



COURT OF APPEAL FOR ONTARIO

CITATION:

de
    Somer v. Martin, 2012 ONCA 535

DATE: 20120810

DOCKET: C55362

Feldman, Gillese and Epstein JJ.A.

BETWEEN

Marc de Somer

Respondent

(Appellant)

and

Isabella Martin

Applicant

(Respondent in Appeal)

W. Douglas R. Beamish, for the appellant

Ella L.J. Bernhard, for the respondent

Heard: June 22, 2012

On appeal from the judgment of Justice Victor Paisley of
    the Superior Court of Justice, dated March 12, 2012.

Epstein J.A.:

OVERVIEW

[1]

This appeal arises out of competing child support orders in two
    jurisdictions  Ontario and Nancy, France.

[2]

On March 11, 2004, OConnell J., on consent, ordered the
    appellant father, Mr. de Somer, to pay child support pursuant to the Canadian
Federal
    Child Support Guidelines
, S.O.R./97-175. The actual amount payable by Mr.
    de Somer has fluctuated over the years, in accordance with changes to his
    income. Currently, Mr. de Somer is paying monthly support in the amount of
    $3,299.00.

[3]

In January 2011, Mr. de Somer brought an application in France
    for a revision of his Ontario-ordered child support obligations. On September
    23, 2011, Justice Sombrin of the High Court of Nancy granted the revision,
    ordering Mr. de Somer to pay monthly child support in the amount of 950.  This
    order remains in effect pending the appeal of the respondent mother to the
    Court of Appeal for Nancy.

[4]

In June 2011, Mr. de Somer brought a motion before the Ontario
    Superior Court for a declaration that France is the proper forum for the
    determination of child support, an order staying the Ontario proceedings and an
    order terminating his support and financial disclosure obligations under
    various Ontario court orders.

[5]

The motion judge dismissed Mr. de Somers motion by order dated
    March 12, 2012, and on April 5, 2012, awarded costs against him, assessed on a
    full indemnity scale, in the amount of $51,190.48.

[6]

Mr. de Somer appeals on the basis that the motion judge erred in
    his determination that Ontario is the more convenient forum.  Mr. de Somer
    challenges the motion judges application of the
forum non conveniens

test and, specifically, claims that he failed to apply the principle of
    comity.

[7]

At the conclusion of the hearing, the appeal was dismissed with
    reasons to follow.  Here are the reasons.

FACTS

[8]

Mr. de Somer and Ms. Martin lived together in Toronto when their
    son Matthieu was born in November of 2003.  The parties separated shortly
    thereafter.  They resolved all issues relevant to their separation on terms set
    out in Minutes of Settlement dated March 11, 2004.

[9]

The agreement gave sole custody of Matthieu to Ms. Martin.  The
    parties inserted several provisions into the Minutes of Settlement to take into
    account their future plans.  First, they explicitly referenced the fact that
    Ms. Martin, who was to have sole custody of their son, would be moving to
    France to live, and that the flexible access given to Mr. de Somer was based on
    his need to travel extensively for work.
Second, they
    identified the Canadian
Federal Child Support Guidelines
as the method
    by which Mr. de Somers child support obligations would be determined.  Third,
    they agreed that they did not want any court to order a change which deviates
    from or overrides the terms of these Minutes of Settlement as they were
    basing their future lives upon [the settlement].


[10]

On the same day as the Minutes of Settlement were signed,
    OConnell J. granted judgment in accordance with the parties agreement.  The
    judgment, applying Guideline support to Mr. de Somers income at that time,
    ordered him to pay monthly child support in the amount of $1778.00.

[11]

Shortly after entering into the settlement, Ms. Martin and
    Matthieu moved to France.  Mr. de Somer remained in Ontario until March of
    2010, when he relocated to Massachusetts.

[12]

Ms. Martin, concerned that Mr. de Somer was not meeting his
    financial disclosure obligations set out in the Minutes of Settlement and related
    judgment, brought a motion in November 2006 for an order requiring production
    of financial information for the years 2005 and 2006.  Once the motion was
    brought, Mr. de Somer consented to an order granting the disclosure sought. 
    However, the motion judge assigned to hear the motion, Wilson J., awarded Ms.
    Martin her costs in the amount of $2000, holding that it should not have been
    necessary for her to have brought the motion.

[13]

In October of 2007, Mr. de Somer brought a motion before the
    Ontario Superior Court for an order terminating his child support obligations
    on the basis that he had no income.  Frank J. dismissed the motion and ordered
    Mr. de Somer to pay support arrears of $28,766.00 and on-going support of $1994
    per month, based on an imputed annual income of $250,000.  The motion judge
    also required Mr. de Somer to pay Ms. Martins costs fixed at $15,000.

[14]

In January 2011, Mr. de Somer initiated the French proceedings
    detailed above.

[15]

On June 13, 2011, Ms. Martin brought a contempt motion, alleging
    that Mr. de Somer had breached his court-ordered disclosure obligations and had
    not paid Guideline child support in amounts commensurate with his income.

