



COURT OF APPEAL FOR ONTARIO

CITATION:
Wang v. Lin, 2013
    ONCA 33

DATE: 20130122

DOCKET: C55582

Doherty, Goudge and Hoy JJ.A.

BETWEEN

Hong Wang (aka Jennifer Wang)

Applicant (Appellant/Respondent
    by way of cross-appeal)

and

Wei Lin

Respondent
    (Respondent/Appellant by way of cross-appeal)

Bryan R. G. Smith and Sarah Conlin, for the
    appellant/respondent by way of cross-appeal

Aaron M. Franks and Roslyn Tsao, for the
    respondent/appellant by way of cross-appeal

Heard: December 14, 2012

On appeal and cross-appeal from the order of Justice Peter
    G. Jarvis of the Superior Court of Justice, dated June 7, 2012, with reasons
  reported at 2012 ONSC 3374.

Hoy J.A.:

OVERVIEW

[1]

This appeal involves contested jurisdiction of the courts of Ontario in
    a family law matter under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd
    Supp.); the
Family Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
);
    and the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (the 
CLRA
).

[2]

The mother, Hong Wang (aka Jennifer Wang), appeals the
    June 7, 2012, order of the motion judge allowing the fathers motion to stay
    her claims under the
Divorce Act
and the
FLA
,

and
    her claims relating to property, on the grounds that the court has no
    jurisdiction under these acts.

[3]

The father, Wei Lin, cross-appeals the motion judges order dismissing
    the fathers motion seeking the return of the two children of the marriage to
    China under s. 40(b)(3) of the
CLRA
.

[4]

For the reasons that follow, I would dismiss the appeal, allow the
    cross-appeal, and return the issue of the appropriate order to be made under s.
    40 of the
CLRA
to the motion judge or another judge of the Superior
    Court in Toronto.

THE BACKGROUND

[5]

The parties were married in China.

[6]

The mother is now approximately 39 years of age. The father is 40. The
    children, who were born in China, are aged approximately 9 and 10.

[7]

The family immigrated to Canada from China in 2005, with the aim of
    acquiring Canadian citizenship. They purchased an expensive home in Toronto,
    and the children attended an independent school in Toronto until their academic
    year ending June 2010.  They spent most of their summers in China.  The mother
    acquired an Ontario drivers licence, and the mother and children obtained
    Ontario health cards. The mother and children obtained Canadian citizenship on
    June 1, 2010.

[8]

The father spent very little time in Canada. He continued to manage the
    familys significant assets in China. He lost his permanent resident status and
    remains a citizen of China.

[9]

The family re-united in China in August 2010, in time for the children
    to commence the September 2010 school year at an international school in
    Beijing. China does not recognize dual citizenship. The mother and children
    entered China on visitors visas, which must be renewed every 90 days.

[10]

The
    mother says the move was not a permanent one: the plan was to stay for two
    years so that the children would become more proficient in Mandarin and the
    father could re-apply for permanent residence status in Canada. The principal
    of the childrens school in Canada and a Canadian friend both confirm that the mother
    told them that they would return to Toronto in two years. The childrens nanny
    also states that in 2010, the father told her of the plan to return to Canada.
    The family kept their fully-furnished Toronto house, which is encumbered, and have
    a bank account in Toronto.

[11]

The
    father, mother, children, and nanny of some seven years, lived in one of the
    three properties owned by the family in Beijing. (According to the mother, the
    father began living in a separate residence in November of 2011; the fathers
    evidence is that he remained at the family home). The childrens maternal
    grandparents lived in another property that the father purchased, and the children
    visited them every one or two weeks. The mother and children returned to Canada
    to visit friends and relatives for several weeks during the summer of 2011.

[12]

In
    April of 2012, the mother travelled to Toronto and filed an application under
    the
Divorce Act
, the
FLA
and the
CLRA
for a divorce,
    child and spousal support, and custody of the children. She also made various
    property claims. At the time that she filed the application, the children were attending
    school in Beijing.

[13]

The
    mother also brought an
ex parte
application before the motion judge
    for a world-wide
Mareva
injunction to freeze the fathers assets. The
    application was granted on April 18, 2012, on the basis that the court had
    jurisdiction under s. 3(1) of the
Divorce Act
. The mother then secured
    an order of the High Court of Justice in the British Virgin Islands that froze
    the fathers substantial corporate assets there. It had the effect of derailing
    the initial public offering of a company in which the father has a substantial
    interest.

