in his Answer, the Mother did not seek spousal support.

10The Father was served with the Costa Rica family law proceedings, but he chose not to respond due to a language barrier (he does not speak Spanish nor does the Mother) and his limited financial resources. As a result of not filing a Response in the Costa Rica Family Court, the Father was effectively noted in default on February 19, 2024. The Father was represented by counsel in Ontario at this time.

11Prior to being noted in default, the Father attended at a conciliation hearing on February 1, 2024, held in Costa Rica, as required by that court’s procedures. The Father attended virtually with his Ontario lawyer. The issues discussed included parenting issues and property issues. However, no agreement was reached.

12As stated, instead of responding to the Costa Rica Family Court proceedings, the Father pursued his claims in the Ontario family law proceedings ostensibly under the Mother’s Hague Application.

13The Father scheduled a case conference on May 22, 2024, which was presided over by Mathen J. Both parties and their lawyers attended. Justice Mathen noted in Her Honour’s endorsement that the “question of jurisdiction is a threshold issue” and that “it must be addressed before any other proceedings may commence or continue in Ontario.”

14The Mother then brought this motion for summary judgment dismissal of the Father’s family law proceeding claims on the basis that this court lacks jurisdiction simpliciter, or alternatively, that the court ought not to exercise jurisdiction over this matter under the doctrine of forum non conveniens.

15Subsequent to hearing this motion, the Costa Rica Family Court rendered judgment on December 9, 2024, granting the following relief (quoted directly from the Foreign Divorce Judgment where in quotation marks):

(a) Divorce “on the grounds of incompatibility of characters” and ordering the divorce to be registered in the “Civil Registry, Section of Marriages Performed Abroad” reflecting a “dissolution of the marriage bond” recognized by the Costa Rica Family Court;

(b) Sole custody, decision-making for educational decisions, primary care of the children to the Mother, while recognizing that “all other aspects of parental responsibility” will continue to be exercised jointly by the parents;

(c) Child support for the children, but “the determination of the specific and periodic amount will be addressed in the next phase of the process by the Court of Alimony,” and “managed through the appropriate procedural channels”;

(d) Equalization, with a declaration by the court that each spouse “has the right to participate in half of the net value of the assets acquired during the marriage that are found within the property of the other.” However, the court noted that “[t]o establish this, the parties must proceed to the execution phase of the judgment to demonstrate the existence and communal nature of the assets.”¹

16On the issue of spousal support, the Court found that since neither party “demonstrated an interest or need for alimony,” that “neither party shall have the right to claim alimony in the future.”

17The Costa Rica Family Court acknowledged Brownstone J.’s decision on the Hague Application.

18While the Costa Rica Family Court granted judgment as noted above, the fixing of the quantum of child support was deferred to the Court of Alimony and demonstrating “the existence and communal nature of the assets” for equalization was deferred to a second phase called the “execution phase.” The matter proceeded to the first phase by way of an uncontested proceeding, based on a plain reading of the Foreign Divorce Judgment above quoted.

19The Costa Rica Family Court noted that the Father had been noted in default, and the matter proceeded on an uncontested basis.

20I am satisfied, and it is uncontested, that Gomez J. granted judgment on the divorce, parenting issues, entitlement to child support, lack of entitlement to spousal support, and entitlement to equalization of net family property, but that the court has not determined the assets comprising the family property, calculation of equalization owed (if any), or the quantum of child support (and who should pay it).

21As a result of this intervening material event, I requested further submissions from the parties on the recognition and impact of the Foreign Divorce Judgment on the jurisdiction analysis. The parties appeared before me on January 29, 2025, and provided their oral submissions. The Father also provided brief written submissions in which he advanced a challenge to the validity of the Costa Rica Family Court judgment primarily on the basis of unfair forum shopping: Vyazemskaya v. Safin, 2024 ONCA 156, 99 R.F.L. (8th) 247.

22In the event I find that the foreign divorce is enforceable in Ontario, both parties confirmed that they are relying on the jurisdiction simpliciter and forum non conveniens arguments set out in their factums filed on the original return of this motion.

Background

23The parties were married in Toronto, Ontario on April 18, 2009. They lived in Toronto until at least the Mother’s posited date of separation.

24They have two children of the marriage: Ayden Luongo, born October 10, 2010, and Chloe Luongo, born October 14, 2011 (collectively, “the children”).

25The Mother asserts that the date of separation is May 6, 2023, while the parties were in Costa Rica with the children, having decided to permanently move there. The Father asserts that the date of separation is May 15th, 2023, after they returned from Costa Rica and while the parties were at the maternal grandparents’ cottage in Honey Harbour, Ontario. He submits that the time spent in Costa Rica was only exploratory.

26It is not disputed that all of the family property is located in Toronto; namely, the parties’ home and their bank accounts.

27The Mother and the children reside in Playa Flamingo, Guanacaste, Costa Rica with the maternal grandparents, who own the villa at which they are living.

28The Mother has been and continues to be unemployed since the birth of the children. She is primarily responsible for their care.

29The Father was employed as a locksmith with ABC Security Access Systems in Ontario until he apparently voluntarily resigned from his employment on September 2, 2022. At the time of the motion, he was employed with Hardware Automation Distribution Inc. in Toronto.

30The parties and their child went to Cosa Rica in October 2022.

31Prior to leaving for Costa Rica, the parties rented out the matrimonial home. However, the Father has since evicted the tenants and is residing in the matrimonial home.

32The parties stayed at the maternal grandparents’ beachside villa in Costa Rica from October 2022 until approximately May 6, 2023. According to the Mother, the parties had decided to move permanently to Costa Rica in October of 2022. The Father disputes that any permanent decision was made, but does not dispute that they lived in Costa Rica during this timeframe.

33The family returned to Ontario to stay at the maternal grandparents’ family cottage in Honey Harbour, Ontario in the spring/summer of 2023. It was a family tradition to spend the summers at this cottage, prior to their separation and their time Costa Rica. It was at this time that the Father refused to allow the children to travel back to Costa Rica.

