CITATION: Winsa v. Henderson, 2016 ONSC 1736

DIVISIONAL COURT FILE NOs.: C61336; DC-931

DATE: 20160322

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, PATTILLO and KURKE JJ.

BETWEEN:

Kelly Ann Winsa

Respondent/

Appellant

– and –

Peter Alexis Mills Henderson

Applicant/

Respondent on Appeal

David K. Sherr, for the Appellant

Theresa Maclean, for the Respondent

on Appeal

HEARD at Oshawa: March 4, 2016

L. A. Pattillo J.:

Introduction

[1] This is an appeal by Kelly Ann Winsa (the “Appellant”) from both the Orders of the Honourable Mr. Justice Gunsolus dated September 8, 2015 (the “September 8, 2015 Order”) and the confirming order of the Honourable Justice McLeod (the “Motion Judge”) dated September 30, 2015 (the “September 30, 2015 Order”).

[2] The September 8, 2015 Order provided, among other things, that the child C.H. shall not be removed from Ontario pending further order of the court or unless the father, Peter Alexis Mills Henderson (the “Respondent”), consents in writing.

[3] The September 30, 2015 Order continued the September 8, 2015 Order and provided that, pending further order of the court or agreement, C.H. shall reside with the Respondent in Toronto on a without-prejudice basis, with access to the Appellant at C.H.’s discretion. In making that order, the Motion Judge determined that Ontario had jurisdiction to deal with the matter pursuant to s. 22(1)(a) or alternatively s. 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[4] The issue on this appeal is whether the courts of Ontario have jurisdiction over the dispute between the parties pursuant to s. 22(1) or s. 23 of the CLRA.

[5] For the reasons that follow, I have concluded that the Motion Judge erred in law in determining that Ontario has jurisdiction to determine issues of custody and access to C.H., pursuant to either s. 22(1) or s. 23 of the CLRA. In my view, having regard to those sections of the CLRA and the evidence, Ontario courts do not have jurisdiction. As a result, the appeal must be allowed and both the September 8, 2015 and the September 30, 2015 Orders must be set aside.

Background

The Facts

[6] The Appellant and the Respondent were married in Sudbury on August 21, 1993, and separated on June 5, 2014. There are two children of the marriage: O.H., born April 15, 1998, and C.H., born March 27, 2002.

[7] From the time of their marriage until August 2010, the Appellant and Respondent, who are Canadian citizens, resided primarily in Toronto. O.H. and C.H. were born in Ontario and are Canadian citizens.

[8] The Respondent is a director of music videos and commercials and has his own production company. He is based in Toronto and travels extensively for his work. The Appellant gave up her job as a fashion designer after the birth of O.H. and has remained in the home since, caring for the children.

[9] In August 2010, the family moved to Kamuela, Hawaii, in the United States. The Appellant and Respondent jointly purchased a house in Kamuela (the “Hawaii Home”) and O.H. and C.H. attended school in Hawaii and participated in extra-curricular activities there. O.H. is a competitive tennis player and C.H. has participated in cross-country running, track and field, baseball and rugby. The Respondent split his time between Toronto and Hawaii. During the summer school break from June to August and occasionally at Christmas, the family returned to Ontario, where they resided at a jointly owned cottage property on Stoney Lake (the “Cottage Property”).

[10] The relationship between the Appellant and Respondent deteriorated over time. The Appellant and the Respondent separated on June 5, 2014 and subsequently entered into an Interim Separation Agreement dated August 15, 2014 (the “Agreement”), during the Appellant and children’s return to Ontario for the summer break.

