Timoshchenko v Timoshchenko, 2012 ABQB 200

Court of Queen ’ s Bench of Alberta Citation: Timoshchenko v Timoshchenko, 2012 ABQB 200 Date: 20120326 Docket: FL03 30078 Registry: Edmonton Between: Nataliya Timoshchenko Applicant - and - Alexander Timoshchenko, also known as Oleksander Sergiovich Timoshchenko; also known as Oleksandr Timoschenko; also known as Aleksandr Sergeevich Timoshchenko Respondent Corrected judgment: A corrigendum was issued on March 28, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Don J. Manderscheid _______________________________________________________ Introduction

[ 1 ] This is an application by Nataliya Timoshchenko (the “Applicant” or “Mother”) brought under Alberta Family Law Act , SA 2003, c F-4.5 ( FLA ) against Alexander Timoshchenko (the “Respondent” or “Father”) seeking relief in the nature of an order for: payment of child support, including special expenses; imputing income; dispensing with Father’s consent to travel outside of Ukraine with their child; and dispensing with Father’s consent to any and all medical treatment for their child who resides in Ukraine. Facts [ 2 ] The Applicant/Mother is a citizen of Ukraine and resides in Kiev (or Kyiv), Ukraine.

The Respondent/Father holds dual Ukrainian and Canadian citizenship and resides in Edmonton, Alberta, Canada. On or about September 6, 2007, the Mother and the Father began living together in Kiev, Ukraine and were later married on October 6, 2007. The only child of the marriage is their son, who was born on January 2009 in Ukraine (the “Child”). [ 3 ] During the marriage, both the Mother and the Father resided in Ukraine with the exception of approximately 2.5 months per year when the Father worked in Canada.

They separated on December 1, 2009, and subsequently, the Mother sought a divorce in Ukraine. [ 4 ] On January 17, 2010, the Father attorned to the jurisdiction of Ukraine to grant the divorce and consented to the divorce. On February 2, 2010 the divorce was granted in Ukraine. The Father has resided in Edmonton, Alberta, Canada since approximately February 2010. [ 5 ] The Child was born with fused kidneys, a condition known as horseshoe kidney or renal fusion which may later cause urinary tract problems as well as problems in urine secretion.

The Mother plans to take the Child to Germany for medical examination and seek possible treatment. [ 6 ] There is currently no order for child support in Ukraine or Canada. However, the Father states that he voluntarily undertook to the Ukranian Court to provide financial, moral and physical support for the Child and also sought the reservation of his rights as father to the Child in that court.

The Mother disputes the description of this undertaking as child support. [ 7 ] The Mother commenced her action in the Judicial District of Fort McMurray on April 27, 2011, with an application supported by an affidavit sworn on March 10, 2011. The Father opposed the application and filed an affidavit in support, sworn on June 27, 2011.

He also deposed two additional affidavits on December 7, 2011 and February 1, 2012. [ 8 ] On June 28, 2011, the Mother’s application was heard by Hughes, J., who, at the request of the Father, ordered that the action be transferred to the Judicial District of Edmonton; and directed that the issue of jurisdiction “as well as the balance of the [a]pplicant’s application” be determined at a special chambers hearing.

By agreement between counsel, the special chambers application and being the within application was scheduled for February 14, 2012. [ 9 ] On December 8, 2011, the Mother made an application for disclosure of financial information before Crighton J. The application was granted and an Order was issued directing the Father to produce a list of documents for financial disclosure purposes. Issues [ 10 ] The issues for determination in this application are:

1. Where is the proper jurisdiction and forum for the determination of the question of child support payment in this matter? 2. What is the appropriate amount of child support and special expenses? 3. Does the Court have the jurisdiction to dispense with the Father's consent for the Child to travel outside of Ukraine? 4. Does the Court have the jurisdiction to dispense with the Father's consent to any and all medical treatment for the Child? Parties positions Issue 1. Where is the proper jurisdiction and forum for the determination of the question of child support payment in this matter?