34While the Father disputes that there was ever a settled intention to move permanently to Costa Rica, as stated, Brownstone J. determined that the children’s habitual residence as of August 11, 2023, is Guanacaste, Costa Rica: Luongo, at paras. 51-53.

Issues

35The question on this motion is whether there is a genuine issue requiring a trial regarding the following issues:

(a) Did the Applicant Mother voluntarily attorn to the jurisdiction of the Ontario Superior Court of Justice?

(b) Is the Foreign Divorce Judgment from the Costa Rica Family Court recognized by and enforceable in Canada?

(c) If this court recognizes the Foreign Divorce Judgment, what is the impact on this court’s statutory jurisdiction?

(d) Does this court have jurisdiction simpliciter over the matters raised in the Father’s Answer?

(e) If this court has jurisdiction simpliciter over any or all of the issues raised in the Father’s Answer, should it exercise jurisdiction under the forum non conveniens test?

36For the following reasons, the motion for summary judgment is granted. The Applicant Mother has not attorned to this jurisdiction. The Foreign Divorce Judgment is recognized and enforceable in Ontario. This court has jurisdiction simpliciter over the equalization and property issues. However, the court ought not to assert jurisdiction simpliciter under the forum non conveniens test.

Summary Judgment Test

37Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the court “shall make a final order” if there is no genuine issue requiring a trial of a claim or defence. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.

38Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (see also, Philion v. Philion, 2015 ONSC 4255 (Ont. S.C.J.)).

39In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.” The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences, in order to resolve claims without the need to have a trial.

40The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather on whether a trial is required. A trial will not be required when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.

41The determination of a motion for summary judgment involves a two-step approach. The judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. Second, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.

42On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The responding party must put their “best foot forward” and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

43I can determine this motion on the basis of the existing evidentiary record, without resorting to the special fact-finding powers under the Family Law Rules.

Issue 1: Did the Mother voluntarily attorn to this court’s jurisdiction?

44The Father submits that the Mother has voluntarily attorned to this court’s jurisdiction with respect to his family law-based claims by having commenced a Hague Application and seeking relief.

45I disagree.

46The test for consent based jurisdiction is whether the party opposing jurisdiction has actively participated in the proceeding or sought to advance the merits of the proceeding (Doersam v Doersam, 2022 ONSC 4094, at paras. 10 – 11).

47In Mehralian v. Dunmore, 2023 ONCA 806, at para 30, the Court of Appeal phrased the test as follows:

Parties to an action are free to select or accept the jurisdiction in which their dispute is to be resolved…[A] party that has voluntarily attorned to the jurisdiction of a court has consented to having the issues in dispute determined by that court.

Where jurisdiction is established through such consent…it is unnecessary to consider whether there are other grounds upon which a court’s jurisdiction might be either recognized or challenged, such as whether the parties had a real and substantial connect with the jurisdiction in question…[citations omitted]

See also, Beals, v. Saldanha, 2003 SCC 72, [2003] s S.C.R. 416, at para. 37 and Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43 – 44.

48Put another way, a party is not deemed to attorn to a proceeding simply by challenging the jurisdiction of the court. Rather, the party must litigate the claims on the merits (Kunuthur v. Govindareddighari, 2018 ONCA 730, at para. 18).

49In this case, the Father submits that as the Mother commenced an application before this court, therefore, she must be deemed to have accepted this court’s jurisdiction with respect to the claims raised in his Answer. However, he conceded that there is no caselaw precedent to support his proposition that if a party commences a Hague Application, that party is deemed to have accepted the jurisdiction of this court for non-Hague related issues as well even if not raised by the applicant; in this case, divorce and corollary relief.

50The Mother commenced the Hague Application for the limited purpose of seeking the court’s assistance under the Hague Convention for the return of the children to Costa Rica. She did not respond to any of the Father’s claims for a divorce or corollary relief raised in his Answer. She restricted her Reply to responding to the Father’s response to her claims under the Hague Convention. She has taken no steps to “actively” participate in the Father’s claims or litigate those claims on the merits. While she pleaded and relied on Ontario statutes for the return of the children, in addition to the Hague Convention, and attended at TBST and a motion, these steps were solely to advance her claim for the return of the children, she did not take any steps to respond to the Father’s non-Hague related claims, nor did she “actively” participate in proceedings relating to those claims.

51Under Article 8 of the Hague Convention,

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. Both Canada and Costa Rica are contracting states.

52Therefore, the Mother had the choice of commencing her Application in Ontario, where the children were physically present, or in Costa Rica, where the children were habitually resident. It made sense for the Mother to commence the Application in Ontario, to avoid a chasing order. It also made sense as the Father is resident in Ontario. It is also a more streamlined process, since the Central Authority would not have to contact the Central Authority of the Contracting State in which the children were resident or engage that Central Authority in attempting to secure the voluntary return of the children (Articles 9 and 10, Hague Convention) as pre-requisites to hearing the application on its merits.

53The Mother did not commence an Application seeking a divorce and corollary relief. She did not raise any family law issues under the Family Law Act or Divorce Act. She did not respond on the merits to any of those issues raised by the Father in the Answer.

54She was seeking the assistance of this court, but was obliged to commence this application either in Ontario or Costa Rica pursuant to the provisions of the Hague Convention.

55In my view, the Father’s submission that because the Mother sought relief from this court, therefore, she has voluntarily accepted this court’s jurisdiction on all matters, does not make sense. The divorce and corollary relief claims are extricable from the Hague Convention relief. Usually, the Hague Application will only deal with the matters under that Convention. It is unusual for a respondent to that type of application to seek to expand the issues before the court to raise distinct family law relief that has nothing to do with a determination of the habitual residence of the children for purposes of deciding whether the children have been wrongfully removed or retained and must be returned to their habitual residence.

