Florescu v. Lodato

2025 BCSC 1950 Florescu v. Lodato

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Florescu v. Lodato, 2025 BCSC 1950 Date: 20250128 Docket: E241996 Registry: Vancouver Between: Mariana Magdalena Florescu Claimant And Massimo Lodato Respondent Before: The Honourable Justice Kirchner Oral Reasons for Judgment In Chambers Counsel for the Claimant: N. Dhillon Counsel for the Respondent: D.G. Beck Place and Date of Hearing: Vancouver, B.C. January 14, 2025 Place and Date of Judgment: Vancouver, B.C. January 28, 2025 Introduction [1] The respondent applies to stay that part of the claimant's family law action concerning property division. He argues that Italy, rather than British Columbia, is the more suitable jurisdiction in which to deal with the property division claim. He concedes this Court has territorial jurisdiction over all matters in the notice of family claim, including property and debt division, and does not seek to stay those parts of the claim dealing with parenting and support. However, he argues that Italy is clearly the more appropriate forum for property and debt division largely because all the property is located in Italy; family debts related to property are in Italy and are owed to Italians creditors; the witnesses, other than the claimant, live in Italy and must testify in Italian; and most, if not all, of the relevant documents are printed in Italian. The claimant maintains British

Columbia is the more appropriate jurisdiction because it is where she lives with the parties' two children and was the last common place of domicile for the parties. Background The Parties and their Relationship [2] The claimant, Mariana Magdalena Florescu, was born in Romania. She is 45 years old. The respondent, Massimo Lodato, was born in Palermo, Italy, and is now 53. There is some dispute over how the parties' relationship began, but those are not material to the application. It seems they met in 2000 while Ms. Florescu was visiting Italy. Mr. Lodato suggests they did not start a relationship, though, until 2003. Regardless, they started living together in a marriage-like relationship in Rome in February 2003 and married in August 2003. [3] According to one of the expert reports on the applicable Italian law, parties who marry in Italy are subject to a joint property regime or common property regime, referred to as "comunione dei beni", unless they specifically opt out in favour of a separate property regime. The parties here did not opt out and thus are subject to that community property regime in Italy. Their property includes a family home in Anzio, a suburb of Rome, which the parties bought in, I believe, 2012. [4] The parties have two children, both born in Italy, who are now 17 and 15. They live with Ms. Florescu in British Columbia. [5] In 2014, Ms. Florescu moved

to British Columbia with the two children with a plan for the family to immigrate to Canada. Mr. Lodato also came to British Columbia at that time and stayed for just over a year while he was on parental leave from his work in Italy. The family lived in a basement suite in New Westminster for that year. Mr. Lodato returned to Italy after the year and continued his work at Sogin, a Italian state-owned company that oversees the decommissioning of nuclear power plants. The plan was that he would return to Canada to live once Ms. Florescu had secured her permanent residency. [6] Ms. Florescu and the children have not lived in Italy since they left in 2014. Ms. Florescu has been back only once for a visit in 2022. Mr. Lodato has returned to Canada several times between 2015 and 2020 for extended visits with the family. [7] According to Ms. Florescu, the parties separated in January 2020. She says the family secured their permanent residency that year, but Mr. Lodato decided he did not want to move to Canada. He continued to travel to B.C. to spend time with the children, including a four-month stay in 2020 when he worked remotely from British Columbia during the pandemic shutdown, but he never moved here. Mr. Lodato says the parties did not separate until 2023, after Ms. Florescu's 2022 visit to Italy. I do not need to resolve that dispute on this application, though. [8] Ms.