[14]

In
    response, the father immediately secured the childrens passports and brought a
    motion to stay the Ontario proceedings based on lack of jurisdiction under
    either the
Divorce Act
or the
FLA
or, alternatively, to set
    aside the
Mareva
injunction on the basis that mother had not provided
    full, fair and frank disclosure in her materials placed before the motion
    judge. That motion was argued on May 8 and 9, 2012.

[15]

On
    May 8, 2012, the father also started family proceedings in China, which include
    a claim for custody.

[16]

While
    the stay motion in Ontario was under reserve, the mother moved the children to Canada,
    without the fathers consent, using newly acquired passports. The mother had
    represented that the childrens passports were stolen and/or lost, and forged
    the husbands signature on the application. Within a day of their return to
    Canada, the mother re-registered the children at their former school, for the
    school year commencing September 2012.

[17]

When
    the father learned that the children were in Toronto, he immediately moved for
    their return to China under s. 40(b)(3) of the
CLRA
.  The motion judge
    heard
viva voce
evidence on this second motion on May 29, 30 and 31,
    2012.

THE LEGAL FRAMEWORK

[18]

The
    jurisdictional tests under the
Divorce Act
, the
FLA
and the
CLRA
are all slightly different. Sections 3(1) and 4(1) of the
Divorce Act
provide as follows:

3(1) Jurisdiction in divorce proceedings

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 proceeding.

4(1) Jurisdiction in corollary relief proceedings

A court in a province has jurisdiction to hear and
    determine a corollary relief proceeding if

(a)     either
    former spouse is ordinarily resident in the province at the commencement of 
    the proceeding; or

(b)     both former spouses accept the
    jurisdiction of the court.

[19]

The
FLA
does not specifically address the question of jurisdiction
simpliciter
.
    Both parties take the position that given the absence of a statutory rule, the
    common law conflicts rule of Canadian private international law  the real and
    substantial connection test  determines whether jurisdiction exists in
    Ontarios courts.

[20]

As
    the Supreme Court recently explained in
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17, [2012] 1 S.C.R. 572, at para. 82, a real and substantial
    connection must be established primarily on the basis of objective factors
    that connect the legal situation or the subject matter of the litigation with
    the forum. In order to bring greater clarity and predictability to the issue
    of when the court will assume jurisdiction, the Supreme Court identified a list
    of presumptive connecting factors for tort cases.
[1]
A plaintiff must establish that one or more of those presumptive connecting
    factors exists; if she does, a rebuttable presumption of jurisdiction arises.
    As discussed below, the Supreme Court left open the possibility that over time
    courts may identify new factors which also presumptively entitle a court to
    assume jurisdiction.

[21]

If
    an Ontario court assumes jurisdiction and
forum non conveniens
is
    invoked, the court may decline to exercise its jurisdiction if a respondent
    establishes that another forum is clearly more appropriate for disposing of the
    litigation: see
Van Breda
, at para. 108.

[22]

The
FLA
does address what laws are to be applied in the event of a
    conflict:

Conflict of laws

15 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
CLRA
also includes specific rules as to when jurisdiction may be
    exercised:

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.

Habitual residence

22(2)  A
    child is habitually resident in the place where he or she resided,

(a) with both parents;

(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; or

(c) with a person other than a parent on a
    permanent basis for a significant period of time,

whichever last occurred.

Abduction

22(3) The
    removal or withholding of a child without the consent of the person having
    custody of the child does not alter the habitual residence of the child unless
    there has been acquiescence or undue delay in commencing due process by the
    person from whom the child is removed or withheld.

[24]

The
CLRA
also accords the court limited powers when it does not have
    jurisdiction under s. 22:

Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been
    wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under
    section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the
    custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a
    party to the application promptly commence a similar proceeding before an
    extra-provincial tribunal, or

ii. such other
    conditions as the court considers appropriate.

3. Order a party to return the child to such place
    as the court considers appropriate and, in the discretion of the court, order
    payment of the cost of the reasonable travel and other expenses of the child
    and any parties to or witnesses at the hearing of the application.