56In my view, the Mother did not attorn to the jurisdiction of this court with respect to a resolution to the claims unrelated to the Hague Convention made by the Father in his Answer. Referring back to Mehralian and Kunuthur, the Mother did not consent to the Ontario Superior Court of Justice hearing those distinct and extricable issues in dispute. The claims in issue are the claims asserted by the Father in his Answer, not the claims asserted by the Mother in her Hague Application. In my view, the Father should have commenced a separate application under the Divorce Act and Family Law Act to assert his claims which are unrelated to the Hague Convention.

57If a parent is deemed to attorn to the jurisdiction of the court for all family law issues simply because they commenced a Hague Application solely for the return of children to their habitual residence, deemed attornment for all divorce and corollary relief issues for that parent could present an unfair situation. For example, it would be unfair to have deemed attornment if the children were being wrongfully retained or removed to a country which deprives women of their basic (Canadian) family law entitlements and is morally repugnant to the Canadian system.

58The Father also submits that this motion for summary judgment is not available to the Mother, because she is the one who started the Hague Application. All of the cases he submits, not surprisingly, reflect a situation where it is a defendant or respondent who is challenging the jurisdiction of the court. However, in this case, it is the Respondent Father who has asserted claims de novo against the Mother under the Divorce Act and Family Law Act, arising from the breakdown of their marital relationship via the Answer. These are conceptually distinct claims from those raised by the Mother. Conceptually, the Mother is the respondent to the Father’s non-Hague Convention family claims.

59There is no issue requiring a trial regarding this threshold issue of whether or not the Mother voluntarily attorned to this court’s jurisdiction to have the Father’s non-Hague Convention family law claims adjudicated. The essential facts underlying this issue are not in dispute.

60The Mother has not attorned to the jurisdiction of this court regarding the Father’s non-Hague Convention family law claims asserted in his Answer.

61Accordingly, I must examine whether this court has jurisdiction simpliciter and, if so, whether this court should assert that jurisdiction under a forum non conveniens analysis.

62However, before I embark on the jurisdiction simpliciter analysis, I will consider whether this court will recognize the intervening Foreign Divorce Judgment and, if yes, what the effect of it is on this court’s jurisdiction analysis.

Issue 2: Is the Costa Rica Foreign Divorce Judgment recognized in Canada?

63The Father challenges the validity of the Foreign Divorce Judgment on the ground that the Mother engaged in unfair forum shopping. He relies on the Court of Appeal’s recent decision in Vyazemskaya v. Safin in support of this newly created ground. He advised during submissions that he is not disputing the enforceability of the Foreign Divorce Judgment insofar as it relates to the parenting issues. Rather, he disputes the validity of the Foreign Divorce Judgment as it relates to the equalization, property and spousal support claims raised in his Answer.

64Notably, the Father does not allege that the family law regime in Costa Rica is unconscionable, nor does he raise any other public policy grounds or natural justice as a reason that this court should refuse to recognize the validity of the Foreign Divorce Judgment.

65In the Father’s Form 14C Confirmation of Motion, he raised fraud and habitual residence as additional grounds for challenging the validity of the foreign divorce. However, as stated, at the resumption of the motion, he confirmed that he was primarily relying on the unfair forum shopping defence.

66In any event, the fraud claim as articulated in the Confirmation of Motion did not go to the jurisdiction of that court. The Father claimed that the court’s understanding that there were no claims for “alimony” being advanced was false because he had advanced a spousal support claim in Ontario. However, it was not false – the Father did not advance a claim for alimony/spousal support before the Costa Rican court, and in any event, this allegation does not go to the jurisdiction of the Costa Rica Family Court. Also, the Father claimed the Costa Rican court made an error in finding he was a “resident of Costa Rica.” But I emphasize again, the Costa Rican court made decisions without his side of the story because he chose to ignore those proceedings. In any event, this error does not go to jurisdiction, since the Mother is a resident of Costa Rica.

67With respect to the habitual residence claim, the Father relies on s. 22(1) of the Divorce Act, and states that neither party was habitually resident in Costa Rica for one year preceding the foreign divorce. While that is true, I have relied on the common law requirements in recognizing the presumptive validity of the Foreign Divorce Judgment.

68Section 22(3) of the Divorce Act expressly affirms the common law principles applicable to the recognition of foreign divorces: Sonia v. Ratan, 2024 ONCA 152, 171 O.R. (3d) 677, at para. 21).

69If any of the following common law principles are established by the evidence, then the court will presumptively recognize the foreign divorce (subject to certain exceptions, discussed below):

(a) Jurisdiction was assumed on the basis of the domicile of the spouses;

(b) The foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;

(c) The foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;

(d) The circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;

(e) The petitioner or respondent had a real and substantial connection with the foreign jurisdiction where the divorce was granted; or

(f) The foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection: Sonia, at para. 22.

70In order to establish a real and substantial connection, the court must find that there is a real connection established through connecting factors such as historical residence in the foreign jurisdiction or having extended family residing in the foreign jurisdiction: Sonia, at para. 23; Abraham v. Gallo, 2022 ONCA 874, 81 R.F.L. (8th) 278, at paras. 27, 31-33. The initial burden falls on the party seeking to have the court recognize the foreign divorce. The burden then switches to the party disputing the validity of the foreign divorce to demonstrate that it would be contrary to order and fairness: Sonia, at para. 25.

71If the foreign divorce was properly obtained pursuant to the laws of the granting jurisdiction, it will only be in very rare circumstances that the Canadian court will not recognize it: Sonia. This is premised on the principle of comity; that is, the practice that a domestic court will respect and defer to foreign judgments subject to established exceptions.

72Up until Vyazemskaya, there were four grounds on which a domestic court could decline to recognize a foreign divorce:

(a) Where the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;

(b) Where there is evidence of fraud going to the jurisdiction of the granting court,

(c) Where there has been a denial of natural justice such as the absence of notice, or

(d) Where the foreign divorce is contrary to Canadian public policy: Sonia, at para. 26.

