Court File and Parties

Date: September 1, 2017

Court File No.: D10260-17

Ontario Court of Justice

Between:

ALI CIHAN DUMAN

Carolyn J. Chambers, Counsel for the Applicant

APPLICANT

- and -

SAKINE BOZKURT DUMAN

Glenda Perry, Counsel for the Respondent

RESPONDENT

Trial Heard: June 22-23 and July 21, 2017

Before: Justice M. Sager

Judgment

Table of Contents

• I. Overview
• II. Evidence
  • A. Background of the Parties
  • B. History of the Litigation
  • C. Summary of Relevant Evidence
• III. The Law
• IV. Analysis of the Evidence
• VI. Conclusion

I. Overview

[1] The Applicant Ali Duman (the father) and the Respondent Sakine Duman (the mother) are the parents of Ali Mustafa Duman (Alis) born December 19, 2013. The single issue before the court on this trial is whether this court has jurisdiction to make orders effecting Alis.

[2] The father requests an order declaring that Alis's habitual residence is in the City of Toronto, Province of Ontario and as such this court has jurisdiction to make orders in relation to Alis.

[3] The mother seeks an order in which this court declines to take jurisdiction over matters effecting Alis on the basis that he resided in Edmonton, Alberta at the time of the commencement of this proceeding and that he did so with the father's consent or acquiescence since November 23, 2016.

[4] The mother asks the court to transfer this matter to the Court of Queen's Bench of Alberta and to maintain a temporary order made by this court on March 17, 2017, granting the mother custody of Alis.

[5] The father submits that this court has jurisdiction to address matters involving Alis for the following reasons:

(a) The parties were living together in Toronto, Ontario with Alis at the time the mother wrongfully moved Alis's permanent residence from Toronto to Edmonton without the father's knowledge or consent;

(b) The father commenced an Application in this court as soon as he realized that the mother would not be returning the child to Ontario; and,

(c) There was no consent, implied consent or acquiescence by the father to the child remaining in Edmonton, Alberta.

[6] The mother submits that this court does not have jurisdiction to decide matters involving Alis for the following reasons:

(a) Alis moved to Edmonton with the mother and her daughter from a previous relationship (Dimen) on November 23, 2016 with the father's knowledge and consent. The mother made no secret of her plan to leave Ontario;

(b) The father's behaviour towards the mother, which included violence and threats, forced the mother to leave Ontario with Alis;

(c) The father told the mother many times to take the child and go live with her brother, who lives in Edmonton; and,

(d) After the mother left Ontario on November 23, 2016, the father acquiesced to the child residing permanently in Edmonton, Alberta.

[7] Jurisdiction to decide issues affecting Alis is authorized by section 22 of the Children's Law Reform Act, which provides that a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the Application. If the child is not habitually resident in Ontario, the court may exercise its jurisdiction if it is satisfied that:

• the child is physically present in Ontario at the date of the commencement of the Application,
• that the child is not the subject of a proceeding before an extra-provincial court,
• that an Ontario court has not recognized an extra-provincial order in respect of custody or access to the child,
• that the child has a real and substantial connection to Ontario, and,
• that it is appropriate for jurisdiction to be exercised in Ontario.

[8] Section 22(3) of the Children's Law Reform Act provides that the removal of a child without the consent of the person having custody does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing proceedings by the person from whom the child was wrongfully removed.

[9] The trial of this matter proceeded on June 22, 23 and July 21, 2017.

II. The Evidence

A. Background of the Parties

[10] The mother is 33 years old and the father is 34 years old. Both parties were born in Turkey. The mother came to Canada in 2006. The father came to Canada in May 2012 and the parties were married in Edmonton, Alberta on June 11, 2012.

[11] The parties lived in Edmonton, Alberta for one year after they married before living briefly in the United States and Turkey. They settled permanently in Edmonton in October 2013 and moved to Toronto in November 2014.

[12] Alis, born in Edmonton on December 19, 2013, is the only child of the marriage. The mother has a daughter, Dimen, born August 20, 2007 from a previous relationship. Dimen lived with the parties throughout their relationship.

[13] Both parties describe a tumultuous marriage and a significant portion of the mother's evidence is dedicated to describing in great detail their unhealthy and conflict-plagued relationship. The mother claims to be the victim of verbal, emotional, physical and financial abuse by the father. After the mother left Ontario on November 23, 2016, she contacted Edmonton police and reported incidents of domestic violence that took place in Ontario. A joint investigation was conducted and on May 25, 2017, the father was charged with 10 offences under the Criminal Code involving the mother, her brother, Ercan Bozkurt, and her daughter Dimen.

[14] After having many heated discussions about separation, the parties terminated the lease on their rental accommodation in Toronto on November 18, 2016.

