Court File and Parties
COURT FILE NO.: FS-15-00404715-0000 DATE: 20160706 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Julia Michelle Bolland Applicant – and – David Drew Bolland Respondent
Counsel: David Seed, for the Applicant Harold Niman/Erin MacKenzie, for the Respondent
HEARD: May 30, 2016
HOOD J.
REASONS FOR DECISION
Introduction
1This is a motion regarding which court has jurisdiction to hear and determine this family law proceeding - Florida or Ontario.
2The Applicant, Julia, currently lives in Toronto. The Respondent, David, currently lives in Boca Raton, Florida. Their daughter, Lincoln, now 2 years old and who will be 3 in August, lives with Julia in Toronto.
3David commenced a Petition for Dissolution of Marriage in Florida on April 17, 2015. In it he seeks dissolution of the marriage, a division of the marital real estate and debt and other property, shared custody, and a determination of appropriate child support, alimony and attorney fees.
4Julia issued an Application in Ontario on August 20, 2015. In it she seeks a divorce, equalization of net family property, custody, child support, spousal support and costs.
5There was no evidence before me as to any juridical advantage or disadvantage with either jurisdiction although Julia in her factum suggested that alimony in Florida is more limited than spousal support in Ontario.
6Julia seeks an order declaring that Ontario has jurisdiction to deal with custody and access and to hear and determine a divorce along with corollary relief or relief under the Family Law Act.
7David opposes this order and seeks his own order dismissing the Application on the basis that Julia has not met the 12 month residency requirement prior to issuance of her Application on August 20, 2015.
Decision
8For the following reasons I allow Julia’s motion and dismiss David’s motion. Ontario has jurisdiction to deal with the custody and access of Lincoln, the support and property issues, and to grant a divorce.
Facts
9Both Julia and David were born in Toronto and grew up in Ontario. They both remain Canadian citizens. Their daughter is a Canadian citizen.
10David is a professional NHL hockey player. His actual physical location from September when training camp starts, to April when the regular season ends, or until June when the playoffs end, depends on the team he is with, upon his team’s schedule, and whether he is injured or actually playing with the team.
11While the parties disagree over when they began to cohabit, they agree that they married in June, 2010.
12In 2009 David signed a long-term 5-year contract with Chicago and bought a home in Chicago. The parties lived there following marriage. Julia states that once the hockey season was over they returned every summer to reside in Ontario. David disagrees and states that their home was in Chicago and they were merely visiting Ontario during the summer. This appears to be a distinction without a difference although it is clear that David, in his affidavit, seeks to place as much distance as he can between himself and Ontario.
13In April, 2013 they bought a home in London, Ontario. Julia states that this was to be their permanent home when David retired from the NHL, as they intended to settle in London. David disagrees and states that he had no intention of settling in London once retired, and that the London home was intended to be more like a summer vacation property.
14On June 24, 2013 Chicago won the Stanley Cup. Immediately after this David was traded to Toronto for the last year of his 5-year contract. David took steps to sell the Chicago home and the parties moved to their home in London.
15Lincoln was born on August 19, 2013 in London.
16For the 2013/2014 hockey season David rented an apartment in Toronto. Over the course of the season, Julia and Lincoln spent time at both the home in London and the apartment in Toronto. David spent time in Toronto, in London, or travelling with his team.
17At the end of the season, in June 2014, David became a free agent. On July 1, 2014 he signed a lucrative 5-year contract with the Florida Panthers and on August 22, 2014 the parties purchased a home in Boca Raton, Florida.
18Julia alleges that by this point they were having issues in their marriage. David disagrees and alleges that the breakdown only occurred in Florida after they had moved there as a family.
19The parties agree that on September 14, 2014 the three of them flew to Florida and stayed together at the Florida home. Julia alleges that it became clear to her over the next 2 weeks that the marriage had failed. In her Application she alleges they separated on September 17, 2014. David acknowledges that they had many fights over these 2 weeks and states that he needed rest and stability to properly prepare for the upcoming season and thought he and Julia needed time and space to work on their relationship. For these reasons, he alleges, Julia and Lincoln returned to Toronto. He denies any separation on September 17, 2014.