73To these factors, the Court of Appeal in Vyazemskaya, established a fifth exception called “unfair forum shopping,” which is conceptually distinct from the public policy exception.

74Here, the Mother filed an expert opinion report from her lawyer who is representing her in the divorce proceedings in Costa Rica. While the lawyer signed an Acknowledgement of Expert Duty, he did not swear an affidavit attesting to the accuracy of his report or adopting his opinion as outlined in the report. The Father objected to the proposed expert opinion evidence on the ground that the expert was not “independent.” However, the court may accept otherwise admissible expert opinion from professionals who have had direct involvement with a party. For example, opinion evidence may be received from a party’s treating health care professionals. Lack of partiality would normally be tested on cross-examination and go to the weight of the opinion. In this case, the lawyer’s opinion drew attention to the grounds for divorce provided in the Family Code, No. 5476 enacted under The Legislative Assembly of the Republic of Costa Rica (the “Family Code”), and the provisions relied upon by the Costa Rican court in granting the Foreign Divorce Judgment. The opinion also highlighted the powers of the court to grant corollary relief.

75I am satisfied that the lawyer’s opinion was independent, as warranted by the Acknowledgement of Expert Duty. However, the expert report was not tendered in evidence by the expert’s affidavit (or any affidavit for that matter). Accordingly, I will not rely upon it.

76However, a certified translation of the governing Costa Rican legislation, the Family Code, was submitted. Furthermore, the Foreign Divorce Judgment, a copy of which was issued in English by the Costa Rica Family Court, provides reasons, including a recital of the law applied by that court.

77I am satisfied that there is a real and substantial connection between the parties and Costa Rica. This is because at the time that these proceedings were commenced on December 5, 2023, and continuing at the time the divorce was granted, the children had already been declared by this court to be habitually resident in Costa Rica. The Mother and children are clearly domiciled in Costa Rica. The Father did not dispute that there was a real and substantial connection between the Mother (and between the children, for that matter) and the Costa Rica Family Court.

78I am also satisfied that the Foreign Divorce Judgment was obtained pursuant to the laws of Costa Rica, and that there was no fraud committed going to the jurisdiction of the court. According to the Foreign Divorce Judgment at Part II (On the Merits), the Court granted the divorce pursuant to Article 48(8) of the Family Code on the basis of “incompatibility of characters” which Gomez J. explained requires one party to proclaim that they are no longer compatible with each other, provided they have been married for at least 6 months. There was no suggestion at the hearing that this ground was not satisfied before the Costa Rica Family Court.²

79Accordingly, the Foreign Divorce Judgment is presumptively valid pursuant to s. 22(3) of the Divorce Act. The burden now shifts to the Father to demonstrate one of the “limited grounds” upon which a court may refuse to recognize the foreign divorce: Sonia, at para. 26.

80As stated, the main ground advanced at the hearing by the Father for refusing to recognize the validity of the Foreign Divorce Judgment is that the Mother engaged in “unfair forum shopping,” as established by the Ontario Court of Appeal in its decision rendered in Vyazemskaya.

81In Vyazemskaya, the Court of Appeal upheld the motion judge’s decision to create a fifth “analytically distinct” ground for refusing to recognize a presumptively valid foreign divorce: “unfair forum shopping.” The court held that this ground was an addition to the already established limited exceptions.

82The Court of Appeal, at para. 31, relied on Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 as leaving the door open to “unfair forum-shopping tactics” as a possible exception. The court relied on the following passage from Beals, at para. 191:

It follows that the assumption of jurisdiction by a sister province, provided that it does not exceed the province’s constitutional authority over property, civil rights and the administration of justice in the province and is not prompted by unfair forum shopping tactics on the plaintiff’s part, should be entitled to full recognition and enforcement throughout Canada. A connection to the subject matter of the action should usually suffice to meet the “real and substantial connection” test.

83While Beals involved a commercial matter, the court held that these principles are also relevant to a family law context “where such a defence would be particularly persuasive”: Vyazemskaya, at para. 31.

84The court in Vyazemskaya affirmed the following findings by the motion judge as supporting the finding of unfair forum shopping:

(a) The party who sought the foreign divorce (the “appellant”) was well aware of the fact that his “former spouse” (the “respondent”) would be seeking spousal support from him;

(b) The Appellant “pre-emptively sought and obtained the divorce in Russia to avoid paying spousal support under Ontario law to ‘the respondent”;

(c) Under Russia domestic law, the respondent was not eligible for spousal support;

(d) Once the divorce was granted (in short order), the respondent, as a former spouse, could not seek spousal support under the Divorce Act (or the Family Law Act, added the Court of Appeal).

85The court concluded, at para. 40, that the motion judge’s “findings of unfair forum-shopping tactics, and generally about the appellant’s improper motive to seek a divorce elsewhere, were a legitimate basis for refusing to recognize [the] divorce.”.

86Using the analytical framework set out in Vyazemskaya, I have no hesitation in finding that the Father has not demonstrated that the Mother engaged in unfair forum-shopping tactics when she commenced her family law proceeding in Costa Rica. Unlike the factual situation before the court in Vyazemskaya, here, the Father had the ability to apply for spousal support. Instead, he chose not to respond to the proceeding and hence was noted in default, notwithstanding having both advanced notice of the Mother’s intention (through her lawyer’s correspondence) and service of the Costa Rican proceeding, and notwithstanding his actual participation with his Ontario lawyer at the conciliation hearing conducted in Costa Rica.

87As stated, the Mother and the children were domiciled in Costa Rica at the time she commenced her proceeding before that country’s court. The children’s habitual residence was found to be Costa Rica as of August 11, 2023, which is before she commenced the foreign proceedings. The Father concedes that the parenting issues are properly before that court.

88Further, there is a substantial connection between the Costa Rica Family Court and the family law issues, particularly with respect to the parenting issues, since the children are resident in Costa Rica.

