Court File and Parties
Ontario Court of Justice
Between:
S.C. Applicant,
— And —
D.P. Respondent.
Before: Justice P.W. Dunn
Motion dated: 16 January 2017
Heard: 23 February 2017
Released: March 6, 2017
Counsel
Ms. Edosa Adams-Idode ......................................................... counsel for the Applicant S.C.
Ms. Julie Tyas and Ms. Kerri Parslow ……….counsel for the Respondent D.P.
DUNN J.:
Background and Facts
1Before the Court was an Application dated 9 January 2017 and the Applicant's motion dated 6 January 2017. (To distinguish this motion from another of the same date, this motion was filed in Volume 1 Tab 4).
2S.C., age 28, was the Applicant and D.P., aged 33, the Respondent. They are the parents of E.P.1, born […], 2015 (24 months), ("E.P.1" or the "child").
3The pleadings requested the Court to make findings pursuant to Section 22 of the Children's Law Reform Act (R.S.O. 1990 C.12, as am.) (the "Act"). Those findings are:
Substantial evidence regarding the best interests of E.P.1 are not available in Ontario;
That an application for custody and access is pending before an extra-provincial tribunal in Ecuador where the child is officially resident;
That no extra-provincial order in respect of custody or of access to the child has been recognized by a court in Ontario;
That the child does not have a real and substantial connection with Ontario;
That on the balance of convenience, it is not appropriate for jurisdiction to be exercised in Ontario.
The Respondent requested findings in opposition to those desired by the Applicant.
Citizenship and Family Connections
4The Applicant is a citizen of Ecuador and her family are entirely in that country. The Respondent and E.P.1 hold dual citizenships in Ecuador and Canada, and the Respondent's relatives are in Canada.
History of the Parties' Relationship and Residence
5The Respondent had a history of travelling back and forth from Canada to Ecuador. The evidence was not clear why the Respondent frequented Ecuador. There was a mention that he saw his parents there who were visiting, because their primary residence was in Canada. His business interests also are in Canada. The parties met around January in 2013 on one of the Respondent's trips to Ecuador. He lived with the Applicant's parents in March 2013, and the Applicant became pregnant with E.P.1 around April in 2014.
6From January to December 2013, the Respondent visited the Applicant in Ecuador at least six times, staying a minimum of ten to twenty days on each trip.
7On 14 November 2013, the Applicant obtained a tourist visa to Canada. For vacation purposes, she made short trips there between April 28th and May 5th, 2014, and again from 24 October 2014 to 29 April 2015. For all trips from Ecuador to Canada, the Respondent bought round-trip tickets for the parties. She was in Mississauga at the time of E.P.1's birth on […], 2015, which was registered in Ontario. The parties lived in Canada for three months after birth to perfect the birth registration and obtain E.P.1's passport.
8The parties and E.P.1 returned to live in Ecuador for about 17 months from 29 April 2015 to 11 October 2016. During that time, they made two brief trips to Canada between February 18 to March 16 in 2016, and from July 3 to July 18 in 2016.
9In the 17 month period the parties lived in Ecuador (April, 2015 to October, 2016), they resided with the Applicant's parents from April 2015 to early winter 2015, then they moved into a condominium they bought in Ecuador in November 2015, and lived there as a family unit. As the Respondent stated in his Answer (dated 14 February 2017)"the parties wished to have a place of their own after E.P.1's birth". On 16 January 2016, they married in Ecuador.
10On all trips to Canada, the parties stayed either in hotels or with the Respondent's relatives. The Respondent does not own a home in Canada. He has "almost all" his bank accounts in this country and files income taxes here. The Applicant's visa to Canada will expire on 4 October 2018. At no time did the Respondent make efforts to sponsor the Applicant to migrate to Canada.
The October 2016 Trip to Canada and Separation
11The parties and E.P.1's last trip to Canada began on 11 October 2016. They disagreed on the reason for the trip. The Applicant said it was to repair their unhappy relationship. The Respondent stated it was to ensure E.P.1 got vaccinations.
12Before leaving Ecuador in October 2016, the Respondent bought three return plane tickets with departure from Canada scheduled for 12 November 2016.
13The family did not return to Ecuador on 12 November 2016. They became embroiled in an altercation, and the Applicant was charged with assault on the Respondent. The charge was withdrawn on 29 November 2016.
14After the alleged assault, the Respondent assumed custody of E.P.1. The Children's Aid Society of Peel Region became involved, and as a result, the Respondent returned E.P.1 to the Applicant on 4 December 2016. She wanted to repatriate to Ecuador with E.P.1 on 4 December 2016, but could not because the Respondent would not give E.P.1's passport to her. In effect, the parties separated on 12 November 2016.
15The Applicant's present situation is that she will only be allowed to return to Ecuador with E.P.1 if this Court orders the Respondent to give E.P.1's passport to her.
