Our globalized economy has more and more families on the move with ties to a number of jurisdictions. Families migrate to follow business opportunities with ease. While a family is intact the question of where their real home is of little importance. They may move back and forth between their place of birth and overseas jurisdictions. A couple may have two distinct places of origin, meet and form a family in a third and move on from there. When a relationship fails, the jurisdiction in which family law issues are settled suddenly becomes of fundamental significance. Rights to share in property, to spousal and child support, to the care and custody of children and, even, to divorce vary enormously between different jurisdictions. The choice of the law that will be applied and the jurisdiction in which any legal dispute will be resolved may determine the outcome favourably or unfavourably for each party.

Ontario has some of the most generous child and support provisions for recipient spouses in the world. Ontario imposes broad rights to share in the value of property at the end of a marriage. Our province also has even handed custody and access law with no formal advantage given to either mothers or fathers. This legal framework is advantageous to some and disadvantageous to others. There are clear incentives to selecting Ontario and to avoiding this jurisdiction, depending on a spouse’s situation and goals. A recent Ontario Court of Appeal decision, Wang v. Lin 2013 ONCA 33 provides some guidance as to how these cases will be decided and in so doing emphasizes the importance of the family’s “real home” in these decisions.

In Wang v. Lin, the family were all Chinese by birth. The parents married in China and had two children born in China. The family moved to Ontario as permanent residents in 2005. The mother and both children resided in a family home in Ontario, obtained OHIP cards, attended school in Ontario and all three became Canadian citizens. The father remained in China looking after the family businesses. He lost his permanent residency status in Canada and did not become a Canadian citizen. In 2010, the mother and two children moved back to China where the family lived together. The children attended Chinese schools and spent time with both parents and extended family. The mother’s evidence was that this move was intended to be temporary with the goals of improving the children’s Mandarin skills and for the father to obtain legal status to reside, again, in Canada. They kept their Ontario home.

In April, 2012, the mother returned to Ontario where the parties still owned a home. She started a claim for a divorce, property claims under Ontario family property law, child and spousal support, and custody of the children. She brought an application for a world- wide injunction to freeze her husband’s assets which was directed not only to China and to Canada but also to the British Virgin Islands where she obtained an order against the husband’s corporate assets in that jurisdiction. The husband responded by seeking to stay the Ontario action for lack of jurisdiction. Although when the wife started the Ontario action the children were living in Beijing and attending school there, the wife subsequently  moved the children to Ontairo and re-registered them in the Ontario school that they had previously attended.  On learning this, the husband started a family law application in China and also moved in Ontario for the children to be returned to China.

The wife’s application was under the federal Divorce Act, the provincial Family Law Act,  and the Children’s Law Reform Act. Oddly enough there are different jurisdictional tests under each piece of legislation despite the fact that most family cases involve more than one of these statutes. Simply put, to obtain a divorce at least one of the spouses must have resided in Canada at least one year before starting the claim. For spousal, child support or custody and access claims under the Divorce Act, either spouse may make a claim if ordinarily resident in a province at the outset of the lawsuit or if both spouses accept the jurisdiction. Of course, if there is no jurisdiction to grant a divorce then a court could not make an order for support, custody or access under the Divorce Act. Under the Family Law Act which governs property claims and spousal and child support claims where no divorce is sought or needed, the common law requirement that there be a real and substantial connection between the claim and Ontario governs The Court of Appeal held that ordinary residence of the family or “their real home” is a presumptive connecting factor relevant to jurisdiction. Even if jurisdiction is taken, Ontario family property law only applies if the spouses’ last habitual residence together was Ontario or they consent.  The Children’s Law Reform Act has very specific jurisdictional terms which require a child to have a habitual residence in Ontario except in the rarest of cases.

For this family, the Court of Appeal had no difficulty in concluding that ordinary residence of the parties or, in more direct language, their “real home” was in China. The existence of an intention to move back to Ontario was not sufficient to displace the facts that at the outset of the Ontario application, the family lived together in China in a family home there, the children attended school there and had close relationships with extended family there. The wife’s claims in Ontario were dismissed with an Ontario court only permitted to decide the question of whether there should be an interim solution for the children who were enrolled in Ontario schools by the time the appeal was heard.

The result in Wang v. Lin is clear enough for that family. The wife’s decision to start an application in Ontario while her children were still living in China and attending school there is stark enough to have decided the case. The fact that the family were living together in China and could not live together in Ontario as the father did not have legal immigration status here was also an important factor. The focus on identifying a family’s real home may not always be so easily determined, however. What if this family were of Canadian birth and origin and had moved to China with an intention to move back to Ontario in the foreseeable future? In that case would a court so quickly dismiss the relevance of the family intention and ownership of a home here? What if the mother had been of Canadian origin and the father of Chinese origin, with extended family in both countries? Would that have changed the result? I suspect that finding a family’s real home will not be an easy task in many cases. Given the real financial and personal implications of both choice of jurisdiction and the law to be applied, no doubt we will see many more families in these disputes.