THE MOTION JUDGES REASONS

[25]

The
    motion judge released reasons on June 7, 2012, with respect to both of the
    fathers motions. As had been agreed by the parties, the motion judge decided
    the fathers stay motion solely on the basis of the affidavit evidence that had
    been before him at the time that he heard that motion, and without considering the
viva voce
evidence on the second motion.

[26]

In
    deciding the fathers stay motion, the motion judge concluded that the mother
    had not established that she had been ordinarily resident in Ontario for at
    least one year immediately preceding the commencement of the proceeding. The
    court therefore did not have jurisdiction to hear and determine the divorce
    proceeding under s. 3(1) the
Divorce Act
. The motion judge did not go
    on to consider whether the mother met the test for corollary relief under the
Divorce
    Act
, but concluded that the mother had not satisfied the real and
    substantial connection test and the court did not have jurisdiction to grant
    the corollary relief sought under the
FLA
:

[10
] Ms. Wangs claims for corollary
    relief are also made under the
Family Law Act
, R.S.O. 1990, c. F.3.
    The applicable test is real and substantial connection, which requires the
    court to consider objective factors to determine whether the subject of
    litigation is connected with the forum. These presumptive connecting factors
    are not exhaustive but inform the type of factors to consider. See
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17 (CanLII), 2012 SCC 17, 2012
    CarswellOnt 4268, at paras. 82-94.

[
11
] The presumptive connecting
    factors identified by the Supreme Court in the context of a tort case were set
    out by Lebel J. at para. 90:

(a)   The defendant lives in the province;

(b)   The defendant carries on business in the
    province;

(c)   The tort was committed in the province; and

(d)   A contract connected with the dispute was made
    in the province.

[
12
] The burden is on the party
    asserting the courts jurisdiction. The test is met when a presumptive
    connecting factor is established that links the subject matter of the
    litigation to the forum. If none of the presumptive connecting factors apply,
    the court should not assume jurisdiction. See
Van Breda
, at paras. 93
    and 100.

[
13
] The facts of this case do not
    support the existence of a presumptive connecting factor that would entitle
    this court to presume jurisdiction. The relevant facts were set out in the
    Respondents factum at para. 20:

(a)   The Husband does not live in Ontario or
    carry on business in Ontario. It is acknowledged by the Wife that the Husband's
    business is based entirely in China.

(b)   The parties were not married in Toronto. The
    children were not born in Ontario.

(c)   The parties have not lived together as a married
    couple in Ontario since at least August, 2010 and the children have not
    ordinarily resided in Ontario since August, 2010 based on the following facts:

i. The family has been
    living at their Chaoyang Home together, as an intact family, since August, 2010.

ii. The parties have a
    nanny of 7 years who resides with them in Beijing at the Chaoyang Home;

iii. Forrest and Leon are
    currently in their second year of elementary school in Beijing since September
    2010 (after starting in JK in Toronto for 4 and 3 years, respectively);

iv. The children have 2 private
    tutors on a weekly basis;

v. The Husband purchased a
    home in Beijing for the Wifes parents to live in and the children visit these
    grandparents almost weekly;

vi. The Wife does some work
    for her brother-in-laws company in Beijing and does no work in Ontario;

vii. All of the familys medical,
    dental and eye care is obtained in China;

viii. The only connection to
    Ontario is an encumbered real property and a bank account. In contrast,
    the parties have three real properties in China and significant bank accounts.

[
14
]   With the exception of a
    house in Canada and a trust in the British Virgin Islands, the couples
    greatest assets are located in China. The boys have been attending school in
    Beijing for the past two years, and have family, friends and are involved in
    activities in China. Ms. Wang has not attempted to raise any new presumptive
    connecting factors that would allow the court to assume jurisdiction in these
    circumstances.

[
15
] I conclude that there is no real
    and substantial connection between the subject matter of this dispute and
    Ontario, and this court has no jurisdiction to grant corollary relief.

