CITATION: Morgan v. Baxter, 2015 ONSC 2214
COURT FILE NO.: 9945/14
DATE: 2015/04/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Lyn Morgan
Applicant
– and –
Adrian Baxter
Respondent
Ashley Gibson, for the Applicant
George Kirkham, for the Respondent
HEARD: March 24, 2015
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON MOTION
[1] This is a motion brought by the applicant, Jennifer Morgan, (“Morgan”) for a declaration that the Ontario Superior Court of Justice has jurisdiction to deal with all of the matrimonial issues between the parties, including divorce, custody, child support, spousal support, and division of property.
[2] It is the position of the respondent, Adrian Baxter, (“Baxter”) that this court does not have jurisdiction over these matters as the Civil District Court for the Parish of Orleans (“the New Orleans Court”) has, in a decision dated October 13, 2014, determined that the New Orleans Court has jurisdiction over “the parties’ divorce and ancillary matters”.
[3] On this motion this court must determine whether it has jurisdiction, whether it should assume jurisdiction, and the extent to which it will recognize the decision of the New Orleans Court.
THE FACTS
[4] Both Morgan and Baxter are U.S. citizens, although Morgan grew up in Ontario. The parties married in New Orleans, Louisiana, U.S.A., on December 18, 2006. They have one daughter, Anais, born January 13, 2007, in Ontario, who is a dual citizen of Canada and the U.S.A.
[5] Baxter at all relevant times has been a naval officer in the U.S. Navy. In his role as a naval officer Baxter has been assigned to various duties, including two separate deployments to Afghanistan, one commencing in February 2012 and the other commencing in March 2013. He currently works for the Joint Chiefs of Staff in Washington, D.C.
[6] For much of the marriage Morgan remained at home with their young daughter, although Morgan worked for a short period of time as a teacher in New Orleans.
[7] The parties lived and travelled together in 2005 and 2006. In the spring of 2006 they jointly purchased a house in Fort Erie, Ontario, and in the fall of 2006 Baxter purchased a house in New Orleans, Louisiana. The parties still own both of these houses.
[8] The parties lived together in New Orleans from approximately September 2006 until sometime in 2007. I accept that between 2007 and 2012, because of Baxter’s job, the parties lived in several different cities in the United States. They actually lived together in New Orleans on three different occasions during this time. On one occasion, when Baxter was stationed overseas, Morgan and Anais lived in Canada for a period of time.
[9] I find that in August 2012 Morgan and Anais moved from New Orleans to Fort Erie. At the time, Baxter was stationed in Afghanistan.
[10] After Baxter returned from Afghanistan, in September 2012, an incident occurred that made Morgan determine that the marriage was over. The parties have not lived together since February 2012.
[11] Morgan and Anais have lived in Fort Erie since August 2012, and Anais continues to attend and be enrolled in school in Fort Erie, Ontario. Morgan currently is upgrading her education at a school in the Fort Erie area in New York State.
THE LEGAL PROCEEDINGS
[12] Baxter commenced an application for divorce in the New Orleans Court on February 3, 2014. Morgan did not attorn to the New Orleans jurisdiction, but hired lawyers and personally attended the New Orleans Court for the purpose of contesting the jurisdiction. A hearing to determine jurisdiction was held in the New Orleans Court in June 2014. Morgan participated in the hearing and gave oral evidence at the hearing.
[13] A written decision dated October 13, 2014, was delivered by Judge Clare Jupiter of the New Orleans Court in which Judge Jupiter found that the New Orleans Court had jurisdiction over “the parties’ divorce and ancillary matters”, but that the New Orleans Court did not have jurisdiction over “matters of child custody”.
[14] Morgan did not appeal that decision. Rather, on October 22, 2014, Morgan commenced this application in the Ontario Superior Court of Justice in which Morgan claims, among other things, custody, child support, and spousal support. Morgan’s application in the Ontario Superior Court of Justice does not include a claim for divorce.
[15] In Reasons for Judgment dated October 13, 2014, Judge Jupiter made the following comments:
Adrian testified that the parties married in New Orleans in December, 2006. They purchased a home in New Orleans and returned repeatedly between Adrian’s assignments out of the state…Jennifer worked full-time as a public school teacher in New Orleans. The parties annually claim the homestead exemption on the immovable property they still own New Orleans. These activities alone constitute sufficient contacts with Louisiana to subject Jennifer to the jurisdiction of this court.
The parties admittedly lived a “nomadic lifestyle,” traveling frequently for extended periods of time. However, the weight of the evidence indicates that prior to August of 2012, the parties were domiciled in New Orleans, Louisiana, and that their home located here was in fact their primary residence. The Court finds Adrian’s testimony, that the parties’ absences were temporary and that they always returned to New Orleans between assignments, to be credible.
…Jennifer has not rebutted the presumption that the parties’ domicile was Louisiana immediately before she and the minor child moved to Fort Erie in August, 2012.
ANALYSIS
[16] There are two steps to the analysis of the jurisdiction issue. This court must first determine jurisdiction simpliciter; i.e. whether the case falls within the limits of the scope of the jurisdiction of this court. If so, this court must then determine, pursuant to the doctrine of forum non conveniens, whether to decline jurisdiction in favour of another more appropriate forum elsewhere. See the Supreme Court of Canada case of Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at paras. 66-81.