The Mother ’s Submissions [ 11 ] The Applicant/Mother submits that Alberta is the forum conveniens for the determination of the question of child support payment in this case. She states that the only way she can ensure the payment of child support by the Father is by bringing an application in Alberta. In this respect, she points to the fact that the Father resides in Alberta, earns his income and owns property located in this jurisdiction. [ 12 ] She further takes the position that a court order from Ukraine would not be enforceable in Alberta.

This is she argues given the fact that the Alberta Interjurisdictional Support Orders Act , SA 2002, c I-3.5 ( ISOA ) provides for enforcement of child support orders from various reciprocating jurisdictions, and Ukraine is not a reciprocating jurisdiction under that statute. The Mother contends that if she obtains a Ukrainian Child Support Order, she would be unable to compel the Father to pay if he does not comply voluntarily. [ 13 ] The Mother disputes the statement by the Father (Affidavit of June 27, 2011, para. 8) that he entered into an agreement with her regarding child support.

She argues that it would be inaccurate for the Father to represent his consent to the divorce proceedings in Ukraine, where he undertook to provide the Child with “financial, moral and physical support and participate in his bringing up [sic]”, as a written agreement.

She indicates that the document does not state any specific amount of child support. [ 14 ] Further she notes that aside from the lack of evidence from the Father in support of the existence of a child support agreement, the statute under which this application is brought provides that an agreement does not preclude a person from applying for child support: FLA , s 53(2).

Furthermore, she submits that the FLA has no residency requirement and as such, her application is properly before this Court. [ 15 ] In her submissions, the Mother notes that the facts in A G v L S , 2005 ABQB 462 are similar to the present case. In that case, the applicant mother and the respondent father had a brief relationship while he was on a trip to Kazakhstan and while there the parties had a child. The mother lived with the child in the Republic of Kazakhstan (which is not a reciprocating jurisdiction under the ISOA ) where she obtained an order for child support.

In an attempt to enforce the child support in Alberta, she filed a claim against the father, who was a resident of Alberta. The father in turn filed a statement of defence and acknowledged paternity. Sullivan J., found that the father had attorned to the jurisdiction and held that Alberta had jurisdiction to deal with the matter of child support.

He awarded child support under the law in Alberta and ruled that the court order from Kazakhstan was not enforceable. [ 16 ] The Mother notes that the Alberta Court of Appeal later confirmed the chambers judge’s decision on the issue of jurisdiction in A G v L S , 2006 ABCA 311 at para. 15 , 397 AR 296 where Hunt J.A. (for the Court of Appeal) stated:

We agree with the conclusion of the chambers judge that the Alberta courts have jurisdiction to make a support order in this case. Anapplication for child support is an action in personam: Kasprzyk v Burks (2005), (ON SC), 15 R.F.L. (6th) 221 atpara. 12 (Ont.S.C.), 136 A.C.W.S. (3d) 1097; Prichici v. Prichici (2005), (ON SC), 14 R.F.L. (6th) 425 at para.27(Ont. S.C.), 139 A.C.W.S. (3d) 281; P.(L.) v. E.(G.) (1990), (AB CJ), 108 A.R. 125 (Alta. Prov. Ct.) at para. 54.

Inpersonam jurisdiction simpliciter can be exercised based on a defendant’s submission by agreement or attornment, his ordinary residencein the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum: Castel & Walker,Canadian Conflict of Laws, 6th ed. (Markham, Ont.: Lexis Nexis Canada Inc., 2006) at 11-1. Jurisdiction simpliciter is present here. The Mother submits that the facts in A G v L S are similar to the present case and urges this Court to come to the same conclusion on theissue of jurisdiction.

The Father’s Submissions [17] The Father argues that A G v L S is distinguishable from the present case given that the Alberta Court of Appeal’s decisionwas made in the context of the facts in that case and based on a now repealed Parentage and Maintenance Act, RSA 2000, c P-1.

Hecontends that the Court of Appeal did not say that Alberta should exercise jurisdiction to make a child support order in all cases. [18] He submits that the most convenient forum should be determined on the basis of the test set out in United Oilseed ProductsLtd v Royal Bank of Canada, 1988 ABCA 207 at para. 33, where Stevenson, J.A. stated that: 1. The test to be applied in all cases where there is an issue of determining the appropriate forum, is that of forum conveniens, theforum which is more suitable for the ends of justice. 2.