[27]

The
    motion judge then addressed the fathers argument that the court had no
    jurisdiction to make an order for custody or access under s. 22 of the
CLRA
and should order the return of the children to China pursuant to s. 40 of
    the
CLRA
.  He wrote, at para. 38:

It seems to me that the familys history in Toronto is
    sufficient to establish habitual residence of the children in Ontario. The
    family set down roots and developed an established way of life in Toronto. It
    seems clear on the evidence that their stay in China was intended to be
    temporary, and that they had always contemplated resuming their established way
    of life in Toronto after a 1-2 year stay in Beijing.

[28]

He
    continued that, even assuming that the children are not habitually resident in
    Ontario, each of the conditions in s. 22(1)(b) of the
CLRA
seemed to
    be established. He cautioned that he did not want to be taken as having made any
    finding of habitual residence, and explained that the concept of the best
    interests of the children guided him in resolving the issues before him. He
    concluded by inviting the parties to bring an application for custody and
    access, if they wished, and declined to make the order sought by the father.

THE PARTIES SUBMISSIONS

[29]

The
    mother makes four main submissions.

[30]

First,
    she argues that the motion judge erred by failing to consider the
viva voce
evidence on the second motion in deciding the fathers stay motion. As a
    result, the motion judge came to inconsistent findings as to jurisdiction.

[31]

Second,
    she argues that the motion judge erred in law by failing to consider the evidence
    that was before him of the mothers intention to return to Canada in two years in
    determining whether the mother was ordinarily resident in Canada, within the
    meaning of the
Divorce Act
. She cites Evans J.A.s opinion (for the
    court on that issue) in
MacPherson v. MacPherson
(1976)
, 13 O.R. (2d) 233 (C.A.), at p.
    239, for the proposition that the test the motion judge should have applied was:
    Did the mother intend to stay in China for an indefinite period of time? If
    she did not, she did not become ordinarily resident in China, and therefore
    remained ordinarily resident in Ontario, despite her absence.

[32]

Third,
    she argues that in applying the real and substantial connection test, the
    motion judge failed to consider what presumptive connecting factors might be
    applicable in a family law matter. The real home of a party and/or the
    children is clearly such a factor, and the real home of the mother and children
    is in Ontario. The fact that the family has property of value in Ontario, and
    the fact that the motion judge determined that the parties rights and
    obligations with respect to custody and access may be determined in Ontario,
    should also be presumptive connecting factors in a family law case. Therefore,
    there is a real and substantial connection, and the father has not established
    that China is a clearly more appropriate forum.

[33]

Finally,
    in response to the fathers cross-appeal, she asserts that the children were
    habitually resident in Ontario within the meaning of s. 22(1)(a) of the
CLRA
.
    And, even if not, the motion judge did not err in declining to return the
    children to China, since s. 40 of the
CLRA
is discretionary.

[34]

The
    father, in turn, submits that the mother, having agreed that the
viva voce
evidence
    would not be considered on the stay motion, cannot resile from that position on
    appeal.

[35]

He
    further submits that the motion judges finding that the mother was not ordinarily
    resident in Canada for the purposes of the
Divorce Act
is very much a
    factual finding, and as such should not be disturbed, absent a palpable and
    overriding error. He argues that
MacPherson
, at para. 18, as well as
    other cases, make clear that intention alone cannot determine the issue of
    ordinary residence; the motion judge correctly focussed on the location of the
    parties real home in the period leading up to the mothers filing of the
    application.

[36]

The
    father argues that, in applying the real and substantial connection test in a
    family law matter, the ordinary residence of the parents should be the
    presumptive connecting factor. Given the motion judges finding that the mother
    was not ordinarily resident in Canada at the time of the application, the
    motion judge properly concluded that the mother had not made out a real and
    substantial connection to Canada, and the courts of Ontario therefore have no
    jurisdiction over the mothers claims for corollary relief under the
FLA
.
    Even if Ontario does have jurisdiction, the father argues that China is clearly
    the more appropriate forum: among other things, nearly all of the familys very
    significant assets are located there.

[37]

Finally,
    the father argues that the motion judge erred in finding that Ontario had
    jurisdiction under the
CLRA
. The statutory test for jurisdiction in s.
    22, which supersedes the common law, is not made out. Accordingly, this court
    should order the immediate return of the children to China.