89There is no evidence that the Mother’s motive in commencing the foreign proceeding was to avoid her obligations under the Divorce Act or Family Law Act. There was no spousal support awarded, because the Father declined to advance a claim for spousal support in the Costa Rican proceedings, not because there was no spousal support relief available. The decision in Vyazemskaya is distinguishable on the facts.

90Furthermore, the Father appears to have an ability to participate in the proceeding in Costa Rica on the issues of equalization, family property, and the appropriate amount of child support (based on a plain reading of the Foreign Divorce Judgment); however, I am not relying on this possibility in reaching my conclusion.

91The fact that the Mother commenced her family law proceedings after the Father raised his non-Hague Convention family law claims in his Answer does not warrant an adverse inference as to her motive in this case. That the Mother chose to immediately commence a Hague Application for the return of the children and deal with that issue first was absolutely appropriate.

92The Father may have had the option of moving for a stay of the Costa Rican proceedings to challenge jurisdiction, but he chose instead to ignore those proceedings. He was represented by Ontario counsel at the time, and likely knew that the consequence would be that the Costa Rica Family Court would proceed with its adjudication in his absence, on an uncontested basis. This was a tactical decision on his part, and he made this decision at his peril.

93There is no suggestion that the Costa Rican family law regime and divorce laws are morally repugnant, or that there was a breach of natural justice. Furthermore, I am satisfied that the Mother did not obtain an unfair advantage by proceeding before that court.

94The Father has not discharged his onus to demonstrate in the evidentiary record that the Mother engaged in unfair forum shopping tactics, or any of the other limited grounds for reversing the presumptive validity of the Foreign Divorce Judgment from Costa Rica.

95Accordingly, the Foreign Divorce Judgment is valid, and this court recognizes it.

96As an aside, there appears to be some confusion amongst the family law bar with respect to the new ground for setting aside a foreign divorce for unfair forum shopping tactics, as set out in Vyazemskaya, in light of the decision rendered by the Court of Appeal on the same day in Sonia. In Sonia, a different panel of the Court of Appeal observed, at para. 5, that the motion judge in that case found “there was no evidence of fraud or unfair forum-shopping…in obtaining the Bangladesh divorce and he concluded that recognition of the Bangladesh divorce was consistent with the principles of natural justice and Canadian public policy.”

97While affirming the common law bases for recognition of a foreign divorce at para. 22, the court in Sonia did not add a new ground of “unfair forum shopping” when it listed the four pre-existing established grounds which will justify a Canadian court’s refusal to recognize a presumptively valid foreign divorce: at para. 26. However, that issue was not placed squarely before that court.

98I note that in Abraham v. Gallo, at para. 15, the Court of Appeal left the door open for the expansion of grounds upon which a court will decline to recognize a foreign divorce decree by indicating that the list of existing grounds was non-exhaustive.

99However, at para. 33 of Abraham, the Court of Appeal wrote in its analysis of the policy underpinnings of what constitutes a “real and substantial connection” (for purposes of establishing presumptive validity of a foreign divorce under common law principles), that the test “seeks to exclude artificial bases of jurisdiction and prevent forum shopping.”

100It may be that some clarification about this new ground would be of assistance.

101For the purposes of this motion, I have followed Vyazemskaya and have found that the Father has not persuaded me that the Mother engaged in such “unfair forum shopping” tactics in commencing her family law proceeding in Costa Rica, in the face of the Father’s earlier filed Answer to the Hague Application.

Issue 3: What is the impact of the Foreign Divorce Judgment on this court’s jurisdiction?

102In the Answer, the Father made claims for equalization and property (including an order for exclusive possession of the matrimonial home), spousal support, and parenting orders. As stated, he concedes that the Costa Rican court should maintain jurisdiction over the parenting issues, and he did not make a claim for child support from the Mother.

103A Canadian court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act after a valid divorce has been granted by a foreign jurisdiction: Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 41; Rothgiesser v. Rothgiesser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577(C.A.), at paras. 18, 28, and 30. The term “corollary relief” as used in the Divorce Act means orders that are incidental to the granting of the divorce, including spousal support, custody, and child support.

104However, the Family Law Act also addresses the court’s statutory jurisdiction to grant corollary relief.

105The Family Law Act does not permit a “former spouse” to seek spousal support after a divorce has been granted. While there has been much commentary by the courts about the possibility that this situation can render a real hardship on the deprived spouse, the courts have looked to the legislature to amend the definition of spouse to include “former” spouses (FLA, at ss. 1(1) and 29), or a potential challenge under the Charter of Rights and Freedoms (not advanced in this motion) (Vyazemskaya, at paras. 43-44; Sonia, at paras. 90-94). The Court of Appeal has affirmed that a divorced spouse cannot make a spousal support claim under the FLA (Rothgiesser, at para. 26; Okmyansky, at para. 42).

106The only remaining corollary relief sought by the Father is for equalization and property.

107Unlike the spousal support scenario, the Family Law Act permits divorced/former spouses to advance a claim for equalization and property rights: at s. 7(1). This is not affected by the Divorce Act prohibition because the provinces have exclusive jurisdiction over “property and civil rights” and therefore, there is no property-related corollary relief under the Divorce Act in the first place.

108In Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 184, and Okmyansky, the Court of Appeal held that Ontario has jurisdiction to deal with equalization issues after the issuance of a valid foreign divorce, provided the foreign divorce judgment did not deal with property issues.

109In Okmyansky, at para. 51, after noting the conflict of laws provision in s. 15 of the FLA (which sets out that property rights are governed by the internal law of the place “where both spouses had their last common habitual residence”), the court stated:

If “former spouse” in s. 7 [FLA] were interpreted as referring only to former spouses who were divorced in Canada, it would mean that a person living in Ontario whose property rights are governed by Ontario law would have no remedy in Ontario concerning Ontario property where the person’s spouse is able to obtain a divorce in a foreign jurisdiction. This would be the case even though the property issues were not dealt with in the foreign proceedings.