Where a forum possesses jurisdiction over a defendant, as of right, the defendant must show that there is another available forumwhich is clearly or distinctly more suitable. 3. Where the jurisdiction does not exist as of right, the same burden rests on the party seeking to establish jurisdiction (typicallyservice ex juris). 4.

While the over all burden is as stated, the party alleging an advantage or disadvantage must establish it. [19] The Father indicates that he agrees that the list of several factors set out in Sun v Guilfoile, 2011 ONSC 1685 at para. 77should be considered in determining the forum conveniens. These factors include: 1. The location of the majority of the parties. 2. The location of key witnesses and evidence. 3. Contractual provisions that specify applicable law or accord jurisdiction. 4. The avoidance of a multiplicity of proceedings. 5.

The applicable law and its weight in comparison to the factual questions to be decided.

6. Geographical factors suggesting the natural forum. 7. Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court. [ 20 ] He submits that Ukraine is the most convenient forum for the determination of the child support issue in the case at bar. The Father for the Child submits that the Child resides in Ukraine and the Father’s parental rights are best protected there. [ 21 ] The Respondent Father states that the following factors support his position that Ukraine is the forum conveniens : 1.

The Mother sought a divorce in Ukraine and the Father attorned to the Ukrainian Court’s jurisdiction for the divorce and corollary issues including child support and access to the Child. 2. The evidence regarding the costs of raising the Child and the Child’s special expenses is in Ukraine. 3. The Mother’s evidence is in Ukrainian. 4. The conflict in evidence between the parties, including the characterization of the money the Father has been sending to the Mother, can only be resolved by courts in Ukraine. 5.

Due to the Child’s residence in Ukraine, only the Ukrainian Courts would have jurisdiction to make orders with respect to consent to travel and medical treatment; 6. In respect of the Father’s desire to protect his parental rights, the Ukrainian courts have jurisdiction over the Child because he was born in Ukraine and has always resided in Ukraine; and 7. An order from Alberta Court granting the Father parental rights would not be enforceable in Ukraine.

Analysis [ 22 ] First and foremost, this Court needs to decide whether it has the jurisdiction to hear and determine the application for child support commenced by the Mother in Alberta. Once that is determined, the issue of forum non conveniens will be considered.

Where the applicant selects a jurisdiction that exists “as of right” in the sense that the respondent resides there, the onus of proving that another jurisdiction is the convenient one falls on the respondent: Prichici at para. 27. [ 23 ] The courts have held that an application for child support is an action in personam : A G v L S at para. 15; Kasprzyk at para. 12 ; and Prichici at para. 27 .

And that in personam jurisdiction simpliciter can be exercised based on a defendant’s submission by agreement or attornment, his ordinary residence in the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum: A G v L S at para. 15. [ 24 ] The evidence before me demonstrates that the Respondent in this case ordinarily resides in Edmonton, Alberta since approximately February of 2010. He filed documents in this Court opposing the application/action of the Mother, commenced under the FLA in this jurisdiction for child support which is an in personam action.

The subject matter of the action is, inter alia , an application by

the Mother for the payment of child support by the Respondent Father, who lives and works in Alberta, for the only child of the marriagebetween both parties. [25] Based on the facts as related above, it is my view that the requirements for the exercise of in personam jurisdiction by thisCourt are present in this case. I therefore conclude that the Alberta Courts have jurisdiction to make a support order in this matter. [26] That conclusion however is not the end of the analysis.

Although I have concluded that Alberta possesses jurisdiction over theRespondent “as of right”, the next question for me to consider is whether Alberta or Ukraine is the most convenient forum to adjudicatethe issue(s)? In other words, is Ukraine or Alberta the forum conveniens?

In answering this question, I am mindful of the statement bythe Supreme Court of Canada in Amchem Products Inc v British Columbia (Workers’ Compensation Board), (SCC),[1993] 1 SCR 897 at para. 21 (QL), 102 DLR (4th) 96 that: . . .The choice of the appropriate forum is ... to be made on the basis of factors designed to ensure, if possible, that the action is tried inthe jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage to one of thelitigants at the expense of others in a jurisdiction that is otherwise inappropriate ... [T]here will be cases in which the best that can beachieved is to select an appropriate forum.

