COURT OF APPEAL FOR ONTARIO

CITATION: Wang v. Lin, 2013 ONCA 33

DATE: 20130122

DOCKET: C55582

Doherty, Goudge and Hoy JJ.A.

BETWEEN

Hong Wang (aka Jennifer Wang)

Applicant (Appellant/ Respondent by way of cross-appeal)

and

Wei Lin

Respondent (Respondent/ Appellant by way of cross-appeal)

Bryan R. G. Smith and Sarah Conlin, for the appellant/respondent by way of cross-appeal

Aaron M. Franks and Roslyn Tsao, for the respondent/appellant by way of cross-appeal

Heard: December 14, 2012

On appeal and cross-appeal from the order of Justice Peter G. Jarvis of the Superior Court of Justice, dated June 7, 2012, with reasons reported at 2012 ONSC 3374.

Hoy J.A.:

OVERVIEW

[1] This appeal involves contested jurisdiction of the courts of Ontario in a family law matter under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”); and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).

[2] The mother, Hong Wang (aka Jennifer Wang), appeals the June 7, 2012, order of the motion judge allowing the father’s motion to stay her claims under the Divorce Act and the FLA,and her claims relating to property, on the grounds that the court has no jurisdiction under these acts.

[3] The father, Wei Lin, cross-appeals the motion judge’s order dismissing the father’s motion seeking the return of the two children of the marriage to China under s. 40(b)(3) of the CLRA.

[4] For the reasons that follow, I would dismiss the appeal, allow the cross-appeal, and return the issue of the appropriate order to be made under s. 40 of the CLRA to the motion judge or another judge of the Superior Court in Toronto.

THE BACKGROUND

[5] The parties were married in China.

[6] The mother is now approximately 39 years of age. The father is 40. The children, who were born in China, are aged approximately 9 and 10.

[7] The family immigrated to Canada from China in 2005, with the aim of acquiring Canadian citizenship. They purchased an expensive home in Toronto, and the children attended an independent school in Toronto until their academic year ending June 2010. They spent most of their summers in China. The mother acquired an Ontario drivers’ licence, and the mother and children obtained Ontario health cards. The mother and children obtained Canadian citizenship on June 1, 2010.

[8] The father spent very little time in Canada. He continued to manage the family’s significant assets in China. He lost his permanent resident status and remains a citizen of China.

[9] The family re-united in China in August 2010, in time for the children to commence the September 2010 school year at an international school in Beijing. China does not recognize dual citizenship. The mother and children entered China on visitors’ visas, which must be renewed every 90 days.

[10] The mother says the move was not a permanent one: the plan was to stay for two years so that the children would become more proficient in Mandarin and the father could re-apply for permanent residence status in Canada. The principal of the children’s school in Canada and a Canadian friend both confirm that the mother told them that they would return to Toronto in two years. The children’s nanny also states that in 2010, the father told her of the plan to return to Canada. The family kept their fully-furnished Toronto house, which is encumbered, and have a bank account in Toronto.

[11] The father, mother, children, and nanny of some seven years, lived in one of the three properties owned by the family in Beijing. (According to the mother, the father began living in a separate residence in November of 2011; the father’s evidence is that he remained at the family home). The children’s maternal grandparents lived in another property that the father purchased, and the children visited them every one or two weeks. The mother and children returned to Canada to visit friends and relatives for several weeks during the summer of 2011.

[12] In April of 2012, the mother travelled to Toronto and filed an application under the Divorce Act, the FLA and the CLRA for a divorce, child and spousal support, and custody of the children. She also made various property claims. At the time that she filed the application, the children were attending school in Beijing.

[13] The mother also brought an ex parte application before the motion judge for a world-wide Mareva injunction to freeze the father’s assets. The application was granted on April 18, 2012, on the basis that the court had jurisdiction under s. 3(1) of the Divorce Act. The mother then secured an order of the High Court of Justice in the British Virgin Islands that froze the father’s substantial corporate assets there. It had the effect of derailing the initial public offering of a company in which the father has a substantial interest.