[11] The Agreement was signed in Ontario and each party had legal advice. The Agreement provides, among other things:

a) The Appellant and the children will return to Hawaii on August 16, 2014 and the Respondent shall remain living in a rented apartment in Toronto. (paras. 1.3, 1.4 and 4.1);

b) The Appellant shall have interim sole custody of the two children “until further agreement between the parties or court Order.” (para. 2.3);

c) The Respondent shall continue to have regular access to the children, whether he is in Hawaii or Canada, at the parties’ discretion, the terms of which will be made on consent. (para. 5.1);

d) The Appellant and Respondent agree that O.H. and C.H. “ordinarily reside in Kamuela, Hawaii, U.S.A. with [the Appellant] during the school year until they return to Ontario in June, 2015. [The Respondent] will continue to emotionally and financially support the joint decision of the parties for the children to attend school in Hawaii until June, 2015 when they shall return to Ontario. This shall be done on a temporary without prejudice basis.” (para. 4.2);

e) For as long as the current visas to the U.S.A. exist, the Respondent will cooperate on an annual basis, or whenever necessary, to ensure the Appellant and the children have the proper and necessary visas to continue living and attending school in the U.S.A. (para. 6.6);

f) The parties agreed that both the Hawaii Home and the Cottage Property were considered matrimonial homes. (para. 8.1);

g) The Agreement expires on June 30, 2015. (para. 12.1);

h) The Agreement is without prejudice to any rights or claims of the parties either prospectively or retroactively, if they choose to make a future argument in a court of law if the circumstances between them change. (para. 13.2).

[12] The Appellant and the children returned to Hawaii in August 2014. The Respondent visited them in January 2015 but the visit did not go well.

[13] In March 2015, the Respondent commenced divorce proceedings in Ontario. He made no claim for custody or access. The parties were divorced by order of the Superior Court dated August 4, 2015.

[14] On March 25, 2015, as a result of the Respondent’s conduct during his visit in January 2015, the Appellant obtained a temporary restraining order (“TRO”) from the Family Court of the Third Circuit in Hawaii (the “Hawaiian Court”) restraining the Respondent from having contact with the Appellant and the children. The Respondent was made aware of the TRO in April 2015 and was served with it in Ontario on May 28, 2015.

[15] In April 2015, the Appellant commenced an application for permanent sole custody, terms of access, and support in the Hawaiian Court. The application was served on the respondent on August 10, 2015. On September 11, 2015, the Hawaiian Court granted temporary physical custody of the children to the Appellant pending further order of the court. The Respondent was represented by counsel on the motion.

[16] In June 2015, the Appellant and the children returned to Ontario. As the Cottage Property had been sold effective June 30, 2015, they rented a cottage on an island on Stoney Lake. O.H. had a summer job teaching tennis.

[17] Issues between the Appellant and the Respondent escalated over the summer concerning the Respondent’s access to the children. The Appellant refused to let the Respondent have any contact with the children. The Respondent nevertheless made contact with and met with the children.

[18] As C.H.’s passport was set to expire in August, the Appellant applied for a new passport for him. The Respondent wrote to Passport Canada and objected to it being issued. The Appellant petitioned Passport Canada to provide the passport notwithstanding the Respondent’s objections. The passport was eventually issued on September 4, 2015.

[19] Both O.H. and C.H. were enrolled in school in Hawaii for the 2015-2016 school year. C.H.’s school began on August 10, 2015. While the issuance of C.H.’s passport delayed the Appellant and C.H.’s return to Hawaii, O.H. returned on his own for school. The Appellant and C.H. remained in Toronto in a hotel.

[20] The Respondent commenced an application for the relief under appeal in the Superior Court Family Branch in Peterborough on August 14, 2015 (the “Application”).

[21] The Respondent obtained the September 8, 2015 Order on an ex parte basis. Apart from the non-removal order, the matter was adjourned to September 17, 2015 to determine the issue of jurisdiction and whether the September 8, 2015 Order should remain in place.

[22] On September 17, 2015, the matter came before the Motion Judge. The parties made submissions on the issue of the court’s jurisdiction to make custody and access decisions relating to C.H. The Respondent requested that the court hear from C.H. concerning his views and preferences. The Motion Judge considered the matter and decided not to hear from C.H. Rather, he adjourned the proceeding to September 30, 2015 and ordered that an expert be retained by the parties to address “the issue as to the impact of a decision for [C.H.] to reside with either of his parents and to specifically identify if there are serious concerns that his wellbeing will be impacted if a determination is made contrary to his views and wishes.”

