sept. 5. 2020

Taking Jurisdiction: Latest ONSC taking of jurisdiction against a Connecticut divorce order.

Leavens v. Fry, 2020 ONSC 5077 (CanLII)

Ken Leavans and Jennifer Fry were from Toronto. They moved together to Australia and were married there. They had two Australian children. They moved to Connecticut where they divorced, by Connecticut court order in 2018.

Ken was granted Connecticut court order permission to move with the children to Toronto. Jennifer exercised her access by travelling to Toronto.

In 2020, Ken applied in Ontario, for access and support relief, in essence, to vary the Connecticut divorce order. Jennifer then applies for an Ontario superior court declaration that Ontario does not have jurisdiction (5)

Does Ontario have jurisdiction, should Ontario take jurisdiction?

Jennifer’s attack on Ontario jurisdiction was in trouble when she conceded that the children were habitually resident in Ontario pursuant to s.22(1)(a) of the Children’s Law Reform Act. This gave Ontario jurisdiction simpliciter over custody and access questions. (24)

Ken had applied for a change of the support order. Did Ontario have jurisdiction to, in effect, vary an out-of-state support order?

The problem for Diamond J. was that there was a line of Ontario cases which discouraged collateral attack upon out-of-state support orders (52). There is Ontario legislation Interjurisdictional Support Orders Act 2002, S.O 2002 c.13, which required a particular procedure (that Ken did not follow, instead, bringing a simple application before the Ontario superior court under the ordinary rules).(39)

The Court of Appeal gave dad an escape from the requirements of the Interjurisdictional Support Orders Act 2002, S.O 2002 c.13, saying that the Ontario court could otherwise take jurisdiction where there is real and substantial connection, or where mom attorned to Ontario (which Jennifer did not do). (43)

Diamond J. then proceeded to think about real and substantial connection. Wasn’t the ‘real and substantial connection’ test for taking jurisdiction modified by the SCC in Van Breda? Didn’t the Ontario Court of Appeal, itself modify Van Breda for family law jurisdiction-taking (Wang v. Lin 2013 ONCA 33)?(58)

Diamond J. accepts jurisdiction over the support variation issue by applying, in essence, 'real and substantial connection' and finding the test met on the following 3 facts(59):

* The applicant and the children's extended family reside in Ontario;

* The children are registered for school and extra-curricular activities in Ontario, and most if not all of their significant extraordinary expenses are incurred in Ontario; and,

* The respondent is originally from Ontario. Her immediate (and most of her extended) family members reside in Ontario. She spends parts of the summer in Ontario cottage country. She visits Ontario at least twice per month to visit the children per the existing access terms.

Jennifer’s real attack was upon forum non conveniens (given that Connecticut had already issued so many orders in the matter). Having found jurisdiction simpliciter, should the Ontario court nevertheless decline jurisdiction?

Diamond J. again turns to Van Breda and uses the following facts to determine that Ontario is the best forum:

Most of the indicators pointed to Connecticut: that is where all of the children and family spent most of their lives (4 yrs), a custody and access assessment would be conducted in Connecticut (and not necessarily under Ontario legislation). The daughter’s past education evidence of special needs was in Connecticut. Jennifer’s income facts were in Connecticut (68).

But the location of the majority of parties, in particular, evidence as to the ‘current needs and best interests of the children requires the court to evaluate how they are faring in Ontario’ (72).