20Julia and Lincoln left Florida on September 29, 2014 and returned to Toronto. David gave permission for the two of them to travel together over the U.S. border back to Ontario, without him. Julia alleges that this was done consensually, after much discussion with David, who felt it would be better for his career if she and Lincoln returned to Ontario. David alleges that despite the permission he gave, he never consented to Julia moving to Toronto permanently and taking Lincoln with her. He alleges elsewhere in his affidavit, as if this was something that he could control, that he never consented to Julia, without mention of Lincoln, leaving Florida to reside in another jurisdiction.
21Upon their return to Toronto Julia and Lincoln initially lived in a hotel. They then rented a townhouse. Julia alleges that this was done with David’s assistance. Not only did he contribute financially to the rental, he travelled to Toronto and approved the location, which was close to his parents’ home. Julia and Lincoln currently live in a home in Toronto.
22Julia and Lincoln travelled to Florida for 1 week in November, 2014. The parties disagree over the nature of the visit. Julia alleges this was done in order for David to spend some time with Lincoln. David alleges that this was an attempt to work on their relationship and it was only after this visit that it was clear the relationship was irreparable and the parties separated. He further alleges that Julia took Lincoln back to Ontario without his consent. How this was achieved is unclear. He took no steps to compel Lincoln’s return to Florida until commencing his Petition.
23Over the 2014/2015 season Lincoln visited David for approximately one week per month accompanied by David’s parents, on those occasions when David was not travelling with his team. Lincoln was always returned to Julia in Ontario.
24In the summer of 2015, following the end of the hockey season, David lived in the London home. The home was sold on a consensual basis on November 20, 2015. The sale proceeds are being held in the trust account of a lawyer in Toronto.
David’s Motion to Dismiss
25David has brought a motion to dismiss Julia’s Application on the basis that Julia has not met the 12-month residency requirement prior to issuance of her Application on August 20, 2015.
26There is a disagreement between the parties as to whether Julia was ordinarily resident in Ontario for at least a year prior to August 20, 2015.
27I find that Julia was ordinarily resident in Ontario. From about July, 2013 when David was traded to Toronto she has lived in either London or Toronto. Ontario is the place where she had the settled routine of her life, where she regularly, normally or customarily lives. (see Thompson v. MNR, [1946] S.C.R. 209 pgs. 231 - 232). The 2 weeks in Florida, when Julia stayed with David to determine if their marriage could be saved and the 1 week in Florida to facilitate David visiting with Lincoln, cannot be viewed as a change of Julia’s ordinary residence. Julia's customary mode of life was in Ontario, except for her brief sojourn to Florida.
28Even if I was to accept David’s interpretation of the three weeks spent by Julia in Florida, this would not change the ultimate outcome of the two motions. Julia, in her Application, is also seeking relief under the Family Law Act and the Children’s Law Reform Act for custody, access, equalization of net family property, child support and spousal support. This relief is independent of any divorce and corollary relief. These statutes do not require Julia to be ordinarily resident in Ontario for one year prior to August 20, 2015. So even if the Ontario court could not grant a divorce, it could still grant all of the other relief sought. Moreover, she could issue a new Application for divorce today and the court would clearly have jurisdiction to grant a divorce and corollary relief based upon her residency in Ontario.
Jurisdiction under the CLRA – Custody and Access
29Section 22 of the CLRA sets out the circumstances in which the court shall exercise jurisdiction to make an order for custody or access. The question is - where is Lincoln habitually resident?
30Lincoln was born in Ontario. She has lived in Ontario, in either London or Toronto for her entire life, except for arguably two weeks in September, 2014. The one week visit in November, 2014 was clearly an access visit.
31David argues that the last place Lincoln resided with both parents in compliance with s. 22(2)(a) was in Florida for two weeks. He argues that s. 22(2)(b) does not apply because he never gave consent for Lincoln to leave Florida.
32I disagree. When he signed the consent for Lincoln to travel with Julia, no restrictions were placed on the consent. It was not conditional upon Lincoln’s return to Florida or Lincoln being temporarily in the custody of Julia. Moreover, as I read s. 22 (2)(b) and the issue of “consent, implied consent or acquiescence”, this relates to the question of which parent the child habitually resides with and not the question of which jurisdiction the child habitually resides in. Clearly David allowed Lincoln to be with Julia. He alleges that they had been fighting and they needed to be apart so they could work on their marriage, and at the very least, he could prepare for the upcoming season. He knew Julia was returning to Ontario. He knew Lincoln was going with her. He consented to this. There was no guarantee that both or either would return either temporarily or permanently. There is no suggestion by him that he was tricked or deceived in the two of them going.
