CITATION: Riley v. Wildhaber, 2011 ONSC 3456

COURT FILE NO.: DC-11-1701

DATE: 2011/07/12

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. WILSON, SWINTON AND LINHARES DE SOUSA JJ.

B E T W E E N:

TANYA RILEY

Rodney B. Cross, for the Applicant (Respondent in Appeal)

Applicant (Respondent in Appeal)

• and -

ERIC WILDHABER

Self-Represented

Respondent (Appellant)

HEARD at Ottawa: May 12, 2011

REASONS FOR JUDGMENT

LINHARES DE SOUSA J.:

INTRODUCTION

1The Appellant, Eric Wildhaber, seeks to set aside the interlocutory order of McLean J., dated April 23, 2010, ruling that the Superior Court of Ontario (“Court”) had jurisdiction to hear an Application for support and custody brought by the Respondent, Tanya Riley, pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

2The motions judge ruled that, pursuant to s. 42 of the CLRA and the Court’s common law jurisdiction, the Court had jurisdiction. He further concluded that the Court ought to exercise its jurisdiction to hear this matter because “there is a connection with these children in both provinces, [the other province being Quebec], however, on the factual material that has been filed, it is clear to the Court that the major connection is in the province of Ontario.”

LEAVE ISSUE

3Because the decision of the motions judge is an interlocutory one, Mr. Wildhaber requires leave prior to bringing this appeal (see s. 19(1) (b)) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as am. (“CJA”)), which he did not obtain prior to filing this appeal. Nonetheless, on consent of Ms. Riley, leave was granted and this panel was prepared to proceed with the appeal given that there was good reason to doubt the correctness of the decision and the appeal raised issues of general importance.

POSITION OF THE PARTIES

4Mr. Wildhaber submits that the motions judge made a number of errors in law in arriving at his decision. Firstly, Mr. Wildhaber argues that he erred in not applying the statutory test provided for in s. 22(2) of the CLRA to determine whether the children were “habitually resident” of the province of Ontario.

5Secondly, Mr. Wildhaber argues that, in his consideration of s. 42 of the CLRA and its application to the facts of this case, the motions judge erred in not determining whether there was a “material change of circumstances that affects or is likely to affect the best interests of the [children].” Nor did he apply the five statutorily mandated conditions found in paragraph 42(1) (b) of the CLRA.

6Thirdly, Mr. Wildhaber submits that the motions judge committed an error in law in not conducting the proper analysis, on the facts of this case, so as to be able to properly form an opinion, under s. 42(2) of the CLRA, that it would be more appropriate for jurisdiction to be exercised outside Ontario, namely in Quebec, including consideration of the fact that Ms. Riley had attorned to the Superior Court of Quebec in this family matter for a number of years leading up to the bringing of her application in Ontario and that the parties had a contractual agreement to be governed by the laws of Quebec.

7Finally, Mr. Wildhaber argues that the motions judge erred in drawing adverse inferences against him because of the way he conducted the family law litigation in Quebec.

8Ms. Riley contests the appeal and submits that the motions judge did not err in finding that the Court has jurisdiction to hear her application. Furthermore, she argues that the motions judge did not err when he concluded that the Court should exercise its jurisdiction to hear this matter. Nor, Ms. Riley submits, are the adverse inferences made by the motions judge about the way Mr. Wildhaber has conducted his litigation in the province of Quebec, erroneous on the evidence of this case.

9Ms. Riley takes the position that the Court has jurisdiction because the children, on the facts of this case, can be found to be habitually resident in both the provinces of Ontario and Quebec. She further submits that the Court ought not to decline to exercise its discretion, pursuant to s. 42 (2) and s. 25 of the CLRA because the children, as the motions judge rightly found on the facts before him, have a substantial and closer connection to the province of Ontario.

STANDARD OF REVIEW

10In their facta neither party made any reference to the standard of review to be applied on this appeal. It is not disputed that on questions of law the standard of review is one of correctness. With respect to questions of fact an appellate court ought to defer to the motions judge and clearly ought not to interfere unless there is an obvious misapprehension of the facts based on the evidence resulting in a palpable and overriding error.