[23] The parties jointly retained Linda Chodos, MSW, RSW, Acc.FM, to prepare a Views and Preferences of the Child Report in respect of C.H. Ms. Chodos provided her report to the parties and filed it with the court on September 29, 2015 (the “Report”).

[24] In preparing the Report, Ms. Chodos met with each of the parents and then together with the parents and C.H. to explain her role. Finally, she met with C.H. alone on two occasions.

[25] The Report includes some background information provided by both parents and details Ms. Chodos’ sessions with C.H. She notes that C.H is caught in the middle of his parents’ conflict resulting in him feeling like he has to make a choice as a way of retreating from the conflict. The Report also indicates that the way he views his parents is directly related to their actions as a result of their conflict. He said that if the judge decided he needs to return to Hawaii, he would be extremely sad and cry.

[26] The conclusions of Ms. Chodos are contained in the last two paragraphs of the Report:

Given the information gleaned from my interviews with [C.H.], I am able to say that [C.H.]’s views and preferences were consistent in the two meetings. However, I am not convinced that his views and preferences were independent, strong and without influence from either parent.

There was no suggestion in my interviews with [C.H.] that would lead me to have any serious concerns that [C.H]’s well-being would be impacted if a determination is made which is contrary to his views and preferences.

The Motion Judge’s Reasons

[27] After setting out a brief background of the proceedings and a review of the facts, which dealt primarily with the parties’ immigration status in the U.S.A. (paras. 10 to 15) and various factual statements in the Agreement (paras. 16 to 21), the Motion Judge then stated that it was clear that the children went to school in Hawaii for four years but otherwise resided in Ontario (para. 22). He then referred to the Hawaii Home and the Cottage Property which was sold in June 2015 and stated: “The parties continued to reside in Ontario at a rental property located within the County of Peterborough” (para. 23). In the last paragraph of the facts section, the Motion Judge noted that the Respondent’s affidavit made it clear that C.H. wishes to reside with his father and not return to Hawaii (para. 24).

[28] The Motion Judge then proceeded to set out the four bases pursuant to ss. 22(1), 23 and 69 (parens patriae) of the CLRA when courts have jurisdiction to make orders for custody and access for a child, and defined habitual residence as set out in s. 22(2) of the CLRA (paras. 25 and 26). The Motion Judge then stated that the evidence is undisputed that the Respondent’s application was made in August 2015, at a time when the Appellant and C.H. were resident in Ontario (para. 27).

[29] The Motion Judge then stated at para. 28: “The fact that the child went to school in Hawaii does not, in my opinion, alter the fact that the child was and is habitually resident in Ontario given the facts that I have herein before identified.”

[30] The Motion Judge then went on to state that, even if he was wrong that s. 22(1)(a) is applicable, he was satisfied that C.H. would, on a balance of probabilities, suffer serious harm if returned to Hawaii to live with the Appellant (para. 29). In support of that finding, the Motion Judge referred to various incidents involving C.H. and both his father and mother from August to September 17, 2015 (para. 30). He then set out the background behind the involvement of Ms. Chodos and referred to “key portions” of the Report, including the final two paragraphs.

[31] The Motion Judge then concluded his analysis at paragraph 37 as follows:

37. Given the above facts the court would be of the view that C.H. would, on the balance of probabilities, suffer serious harm if returned to the custody of his mother in Hawaii. There is a real possibility that C.H.'s behaviour would escalate. The unauthorized removal and use of a canoe on open water, the approaching of a stranger for money to place a call to his father, the contact with border crossing guards, the alleged “tackling” by his mother, and the description of his escalating resistance to his mother satisfies this court that the child, C.H. would on the balance of probability suffer harm. As I had indicated on the last return date it is not to be suggested that this harm would be as a result of the risk of physical harm at the hands of his mother but rather the extreme steps taken by a 13 year old boy in an effort to establish his residency with the father.