[17] Regarding jurisdiction simpliciter, I note that the claims that are before this court in Ontario are claims made under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[18] Section 22 of the CLRA provides that a court will have jurisdiction over matters of custody of and access to a child where the child is “habitually resident” in Ontario. I have no difficulty finding that Anais is habitually resident in Ontario.
[19] The FLA does not specifically address the issue of jurisdiction simpliciter. Therefore, as stated in the case of Naeli v. Ghaeinizadeh, 2013 ONCA 2 at para 13, the common law “real and substantial connection” test applies.
[20] The real and substantial connection test was discussed at length in the Van Breda decision, a tort case. LeBel J. wrote in Van Breda at para 82 that in order to establish jurisdiction simpliciter, 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. LeBel J. then provided, at para. 90, a list of presumptive connecting factors. That list of course must be modified in the family law context, as discussed in the Naeli decision at para. 15.
[21] In the present case I find that there are many factors that suggest that Morgan and Anais have a real and substantial connection to Ontario. Specifically, I accept that both Morgan and Anais have resided in Ontario since 2012; that Baxter agreed or acquiesced to Morgan and Anais relocating to Ontario; that Morgan and Baxter jointly own a house in Fort Erie, Ontario; and that Morgan and Anais both go to school in the Fort Erie area. Further, I accept that Baxter had a significant connection with Ontario during the marriage as he regularly attended at the Fort Erie property. Therefore, I find that the Ontario Superior Court of Justice has jurisdiction simpliciter regarding the claims made in Morgan’s application in this court.
[22] Having determined jurisdiction simpliciter, the second step is to determine the forum non conveniens issue. That is, this court must decide whether it should accept jurisdiction or decline jurisdiction in favour of a more appropriate foreign jurisdiction. As stated by Perkins J. of this court in the case of Jenkins v. Jenkins 2000 CanLII 22523 (ON SC), [2000] O.J. No. 1631 at para. 20, relying on Amchem Products Inc. v. British Columbia, 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, “the question is whether there is a more or most appropriate forum for a case, having regard to all the factors connecting the litigation and the parties to the competing jurisdictions…”
[23] In Van Breda at para. 112, LeBel J. wrote that courts “must engage in a contextual analysis, but refrain from leaning too instinctively in favour of its own jurisdiction.” At para. 110, LeBel J. reviewed some of the factors that should be considered on this issue, including the locations of parties and witnesses; the cost of transferring the case to another jurisdiction or of declining the stay; the impact of a transfer on the conduct of the litigation or on related or parallel proceedings; the possibility of conflicting judgments; problems related to the recognition and enforcement of judgments; and the relative strengths of the connections of the two parties.
[24] Morgan raises several factors in favour of her position that the Ontario Superior Court of Justice should accept jurisdiction. Specifically, I accept the submission that it would be difficult for Morgan to travel from Fort Erie to New Orleans given her commitment and the commitment of Anais to school in the Fort Erie area. Also, as the primary caregiver for Anais, Morgan would have to make arrangements for child care in Fort Erie if she were required to attend court in New Orleans. I also accept that Morgan has a limited income and the trip to New Orleans would be quite expensive for her. Further, I am aware that Baxter is currently stationed in Washington, D.C. and it may be equally expensive and inconvenient for Baxter to attend court in either Ontario or New Orleans.
[25] In favour of Baxter’s position, I accept that Baxter owns a house in New Orleans; that the parties were domiciled in New Orleans during the marriage; that the parties lived primarily in the U.S.A. during the marriage; and that New Orleans was the last common residence of the parties.
[26] The main factor against this court accepting jurisdiction in this case is the possibility of conflicting judgments. The New Orleans Court has already had a hearing, with oral evidence, and made a decision regarding forum non conveniens. Counsel for Morgan now asks this court to make a decision that is in direct conflict with the decision made by the New Orleans Court.
[27] In my view the Ontario Superior Court of Justice should be mindful and respectful of decisions made by foreign courts. Those decisions are entitled to some deference in this court. Although I have not been referred to any case law on this point, I find that if a foreign court has made a decision accepting jurisdiction over matrimonial issues, this court should not make a contradictory decision unless there has been a breach of natural justice in the foreign court, or the foreign court has made a palpable and overriding error that affects the jurisdiction issue.
[28] In this case I find that the New Orleans Court held a full and fair hearing, and that Justice Jupiter rendered a thoughtful decision that determined the jurisdiction issue. It is not appropriate for this court to make a contradictory order.
[29] Therefore, Morgan’s application in the Ontario Superior Court of Justice shall be permitted to continue with respect to claims that relate to custody and access. All other aspects of Morgan’s application are hereby stayed.
Henderson J.
Released: April 7, 2015
CITATION: Morgan v. Baxter 2015 ONSC 2214
COURT FILE NO.: 9945/14
DATE: 2015/04/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Lyn Morgan
Applicant
– and –
Adrian Baxter
Respondent
DECISION ON MOTION
Henderson J.
Released: April 7, 2015