Florescu now works for the Canada Revenue Agency and is still living in New Westminster with the children. She has a financed car and a pension through work, but no other substantial assets in Canada. Mr. Lodato lives in the family home in Anzio and continues to work for Sogin. The Property at Issue [9] With the exception of Ms. Florescu's pension and the financed car, all the family property and potential family property is located in Italy. In particular, Ms. Florescu claims the following as the family property in her notice of civil claim: a) The family home in Anzio; b) The garage in Sicily; c) Four recreational properties in Sicily that Mr. Lodato inherited from his father and aunt; and d) The net proceeds of the sale of two rental apartment in Côte d'Azur, France. [10] Mr. Lodato claims the downpayment for the Anzio home came from the proceeds of selling an apartment he owned prior to the parties' relationship. He therefore claims some amount of the home is the equivalent of excluded property under Italian law. He also says there is a €33,000 mortgage on the property that is a family debt. He has been paying the mortgage, taxes, and other expenses on the home since separation and will make a claim for this. [11] He says all the properties in Sicily, other than the garage, are excluded because they were inheritances. He says the two apartments in Côte d'Azur belong to his

mother and he received no rental income from the properties or net proceeds from their sale. [12] Mr. Lodato also claims there are family debts owed to his mother and his brother. He says his mother loaned the parties €85,000 in 2012 to help buy the Enzio home. Ms. Florescu claims the money was a gift. Mr. Lodato also says his brother loaned the family €19,800 in 2015 to help in their immigration to Canada. Apparently, they needed to have $20,000 Canadian in an account to immigrate and the brother loaned them the money for this purpose. While Ms. Florescu also claims this is a gift, she does not seem to press that position as forcefully as she does with the money from Mr. Lodato's mother. History of Proceedings [13] On September 8, 2023, Ms. Florescu initiated a personal separation process in Italy through an Italian lawyer. This was not a court proceeding, but rather an attempt at a "consensual separation" under Italian law. According to the Italian legal opinions, the separation proceeding in Italy may either be consensual or judicial. Under a consensual process, the parties attempt to reach an agreement on parenting, support, and division of assets. If an agreement is reached, it is submitted to the court for review. If the agreement is approved by the court, it becomes binding. Parties may divorce one another provided it is not less than six months after separation. [14] If

a consensual separation cannot be reached or is not pursued, a spouse in Italy may seek judicial separation or a contested separation by filing a petition with the District Court called the (Tribulanale) in Italy. The evidence and submissions of the parties is then considered by a judge at the court's family law section who will issue a binding decision. The parties must attend a first hearing at which the judge will assess the evidence and submissions and determine the next steps which, depending on the evidence or complexity of the matter, may include a trial with viva voce evidence and cross-examination. It may also involve the appointment of a special curator to assist in gathering additional information and evidence. A divorce may be granted not less than one year from the date of filing in the judicial proceeding. [15] The parties exchanged separation proposals under the consensual separation process initiated by Ms. Florescu, but unable to conclude an agreement. Ms. Florescu terminated the process by discharging her lawyer in July 2024. She did not commence a judicial separation proceeding in the Tribunale but rather, on August 26, 2024, she started this proceeding in British Columbia. [16] On November 7, 2024, Mr. Lodato initiated a mediation process in Italy concerning the parties' property dispute. Under Italian law, there is a compulsory mediation procedure for

certain kinds of civil disputes, including property disputes. The process requires the parties to a dispute to attempt mediation before commencing legal proceedings in court. While this applies to certain property disputes, it does not apply to separation and divorce proceedings which may include division of property within a marital relationship. The mediation of Mr. Lodato's claim was scheduled for December 19, 2024, but adjourned to January 23, 2025. [17] At the time this matter was heard, Ms. Florescu did not expect to attend on January 23, 2025 as she was unable to travel to Italy at that time. According to an opinion given by Mr. Lodato's current Italian lawyers, if Ms. Florescu failed to attend the January 23 mediation either in person or through a lawyer, Mr. Lodato would be free to commence judicial proceedings in the Italian court. The Tribunale may consider Ms. Florescu's non-attendance at the mediation in adjudicating that dispute. [18] Again, according to Mr. Lodato's current Italian lawyer, the mediation proceeding he initiated and the expected court proceeding, if the mediation does not proceed, will deal only with issues of property ownership and division of jointly-owned real estate. It does not concern divorce, parenting, or support and is not a family proceeding. The lawyer states that, contrary to the legal opinion tendered by Ms. Florescu, it is not