Preliminary Matters

Further Evidence

[32] At the outset of the appeal, the Appellant brought a motion requesting that the court receive further evidence in the form of the decision of the Hawaiian Court on January 4, 2016, entitled “Court’s Findings of Fact, Conclusions of Law and Order on Initial Child Custody: Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement.” The Respondent objected to its admission on the basis that it was not relevant.

[33] We agreed that the Hawaiian Court decision was not relevant to the issues before us and accordingly declined to receive the further evidence and dismissed the Appellant’s motion.

Leave to Appeal

[34] The Appellant’s appeal was initiated in the Court of Appeal. When that Court’s Senior Legal Officer advised the parties that pursuant to s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), the appeal may lie to the Divisional Court as opposed to the Court of Appeal, the Appellant, with the consent of the Respondent, had the matter transferred to this court.

[35] We agreed that the appeal was properly before the Divisional Court pursuant to s. 21.9.1 of the CJA, the Schedule to s. 21.8 and s. 73 of the CLRA.

[36] The Respondent submits that, as the appeal is from a temporary order, it is interlocutory and leave is required pursuant to s. 19(1)(b) of the CJA. As the Appellant has not brought a leave application, the Respondent submits the appeal should be dismissed.

[37] Although the September 30, 2015 Order is on a preliminary issue and may be viewed as a step in the process of deciding the issues concerning C.H.’s custody and access, in our view, the determination of the issue of jurisdiction is “final” in that it disposes of a substantive defence which could have been determinative of the application. See: Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.); Mudathir v. Mudathir, 1999 18728 (Ont. C.A.), 47 R.F.L. (4th) 205.

[38] The Respondent points to the decision of this court in Riley v. Wildhaber, 2011 ONSC 3456 (Div. Ct.), which was an appeal from a decision that the Ontario Superior Court had jurisdiction to hear an application for support and custody. The appellant in Riley was self-represented. The court referred to the decision being appealed as interlocutory and stated that leave, although not sought, was required. As the respondent consented to leave being granted, the court conducted no analysis as to whether the order being appealed from was final or interlocutory. As a result, I do not consider that Riley is authoritative on the issue.

[39] In my view, based on the Court of Appeal authorities previously referred to, and given that the issue being appealed concerns jurisdiction, the September 30, 2015 Order is final and no leave is required.

Standard of Review

[40] The question of habitual residence is a question of fact to be determined by an examination of the individual facts of the case and assessed according to the definition of that term in s. 22(2) of the CLRA: Riley v. Wildhaber, at para. 19. Accordingly, it involves a question of mixed fact and law. See also: Robert v. Ascani, 2014 ONSC 611 (Div. Ct.), at para. 7.

[41] The standard of review on a question of law is correctness. On questions of fact and inferences of fact it is palpable and overriding error, and on questions of mixed fact and law the evaluation is on a sliding scale: for an error of legal principle apart from fact it is correctness, whereas for the application of facts to correct legal principle it is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33.

[42] In my view, having regard to the Motion Judge’s decision in respect of jurisdiction, the standard of review on this appeal involves both correctness and palpable and overriding error.

[43] Palpable and overriding error is equivalent to “clearly wrong”, “unreasonable” and “not reasonably supported by the evidence.” See: L.(H.) v. Canada (Attorney General), 2005 SCC 25, at para. 110.

Analysis

[44] The CLRA provides four ways in which an Ontario court can exercise jurisdiction to make a custody or access order in respect of a child through each of ss. 22(1)(a), 22(1)(b), 23 and 69. Sections 22 and 23 are as follows:

Jurisdiction

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.

Habitual residence

(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.

Serious harm to child

23. 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,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

[45] In addition, the court may exercise its parens patriae jurisdiction, which is provided for in s. 69 of the CLRA.

Habitual Residence (s. 22(1) of the CLRA)

[46] In my view, the Motion Judge erred in law in concluding on the basis of the facts before him that C.H. was habitually resident in Ontario. I have reached this conclusion for a number of reasons.

