) ) ANNA GAVRILUKE Applicant (Respondent on Appeal) – v. –, 2013 ONSC 2337

CITATION: Gavriluke v. Mainard, 2013 ONSC 2337 DIVISIONAL COURT FILE NO.: 48/13 DATE: 20130418 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HAMBLY AND HERMAN JJ. BETWEEN: ) ) ANNA GAVRILUKE Applicant (Respondent on Appeal) – and – FRANCOIS MAINARD Respondent (Appellant) ))))))))))) Brigitta Tseitlin, for the Applicant (Respondenton Appeal) Gene C. Colman, for the Respondent(Appellant) ) ) ) HEARD at Toronto: April 18, 2013 ASTON J. (ORALLY) [1] This is an appeal of the order of J. W.

Scott J. dated December 5, 2012, on a motion by the father that those parts of themother’s court application dealing with child support be struck for want of jurisdiction. Scott J. found that the court did havejurisdiction. [2] The father is a French citizen living in France. The parents have two children. From August 2008, the parents lived with thechildren in France. In August 2009, they separated. In 2010, the Superior Court of Paris made a custody and access order, as well as achild support order, which was affirmed by appeal on August 20, 2010.

That order in France specifically contemplated the mother’srelocation to Canada with the children. The Court permitted her to move and reduced the child support that would have otherwise beenordered so as to reflect the father’s long distance access costs. Shortly after that order was made, in August 2010, the mother returned toCanada with the children and she has resided in Niagara Falls since that time. [3] In January 2012, the mother filed in Ontario, a motion to change the child support and the custody and access provisions ofthe order in France.

Ultimately, Matheson J. ordered that she could not proceed by way of a Motion to Change but instead could onlyproceed by an Application, which he directed the clerk of the Court to accept. [4] In April 2012, the father commenced proceedings in France regarding custody and access. The French court declinedjurisdiction, following the ruling of Matheson J. of June 12, 2012, permitting the mother to bring her application in Ontario. The fatherno long contests the jurisdiction of the Ontario court to deal with the custody and access issues. [5] The standard of review on appeal is set out in Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. Questionsof law reviewed on a standard of correctness. Questions of fact or mixed fact and law are reviewed on a standard of palpable andoverriding error.

[6] The broad and general principles articulated in the jurisprudence cited on this appeal are only helpful in the context of theunderlying facts of those cases. The appellant father would have us focus on the similarities between this case and Sun v. Guilfoile(2011) 2011 ONSC 1685 , O.J. No. 1168 (S.C.J.). However, it is readily apparent that this case is significantly different.

In theSun case, neither the applicant mother nor the children had any connection whatsoever to the Province of Ontario and Goodman J. foundas a fact that the mother’s application (an application limited to child support) was simply forum shopping.

Scott J. made a differentfactual determination in this case. [7] Cases which stand for the proposition that an Ontario court cannot vary the order of the French court, simply recognize thatMatheson J. was correct when he determined that the applicant in this case could not bring a motion to change but could only seek reliefby an application. [8] Moreover, there is no appreciable conflict in the caselaw in Ontario if the first and foremost consideration is whether thechildren, for whom child support is claimed, are legitimately and ordinarily resident in Ontario. [9] Attard v.

Attard (2010), 2010 ONSC 810 , 81 R.F.L. (6th) 144, [2010] O.J. No. 506, 2010 CarswellOnt 673 (Ont.S.C.J.) is one exception. However, the child support claim was dismissed based on the unusual facts, facts which the Judge described as“unique”.

Those circumstances included a foreign order which had actually terminated the father’s child support obligation. [10] Child support claims are usually advanced by parents but child support has been recognized as a right of the child (see s. 31 ofthe Family Law Act). [11] The statement of the motions judge that “there are no other parties to this litigation” is technically correct. However, a parentclaims child support not only as his or her own entitlement but also as a proxy for his or her child. Furthermore, the rationale andpurpose of child support is to defray or share the costs of raising children.

It is most appropriate that the quantum of child supportshould be connected to the costs the custodial parent is incurring in the jurisdiction where they reside. [12] If, as is the case here, Ontario law would result in a more generous award, it is difficult to answer the question of why thesechildren - Ontario residents who have an independent legal right to be supported by their father under s. 31 of the Family Law Act -should be denied their full entitlement under that Act on the basis of their father’s residency. There may be a good answer to thatquestion.

However, it should be decided by a trial judge, not by the denial of the opportunity to even advance the child support claim. [13] The trial judge will have an opportunity to consider s. 33(12) of the Family Law Act and may conclude that the provisions ofthe present order of the Court in France ought to continue, or that the amount payable ought to be less than the full guideline tableamount.

The trial judge can also exercise discretion with respect to the claim under s. 7. [14] The main point to be made here, is that unless it is quite clear that Ontario has no jurisdiction or ought not to acceptjurisdiction, the child support claim on behalf of children residing here ought to be determined on the merits. There may well be caseswhere it is clear that the custody/access claim advanced in relation to children living in Ontario is nothing more than a ruse or a tactic forthe purpose of establishing jurisdiction to claim child support.

At the other end of the spectrum, there could be custody and accessdecisions that have far-reaching financial implications. [15] The facts of this case do not clearly fall at either end of the spectrum but, because it is not clear that the custody and accessclaims are artificial or insignificant, we are not persuaded that jurisdiction is clearly excluded or that there is a clear justification for thisCourt to decline to exercise that jurisdiction at this stage. [16] In holding that the Court should not decline to exercise its jurisdiction now, we do not intend to foreclose the possibility that atrial judge may conclude otherwise and may decline to make any child support order based upon a full appreciation of the evidence, thefinancial ramifications of any custody and access order and the equities of this particular case. [17] For these reasons, the appeal is dismissed. (Costs Submissions) [18] I have endorsed the Appeal Book on behalf of the panel: “This appeal is dismissed for oral reasons given and recorded.

Theappellant to pay costs fixed at $6,000 all inclusive, including the motion for leave to appeal.” ASTON J. HAMBLY J. HERMAN J.

Date of Reasons for Judgment: April 18, 2013 Date of Release: April 30, 2013 CITATION : Gavriluke v. Mainard, 2013 ONSC 2337 DIVISIONAL COURT FILE NO.: 48/13 DATE: 20130418 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HAMBLY AND HERMAN JJ. BETWEEN: ANNA GAVRILUKE Applicant (Respondent on Appeal) – and – FRANCOIS MAINARD Respondent (Appellant) ORAL REASONS FOR JUDGMENT ASTON J. Date of Reasons for Judgment: April 18, 2013 Date of Release: April 30, 2013