[16]

Mr. de Somer responded on June 23, 2011, by bringing a
    cross-motion for a declaration that France was the proper forum for the
    determination of child support, as well as an order staying proceedings in
    Ontario and terminating his Ontario child support and disclosure obligations.

THE MOTION JUDGES REASONS

[17]

In his brief endorsement, after setting out some background
    facts, the motion judge noted that Mr. de Somer had breached his child support
    obligations in the past, quoting passages from the reasons of Frank J.
    culminating in her observation of [Mr. de Somers] failure to recognize the
    significance of and to do what is necessary to comply with court orders.

[18]

The motion judge then turned to the current situation:  Mr. de
    Somer was living in the United States, had an admitted income of more than
    $400,000 U.S. and had brought proceedings in France that resulted in a
    significantly reduced support order.

[19]

Before specifically addressing jurisdiction and the
forum non
    conveniens
test, the motion judge first held that this was not a case of
    forum shopping on the part of Ms. Martin.  In fact, he expressed the view
    that Mr. de Somer likely applied to have his support obligations resolved in
    France to take advantage of the lower amount that that jurisdiction would
    require him to pay.

[20]

The motion judge then turned to the issue before him, the essence
    of which was whether the Ontario court should decline to exercise its
    jurisdiction over the determination of child support in favour of the French
    court.

[21]

The motion judges analysis of which forum was the most
    appropriate for the determination of child support is contained in the
    following portion of his reasons:

Neither party now resides in France. I am not satisfied that a
    court in France is a more convenient or appropriate forum to determine [Mr. de
    Somers] ongoing child support obligation than this court...The parties agreed
    in 2004 that they did not want a court to override the terms of their minutes
    of settlement. [Mr. de Somer] has apparently succeeded in persuading the court
    in France to disregard the Canadian child support guidelines, which the parties
    had agreed were applicable.

[22]

On the basis of this reasoning, the motion judge concluded that
    he was satisfied that [Ms. Martins] preference that the issue of ongoing child
    support should continue to be decided by the Superior Court of Justice should
    be respected.

ISSUES

[23]

As a preliminary matter, Ms. Martin brought a motion to have the
    appeal quashed or stayed on the basis that Mr. de Somer is in default of
    various court orders.

[24]

In
    his appeal, Mr. de Somer submits that the motion judge erred by misapplying the
    doctrine of
forum non conveniens
.

ANALYSIS

Motion to Quash

[25]

Ms. Martin, relying on decisions such as
Dickie v. Dickie
(2006), 78 O.R. (3d) 1 (C.A.), revd 2007 SCC 8, [2007] 1 S.C.R. 346, submitted
    that Mr. de Somer is in breach of child support, costs and disclosure orders of
    the Ontario court, and his appeal should therefore not be heard until his
    breaches are cured.

[26]

In
Dickie
, Laskin J.A. held that the Court of Appeal had
    the discretion to refuse to hear an appeal when the appellant had not cured a
    wilful breach of a court order (at para. 86). This discretion was based on the
    courts power to prevent abuse of process, and it should be exercised where
    necessary to prevent a litigant from impeding the course of justice or
    undermining the courts ability to enforce its own orders (at para. 85). Laskin
    J.A. was in dissent, but, on appeal, his reasoning was adopted by the Supreme
    Court.

[27]

At the outset of the hearing, the panel dismissed Ms. Martins
    motion.  The evidence presented on the motion demonstrated that Mr. de Somer
    was current with his court-ordered support obligations, save for any potential
    amount found owing if and when further disclosure is ordered that warrants an
    increase in support. The only costs award that remained unpaid is the one related
    to the matter under appeal.

[28]

The parties disagreed on whether Mr. de Somer has provided full
    financial disclosure. Mr. de Somer had produced his 2010 and 2011 tax returns
    as well as a stock option certificate awarded in his favour from 2011. Ms.
    Martin alleged that Mr. de Somer had failed to provide details of employer
    pension contributions, while Mr. de Somer maintained that his employer does not
    make contributions to his retirement account. While it may ultimately be found
    that Mr. de Somer must produce more financial information and therefore pay
    more child support under the
Federal Child Support Guidelines
, the end
    result of this dispute was not clear.  What was clear was that the mere
    existence of a debate over whether Mr. de Somer was in breach of his disclosure
    obligations and perhaps, therefore, behind in child support yet to be
    determined, did not come close to amounting to conduct of a nature so as to deprive
    a party of his right to appeal.

Forum Non Conveniens

[29]

The parties agree that both Ontario and France have jurisdiction,
    and therefore, the
forum non conveniens
test should be used to
    determine the most appropriate location for the resolution of their dispute.  In
    the recent decision of
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17,
    343 D.L.R. (4
th
) 577, in which this area of the law was
    comprehensively considered, the Supreme Court held it was not possible to draw
    up an exhaustive list of relevant factors.  However, at para. 110, the court
    identified such factors as including:

·

the locations of parties and witnesses,

·

the cost of transferring the case to another jurisdiction or of
    declining the stay,

·

the impact 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,
    and

·

the relative strengths of the connections of the two parties.

[30]

In order to succeed in this appeal, Mr. de Somer must demonstrate
    that France is clearly more appropriate as the forum for the determination of
    child support:
Van Breda
, at para. 109.