possible to address issues relating to real property rights or division of real estate in a family proceeding in Italy. This lawyer states that the separate proceedings must be initiated for that purpose and those separate proceedings are subject to a compulsory mediation. Again, I am not able to resolve that factual dispute over that aspect of Italian law in this application on the competing opinions. Legal Principles [19] To determine whether this court has jurisdiction over a dispute, it must first be decided if it has territorial competence over the dispute. This is often referred to as jurisdiction simpliciter. If jurisdiction simpliciter is established, the court must then determine whether it should decline that jurisdiction in favour of another forum that is clearly more appropriate. This is often referred to as a forum non conveniens analysis: see B.C. v. D.E., 2022 BCSC 1597, at para.

23. Here, jurisdiction simpliciter is conceded and thus the focus of the application is on forum non conveniens. Mr. Lodato has the burden of showing that Italy is clearly the more appropriate forum: see Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 103. [20] Section 106 of the Family Law Act sets out when the British Columbia Supreme Court has jurisdiction over property division in a family law matter. Sections 106(1) to (3) deal with jurisdiction simpliciter. 106 (1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction. (2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met: (a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim; (b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part; (c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started; (d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based. (3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the

following apply: (a) property that is the subject of the proceeding is located in British Columbia; (b) the most recent common habitual residence of the spouses was in British Columbia; (c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia. [21] Mr. Lodato properly conceded jurisdiction simpliciter. This court clearly has that jurisdiction under s. 106(2)(c) and probably also 106(2)(d) and 106(3)(c). Ms. Florescu also claims jurisdiction simpliciter is established under s. 106(3)(b), that is, the most recent common habitual residence of the spouses was in British Columbia based largely on Mr. Lodato's one-year residence in British Columbia in 2014 and some other factors. It is not necessary for me to determine that question for jurisdiction simpliciter. To the extent it is relevant to forum non conveniens, I will address it there. [22] Section 16(4) and (5) of the Family Law Act deal with forum non conveniens and identify factors for the court to consider in deciding if another jurisdiction is clearly more appropriate. They read: (4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. (5) In determining

whether to decline jurisdiction under subsection (4), the court must consider all of the following: (a) [Repealed 2014-9-15.] (b) the relative convenience and expense for the spouses and their witnesses; (c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding; (d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals; (e) the extent to which an order respecting property or debt (i) made in another jurisdiction would be enforceable in British Columbia, and (ii) made in British Columbia would be enforceable in another jurisdiction; (f) the fair and efficient working of the Canadian legal system as a whole; (g) any other circumstances the court considers relevant. [23] I will deal with each of the factors identified in 106(5) in my analysis now. Analysis Relative Convenience and Expense for Spouses and Witnesses [24] Dealing first with the relative convenience and expense for the spouses and witnesses, as between the parties only, I find the relative convenience slightly favours British Columbia while the relative expense favours Italy. As to convenience, it appears there may be some ability in the Italian court proceedings for a lawyer to attend on Ms. Florescu's behalf, but it is evident from the legal opinions that some amount of personal attendance will be required. The same, of

course, may be said for proceedings in British Columbia. Thus, both parties will need to travel to attend a hearing or trial. [25] Mr. Lodato appears to have more freedom to be able to travel and may well need to travel to British Columbia in any event because this action will proceed on support and parenting issues regardless of today's outcome, absent a settlement. By contrast, Ms. Florescu will need to make arrangements for the children while she travels to Italy. However, the children are nearing adulthood so this factor is not overly burdensome. [26] As to expense, Mr. Lodato will require an interpreter for a trial in British Columbia for himself and likely other witnesses. I acknowledge that he has sworn two affidavits in English, has stayed in British Columbia for extensive periods, and seems to have some proficiency in English, but giving evidence and understanding court proceedings in a different language is a bigger challenge. Again, though, this may be necessary, anyway, if there is a trial on spousal and child support and parenting. [27] Further, a trial in British Columbia will require the parties to pay for court translation services for the documents, most of which are expected to be in Italian. While some documents have already been translated for this application, there will be more to come. Property appraisal reports will necessarily need to be prepared in

