Thursday, 21 August 2014

Update on Determination of Jurisdiction in Family Law

           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.

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