Court File and Parties
Ontario Court of Justice
Between:
Brittany Ann Sauve Applicant
— And —
Claude Sauve Respondent
Before: Justice M.G. March
Heard on: August 20, 2018
Decision released on: August 21, 2018
Counsel:
- John M. Cooke, for the Applicant
- Duncan Crosby, for the Respondent
Decision
Introduction
1By Notice of Motion filed February 26, 2018, the Respondent, Mr. Claude Sauve ("Mr. Sauve") seeks an Order for:
(i) a declaration that the proper jurisdiction for the hearing of this matter is North Bay;
(ii) the return of the subject children, S. (dob […] 2012) and R. (dob[…] 2013) to the District of Nipissing;
(iii) interim custody of the subject children;
(iv) alternatively, access to the children every weekend on Fridays at 5:00 p.m. to Mondays when the kids are to be dropped off at school.
(v) the appointment of an OCL representative for the children; and
(vi) costs of this Motion.
2By way of Notice of Motion filed August 13, 2018, the Applicant, Ms. Brittany Ann Sauve ("Ms. Sauve"), seeks a Restraining Order to prevent Mr. Sauve from having any contact with her or the children.
Background
3S. and R., prior to October 31, 2017, have lived in Mattawa, ON their entire lives. They attended school there. Their friends and neighbours are there.
4Without any advance warning being given to Mr. Sauve, Ms. Sauve took the children to Renfrew to her mother's home. Mr. Sauve in turn proceeded with immediate steps to locate the children. He contacted the Mattawa OPP. He brought an emergency ex-parte motion before Klein J. seeking to have the children returned to Mattawa. The Motion was dismissed on November 3, 2017.
5When police contacted Ms. Sauve to inquire about the location, well-being and safety of S. and R., she made allegations that Mr. Sauve had assaulted her and their kids. Consequently, Mr. Sauve was charged with a litany of historical assaults and other sundry offences as follows:
(a) July 1, 2012 – Aggravated Assault – Section 268 CCC;
(b) December 25, 2012 – Assault – Section 266 CCC;
(c) May 24, 2013 – Assault Cause Bodily Harm – Section 267(b) CCC;
(d) June 1, 2013 – Overcome Resistance – Section 246(a) CCC;
(e) June 1, 2013 – Assault Cause Bodily Harm – Section 267(b) CCC;
(f) January 1, 2014 – Assault Cause Bodily Harm – Section 267(b) CCC;
(g) June 9, 2015 – Assault with Weapon – Section 267 (a) CCC (x2);
(h) June 9, 2015 – Assault – Section 266 CCC;
(i) June 9, 2015 – Forcible Confinement – Section 279(2) CCC;
(j) December 25, 2015 – Assault - Section 266 CCC;
(k) September 3, 2016 – Assault with Weapon – Section 267(a) CCC;
(l) July 1, 2017 – Choking – Section 246(a) CCC;
(m) July 1, 2017 – Assault – Section 266 CCC;
(n) July 1, 2017 – Forcible Confinement – Section 279(2) CCC;
(o) July 1, 2017 – Utter Threats to Cause Death – Section 264.2(1)(a) CCC.
6On December 27, 2017, Ms. Sauve commenced an Application in this Court for sole custody of the children, child support payable by Mr. Sauve to her and no access to the children for Mr. Sauve.
Issues
7The outcome of the Motions requires a determination of the following issues:
(a) Where do the children ordinarily reside?
(b) Is there an immediate danger to a child's or a party's health or safety to justify allowing this case to be heard elsewhere than the ordinary residence of the children?
(c) Does Ms. Sauve have reasonable grounds to fear for her safety, or the safety of her children, in her lawful custody?
The Law
8Rule 5 (1)(b) of the Family Law Rules provides:
Subject to ss. 21.8 and 21.11 of the Courts of Justice Act, a case shall be started:
If the case deals with custody of or access to a child, in the municipality where the child ordinarily resides except for cases described in
(i) s. 22 of the Children's Law Reform Act, and
(ii) subs. 48 (2) and subs. 150(1) of the Child and Family Services Act.
Sections 21.8 and 21.11 of the Courts of Justice Act have no application on the facts of this case. Nor do s. 22 of the Children's Law Reform Act ("CLRA") or subs. 48(2) and 150(1) of the Child and Family Services Act.
9Further, Rule 5(2) of the Family Law Rules provides:
"If there is immediate danger to a child's or party's health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1), unless the court orders otherwise."
10Section 35(1) of the CLRA reads:
"On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody."
Section 46 of the Family Law Act contains virtually identical language to s. 35 of the CLRA.
Ordinary Residence
11S. and R. only knew Mattawa as their home prior to last Halloween. Under suspicious circumstances, when Mr. Sauve had confronted Ms. Sauve with a number of queries, amongst them:
(a) her past drug use,
(b) her past involvement with the Children's Aid Society,
(c) her lies, for example, her claim that her father had died when clearly he is alive, and
(d) her past employment as an adult dancer,
S. and R. were whisked away from their home in Mattawa.
12When contacted by police on November 3, 2017, only then did Ms. Sauve make allegations of a criminal nature regarding Mr. Sauve. Indeed, at Mr. Sauve's preliminary inquiry held August 9, 2018, Ms. Sauve testified as follows:
Q. And he called the cops because he was concerned about – the police were telling you that there was an issue of potential child abduction?