Often there is no one forum that is clearly more appropriate than others. [27] In addition to the jurisprudence referred to by both parties in the present case, I note that in Somji v Somji, 2001 ABQB 665 atpara. 24, 292 AR 337, Lee, J., stated that the factors to be considered in determining the most convenient forum are at para. 25: (

a) Where each party resides; (

b) Where each party carries on business; (

c) Where the cause of action arose; (

d) Where the loss or damage occurred; (

e) Any juridical advantage to the Plaintiff in this jurisdiction; (

f) Any juridical disadvantage to the Defendant in this jurisdiction; (

g) Convenience or inconvenience to potential witnesses; (

h) Cost of conducting the litigation in this jurisdiction; (

i) Applicable substantive law; and (

j) Difficulty in proving foreign law, if necessary. See also Dumont v Dumont, 2009 ABQB 764 at para. 23. [28] In my opinion, the factors that appear to favour Ukraine as the forum are as follows: (

a) The Mother and the Child reside in Ukraine and are citizens of Ukraine. (

b) The Mother works as a dentist and is employed at the Faculty of Dentistry in a University in the Ukraine, (Applicant’s Affidavitof March 10, 2011, para. 19). (

c) The Mother sought and was granted a divorce in Ukraine and the Father attorned to the Ukrainian Court’s jurisdiction. (

d) The Child was born in Ukraine and is being raised in Ukraine and logically the day to day costs of raising the Child (i.e.

section 3

expenses) and the incurring of related special expenses (i.e.

section 7 expenses) is in Ukraine. As such, the cause of action arose in Ukraine. (

e) There are no apparent juridical disadvantages to either party in Ukraine, save the difficulty that may arise in the process of enforcing an Alberta court support order. (

f) Because most of the potential witnesses live in Ukraine, it would be more convenient for them to give evidence in Ukraine with respect to issues that are disputed by parties in this application, for instance: resolving the conflict in evidence between the parties regarding the characterization of the money the Father has been sending to the Mother either as repayment of debts or as child support; and determining the existence and effect of an agreement or undertaking regarding the provision of “financial, moral and physical support and participate in his bringing up [sic]” for the Child. (

g) The cost of conducting the litigation or hearing in Ukraine would be comparably less. At a point, the Father’s counsel was allegedly advised by the Mother’s counsel that the Father will have to fly the Mother to Canada for questioning on her Affidavit. Further, it appears the Mother’s evidence would be primarily in the Ukrainian language. There is a considerable number of relevant and material documents written in Ukrainian that may require translations in another jurisdiction (with the attendant risk and problem of accurate translation). (

h) There is no evidence before me that the substantive law relating to child support in Ukraine is not applicable. The Mother’s concern is with enforcing a Ukrainian court’s support order that emanates from the substantive law. Further, the substantive law applicable to the issue of consent to travel and medical treatment for the Child is that of Ukraine since the Child is a resident and citizen of Ukraine. The Ukrainian courts have the jurisdiction to administer that legal regime. (

i) The issue of proving foreign law would not arise if the application/hearing is conducted in Ukraine. The Ukrainian courts would have no difficulty in dealing with the parties’ conflicting understanding and

interpretations of Ukrainian law on child support, parental, custody and access rights as raised by the respondent Father (Affidavit of February 1, 2012, paras. 3-5). [ 29 ] The factors that support Alberta as the forum include the following: (

a) The Father resides in Alberta and earns his income in this jurisdiction as a self- employed construction contractor, carrying on business through a registered corporation. The Father disputes the ownership of any land in Canada (Respondent’s Affidavit of June 27, 2011, para. 5). (

b) There is juridical advantage to the applicant Mother in Alberta in the sense that she would be able to enforce a child support order obtained in this jurisdiction against the Father.

This advantage is significant because if the Mother obtains a child support order from a Ukrainian court, it would not be enforceable in Alberta since Ukraine is not a reciprocating jurisdiction under Alberta’s ISOA which governs enforcement of child support orders from various reciprocating jurisdictions. [ 30 ] Based on my consideration of the factors listed above, I am of the view that those in favour of selecting Ukraine as the forum conveniens outweigh the factors in favour of Alberta.

