Endorsement

Court File No.: FS-24-00041972-0000
Date: 2025-01-31
Ontario Superior Court of Justice

Between:
Dawn Pratt, Applicant
– and –
Anthony Korculanic, Respondent

John Cox and Johnnie Cox, lawyers for the Applicant
Ansar Arain, lawyer for the Respondent
Heard: January 28, 2025

Endorsement
Diamond J.:

Overview

[1] This application was commenced on April 11, 2024. On October 4, 2024, I heard an urgent, ex parte motion brought by the applicant. After hearing submissions from counsel for the applicant, I granted most of the ex parte relief sought on the motion including a worldwide Mareva injunction against the respondent and his corporations/subsidiaries. My ex parte order further carved out an exception to the terms of the Mareva injunction to permit a sale of a property in the Bahamas (“the Bahamas property”) and allow the applicant to receive 50% of the net sale proceeds.

[2] After the applicant served the ex parte order and her ex parte motion materials upon the respondent, her motion was then scheduled to return before me on October 22, 2024 to be heard on the merits.

[3] Without attorning to the jurisdiction of Ontario, the respondent first sought to bring a motion seeking (a) an order staying/dismissing this application on the grounds that Ontario lacked jurisdiction, and/or in the alternative (b) an order staying this application on the grounds of forum non conveniens. The respondent had commenced divorce proceedings in Spain approximately three weeks prior to the commencement of this application. He took the position before this Court that Spain had jurisdiction to determine the legal disputes between the parties, and was the proper forum.

[4] The applicant has not taken any steps to attorn to the Spanish divorce proceedings.

[5] The respondent’s motion seeking the above relief ultimately proceeded before me as a long motion on January 28, 2025. At the conclusion of that hearing, I took my decision under reserve.

Summary of Relevant Facts

[6] For the most part, there is little substantive dispute between the parties’ respective narratives leading up to their separation. That said, it is still important to review certain salient facts to assist this Court in its disposition of the respondent’s motion.

[7] The parties were married on June 10, 1995. They have two children: Sydnee (currently 24 years old and living independently as an adult in Toronto) and Ava (currently 18 years old and attending the University of Western Ontario (“UWO”) in London, Ontario).

[8] The parties differ as to when they separated. The applicant takes the position that she and the respondent separated on September 12, 2022, while the respondent maintains that the date of separation is in fact in September 2021. No actual date of separation is provided by the respondent, although he did give evidence that he began a relationship with his current fiancée on September 25, 2021 “only weeks after separating from the applicant”. In any event, this Court does not need to make a definitive finding on the issue of the parties’ separation date for the disposition of the respondent’s motion.

[9] Leading up to the parties’ separation, they had resided in Mallorca, Spain since 2018. The matrimonial home, which was rented, was in Mallorca, Spain. Regardless of when the parties actually separated, until September 2022 their ordinary and habitual residence was in Mallorca, Spain.

[10] Between 2004 and 2018, the parties resided in the Bahamas, where they owned and continue to own property.

[11] Prior to 2004, the parties resided in Ontario. They have not owned any property in Ontario for many years. At most, there may have been sporadic vacations to Ontario, or trips to Ontario for business purposes, over the last few years of their marriage but nothing more.

[12] Currently, the remaining joint assets owned by the parties mainly consist of a Bahamas property, and approximately 400,000 Euros being the net sale proceeds of another property (i.e. not the matrimonial home) that the parties owned in Spain.

[13] In or around September 2022, the applicant relocated to Canada with Ava, who at the time was still in high school. She attended Braemar College, a private secondary school in Toronto, Ontario from September 2022 until June 2023. She then attended high school in the Bahamas from September 2023 to June 2024, as she wanted to complete her last year of high school with friends with whom she had grown up. Ava then enrolled in UWO where she is currently completing her first year of an undergraduate kinesiology program.

[14] In or around mid-2022, the respondent was indicted for multiple counts of conspiracy to commit security fraud, wire fraud, and money laundering relating to “pump and dump” stock manipulation schemes. The respondent’s arrest took place in Spain in April 2022, and he was incarcerated in Spain for some time thereafter. His Canadian passport has expired, and his Croatian passport was seized by the Spanish police. It appears he effectively has no valid passport at the moment.

