COURT FILE NO.: FS-18-4130
DATE: 20190131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tazeen Haroon
Applicant
– and –
Haroon Anwar Sheikh
Respondent
Shelly Kalra, for the Applicant
Murray Maltz, for the Respondent
HEARD: January 17, 2019
Shore, J.
[1] The Respondent has brought this motion for an order dismissing the Application on grounds that this Court lacks jurisdiction to hear this matter.
[2] It is the Respondent’s position that the Applicant has not been ordinarily resident in Ontario for one year immediately preceding the commencement of her Application for Divorce and therefore this Court cannot hear matters under the Divorce Act. It is also the Respondent’s position that their last place of habitual residence was Malaysia and therefore this Court lacks jurisdiction to decide the corollary issues.
[3] It is the Applicant’s position that she resided in Ontario for one year immediately preceding the commencement of the Application. She takes the position that she moved to Ontario in the summer of 2017 and only returned to Malaysia for 11 months for the sole purpose of allowing their son to finish middle school in Malaysia before starting high school at a boarding school in Ontario. It is also her position that the parties’ last place of habitual residence was in Ontario and therefore this Court has jurisdiction to hear this matter.
[4] For the reasons set out below, I find that the Applicant was not ordinarily resident in Ontario until July 2018, and as such, the Court does not have jurisdiction to determine issues under the Divorce Act at this time. Section 3(1) of the Divorce Act requires one of the spouses to be ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. This test has not been met. She was not resident in Ontario one year prior to the commencement of her proceedings. I also find that the parties’ last place of habitual residence was not in Ontario.
[5] Therefore, the question before this Court is whether or not the Court has authority to assume jurisdiction on the issues of support, custody and access, and property, despite the findings of residency, as set out above.
Facts
[6] After reading the affidavits filed by the parties and hearing submissions by their counsel, the following is a summary of facts as I have found them and relied on for the purpose of this motion:
[7] The parties married on March 27, 1998 in Pakistan. They disagree on the date of separation. It is the respondent’s position that they separated in June 2018. It is the applicant’s position that they separated in January 2018. The date of separation is not relevant for the purpose of this motion.
[8] There are two children of the marriage namely Eisha Haroon born February 15, 1999, and Fayez Haroon, born April 12, 2004.
[9] The parties moved often during their marriage. The Respondent worked in the banking industry and was required to move for work. The parties started off living in Dubai and then, in 2002, they moved to Canada and obtained their citizenship in 2005. In 2007, the family sold their home in Ontario and moved to Singapore. In 2009, the parties moved to Vietnam. The Applicant then lived with the children in Singapore while the Respondent remained in Vietnam to finish his employment contract. In June 2012, the family lived together in Vietnam. The Respondent then requested that he be transferred to Malaysia, and in June 2014, the family moved to Malaysia. The parties purchased a condominium, namely B2601 Tiffani Kiara, Kuala Lumpur, Malaysia, in August 2015. The parties renovated the condominium and obtained ten year residence visas to live in Malaysia (which was independent of the Respondent’s employment sponsorship visa).
[10] In March 2015, the Respondent had a heart attack. He quit his job with the bank (to try to alleviate his stress) and found a sales job in Toronto, selling software. He moved to Toronto for one year, in July 2016, living in a two bedroom rental apartment. The Applicant and children remained in Malaysia. The Respondent travelled back to Malaysia every three months for a three week period.
[11] Until June 2, 2017, Eisha attended high school in Malaysia. She then applied to a number of universities and ended up accepting an offer from the University of Toronto, with a scholarship. Eisha started university in September 2017. In January 2017, the parties purchased an investment property in Toronto. In April 2017, the parties purchased a condominium at 16 Harbour Street, Unit 5302, Toronto (hereinafter “Toronto condo”), for the purposes of giving Eisha a place to live while she attended school and for the parties to reside when they visited her. The Applicant and Fayez visited the Respondent and Eisha in Toronto from June 2017 until August 4, 2017, and then returned to Malaysia for Fayez to start school.
