Monday, December 09, 2013

Real and Substantial Connection - Forum Conveniens in Family Law

Knowles v. Lindstrom, 2013 CarswellOnt 6935 (Ont. S.C.J.) is a recent family law case that addressed the issue of forum conveniens in a property dispute.  This case has significant implications for Canadian residents who have common law relationships with residents in any of the American states.

The Applicant and Respondent had a 10-year common law relationship in which they resided together in both Ontario and Florida.  The Applicant’s claim was for spousal support and a trust interest in Ontario land to which the Respondent held title. 

The Applicant’s position was that they cohabited in Ontario and Florida more or less equally.  Alternatively, the Respondent took the position that the majority of their time was spent in Florida.  He contended that he was not a Canadian citizen and refused to acknowledge a real and substantial connection to Ontario. 

Thus, this case turned on a determination of the facts – did the Respondent have a real and substantial connection to Ontario?

Justice Perkins unhesitatingly found that Ontario law was applicable and that the Ontario courts should exercise jurisdiction over this case.  He found support for this conclusion in in Van Breda v. Village Resorts Ltd., 2012 CarswellOnt 4268 (S.C.C.).  This case stands as the authority for when a court should exercise jurisdiction over an out of province party based on a set of presumptive factors. 

The judge found that there was nothing to preclude the Respondent from having two homes and therefore a real and substantial connection with more than one place.  Indeed, the totality of the evidence indicated that the Respondent, as an individual who owned land in Ontario and spent three to five months at a time residing there, could not realistically deny a real and substantial connection. 

Once the court finds a real and substantial connection and the jurisdiction is accordingly established, the litigation proceeds before the court seized of the claim.  The court will not decline to hear the matter unless the defendant invokes forum conveniens – a discretionary right reserved only for the parties involved. 

Thus, if a defendant raises an issue of forum non conveniens, the burden lies on him or her to demonstrate why the court should remove itself as the forum chosen by the plaintiff.  In order to succeed, the defendant must show why it is appropriate for an alternative forum to exercise jurisdiction using the analytical framework that the court follows to find the existence of a real and substantial connection.

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