Family Law Mater? Pick a Court – and Pick a Province, Too
In my Blog a few weeks ago, I reported on a recent case called Houle v. Trottier, where the court concluded that family law litigants were not permitted to go “court shopping”, by jumping from court to court in the process of resolving their disputes.
In another case called H. v. H., the Ontario Superior Court of Justice similarly concluded that a party could not jump from province to province either, in choosing a court to hear their divorce-related applications.
The facts involved a divorcing husband and wife who had one child together, but who collectively had five other children from previous marriages. In the summer of 2009, the wife had accepted new employment in Edmonton, Alberta and had moved there without the children. There was an issue as to whether the husband ever intended to join her there, but in any event, the couple formally separated in October of 2009.
During a visit back in Toronto at Thanksgiving, the wife was told by one of her daughters that the husband had engaged in “sexually inappropriate behaviour” toward her. The wife reported the incident to Toronto Police, who charged the husband with sexual assault and interference. However, the charges were withdrawn a year later, in July 2010. The Edmonton police had also assisted Toronto police in the investigation; the mother attempted to have charges laid against the husband in Alberta as well. She also took steps to have the Ontario charges revived.
Meanwhile, the parties’ divorce action was winding its way through the Ontario court, where they had originally launched their application for divorce and related motions for child support. A custody application was also brought in Alberta at one point.
However eventually – and despite the fact that the husband, the children, and the wife’s former husband all lived in Ontario – the wife brought a motion to declare that the Ontario court had no jurisdiction to deal with the case. She wanted it transferred to Alberta, claiming that the daughter who alleged to have been sexually molested by the husband was ordinarily resident in Alberta, by virtue of the father’s acquiescence and the passage of time. Besides the wife and possibly the child’s therapist, there were no other potential witnesses who lived in Alberta.
The jurisdictional issue came before the court for its determination.
Legally, and because this was a case involving divorce, child custody and access, the precise question was whether the Alberta court could decide some of the issues (custody and access) while the Ontario court decided all other remaining issues (divorce and related matters). Procedurally, the correct test was whether the court should transfer the case under the provisions of the federal Divorce Act, which allows for the transfer of divorce proceedings where there is a custody application.
In this case, the court concluded that no transfer should occur. First of all, it could not be said that the husband had acquiesced to the daughter’s habitual residence being Alberta; he was facing criminal charges at the time, and was subject to restrictions, so he took no steps to obtain custody or access.
Next, the court pointed out that the wife herself had chosen Ontario as the proper jurisdiction when she commenced the divorce application and claimed custody in that province, and had raised the issue of jurisdiction only after the criminal charges against the father were withdrawn in July of 2010. The wife had also taken various steps to obtain temporary orders in the Ontario court, relating to custody and access, and had chosen not to start a custody case in Alberta until steps were taken to fix a trial date for the divorce and related matters in Ontario.
Finally, the divorce had to proceed in Ontario because the wife did not meet the residency requirement in Alberta under the Divorce Act (which requires residence in the province for at least one year prior to commencing the divorce application). Ontario was also the province that was most substantially connected to the dispute between the parties, it was in the child’s best interests to avoid delay, and it would further the administration of justice to consider the convenience of the parties and other witnesses.
Accordingly, the matter was set down for trial before an Ontario court.
For the full text of the decisions, see:
H v. H., 2011 ONSC 1569 (CanLII), http://canlii.ca/t/fkhw9
Houle v. Trottier, 2012 ONSC 786 (CanLII) http://canlii.ca/t/fpwwl