[12] In October 2017, the Respondent took a job in Dubai, working back in the banking industry. He moved from Toronto to Dubai in February 2018. He returned to Malaysia frequently to be with the family. In May 2018, during her summer break, Eisha returned to the family home in Malaysia.
[13] In February and March 2018, the parties showed a joint intention of moving permanently to Dubai, with the children attending school in Toronto. The Applicant never ended up moving to Dubai.
[14] Until June 2018, Fayez attended school in Malaysia. Until July 14, 2018, the Applicant and Fayez were residing in the condominium in Malaysia. The Respondent was residing in a rental unit in Dubai, United Arab Emirates.
[15] I have not been asked to make a finding with respect to the date of separation so I will not comment any further on this issue at this time. In any event, it was clear that as of July 2018 the parties were separated, as the Respondent started divorce proceedings in Pakistan. The parties are both citizens of Pakistan and had gotten married there. The Court in Pakistan declined jurisdiction to grant a divorce but the Respondent has appealed same. This appeal will not be heard until at least March 2019. As such, the parties are not divorced at this time.
[16] The Applicant moved to Toronto on July 15, 2018, and has been residing in the Toronto condo since that time. The Application was issued on July 31, 2018, meaning the Applicant had to have resided in Ontario since July 31, 2017. In September 2018, Fayez started at St. Andrews College in Ontario, where he boards. Eisha remains at the University of Toronto and lives with the Applicant in the Toronto condo.
Law and Analysis
- Jurisdiction under the Divorce Act:
[17] The Applicant has requested relief under the Divorce Act, the Family Law Act and the Children’s Law Reform Act.
[18] Subsection 3(1) of the Divorce Act states:
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 proceedings.
[19] The term “ordinarily resident” is not defined in the Act but has been the subject of several cases. Starting with the case MacPherson v. MacPherson[^1], decided by the Court of Appeal in 1976, in considering the meaning of “ordinarily resident” the Court stated that “the Court must ask where the petitioner regularly, normally or customarily lived in that year”. The Court of Appeal relies on the definition set out by the Supreme Court of Canada in Thomson v. M.N.R.[^2], at paragraph 71 where the term “ordinarily resident” was addressed in the context of an income tax matter. In that case, the SCC stated that “one is ordinarily resident in the place where in the settled routine of his life, he regularly, normally, customarily lives”. More recent cases have followed these guidelines, expanding on some of the factors to consider.
[20] Although the Applicant spent the summer of 2017 and a few weeks over winter break in Ontario, at all times she maintained the home in Malaysia. Fayez continued to attend school in Malaysia. Their day to day life continued in Malaysia. They had a home and a car there. Fayez participated in extracurricular activities. They were a part of the community in Kuala Lumpur. Their ordinary place of residence continued to be Malaysia. Eisha and the Respondent continued to travel back to Malaysia. The Applicant continued to live in Malaysia with Fayez until July 2018. The Applicant points to the fact that she changed her address on her licence and with Service Ontario to the Toronto condo, as an indication of her change in residence. The parties maintained driver’s licences and identity cards in different countries. It was a matter of practicality to change the address to the Toronto condo, but it does not indicate a change in her ordinary residence. She has failed to prove on a balance of probabilities that she actually moved to Ontario in the summer of 2017. I find that it was not until July 2018 that the Applicant arrived in Ontario with the intention of making a home in Ontario.
[21] As such, I find that the Applicant was not ordinarily resident in Ontario for at least one year immediately preceding the commencement of these proceedings and as such, this court does not have jurisdiction over her claim for a divorce or her claims for corollary relief under the Divorce Act.