Italy and, presumably, need to be translated for a British Columbia trial. If appraisal experts are required for cross-examination, they will need to attend trial in British Columbia, though more likely they would attend by videoconference but with an interpreter at an additional expense. The parties will also need to pay for legal opinions to be prepared and, presumably, translated since, as I will explain in a moment, I find that Italian law applies to the property and debt division issue. [28] A trial in Italy also favours the potential witnesses apart from Ms. Florescu. It is likely that Mr. Lodato's mother, Claudia Castromediano, will need to testify about the alleged debt to her and potentially about the apartments in Côte d'Azur. She lives in Italy and speaks Italian. Mr. Lodato's brother, Guido Lodato, also lives in Italy and may need to testify about the alleged family debt to him. If either or both testify, they would need to come to Vancouver or appear by video, both of which are an inconvenience. Attending here would be an expense. Interpretation would be required for both witnesses. Mr. Lodato argues that financial advisors may need to testify about the debts or the Côte d'Azur apartments, but that seems quite speculative at this point. [29] On balance, though, while the need for Ms. Florescu to travel to Italy and find suitable care for the children is an

inconvenience and expense, I find the other points I have outlined in this consideration tend to favour Italy as a more convenient forum under this consideration. The applicable law [30] Section 108 of the Family Law Act governs the applicable law for family proceedings in British Columbia. In Jiang v. Shi, 2017 BCCA 276, Justice Hunter for the Court of Appeal described s. 108 as setting out three choices of law in a hierarchical manner: [32] First, if the parties have made an agreement respecting the division of property, the substantive rights of the parties are governed by that agreement. [33] Second, if the parties have not made such an agreement, the judge must consider whether the spouses' "first common habitual residence" was in a jurisdiction where a regime of community of property applies. If so, property division must be made in accordance with that regime of community of property. [34] If neither of these considerations applies, the substantive rights of the parties must be determined according to the proper law of the relationship, which is defined in s. 107. [31] The second of these choices is set out in s. 108(5) of the Family Law Act: (5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt

owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property. [32] Italy was the parties' first common habitual residence during their relationship and the Italian legal opinions tendered on this application confirm that Italy has a community of property regime. Thus, pursuant to s. 108(5), property division in this case is governed by that regime: S.R.L. v. K.J.T., 2014 BCSC 1562, at para.

20. This factor strongly favours Italy taking jurisdiction over the property division issue. As Justice Fenlon wrote in S.R.L. at para. 21: It is generally more convenient for a court to avoid applying and interpreting foreign law [33] As I have alluded to earlier, if property division is addressed in British Columbia, it will be necessary to tender further expert reports from Italian lawyers to prove the applicable law. That will be complex and likely require translation. It may be necessary for the lawyers to testify in British Columbia, although they could likely attend by videoconference. Either way, interpretation is probably required. I find this factor favours Italy. [34] The parties made extensive submissions on whether Mr. Lodato had come to habitually reside in British Columbia in 2014, the year that he lived with the family in New Westminster. Under s. 107(a) of the Family Law Act, the governing law for the parties' relationship is the "internal law of the jurisdiction in which the spouses had their most recent common habitual residence". If Mr. Lodato habitually resided in British Columbia in 2014, B.C. would be their most recent common habitual residence. [35] However, as I have just outlined, it is not the law of the relationship that is relevant to property division, but rather the regime of community of property, if there is one, in the parties' first place of