ANALYSIS

[38]

Before
    considering the jurisdiction issues, I will dispose of the issue of the use of
    the
viva voce
evidence. In my view, the motion judge did not err by
    respecting the agreement of the parties that the
viva voce
evidence on
    the second motion would not be considered on the first, stay motion. Moreover,
    I am not persuaded that the outcome of the stay motion would have been
    different, had he considered the
viva voce
evidence. Most of the
    evidence regarding the mothers intention to return to Canada was in affidavits
    that were before the motion judge on the stay motion. As will become apparent,
    the process agreed to by the parties, and applied by the motion judge, does not
    actually result in inconsistent decisions on jurisdiction.

[39]

As
    to the jurisdiction issues, in my view the motion judge correctly concluded
    that the courts of Ontario do not have jurisdiction under the
Divorce Act
or the
FLA
. However, he did, in my view, err in concluding that the
    court had jurisdiction to make an order for custody of or access to the
    children, other than to the limited extent permitted by s. 40(b)(1) of the
CLRA
.

[40]

I
    first address the motion judges finding that the mother was not ordinarily
    resident in Ontario for at least one year immediately preceding the
    commencement of the proceeding such that the courts of Ontario do not have
    jurisdiction to hear and determine the divorce proceeding under the
Divorce
    Act
.

[41]

In
MacPherson
, this court found that the wife was not ordinarily resident
    in Ontario for the requisite one year period before filing for divorce in
    Ontario. The family lived in Ontario for four and a half years before moving to
    Nova Scotia. After eight months, the wife returned to Ontario; the husband
    stayed in Nova Scotia. She filed her application in Ontario about two and a
    half months later. At p. 239, Evans J.A. wrote:

In my opinion, the arrival of a person in a new locality with
    the intention of making a home in that locality for an indefinite period makes
    that person ordinarily resident in that community. In the present matter, while
    the husband and wife expressed opposing views as to their intention with
    respect to the establishment of a permanent residence in Nova Scotia, I do not
    believe that the intention alone can determine the issue of ordinary residence.
    Mrs. MacPherson left Ontario to reside with her husband and family with the
    intention of residing in Nova Scotia for an indefinite period of time. Her
    stated intention of returning to live in Ontario does not detract from the fact
    she was ordinarily resident in Nova Scotia for that period which continued
    until she moved and established her residence in Ontario.

[42]

In
    my view, the motion judge did not err in the manner in which he approached the question
    of whether the mother was ordinarily resident in Ontario in the year
    immediately before filing her divorce application. His approach was consistent
    with
MacPherson
, which makes clear that intention alone cannot determine
    ordinary residence. Nor did the motion judge make any palpable and overriding
    factual errors.

[43]

The
    wife and children returned to China once they obtained Canadian citizenship,
    taking up residency in a home owned by the family. They carried on their
    customary mode of life in China: the children went to school and engaged in
    extra-curricular activities, and the mother and children regularly visited
    family. The family was able to live together, which, given the fathers
    business interests in China, they had been unable to do while the mother and
    children obtained Canadian citizenship. The fact that the mother and children
    entered China on visitors visas is not determinative. As the motion judge
    observed, given that the father is a Chinese citizen, and, I would add, given
    the fathers very significant financial resources, it is hard to imagine that
    their re-entry to China would face any serious impediment. The father, on the
    other hand, has no immigration status in Ontario.

[44]

The
    fact that the parties maintained a home in Toronto while living in China is
    also not sufficient to make the mother ordinarily resident in Ontario while she
    was living and carrying on her customary mode of life in China. The value of
    the parties assets in Ontario pales in comparison to their assets in China. China
    was not a special, occasional or casual residence. I agree that the mother was not
    ordinarily resident in Ontario in the year immediately preceding the filing of
    her divorce application. In my view, her real home during that period was in China.

[45]

Since
    the motion judge proceeded to consider the issue of jurisdiction under the
FLA
without turning to the jurisdictional test for corollary relief under the
Divorce
    Act
, I will do the same without comment on the correctness of this
    approach. Had he considered the question as to whether the mother was
    ordinarily resident at the time of the application for the purposes of claiming
    corollary relief under the
Divorce Act
, the answer on these facts
    would have been that she was not. She had been living in China immediately
    prior to bringing the application.