33Nor is there any evidence, until he filed his Petition for Dissolution on April 17, 2015, that he took any steps to compel Lincoln’s return to Florida. If he did not consent to Lincoln being with Julia in Ontario he certainly acquiesced.
34It must not be forgotten that David is a professional hockey player. As such, he travels extensively. Lincoln, in September, 2014, was only one year old. David was just about to embark on a new season with a new team. To have suggested that Lincoln remain with him rather than Julia would have been inappropriate. I find that David gave his consent or implied consent, or that he certainly acquiesced to Lincoln being with Julia. It appears that his position is now a form of game playing in an attempt to obtain some perceived advantage in the litigation with Julia.
35This too is a realistic result. Lincoln, since being born on August 19, 2013, has lived with Julia in either London or Toronto. To suggest that 2 weeks in Florida in September, 2014 changed Lincoln’s habitual residence to Florida makes no sense. It ignores the reality that Lincoln now finds herself in. She has practically lived her entire life in Ontario and with Julia.
Jurisdiction over Property and Support
36Ontario has jurisdiction under the Divorce Act to deal with child and spousal support. Ontario has jurisdiction under the FLA to also deal with support and property.
37David argues that in order to have jurisdiction under the FLA over support and property the common law test of there being a “real and substantial connection” must apply. I find there is such a connection.
38Julia is ordinarily resident in Ontario. This is not a case of forum shopping. She has a real and substantial connection to Ontario. Lincoln resides with Julia in Ontario. Julia has a claim against property which is in Ontario. Although the real property has been sold, her remedy is for the monetary value of the home. While there is property in Florida, her claim is not for the property itself but for an equalization or monetary claim against the property. The fact that it is in Florida is irrelevant for the purposes of the equalization process.
39Julia’s ordinary residence in Ontario at the time of separation, whether in September, 2014 or in November, 2014 warrants Ontario’s jurisdiction over the support claim (see Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763 at para. 34).
40While David currently lives in Florida, his residence depends upon the team he plays for. When he played with Chicago he resided in Illinois. When he played with Toronto he resided in Ontario. Now that he plays with the Florida Panthers he resides in Florida.
Forum Non Conveniens
41I have also considered the question of forum non conveniens. The burden is on David to demonstrate that it would be fairer and more efficient to adjudicate the claims in Florida than Ontario. David has not met this burden.
42The location of the parties is neutral.
43The location of key witnesses and evidence would support Ontario. Other than David, most witnesses reside in Ontario including both David’s and Julia’s parents. Lincoln’s support system of day care providers and doctors are in Ontario. David’s financial information is readily available regardless of which jurisdiction is appropriate. The Ontario court can conduct an analysis of what is appropriate child or spousal support even with David in Florida.
44There are no contractual terms governing the applicable law or jurisdiction.
45There is a possibility of a multiplicity of proceedings. However, custody and access should be decided in Ontario. Spousal support and child support can be decided in Ontario. While some of the property is in Ontario and some is in Florida, property issues can also be decided in Ontario. An Ontario judgment may or may not be recognized in Florida for the purposes of selling property in Florida. There was no evidence on this point. Any equalization order with respect to property would be personal to David and be presumably enforceable against him even if he lives in Florida. No one suggests it is not.
46The geographical factors, suggesting the natural forum are neutral.
47There was no evidence one way or another on the deprivation of a legitimate juridical advantage. This too is neutral.
48On the whole, the factors do not support Florida as a more appropriate forum than Ontario. Rather they support Ontario as being the more appropriate forum.
Order
49Order to go in accordance with paragraphs 1 to 4 of the Applicant’s motion dated April 27, 2016.
50With respect to paragraph 5 of the Applicant’s notice of motion, while this was not argued before me, there is no doubt that the Application came to the attention of the Respondent and an order validating service of the Application upon the Respondent shall be issued.
51The Respondent’s motion of May 20, 2016 is dismissed.
52The parties shall attempt to reach an agreement on costs. If unable to do so, the Applicant may file brief written submissions, not to exceed two typed double-spaced pages, together with a Bill of Costs and any necessary documents, such as offers to settle, on or before July 25, 2016. Any reply submissions from the Respondent, subject to the same directions, are to be filed within three weeks of service of the initial submissions. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective cost submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
HOOD J. Released: July 6, 2016