Wang v. Lin, 2013 ONCA 33

• Judge: Doherty, Goudge and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 33;(2013), 300 O.A.C. 381 (CA)

Wang v. Lin (2013), 300 O.A.C. 381 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.010

Hong Wang (aka Jennifer Wang) (applicant/appellant/respondent by way of cross-appeal) v. Wei Lin (respondent/respondent/respondent by way of cross-appeal)

(C55582; 2013 ONCA 33)

Indexed As: Wang v. Lin

Ontario Court of Appeal

Doherty, Goudge and Hoy, JJ.A.

January 22, 2013.

Summary:

Chinese spouses and their two children immigrated to Canada in 2005, where they hoped to acquire Canadian citizenship. The mother and children obtained citizenship in 2010. The father spent little time in Canada, as he continued to manage the significant family assets in China. He lost his permanent resident status and remained a Chinese citizen. The family reunited in China in August 2010. The mother and children were subject to renewable 90 day visitor's visas and the children enrolled in an international school. The plan was to stay for two years and then return to Canada with the father. The family retained their home and bank account in Toronto. In April 2012, the mother flew to Toronto and applied under the Divorce Act, the Family Law Act (FLA) and the Children's Law Reform Act (CLRA) for a divorce, child and spousal support, custody and a division of family property. The father moved to stay the Ontario proceedings for want of jurisdiction. In May 2012, the father commenced family proceedings in China. The mother surreptitiously removed the children from China without the father's consent, forging his signature on replacement passports. The father brought a motion under s. 40(b)(3) of the CLRA to have the children returned to China.

The Ontario Superior Court, in a judgment reported [2012] O.T.C. Uned. 3374, stayed the mother's claims under the Divorce Act (not ordinarily resident in Ontario for at least one year immediately preceding the commencement of the proceeding) and the FLA, and her property claims (no "real and substantial connection" with Ontario), on the ground that the Ontario courts lacked jurisdiction. The court dismissed the father's motion for the return of the children under the CLRA. The mother appealed. The father cross-appealed.

The Ontario Court of Appeal dismissed the mother's appeal and allowed the father's cross-appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - [See Family Law - Topic 3542 ].

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - [See Family Law - Topic 3542 ].

Courts - Topic 7406

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - Family law (not divorce) - [See Family Law - Topic 3542 ].

Family Law - Topic 1962

Custody and access - Child abduction legislation - Jurisdiction - [See Family Law - Topic 3542 ].

Family Law - Topic 2118

Custody and access - Jurisdiction - Where child is resident outside the province - [See Family Law - Topic 3542 ].

Family Law - Topic 3542

Divorce - Jurisdiction, domicile, etc. - Resident - "Ordinarily resident" - Chinese spouses and their two children immigrated to Canada in 2005, where they hoped to acquire Canadian citizenship - The mother and children obtained citizenship in 2010 - The father spent little time in Canada, remaining in China to manage the family's significant assets - He lost his permanent resident status and remained a Chinese citizen - The family reunited in China in August 2010 - The mother and children were subject to renewable 90 day visitor's visas and the children enrolled in an international school - The plan was to stay for two years and then return to Canada with the father - The family retained their Toronto home and bank account - In April 2012, the mother flew to Toronto and applied under the Divorce Act, the Family Law Act (FLA) and the Children's Law Reform Act (CLRA) for a divorce, child and spousal support, custody and a division of family property - The father moved to stay the Ontario proceedings for want of jurisdiction - In May 2012, the father commenced proceedings in China - The mother surreptitiously removed the children from China without the father's consent - The father brought a motion under s. 40(b)(3) of the CLRA to have the children returned to China - The Ontario Court of Appeal held that since the mother was not ordinarily resident in Ontario for the one year immediately preceding the divorce proceeding, the Ontario courts lacked jurisdiction under the Divorce Act - There was no jurisdiction under the FLA, because the mother failed to satisfy the "real and substantial connection" test - There was no jurisdiction under s. 22 of the CLRA to adjudicate custody of the children, as they were habitually resident in China at the time of the application - However, Ontario courts had jurisdiction under s. 40 of the CLRA to determine whether the children were wrongfully removed from China - The court remitted the matter to determine whether an interim order should be made respecting custody and access pending the children's return to China or whether the children should be immediately returned.

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 752; 429 N.R. 217; 2012 SCC 17, refd to. [para. 20].

MacPherson v. MacPherson (1976), 13 O.R.(2d) 233 (C.A.), refd to. [para. 31].

Dovigi v. Razi (2012), 292 O.A.C. 292; 110 O.R.(3d) 593; 2012 ONCA 361, leave to appeal denied (2012), 445 N.R. 394 (S.C.C.), refd to. [para. 51].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 3(1), sect. 22 [para. 23]; sect. 40 [para. 24].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 3(1), sect. 4(1) [para. 18].

Family Law Act, R.S.O. 1990, c. F-3, sect. 15 [para. 22].

Counsel:

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.

This appeal was heard on December 14, 2012, before Doherty, Goudge and Hoy, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Hoy, J.A., and released on January 22, 2013.