[47] First, although the Motion Judge set out the definition of ‘habitual residence’ in s. 22(2) of the CLRA in his reasons, he erred in law in not providing any analysis as to how s. 22(2) applied based on the facts as he found them. His determination that C.H. was habitually resident in Ontario was, in effect, conclusory.

[48] It is clear from the facts that, at the time of the Application, the Appellant and the Respondent were living separate and apart. Although the Motion Judge states in para. 23 of his reasons that the “parties” continued to reside in Ontario at a rental property located within the County of Peterborough, the evidence was that the Appellant rented the cottage and the Respondent lived in an apartment in Toronto.

[49] Further, in accordance with the Agreement, the Appellant had interim sole custody of C.H. Even though the Agreement had expired, para. 2.3 of the Agreement provides that the Appellant’s sole custody of C.H. continues until further agreement or court order. As there was neither, that provision still applied. In my view, therefore, at the time of the Application, the Appellant had custody of C.H. with the consent, actual or implied, of the Respondent. As a result, s. 22(2)(b) applies and C.H.’s habitual residence, through his mother who has custody, is Hawaii.

[50] I am also of the view that, in determining the issue of habitual residence, the Motion Judge considered irrelevant evidence and failed to consider relevant evidence to the extent that it resulted in a palpable and overriding error. Specifically, the Motion Judge focused his main factual findings on the parties’ immigration status in the U.S.A. and upon various portions of the Agreement.

[51] It is clear from the authorities, however, that when determining the issue of habitual residence, the parties’ immigration status is not relevant. See: Jenkins v. Jenkins, 2000 22523, 8 R.F.L. (5th) 96 (Ont. S.C.), at para. 15.

[52] Further, the portions of the Agreement referred to by the Motion Judge in his reasons dealt with the following facts: the children have lived in Hawaii for the school year since 2010; the parties separated on June 5, 2014; they continued to live separate and apart at the Cottage Property; the Respondent rented an apartment in Toronto and the Cottage Property would continue to be used by the parties until its sale; the Appellant and the children would return to Canada each summer and Christmas; and in June 2015, a new parenting agreement concerning the children would be negotiated but never was. He also referred to the portions of the Agreement that dealt with the expenses for the children.

[53] What the Motion Judge does not refer to and which, in my view, are key facts in relation to the determination of “habitual residence” under s. 22(2) of the CLRA, are the facts that the Appellant had sole interim custody of C.H. (para. 2.3) and that the parties agreed that the children “ordinarily reside in Kamuela, Hawaii, U.S.A.” during the school year with the Appellant until they return to Ontario in June 2015.

[54] In my view, the Motion Judge was also incorrect when he stated that the Agreement recognizes that the Appellant and children would return to Canada each summer and Christmas. The Agreement provides that they will do so only for the 2015 year when a parenting schedule for the children will be agreed upon (para. 4.3). Further, para. 8.4 provides that the parties will negotiate and decide what will happen during the Christmas of 2014 and the summer of 2015 and what the holiday arrangements for the family will be going forward. Further, para. 6.6 provides that the Respondent will cooperate for as long as the current visa to the U.S. exists to ensure that the Appellant and the children “remain living and attending school in the U.S.A.”

[55] In my view, the Motion Judge also erred in taking into account C.H.’s views, as expressed by the Respondent that he wanted to remain in Ontario. The test for habitual residency does not involve the wishes of the child. In any event, Ms. Chodos’ Report is clear that C.H.’s views are not without parental influence.

[56] The Respondent, relying on Riley v. Wildhaber, submits that C.H. had two habitual residences – Hawaii and Ontario – on the facts before the court. I disagree.

[57] Although Riley v. Wildhaber established that it was possible to be habitually resident in two concurrent jurisdictions pursuant to s. 22(2)(b) of the CLRA, such a finding is dependent upon the individual facts of the case. In that case there was a consent judgment of the Quebec Superior Court for joint custody of the children with a parenting arrangement which split the parents’ time with the children almost equally. It is clear from the decision that it is the “truly joint” custody arrangement that gave rise to the finding of two concurrent habitual residences (para. 42).

