Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210528 DOCKET: C69223

Huscroft, Paciocco and Jamal JJ.A.

BETWEEN

C.C. Applicant/Responding Party/ Moving Party (Appellant)

and

J.B., P.B. and L.B. Respondents/Moving Parties/ Responding Parties (Respondents)

Counsel: Richard Niman and Beth Purdon-McLellan, for the appellant Alexandra Kirschbaum, for the respondent J.B. Katherine A. Cooligan, for the respondents P.B. and L.B.

Heard: May 13, 2021, by video conference

On appeal from the order of Justice Julie Audet of the Superior Court of Justice, dated December 10, 2020, with reasons reported at 2020 ONSC 7610.

Reasons for Decision

[1] The appellant mother, C.C. (“mother”), and the respondent father, J.B. (“father”), are the parents of four children. On this appeal, the mother challenges the finding of the motion judge that the Ontario Superior Court has jurisdiction over the youngest child, who was born in the U.S. and has never been to Canada. The motion judge made this finding in granting temporary parenting orders regarding the four children in response to motions brought by the mother, the father, and the respondent paternal grandparents, P.B. and L.B. (“grandparents”). The mother does not dispute that the Ontario Superior Court has jurisdiction over the three older children but claims it lacks jurisdiction over the youngest child.

[2] The background facts, which are complex, are detailed in the motion judge’s reasons. For present purposes, the essential facts may be briefly stated.

[3] All four children were born outside Canada: the eldest three children were born in Asia and the youngest child was born in the U.S. When the mother was pregnant with the youngest child, she began an application in the Ontario Superior Court seeking orders under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and the Family Law Act, R.S.O. 1990, c. F.3, regarding her three children and her then-unborn fourth child. The court granted her temporary decision-making responsibility over the three older children but found it lacked jurisdiction over the then-unborn fourth child. With the court’s permission, the mother moved to the U.S., where she is a citizen and has family. The youngest child was born there. The mother and the four children continue to live in the U.S.

[4] After the birth of the youngest child, the father brought an application for divorce in the Ontario Superior Court and then also sought temporary parenting orders regarding all four children. The mother later consented to the consolidation of the divorce proceeding with her application for parenting orders.

[5] The mother also began a proceeding before a U.S. court for custody of the youngest child. In that proceeding, the U.S. court dismissed the father’s motion to decline jurisdiction, stating that it “does not decline to exercise its jurisdiction.”

[6] The father and grandparents then brought the underlying motions for temporary parenting orders regarding all four children, relying on what is now s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and ss. 21 and 72 of the CLRA. The mother brought a cross-motion to dismiss those motions. She filed a motion factum, sought an adjournment, and participated in the motions on the merits.

[7] The mother raises several arguments challenging the motion judge’s finding that the court has jurisdiction over the youngest child. However, that issue can be resolved based on ss. 3 and 4 of the Divorce Act and the mother’s attornment to the court’s jurisdiction.

[8] The court has jurisdiction over the subject-matter of the proceedings under ss. 3 and 4 of the Divorce Act because the father was “ordinarily resident” in Ontario for one year immediately preceding the commencement of the divorce proceedings. We thus agree with the determination of the motion judge that the Ontario Superior Court is a “court of competent jurisdiction” under s. 16.1 of the Divorce Act to make the parenting orders sought by the respondents.

[9] The mother brought no motion challenging jurisdiction under r. 16(12) of the Family Law Rules, O. Reg. 114/99. Instead, she took steps in and argued the merits of the underlying motions. She therefore attorned to the court’s jurisdiction by “[taking] steps beyond merely contesting the jurisdiction of [the] court”: Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52; Kunuthur v. Govindareddigari, 2018 ONCA 730, 427 D.L.R. (4th) 120, at para. 18, leave to appeal refused, [2018] S.C.C.A. No. 449.

[10] We thus see no error in the motion judge’s conclusion that the Ontario Superior Court has jurisdiction to make parenting orders regarding all four children, including the youngest child.

[11] In this court, the parties raised forum non conveniens, which the motion judge mentioned in her reasons but is not reflected in the court’s order. The motion judge’s reasons stated that “it is not realistic to suggest that there could possibly be another forum more convenient to decide the best interests of [the youngest child] than the jurisdiction in which the best interests of her three older siblings are going to be assessed and determined”. She added that “[t]he evidence and analysis of which parenting arrangements are in [the youngest child’s] best interests are inextricably intertwined with the evidence and analysis relevant to the best interests of her siblings, and they should be decided together, in one court.”

[12] Forum non conveniens is a separate determination to be made once jurisdiction simpliciter is established. The decision to raise forum non conveniens rests with the parties, not with the court seized of the claim. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 101-3.

[13] Here, forum non conveniens was not raised before the motion judge. The mother brought no motion asking the court to decline to exercise jurisdiction based on forum non conveniens and we were advised that this issue was not argued in the court below. Presumably, for that reason that the court’s order does not address forum non conveniens. The motion judge should thus not be taken as having decided the issue of forum non conveniens.

[14] The appeal is dismissed. In all the circumstances, including the mother’s reliance on public assistance for her day-to-day subsistence, there shall be no order as to costs.

“Grant Huscroft J.A.”

“David M. Paciocco J.A.”

“M. Jamal J.A.”