[46]

Turning
    to whether Ontario has jurisdiction under the common law test that requires a
    real and substantial connection, I agree with the parties that, in the context
    of marriage breakdown, the presumptive connecting factors are necessarily
    different from those identified by the Supreme Court in
Van Breda
in
    the context of a tort case. The Supreme Court in
Van Breda
was clear
    that the list of presumptive factors it identified related to tort claims and
    issues associated with those claims, and that the list of presumptive
    connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to
    connections that give rise to a relationship with the forum that is similar in
    nature to the ones which result from the listed factors. Relevant
    considerations include:

(a) Similarity of the connecting factor with the recognized
    connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private
    international law of other legal systems with shared commitment to order,
    fairness and comity.

[47]

While
    they differ in their view as to where, in this case, the real home or
    ordinary residence of the mother is, both parties submit that the location of
    the real home or ordinary residence should be a presumptive connecting
    factor. This in my view makes eminently good sense. Ordinary residence and
    habitual residence are the jurisdictional tests under the
Divorce Act
and the
CLRA
,

respectively. Accepting the real home or ordinary
    residence as a presumptive connecting factor, and having concluded that the
    motion judge did not err in finding that the mother was not ordinarily resident
    in Ontario, I agree with the motion judge that [t]he facts of this case do not
    support the existence of a presumptive connecting factor that would entitle
    this court to presume jurisdiction. The mother therefore did not satisfy the
    real and substantial connection test, and the courts of Ontario do not have
    jurisdiction over the mothers corollary claims under the
FLA
. Given
    this, it is not necessary to address the parties arguments on the issue of
forum
    non conveniens.

[48]

The
    final jurisdictional question is whether the court had jurisdiction to make an
    order under s. 22 of the
CLRA
. My answer is no.

[49]

The
    court does not have jurisdiction under s. 22(1)(a), because the children were
    not habitually resident in Ontario at the time that the mother commenced her
    application. Habitually resident is defined in s. 22(2), reproduced above.
    Based on that definition, the children were habitually resident in China, which
    is the place that they last resided with both parents prior to the filing of
    the application.

[50]

The
    court also does not have jurisdiction under s. 22(1)(b). Pursuant to that
    section, although a child is not habitually resident in Ontario, the court can
    exercise jurisdiction if
all
of the conditions set out in ss. 22(1)(b)(i)-(vi)
    are fulfilled. Section 22(1)(b)(i) requires that the children have been
    physically present in Ontario when the application was commenced. In this case,
    they were attending school in Beijing. It is not necessary to go any further.

[51]

As
    the father submits, if the statutory test for jurisdiction in s. 22 is not made
    out, the court cannot resort to a common-law test to ground jurisdiction: see
Dovigi
    v. Razi
, 2012
ONCA 361, 110 O.R. (3d)
    593, leave to appeal to S.C.C. refused, 34945 (November 22, 2012).

[52]

The
    remaining issue is whether this court should, as the father requests, order the
    return of the children to China.

[53]

Under
    s. 40 of the
CLRA
, the court has several options when it is satisfied
    that a child has been wrongfully removed to or is being wrongfully retained in
    Ontario, or alternatively that it may not exercise jurisdiction under s. 22.
    These options include making such interim order in respect of the custody or
    access as the court considers is in the best interests of the child. The
    children are currently mid-school year in Toronto, with their mother, who has
    been their primary caregiver. Given the motion judges conclusion that the
    court had jurisdiction, he did not consider whether the court should make an
    interim order with respect to custody or access pending the childrens return
    to China, or order the immediate return of the children to China. In my view,
    this matter should be returned to the motion judge, or another judge of the
    Superior Court in Toronto, to determine what order should issue pursuant to s.
    40 of the
CLRA
.

COSTS

[54]

If
    the parties are unable to agree on the issue of costs, they shall provide brief
    written submissions within 30 days. No reply submissions shall be provided
    without leave.

Released: Jan. 22, 2013                                         Alexandra
    Hoy J.A.

DD                                                                    I
    agree Doherty J.A.

I
    agree S.T. Goudge J.A.





[1]
In a tort case, those factors are: (a) the defendant is domiciled or resident
    in the province; (b) the defendant carried on business in the province; (c) the
    tort was committed in the province; and (d) a contract connected with the
    dispute was made in the province: see
Van Breda
, at para. 90.


