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Made in China? Don’t worry the Ontario Court will still Order Child Support

Made in China?  Don’t worry the Ontario Court will still Order Child Support

It being Father’s Day this weekend, I thought I would write about a case in which an Ontario man who took frequent business trips abroad – and who was surprised to learn that he had fathered a child during one of them – was unsuccessful at having the child support hearing heard in another country, instead of here.

The man, who was 42 and married with three children, had always lived in Ontario (and continues to do so). In his self-employed capacity he travelled to China about seven times per year on business.

Apparently, however, he had time for at least some non-business activities on these trips as well. During one of them, he met the 29-year old woman, who had been born and raised in China. (And their stories diverge as to the nature of their subsequent relationship: she claimed they met at a bar where she worked, that he told her he was not married, and that their relationship was a romantic one. He, on the other hand, claimed that the relationship was purely sexual, and in fact he had paid her for sex.)

The woman gave birth in China to a daughter in August of 2011; the man initially disavowed paternity and encouraged her to have an abortion. Subsequent DNA testing established that the man was indeed the baby’s father.

The woman, who currently lives in China with the child, brought an application to the Ontario court for child support.

The man countered with a motion to dismiss, on the basis that the Ontario court had no jurisdiction to entertain the application, and that in any event, it was not a convenient forum in which to hear it. Instead, he claimed that since mother and child both lived in China, and since neither of them had any connection to Ontario, the matter should be heard by a Chinese court instead.

As background to the law in such cases: the potential jurisdiction of the Ontario court is founded on the simple fact that the man is present, and is ordinarily resident in this province. Legally, that fact alone gives the Ontario court the right to hear a child support matter.

However, the Ontario court can still consider whether – notwithstanding this automatic jurisdiction – it should nonetheless exercise its discretion to allow the matter heard elsewhere, on the basis that Ontario is not a convenient forum in the all the circumstances.

In making this determination, the court is entitled to consider:

• the location of the majority of the parties and of the key witnesses;

• any contractual provisions that specify the applicable law or grant jurisdiction to a decision-maker;

• geographical factors;

• the desire to avoid a multiplicity of proceedings;

• the applicable law and its weight, as compared to the factual questions that need to be decided;

• whether, if the Ontario court declines to hear the matter, it would deprive the mother of a legitimate advantage that she would otherwise be entitled to by having the matter heard in the province.

With this in mind, the man claimed that in all of the circumstances and applying these legal tests, the matter should be heard in China, not Ontario.

The court disagreed. First of all, after weighing all of these factors it honed in on the fact that if the matter were heard in Ontario, it would be considerably easier to enforce an order to pay child support against the man, when one was granted. Conversely, it was uncertain whether a Chinese order for child support was enforceable here at all.

Secondly, there were no multiple, potentially-competing claims in the works (e.g. for child custody or access); at this point the mother was claiming only for child support, and nothing else.
Finally, the man – who bore the legal onus to show that China was more convenient – simply did not satisfy that burden in this case. In fact, if the matter were heard in Ontario it would be highly convenient for the man: he would not have to travel, he would have any key witnesses available locally, and he would not have to incur the costs to fly to China. Any inconvenience arising from an Ontario hearing would actually be suffered by the woman (who was willing to bear it).

In the end, the Ontario court decided that it had the jurisdiction to entertain a claim for child support. A hearing would be scheduled.

For the full text of the decision, see:

Long v. Seelman, 2012 ONSC 1342   http://canlii.ca/t/fqbwh

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

2 Comments
  1. It’s worth noting though that this case was heard before the SCC released its decision in Van Breda, though I don’t think it would have changed the result significantly.

    June 21, 2012
    • Good point Omar. That’s interesting. I am going to take another look at that SCC decision. Thanks

      June 21, 2012

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