[14] In response, the father immediately secured the children’s passports and brought a motion to stay the Ontario proceedings based on lack of jurisdiction under either the Divorce Act or the FLA or, alternatively, to set aside the Mareva injunction on the basis that mother had not provided full, fair and frank disclosure in her materials placed before the motion judge. That motion was argued on May 8 and 9, 2012.

[15] On May 8, 2012, the father also started family proceedings in China, which include a claim for custody.

[16] While the stay motion in Ontario was under reserve, the mother moved the children to Canada, without the father’s consent, using newly acquired passports. The mother had represented that the children’s passports were stolen and/or lost, and forged the husband’s signature on the application. Within a day of their return to Canada, the mother re-registered the children at their former school, for the school year commencing September 2012.

[17] When the father learned that the children were in Toronto, he immediately moved for their return to China under s. 40(b)(3) of the CLRA. The motion judge heard viva voce evidence on this second motion on May 29, 30 and 31, 2012.

THE LEGAL FRAMEWORK

[18] The jurisdictional tests under the Divorce Act, the FLA and the CLRA are all slightly different. Sections 3(1) and 4(1) of the Divorce Act provide as follows:

3(1) Jurisdiction in divorce proceedings

A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

4(1) Jurisdiction in corollary relief proceedings

A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

(b) both former spouses accept the jurisdiction of the court.

[19] The FLA does not specifically address the question of jurisdiction simpliciter. Both parties take the position that given the absence of a statutory rule, the common law conflicts rule of Canadian private international law – the “real and substantial connection” test – determines whether jurisdiction exists in Ontario’s courts.

[20] As the Supreme Court recently explained in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 82, a real and substantial connection must “be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum.” In order to bring greater clarity and predictability to the issue of when the court will assume jurisdiction, the Supreme Court identified a list of presumptive connecting factors for tort cases.[^1] A plaintiff must establish that one or more of those presumptive connecting factors exists; if she does, a rebuttable presumption of jurisdiction arises. As discussed below, the Supreme Court left open the possibility that over time courts may identify new factors which also presumptively entitle a court to assume jurisdiction.

[21] If an Ontario court assumes jurisdiction and forum non conveniens is invoked, the court may decline to exercise its jurisdiction if a respondent establishes that another forum is clearly more appropriate for disposing of the litigation: see Van Breda, at para. 108.

[22] The FLA does address what laws are to be applied in the event of a conflict:

Conflict of laws

15 The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario.

[23] The CLRA also includes specific rules as to when jurisdiction may be exercised:

Jurisdiction

22(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 a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual residence

22(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

Abduction

22(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[24] The CLRA also accords the court limited powers when it does not have jurisdiction under s. 22:

Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

THE MOTION JUDGE’S REASONS

[25] The motion judge released reasons on June 7, 2012, with respect to both of the father’s motions. As had been agreed by the parties, the motion judge decided the father’s stay motion solely on the basis of the affidavit evidence that had been before him at the time that he heard that motion, and without considering the viva voce evidence on the second motion.

[26] In deciding the father’s stay motion, the motion judge concluded that the mother had not established that she had been ordinarily resident in Ontario for at least one year immediately preceding the commencement of the proceeding. The court therefore did not have jurisdiction to hear and determine the divorce proceeding under s. 3(1) the Divorce Act. The motion judge did not go on to consider whether the mother met the test for corollary relief under the Divorce Act, but concluded that the mother had not satisfied the “real and substantial connection” test and the court did not have jurisdiction to grant the corollary relief sought under the FLA:

[10] Ms. Wang’s claims for corollary relief are also made under the Family Law Act, R.S.O. 1990, c. F.3. The applicable test is real and substantial connection, which requires the court to consider objective factors to determine whether the subject of litigation is connected with the forum. These “presumptive connecting factors” are not exhaustive but inform the type of factors to consider. See Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 2012 SCC 17, 2012 CarswellOnt 4268, at paras. 82-94.