common habitual residence. That is the Italian regime. Since Mr. Lodato is only proposing that property and debt division be addressed in Italy, I find it is unnecessary at this stage to determine whether he was habitually resident in British Columbia in 2014. Avoiding Multiple Proceedings and Conflicting Decisions [36] There are certainly multiple proceedings if this court defers to Italy on property and debt division because the divorce, parenting, and support issues will continue in this court. That favours trying the property division issues in British Columbia to avoid a further proceeding in Italy. However, it is unlikely there will be competing decisions since one court will deal with property division and the other with the remaining issues. Overall, I find this factor slightly favours British Columbia. Enforceability [37] I do not view the enforceability of an order as a significant point in this case. I have been given no reason to believe that Mr. Lodato will not abide by an order of this court. Further, it does not appear the court will be asked to make orders conveying any property so that potential complexity does not arise. Regardless, I will address the enforceability in any event. [38] The Italian legal opinions confirm that an order made in Canada is enforceable in Italy if: · it conforms to Italian public policy, including fundamental principles of Italian

law and moral standards; · the Canadian court exercised jurisdiction in a manner consistent with Italian principles of jurisdiction; · the defendant must have notice of the procedure and a right to fully participate in the process with service of the defendant being consistent with the laws of Italy; · the judgment must be final, conclusive, and binding under Canadian law; · the judgment must not conflict with an earlier and final decision rendered by an Italian court. These five points are not contentious and there is no evidence to suggest a final judgment of this court would not be enforceable under these terms. [39] A final condition for recognition of a foreign judgment, though, is in dispute. The legal opinion given on behalf of Mr. Lodato frames the condition this way: There must be no case pending in an Italian court concerning the same matter between the same parties, provided the Italian proceeding was commenced before the Canadian judgment was issued. [Emphasis added] [40] The legal opinion tendered by Ms. Florescu outlines substantially the same condition except it says the foreign judgment will be enforced if the proceeding in which it was given was initiated between the Italian proceedings: No proceedings are pending before an Italian court concerning the same matter and involving the same parties, which were initiated before the foreign proceedings. [Emphasis

added] [41] The difference is important. If the opinion offered by Ms. Florescu is correct, a judgment of this court will be enforced in Italy because this proceeding was initiated before judicial proceedings in Italy. However, if the opinion offered by Mr. Lodato is correct, there is a good likelihood that there will be a judicial proceeding initiated in Italy by Mr. Lodato before a final judgment is given in this proceeding. In fact, according to the opinion offered by Mr. Lodato, the matter could proceed in British Columbia up to the point of the court reserving judgment and then a proceeding could be started in Italy to thwart the enforceability of that judgment once it is released. [42] While I am not able to resolve this factual conflict in the opinions on this application, the opinion offered by Ms. Florescu seems much more logical. It would be surprising if the enforcement of a foreign order that complied with every other required element for enforceability would be thwarted by one party to the foreign proceedings starting an action in Italy just before the expected release of the foreign judgment. Thus, despite the factual conflict in legal opinions, I find it is likely that an Italian court would enforce a judgment of this court. [43] Mr. Lodato also argues that, even if the opinion offered by Ms. Florescu is correct, proceedings were initiated by her in Italy before

this proceeding. However, the process she initiated was a consensual separation process, not a judicial process. According to the Italian legal opinions, nothing is filed with the court in that process unless and until a settlement agreement is reached. Thus, this process does not appear to be a proceeding before an Italian court, nor is the process in Italy now being pursued by Mr. Lodato part of the same proceeding Ms. Florescu started and later abandoned. I also observe that at least two of the authors of the legal opinions appear to have been aware of the consensual separation process started by Ms. Florescu, but none suggested it would preclude the enforcement of a British Columbia order made in this proceeding. [44] Further, while the parties made no submissions on the point, I must also consider whether a judgment of an Italian court will be enforceable in British Columbia. Considering the nature and elements of the legal process described in the three Italian legal opinions, I am satisfied that a Canadian court would enforce a judgment from that proceeding given the "generous and liberal approach to recognition and enforcement of foreign judgments" in this country: see Chevron Corp. v. Yaiguaje, 2015 SCC 42, at para. 27. [45] Overall, I consider the question of enforcement to be a neutral factor. Fair and Efficient Working of the Canadian Legal System [46] I find that

