Court File and Parties
CITATION: Robert v. Ascani, 2014 ONSC 611
DIVISIONAL COURT FILE NO.: DC-13-1883
DATE: 20140131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hackland, R.S.J., J. Wilson, Thorburn, JJ.
BETWEEN:
PATRICE ROBERT
Appellant
– and –
JESSIKA ASCANI
Respondent
Self-represented
Pascale G. Turcotte, for the Respondent
HEARD: January 27, 2014
REASONS FOR JUDGMENT
J. Wilson J.
[1] Mr. Patrice Robert appeals from the decision of R. Smith J. dated January 11, 2013. The father challenges the conclusions of the motions court judge that the Superior Court of Justice of Ontario in Ottawa is the appropriate forum to determine issues of support, custody and access concerning Vanessa, his daughter. The father also appeals the order of costs in the amount of $21,459.78 made in favour of the mother, Jessika Ascani for the proceedings in Ontario and Quebec.
Preliminary Motion to Introduce Fresh Evidence
[2] The father filed lengthy materials seeking to introduce fresh evidence, including documents that were available to the father predating the hearing before the motions judge, as well as affidavit material confirming ongoing issues between the parties in their family law dispute subsequent to the decision of the motions court judge. In oral argument he withdrew his request to rely on affidavit material filed by the parties after the decision of the motions judge was rendered.
[3] The father maintained his position that he sought to rely on additional documentary evidence that pre-dates the motion to question the findings of fact made by R. Smith J. in his decision.
[4] The motion for fresh evidence is denied. Documents available to the parties prior to a hearing generally will not be admissible as fresh evidence: R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, 2000 SCC 2, [2000] 1 S.C.R. 44 at para. 13. In any event, we have reviewed these documents, and conclude even if they had been admitted at this late date that none of their contents undermine the findings of fact made by the motions court judge.
[5] Motions for fresh evidence in matrimonial cases should be discouraged unless the evidence is clearly germane to the matter under appeal and required to determine the issues on the appeal. This appeal relates to a question of jurisdiction and should be determined on the record before the motions court judge.
Jurisdiction and Standard of Review
[6] An appeal under Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) lies to the Divisional Court: Marchildon v. Beitz, 2012 ONCA 668, 297 O.A.C. 198.
[7] The decision of the motions court judge involved findings of fact in the context of interpreting questions of law. The standard of review of a pure question of law is correctness. Findings of fact engage a standard of deference, and an appellate court will not intervene unless the motions judge has made a manifest error in his assessment of the facts, or if he has significantly misapprehended the evidence. Questions involving mixed questions of fact and law invoke a standard of review that is more stringent than a question of fact alone: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 28. The recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7 confirmed that all findings of fact by a motions court judge, whether adjudicative, social or legislative engage principles of deference with the standard of review of palpable and overriding error.
The Issues
[8] Justice R. Smith reviewed five issues in reaching his conclusions on jurisdiction including:
• Does the Ontario court have authority to exercise jurisdiction over the custody and access issues for Vanesa having regard to sections 19, and 22(1) of the CLRA?
• Is the custody and parenting agreement prepared by the father dated September 16, 2009 void due to the reconciliation of the parties?
• Should the court decline jurisdiction pursuant to section 25 of the CLRA?
• Would Ontario recognize a custody and access order based upon a parenting agreement obtained without a hearing and without notice to the mother when the parties reconciled shortly after the parenting agreement was signed, rendering that agreement null and void?
• In the alternative to the finding that the parenting agreement became null and void due to the reconciliation, should the Ontario Court supersede the Quebec order based upon material change of circumstances having regard to section 42(1) of the CLRA?
Factual Overview
[9] The parties lived in Gatineau Quebec at the time of the birth of the child. Vanessa was born August 12, 2009. The parties never married. The father is a lawyer working for the Federal Government in Ottawa and resides in Gatineau, Quebec. The mother is studying to become a paralegal and resides in Ottawa.
[10] The father prepared a parenting agreement dated September 16, 2009 shortly after Vanessa’s birth. The mother did not have legal representation when she signed the agreement and was suffering from post partum depression, as is confirmed by the terms of the agreement. The parenting agreement confirmed that the mother would assume primary responsibility for Vanessa’s care from September 16, 2009 until December 31, 2009 when the primary responsibility for day to day parenting decisions would shift to the father.
[11] The motions judge concluded that the parties reconciled shortly after the parenting agreement was prepared and resided together off and on in Gatineau, Quebec until the parties finally separated on August 1, 2011. The father challenges this finding of fact.
[12] The mother moved to Ottawa after the parties finally separated on August 1, 2011, and she has been residing in Ottawa with her mother since that date.