ANALYSIS

11We conclude that the motions judge committed a reviewable error in law. He did not consider the question of the children’s “habitual residence” pursuant to s. 22 of the CLRA which is statutorily required in order to determine the ultimate question of whether the Court has jurisdiction to hear Ms. Riley’s application for custody and support. Consequently, he did not apply the statutory test to determine whether the children were habitually resident in the province of Ontario, as he was required to do pursuant to ss. 22 and 42 of the CLRA. The preliminary question of the children’s “habitual residence” ought to have been decided before embarking on the inquiry of whether Ontario was the appropriate jurisdiction for the hearing of the issues raised in the mother’s application.

12Section 22(1) of the CLRA specifies the two circumstances where a court “shall only exercise its jurisdiction to make an order for custody of and access to a child”. They are where,

(a) The child is habitually resident in Ontario at the commencement of the application for the order; or

(b) Although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(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,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

13Section 22 of the CLRA must also be read with ss. 25 and 42(2) in mind. Section 25 indicates:

25. A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

14Section 42 permits an Ontario Court to supersede an extra-provincial order in respect of custody of or access to child where the child is habitually resident in Ontario. However, subsection 42(2) indicates that the “Court may decline to exercise its jurisdiction under that section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”

15The crux of this appeal is to determine whether a child, for purposes of the CLRA, can be found to have more than one “habitual residence”.

WHERE IS THE HABITUAL RESIDENCE OF THE CHILDREN?

16The evidence established the following facts:

(a) In September of 1998 both parties were living in Ottawa, Ontario and entered into a common law relationship.

(b) There are two children of their union, Alexia, born in January of 2000, and Nikos, born in July of 2002. Both children were born in Ottawa, Ontario and lived there with both parents until 2003.

(c) In 2003, when Alexia was 3 years old and Nikos was 1 year old, the family moved to Gatineau, Quebec right across the Ottawa River from Ottawa. The family lived in Gatineau, Quebec until the parents’ separation. During that period of time Alexia attended school in Gatineau, Quebec and Nikos attended daycare in Ottawa. The parents both worked in the city of Ottawa.

(d) In October, 2004 upon the separation, Ms. Riley moved her residence to Ottawa and took the children with her. According to Mr. Wildhaber, the changing of the children’s home to Ottawa was against his wishes. Mr. Wildhaber remained living in Gatineau, Quebec where he continues to live with his second family.

(e) In November of 2004, Ms. Riley commenced family law proceedings in Gatineau, Quebec in the Superior Court of Quebec. Mr. Wildhaber brought his own proceedings in the Quebec Court in reply. Their family law litigation in Quebec was quite protracted and multiple and continued until 2009. There were also attempts at mediation in Quebec.

(f) Through the period of the Quebec litigation, both parents continued to live in the two provinces, Mr. Wildhaber in Quebec and Ms. Riley in Ontario, where she is required to live because of her employment, although, there may have been a four to five month period when Ms. Riley also lived in Chelsea, Quebec for health reasons.

(g) On July 6, 2005, the parties finalized a consent judgment of the Superior Court of Quebec for the joint legal custody of their two children with a parenting arrangement that had the children residing with their father for approximately 43% of their time and with their mother for approximately 57% of their time even though the parents lived in the two different provinces.

(h) Unhappily the final consent Quebec order did not end the parental conflict. Each party continued to accuse the other of making unilateral decisions relating to the children contrary to the joint legal custody regime. Ms. Riley retained a lawyer in Ottawa and raised at that time issues of jurisdiction and child support. Litigation involving the issue of travelling with the children out of Canada also found its way to the Quebec Court. Furthermore, the parties were in conflict about decisions relating to the children’s school and daycare which resulted in further motions initiated by Mr. Wildhaber in the Quebec courts.

(i) On September 27, 2006, the parties once again reached a final agreement to be incorporated into a judgment on the issues before the Quebec Court dealing with custody, access and child support provisions. The amended parenting arrangement maintained the joint legal custody of the children between them and they began to care for the children by way of alternating weeks, which is the current arrangement. The parents continue to live in different provinces.

(j) The parties have continued to dispute the question of the children’s French school and whether the children should attend French schools in the province of Quebec or in the province of Ontario.