[11] The “presumptive connecting factors” identified by the Supreme Court in the context of a tort case were set out by Lebel J. at para. 90:

(a) The defendant lives in the province;

(b) The defendant carries on business in the province;

(c) The tort was committed in the province; and

(d) A contract connected with the dispute was made in the province.

[12] The burden is on the party asserting the court’s jurisdiction. The test is met when a presumptive connecting factor is established that links the subject matter of the litigation to the forum. If none of the presumptive connecting factors apply, the court should not assume jurisdiction. See Van Breda, at paras. 93 and 100.

[13] The facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction. The relevant facts were set out in the Respondent’s factum at para. 20:

(a) The Husband does not live in Ontario or carry on business in Ontario. It is acknowledged by the Wife that the Husband's business is based entirely in China.

(b) The parties were not married in Toronto. The children were not born in Ontario.

(c) The parties have not lived together as a married couple in Ontario since at least August, 2010 and the children have not ordinarily resided in Ontario since August, 2010 based on the following facts:

i. The family has been living at their Chaoyang Home together, as an intact family, since August, 2010.

ii. The parties’ have a nanny of 7 years who resides with them in Beijing at the Chaoyang Home;

iii. Forrest and Leon are currently in their second year of elementary school in Beijing since September 2010 (after starting in JK in Toronto for 4 and 3 years, respectively);

iv. The children have 2 private tutors on a weekly basis;

v. The Husband purchased a home in Beijing for the Wife’s parents to live in and the children visit these grandparents almost weekly;

vi. The Wife does some work for her brother-in-law’s company in Beijing and does no work in Ontario;

vii. All of the family’s medical, dental and eye care is obtained in China;

viii. The only connection to Ontario is an encumbered real property and a bank account. In contrast, the parties have three real properties in China and significant bank accounts.

[14] With the exception of a house in Canada and a trust in the British Virgin Islands, the couple’s greatest assets are located in China. The boys have been attending school in Beijing for the past two years, and have family, friends and are involved in activities in China. Ms. Wang has not attempted to raise any new presumptive connecting factors that would allow the court to assume jurisdiction in these circumstances.

[15] I conclude that there is no real and substantial connection between the subject matter of this dispute and Ontario, and this court has no jurisdiction to grant corollary relief.

[27] The motion judge then addressed the father’s argument that the court had no jurisdiction to make an order for custody or access under s. 22 of the CLRA and should order the return of the children to China pursuant to s. 40 of the CLRA. He wrote, at para. 38:

It seems to me that the family’s history in Toronto is sufficient to establish habitual residence of the children in Ontario. The family set down roots and developed an established way of life in Toronto. It seems clear on the evidence that their stay in China was intended to be temporary, and that they had always contemplated resuming their established way of life in Toronto after a 1-2 year stay in Beijing.

[28] He continued that, even assuming that the children are not habitually resident in Ontario, each of the conditions in s. 22(1)(b) of the CLRA seemed to be established. He cautioned that he did not want to be taken as having made any finding of habitual residence, and explained that the concept of the best interests of the children guided him in resolving the issues before him. He concluded by inviting the parties to bring an application for custody and access, if they wished, and declined to make the order sought by the father.

THE PARTIES’ SUBMISSIONS

[29] The mother makes four main submissions.

[30] First, she argues that the motion judge erred by failing to consider the viva voce evidence on the second motion in deciding the father’s stay motion. As a result, the motion judge came to inconsistent findings as to jurisdiction.

[31] Second, she argues that the motion judge erred in law by failing to consider the evidence that was before him of the mother’s intention to return to Canada in two years in determining whether the mother was ordinarily resident in Canada, within the meaning of the Divorce Act. She cites Evans J.A.’s opinion (for the court on that issue) in MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 13 O.R. (2d) 233 (C.A.), at p. 239, for the proposition that the test the motion judge should have applied was: “Did the mother intend to stay in China for an indefinite period of time?” If she did not, she did not become ordinarily resident in China, and therefore remained ordinarily resident in Ontario, despite her absence.

