Thursday, 31 October 2013

Finding a Real and Substantial Connection When a "Snow-bird" Common Law Couple Splits

The Ontario Superior Court of Justice recently tackled the issue of jurisdiction, specifically the issue of what constitutes a “real and substantial connection”, in a family case involving “snow birds”, i.e. a common law couple who in their ten years together had lived in Florida but regularly spent substantial time also in Ontario, after the common law wife moved to Ontario and sued the common law husband claiming support and a constructive trust over certain Ontario properties.   

Canadian courts may assume jurisdiction over defendants if a real and substantial connection exists between the forum and the transactions in issue, the subject matter of the action or the parties.    (There are two other alternative bases for jurisdiction:  that the defendant resides in forum, or that the defendant agrees that the court may take jurisdiction or attorns to the court’s jurisdiction.)  

The Supreme Court of Canada held in Club Resorts v Van Breda  2012 SCC 17 [2012] 1 S.C.R. 572  that a real and substantial connection exists only if one or more “presumptive connecting factors” (that is, “objective factors that connect the legal situation or the subject matter of the litigation with the forum”) can be shown.  The court identified some “presumptive connecting factors”, but left the door open to others to be added later.   In family cases the presumptive connecting factors are necessarily different from those in tort cases such as Van Breda, and include the location of the parties’ “real home” or ordinary residence: see the Ontario Court of Appeal decision is Wang v. Lin 2013 ONCA 33 

In Knowlesv. Lindstrom 2013 ONSC 2818 the Ontario Superior Court of Justice grappled with applying this presumptive connecting factor in a case where, out of the 122 months that the parties were a couple, the common law husband, an American, spent only about thirty in Ontario. However, in the latter five years of their relationship he spent almost half his time (25 out of 62 months) in Ontario.  As soon as the relationship ended, the applicant returned to Ontario (she was from Ontario originally) and remained there, severing her ties to Florida.  The applicant sued for spousal support and claimed a constructive trust in respect of certain Ontario properties.  The respondent moved to stay the proceeding, on the ground that they had been residents of Florida, not Ontario, or in the alternative for a ruling that Ontario was forum non conveniens.   In the end after a lengthy discussion, the court found it had jurisdiction because the parties had two real homes: Ontario as well as Florida.

Neither the Family Law Act nor the Family Law Rules in Ontario address jurisdiction over respondents outside the province.  The Inter-jurisdictional Support Orders Act (“ISOA”) does set a jurisdictional test for support claims, namely the "ordinary residence" of the parties.  However, the applicant did not proceed under the ISOA because Florida does not recognize claims for support between unmarried couples.  Thus the court had to look to the case law. 

 The question of jurisdiction was complex with respect to the support claim, but relatively straightforward for the property claim.  After all, the properties over which the claims were made were in Ontario, and it is well established in private international law that jurisdiction to determine ownership of land rests with the court where the land is located.    

For the support claim the main issue was: what presumptive connecting factor would support a finding of real and substantial connection to Ontario? A number of sub-issues presented themselves.  One, in assessing the parties’ ties to Florida and to Ontario, ought the court consider whole ten years or just the last five?  The court chose the latter, noting that the properties over which the constructive trust claim was asserted were acquired only in those later years.  With respect, this fact ought not have mattered to the question of jurisdiction over the spousal support claim, as opposed to the constructive trust claim. 

Two, would the fact that as of the day the applicant commenced the proceeding, she was residing only in Ontario constitute a presumptive connecting factor if the respondent was not also resident there?    The Court reviewed the ISOA and the Divorce Act, neither of which actually apply to this case, but both of which say a court may take jurisdiction if at least the applicant resides in the forum.  The court took this to mean that “in family law, a real and substantial connection with a jurisdiction can be found on the basis of not just the respondent’s relationship with a place.  This is particularly so where an allegedly dependent party resides in one jurisdiction and the other party lives somewhere else”.     The Supreme Court in Van Breda, while discussing presumptive connecting factors for tort cases, pointed out that “Absent other considerations, the presence of the plaintiff in the jurisdiction will not create a presumptive relationship between the forum and either the subject matter of the litigation or the defendant.” (paragraph 86).   The Supreme Court also acknowledged that other presumptive connecting factors will be developed for cases in other areas of law, but that they must be factual connections to the forum, not merely considerations of justice, efficiency, or comity.   To have found a real and substantial connection based mainly on the residence of just the applicant would have been a controversial if ground-breaking development. 

Instead the court continued on to consider whether both parties could be considered to be ordinarily resident in Ontario.  The court, while acknowledging that the primary home of both parties was in Florida,  stated  that a person can be ordinarily resident in more than one place, and found that the parties were ordinarily resident in Ontario, as well as Florida, having spent several months in Ontario every year for the most recent five years.  The court cited tax cases that say a person may be resident in more than one place, but without considering whether the considerations relevant to those tax cases are the same as for this case.   

In the result, the court found a real and substantial connection in respect of both the property and support claims, rejected the respondent’s forum non conveniens arguments, and took jurisdiction over the case.  

A simpler approach to jurisdiction over the support claim would have been to say that the court, which quite clearly had jurisdiction over the property claim, ought to hear the support claim as well so as to avoid a multiplicity of proceedings, as per s. 138 of the Courts of Justice Act.  

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