16The child's stay in Canada from 11 October 2016 to the present, is the longest he has been here. He and the Applicant would have returned to Ecuador with E.P.1 after 12 November 2016 if they could have done so.
Legal Analysis
Habitual Residence
17The first question to be decided is, where is the child's habitual residence. Clause 22(2)(a) of the Act states:
Habitual Residence
A child is habitually resident in the place where he or she resided,
18with both parents;
19E.P.1 lived with both parents in Ecuador in his parents' condominium for a period ending on 11 October 2016. The Respondent's relatives considered that Ecuador was where the parties and E.P.1 lived. The notes provided by the Respondent's relatives, P.T., J.R., and E.P.2, did not speak of a connection between E.P.1 and Ontario. To the contrary, they referred to Ecuador as the parties' home. P.T.'s note dated 17 January 2017 stated:
…[Ms. S.C.], [Mr. D.P.] and E.P.1 were supposed to return to their home in Salinas Ecuador on 12 November 2016…
J.R.' note dated 9 January 2017 read:
During their last vacation [i.e. to Canada on 11 October 2016] [Mr. D.P.], [Ms. S.C.] and E.P.1 were to return back to their home in Ecuador on Saturday, November 12th, 2016.
E.P.2, the Respondent's father, wrote an unsworn statement dated 19 January 2017:
On January 29, 2015, [Ms. S.C.] gave birth to my grandson, E.P.1, who was born in Canada. They remained here in Canada and three months later, they returned to Ecuador where they reside.
On October 11, 2016, they came for a month long visit and stayed at my house. They were scheduled to return to Ecuador on 12 November 2016.
(emphasis added)
20S.P., the Respondent's brother, swore an affidavit dated 10 February 2017. In it, he did not comment on the location of the parties' residence, but he did express a concern that if a court in Ecuador had jurisdiction, the Respondent and his family may never see E.P.1 again.
Habitual Residence After Separation
21When the parties separated while in Canada on 12 November 2016, Clause 22 (2)(b) of the Act must be considered:
A child is habitually resident in the place where he or she resided,
where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order;
22E.P.1 lived with the Respondent for about four weeks between 12 November 2016 and 4 December 2016 when the Respondent retained the boy against the Applicant's wishes. The Applicant cannot be taken to have consented or acquiesced in any way to this confinement.
Jurisdiction of Ontario Court
23The Court now considers whether an Ontario court should assume jurisdiction. Having determined that E.P.1 is not habitually resident in Ontario, he was physically resident in this province when the Applicant launched her Application before this Court. The next hurdle is raised by Subclause 22(1)(b)(ii) of the Act that states:
a court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
24There certainly is some evidence that E.P.1's best interests are available in Ontario. He has a physician here. The Respondent's parents and siblings met E.P.1 and likely played and cared for him at times, but he was too young to form a meaningful bond with them, especially given the very short periods he was in Canada. I would not call this evidence substantial.
25The Respondent had numerous complaints against the Applicant personally and regarding her caregiving ability. Those criticisms are relevant to a court deciding custody, but not to one considering jurisdiction.
26Because this child spent about 17 months of his twenty-four month life in Ecuador, this is strong support for the proposition that substantial evidence of E.P.1's best interest in available in Ecuador. I am excluding from this calculation the time after 12 November 2016 that E.P.1 spent in Canada because the Respondent would not allow the Applicant to leave Canada with E.P.1. E.P.1 is too young to have community, school or sports connections in Ecuador, but Ms. Adams-Idode submitted, I believe correctly, that Ecuador is E.P.1's home. To the extent that he has appurtenances, such as clothing, furniture (suitable for his age), toys, they are in Ecuador. Although there were no documents supporting the involvement of the Applicant's family with E.P.1, there were pictures of the boy with them in what looked like a close rapport.
Application for Custody Pending in Ecuador
27Subclause 22(1)(b)(iii) of the Act states:
although the child is not habitually resident in Ontario, the court is satisfied,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident.
28An Application for divorce and custody was filed in Ecuador on 17 January 2017.
Extra-Provincial Orders
29Subclause 22(1)(b)(iv) of the Act states:
although the child is not habitually resident in Ontario, the court is satisfied,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
No extra-provincial custody or access order regarding E.P.1 has been recognized by a court in Ontario.
Real and Substantial Connection with Ontario
30Subclause 22(1)(b)(v) of the Act states:
although the child is not habitually resident in Ontario, the court is satisfied,
(v) that the child has a real and substantial connection with Ontario.
31I cannot find that E.P.1 has a real and substantial connection with Ontario. The character of the boy's stays in Canada was in the nature of visits for the Respondent to see his family and to do business. There were two stays in Canada not related to the Respondent's family connection or business. The first stay in Canada was elongated by forces beyond the parties' control. Departure was delayed after their son's birth on […], 2015 because the parties waited three months until 29 April 2015 for E.P.1's birth to be registered and to obtain his passport.