[15] The respondent gave evidence that he currently resides in Spain, although when pressed on cross-examination with questions designed to elicit information and documentation supporting his claim of residence, the respondent refused to answer many, if not all of those questions.

Issues to be Decided

[16] In her application, the applicant is seeking, inter alia, the following primary relief under the Divorce Act, the Family Law Act, and the Children’s Law Reform Act:

• a divorce,
• child support for Ava (primarily contribution to section 7 expenses),
• decision-making responsibility for Ava (mostly relating to her attendance at UWO),
• spousal support, and
• equalization of net family property.

[17] It is thus necessary to examine the above heads of relief and whether they fall within the jurisdiction of the province of Ontario. In the event that this Court finds that Ontario does have jurisdiction over one, some or all of the above heads of relief, then the respondent’s motion seeking the alternative relief staying this proceeding on the basis of forum non conveniens must proceed.

Jurisdiction Simpliciter

[18] On this motion, the respondent bears both the legal and evidentiary onuses to prove that Ontario lacks the jurisdiction simpliciter to hear one, some or all of the claims being pursued by the applicant in this proceeding.

[19] Dealing first with the applicant’s claim for a divorce, section 3(1) of the Divorce Act clearly provides that a Court in a province has jurisdiction simpliciter to determine a divorce proceeding if either spouse has been ordinarily resident in that province for at least one year immediately preceding the commencement of the proceeding. There is no dispute that the applicant has resided in Toronto, Ontario for more than one year preceding the issuance of this application. The applicant is ordinarily resident in Ontario. As such, Ontario has jurisdiction simpliciter to hear the applicant’s claim for a divorce.

[20] Under section 22(1)(a) of the Children’s Law Reform Act, the Court shall only exercise its jurisdiction to make a parenting or contact order with respect to a child if the child is habitually resident in Ontario as at the commencement of the application. If the child is not habitually resident in Ontario as of that date, the Court may still exercise its jurisdiction to make a parenting or contact order if, inter alia, it is satisfied that the child has a real and substantial connection with Ontario, or that it is appropriate for jurisdiction to be exercised in Ontario on the balance of convenience.

[21] Section 22(2) of the Children’s Law Reform Act defines habitual residence as the place where the child resided in whichever of the following circumstances last occurred:

• with both parents,
• if the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other parent, or
• with a person other than a parent on a permanent basis for a significant period of time.

[22] As at the date of the issuance of this application, Ava was finishing her last year of high school in the Bahamas. However, it was the expectation of both Ava and the parties that she would return to Toronto with the applicant, and that is exactly what happened in or around June 2024. Since then, she has resided in Toronto with the applicant, and is now attending UWO. I have no difficulty concluding that Ava’s habitual residence is Ontario, as she has not resided in Spain with the respondent since September 2022 other than visiting with the respondent in Spain for a short period of time. Moreover, she is habitually present in Ontario with the implicit if not explicit consent of the respondent, and is thus ordinarily resident in Ontario. Accordingly, Ontario has jurisdiction simpliciter to hear the applicant’s claims for decision-making responsibility.

[23] Sections 30 and 31 of the Family Law Act establish obligations upon spouses and parents respectively for spousal and child support. There is no specific residency requirement for either spousal support or child support, and the Family Law Act does not specifically address the issue of jurisdiction simpliciter. Accordingly, as held by the Court of Appeal for Ontario in Naeli v. Ghaeinizadeh, 2013 ONCA 2, the common law test of “real and substantial connection” will apply to determine whether Ontario has jurisdiction over support claims.

[24] In Wang v. Lin, 2013 ONCA 33, the Court of Appeal examined the presumptive factors to establish jurisdiction in a family law proceeding (as opposed to a tort claim under the analysis in Club Resorts Ltd. v. Van Breda, 2012 SCC 1), and stated as follows:

“Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

a) Similarity of the connecting factor with the recognized connecting factors;

b) Treatment of the connecting factor in the case law;

c) Treatment of the connecting factor in statute law; and

d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.”