110However, in Zakhour v. Nayel, 2021 ONCA 339, 156 O.R. (3d) 195, at paras. 7-8, the Court of Appeal wrote:

Section 7 of the FLA permits a “former spouse” to bring an application to determine their entitlement to equalization of net family properties…Therefore, the appellant is a “former spouse” under s. 7 of the FLA and the Ontario Superior Court of Justice has jurisdiction to consider her equalization claim under the FLA.

The respondent contends that the Superior Court of Justice nevertheless lacks jurisdiction because the proceedings in Lebanon dealt with the appellant’s claim for financial compensation. We disagree. That a foreign court has addressed a former spouse’s corollary relief claims in the foreign divorce proceedings does not deprive the Superior Court of jurisdiction under s. 7 of the FLA: see Okmyansky, at paras. 7-8, 43.

111In Okmyansky, the parties divorced in Russia and the Russian court determined that each party owned a one-half interest in an apartment located in Moscow. The Russian Court did not determine equalization. The Ontario court dealt with equalization as a corollary issue not addressed by the Russian proceeding. The Court of Appeal stayed the former spouse’s application for spousal support, but permitted the equalization claim to proceed, notwithstanding the fact that the Russian Court had declared that each party owned a 50 percent share in the Moscow apartment.

112What I take from the jurisprudence is that this court has statutory jurisdiction over the equalization and property rights of the Father’s corollary relief claim under the FLA, only if the foreign divorce judgment has not determined those issues.

113Costa Rica operates under a civil code, not the common law. The Costa Rica Family Code outlines the system of family property in Articles 37-58, including what property is considered family (or marital) property and the rules for property division. It is not unlike the Ontario system of equalization and net family property; in Costa Rica, subject to any “prenuptial agreement,” the presumption is that each spouse will receive 50 percent of the net “marital property.”

114As stated above, the Foreign Divorce Judgment stated generally, that pursuant to Article 41 of the Family Code, “each spouse acquires the right to participate in half of the net value of the marital property that is found in the property of the other”. The judgment subsequently outlined in a general way what types of property, or assets are excluded from “marital property” for equalization purposes.

115Important for this motion, the parties’ matrimonial home and bank account assets are not excluded from the list of marital property under the Family Code.

116The Foreign Divorce Judgment declares that “each party has the right to participate in half of the net value of the assets acquired during the marriage that are found within the property of the other.” However, while affirming the right of the parties to equalization of the net “marital” property, the judgment defers to the “execution phase,” a determination of the assets comprising the “marital property” and the equalization calculation. The court declared:

d) Each spouse is granted the right to participate in half of the net value of the martial property held by the other, with the exact amount to be determined during the execution phase of the judgment.

117Accordingly, this is not yet a final judgment as it relates to the quantification of the equalization claim.

118In my view, in these circumstances, this court retains statutory jurisdiction over the equalization of net family property and the property claims advanced by the Father. While the Foreign Divorce Judgment has declared entitlement to equalization of the net family property claim asserted by the Mother in those proceedings, and generally referenced the Family Code regarding what constitutes family property and what property is excluded, no specific determination has been made regarding the identification of the family property at issue, the value of the family property, or an equalization calculation.

Issue 4: Does this court have jurisdiction simpliciter over the equalization and property issues?

119In light of the competing proceedings and my finding that the Foreign Divorce Judgment does not constitute a final judgment on equalization and property, I must now consider whether this court has jurisdiction simpliciter over the property and equalization issues based on the “real and substantial connection” test: Li v. Li, 2021 ONCA 669, 159 O.R. (3d) 216.

120The burden of proof lies on the Father, as he is asserting that this court has jurisdiction simpliciter: Doersam, at para. 10.

121In determining whether there is a real and substantial connection in the family law context, the list of presumptive connecting factors is different from the list that applies in the tort context per Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572: Li, at para. 36, Knowles v. Lindstrom, 2014 ONCA 116, 111 O.R. (3d) 763, at para. 27.

122In Wang v. Lin, 2013 ONCA 33, 29 R.F.L. (7th) 1, at paras. 46-47, the court noted that the presumptive connecting factors in a family law context will differ (to some extent) from the presumptive connecting factors established by Van Breda in a tort law context. In Wang, at para. 47, the habitual residence was identified as a presumptive connecting factor in family law cases.

123The location of the property at issue is a presumptive connecting factor. There is no dispute that the matrimonial home is located in Ontario, and that there is no family property located in Costa Rica. The only assets are the matrimonial home and the parties’ bank accounts, all of which are located in Ontario.

124Furthermore, both parties are Canadian citizens, and the Father is ordinarily resident in Ontario. In addition, the Father is advancing a claim for equalization and property rights in his Answer filed in the Hague Application proceeding.

125The existence of a single, presumptive connecting factor is sufficient to establish jurisdiction simpliciter: Li, at para. 38, citing Knowles.

126In my view, these factors are sufficient to establish that Ontario has jurisdiction simpliciter over the equalization and property issues.

Issue 5: Should this court assert jurisdiction under the forum non conveniens test?

127Having determined that this court has statutory jurisdiction over the net family property and equalization claims, notwithstanding the validity of the divorce decreed by the Costa Rican court, I still must determine whether this court ought to assert jurisdiction. The parties rely on the forum non conveniens test.

128The purpose of the forum non conveniens analysis is to “ensure that both parties are treated fairly and that the process for resolving their litigation is efficient”: Van Breda, at para 105; Li, at para. 42.

129The burden is on the Mother to demonstrate why this court should not exercise its jurisdiction simpliciter over the equalization and property issues: Li, at para. 31.

130Van Breda set out a number of factors that are relevant to a consideration of whether the foreign jurisdiction is “clearly more convenient” than the domestic jurisdiction. However, the list is not exhaustive. Each case must be decided on its specific context and facts. The weighting of each factor will accordingly vary with each case.