A. Yes, they did.
Q. So you were approached by the police in the context of a . . .
A. Ummhmm.
Q. . . .child abduction investigation, is that fair?
A. No, they – they just called and basically, they just wanted to know if the kids were safe, and I was safe, and what was going on and – basically. They never said nothing about a child abduction.
Q. So they were calling asking about your whereabouts, the children's whereabouts and well-being?
A. Yes, that's correct, yes.
Q. And you knew there was a complaint made to the police about this?
A. Yes, I did.
Q. And that's when you first revealed to police . . .
A. Yeah 'cause they were. . .
Q. . . .these assaults?
A. . . .gonna make me go back there, and I wasn't gonna put my two children in danger.
Q. And that's why you made this complaint?
A. Yep.
Q. And if they didn't make you go back you wouldn't have said anything?
A. Nope, if he would had never called the cops and just left me along none of this be going on right now.
Q. So you're – you would never have made a complaint if he never called the police?
A. No, I just wanted to get my kids out of there.
Q. And that's the only reason that you're. . .
A. Yep.
Q. . . .making the. . .
A. Yep.
Q. And you're currently in a custody battle?
A. That is correct, yes.
13The children, S. and R., attended school at […] in Mattawa. School is about to start again soon in September.
14Clearly, Mattawa is the children's hometown. It is where their friends, and the close relatives they have known best for their short lives thus far, all live. Mattawa is plainly where they are ordinarily resident.
15Issues of custody and access are best determined there – where teachers, neighbours and other collaterals who know the parties can be approached about ultimately giving evidence as to the best interests of S. and R.
16Accordingly, I shall transfer this matter to North Bay for this litigation to resume there, as it should.
Immediate Danger
17In her Affidavit sworn August 13, 2018, Ms. Sauve repeats the allegations about which she testified on August 9, 2018 in North Bay. In the criminal proceedings, the Crown Attorney invited the presiding Judge, Madam Justice Lainevool, to discharge the accused, Mr. Sauve. Her Honour did so.
18Ms. Sauve's evidence, in the Crown's view, did not warrant Mr. Sauve being committed to stand trial. Although technically some evidence existed upon which a reasonable jury properly instructed could have convicted Mr. Sauve, the Crown, in exercising its discretion in the public interest, chose not to put Mr. Sauve to the ordeal of a trial having heard Ms. Sauve's testimony. Justice Lainevool commended the Crown for this decision, as would I, had I been the preliminary inquiry judge. Ms. Sauve's evidence did not have an air of reality, nor a ring of truth to it.
19Further, Ms. Sauve has respected his conditions of release since November 7, 2017, when after sitting in custody for four days, he was released on stringent terms not to have contact with his wife or children.
20Ms. Sauve claimed in her August 13, 2018 Affidavit that Ms. Sauve sent her threatening letters. They were not made Exhibits to the Affidavit. They were not put before this court. Now her story changes in her counsel's submissions before me today, and those threats are said to have been communicated only through verbal messages.
21Ms. Sauve swore or affirmed that the children and she have suffered multiple broken bones. However, when the police looked for records of Ms. Sauve's attendance at the hospital in Mattawa, where she claimed she went seeking treatment on some occasions for the injuries which formed the subject matter of Mr. Sauve's criminal charges, neither the hospital administration, nor the police could locate any such records.
22I am confident in concluding that Ms. Sauve, S. and R. are not in any immediate danger at the hands of Mr. Sauve. Even if they were, Rule 5(2) of the Family Law Rules contemplates transferring the case to where it should be brought in the District of Nipissing, presumably after conditions addressing any "immediate danger" can be put in place. In this case, I am simply not satisfied there is such a danger on the state of the evidence put before me.
Reasonable Grounds to Fear
23The parties through their counsel have urged me, and I agree, that the Motion for the Restraining Order prepared by Ms. Sauve without the assistance of her counsel should be heard on a later date. It should indeed be dealt with by the Court in Nipissing, the proper jurisdiction for the litigation of this matter.
24Handed to me over the bench today was a letter from Celine Ouellette of Family and Children Services of Renfrew County. It reads:
"We have concerns about the children's physical safety with Mr. Sauve, given that multiple parties (Ms. Sauve, Mr. Sauve, S. and R.) report that Mr. Sauve would physically discipline S. using a "stick", also described as a piece of 2-by-4 lumber. S. has spoken with me about wanting to see her father. It is the opinion of the Society that safe, supervised access would need to be arranged, should access be ordered."
25Accordingly, I shall adjourn the Motion for the Restraining Order to be determined by an OCJ Judge in the District of Nipissing, when fuller and better evidence can be put before the Court, if such evidence exists.
Conclusion
26Mr. Sauve lost four days of his liberty he will never regain based on allegations upon which he was discharged at his preliminary hearing. He has not seen his children in almost 10 months. In my humble view, immediate access to S. and R. ought to be ordered or arranged for Mr. Sauve on appropriate terms in the very near future, if not outright interim custody of the girls granted in Mr. Sauve's favour.
27I shall direct the Court Clerk that a copy of this decision be delivered to Family and Children Services of Renfrew County and the Children's Aid Society of Nipissing and Parry Sound, should either agency see fit to take action to ensure the children are protected when in the care of either party.
Released: August 21, 2018
Signed: Justice M.G. March