An Ontario court recently decided that it had lost jurisdiction over a family law dispute after all the parties had relocated to another country. 

What Happened?

The couple met in British Columbia in 2011. Later that year, the wife returned to her native country of Japan and the husband joined her there a few months later on a working visa. They married in Japan in 2012 and their son was born in 2014.

The father returned to Canada in 2016. A few months later, the wife and their son went to Canada for a visit. Her plan was to return to Japan later that year.

During this trip, however, the relationship between the parties rapidly deteriorated. The wife became concerned as the husband had begun threatening to call the authorities informing them that she was illegally in Canada and telling her that she could be deported back to Japan, without her son, and never be able to return to Canada.  

In late 2016, the wife discovered that the father had taken all of her credit cards, cash and their son’s passport. The husband’s threatening behaviour resulted in the wife calling 911 for police assistance. The wife and her son then took temporary refuge at a women’s shelter.

The father commenced proceeding on an ex-parte basis saying he was worried that the wife would be leaving the country with their son. A temporary order was made in November 2016 ordering that the residence of the child not change without further order of the court. Later, an access order was made allowing the father to see the child on a regular basis.

A mobility motion was argued in mid-August 2017. At that time, the wife was granted a temporary order of custody of the child and granted permission to relocate with the child to Japan. Arrangements were made for extended access visits for the father until her departure and then provided for reasonable access to the child as could be arranged in either Canada or Japan.

The matter returned to court on August 24, 2017 at which time the mother confirmed that she and the child would be leaving the country on August 31, 2017. The father moved to Japan approximately one month after the mobility order was granted and was able to find a temporary job pursuant to a temporary visa which also allowed him to exercise access with his son.  

By the end of May 2018, the matter had returned to the Ontario court approximately 12 times with no significant progress or change in the situation. 

In a May 2018 court appearance, the court began questioning if it still had jurisdiction to continue with the matter.  

Decision

The court began by setting out the applicable law on the matter, which is found in s. 22 of the Children Law Reform Act, which states: 

“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.”

After examining the facts of the case in light of the legislative criteria, the court found that it had lost jurisdiction over the case. 

The son was born in Japan and, at the age of 4½, had lived his entire life in Japan with the exception of one year in Canada. He resided in Japan with the wife. Accordingly, the court found that the son’s habitual residence was Japan, not Ontario.

As a result, the court could only assume jurisdiction if all of the six criteria as listed in s. 22(1)(b) had been satisfied.

Ultimately, the court found that the criteria were not satisfied, considering that the son was not physically in Ontario and that the son did not have a real and substantial connection with Ontario. Finally, the court found that the balance of convenience clearly dictated that it was inappropriate for jurisdiction to be exercised in Ontario.  

Therefore, the court found that it no longer had jurisdiction to deal with the matter and ordered a stay of proceedings.

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.