Posts
The Ontario Court of Appeal has recently made two
important rulings on the determination of jurisdiction in cross-border cases in
family law. One, it ruled that for
jurisdictional purposes, a person may be ordinarily resident in two different
jurisdictions, at the same time, even if he/she does not split his/her time
evenly between those two jurisdictions.
Two, the fact the plaintiff or applicant resides in Ontario may itself constitute
a presumptive connecting factor for the purpose of determining whether there is a real and substantial connection to
Ontario : Knowles v Lindstrom [2014]O.J. No. 695 (Doherty, S.T. Goudge and Lauwers JJ.A.).
In a blog posted last
October, I reviewed the lower court’s decision.
An unmarried couple lived for ten years mainly in Florida but also spent
several weeks in each of the last five years of their relationship at a
property in Muskoka, Ontario. After they
split up, the former girlfriend – Knowles, originally from Ontario and of
modest means – sued her former boyfriend – Lindstrom, a wealthy American – in
Ontario for support and for a part of his Ontario property based on an unjust
enrichment/constructive trust claim. Lindstrom
challenged the jurisdiction of the Ontario courts on various grounds. The motion court stated, albeit arguably in obiter, that a person can be considered
ordinarily resident in two different places, at the same time, and that despite
the fact the parties lived primarily in Florida, both parties were ordinarily
resident also in Ontario based on the fact they spent significant time every
year in Muskoka. The court based its ruling in part on a
long-standing tax law case, Thomson v
Minister of National Revenue [1946] S.C.R.209, about someone who, like the
parties in this case, maintained homes in both the United States and Canada and
spent time with his family in both, year after year, by choice. However, unlike in Thomson, the applicant did not own either home even in part (subject
to her property claim).
The motion judge also stated, again arguably
in obiter, that the fact the
applicant is a resident of Ontario may by itself constitute a presumptive
connecting factor, despite the fact that the Supreme Court of Canada in Club Resorts v. Van Breda stated clearly that it does not,
at least in tort cases (para. 86).
I say the motion
court’s rulings on these points were arguably obiter in that the court did not need to decide them. The court plainly had jurisdiction over the property
claim insofar as the property was in Ontario,
and could have taken jurisdiction over the support claim on the basis of
the principle that as far as possible a multiplicity of proceedings is to be
avoided.
The Ontario Court of
Appeal has now upheld these two rulings.
The Court stated that the parties
had the same lifestyle as in Thomson. The court held that “the concept of ordinary
residence as defined in Thomson is
appropriate when considering whether the parties’ physical connection to a
jurisdiction is sufficient to constitute a presumptive connecting factor for
the purposes of the Van Breda
analysis.” The
Court did not address any possible differences in the policy considerations
relevant to a determination of ordinary residence for tax purposes and a
determination for jurisdictional purposes in family law. The fact one spends significant time in
Canada is clearly relevant to whether he/she ought to contribute financially to
Canada through taxes, even if he/she also lives in another jurisdiction, in
that he benefits from tax-funded services while in Canada. Nonetheless, the fact both parties by choice
spent significant time, year after year, at a residence in Ontario does seem to
amount to as strong a form of residency as is seen already in the case law of
what constitutes residence for the purpose of jurisdiction.
The Court also affirmed
that the fact an applicant is resident in the forum at the time of the
application may in family cases constitute a presumptive connecting
factor. The Court distinguished Van Breda on the ground it dealt with a
tort claim. The Court reasoned that “support
claims are arguably quite different from tort or contract claims in that,
absent appropriate support from the former partner, the burden of support may
fall upon the state where the party seeking support resides.” To the contrary, support cases and tort cases
are not so different. In a tort case the
burden of medical care (in an accident case such as Van Breda) may fall upon the state too. The Court of Appeal's reasoning is hard to reconcile with Van
Breda, specifically the reason why the plaintiff’s/applicant’s residence in the forum does not
constitute a presumptive connecting factor:
the Supreme Court said that principles such as fairness, efficiency and
comity are not to be confused with “factual connections that will govern the assumption
of jurisdiction” (para 84). With
respect, this new presumptive connecting factor is likely not consistent with Van Breda.