[25] As I have found that the applicant and Ava are both ordinarily resident in Ontario, on that basis alone there is a real substantial connection to support Ontario having jurisdiction over the applicant’s support claims. My conclusion is buttressed by the fact that Ava is registered for school and extra-curricular activities in Ontario, and most if not all of her associated section 7 expenses are to be incurred in Ontario. Accordingly, Ontario has jurisdiction simpliciter to hear the applicant’s claims for support.

[26] This leaves the applicant’s claims for property/equalization. There is no real and substantial connection between Ontario and the respondent. There is also no real and substantial connection between Ontario and the joint, marital assets of the parties (being the Bahamas property and the net sale proceeds of the Spanish property). The respondent has not been habitually or ordinarily resident in Ontario since 2004 and has only visited Ontario sporadically for leisure or business purposes over the ensuing years.

[27] On its face, Ontario does not appear to have jurisdiction to hear the applicant’s claims for property/equalization.

[28] The applicant seeks to establish Ontario having jurisdiction to deal with the applicant’s claims for property/equalization on the basis of identifying a new presumptive factor (a process contemplated by the Court of Appeal in the Wang decision). She argues that since she is seeking an order in this proceeding that the net sale proceeds of the Spanish property shall stand as security for her spousal and child support claims, such relief is a “debtor/creditor matter that divides value and thus creates an in personam equalization entitlement”. The applicant submits that the disposition of this application will further affect the applicant’s entitlement to support and her in personam equalization entitlement over the net sale proceeds of the Spanish property (and the Bahamas property if necessary).

[29] In my view, the facts of this case do not warrant the creation of a new presumptive connecting factor, as her arguments are too remote from the already established connecting factors and the established jurisprudence.

[30] However, I find that the applicant need not try and establish a new presumptive connecting factor for Ontario to have jurisdiction over her claims for property/equalization. While the applicant’s claims for property/equalization are obviously distinct from her other claims, they are still intertwined with her support claims. A claim for spousal support, while based upon a payor’s income, nevertheless takes into account the complete financial picture of the parties, together and separately. Whether entitlement to spousal support is found to be on a compensatory or non-compensatory basis (or both), the financial situations of a dependent and payor spouses are important inputs to inform the Court’s exercise of discretion in fashioning a proper spousal support remedy.

[31] If a payor is ultimately entitled to most if not all of the equalization calculation, then the dependent is in a much more vulnerable state thereby likely impacting and increasing the need for spousal support. Conversely, if a recipient ends up with most or all of the equalization calculation, then the payor will likely argue that the dependent’s need is in turn less significant.

[32] In order for Ontario to properly adjudicate the applicant’s spousal support claims, in my view there is a sufficient real and substantial connection between Ontario and the applicant’s property/equalization claims in order to properly do justice between the parties in determining those support claims. It is not simply a need to control and decide issues of financial disclosure, but the decisions this Court must make from the information gleaned from the financial disclosure to assess property and equalization issues. Matters such as whether certain property is included/excluded in the net family property made subject to equalization may have profound effects on the ensuing support determinations.

[33] Likewise, claims for child support are often premised upon the potential imputation of income to a payor. For the purpose of deciding whether to impute such income, the Court will almost always know a payor’s financial status—a payor cannot possibly maintain significant financial assets (which come with significant financial expenses) with little to no income. Again the question is not just disclosure, but a need to know the outcome on the property issues as inputs to the determination of both entitlement and quantum of support.

[34] My conclusions find support in the Court of Appeal for Ontario’s decision in Greenglass v. Greenglass, 2010 ONCA 675. In Greenglass, the Court held as follows (my emphasis in bold):

“The first substantive issue the trial judge dealt with in her reasons was that of spousal support. It was only after making her determination with respect to spousal support that she turned her mind to the division of assets.

Section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support. This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun (2006), 2006 SCC 25, para 29.

In Hartshorne v. Hartshorne, 2004 SCC 22, para 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

Here, the trial judge erred in the same way. Mr. Joseph, counsel for Ms. Greenglass, quite properly concedes the error but describes it as a matter of form over substance. He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

As will be seen, in the circumstances of this case, Mr. Joseph is correct. That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.”

[35] It is clear from the Greenglass decision that the Court’s obligation to determine a claim for property/equalization prior to a claim for support is based upon those two remedies being inextricably linked.

