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2014 ONCA 116

The appellant and the respondent were in a 10-year common-law relationship where they resided both in Florida and Ontario. After separating, the Respondent moved from Florida to Toronto. She commenced an application in Ontario seeking spousal support and a declaration that she was a beneficial owner of two Muskoka properties purchased by the appellant.

The appellant brought a motion seeking a stay of the respondent’s application. He argued that Ontario did not have jurisdiction over the claims and that if Ontario had jurisdiction, Florida was the forum conveniens (legal doctrine whereby courts can choose to not take jurisdiction over a matter because a more appropriate forum is available). Alternatively, the appellant sought an order that, if the application did proceed in Ontario, Florida law should apply to the claims because under Florida law, the respondent has no claim for support because she and the appellant never married.

The motion judge held that Ontario had jurisdiction and that Ontario was the forum conveniens. He further held that Ontario law applied to the claims. The appellant appealed all holdings made by the motion judge.

A. Does Ontario Have Jurisdiction?

The motion judge recognized that there were no statutory provisions governing Ontario’s jurisdiction to hear the claims advanced. He turned to the real and substantial connection test:

“Ontario has jurisdiction over this case because there is a real and substantial connection between the parties, issues and transactions in question in this case and Ontario. The presumptive factors establishing jurisdiction are that the case involves a claim to ownership of Ontario land, a claim for damage (the allegation of detriment incurred by the applicant in enriching the respondent) suffered in Ontario and a claim for support by a party who is ordinarily resident in Ontario. Further, the parties were both ordinarily resident in Ontario (as well as Florida) until their separation. Although their primary residence was in Florida, their customary pattern of life included residence for a substantial period each year in their Ontario home from 2007 through 2011, which made Ontario a “real home”. From the date of separation, the applicant was ordinarily resident in Ontario and not elsewhere.”

 The Family Law Act was silent on the question of jurisdiction over the respondent’s support claim. Without a controlling statutory provision, the concept of ordinary residence is appropriate when considering whether the parties’ physical connection to a jurisdiction is sufficient to constitute a presumptive connecting factor. The motion judge stated that if such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. Ordinary residence at the time of break-up therefore sufficiently connected the litigation and the parties to Ontario to warrant Ontario’s jurisdiction over the support claim.

The appeal judge agreed that the parties were ordinarily resident in Ontario at the time of the break-up and that ordinary residence provides the connecting factor to find that Ontario courts have jurisdiction over both the property and support claims.

B. Is Florida the Forum Conveniens?

The motion judge held that the appellant failed to demonstrate that Florida was the forum conveniens. He correctly placed the burden on the appellant to demonstrate it would be fairer and more efficient to adjudicate the claims in Florida than in Ontario. The respondent failed to show that Florida was the more appropriate forum and therefore the motion judge was correct in finding that Ontario was the forum conveniens. It was not enough to merely show that a Florida court could also have jurisdiction.

C. Is Ontario Law Applicable?

The appellant submitted that Florida law should be applied to both the property and support claims because Florida had the closest and most real connection to the issues and facts of the case. He relied on the fact that the parties’ primary residence was in Florida throughout their 10-year relationship. However, as the appellant and respondent were ordinarily resident in Ontario for the last five years of their relationship and the respondent was resident in Ontario at the time of the application, the appeal judge found that the motion judge properly found that there was no compelling reason to apply Florida law to the support claim.

The appeal was dismissed.