



COURT OF APPEAL FOR ONTARIO

CITATION:

Naeli v. Ghaeinizadeh, 2013
    ONCA 2

DATE: 20130104

DOCKET: C55766

LaForme and Watt JJ.A. and Lederman J. (
ad hoc
)

BETWEEN

Ila Naeli

Applicant (Respondent on Appeal)

and


Pedram Ghaeinizadeh
and
    Payam Ghaeinizadeh

Respondent (Appellant on Appeal)

Heather Hansen, for the
    appellant

Daryl Gelgoot and Brittany Twiss, for the respondent

Heard: December 10, 2012

On appeal from the order of Justice Victor Paisley of the
    Superior Court of Justice, dated July 10
th
, 2012.

ENDORSEMENT

Introduction

[1]

The father appeals from orders made pursuant to urgent motions brought
    by the respondent mother.  Among other things, the mother sought temporary
    custody of the parties child  who was physically present in Ontario at the
    time of the application  child and spousal support, a preservation order, and
    a Certificate of Pending Litigation against title to the Matrimonial Home.

[2]

On the motion the father argued, as he does on appeal, that the Superior
    Court lacked jurisdiction to make any of the requested orders.  The motion
    judge concluded that the court had jurisdiction and that he ought to deal with
    the urgent issues on an interim basis.

[3]

In assuming jurisdiction, the motion judge cited the undisputed fact
    that the parties resided together in Ontario for a substantial period of time, namely
    from July 2011 to April 2012, and resided in Ontario with the child at the time
    of separation. He also cited the undisputed fact that the child was enrolled in
    preschool in Toronto, that the mother had been the childs primary caregiver
    since birth, and that the parties are Canadian citizens.

[4]

The motion judge granted the mother temporary custody of the child, and
    ordered the father to make a one-time support payment in the amount of $5,000
    to be credited against any future orders for support. The motion judge also
    ordered the issuance of a Certificate of Pending Litigation against the
    Matrimonial Home, a non-depletion order and ordered that the father maintain
    the payments on the home and a car.

[5]

The issues of access, exclusive possession of the Matrimonial Home,
    child and spousal support and
forum conveniens
were adjourned to be
    discussed at the case conference.

Facts

[6]

There are many facts the husband and wife do not agree on such as the
    nature and extent of their stay in Canada.  In addition there are allegations
    of abuse between the husband and wife.  However, there are also facts not in
    dispute, including that: the husband and wife were married in 2006 and are
    citizens of Canada; the husband is a business development consultant in
    Thailand; the wife is a stay-at-home mother and an entrepreneur; and, the
    parties have a son who was born in Thailand in 2008.

[7]

Additionally, it is not disputed that the parties have spent
    considerable time in Canada since July 2011; t
he child was
    present in Ontario at the time of separation and when the mother commenced her application;
    and, the child was enrolled in preschool in Ontario in September
2010.



Positions of the Parties

[8]

The husband takes the position that the motion judge erred in assuming
    jurisdiction in a summary manner and in making the orders he did where
    jurisdiction was in dispute.

[9]

In oral argument, counsel emphasized that in the face of a
    jurisdictional challenge, no substantive orders should have been made.  In
    particular, it is argued that in order to avoid prejudice to the husband, only
    access, rather than custody, should have been ordered on a temporary basis.

[10]

The
    wifes position is that no error was made.

Analysis

[11]

Appellate
    courts are to give considerable deference to custody and access decisions made
    at first instance.  An appellate court will not overturn a custody order in the
    absence of a material error, a serious misapprehension of the evidence or an
    error in law.  See
Van de Perre v. Edwards
, [2001] 2 S.C.R. 1014
    at paras. 11-12.

[12]

In
    this case, temporary orders were made both under the
Family Law Act
,
    R.S.O. 1990, c.F.3, as am. (the 
FLA
) for bridge support and to
    preserve the wifes other claims under that Act, and the
Childrens Law
    Reform Act
, R.S.O. 1990, c.C.12 as am. (the 
CLRA
).

(1)

Jurisdiction
    to make the orders
under the
FLA

[13]

Since
    the
FLA
does not specifically address the question of jurisdiction
    simpliciter, the common law real and substantial connection test applies.

[14]

As
    the Supreme Court recently explained in
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17, 343 D.L.R. (4
th
) 577 at para. 82, a real and
    substantial connection must be established on the basis of objective factors
    that connect the legal situation or the subject matter of the litigation with
    the forum. The following factors were identified as presumptive connecting
    factors that,
prima facie
, entitle a court to assume jurisdiction over
    a tort dispute: the defendant is domiciled or resident in the province; the
    defendant carries on business in the province; the tort was committed in the
    province; and a contract connected with the dispute was made in the province.

[15]

The
    list must of course be modified in the family context. Here the judge relied on
    a number of factors including that the parties resided together in Ontario for
    a substantial period of time, that they resided in Ontario with the child at
    the time of separation, that the child is enrolled in a preschool program in
    Toronto, and that the applicant and respondent are Canadian citizens.

[16]

While
    the husband objects to the determination of jurisdiction in a summary fashion, as
    the court observed at para. 72 of
Van Breda
, this is not at all
    unusual:

A particular challenge in this respect lies in the fact that
    court decisions dealing with the assumption and the exercise of jurisdiction
    are usually interlocutory decisions made at the preliminary stages of
    litigation. These issues are typically raised before the trial begins. As a
    result, even though such decisions can often be of critical importance to the
    parties and to the further conduct of the litigation, they must be made on the
    basis of the pleadings, the affidavits of the parties and the documents in the
    record before the judgeIssues of fact relevant to jurisdiction must be settled
    in this context, often on a
prima facie
basis.

[17]

We
    accordingly find no error in the motion judges assumption of jurisdiction for
    the purpose of making preservation orders on an urgent motion while adjourning
    the question of whether the court should exercise that jurisdiction for the
    purposes of the subject application to a later date.

(2)

Jurisdiction
    to make the orders
under the
CLRA

[18]

Section
    22 of the
CLRA
sets out the only circumstances in which a court shall
    exercise its jurisdiction to make an order for custody of or access to a child:

(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 as real and substantial connection
    with Ontario, and

(vi) that, on the balance of convenience, it is appropriate
    for jurisdiction to be exercised in Ontario.

[19]

While
    the motion judge did not specifically address each of the criteria listed under
    s. 22(1)(b), we are satisfied that on his findings, the minimum criteria to
    establish jurisdiction
simpliciter
were met: the child was living in
    Toronto at the time of the application; the child had been living in Toronto
    with his parents for many months; there was no application for custody or
    access made elsewhere at the time of the motion; there was no extra-provincial
    order relating to custody or access recognized in Ontario; the child having
    lived for several months in Ontario and being enrolled in preschool had a real
    and substantial connection with Ontario; and on the balance of convenience it
    was in the childs best interests for jurisdiction to be exercised in Ontario
for
    the purposes of the urgent motion
. For the purpose of the application for
    substantive relief, the question of whether Ontario should be the one to
    exercise jurisdiction was adjourned to a later date.

[20]

We
    would also stress that it is clear from the reasons of the motion judge that his
    primary concern was the best interests of the child, in all the urgent
    circumstances.

Disposition

[21]

We
    see no error in the orders made and the appeal is dismissed.  We agree with the
    motion judge that the question of
forum conveniens
is still to be
    determined either on consent or upon a full hearing of the evidence.

[22]

The
    wife is awarded her costs of the appeal fixed in the amount of $10,000
    inclusive of disbursements and HST.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)


