



COURT OF APPEAL FOR ONTARIO

CITATION: C.C. v. J.B., 2021 ONCA 363

DATE: 20210528

DOCKET: C69223

Huscroft, Paciocco and Jamal JJ.A.

BETWEEN

C.C.

Applicant/Responding Party/

Moving Party (Appellant)

and

J.B., P.B. and L.B.

Respondents/Moving Parties/

Responding Parties (Respondents)

Richard Niman and Beth Purdon-McLellan,
    for the appellant

Alexandra Kirschbaum, for the
    respondent J.B.

Katherine A. Cooligan, for the
    respondents P.B. and L.B.

Heard: May 13, 2021, by video
    conference

On appeal from the order of Justice Julie
    Audet of the Superior Court of Justice, dated December 10, 2020, with reasons reported
    at 2020 ONSC 7610.

REASONS FOR DECISION


[1]

The appellant mother, C.C. (mother), and the
    respondent father, J.B. (father), are the parents of four children. On this
    appeal, the mother challenges the finding
of the
    motion
judge that the Ontario Superior Court has jurisdiction over the youngest
    child, who was born in the U.S. and has never been to Canada. The motion judge made
    this finding in granting temporary parenting orders regarding the four children
    in response to motions brought by the mother, the father, and the respondent paternal
    grandparents, P.B. and L.B. (grandparents). The mother does not dispute that
    the Ontario Superior Court has jurisdiction over the three older children but
    claims it lacks jurisdiction over the youngest child.

[2]

The background facts, which are complex, are detailed
    in the motion judges reasons. For
present purposes
,
    the essential facts may be briefly stated.

[3]

All four children were born outside Canada: the eldest
    three children were born in Asia and the youngest child was born in the U.S. When
    the mother was pregnant with the youngest child, she began an application in
    the Ontario Superior Court seeking orders under the
Childrens Law Reform
    Act
, R.S.O. 1990, c. C.12 (
CLRA
) and the
Family Law Act
,
    R.S.O. 1990, c. F.3, regarding her three children and her then-unborn fourth child.
    The court granted her temporary decision-making responsibility over the three
    older children but found it lacked jurisdiction over the then-unborn fourth child.
    With the courts permission, the mother moved to the U.S., where she is a
    citizen and has family. The youngest child was born there. The mother and the four
    children continue to live in the U.S.

[4]

After the birth of the youngest child, the father
    brought an application for divorce in the Ontario Superior Court and then also
    sought temporary parenting orders regarding all four children. The mother later
    consented to the consolidation of the divorce proceeding with her application
    for parenting orders.

[5]

The mother also began a proceeding before a U.S.
    court for custody of the youngest child. In that proceeding, the U.S. court
    dismissed the fathers motion to decline jurisdiction, stating that it does
    not decline to exercise its jurisdiction.

[6]

The father and grandparents then brought the
    underlying motions for temporary parenting orders regarding all four children, relying
    on what is now s. 16.1 of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd
    Supp.), and ss. 21 and 72 of the
CLRA
.

The mother brought a
    cross-motion to dismiss those motions. She filed a motion factum, sought an
    adjournment, and participated in the motions on the merits.

[7]

The mother raises several arguments challenging
    the motion judges finding that the court has jurisdiction over the youngest
    child. However, that issue can be resolved based on ss. 3 and 4 of the
Divorce
    Act
and the mothers attornment to the courts jurisdiction.

[8]

The court has jurisdiction over the
    subject-matter of the proceedings under ss. 3 and 4 of the
Divorce Act
because the father was ordinarily resident in Ontario for one year
    immediately preceding the commencement of the divorce proceedings. We thus agree
with the determination of
the motion judge
    that the Ontario Superior Court is a court of competent jurisdiction under s.
    16.1 of the
Divorce Act
to make the parenting orders sought by the
    respondents.

[9]

The mother brought no motion challenging
    jurisdiction under r. 16(12) of the
Family Law Rules
, O. Reg. 114/99. Instead,
    she took steps in and argued the merits of the underlying motions. She therefore
    attorned to the courts jurisdiction by [taking] steps beyond merely
    contesting the jurisdiction of [the] court:
Lilydale Cooperative Limited
    v. Meyn Canada Inc.
, 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52;
Kunuthur
    v. Govindareddigari
, 2018 ONCA 730, 427 D.L.R. (4th) 120, at para. 18,
    leave to appeal refused, [2018] S.C.C.A. No. 449.

[10]

We thus see no error in the motion judges
    conclusion that the Ontario Superior Court has jurisdiction to make parenting orders
    regarding all four children, including the youngest child.

[11]

In this court, the parties raised
forum non
    conveniens
, which the motion judge mentioned in her reasons but is not
    reflected in the courts order. The motion judges reasons stated that it is
    not realistic to suggest that there could possibly be another forum more
    convenient to decide the best interests of [the youngest child] than the
    jurisdiction in which the best interests of her three older siblings are going
    to be assessed and determined. She added that [t]he evidence and analysis of
    which parenting arrangements are in [the youngest childs] best interests are
    inextricably intertwined with the evidence and analysis relevant to the best
    interests of her siblings, and they should be decided together, in one court.

[12]

Forum non conveniens

is a separate determination to be made
    once
jurisdiction simpliciter
is established. The decision to raise
forum
    non conveniens

rests with the parties, not with the court seized of
    the claim. Once jurisdiction is established, if the defendant does not raise
    further objections, the litigation proceeds before the court of the forum. The
    burden is on the defendant to show why the court should decline to exercise its
    jurisdiction and displace the forum chosen by the plaintiff:
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572,

at paras.
    101-3.

[13]

Here,
forum non conveniens
was not raised
    before the motion judge. The mother brought no motion asking the court to
    decline to exercise jurisdiction based on
forum non conveniens
and we
    were advised
that
this issue was not argued in
    the court below. Presumably,
for that reason
that
    the courts order does not address
forum non conveniens
. The motion
    judge should thus not be taken as having decided
the
    issue of
forum non conveniens
.

[14]

The appeal is dismissed. In all the circumstances,
    including the mothers reliance on public assistance for her day-to-day
    subsistence, there shall be no order as to costs.

Grant
    Huscroft J.A.

David
    M. Paciocco J.A.

M.
    Jamal J.A.