131In Li, a family law decision in which the competing jurisdictions were Ontario and China, the court commented on the doctrine of forum non conveniens:

In essence, the doctrine focuses on the circumstances of the case, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient. The factors that come into play in considering the question of forum non conveniens depend on the context and may include the locations of parties and witnesses, the cost of transferring the case to another place, the impact of a transfer on the case or a related case, the possibility of conflicting judgments, problems relating to recognition or enforcement of judgments, and the relative strengths of the connections of the parties.

Loss of juridical advantage to one or the other of the parties is also a relevant consideration. Even then, however, comity and an attitude of respect for the courts and legal systems of other countries may be in order. A court must not lean too instinctively in favour of its own jurisdiction. (Internal citations omitted): at paras. 43-44.

132In this case, the only issues that are being considered for resolution in this court are equalization and property.

133The relevant factors in determining whether Costa Rica is “clearly the most appropriate forum” through this lens are the following:

(a) Location of the family property: all of the family property, including the largest asset – the matrimonial home – is located in Ontario. This factor weighs in favour of Ontario being the appropriate forum: Knowles, at para. 21.

(b) Location of the parties and their connection to each forum: the Father is located in Ontario, and the Mother and children are located in Costa Rica. However, historically, both parties and the children were resident in Ontario up until the date of separation. Both jurisdictions offer virtual court proceedings. Overall, this factor slightly favours Ontario.

(c) The location of the evidence: most of the evidence will be located in Ontario, except for the Mother. This evidence includes appraisal evidence of the value of the matrimonial home and bank account records. This factor is in favour of Ontario.

(d) The risk of conflicting judgments: while the Costa Rica equalization and family property scheme appear to be comparable to Ontario’s scheme based on the limited evidence before me (and certainly not “morally repugnant”), there is a possibility of conflicting judgments if this court exercises jurisdiction simpliciter. The issues are identical, and the parties are identical. However, the Costa Rica Family Court will proceed without the benefit of the Father’s evidence for reasons already discussed, subject to the possibility that he can appear at the execution phase based on a plain reading of the Foreign Divorce Judgment. Furthermore, the Costa Rican proceedings are much further along than the Ontario proceeding. This is a factor in favour of Costa Rica.

(e) Avoidance of a multiplicity of legal proceedings: there is an efficiency to having all of the matters resolved by one court, which in this case is the Costa Rica Family Court. As stated, the foreign court has already rendered judgment, subject to a determination of the net family property and equalization calculation (and child support quantum) in the execution phase, and a divorce was already granted. Should this court exercise its jurisdiction simpliciter over the equalization and property issues, these issues will have been effectively bifurcated from the Costa Rica proceeding, and the Ontario claim would only just be beginning. This would mean that financial disclosure, net family property statements, sworn financial statements, questioning, and other procedural requirements would be starting afresh, thereby postponing a conclusion to the equalization issue. Furthermore, as will be discussed further, there must be a consequence to the Father’s deliberate decision to ignore the Costa Rican proceedings, resulting in his noting in default. This factor favours Costa Rica.

(f) Enforcement of judgment on equalization and property: a monetary judgment arising from equalization will likely be enforceable in Canada because there is a real and substantial connection, subject to the defences set out in Beals. I do not have evidence about whether an Ontario judgment would be enforceable in Costa Rica. However, Ontario possesses territorial jurisdiction in relation to orders that may be made relating to the title of the matrimonial home, including disposition, exclusive possession, and other remedies provided for under the FLA. Since the matrimonial home is by far the most substantial asset, at first impression, this factor weighs in favour of this court exercising jurisdiction simpliciter over the equalization and property issues. On the other hand, if this court declines to exercise jurisdiction simpliciter, the parties will still have the option to bring an application under the Partition Act, R.S.O. 1990, c. P.4, or under the FLA for sale of the matrimonial home (which is a distinct issue from equalization). If this is to occur, this further proceeding would be more streamlined and efficient than starting afresh with the equalization of net family property claim. This is a neutral factor.

(g) Applicable law: pursuant to s. 15 of the FLA, the property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario. This means the place where the spouses most recently lived together as spouses and participated in everyday family life. This is a fact-specific inquiry. However, the Costa Rican court has accepted the Mother’s date of separation by virtue of the noting in default of the Father. This means that the foreign court has determined that the last common habitual residence was Costa Rica, notwithstanding the Father’s claim here. Accordingly, the law to be applied is that of Costa Rica, pursuant to the Foreign Divorce Judgment, and indeed the Costa Rican court is applying its domestic law to this matter. A consequence of the Father’s decision to ignore the Costa Rican proceedings is that he lost the opportunity to advance his proposed date of separation on competing evidence. This favours Costa Rica.

(h) The civil proceedings by the maternal grandparents: these proceedings are in Ontario and relate to the alleged debt secured by mortgage registered against matrimonial home. The determination of the validity of the maternal grandparents’ claim that they loaned, rather than gifted, funds to the parties to purchase the matrimonial home will have a notional implication for the equalization payment. There is no suggestion that the mortgage was fraudulently registered and it is clear that both the Father and Mother consented to its registration. While the Costa Rica court will likely determine the validity of the alleged debt secured by the mortgage for purposes of the calculation of equalization payment, given the fact that the parties jointly own the matrimonial home and are joint mortgagors, the net result is likely the same – a nil equalization payment arising from the matrimonial home and mortgage. I will discuss this issue later in these Reasons, but this factor is ultimately neutral.

(i) The status of the Costa Rica Family Court proceedings: the Costa Rica Family Court proceedings have been determined subject to the equalization of net family property calculation (and the quantum of child support) to be paid. The Father concedes that the parenting issues, including child support, are properly before the Costa Rica Family Court, given the location of the children. The Costa Rica Family Court proceeding has already been directed to the execution phase for equalization. The family will receive finality and certainty with respect to the family law issues by allowing the Costa Rica Family Court to complete its proceedings, rather than embarking fresh on the equalization and property issues in Ontario. This factor favours Costa Rica.

