COURT OF APPEAL FOR ONTARIO
CITATION: Naeli v. Ghaeinizadeh, 2013 ONCA 2
DATE: 20130104
DOCKET: C55766
LaForme and Watt JJ.A. and Lederman J. (ad hoc)
BETWEEN
Ila Naeli
Applicant
(Respondent on Appeal)
and
Pedram Ghaeinizadeh and Payam Ghaeinizadeh
Respondent
(Appellant on Appeal)
Heather Hansen, for the appellant
Daryl Gelgoot and Brittany Twiss, for the respondent
Heard: December 10, 2012
On appeal from the order of Justice Victor Paisley of the Superior Court of Justice, dated July 10th, 2012.
ENDORSEMENT
Introduction
[1] The father appeals from orders made pursuant to urgent motions brought by the respondent mother. Among other things, the mother sought temporary custody of the parties’ child – who was physically present in Ontario at the time of the application – child and spousal support, a preservation order, and a Certificate of Pending Litigation against title to the Matrimonial Home.
[2] On the motion the father argued, as he does on appeal, that the Superior Court lacked jurisdiction to make any of the requested orders. The motion judge concluded that the court had jurisdiction and that he ought to deal with the urgent issues on an interim basis.
[3] In assuming jurisdiction, the motion judge cited the undisputed fact that the parties resided together in Ontario for a substantial period of time, namely from July 2011 to April 2012, and resided in Ontario with the child at the time of separation. He also cited the undisputed fact that the child was enrolled in preschool in Toronto, that the mother had been the child’s primary caregiver since birth, and that the parties are Canadian citizens.
[4] The motion judge granted the mother temporary custody of the child, and ordered the father to make a one-time support payment in the amount of $5,000 to be credited against any future orders for support. The motion judge also ordered the issuance of a Certificate of Pending Litigation against the Matrimonial Home, a non-depletion order and ordered that the father maintain the payments on the home and a car.
[5] The issues of access, exclusive possession of the Matrimonial Home, child and spousal support and forum conveniens were adjourned to be discussed at the case conference.
Facts
[6] There are many facts the husband and wife do not agree on such as the nature and extent of their stay in Canada. In addition there are allegations of abuse between the husband and wife. However, there are also facts not in dispute, including that: the husband and wife were married in 2006 and are citizens of Canada; the husband is a business development consultant in Thailand; the wife is a stay-at-home mother and an entrepreneur; and, the parties have a son who was born in Thailand in 2008.
[7] Additionally, it is not disputed that the parties have spent considerable time in Canada since July 2011; the child was present in Ontario at the time of separation and when the mother commenced her application; and, the child was enrolled in preschool in Ontario in September 2010.
Positions of the Parties
[8] The husband takes the position that the motion judge erred in assuming jurisdiction in a summary manner and in making the orders he did where jurisdiction was in dispute.
[9] In oral argument, counsel emphasized that in the face of a jurisdictional challenge, no substantive orders should have been made. In particular, it is argued that in order to avoid prejudice to the husband, only access, rather than custody, should have been ordered on a temporary basis.
[10] The wife’s position is that no error was made.
Analysis
[11] Appellate courts are to give considerable deference to custody and access decisions made at first instance. An appellate court will not overturn a custody order in the absence of a material error, a serious misapprehension of the evidence or an error in law. See Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 11-12.
[12] In this case, temporary orders were made both under the Family Law Act, R.S.O. 1990, c.F.3, as am. (the “FLA”) for bridge support and to preserve the wife’s other claims under that Act, and the Children’s Law Reform Act, R.S.O. 1990, c.C.12 as am. (the “CLRA”).
(1) Jurisdiction to make the orders under the FLA
[13] Since the FLA does not specifically address the question of jurisdiction simpliciter, the common law “real and substantial connection test” applies.
[14] As the Supreme Court recently explained in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 343 D.L.R. (4th) 577 at para. 82, a real and substantial connection must be established “on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum”. The following factors were identified as presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a tort dispute: the defendant is domiciled or resident in the province; the defendant carries on business in the province; the tort was committed in the province; and a contract connected with the dispute was made in the province.
[15] The list must of course be modified in the family context. Here the judge relied on a number of factors including that the parties resided together in Ontario for a substantial period of time, that they resided in Ontario with the child at the time of separation, that the child is enrolled in a preschool program in Toronto, and that the applicant and respondent are Canadian citizens.
[16] While the husband objects to the determination of jurisdiction in a summary fashion, as the court observed at para. 72 of Van Breda, this is not at all unusual:
A particular challenge in this respect lies in the fact that court decisions dealing with the assumption and the exercise of jurisdiction are usually interlocutory decisions made at the preliminary stages of litigation. These issues are typically raised before the trial begins. As a result, even though such decisions can often be of critical importance to the parties and to the further conduct of the litigation, they must be made on the basis of the pleadings, the affidavits of the parties and the documents in the record before the judge…Issues of fact relevant to jurisdiction must be settled in this context, often on a prima facie basis.
[17] We accordingly find no error in the motion judge’s assumption of jurisdiction for the purpose of making preservation orders on an urgent motion while adjourning the question of whether the court should exercise that jurisdiction for the purposes of the subject application to a later date.
(2) Jurisdiction to make the orders under the CLRA
[18] Section 22 of the CLRA sets out the only circumstances in which a court shall exercise its jurisdiction to make an order for custody of or access to a child:
(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has as real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
[19] While the motion judge did not specifically address each of the criteria listed under s. 22(1)(b), we are satisfied that on his findings, the minimum criteria to establish jurisdiction simpliciter were met: the child was living in Toronto at the time of the application; the child had been living in Toronto with his parents for many months; there was no application for custody or access made elsewhere at the time of the motion; there was no extra-provincial order relating to custody or access recognized in Ontario; the child having lived for several months in Ontario and being enrolled in preschool had a real and substantial connection with Ontario; and on the balance of convenience it was in the child’s best interests for jurisdiction to be exercised in Ontario for the purposes of the urgent motion. For the purpose of the application for substantive relief, the question of whether Ontario should be the one to exercise jurisdiction was adjourned to a later date.
[20] We would also stress that it is clear from the reasons of the motion judge that his primary concern was the best interests of the child, in all the urgent circumstances.
Disposition
[21] We see no error in the orders made and the appeal is dismissed. We agree with the motion judge that the question of forum conveniens is still to be determined either on consent or upon a full hearing of the evidence.
[22] The wife is awarded her costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST.
“H.S. LaForme J.A.”
“David Watt J.A.”
“S. Lederman J. (ad hoc)”