The law of attornment and jurisdiction in family law can be complex and tricky to assess. Attornment, jurisdiction and forum non coveniens all have separate legal definitions, and although they can overlap, it is important to distinguish them and be aware of each of their application to your case.
Knowing which jurisdiction to bring a family law case is important as commencing a suit in a wrong or even not the most convenient jurisdiction, can delay your case and increase legal expenses. Typically, if counsel raises a prima facie case of forum non conveniens, then that issue will be heard first before any of the substantive issues of your case will be heard.
Canadian Courts use a two-stage analysis to determine the issue of jurisdiction. The first stage is a question of whether the specific province has jurisdiction, referred to as jurisdiction simpliciter. Sometimes this is clear by referring to legislation. For instance, the Divorce Act expressly stipulates when a province has jurisdiction over the parties’ divorce and corollary relief proceedings. A claim under the Divorce Act can only be brought if at least one of the parties has been ordinarily resident in that province for at least one year immediately before the commencement of the claim. In other cases, such as bringing a claim under Alberta’s Family Law Act, the legislation does not specify, and so the Court may engage in a real and substantial connection test.
Thus, the Court will first want to know whether legislation provides for the specific authority to have jurisdiction or whether the Court has jurisdiction pursuant to common law principles of jurisdiction simpliciter. This is the first stage of the test.
Sometimes two provinces or countries may both have jurisdiction in a matter. For example, perhaps the spouses have already separated, and one spouse has been living in one province for a year with the children, but the other spouse has stayed behind in the family home in Alberta and continues to work in Alberta. Perhaps the family came to Alberta for a temporary work contract, but all their property remained in a foreign jurisdiction, and their intention was to return to that country shortly; or perhaps a parent has fled one province and is attempting to file pleadings in a new jurisdiction under the parens patriae common law.
In the second stage of the analysis, the forum conveniens test, the Court will determine whether they should in fact assume jurisdiction or decline it in favor of another jurisdiction which the Court has deemed to be the more convenient forum. This stage of the analysis is heavily fact driven. In Haaretz.com v. Goldhar, 2018 SCC 28, the Supreme Court of Canada, explained (at para 27):
The jurisdiction simpliciter analysis is meant to ensure that a court has jurisdiction. This will be the case where a “real and substantial connection” exists between a chosen forum and the subject matter of the litigation. The forum non conveniens analysis, on the other hand, is meant to guide courts in determining whether they should decline to exercise that jurisdiction in favour of a “clearly more appropriate” forum.
The party raising the issue of forum non conveniens, has the burden of showing why the Court should decline jurisdiction, and fairness is an overall objective of this test, as confirmed by the Supreme Court of Canada in Van Breda v. Village Resorts Ltd., 2012 SCC 17.
The Court will consider the following non-exhaustive factors when they engage in the second stage of the analysis:
- The principle of comity;
- Avoiding multiplicity of proceedings;
- Location of witnesses and the parties;
- Any costs of transferring the case to another jurisdiction;
- Where the children are physically located;
- The children’s connections to each particular jurisdiction;
- Whether one party has already attorned to a specific jurisdiction;
- Which jurisdiction has access to the best evidence for the case;
- Where the litigation can be resolved most efficiently within the proper administration of justice; and
- Whether one party is “forum shopping” by attempting to gain an unfair advantage in the litigation.
Attorning to a jurisdiction means that a defendant, either implicitly or explicitly, agrees to continue the case in a specific jurisdiction. Sometimes defendants do not know they have attorned, but through their actions in the lawsuit, the Court has deemed them to have attorned. Attornment is an important factor in determining jurisdiction. If a defendant has attorned and is actively participating in a lawsuit in one jurisdiction, bringing a forum non conveniens case later in that jurisdiction will not be successful. It is crucial to understand the concept of attornment, and bring the forum non conveniens argument to the Court as early as possible. However, even if both parties voluntarily attorn to a specific jurisdiction, that still does not mean the Court has the jurisdiction to act or that it would be the most convenient forum.
Going through the above test and factors when determining where to file pleadings can help avoid a jurisdiction argument in family law, and help resolve the family law proceeding more efficiently and cost-effectively.