Accordingly, Ukraine is the jurisdiction that has the closest connection with this action/application and the parties. [ 31 ] The major factor that supports the retention of jurisdiction by Alberta is the juridical advantage to the Mother as she would be able to easily enforce in this jurisdiction a support order issued by this Court.

As previously stated, while a support order from a Ukrainian court is not enforceable in this jurisdiction since Ukraine and Alberta are not reciprocating jurisdictions under the ISOA , I note that the Respondent Father deposed in an affidavit stating that he “will continue to pay child support for [his] son” (Respondent’s Affidavit of February 1, 2012). Furthermore, from the date of separation the Respondent Father has made and continues to make payments to the Mother on the basis that such payments are for child support of the Child.

I am therefore satisfied that these factors are indicative of a realistic assurance to this Court and the Mother that the Father will continue to voluntarily pay child support and as such,

this should effectively alleviate the Mother’s concerns in this regard. I deal with the Father’s failure to continue with his parenting obligation below in my discussion of the child support issue. Conclusion on Issue 1 - Jurisdiction [ 32 ] In the result, I declare that Ukraine is the most appropriate and convenient forum that is “more suitable for the ends of justice” in dealing with the issues of child support, parental, custody and access rights in this case. Issue 2.

What is the appropriate amount of child support and special expenses? [ 33 ] If I am in error in declaring Ukraine as the forum conveniens , I consider below what this Court would have awarded as the appropriate amount of child support and special expenses in the present case, if it had assumed jurisdiction. The Mother ’s Submissions [ 34 ] The Mother notes that the Father admits parenting and thus has an obligation to support the Child under the FLA , s 49.

She submits that the appropriate amount of support in this case should be determined on the basis of the Alberta Child Support Guidelines , Alta Reg 147/2005 ( Child Support Guidelines ) since there are no special circumstances warranting any deviation from it. She notes that the Father’s guideline income in 2010 was $22,319.00 with the payable guideline amount of $191.11. She contends that the Father currently earns income from his business and has failed to provide comprehensive financial disclosure as ordered by the Court.

That the failure to disclose requires the Court to impute an income: Child Support Guidelines , s 19(1)(f).

In her estimation, the Father’s current income is in excess of $100,000 per year (Applicant’s Affidavit of March 10, 2011, para. 18). [ 35 ] It is the Mother’s position that she has not been receiving any child support since the date of separation (September 6, 2007) and that the money transfers made by the Father to her in Ukraine were not child support payments but payments made towards business debts that she is owed to her by the Father. [ 36 ] The Mother states that the Child was born with special medical needs (fused kidneys - “horseshoe kidney” or “renal fusion”).

That she spends approximately $700.00 per month on the Child’s special or extraordinary expenses (i.e. s 7 expenses) which include regular medical check-ups, a special diet and vitamin treatment, massage treatment and a nanny (in order to enable her to work). Further, the Mother states that in order to seek a medical examination and treatment for the Child she plans to travel with him to Germany.

She says that her income in Ukraine is approximately $12,000.00 per year. [ 37 ] The Mother seeks an order that the Father be made to pay the proportionate share of the special expenses based on an imputed income for the Father’s 2010 income amounting to approximately a two thirds’ share. The Father ’s Submissions [ 38 ] The Father submits that he has been supporting the Child and will continue to do so.

He disputes the allegations that he owes any debt to the Mother or a company she owns; and that the money transfers he made to the Mother in Ukraine were in fulfilment of his parenting obligation to support the Child. He denies the allegation that he is able to earn in excess of $100,000 per year.

[ 39 ] He submits that the Child Support Guidelines should not be applied to children living in foreign jurisdictions.

That the cost of raising a child within a particular jurisdiction are relevant to the amount of child support payable; and in this case the Mother has failed to introduce any evidence on the costs of raising a child in Ukraine. [ 40 ] The Father disputes the legitimacy of the special expenses that the Mother claims and contends that he recognizes some of the signatures on the receipts provided by the Mother as those of her classmates or colleagues from the Faculty of Dentistry where the Mother works (Respondent’s Affidavit of December 7, 2011, para. 5). [ 41 ] The Father contests the Mother’s claim that she earns an income of approximately $12,000.00 per year as a dentist because there is no documentation to support that assertion.