[36] From a practical perspective, it is always preferable to avoid a multiplicity of proceedings. Allowing Spain to decide the applicant’s property/equalization claims while her support claims are prosecuted here would lead to that exact result. Of note, the respondent tendered no expert evidence on Spanish family law, and it is thus unknown how the Spanish court would determine any of the claims he wishes to be advanced there by the applicant.

[37] Therefore, once the support claims are properly brought here, the same real and substantial connection supports the resolution here of all property claims as between the parties.

[38] It is true that if Ontario has jurisdiction over the applicant’s claims for property/equalization, section 15 of the Family Law Act would require those property/equalization claims to be determined using the laws of Spain, as section 15 provides that the property rights of spouses are governed by the external law of the place where both spouses had their last common habitual residence. While that could potentially increase both the time and expense necessary to decide the applicant’s claims in Ontario, that fact alone does not stand in the way of a finding that Ontario has jurisdiction to hear all those claims.

[39] Accordingly, for these reasons I find that Ontario does have jurisdiction to hear all of the applicant’s claims in this proceeding, and the respondent’s motion to stay/dismiss this application for want of jurisdiction is dismissed.

Forum Non Conveniens

[40] Even though I have found that Ontario has jurisdiction to hear this application, the respondent is still asking that this Court decline to exercise its jurisdiction over this application as there is more than one forum capable of assuming jurisdiction. To determine the respondent’s request, the Court employs the doctrine of forum non conveniens which allows the Court to decline to exercise its jurisdiction on the basis that there is a clearly more appropriate forum to do so.

[41] The legal and evidentiary onuses lie upon the respondent to demonstrate why Ontario should decline to exercise its jurisdiction and displace Ontario as the forum chosen by the applicant.

[42] The factors to be considered by the Court when deciding whether to apply the doctrine of forum non conveniens may vary depending on the context of a case, but include:

• the locations of parties and witnesses;
• the cost of transferring the case to another jurisdiction or of declining the stay;
• the effect of a transfer on the conduct of the litigation or on related or parallel proceedings;
• the possibility of conflicting judgments;
• problems related to the recognition and enforcement of judgments;
• the relative strengths of the connections of the two parties; and
• any loss of juridical advantage.

[43] Unfortunately, there is very little to no evidence in the respondent’s motion materials to allow this Court to conduct any meaningful assessment of the various factors in support of his request that Ontario decline to exercise its jurisdiction over this application. Other than the respondent residing in Spain and the applicant residing in Ontario (which results in a neutral factor at best), the respondent has not proffered any evidence to explain what witnesses would be necessary at trial, where those witnesses reside, whether he would lose a juridical advantage by not having his claims decided in Spain, or the possibility of any conflicting judgments. I have already found that the avoidance of a multiplicity of proceedings favours the actions being heard by this Court.

[44] As stated above, there is no expert evidence tendered by the respondent relating to the Spanish family law, or legal process. This Court has no idea how decision-making responsibility, child support, spousal support or equalization are considered or decided in Spain, and whether the governing law of Spain differs that of Ontario.

[45] Accordingly, it is not possible to embark upon any analysis of the doctrine of forum non conveniens on record before this Court. For these reasons the balance of the respondent’s motion is dismissed.

Final Considerations

[46] As the respondent’s motion is dismissed, the issue of the applicant’s ex parte motion being heard on its merits is still outstanding. The respondent has yet to attorn to the jurisdiction of Ontario, and that is a decision he still must make.

[47] The time for delivering an Answer has passed, but it was the view of this Court that the respondent’s motion seeking to oust the jurisdiction of Ontario needed to proceed first.

[48] I am therefore ordering that the parties contact the Family Trial Office to schedule a 9:30 am check-in conference with me to discuss next steps. The scheduling of that check-in conference will not act as any attornment on the part of the respondent to Ontario as he still reserves that right. However, whether or not he plans to attorn to the jurisdiction of Ontario is something that needs to be addressed at that check-in conference.

Costs

[49] If the parties cannot agree upon the costs of the respondent’s motion, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:

• The applicant’s costs submissions to be served and filed within 10 business days of the receipt of this Endorsement; and
• The respondent’s responding costs submissions to be served and filed within 10 business days of the receipt of the applicant’s written costs submissions.

Diamond J.

Released: January 31, 2025