[31]

In this case, several points are pertinent to the analysis.

[32]

First, I attach considerable importance to the parties agreement
    set out in the Minutes of Settlement.  After separation, with the assistance of
    experienced counsel, Mr. de Somer and Ms. Martin explicitly agreed that: 1)
    child support would be determined in accordance with the
Federal Child
    Support Guidelines
, and 2) no court should order a change that deviates
    from or overrides the terms of their agreement.

[33]

Mr. de Somers and Ms. Martins resolve that the Canadian Guideline
    formula be used as a basis for the calculation of child support made sense at
    the time since both parties and young Matthieu then lived in Ontario.  However,
    in my view, the parties specific identification of the Guidelines and the
    additional provision that they did not want any court to interfere with this
    resolution take on additional significance in the context of two facts they
    went out of their way to identify in the Minutes of Settlement: Ms. Martin had
    immediate plans to relocate to France and Mr. de Somers employment could very
    well involve periodic relocation.

[34]

Mr.
    de Somer resists any import being given to the agreement that the
Federal
    Child Support Guidelines

would apply on the basis that Matthieus
    residence in France with different expenses and standard of living has given
    rise to circumstances that are materially different.  He also argues that the
Guidelines

cannot apply, as neither he nor Ms. Martin were living in Canada at the
    time the motion judge determined Ontario to be the more appropriate forum.

[35]

I
    do not accept either of these arguments.

[36]

First,
    in my view, they fly in the face of the specific term in the Minutes of
    Settlement, concerning which Mr. de Somer mounts no argument, that he and Ms.
    Martin did not want any court to order a change which deviates from or overrides
    the terms of these Minutes of Settlement as they were basing their future
    lives upon [the settlement].

[37]

Second,
    in my view, they are based on a misreading of the agreement concerning the
    application of the Guidelines.  The parties contractually agreed upon a
    specific formula for the determination of child support - the formula set out
    in the Canadian
Federal Child Support Guidelines
. The agreement does
    not say that the legislation applies to the determination of child support.  It
    follows that the wording of the statute, in terms of its legislated
    jurisdiction, is not relevant.

[38]

Mr.
    de Somer further argues that, while he agreed that the
Federal Child
    Support Guidelines
would govern, they could just as well be applied by a
    French court. However, his conduct belies this argument. In his application to
    the French court, Mr. de Somer did not seek to have the court apply the
    Guidelines.  He relied on French law.  I suggest, as did the motion judge, that
    he did so for reasons that should be obvious  the application of French law
    resulted in an order providing for significantly reduced child support.

[39]

Finally,
    Mr. de Somer contends that several factors favour France as the most convenient
    forum, and the motion judge erred in not giving them more weight. Specifically,
    he argues that Ms. Martin was living in France at the time of the French
    judgment and had been living there since 2004. Furthermore, key witnesses,
    particularly Ms. Martin, reside in France.

[40]

The
    fresh evidence provides a complete response to these points.

[41]

On
    appeal, Ms. Martin brought a motion to introduce fresh evidence disclosing her
    pending move to Montreal. In addition to her affidavit evidence, Ms. Martin
    produced an employment agreement she has entered into with a Montreal employer
    identifying a start date between July 16 and August 1, 2012, and a letter from
    a Montreal school admitting Matthieu for the 2012-2013 academic year.

[42]

I
    would admit the fresh evidence as it satisfies the requirements set out in
R.
    v. Palmer
, [1980] 1 S.C.R. 759; see also
Sengmueller
    v. Sengmueller

(1994), 17 O.R. (3d) 208

(C.A.)
.

[43]

As
    a result, the location of the parties and witnesses does not favour France.

[44]

This
    takes me to the issue of comity upon which Mr. de Somer heavily relies.

[45]

It is always important to show respect for an order made by a
    court in another jurisdiction. However, in this case it was Mr. de Somer
    himself who created the conflict by bringing proceedings in France from which
    only he stood to benefit. Given these circumstances, I have difficulty giving
    much weight to this factor.

[46]

My conclusion that there is no reason to interfere with the
    motion judges conclusion that Ontario is the most appropriate forum for the
    determination of Mr. de Somers obligations to provide financial support for
    his son, Matthieu, can be succinctly summarized: Staying the Ontario
    proceedings in favour of those in France would allow Mr. de Somer to resile
    from the clear terms of the agreement he freely entered into with Ms. Martin
    for their benefit and for the benefit of their son.  This should not be
    sanctioned by this court without compelling reasons.  Here, there are none. 
    Furthermore, and in any event, the other factors identified above, relevant to
    the test for the determination of the most appropriate forum for the resolution
    of child support, unequivocally lead to the conclusion that Ontario is the
    appropriate forum.


DISPOSITION

[47]

I
    would therefore dismiss the appeal with costs to Ms. Martin, as agreed, in the
    amount of $24,000 inclusive of disbursements and HST.

Released:

KF                                                   Gloria
    Epstein J.A.

AUG 10 2012                                   I agree
    K. Feldman J.A.

I
    agree E.E. Gillese J.A.