[32] Third, she argues that in applying the “real and substantial connection” test, the motion judge failed to consider what presumptive connecting factors might be applicable in a family law matter. The “real home” of a party and/or the children is clearly such a factor, and the real home of the mother and children is in Ontario. The fact that the family has property of value in Ontario, and the fact that the motion judge determined that the parties’ rights and obligations with respect to custody and access may be determined in Ontario, should also be presumptive connecting factors in a family law case. Therefore, there is a real and substantial connection, and the father has not established that China is a “clearly more appropriate” forum.

[33] Finally, in response to the father’s cross-appeal, she asserts that the children were habitually resident in Ontario within the meaning of s. 22(1)(a) of the CLRA. And, even if not, the motion judge did not err in declining to return the children to China, since s. 40 of the CLRA is discretionary.

[34] The father, in turn, submits that the mother, having agreed that the viva voce evidence would not be considered on the stay motion, cannot resile from that position on appeal.

[35] He further submits that the motion judge’s finding that the mother was not ordinarily resident in Canada for the purposes of the Divorce Act is very much a factual finding, and as such should not be disturbed, absent a palpable and overriding error. He argues that MacPherson, at para. 18, as well as other cases, make clear that intention alone cannot determine the issue of ordinary residence; the motion judge correctly focussed on the location of the parties’ real home in the period leading up to the mother’s filing of the application.

[36] The father argues that, in applying the “real and substantial connection test” in a family law matter, the ordinary residence of the parents should be the presumptive connecting factor. Given the motion judge’s finding that the mother was not ordinarily resident in Canada at the time of the application, the motion judge properly concluded that the mother had not made out a real and substantial connection to Canada, and the courts of Ontario therefore have no jurisdiction over the mother’s claims for corollary relief under the FLA. Even if Ontario does have jurisdiction, the father argues that China is clearly the more appropriate forum: among other things, nearly all of the family’s very significant assets are located there.

[37] Finally, the father argues that the motion judge erred in finding that Ontario had jurisdiction under the CLRA. The statutory test for jurisdiction in s. 22, which supersedes the common law, is not made out. Accordingly, this court should order the immediate return of the children to China.

ANALYSIS

[38] Before considering the jurisdiction issues, I will dispose of the issue of the use of the viva voce evidence. In my view, the motion judge did not err by respecting the agreement of the parties that the viva voce evidence on the second motion would not be considered on the first, stay motion. Moreover, I am not persuaded that the outcome of the stay motion would have been different, had he considered the viva voce evidence. Most of the evidence regarding the mother’s intention to return to Canada was in affidavits that were before the motion judge on the stay motion. As will become apparent, the process agreed to by the parties, and applied by the motion judge, does not actually result in inconsistent decisions on jurisdiction.

[39] As to the jurisdiction issues, in my view the motion judge correctly concluded that the courts of Ontario do not have jurisdiction under the Divorce Act or the FLA. However, he did, in my view, err in concluding that the court had jurisdiction to make an order for custody of or access to the children, other than to the limited extent permitted by s. 40(b)(1) of the CLRA.

[40] I first address the motion judge’s finding that the mother was not ordinarily resident in Ontario for at least one year immediately preceding the commencement of the proceeding such that the courts of Ontario do not have jurisdiction to hear and determine the divorce proceeding under the Divorce Act.

[41] In MacPherson, this court found that the wife was not ordinarily resident in Ontario for the requisite one year period before filing for divorce in Ontario. The family lived in Ontario for four and a half years before moving to Nova Scotia. After eight months, the wife returned to Ontario; the husband stayed in Nova Scotia. She filed her application in Ontario about two and a half months later. At p. 239, Evans J.A. wrote:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community. In the present matter, while the husband and wife expressed opposing views as to their intention with respect to the establishment of a permanent residence in Nova Scotia, I do not believe that the intention alone can determine the issue of ordinary residence. Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact she was ordinarily resident in Nova Scotia for that period which continued until she moved and established her residence in Ontario.

