Modern families are mobile and can have connections to several jurisdictions, both during a marriage and following separation. Former spouses may relocate and have ongoing family obligations yet reside in different jurisdictions. Knowing where to initiate a family law proceeding can be complex, and commencing a claim in Ontario does not mean that Ontario courts will assume jurisdiction over your matter. Even where a proceeding can be brought in Ontario courts, it is important to recognize how the different statutory frameworks governing family law can affect your claim and impact available remedies.
In the recent case of Simons v. Crow, Boulby Weinberg LLP successfully represented an out-of-jurisdiction father against an attempt to have a foreign support order re-litigated in Ontario. The court held that deference was owed to the foreign court in Bermuda, and ruled the respondent father would be unfairly prejudiced if new proceedings were permitted in Ontario.
Jurisdiction limited by definition of “child” in family laws
In Simons v. Crow, the applicant’s mother sought an order for decision-making authority over the parties’ three adult children (all of whom had mental disabilities) and spousal support. The case presented the court with jurisdictional issues as the family resided in Bermuda when the parties separated in 2005. They divorced in Bermuda and had accrued several court decisions in Bermuda addressing parenting, property, and support matters.
In 2008, the mother returned to Ontario with the children while the father remained in Bermuda. Despite participating in the Bermuda litigation, the mother commenced a new application to deal with the issues in the Ontario Superior Court of Justice. The father alleged Ontario lacked jurisdiction over the matter.
On the matter of decision-making authority and parenting time, the father pointed to provisions of the Children’s Law Reform Act (“CLRA”) which recognized the importance of avoiding concurrent jurisdiction between domestic courts and the enforcement of foreign orders. It was evident to the court that all three children were habitually resident in Ontario, where they had primarily resided since 2008. Therefore, the mother had met the burden of establishing territorial jurisdiction under the CLRA. However, all three children were over the age of majority, forcing the court to examine whether it could address custody and access issues for adult children.
The applicant’s mother brought her claims under the Children’s Law Reform Act rather than the Divorce Act, as the Bermuda court had already determined the issue of divorce. The difference was significant, as the provisions of the CLRA dealing with custody, access, and guardianship of children only apply to minor children. By contrast, the Divorce Act encompasses children who are “the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Ontario’s Children’s Law Reform Act distinguishes between minor and adult children, unlike the Divorce Act. As a result, the CLRA does not confer jurisdiction to make decision-making and parenting orders respecting adult children. Instead, the Substitute Decisions Act governs decision-making for adults who are incapable of making personal care decisions. The court, therefore, held the issues raised by the applicant were more suited to an application under the Substitute Decisions Act than under family law legislation.
“Real and substantial connection” between legal issue and prospective jurisdiction required
The applicant’s claim for child support was brought under Ontario’s Family Law Act, which is not limited to minor children (unlike access and custody issues under the Children’s Law Reform Act).
Though the subject matter properly fell before the court, the question of whether Ontario had territorial jurisdiction over the issues remained. In deciding child support, Ontario courts can assert jurisdiction against an out-of-province payor if:
- The payor is physically present in Ontario;
- The payor consents, agrees, or attorns (intentionally or unintentionally consents) to Ontario as the applicable jurisdiction; or
- Ontario has a “real and substantial connection” to the matter being litigated.
A “real and substantial connection” can be established where the subject matter of the litigation is linked to the prospective jurisdiction. Several factors are relevant in assessing the connection between the legal subject and the forum:
- The connection between the forum and the plaintiff’s claim;
- The connection between the forum and the defendant;
- Unfairness to the defendant in assuming jurisdiction;
- Unfairness to the plaintiff in not assuming jurisdiction;
- The involvement of other parties to the suit;
- The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
- Whether the case is interprovincial or international in nature; and
- Comity (deference) and the standards of jurisdiction.
The applicant carries the burden of satisfying the court that it has jurisdiction to hear the claim.
Generally, an Ontario court cannot decide a corollary relief proceeding under the Divorce Act where there has been a valid divorce in a foreign jurisdiction. Citing the Ontario Court of Appeal’s decision in Cheng v. Liu, the court noted child support can be ordered under the Family Law Act, where the foreign court order has been silent on the issue. Justice Bale acknowledged that where a pre-existing foreign order deals with support, Ontario courts should not entertain new support applications out of a concern that litigants may resort to “forum shopping”.
Court weighed parties’ connections to Ontario, potential prejudice
The respondent’s father was not physically present in Ontario and did not “attorn” (unintentionally or intentionally consent) to Ontario as the applicable jurisdiction. The applicant had to meet the “real and substantial connection” test for the Ontario court to assume jurisdiction. The court proceeded to apply the factors assessing the connections between the litigation and Ontario.
The father’s only remaining connection to the province was the ongoing need to visit to spend time with his children. Conversely, the mother and the three children had resided in Ontario for more than a decade. The mother’s income was based in the province, and all three children received financial payments from the Government of Ontario. These grounds suggested a strong connection to Ontario, as the mother and children no longer had any meaningful ties to Bermuda.
However, the court noted other factors that did not weigh in favour of Ontario assuming jurisdiction over the issue of child support. The matter had been litigated in-depth in Bermuda, and a judgment was rendered before the mother objected to the proceedings. Additionally, the legal framework applied by the Bermuda courts was similar to that used in Ontario. The court found that the father participated in good faith in the court proceedings in Bermuda and should not be required to re-litigate an issue in another court without compelling reasons.
Considering all of the circumstances, the court found the father would face significant procedural unfairness if new proceedings were commenced in Ontario. The mother, by contrast, faced no prejudice if the Ontario courts did not take up the case as she was unable to point to any deficiencies in the Bermuda judgment.
Court declined to grant new proceeding given valid foreign judgment
The judge decided the mother had not established that Ontario had territorial jurisdiction to hear the child support claim. Adopting the comments of a prior decision of the Ontario Superior Court of Justice, Justice Bale held that Ontario lacks jurisdiction in situations where a valid foreign court order decided the issue of support. She stated that any application in Ontario is a disguised attempt to vary that order.
Commencing a legal action in Ontario does not mean that Ontario courts will find jurisdiction to hear a case or resolve a family matter. Finding a real and substantial connection between the litigation and the forum can enable courts to exercise authority. However, they may still decline if an issue is more appropriately adjudicated in another jurisdiction.
Contact Boulby Weinberg LLP in Toronto for Advice on Support Applications
The lawyers at Boulby Weinberg LLP help clients in a number of international family law matters, including jurisdictional challenges, international child abductions, and issues facing multi-jurisdictional families. Our experienced team provides clients with focused, tailored legal strategies that address the unique circumstances of your family. To discuss your matter further or arrange a consultation, please call us at 647-494-0113 ext. 102 or complete our online questionnaire.