(k) In January, 2009, Mr. Wildhaber deregistered his children from their French school in Ontario, Francojeunesse, and registered them in a French school of his choice, Jean-de-Brébeuf, near his Gatineau residence. This spawned further litigation before the Quebec Court brought by Mr. Wildhaber to deal with the children’s schooling. The Quebec Court ruled, on an interim emergency basis, that the children should be returned to their Ontario French school, Francojeunesse, where they have remained.

(l) The Quebec litigation brought by Mr. Wildhaber in January 2009 did not proceed and adjourned “sine die” in May of 2009.

(m) In January of 2010, Ms. Riley commenced her application under the CLRA in the Ontario Superior Court. When the case came on for a case conference, Mr. Wildhaber contested the issue of jurisdiction and the matter was set for a motion to deal with the issue of jurisdiction on April 23, 2010.

(n) In March of 2010, after Ms. Riley commenced her Ontario action, Mr. Wildhaber revived his motion which he had adjourned before the Quebec Court “sine die” in May of 2009, for the purpose of making final the interim emergency order of January, 2009, requiring that the children continue attending their French school in Ontario, Francojeunesse. He also filed a second motion before the Quebec Court to deal with child support matters.

(o) On April 16, 2010, Ms. Riley requested an adjournment of Mr. Wildhaber’s Quebec motions so that the Ontario Court could deal with the question of the jurisdiction raised by Mr. Wildhaber and scheduled to be heard on April 23, 2010. The adjournment was granted to April 30, 2010. Ms. Riley has never raised the question of the jurisdiction in any of the Quebec proceedings.

(p) The evidence showed that since 2005 the children’s school and school activities have been in Ontario. Since that time to the present, the children have been treated by a doctor and a dentist in the province of Ontario. The two children are registered with the Ontario Health Plan (OHIP) although they also qualify for Quebec health cards. The children have friends and extended family in both the province of Ontario and the province of Quebec. The children are involved in extracurricular activities in both Ontario and in Quebec. Their after school child care has been in Quebec and in Ontario. The children have attended summer camps in both Ontario and Quebec. They are driven between the two provinces regularly since both parents’ place of work is in the province of Ontario. Ms. Riley estimates that the children are in the city of Ottawa, as a result, about 61% of their time.

17Pursuant to s. 22(1) of the CLRA this Court ought to exercise jurisdiction in this matter only if it finds that the children are “habitually resident” in Ontario, as defined in the CLRA or if the children are not found to be habitually resident in Ontario, only if the facts of the case meet all of the six conditions, (i) to (vi), as laid out in s. 22(1) (b).

18Section 22(2) of the CLRA defines “habitual residence” in the following way:

... a child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) 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; or

(c) the person other than a parent on a permanent basis for a significant period of time.

Whichever last occurred.

19The issue of “habitual residence” is a question of fact to be determined by an examination of the individual facts of a case and assessed according to the definition outlined above.

20Mr. Wildhaber argues that only s. 22(2) (a) can apply to the facts of this case and that, as a result, Quebec is the last place where the children resided with both parents. According to Mr. Wildhaber s. 22(2) (b) cannot apply to the facts of this case as that which “last occurred” because the children have never lived with just “one parent” pursuant to the joint legal custody order from the Quebec Superior Court based on the parties’ agreement. Rather, they live with both parents on an alternating weekly basis.

21The last words of the above definition, “whichever last occurred”, are important. It is an overarching modifying phrase to all of the circumstances identified in that section that would determine the question of whether a child is a “habitual resident” of a place. By the operation of that phrase, the Court is clearly directed to consider the last relevant residence of the child with the parents, the parent or other person, this latter one not being relevant to the facts of our case.

22Mr. Wildhaber’s suggested interpretation and application of the facts of this case to s. 22 is problematic. It ignores the living reality and the parenting of his children, which has been in place on consent of both parents, grant it not without conflict, for the last seven years. His suggested interpretation artificially directs the court to determine the question of habitual residence to a period in time that no longer exists and has not existed for seven years. Given the length of time elapsed, it is a period in time that may no longer be relevant or current to examining the best interests of the children. On the facts of this case, the place where the children resided with both parents prior to the separation in 2004 cannot be taken to be as “whichever last occurred” within the meaning of that section. That is not to conclude whether that might be the situation in the circumstances of another case. Consequently, we find that s. 22(2) (a) is not determinative of the children’s “habitual residence” in this case.

