Husband brought motion for custody and support of two children. Wife had commenced similar proceeding in Supreme Court of New York. Children were born in United States but lived in Canada until family moved to United States in 2010. Children attended school in United States for 2010/2011 school year. Husband resided in former matrimonial home in Ontario on date proceedings were commenced. Husband intended to continue to reside in Ontario. Court had jurisdiction to hear and determine corollary relief proceeding based on husband’s ordinary residence in Ontario. To extent claims were included in New York action, exclusive jurisdiction resided with New York Supreme Court. Claims for custody and access were clearly same matters that were being litigated in both courts. Husband’s claim that court could exercise jurisdiction for failure of New York court to assume jurisdiction in clear and aggressive manner was rejected. Children were not habitually resident in Ontario under Children’s Law Reform Act (Ont.). Court declined to accept jurisdiction over matter as it related to custody and access.
McMurtrie v. McMurtrie
(Aug. 22, 2011, Ont. S.C.J., Reid J., File No. D23135/11) 206 A.C.W.S. (3d) 53 (10 pp.).