[42] In my view, the motion judge did not err in the manner in which he approached the question of whether the mother was ordinarily resident in Ontario in the year immediately before filing her divorce application. His approach was consistent with MacPherson, which makes clear that intention alone cannot determine ordinary residence. Nor did the motion judge make any palpable and overriding factual errors.

[43] The wife and children returned to China once they obtained Canadian citizenship, taking up residency in a home owned by the family. They carried on their customary mode of life in China: the children went to school and engaged in extra-curricular activities, and the mother and children regularly visited family. The family was able to live together, which, given the father’s business interests in China, they had been unable to do while the mother and children obtained Canadian citizenship. The fact that the mother and children entered China on visitors’ visas is not determinative. As the motion judge observed, given that the father is a Chinese citizen, and, I would add, given the father’s very significant financial resources, it is hard to imagine that their re-entry to China would face any serious impediment. The father, on the other hand, has no immigration status in Ontario.

[44] The fact that the parties maintained a home in Toronto while living in China is also not sufficient to make the mother ordinarily resident in Ontario while she was living and carrying on her customary mode of life in China. The value of the parties’ assets in Ontario pales in comparison to their assets in China. China was not a special, occasional or casual residence. I agree that the mother was not ordinarily resident in Ontario in the year immediately preceding the filing of her divorce application. In my view, her real home during that period was in China.

[45] Since the motion judge proceeded to consider the issue of jurisdiction under the FLA without turning to the jurisdictional test for corollary relief under the Divorce Act, I will do the same without comment on the correctness of this approach. Had he considered the question as to whether the mother was ordinarily resident at the time of the application for the purposes of claiming corollary relief under the Divorce Act, the answer on these facts would have been that she was not. She had been living in China immediately prior to bringing the application.

[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA,respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.

[48] The final jurisdictional question is whether the court had jurisdiction to make an order under s. 22 of the CLRA. My answer is “no”.

[49] The court does not have jurisdiction under s. 22(1)(a), because the children were not habitually resident in Ontario at the time that the mother commenced her application. “Habitually resident” is defined in s. 22(2), reproduced above. Based on that definition, the children were habitually resident in China, which is the place that they last resided with both parents prior to the filing of the application.

[50] The court also does not have jurisdiction under s. 22(1)(b). Pursuant to that section, although a child is not habitually resident in Ontario, the court can exercise jurisdiction if all of the conditions set out in ss. 22(1)(b)(i)-(vi) are fulfilled. Section 22(1)(b)(i) requires that the children have been physically present in Ontario when the application was commenced. In this case, they were attending school in Beijing. It is not necessary to go any further.

[51] As the father submits, if the statutory test for jurisdiction in s. 22 is not made out, the court cannot resort to a common-law test to ground jurisdiction: see Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal to S.C.C. refused, 34945 (November 22, 2012).

[52] The remaining issue is whether this court should, as the father requests, order the return of the children to China.

[53] Under s. 40 of the CLRA, the court has several options when it is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario, or alternatively that it may not exercise jurisdiction under s. 22. These options include making “such interim order in respect of the custody or access as the court considers is in the best interests of the child.” The children are currently mid-school year in Toronto, with their mother, who has been their primary caregiver. Given the motion judge’s conclusion that the court had jurisdiction, he did not consider whether the court should make an interim order with respect to custody or access pending the children’s return to China, or order the immediate return of the children to China. In my view, this matter should be returned to the motion judge, or another judge of the Superior Court in Toronto, to determine what order should issue pursuant to s. 40 of the CLRA.

COSTS

[54] If the parties are unable to agree on the issue of costs, they shall provide brief written submissions within 30 days. No reply submissions shall be provided without leave.

Released: Jan. 22, 2013 “Alexandra Hoy J.A.”

“DD” “I agree Doherty J.A.”

“I agree S.T. Goudge J.A.”

[^1]: In a tort case, those factors are: (a) the defendant is domiciled or resident in the province; (b) the defendant carried on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province: see Van Breda, at para. 90.