23We next consider whether s. 22(2) (b) can be read to apply to the facts of this case to determine the “habitual residence” of the children. The circumstances of the parents living separate and apart are certainly “whichever last occurred” for these children. Their parents have been providing them with two separate homes since 2004. Because of the joint legal custody consent orders agreed to by the parties and the alternating weekly parenting arrangement agreement arrived at by them, these children have not been exclusively living, on consent or by way of a court order, “with one parent” but “with one parent” at a time on an alternating weekly basis. Can s. 22(2) (b) be read so as to include such a parenting arrangement?

24If the answer to the above question is in the affirmative, then on the facts of this case the children would be found to have either two habitual residences at the same time or a habitual residence that alternates week to week as they move between their parents’ homes in the two provinces of Quebec and Ontario.

25If the answer to the question is in the negative, then the children must be found to not be habitually resident in the province of Ontario. The Court would then go on to determine if s. 22(1) (b) or s. 42(1) (b) applies to the facts of this case.

26Can the children be found to have two habitual residences either concurrently or on an alternating weekly basis?

27An appropriate starting point for this discussion is to consider the purpose of this child‑focused legislation. The purposes of the CLRA are set out in s. 19 and include, in summary, the following:

• the determination of custody and access issues on the basis of the best interests of the children,

• recognizing that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state with respect to custody of the same child ought to be avoided and that the Ontario courts will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection,

• discouraging the abduction of children and

• to provide more effective enforcement of custody and access orders.

28In Brooks v. Brooks (1998), 1998 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), the Ontario Court of Appeal recognized those purposes in the following words at para. 22:

Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure the best information relevant to the children’s best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, as has occurred here.

29In his Child, Custody Law and Practise, (Toronto: Thomson Carswell, 2004), Professor James G. McLeod rightly points out at p. 3-26 that one of the goals of the legislation is to avoid the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state. Therefore, it is generally necessary, if not desirable, considering the purposes of the CLRA, to identify one jurisdiction with sole authority to determine questions of custody of and access to children. With that in mind, s. 22, specifying “habitual residence” as the basis for the Ontario court’s exercise of jurisdiction in custody and access cases, was enacted.

30There is substantial case law dealing with the definition of the term “habitual residence” under the Convention on the Civil Aspects of International Child Abduction, Schedule to s. 46, Children’s Law Reform Act, R.S.O. 1990, c. C.12, [“Hague Convention”]. That jurisprudence provides much support for the proposition that a child can be found to have only one habitual residence for the purpose of the Hague Convention. With respect to this, Professor McLeod states at pp. 3A-8 of Child, Custody Law and Practise, supra:

Most courts have ruled that a child may have only one habitual residence for the purpose of the Convention. In the case of multiple residences, the habitual residence is determined on the basis of such factors such as the length of the period of residence, existing social bonds, and other circumstances of a personal or professional character that can indicate a more permanent tie to one country or another.

31The Ontario Court of Appeal, in Ellis v. Wentzell-Ellis, 2010 ONCA 347, [2010] O.J. No. 1987, had the opportunity to consider a trial judge’s alternative finding that a child, for Hague Convention purposes, may have had two habitual residences. However, having decided the case on the facts, as it assessed them and having overturned the judge’s primary finding, the Court of Appeal deemed it “unnecessary” to do so.

32Professor McLeod cautions, in Child, Custody Law and Practise, supra, against importing the definition of “habitual residence” developed by the courts under the Hague Convention to the CLRA even though the term is a phrase specifically adopted from the language used in the Hague Convention. The Hague Convention does not define the concept of “habitual residence” while the CLRA does. He then goes on to discuss some of the obvious differences attaching to the definition under the two laws as found in the case law.

33On an application for an order pursuant to the Hague Convention, Mackinnon J. found that it was possible for a child to have “consecutive, alternating, habitual residences in two different States, at separate times. It is a question of fact in each individual case.” The facts before her indicated that the parents had shared custody in the legal sense with the child living with each parent for almost equal time periods pursuant to their agreement in Canada and the United Kingdom.

34In the case of Johnson v. Athimootil, [2007] O.J. No. 3788 (S.C.J.), Harvison Young J. had to decide in the case before her whether two children were to be found to be habitually resident in Canada. On the facts of that case the family moved to Saudi Arabia from Canada for the purpose of the father’s employment. During a family holiday to India the parents separated. The father returned with the two oldest children to Saudi Arabia and the mother took the youngest child to Canada and sought a custody order of the two children who had returned to Saudi Arabia with the father.