(j) Juridical advantage: if this court asserts jurisdiction simpliciter, the Mother will lose the advantage of the deemed admissions ceded by the Father when he declined to participate in the Costa Rican proceedings and ignored them (Foreign Divorce Judgment, at p. 4). The Father has lost his ability to pursue a spousal support claim due to his own actions. As previously stated, this is because of his choice not to participate in the Costa Rican court proceedings or to take steps to stay that proceeding, notwithstanding the fact that he was then, and continues to be, represented by Ontario counsel, and the fact that he participated in the conciliation hearing in Costa Rica where the Mother paid for translation. Furthermore, the meaning of equalization and family property are comparable in both jurisdictions.³ Finally, the Costa Rica Family Court declined to issue costs against the Father because he did not oppose the claims in the action, including for equalization (see item III – Costs – in the Foreign Divorce Judgment). To permit the Father to pursue his equalization claim here would make a mockery of the costs award and deprive the Mother of her juridical advantage. This factor favours Costa Rica.

134I must take a holistic view of all of the factors of relevance in determining which forum, on balance, would provide a fair resolution through an efficient process. While the tally of factors may be in favour of one country over the other, this is not determinative in the exercise of my discretion.

135In my view, after considering the relevant factors informing whether this court ought to exercise jurisdiction simpliciter, the most fair and efficient process is to have the equalization and property issues finally resolved in the execution phase in Costa Rica. It will be efficient, because the Costa Rica Family Court has already rendered a divorce decree, has embarked on equalization by declaring entitlement of both parties to equalization representing 50% each of the net “marital” property, and is entering the execution phase. It is fair, in part, because the Father made a tactical choice to ignore the Costa Rican proceeding, knowing that it would proceed in his absence. It would be sending the wrong message to litigants if this court effectively validated the Father’s decision to ignore a foreign proceeding and still permit him to litigate here.

136More specifically, the Costs Rica Family Court has already declared on the issue of equalization and property, in the Foreign Divorce Judgment, that each party is “granted the right to participate in half of the net value of the marital property held by the other, with the exact amount to be determined during the execution phase of the judgment.” The Father may still have the opportunity to participate in the execution phase. The Foreign Divorce Judgment states that to establish the equalization, “the parties must proceed to the execution phase of the judgment to demonstrate the existence and communal nature of the assets.”

137As reflected above, I considered the possibility of conflicting judgments with respect to the Ontario civil proceeding by the maternal grandparents in relation to the mortgage registered on title against the matrimonial home, and the Costa Rican court’s treatment of this alleged mortgage debt in its equalization calculation, given the Father’s defence that the mortgage debt was not intended to be enforced against the parties but rather was a gift. However, the maternal grandparents are not parties to the Foreign Divorce Judgment. There is an argument that the Costa Rica Family Court determination will not be binding on the maternal grandparents in any event.

138Furthermore, while the equalization and property issues will be determined by the Honourable Court in Costa Rica, the issue of the sale of the matrimonial home and disbursement of net sale proceeds will ultimately return to Ontario where the Superior Court of Justice has territorial jurisdiction over the matrimonial home and bank accounts.

139While in no way binding on the parties, one logical solution would be to have the issue of the sale of the matrimonial home determined by way of a fresh application under the Family Law Act, for the limited purpose of disposition of the matrimonial home and distribution of net sale proceeds (including an accounting for post separation adjustments). The parties could add the maternal grandparents as co-respondents and/or seek to consolidate the maternal grandparents’ current civil proceeding so that these issues will all be before the same judge. Accordingly, my order dismissing the Father’s remaining claims under the Answer will be without prejudice to either party commencing a new application under the Family Law Act for this limited purpose, or a fresh civil application under the Partition Act, once the equalization issue has been determined by the Costa Rican court.

140To be clear, this court is not asserting jurisdiction simpliciter over the equalization and property issues. However, the determination about the disposition of the matrimonial home and distribution of net sale proceeds are issues that are not before the Costa Rican court, which lacks territorial jurisdiction over property located in Ontario, and deals with the reality of the maternal grandparents’ existing civil action against the parties regarding enforcement and/or other remedies relating to the mortgage held by them and registered on title against the matrimonial home.

141As an aside, I was concerned about the propriety of the Father having expanded the issues and claims beyond the Hague Convention issues and remedies by adding them to his Answer. It seems to me that it is inappropriate for a respondent to a Hague Application to purport to expand the scope of the application by pleading non-Hague Convention claims in the Answer, given the purpose of Hague Applications and the necessity of an expeditious resolution of child abduction issues. However, as this issue was not before me, I will leave it for another day when it might be squarely raised.

Conclusion and Orders

142I find that there is no genuine issue requiring a trial.

143Accordingly, the Mother’s motion for summary judgment is granted. This court declines to exercise jurisdiction simpliciter over the remaining issues of equalization of net family property and property. This order is without prejudice to the parties, or either of them, commencing a fresh application under the Family Law Act or Partition Act for an order regarding the disposition of the matrimonial home, post-separation adjustments (if any), and distribution of net sale proceeds. This order is also without prejudice to the parties, or either of them, bringing a motion to consolidate the maternal grandparents’ current civil proceeding with a new application, or a motion to add the maternal grandparents as parties to a new application, should one be brought.

144If costs are not resolved by the parties, then the Mother shall have ten days to provide her Cost Outline and written submissions, and the Father shall have ten days to provide his Cost Outline and responding written submissions. The submissions shall not exceed three pages, double-spaced, each. The parties shall upload these documents to Case Center and provide a copy to my judicial assistant (maria.kolliopoulos@ontario.ca).

Justice S. Vella

Date: March 11, 2025

CITATION: Luongo v. Luongo, 2025 ONSC 1513

COURT FILE NO.: FS-23-00037353-0000