de Somer v. Martin – Child Support Guidelines prevail in dispute over child support orders in Canada and France

This case involves an appeal arising out of competing child support orders made in Canada and France.

Background

The parties separated shortly after the birth of their child, having previously lived together for a brief time. They resolved all issues via Minutes of Settlement, which awarded sole custody of the child to his mother. The Minutes explicitly contemplated the mother’s impending move to France with the child and granted liberal and flexible access to the father.

In addition, the Minutes identified the Canadian Child Support Guidelines as the method for determining the quantum of the father’s child support obligation, and further declared that no other court should order a change which deviated from or overrode the terms of the agreement. On the same day that the Minutes were signed, O’Connell J. granted judgment in accordance with the parties’ agreement and the father was ordered to pay child support pursuant to the federal Child Support Guidelines.

In October 2007, the father brought a motion before the Ontario court for an order terminating his child support obligation on the basis that he had no income. This motion was dismissed and the father was ordered to pay support arrears and costs. Subsequently, in January 2011, the father initiated proceedings in France for variation of his Ontario-ordered child support obligation. The French court granted the variation and lowered the father’s child support obligation.

In June 2011, the mother brought a contempt motion before the Ontario court, alleging that the father had breached his child support and disclosure obligations. The father in turn brought a cross-motion for a declaration that France was the appropriate forum for determining child support. In addition, the father sought an order staying the Ontario proceedings and terminating his child support and disclosure obligations in Ontario.

Lower Court Holdings

In his reasons, the motion judge focused on whether the Ontario court should decline to exercise its jurisdiction in favour of the French court. Deciding against extending such deference in this particular case, the judge observed that neither party lived in France any longer and that the parties had explicitly agreed to submit to the Guidelines on the issue of child support. As such, the judge found that Ontario was the more appropriate forum for determining the issue of child support and dismissed the motion, ordering the father to pay costs on a full indemnity scale.

The father appealed.

Analysis

In determining whether the motion judge erred in applying the test for forum non conveniens (i.e. whether France or Canada was clearly the more appropriate forum to determine the child support issue), the Court of Appeal outlined factors to be considered in such an analysis, as set out in Van Breda v. Village Resorts Ltd.

Among other factors bearing consideration, the court listed the following:

  • The locations of parties and witnesses
  • The possibility of conflicting judgments, and
  • Problems relating to the recognition and enforcement of judgments

Having regard to the mother’s pending move from France to Montreal, the court found that the location of the parties and witnesses did not favour France, as argued by the father.

In addition, the court attached considerable significance to the parties’ Minutes of Settlement, particularly their explicit commitment to use of the Canadian Child Support Guidelines where it was clearly anticipated that the mother and child would be resident in France in the very immediate future. According to the court’s reasons, identifying France as the clearly more appropriate forum would “fly in the face” of the parties’ agreement. Moreover, favouring the jurisdiction of France would essentially permit the father to renege on an agreement that he freely entered into. The court found that this should not be permitted without compelling reasons, of which there were none in this case.

Finally, the Court of Appeal took pains to address the issue of comity between states as raised by the father. Specifically, the court acknowledged that while it is always important to show respect for the orders of courts in other jurisdictions, in this case the father was the cause of the conflicting orders as he brought proceedings in France from which only he stood to benefit.

On the basis of this analysis, the Court of Appeal held that the motions judge did not err in determining Ontario to be the most appropriate forum for the determination of child support. The father’s appeal was thereby dismissed with costs.

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