Background
The parties married in Belgium in 2006 and signed a prenuptial contract adopting the Belgian Civil Code’s separation-of-property regime. They had two children, born in Belgium in 2009 and 2013. Beginning in 2014, amid concerns about rising antisemitism in Europe, they pursued permanent residence in Canada. In August 2018, the family relocated to Ontario — obtaining provincial driver’s licences and health cards, enrolling the children in a private school, and shipping their household effects, including valuable furniture. The parties separated on October 15, 2018, approximately two months after arriving.
The husband commenced divorce proceedings in Belgium in December 2018; the wife commenced proceedings in Ontario in November 2019 seeking child and spousal support, parenting orders, and equalization of family property. Belgian courts determined that the parties’ habitual residence at the time of separation was Ontario, declined jurisdiction over the divorce and spousal support, but asserted jurisdiction over the “liquidation of the matrimonial regime” — conditional on a Canadian divorce first being granted.
The husband moved before the Ontario Superior Court of Justice to challenge Ontario’s jurisdiction over the property claims and, in the alternative, to have the matter stayed on the basis that Belgium was the clearly more appropriate forum. The motion judge dismissed both challenges, finding that Ontario had jurisdiction and that the husband had not discharged his burden of proving Belgium was clearly more appropriate. He appealed on forum non conveniens grounds.
The Court’s Holding
Justice Favreau, writing for a unanimous panel (Copeland and Gomery JJA concurring), dismissed the appeal. The court held that the motion judge’s forum non conveniens analysis was discretionary and attracted appellate deference absent a legal error in principle, a significant misapprehension of the evidence, or an unreasonable exercise of discretion. None of those errors was established. The motion judge correctly applied the multi-factor framework from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, and her conclusion that Belgium was not clearly the more appropriate forum was reasonable.
On the husband’s principal argument — that the motion judge failed to appreciate that Belgian proceedings over the matrimonial-regime liquidation would proceed regardless — the court disagreed. The motion judge had directly addressed this point: the Brussels Court of Appeal had asserted jurisdiction over the liquidation but had not conducted a forum non conveniens analysis and had not displaced Ontario’s jurisdiction. Critically, Belgian proceedings on the liquidation could not begin until an Ontario divorce was granted, meaning Ontario proceedings were inevitable in any event. Hearing the property claims in Ontario therefore offered a realistic prospect of reducing, not increasing, parallel litigation and the risk of contradictory judgments.
The court also rejected the husband’s remaining grounds of appeal. The Belgian appellate judgment did not require Ontario to stand aside on grounds of comity — asserting jurisdiction is not the same as declaring another forum clearly more appropriate. The motion judge’s underlying finding of Ontario jurisdiction was equally unassailable: both parties were habitually resident in Ontario at the time of separation, the children remained in Ontario, and that connection constituted the most significant presumptive link to the province.
Key Takeaways
- A forum non conveniens ruling is discretionary; an appellate court will only interfere if the motion judge made an error in principle, materially misapprehended the evidence, or exercised the discretion unreasonably.
- A foreign court’s assertion of jurisdiction over a related matter does not automatically displace the domestic forum — the foreign court must have also determined, in effect, that the domestic forum is not more appropriate.
- Where parallel proceedings are inevitable regardless of which forum hears the property dispute, retaining jurisdiction to consolidate the maximum number of issues locally can weigh against granting a stay on forum non conveniens grounds.
- The burden rests on the party seeking a stay to prove the proposed alternative forum is clearly more appropriate; a marriage contract signed in and referencing the law of the foreign jurisdiction is merely one factor to weigh and does not shift that burden.
Why It Matters
This decision provides a practical illustration of how Canadian courts manage the intersection of concurrent international family-law proceedings. It confirms that a foreign court’s conditional assertion of jurisdiction — here, Belgium’s claim over the matrimonial-regime liquidation contingent on an Ontario divorce — does not, by itself, render the foreign forum clearly more appropriate for property division. Practitioners advising internationally mobile spouses should note that the location of assets abroad carries limited weight when both parties have established habitual residence in Ontario and all other litigation necessarily anchors there.
The case also reinforces the principle, drawn from Van Breda, that the risk of multiplying proceedings cuts both ways: a court considering forum non conveniens must assess which forum is better positioned to consolidate, not just avoid, parallel litigation. Where refusing jurisdiction would guarantee bifurcated proceedings while retaining it offers a realistic path to resolution, the balance tips toward staying in the domestic forum.