De Somer v. Martin: Child support orders made in two countries – which prevails?
Family Law Issue
The Appeal in the family law case of de Somer v. Martin arises out of competing child support orders made in two jurisdictions, Ontario and Nancy, France.
Facts
In this family law case, the parties lived together in Toronto when their son was born. Shortly afterwards, the parties separated. They resolved all of the issues relating to family law.
The parties' Agreement specifically made mention of the following:
a. Ms. Martin, who was to have custody of the child, would be moving to France.
b. The Canadian Federal Child Support Guidelines was to be used in order to determine Mr. de Somer's child support obligations.
c. The parties did not want any court to change the terms of the Minutes of Settlement.
Overview of Lower Court Decision
In 2004, O'Connell J. on consent of the Mr. de Somer and Ms. Martin, granted judgment in accordance with the parties' agreement and ordered that the father, Mr. de Somer, pay child support in accordance with the Federal Child Support Guidelines.
In 2007, Mr. de Somer brought a motion before the Ontario Superior Court for an order terminating his child support obligation in his family law proceedings on the basis that he had no income. The motion judge dismissed this motion.
In January of 2011, Mr. de Somer brought an Application in France to revise the above-noted Ontario order. Justice Sombrin of the High Court of Nancy granted the revision of child support.
Mr. de Somer subsequently brought a motion before the Ontario Superior Court for a declaration that France was the proper forum to make a determination for child support, an order staying the proceeding in Ontario and an order ending his support and related obligations as outlined in the various Ontario court orders. The motion judge, among other things, dismissed this motion.
Mr. de Somer appealed the motion judge's decision.
Conclusion & Analysis of the Court of Appeal
Mr. de Somer's Appeal was ultimately dismissed.
The Court of Appeal applied the forum non conveniens test. In other words, the Court looked at whether France is "clearly the most appropriate" forum for the determination of child support.
The Court applied the following non-exhaustive factors applicable to the forum non conveniens test as outlined by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda to make this determination:
a. the location of the parties and witnesses;
b. the cost of transferring the case to another jurisdiction; and,
c. issues related to recognizing and enforcing judgments.
The Court of Appeal placed significant weight on the parties' terms of agreement as outlined in the Minutes of Settlement, which was executed with the help of experienced lawyers.
Furthermore, while Mr. de Somer argued that the French courts could apply the Federal Child Support Guidelines, his previous behaviour clearly illustrated that he did not seek to have the French court apply these Guidelines. In fact, the order from the French court provided for a significantly reduced quantum of child support.
The Court of Appeal then addressed the issue of comity (or the need to show respect for an order made by another jurisdiction). The Court did not give significant weight to this factor given that Mr. de Somer brought an Application in France in order to reduce his child support obligation only for the benefit of himself.
In paragraph 46, the Court summarized its position as follows:
"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."
