“The motion judge recognized that there are no statutory provisions governing Ontario’s jurisdiction to hear the claims advanced by Ms. Knowles. He turned to the real and substantial connection test as explained in the leading case Club Resorts Ltd. v. Van Breda, 2012 SCC 717, [2012] 1 S.C.R. 572. The motion judge concluded, at para. 46:
In summary, for the reasons discussed above, I find that Ontario has jurisdiction over this case because there is a real and substantial connection between the parties, issues and transactions in question in this case and Ontario. The presumptive factors establishing jurisdiction are that the case involves a claim to ownership of Ontario land, a claim for damage (the allegation of detriment incurred by the applicant in enriching the respondent) suffered in Ontario and a claim for support by a party who is ordinarily resident in Ontario. Further, the parties were both ordinarily resident in Ontario (as well as Florida) until their separation. Although their primary residence was in Florida, their customary pattern of life included residence for a substantial period each year in their Ontario home from 2007 through 2011 which made Ontario a “real home”. From the date of separation, the applicant was ordinarily resident in Ontario and not elsewhere.
The parties agree that the Van Breda analysis applies to the jurisdictional inquiry. As explained in Van Breda, at para. 99, that inquiry focuses on the connection between the forum and the subject matter of the litigation and the defendant. The inquiry looks to the claim as a whole:
The purpose of the conflicts rule is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.
While the ultimate determination of jurisdiction looks to the “factual and legal situation” as a whole, it is helpful when applying Van Breda to examine each claim individually. The nature of each claim may affect which facts will be viewed as presumptive connecting factors for the purposes of the Van Breda inquiry.
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I agree with the motion judge that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time. With respect, the contrary holding in Derksen v. Insurance Corp. of British Columbia, [1995] B.C.J. No. 2709, at paras. 20-21 (S.C.) misreads Thomson. I also find nothing in the judgments in Thomson that would justify limiting the court’s analysis to the taxation statute in issue. The definition of “ordinary residence” arrived at by the majority in Thomson is consistent with the plain meaning of the phrase and reflects the reality of the lifestyle that some people lead. The motion judge was satisfied that Ms. Knowles and Mr. Lindstrom had that kind of lifestyle. The record fully supports that finding.
The Family Law Act is silent on the question of jurisdiction over Ms. Knowles’ support claim. The motion judge held that in the absence of legislative direction to the contrary, that he was not limited to the concept of primary or principal residence, when considering the significance of residence to the jurisdictional question. I agree. In my view, if there is no controlling statutory provision, the concept of ordinary residence as defined in Thomson is appropriate when considering whether the parties’ physical connection to a jurisdiction is sufficient to constitute a presumptive connecting factor for the purposes of the Van Breda analysis.”