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Attornment - Family Law. Trop v. Trop [compliance with interim orders]
In Trop v. Trop (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion for a stay of an interlocutory order for an 'updated financial statement'.
Here the court makes an important point regarding attornment:[7] First, compliance with court orders in the face of an ongoing jurisdictional challenge is not treated as attornment: see: Yaiguaje v. Chevron Corporation, 2014 ONCA 40, 62 C.P.C. (7th) 368, at para. 11, leave to appeal dismissed, [2018] S.C.C.A. No. 255. A party must take a voluntary step to indicate attornment to the jurisdiction: Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, at para. 34.
[8] Second, if Mr. Trop’s delivery of an Answer and Financial Statement is not attornment to Ontario’s jurisdiction, it is difficult to imagine that his compliance with an order to produce an updated version of the financial statement that he has already produced will be separately treated as attornment. The delivery of pleadings and productions to facilitate the efficient exchange of information in which a party clearly raises the issue of jurisdiction has not generally, without more, been treated as attornment: see, for example: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 31; Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 22, 23, leave to appeal refused, [2013] S.C.C.A. No. 342; Sakab Saudi Holding Company, at paras. 27-29.
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[10] Ms. Trop is entitled to financial disclosure notwithstanding the dispute over the court’s jurisdiction. As this court stated in Husid v. Daviau, 2012 ONCA 469, at para. 20, interim orders can be made without prejudice to a party’s right to dispute jurisdiction:[The moving party] argues that he could not make the motion in the court below because that would amount to attorning to the court’s jurisdiction, the very matter he contests by way of the main appeal. I do not accept this argument. There are a number of access orders in place already. I understand that they were made without prejudice to the father’s right to maintain that he did not attorn to the court’s jurisdiction. If the existing access orders could be made on that basis, I see no reason why the present motion could not also be made on the same basis. . Mehralian v. Dunmore
In Mehralian v. Dunmore (Ont CA, 2023) the Court of Appeal considers (and dismisses) an appeal of an order that a marriage, recognized in Omani courts, was recognized in Ontario. In these quotes the court considers 'attornment':[26] In this case, the Divorce Recognition Judge’s finding that the applicant attorned to the jurisdiction of Omani courts is one of fact. He found that, although the applicant initially contested the jurisdiction of the Omani courts, she subsequently made a voluntary and rational choice to participate fully on the merits. This included litigating the merits of the divorce, in which she asserted that under Omani law her marriage to the respondent was invalid and that the respondent had made false statements in the course of obtaining the divorce. The applicant also sought and obtained relief from the Omani court, through the award of custody of M.
[27] The applicant has failed to identify any palpable or overriding error in the Divorce Recognition Judge’s finding that she attorned to the jurisdiction of the Omani courts. Rather, the applicant invites this court to substitute its own factual finding in place of that of the Divorce Recognition Judge.
[28] The Divorce Recognition Judge’s finding was firmly grounded in the factual record. Indeed, as he pointed out, his findings in this regard were based on facts that were essentially uncontested. I see no basis for disturbing his finding that the applicant attorned to the jurisdiction of Omani courts.
[29] In my view, this is sufficient to dispose of this appeal.
[30] Parties to an action are free to select or accept the jurisdiction in which their dispute is to be resolved: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37. As the Divorce Recognition Judge noted, a party that has voluntarily attorned to the jurisdiction of a court has consented to having the issues in dispute determined by that court. Where jurisdiction is established through such consent, as in this case, it is unnecessary to consider whether there are other grounds upon which a court’s jurisdiction might be either recognized or challenged, such as whether the parties had a real and substantial connection with the jurisdiction in question: Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43-44.
[31] For the same reason, the Divorce Recognition Judge did not err in his finding that the applicant could not relitigate issues that she had unsuccessfully raised before the Omani court. These issues included whether the applicant had received valid notice of the Omani divorce and whether the respondent had committed fraud in obtaining the divorce.
[32] Although the Divorce Recognition Judge did consider whether the Omani divorce should not be recognized in Ontario because the divorce laws of Oman are contrary to Canadian public policy, in my view it was unnecessary for him to do so. This is because consent to the jurisdiction of the foreign court necessarily involves consent to the laws applicable in that jurisdiction.
[33] The Divorce Recognition Judge found that although the applicant was not required to agree that the validity of the parties’ divorce should be decided by the Omani courts, she voluntarily chose to do so. In so doing, she agreed to have the validity of the divorce determined in accordance with Omani law. Having consented to the application of Omani law, the applicant cannot now argue that the decision of the Omani court should not be recognized in Ontario because the law on which it was based is contrary to Canadian public policy.
[34] I would therefore dismiss the applicant’s appeal of the Divorce Recognition Order.
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