Court of Appeal for Ontario

CITATION: Ogunlesi v. Ogunlesi, 2012 ONCA 723

DATE: 20121026

DOCKET: C55488

Before: Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Elizabeth Ogunlesi

Applicant (Respondent)

and

Anthony Ogunlesi

Respondent (Appellant)

Counsel:

Joan Manafa, for the appellant

Vivian Rerri, for the respondent

Heard: October 22, 2012

On appeal from the order of Justice George Czutrin of the Superior Court of Justice, dated April 17, 2012.

APPEAL BOOK ENDORSEMENT

[1] The respondent commenced family law and divorce proceedings in Ontario in April 2011. The appellant challenged the jurisdiction of the Ontario court to hear the case on the grounds that neither party was ordinarily resident in Ontario for at least one year prior to the commencement of the proceedings, as required by s. 3(1) of the Divorce Act, R.S.C. 1985, c. 3.

[2] The motion judge set out the appropriate legal requirements for determining ordinary residence. He also thoroughly canvassed the relevant jurisprudence and the conflicting evidence given by the parties. He concluded that the respondent was “ordinarily resident” in Ontario for the purposes of the Divorce Act and took jurisdiction simpliciter. However, he went on to indicate that a trial would be necessary to determine which jurisdiction (Canada or Nigeria) is the appropriate forum in which the case would ultimately be heard.

[3] In making the requisite finding of residency, the motion judge relied on, among other things, the following findings of fact:

(1) both the appellant and the respondent had obtained Canadian permanent residence in July 2009;

(2) the respondent obtained an Ontario driver’s licence and health card in June 2010;

(3) the respondent returned to Ontario from her various trips abroad;

(4) the parties had at least one dependent child in school in Ontario during the relevant time periods; and

(5) the parties owned a large number of properties in Ontario in the relevant time frame.

[4] Deference is owed these findings of fact. There is no basis for appellate intervention. The appeal is dismissed.

[5] The motion to admit fresh evidence is dismissed. The fresh evidence goes to the issue of the most appropriate forum, not jurisdiction simpliciter.

[6] Costs to the respondent, fixed at $10,000 all inclusive.