That the Mother’s claim about her income is especially doubtful given the fact that in her affidavit she deposed that she owns a company and that her company is owed $90,000 by the Father. Analysis [ 42 ] Based on the evidence and statement before me that the Father is willing to continue to support the Child, the outstanding issues for determination relate to the amount of s 3 expenses and s 7 expenses that he should pay. [ 43 ] This Court would generally apply the Child Support Guidelines to determine the support amount for a child ordinarily resident in Alberta, Canada.

However, the Child resides in Ukraine and this factor unavoidably raises the question whether it is appropriate to use the Guidelines in the present case.

In this respect, I observe that the Courts have noted that “the Child Support Guidelines developed in Canada relate to Canadian costs and Canadian tax rates and the table amounts may not be an appropriate standard to apply” in circumstances where the child’s expenses are incurred in a foreign jurisdiction: Kasprzyk at para. 16 . [ 44 ] Nevertheless, I am of the view that were this Court to assume jurisdiction it would have applied the Guidelines in this instance to determine the s 3 expenses portion of the amount of child support to be awarded.

This conclusion is based on practical expedience, absence of evidence on the costs of raising a child in Ukraine (from the Mother, on whom lies the onus) and the best interests of the child. Consequently, this Court would have ordered the Father to pay the Guideline amount of $191.11 calculating with the Father’s guideline income of $22,319.00 in 2010 as shown on his Notice of Assessment from the Canada Revenue Agency (Respondent’s Affidavit of June 27, 2011, para. 4, Exhibit “B”).

There is no evidence before me to support the Mother’s request that this Court should impute an income in excess of $100,000 per year to the Father. [ 45 ] With respect to the s 7 special expenses, if this Court had assumed jurisdiction it would have been necessary for it to consider further evidence from both parties in order to resolve the conflicting positions and arguments relating to contested evidence.

For instance, the Mother introduced evidence in the form of receipts for special expenses and the Father contests that evidence saying that the signatures on the receipts are those of the Mother’s classmates or colleagues. In my view, it would be more convenient and less expensive for both parties to adduce relevant and required evidence on this issue in Ukraine as opposed to Alberta. Conclusion on Issue 2 - Child Support and Special Expenses [ 46 ] I direct the Mother to seek child support and special expenses in Ukraine.

If the enforcement of a support order obtained from the Ukrainian Court pursuant to this direction subsequently becomes problematic from an enforcement perspective or the Respondent Father fails to continue the voluntary payment of child support in an amount which reflects his obligations as if he were ordered to do so by this Court, the Mother is at liberty to come back to this Court for further direction and consideration. [ 47 ] In the interim, leave is hereby granted for the Mother to seek reconsideration and further direction from the Alberta Court of Queen’s Bench in the event of any material change in circumstances relative to the non-payment of child support by the Father.

Issue 3. Does the Court have the jurisdiction to dispense with the Father's consent for the Child to travel outside ofUkraine? The Mother’s Submissions [48] The Mother’s evidence is that the Ukrainian authorities require the Father to provide consent for her to travel with the Childoutside of Ukraine, and specifically to Germany for medical examination and treatment. She points out that since the parties’ separation,she has had limited communications with the Father.

In the circumstance, she seeks an order of this Court dispensing with the Father’sconsent to travel and notes that the Respondent Father does not specifically oppose this request. The Father’s Submissions [49] The Father does not make any direct submission on this issue. However, he deposed to his intention to protect his parental,custody and access rights over the Child in Ukraine. He also stated in his affidavit that it is apparent that the Mother has the intention toprevent him from exercising those rights. He states that the issue of parental rights are corollary to divorce in Ukraine.

Analysis [50] Preliminarily, I infer that the lack of submission on this issue by the Father is an indication that he does not intend to withholdconsent to travel with the Child outside of Ukraine from the Mother, if and when sought. That said, I note that there is case law tosupport the position that the grant by the Father of consent to the Mother to travel outside of a jurisdiction with a child of the marriagewho is resident in that jurisdiction involves the exercise of parental rights: Yates v Boswell, 2010 NSSC 11 at para 2.