35In considering whether s. 22(2) of the CLRA applied to the facts of her case Harvison Young J. concluded that it did not. In her view the definition found in s. 22(2) created “habitual residence out of the last relevant residence of the child with the parent, parents or other person.” She found that s. 22(2) (b) could not apply, even though the parents were clearly separated, because there was neither an agreement nor a court order with respect to the children. Habitual residence therefore had to be where the family last lived together, which was Saudi Arabia. She found that Saudi Arabia remained the children’s habitual residence. Harvison Young J. ultimately assumed jurisdiction to hear the matter, relying on her parens patriae power.

36We find that the facts of that case are distinguishable from the facts of this case. Firstly, as mentioned earlier the parents have not resided together since 2004. Consequently, where the children lived with both parents would not be the “last relevant residence with the child and the parents or parent.” The children reside jointly with both parents on an alternating weekly basis by way of an agreement of the parents and a consent order of the Quebec Superior Court.

37In the case of Brouillard v. Racine, 2002 2648 (ON SC), [2002] O.J. No. 4215 (S.C.J.), Pierce J. found that on the facts before her the child could be found to have two concurrent habitual residences pursuant to s. 22(2) (b). The facts before her revealed that the family lived together in Montreal, Quebec. Upon separating in 2000, the father remained living in Montreal and the mother returned to Thunder Bay, Ontario. The father commenced custody proceedings in Quebec. The Quebec order provided for joint legal custody with the young child’s residence alternating every three months with summer and holiday access to be arranged between the parents. When it came time to enroll the child in junior kindergarten, the mother brought an application in Ontario to change the custody order based on a material change of circumstances. The father challenged the court’s jurisdiction and began his own variation application in Quebec. The father further argued that the Hague Convention should be applied to the case.

38Pierce J. ruled, firstly, that the Hague Convention had no application to the facts before her but that s. 22 of the CLRA did. Pierce J. found that by virtue of the parenting arrangement which had existed to date, both Ontario and Quebec were the habitual residence of the child. She states at para. 12 of her decision:

I accept that the child is habitually resident in Ontario, as he lives with his mother in Ontario under the provisions of a court order for joint custody and with the consent of the father, pursuant to subsection 22(2)(b). At the same time, the child is also habitually resident in Quebec, under the “equal time” provisions of the custody order.

39After examining the details of the child’s life leading up to the mother’s application, Pierce J. declined to exercise her jurisdiction to hear the application, concluding under s. 42(2) that Quebec was the better forum to decide the best interests of the child.

40The Ontario Court of Appeal, in the case of Jerome v. Steeve, [2006] O.J. No. 4337, recognized that a child may have concurrently two habitual residences for the purpose of deciding access issues. The facts of the case involved two competing jurisdictions, namely Ontario and Nova Scotia, two provinces many miles apart. The appellant, Ms. Jerome, was the child’s paternal grandmother who had applied for an order of access to the Ontario court at the time the child resided in Ontario. In January of 2004, the child and her mother moved to Nova Scotia. As a result of family law proceedings commenced in Nova Scotia, the Superior Court of Nova Scotia granted joint custody of the child to her parents in May of 2004. The child lived with her mother in Nova Scotia although she had lived with her paternal grandmother in Ontario for three years while her mother dealt with her substance addiction and before she returned to Nova Scotia with her mother to live in that province near her mother’s family.

41The Court of Appeal of Ontario ruled, based on s. 22(2) (c) that, in February, 2004, the child was “habitually resident in Ontario.” She had resided in Ontario with her grandmother “on a permanent basis for a significant period of time.” Consequently, the Court of Appeal found that the Ontario Court had jurisdiction with respect to access to the child. At the same time, because of the current situation of the child, living in Nova Scotia with her mother for nearly three years and no longer living in Ontario, Nova Scotia clearly had jurisdiction over the child based on the common law. On the facts of the case, the Court of Appeal concluded that both Ontario and Nova Scotia had concurrent jurisdiction over the question of access to the child. Nonetheless, the Court further concluded that pursuant to s. 25 of the CLRA, an Ontario court ought to decline to exercise the jurisdiction over the access issues. This was because so many relevant considerations of the decision could more appropriately be dealt with in Nova Scotia, such as information about the child’s school, her maternal extended family, and the child’s caregivers. Hence, Nova Scotia was found to be the more appropriate forum.

