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Family - Forum Non Conveniens. Kininsberg v. Meerapfel
In (Ont CA, 2026) the Ontario Court of Appeal dismissed a family law appeal, here brought against the dismissal of "a motion to challenge the jurisdiction of the Ontario court over the property claims and to argue that, even if the Ontario court had jurisdiction, based on the doctrine of forum non conveniens, Belgium was the clearly more appropriate forum to decide this issue".
Here the court sets out the "principles that apply to the question of forum non conveniens":(a) The principles that apply to the question of forum non conveniens
[33] Once the court’s jurisdiction has been established, a defendant may raise the doctrine of forum non conveniens: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 102; Li v. Li, 2021 ONCA 669, 159 O.R. (3d) 216, at para. 31, leave to appeal refused, [2021] S.C.C.A. No. 431.
[34] In Van Breda, at para. 104, the Supreme Court explained that the purpose of the forum non conveniens doctrine is to avoid the strict application of the rules governing jurisdiction when it would be unfair or inefficient to do so:As those rules are, at their core, based on establishing the existence of objective factual connections, their use by the courts might give rise to concerns about their potential rigidity and lack of consideration for the actual circumstances of the parties. When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine. [35] Where a defendant raises the issue of forum non conveniens, “the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff”: Van Breda, at para. 103. The defendant must show that the other court is “clearly more appropriate”: Van Breda, at para. 108.
[36] To establish that the court should decline to exercise its jurisdiction, the defendant must first identify another court that has an appropriate connection with the litigation and show that that court could dispose of the action and, secondly, “demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate”: Van Breda, at para. 103.
[37] In Van Breda, at para. 105, the Supreme Court identified a list of factors that the court can consider when a defendant raises the doctrine of forum non conveniens:a. The comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
b. The law to be applied to issues in the proceeding;
c. The desirability of avoiding conflicting decisions in different courts;
d. The enforcement of an eventual judgment;
e. The fair and efficient working of the Canadian legal system as a whole. [38] This list is not exhaustive: Van Breda, at para. 105. The factors that a court may consider may vary depending on the context: Van Breda, at para. 110; Li, at para. 42.
(b) The motion judge did not err in applying the doctrine of forum non conveniens
[39] Before addressing Mr. Meerapfel’s arguments, it is worth recalling that the decision made by the motion judge on the issue of forum non conveniens is discretionary: Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 40, leave to appeal refused, [2014] S.C.C.A. No. 161; Li, at para. 41. This means that on appeal, in the absence of an error in principle, a material misapprehension of the evidence or an unreasonable exercise of discretion, this court must show deference to the motion judge’s decision: Knowles, at para. 40; Li, at para. 41.
[40] The motion judge made no error in principle. She began her analysis by correctly stating that: “The purpose of the forum non conveniens doctrine focuses on the circumstances of the case, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient”. The motion judge then considered several factors in applying the doctrine of forum non conveniens, as indicated above. These factors are well established, and the motion judge committed no error in principle in identifying or applying them. Furthermore, she exercised her discretion reasonably. At paras 41-52 the court further considered this interesting and difficult international jurisdiction family law case.
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