- Does the Court have jurisdiction to determine property, support and custody/access issues?
a) Property:
[22] Section 15 of the Family Law Act reads:
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 Applicant is currently living in Ontario. The children are living in Ontario. They are all Canadian citizens. The Applicant has the right to bring an application to have the property issues determined by this Court, as per section 15 of the FLA above. Given that Ontario was not their last place habitual residence, but Malaysia was, this Court has jurisdiction to hear the property claims, albeit to be determined in accordance with Malaysian law, which was their last place of habitual residence. The parties own property in several different countries (Canada, Malaysia, Singapore, the United States and Pakistan). It cannot be said that any one of those countries is the more convenient forum in which to decide the property issues. Other than the United States, the parties have resided in all of the other countries at various times. The Applicant now lives in Ontario and the Respondent now lives in Dubai.
b) Support:
[24] With respect to support claims, there is no residency requirement for a party to commence proceedings under the Family Law Act. The Family Law Rules, at rule 5, simply provides that a case shall be started in the municipality where a party resides. Section 21.22 of the Courts of Justice Act requires that one of the parties reside in the jurisdiction before the court can assume jurisdiction. The Applicant resided in Ontario at the time the Application was issued and continues to reside here now. As such, the Applicant’s claim for support may proceed under the Family Law Act, notwithstanding the fact that I am dismissing her claim for a divorce[^3]. Given that no divorce has been issued by another jurisdiction, the Applicant has the right to bring a support claim before this Court, under the Provincial legislation.
[25] Further, the Ontario Court also has jurisdiction under common law, given the Applicant’s real and substantial connection to Ontario. Neither party resides in Malaysia at this time and there is no evidence as to whether or not Malaysia will assume jurisdiction. Ontario is the appropriate forum to hear the support and property matters under forum conveniens[^4]. Again, the parties own property all over the world. However, the Applicant’s and the children’s ordinary residence is now in Ontario. The Respondent has not convinced me that Malaysia is a more appropriate forum to deal with these issues because neither party lives there anymore and they have property in several countries. There is a real and substantial connection between the Applicant’s claim for support and Ontario, where she and the children reside[^5].
c) Custody and Access
[26] The Applicant also made claims under the Children’s Law Reform Act (“CLRA”) with respect to custody and access. It appears that there is no dispute between the parties on custody or access, but in the event that the matter still needs to be determined, I also find that this Court has jurisdiction to hear issues related to custody and access, pursuant to section 22(1) of the CLRA, which provides that a court can exercise its jurisdiction to make an order for custody of or access to a child where “(a) a child is habitually resident in Ontario at the commencement of the application for the order”.
Subsection 22(2) provides that:
A child is habitually resident in the place where he or she resided,
(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.
[27] The parties are living separate and apart. The Respondent acknowledged that the children are now living in Ontario, in the custody of the Applicant, with his consent. Therefore the children were habitually resident in Ontario at the commencement of this Application and the Court has jurisdiction pursuant to section 22(2) of the CLRA.
Order:
[28] This court orders as follows:
The Respondent’s request to dismiss the Applicant’s claims for a divorce and for corollary relief under the Divorce Act is granted.
The Respondent’s claim to dismiss the Applicant’s claims for custody and access, spousal support, child support and property claims pursuant to the Family Law Act and the Children’s Law Reform Act is denied. The Applicant may proceed with her claims for property, support and custody and access.
In view of the fact that success has been divided, I am of the opinion that each party should bear their own costs of this motion. However, I have not considered any offers to settle. If either party wants to make a claim for costs, they are to provide me with no more than 3 pages of written submissions (not including supporting documents) within 15 business days of the release of this Order.
S.R. Shore, J.
Released: January 31, 2019
COURT FILE NO.: FS-18-4130
DATE: 20190131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tazeen Haroon
Applicant
– and –
Anwar Sheikh Haroon
Respondent
Released: January 31, 2019
[^1]: (1977), 1976 854 (ON CA), 13 O.R. (2d) 233.
[^2]: (1946) 1 (SCC).
[^3]: See for example Justice Epstein’s decision in Hinter v. Hinter (1996) 8092 (ON SC), where the issue was one of forum conveniens.
[^4]: As set out in Van Brada v. Village Resorts Ltd, 2012 SCC 17, 2012 CarswellOnt 4268: In this case, one of the presumptive factors applies, given that the Applicant and the children ordinarily reside in Ontario. The Respondent has not overcome his onus of showing an absence of a real and substantial connection to Ontario.
[^5]: See for example Justice Hermans’s decision in Stefanou v. Stefanou, [2008] O.J. No. 531 and par 26 of Tower v. Tower, (2008) 19501 (ON SC).