[58] In this case, the custody arrangement is not joint, nor has C.H. had any substantial connection to Ontario for the past five years. During that time, he has lived and gone to school in Hawaii. He has been involved in extra-curricular activities there and has a home there. He was scheduled to return to school in Hawaii last August when the issues arose between his parents. Although he had previously returned to Ontario for summer vacation and Christmas, the Cottage Property he had stayed at was sold at the end of June 2015. While his father rents an apartment in Toronto and C.H. has extended family in Ontario on both sides of his family, he has no home here in Ontario. His home and his friends are in Hawaii.

[59] Having determined that C.H. is not habitually resident in Ontario pursuant to s. 22(1)(a), it is necessary to consider s. 22(1)(b), which applies in circumstances where the child is not habitually resident in Ontario and which grounds jurisdiction if the court is satisfied that the six enumerated factors set out in that sub-section are all met.

[60] Section 22(1)(b) was not argued before us. Nevertheless, it is my view that it does not apply to the facts of this case because not all six factors are present. Specifically, the Appellant has made an application for custody of C.H. in April 2015 in the Hawaiian Court. Further, the Hawaiian Court granted her temporary custody of C.H. on September 11, 2015. Nor, for the reasons stated, do I consider that the balance of convenience favours the exercise of jurisdiction in Ontario.

Serious Harm (s. 23 of the CLRA)

[61] As noted, s. 23 of the CLRA provides that where the child is physically present in Ontario, the court may exercise its jurisdiction if “satisfied that the child would, on the balance of probabilities, suffer serious harm if, (i) the child remains in custody of the person legally entitled to custody; (ii) the child is returned to the custody of the person legally entitled to custody; or (iii) the child is removed from Ontario.”

[62] The Motion Judge concluded that C.H. would suffer serious harm if he was removed from Ontario and returned to Hawaii.

[63] The CLRA does not define “serious harm”. In Thompson v. Thompson, 1994 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C.), the Supreme Court of Canada considered the interpretation and application of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, and specifically Article 13(b) which provides that a judicial or administrative authority of a state is not bound to order the return of a child where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Also before the court was s. 5 of Manitoba’s Child Custody Enforcement Act, R.S.M. 1987, c. C360, which provided, in part, “…where a court is satisfied that a child would suffer serious harm if the child remained in or was restored to the custody of the person named in the custody order...”.

[64] At p. 596 of Thompson, La Forest J., writing for the majority, referred to the difference in wording between “grave risk of harm” in the Convention and “serious harm” in the Manitoba statute. After saying that he did not have to delve into the differences in the two provisions, he then stated that “the inconsistencies between the Convention and the Act are not so great as to mandate the application of a significantly different test of harm.” The learned Judge then went on to state that the “serious harm” in Article 13(b) of the Convention is physical or psychological harm to a degree that amounts to an intolerable situation. The risk must be more than an ordinary risk; it must be substantial.

[65] The above definition has been adopted by Ontario courts when considering what constitutes “serious harm” pursuant to s. 23 of the CLRA. See: A.S. v. Y.S., 2004 1233 (Ont. S.C.); Ndegwa v. Ndegwa, 2001 28132, 20 R.F.L. (5th) 118 (Ont. S.C.).

[66] In my view, the Motion Judge erred in law for a number of reasons in determining that C.H. would suffer serious harm within the meaning of s. 23 of the CLRA by being returned to Hawaii.

[67] First, the Motion Judge made no reference to the stringent nature of the test which must be met to establish serious harm.

[68] The Motion Judge’s decision that C.H. would likely suffer serious harm if he was returned to Hawaii was not based on any physical harm being inflicted by the Appellant. Rather, it was based on “the extreme steps taken by a 13 year old boy in an effort to establish his residency with his father.”