In Yates issuesdealing with the specifics of parenting, access time, including “provisions with respect to travel and consent to travel” were dealt withunder corollary relief judgment. [51] Therefore, I agree with the Respondent Father’s submission that the issue of parental rights, including the issue of consent totravel, in the context of a divorce which was granted in Ukraine are more appropriately and conveniently resolved in that jurisdiction. [52] Further, based on the principle of territoriality this Court should be cautious in exercising its power to issue an order which ineffect seeks to impose travel conditions or criteria on the Ukrainian authorities for residents of that jurisdiction.

Subject to a permissiveinternational custom or a convention, the principle of territoriality prohibits one state from exercising jurisdiction in a way that interfereswith the rights of other states as that “would constitute an interference under international law with the exclusive jurisdiction of anotherstate”: R v Cook (1998), (SCC), 164 DLR (4th) 1 at paras. 26-29 (SCC); cited in R v Greco (2001), (ON CA), 159 CCC (3d) 146 at paras. 15-16 (Ont CA), 155 OAC 316. [53] None of the parties referred this Court to an existing international custom or convention between Canada and Ukraine thatpermits the issue of an order to the Ukrainian authorities dispensing with the Father’s consent to travel with a child resident in Ukraine.In the absence of an existing international custom or convention such an order risks either being ignored or treated as unenforceable.

Conclusion on Issue 3 - Consent to Travel

[ 54 ] In order to avoid offending the principle of territoriality, I conclude that in the circumstances of this case it is more appropriate for the Mother to seek the order dispensing with the Father’s consent to travel with the Child in Ukraine, where the Child resides. That is the forum or jurisdiction from where the Child would depart to any other jurisdiction (i.e. Germany) and where relevant travel documents would be reviewed by officials responsible for cross-border activities. The practical benefit of Ukraine being the proper jurisdiction is that given that the potential problems, which may vary from challenges to the legal validity of a Court Order from Alberta to

interpretation of the language of the Court Order, would be effectively avoided. I see no utility in issuing an order that would either be unenforceable or problematic in Ukraine or elsewhere. Issue 4. Does the Court have the jurisdiction to dispense with the Father's consent to any and all medical treatment for the Child? [ 55 ] The Mother also seeks an order from this Court to dispense with the Father’s consent to any and all medical treatment for the Child.

She alleges that since the Father resides in Alberta there are difficulties with obtaining his consent to medical treatment because she lives in Ukraine and has limited communications with the Father. She submits that if the order is granted she would be able to authorize medical treatment for the Child both in Ukraine and abroad (particularly Germany). [ 56 ] In a similar approach to the issue of consent to travel, the Father does not expressly oppose this request. Nonetheless, I note his concerns with the need to protect his parental, custody and access rights over the Child in Ukraine.

The Courts in Ukraine apparently have the powers to grant this relief as an integral process of determining the scope of parental rights that are corollary to divorce in Ukraine. Further, the evidence before me indicates that the Father is interested in performing his parenting obligations in a responsible manner. [ 57 ] In the result, the Mother’s request for an order dispensing with the Father’s consent to any and all medical treatment for the Child is denied. The Mother should apply for this order in Ukraine. Disposition [ 58 ] I hold that Ukraine is the forum conveniens for the present case.

And that the issues relating to the appropriate amount of child support and special expenses, the grant of relief in the nature of orders dispensing with the Father's consent to travel with the Child outside of Ukraine and with any and all medical treatment for the Child should be dealt with in Ukraine. [ 59 ] If the parties cannot agree on costs, they may arrange an application before me to speak to costs within 60 days of the release of this decision. Heard on the 14 th day of February, 2012. Dated at the City of Edmonton, Alberta this 26 th day of March, 2012.

Don J. Manderscheid J.C.Q.B.A. Appearances: Andrey C. Yurmanov Campbell & Cooper for the Applicant Jose A. Delgado Bishop & McKenzie LLP for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Please note that the Appearances on page 15 have been corrected as follows: Appearances: Andrey C. Yurmanov Campbell & Cooper for the Applicant Jose A. Delgado Bishop & McKenzie LLP for the Respondent