42After examining the above jurisprudence, we are of the opinion that a child, in the appropriate circumstances, can be found to have two concurrent habitual residences pursuant to s. 22(2) (b) of the CLRA. The decision will ultimately depend on the individual facts of a case. Cognizant of the legislative purposes for which s. 22 was legislated, we are not persuaded that this conclusion will undermine those purposes. This conclusion also recognizes the living reality of those children who are in a truly joint custodial arrangement, whose numbers will be limited.

43Pursuant to ss. 22(3), 25 and 42(2) of the CLRA, the Ontario courts have the ability to decline to exercise jurisdiction where another jurisdiction would be the more appropriate forum. The case before us is one such case. The parents are living separate and apart and have done so since 2004. Based on the parents’ various agreements which they incorporated into consent orders of the Quebec Superior Court, the children have been residing with one of their parents on an alternating weekly basis in two different provinces. This is not a case where one can in any way conclude that the children were residing with one parent and merely visiting with the other parent. This joint parenting arrangement has been in place and has effectively been the children’s reality since 2004. It has also been made possible because of the short distance between the parents’ respective homes even though the two homes are on different sides of an interprovincial boundary.

44We therefore conclude that the children on the facts of this case are habitually resident concurrently in the provinces of Ontario and Quebec pursuant to s. 22 (2) (b) of the CLRA. As a result, the Ontario Superior Court of Justice has jurisdiction to hear Ms. Riley’s application.

45Having concluded that the Ontario Court has jurisdiction to hear Ms. Riley’s application, the next question to consider is whether, in the circumstances of this case, the court should decline to exercise such jurisdiction pursuant to ss. 25 and 42(2) of the CLRA. This requires the Court to embark on the enquiry incorrectly conducted by the motions judge in the first instance. In order to decline such jurisdiction under either of these two sections, the Court must be of the “opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”

46In deciding this question the Court should keep in mind the purposes of the legislation as enunciated in s. 19 of the CLRA and referred to earlier. The facts of this case unequivocally show that the children, based on the joint custodial regime of the last seven years, have a substantial connection with both provinces arising out of their parents’ respective residences and place of employment, their schooling and school activities, their summer activities, their child care arrangements, their medical and dental care, their transportation routines, and their social and extended family life. All of this has been possible because Ottawa and Gatineau, although in different jurisdictions, are only a bridge and short drive away from the place in which the children live weekly. In this respect, neither jurisdiction appears to us to be more appropriate than the other.

47Nonetheless, historically these parties have on their own initiatives commenced legal proceedings in the jurisdiction of the province of Quebec. These proceedings have been both long and protracted and have continued in various stages of dormancy and activity since 2004. We are of the view, that the parties, having made that decision in the first instance to commence legal proceedings in Quebec, ought to be required to continue their proceedings in that jurisdiction. It may well be, as argued by Ms. Riley, that the conflict between the parents relating to important questions that touch on the well-being of the children, such as religion, health care and schooling, has intensified to such an extent that the joint custodial arrangement in place for the last seven years, is no longer working, thereby triggering a material change of circumstances and necessitating another custody order. Nonetheless, that question, too, can appropriately be dealt with in the Quebec courts as in the past. Given the short distance between the two jurisdictions and the fact that evidence, if it came to a trial in either place, would come from both provinces, we cannot conclude that this result causes undue hardship to either of the parties.

DISPOSITION

48For these reasons, the appeal is granted, and the decision of the motions judge is set aside.

49The children are found to have their habitual residence in both Ontario and Quebec pursuant to s. 22(2) (b). However, the Court declines to exercise that jurisdiction, pursuant to ss. 25 and 42(2), being of the opinion that the Quebec Court is the more appropriate jurisdiction to hear this matter.

50Mr. Wildhaber sought costs of $500.00, essentially for disbursements. Costs to Mr. Wildhaber are fixed at $500.00, payable within 30 days.

Linhares de Sousa J.

J. Wilson J.

Swinton J.