An interesting question that may arise in the course of civil litigation is the extent to which the parties to a proceeding may have the benefit of Ontario legislation. So, as an example, s.15 of the Family Law Act states: “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.”

Jurisdiction is a tricky matter to navigate and comes up frequently in family law cases. In estates law, the validity of a will may depend upon whether the governing law is that of Ontario. But what about support claims under Part V of the Succession Law Reform Act? Can a challenge be made to the right of a support claimant on the basis of jurisdiction?

Some guidance to jurisdictional issues was provided by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda 2012 SCC 17 (Van Breda). Although not an estate case, the principles of the case are applicable in that the the applicant must connect the litigation to Ontario by demonstrating that the Respondent is domiciled or resident in the province. In the case of an estate, this question is usually answered by the fact that the Deceased resided in Ontario and died in Ontario.

But what if the Applicant is not a resident of Ontario or even Canada? Does it matter and does it undermine their ability to advance an application for dependant’s relief? It would appear that the answer is “no” based upon the definition of “dependant” in the Act which does not appear to exclude any qualifying family member on the basis of jurisdiction. That said, security for costs may be considered in such a case, depending on all the facts.

Although not typically encountered in estate litigation, the doctrine of forum non conveniens asks the court to decline to assume jurisdiction on the basis that a foreign jurisdiction is more convenient, considering such factors as:

1. The location of the parties and witnesses,
2. The cost of transferring the case to another jurisdiction,
3. The impact of a transfer on the conduct of the litigation or on related or parallel proceedings,
4. The possibility of competing judgments,
5. Problems related to the recognition and enforcement of judgments, and
6. The relative strengths of the connections of the two parties.

Thanks for reading,

David Morgan Smith