“Ordinary Residence” and “Habitual Residence” are the applicable jurisdictional tests in family law disputes, Ontario appeal court rules

The Court of Appeal for Ontario in Wang v. Lin, 2013 ONCA 33 (CanLII) has held that the presumptive factors in  Club Resorts Ltd. v. Van Breda2012 SCC 17 (CanLII), 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.) do not fit within the established statutory scheme for asserting jurisdiction in family law matters under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”); and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Rather, “ordinary residence” and “habitual residence” (arguably, “presence-based jurisdiction”) are the applicable jurisdictional tests under the Divorce Act and the CLRA,respectively:

[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.


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