efficiency in this case generally favours Italy taking jurisdiction. The complexities of this court applying Italian law to property and debt division, the need for interpretation for most witnesses and translation of most documents, and the need for video attendance of witnesses will combine to make this a logistically challenging trial. In my view, it is more efficient to address matters of property division and debt in Italy where the property and most witnesses are located. Other Factors [47] Finally, I consider there to is at least one additional factor that strongly favours British Columbia keeping jurisdiction over this matter, namely, that it is undesirable to separate property division and spousal support into two different proceedings. As mentioned, the parties agree that spousal support should be addressed in British Columbia. However, it is the general practice in this province to determine property division before making a final order for spousal support: see Toth v. Toth, 1995 CanLII 1917 (B.C.C.A.); Legge v. Legge, 2021 BCCA 365 at para. 47 47 and Cohoon v. Stobo, 2023 BCCA 479, at para.

27. Justice Horseman recently summarized the rationale for this approach in Healey v. Healey, 2024 BCCA 68, at para. 64: The rationale for this sequencing is that the issues of property division and spousal support are often interlinked Section 15.2(4) of the Divorce Act (and s. 162 of the FLA) requires a court in making a spousal support order to consider the "condition, means, needs and other circumstances" of each spouse. The outcome of the property division may affect the relative condition, means, and needs of the parties, including because it may generate further income in the hands of a spouse. In some cases, particularly where there are substantial family assets and a short-term marriage, an order reapportioning family property may address the objectives of a spousal support order and reduce or eliminate the need for spousal support [citations omitted] [48] Given Ms. Florescu's claim to an interest in the recreational properties in Sicily and the money received from the sale of the Côte d'Azur apartments, there is potential for the property division claims to affect spousal support. In this respect, it is preferable to have those matters tried together or at least ensure that all matters respecting property are concluded before this court makes a final order for spousal support. That said, this concern might be managed by putting in place interim support orders and

deferring the trial of this proceeding until after the property division issues are resolved by an Italian court. Decision and Conclusion [49] Considering all of these factors, I am ultimately persuaded that Italy is clearly the more appropriate forum to adjudicate the property and debt division issue. The most compelling factors include that: the property is in Italy; the witnesses, other than Ms. Florescu, live in Italy and will testify in Italian; most of the documents will be printed in Italian; and the governing law of the property and debt division is Italian which will require proof in this jurisdiction by way of expert reports from Italian lawyers. The fact this is Ms. Florescu's jurisdiction of choice and the inconvenience to her and to the children to have a trial in Italy certainly pulls in her favour but, ultimately, I find these other factors favouring Italy and outweigh those considerations. Further, while I have some concern with separating property division and spousal support in two proceedings, that concern, as I have said, is likely manageable in the way I have outlined. [50] For those reasons, I will grant the stay that is sought in paragraph 1 of the "Orders Sought" in the notice of application. [51] With respect to paragraph 2, that is unopposed. That is an order that Mr. Lodato may file a response to the family claim and a counterclaim 30 days from the

date of this judgment. I will make that order. [Submissions on costs.] [52] THE COURT: With respect to costs, I am going to order that Mr. Lodato have his costs for the hearing in the cause and the parties will bear their own costs for the preparation of the hearing. The reason for this order is that while Mr. Lodato was successful in the application, his concession on jurisdiction simpliciter was only made at or very shortly before the hearing, which meant Ms. Florescu was put to unnecessary expense to prepare for that aspect of the application. "Kirchner J."