[69] While there is no doubt that C.H. did take some desperate steps over the course of the summer and in September in order to see his father, they did not rise to the level required to establish that C.H. would suffer serious harm. They did not constitute, individually or collectively, a substantial risk of physical or psychological harm that amounts to an intolerable situation.

[70] Nor can the actions of C.H. that the Motion Judge based his conclusion on be viewed in a vacuum. The clear inference which comes from the evidence and from the Report is that the Respondent was, if not instigating, at least encouraging many of C.H.’s actions.

[71] I am also of the view that the Motion Judge made a palpable and overriding error in failing to consider Ms. Chodos’ answer to the question he posed when asking for an expert report, and which directly engaged the issue of serious harm, to determine “if there are serious concerns that [C.H.’s] well-being will be impacted if a determination is made which is contrary to his views and preferences.”

[72] Ms. Chodos’ answer to that question, following a thorough investigation, was that she would have no serious concerns that C.H.’s well-being would be impacted if the court determined C.H. should return to Hawaii contrary to his wishes.

[73] Ms. Chodos’ conclusion impacts directly the question of whether C.H. would suffer serious harm if he was returned to Hawaii with his mother. To ignore it in deciding the issue amounts as I have said to palpable and overriding error.

Parens Patriae (s. 69 CLRA)

[74] Apart from referring to the parens patriae jurisdiction in s. 69 of the CLRA as a way in which the court may exercise jurisdiction, the Motion Judge did not deal with it or rely on it to find jurisdiction.

[75] As noted in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593 (C.A.), at para. 21, the Court’s parens patriae jurisdiction is founded on “necessity, namely the need to act for the protection of those who cannot care for themselves.”

[76] On the facts of this case, there is no necessity for the court to act for the protection of C.H.

Conclusion

[77] For the above reasons, therefore, the appeal is allowed. Ontario does not have jurisdiction to determine the issues of custody and access of C.H.

[78] It follows that both the September 30, 2015 Order and the September 8, 2015 Order that preceded it cannot stand. They are therefore vacated.

Costs

[79] Following the hearing of the appeal, counsel have submitted brief written cost submissions along with cost outlines which we have reviewed.

[80] The Appellant was successful on the appeal and is therefore entitled to her costs of the appeal on a partial indemnity basis.

[81] The Appellant seeks costs of both the original motion, the appeal and other ancillary matters primarily on a partial indemnity basis although she seeks full recovery of costs arising from certain of the Respondent’s actions subsequent to the September 30, 2015 Order. While those actions were arguably not appropriate given the appeal, those actions are not sufficient in my view to give rise to an award of substantial indemnity costs, let alone full indemnity.

[82] Based on the Appellant’s cost outline, I fix her partial indemnity costs of the appeal at $8,800 inclusive of taxes and disbursements. In my view that amount is fair and reasonable having regard to the issues raised and is well within the expectation of the Respondent given his cost outline.

[83] In fixing costs, I have not awarded the Appellant any costs for the initial motion (the Motion Judge awarded no costs) nor have I awarded any costs for the motion to traverse or the fresh evidence motion which the Appellant was not successful on. I do not consider that the Appellant should receive costs for those matters.

[84] I am further of the view that the Respondent is entitled to his partial indemnity costs on the fresh evidence motion. Based on the cost outlines from both parties and the issues raised in that motion, I fix those costs at $1,000.

[85] In the final result, therefore, the Appellant is entitled to her costs of the appeal which, after a credit of $1,000 for the fresh evidence motion, are $7,800.00, payable forthwith.

L. A. Pattillo J.

K. Swinton J.

A. D. Kurke J.

Date of Release:

CITATION: Winsa v. Henderson, 2016 ONSC 1736

DIVISIONAL COURT FILE NOs.: C61336; DC-931

DATE: 20160322

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, PATTILLO and KURKE JJ.

BETWEEN:

Kelly Ann Winsa

Respondent/Appellant

– and –

Peter Alexis Mills Henderson

Applicant/Respondent on Appeal

REASONS FOR JUDGMENT

L. A. PATTILLO J.

Date of Release: March 22, 2016