[13] Based on conflicting affidavit material, the motions court judge confirmed that the child has resided at least 50 per cent of the time with her mother in Ottawa (accepting the father’s position as to the sharing of time for the purpose of the motion). This arrangement had continued for a period of nearly a year, without objection from the father when the mother commenced proceedings for support and custody in Ontario. The mother initiated the application shortly after a dispute between the parties about daycare arrangements in Quebec. By the time the matter was argued before the motions court judge, the mother had been residing with the child in Ottawa for some 15 months.
[14] A Justice of the Superior Court of Quebec ratified the parenting agreement without a hearing, and without notice to the mother on November 18, 2009 by way of court order. The mother’s evidence was that she was not aware that the father had filed the parenting agreement with the Superior Court in Gatineau, Quebec after it was signed, and after the parties had resumed cohabitation seeking a Quebec court order. Her evidence was that she became aware of the Quebec court order after she commenced proceedings in Ontario in August 2012. The motions judge accepted the mother’s evidence on this point and the father challenges this finding.
[15] The father seeks to enforce the terms of the parenting agreement and argues that the Quebec court has jurisdiction, that the order of November 2009 of the Quebec Superior Court should be enforced, and that Quebec is the appropriate forum to conduct the proceedings with respect to support, custody and access for Vanessa.
This Appeal
[16] The father, in his 55 page factum raises twelve grounds of appeal challenging all aspects of the motion court judge’s decision including questions of law, his findings of fact, as well as raising issues of fraud and a reasonable apprehension of bias on the part of the wife’s counsel and the motions judge. He also argues that the motions court judge erred in ordering substantial indemnity costs in the circumstances of this case. He withdrew the allegations of fraud and bias during oral argument and focused on the legal and factual issues that he raised.
Analysis of the Motions Court Judge
[17] The motions judge reviewed the sequential steps to determine whether the Ontario Superior Court should assume jurisdiction for issues of custody, support and access concerning Vanessa where two potential jurisdictions engage as confirmed in the decision of Riley v. Wildhaber, 2011 ONSC 3456, 281 O.A.C. 18 (Div. Ct). I will review his sequential analysis as it is a model for such cases.
[18] First, the motions judge concluded after considering sections 19 and 22(1) of the CLRA that the Ontario court has authority to exercise jurisdiction over the issues of custody, access and support pursuant to section 22(1)(a) of the Act. These sections of the Act read as follows:
- The purposes of this Part are,
(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario 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;
(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and
(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.
22.(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(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.
(2) 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) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
[Emphasis added]
[19] He found that Vanessa was habitually resident in Ontario at the commencement of the application as she had resided in Ottawa with her mother for a period of fifteen months prior to the mother initiating her application with the implied consent or acquiescence of the father relying on section 22(2)(b) in reaching this conclusion.
[20] The father challenges the finding of fact that he consented or provided implied consent or acquiescence to the mother’s residence in Ontario for this period. There is ample evidence to support this factual conclusion. The motions judge correctly applied the principles outlined in Moniz v. Deschamps, 2010 ONSC 598, [2010] W.D.F.L. 2245 at para 14, Snetzko v. Snetzko (1996), 1996 7278 (ON CJ), 17 R.F.L. (4th) 31 at para. 7, and Harper v. Harper, [1994] W.D.F.L. 1440 at para. 22 (Ont. C.J. (Gen. Div.)) in reaching his conclusions.
[21] The motions court judge inadvertently referred to section 22(1)(b) of the Act in his conclusions instead of section 22(1)(a). However he applied the correct legal test in considering this issue and his conclusions are confirmed by the facts that were before him.
[22] The motions court judge then considered whether Vanessa fell within a situation where the child has two concurrent habitual residences recognizing the principles outlined in Riley. In Riley the Divisional Court confirms that a child may have two concurrent habitual residences in two different jurisdictions where the “living reality of those children who are in a truly joint custodial arrangement” (para. 22). Ottawa, Ontario and Gatineau, Quebec are a bridge apart and the child had moved between these two jurisdictions in the joint custody arrangement for the last 15 months. The motions court judge concluded that on the facts of this case, the child had two habitual residences, Ontario and Quebec. This factual conclusion cannot be challenged.
[23] The motions judge next considered the enforceability of the parenting agreement and concluded that the parenting agreement was void due to the reconciliation of the parties for a period of at least one year and nine months the agreement was signed. He adopted the decision of Shortman v. Shortman (1999), 1999 3039 (ON CA), 1 R.F.L. (5th) 116, (Ont. C.A.) that confirmed that the reconciliation of the parties can effectively terminate a separation agreement including releases with respect to property. Arrangements entered into between the parties concerning custody and access are much more time sensitive than an agreement reached for a division of property. There was no error in applying Shortman in the facts of this case.