32The second holdup for the Applicant leaving Canada with E.P.1 was when the Respondent withheld their son's passport after 12 November 2016.
Balance of Convenience
33Subclause 22(1)(b)(vi) of the Act states:
although the child is not habitually resident in Ontario, the court is satisfied,
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
34Because the Court has found that the child's most substantial connection is with Ecuador, it is appropriate for that country to assume jurisdiction. Ecuador is where the Applicant and child live. The Respondent and at least his parents have shown that they can and do travel to Ecuador, so they would be able to participate in a trial there. Evidently, the Respondent could afford to travel because he has done so frequently in the past, and his residence in Ecuador could accommodate his family.
Serious Harm Exception
35Finally attention must be given to Clause 23(b)(iii) of the Act. It states:
Serious harm to child
- Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(iii) the child is removed from Ontario.
36There was no evidence of the child suffering any harm, let alone serious harm, if E.P.1 is removed from Ontario. Mention was made by the Respondent of there being a better quality of life in Canada than in Ecuador, but clearly living in Ecuador was not a stoppage to the Respondent at least visiting there frequently in the past. In any event, the quality of life in a country is for the consideration of a court deciding custody. The evidence about the child's regular medical care was proof that the Applicant was meeting the boy's physical needs.
Respondent's Arguments
37I considered the following of Ms. Tyas' arguments:
I was invited to exercise parens patriae jurisdiction pursuant to section 69 of the Act. This jurisdiction is only available to the Superior Court of Justice.
The parties contemplated one day living in Ontario, especially when E.P.1 would be in school. This may have been a reverie, but the facts advocated in favour of the parties living in Ecuador, at least at the point when they arrived in Canada on 11 October 2016.
The Children's Aid Society of the Region of Peel's involvement in December 2016 suggested that the case should remain in an Ontario Court so the Court could receive the benefit of its investigation. I do not believe that agency will be involved any further with these parties, because family disputes, not protection issues, led to its initial involvement.
The involvement of police in Ontario with these parties in December 2016 does not help the Respondent in the jurisdictional issue.
S.P., the witness to alleged abuse by the Applicant, could travel to Ecuador, if the Respondent deems his evidence necessary in a custody trial.
Ms. Tyas argued that the Applicant had not shown that she would suffer any disadvantage in this court if it assumes jurisdiction. With respect, I do not believe that is a factor to be considered in section 22 of the Act.
It was submitted on behalf of the Applicant that E.P.1 would be at risk in Ecuador "because of the Applicant's aggressive and violent tendencies". The alleged aggression was toward the Respondent and not the child. Other than S.P., none of the statements from the other members of the Respondent's family complained of any untoward behaviour of the Applicant to anyone. In any event, I can safely assume there are police and child protection agencies in Ecuador who will keep E.P.1 safe.
Ms. Tyas believed that E.P.1 seeing Dr. Hector Chiavaro in Mississauga to obtain vaccinations was emblematic of his connection with Ontario. The Respondent did not submit any records of the boy's visits with that pediatrician. E.P.1 did have a stronger affiliation with his doctor in Ecuador, Janet A. Moran, who saw him monthly since he was four months old, until 12 September 2016. (see Note in Volume 1 Tab 3 A).
The Applicant filed medical receipts for E.P.1 while he lived in Ecuador, dated between 6 May 2015 and 9 September 2016.
ORDER
38The Court declines jurisdiction to make an Order that the child, E.P.1, born […], 2015, is habitually resident in Ontario, pursuant Subsection 22(b) of the Children's Law Reform Act.
39The Court orders the Respondent father to release the child, E.P.1, born January 29, 2015, his Canadian passport and any other government issued documents to the Applicant mother, forthwith.
40The Court orders the Respondent father to return forthwith the personal property of the child E.P.1, born […], 2015, to the Applicant mother (such as winter clothing, toys, etc.).
41Pursuant to Subsection 40(3) of the Act, the Respondent is ordered to pay travel costs for the Applicant and child from Toronto to Ecuador. If the parties cannot agree on the price for travel, the Court fixes the amount at $5,000., payable forthwith by the Respondent to the Applicant.
COSTS
(1) If a party requests costs, it is to be served and filed with Marty Starkman, Judicial Secretary, Brampton Courthouse, 7755 Hurontario Street, 6th floor, Brampton Ontario L6W, 4T6 by email at Martin.Starkman@ontario.ca or facsimile at 905-456-4829 by 24 March 2017.
(2) An Answer to a request for costs is to be served and filed by 7 April 2017.
(3) A Reply to an Answer is to be served and filed by 21 April 2017.
42The Application and motion in Volume 1 Tab 4 are now complete. The Applicant's motion dated 6 January 2017 in Volume 1 Tab 2 is dismissed as being redundant.
43I thank Ms. Adams-Idode and Ms. Tyas for their careful presentation and research.
Released: March 6, 2017
Justice P.W. Dunn