Family lawyers are seeing an increasing number of cases in which one party challenges the court’s ability to determine a case on the basis that it lacks jurisdiction. This is not surprising given that people are increasingly mobile and relocate for work or other reasons. A separated spouse may have returned to Ontario and wants to start a proceeding against their former spouse. Similarly, a spouse who remains abroad may wish to defend claims brought against them in Ontario. In these types of cases, it is important that your family lawyer has a clear understanding of how to manage issues involving a question of jurisdiction selection.

The lawyers at Boulby Weinberg LLP have considerable experience working with clients on inter-jurisdictional family matters. Our partners, Sarah Boulby and Oren Weinberg are each highly regarded internationally as renowned family law practitioners. They are both Fellows of the prestigious International Academy of Family Lawyers (IAFL), which provides them with a network of international legal experts around the world. As a result, our firm is uniquely positioned to manage matters involving multiple jurisdictions, both interprovincial and international.

Jurisdiction & Ontario Family Law Legislation

The jurisdiction in which a matter is decided can have a significant impact on the outcome. For example, some jurisdictions will treat a support payor more favourably than others. As a result, a dispute can quickly escalate if either parent sees an advantage in commencing a claim in a particular jurisdiction. As a federal state, Canada has thirteen provincial and territorial jurisdictions. With global mobility, many parents have close ties to jurisdictions abroad, including fifty potential jurisdictions in the country next door.

The determination of which jurisdiction a matter should be decided in is not always clear. People may have been a resident in Ontario, own property here, or they may have strong family connections in Ontario. But that does not necessarily mean that Ontario is the proper jurisdiction to resolve their family law disputes. Proceedings under the Children’s Law Reform Act, the Divorce Act, and the Family Law Act each contain different thresholds that must be met for an Ontario court to assume jurisdiction.

The threshold test under the Divorce Act is ‘ordinary residence’. The claimant must demonstrate that they were ordinarily residents in the province for at least one year immediately preceding the start of an application for divorce.

Under the Children’s Law Reform Act, the court will assume jurisdiction if the child is habitually a resident in Ontario. Habitual residence refers to:

• The place where the child resided with both parents;
• In cases where the parents are living separately, the place where the child resides with one parent pursuant to a separation agreement or with the consent of the other parent;
• The place where the child resides with someone other than a parent on a permanent basis for a significant period of time; or
• If the child is physically in Ontario, in certain circumstances the court will take jurisdiction even if this is not the child’s habitual residence.

Establishing Jurisdiction for Property and Support Claims Under the Family Law Act

Property and support claims under the Family Law Act (“FLA”) are dealt with differently. The FLA is silent on the question of jurisdiction. Jurisdiction must be determined in accordance with the principles established at common law, particularly, the ‘real and substantial connection test’. If the applicant cannot show the respondent to have submitted to deciding the matter in Ontario, then the applicant must connect the litigation to Ontario by demonstrating one or more of the following factors:

• The defendant is domiciled or a resident in the province;
• The defendant carries on business in the province; or
• A contract connecting the dispute (such as a marriage contract or cohabitation agreement) was made in the province.

If an Ontario court assumes jurisdiction based on the claims of the applicant, it will then be up to the party contesting jurisdiction to establish the legal principle of forum non conveniens, which means that another forum, or jurisdiction, is more appropriate. To establish this, the contesting party must demonstrate that another jurisdiction is more convenient for one or more of the following reasons:

• The location of the parties and witnesses;
• The cost of transferring the case to another jurisdiction or of declining a stay;
• The impact of a transfer on the conduct of the litigation or on related or parallel proceedings;
• The possibility of competing judgments;
• Problems related to the recognition and enforcement of judgments; and
• The relative strengths of the connections of the two parties to the jurisdictions in question.

Early resolution of the jurisdictional question can allow the parties to focus on the truly important issues, such as where the children should live and how they should be parented. Quick determinations of jurisdictional disputes may also deter parents from a rush to court to try to gain an advantage.

Contact Boulby Weinberg LLP for Experienced Representation for Jurisdiction Selection Issues in a Family Dispute

When there is a question of jurisdiction in a family matter, it is important to act quickly to try to secure the most convenient and favourable location. At Boulby Weinberg LLP, we are eminently qualified to work with clients managing family disputes across inter-provincial or international lines. Our lawyers will advise you of the best path forward and work urgently to settle any outstanding jurisdictional issues as quickly as possible in order to focus on the important issues at hand.

To arrange a consultation with a reputable and empathetic lawyer at Boulby Weinberg LLP, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.