[24] The motions court judge then considered the provision in section 25 of the CLRA that the Ontario court may decline to exercise jurisdiction, where the court is of the opinion that the jurisdiction should be appropriately exercised outside Ontario.
[25] The motions judge correctly concluded that it was not appropriate for the Ontario Superior Court to decline jurisdiction in deference to the Quebec Superior Court, as any court proceedings in Quebec were ex parte, without notice to the wife, and no factual findings had been made. The motions court judge correctly distinguished the facts of the Riley decision. In Riley, the parties had aggressively litigated issues with respect to the children for a period of seven years in the Quebec Superior Court. Notwithstanding a finding of concurrent habitual residence of the children in Riley, the Divisional Court confirmed that the wife could not unilaterally change the forum and initiate proceedings in Ontario, and therefore the Ontario Superior Court in these circumstances should decline to exercise its jurisdiction.
[26] In considering the effect of the Quebec Superior Court order, the motions court judge confirmed that pursuant to section 41(1) of the CLRA, an Ontario court would not recognize an extra-provincial order unless the responding party had notice of the proceeding, and an opportunity to be heard. That section provides:
41.(1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
[27] Neither of these pre-conditions to recognize an extra-provincial order was met in the facts of this case.
[28] Counsel for the wife suggests that the finding that the parenting agreement was null and void is not necessary to legal the analysis as clearly the facts established a material change in circumstances after the parenting agreement was signed, including the significant period of reconciliation of the parties, and the mother’s move to Ottawa after the parties separation. She supported the alternative analysis of the motions court judge having regard to section 42(1) (a) of the CLRA which allows a judge to make an order superseding an extra-provincial order in respect of custody or access when there has been a material change in circumstances that affects, or likely affects the best interests of the child, and the child is habitually resident in Ontario at the commencement of the application.
[29] The motions court judge found that in the alternative, there was a material change in circumstances that would allow the Ontario court to supersede an order made in Quebec pursuant to section 42(1) of the CLRA. His conclusions that there had been a material change in circumstances after the signing of the parenting agreement is supported by the evidence.
[30] Finally, the motions court judge concluded that the father had not met the onus of proving that Quebec was the forum conveniens to litigate this claim, and the best interests of the child would be to have the custody and access issues determined promptly in Ontario.
Conclusions
[31] We conclude that the motions judge correctly applied the sequential steps outlined in Riley and that his findings of fact are fully supported by the evidence before him.
[32] Perhaps it was not necessary for the motions judge to have concluded that the parenting agreement was void, and the preferred analysis may have been the consideration of whether there had been a material change in circumstances warranting superseding an extra-provincial order in accordance with section 42 of the CLRA as suggested by counsel for the mother. Either analysis results in the Quebec order not being enforcible.
Appeal as to Costs
[33] The motions court judge ordered costs approaching substantial indemnity costs against the father in the total amount of $ 21,459.78 plus HST. At the motion the father had sought costs if successful in the amount of $17,500.00 on a substantial indemnity basis. The wife’s counsel had sought costs in excess of the amounts awarded. The motions court judge fixed costs in favour of the wife in the amount of $18,000.00 for fees plus disbursements of $274.25 plus HST on both amounts. The quantum of fees ordered to be paid is very close to the amount demanded by the father, who is a lawyer, but was representing himself recognizing the principle that the expectation of the cost award by the losing party should be taken into account.
[34] In addition, the motions court judge ordered that the father pay the additional costs of $3,185.53 for the Quebec proceedings. The Quebec court had deferred any order of costs to be determined after the conclusion of the jurisdiction motion. The father had taken various steps in Quebec to reinstate the Quebec proceeding, and there was a contested motion as to whether the Quebec proceeding should be stayed pending the determination of the jurisdiction challenge brought by the father in Ontario.
[35] We see no reason to interfere with the discretionary award of costs made by the motions court judge: McNaughton Automotive Ltd. V. Co-Operators General Insurance Co., 2008 ONCA 597, 298 D.L.R. (4th) 86 at paras. 23-27; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27.
Costs of this Appeal
[36] The parties agreed at the conclusion of the hearing that the appropriate award for costs of this appeal would be $5,000.00 inclusive payable by the unsuccessful party to the successful party. The father therefore shall pay costs in this amount to the mother.
J. Wilson J.
Hackland R.S.J.
Thorburn J.
Date: January 31, 2014
CITATION: Robert v. Ascani, 2014 ONSC 611
DIVISIONAL COURT FILE NO.: DC-13-1883
DATE: 20140131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Hackland, J., J. Wilson, Thorburn, JJ.
BETWEEN:
PATRICE ROBERT
Appellant
– and –
JESSIKA ASCANI
Respondent
REASONS FOR JUDGMENT
J. Wilson J.
Released: January 31, 2014