[15] On November 20, 2016, the mother purchased plane tickets for her and the two children to fly to Edmonton, Alberta.

[16] On November 23, 2016, the mother left Toronto with the children and moved to Edmonton, Alberta. Upon her arrival in Edmonton, the mother sent the father a text message advising him that she had arrived in Edmonton with the children. The father's response as set out in a reply text message was one of surprise claiming that the mother told him she was not moving to Edmonton and in which he asked the mother if she had kidnapped Alis.

[17] The parties communicated via text message between November 23, 2017 and November 26, 2017. After that date, there was no communication at all between the parties. The mother's position is that the move to Edmonton was permanent and she communicated that to the father. The father's position is that he believed the mother would return with Alis to Toronto.

[18] On February 2, 2017, the father received a letter from a lawyer in Edmonton advising that he represented the mother who was requesting child support for Alis. The father claims that it was at the moment he received this letter that he realized the mother was not returning to Ontario with Alis so he immediately retained counsel in Ontario and commenced these proceedings to have Alis returned to this jurisdiction.

B. History of the Litigation

[19] The father commenced an Application in this court on February 13, 2017 in which he requested the following court orders:

(a) An order for sole custody of Alis;

(b) An order that access by the mother to Alis be supervised;

(c) An order prohibiting the mother from removing Alis from the City of Toronto;

(d) An order requiring the appropriate law enforcement agency to locate, apprehend and return Alis to the Father;

(e) An order that Alis's passport and other personal documents be returned to and held by the father; and,

(f) An order restraining the mother from attending at the father's apartment or from having direct or indirect contact with the father except through counsel for the purpose of arranging for access to Alis.

[20] On the same day he issued his Application, the father brought an urgent motion before Justice Carolyn Jones without notice to the mother in which he sought the same relief requested in his Application on a temporary basis.

[21] Justice Jones found that the father did not meet the legal test for a "without notice" motion and ordered the father to serve his motion on the mother. Justice Jones adjourned the motion to March 17, 2016 and made a temporary without prejudice order requiring the mother to keep the father advised of a mailing address for forwarding any documents pertaining to this proceeding; and, an order prohibiting the mother from removing Alis from Canada without the written consent of the father or a court order.

[22] On March 17, 2017, Justice Curtis heard the father's motion and, for the purpose of the motion only, found that Alis's habitual residence is in Toronto, Ontario and ordered Alis to be returned to this jurisdiction by March 26, 2017. Justice Curtis also granted the mother interim custody of Alis and adjourned the issues of access and costs of the motion to March 22, 2017.

[23] On March 22, 2017, Justice Curtis ordered that the father shall have access to Alis alternate weekends from Friday to Sunday and every week from Wednesday to Thursday. The mother was ordered to pay the father costs of the motion fixed at $4500.00. Justice Curtis referred the case to a focused hearing on the issue of whether this court has jurisdiction to make orders effecting Alis. In her endorsement, Justice Curtis wrote, "The issue is whether father consented or acquiesced to the move to Alberta."

[24] On March 22, 2017, counsel for the mother advised the father and the court that the mother would not be returning to Ontario and that the father can pick up Alis from a police station in Edmonton.

[25] The father picked Alis up in Edmonton on March 28, 2017 and Alis has been in the father's care in Ontario since that date while the mother has remained in Edmonton.

[26] The trial of this matter was originally scheduled for May 29-30, 2017. On April 26, 2017, the trial was adjourned to June 22-23, 2017 after the father was hospitalized and required surgery.

[27] The trial proceeded on June 22-23, 2017, but was not completed until July 21, 2017.

[28] With the consent of the parties I have relied upon the following affidavits:

On behalf of the father:

(i) The father's affidavits sworn May 19 and June 16, 2017, with all exhibits.

On behalf of the mother:

(i) The mother's affidavit sworn June 14, 2017, with all exhibits; and,

(ii) The affidavit of the mother's brother, Ercan Bozkurt sworn June 12, 2017, with all exhibits.

[29] Further documents were admitted during the trial on consent of counsel. Both parties testified and were subjected to cross-examination. The mother's brother testified on her behalf and the only witness called by the father other than himself was Debra Nosella, an employee at the school Dimen attended before moving to Edmonton.

[30] During the trial the father introduced video recordings of interaction between himself and the mother in their home as well as certified translations of the audio from Turkish to English. The mother did not raise an objection to the introduction of the videos but gave evidence and argued that they had been edited and manipulated by the father and therefore are of little value to the court.

[31] The mother introduced into evidence audio recordings of her and the father as well as transcripts of the audio recording in English translated from Turkish. The father gave evidence that the recordings were not translated accurately.

[32] Both parties introduced into evidence text messages and other communication through email or social media as well as the certified translations of the messages from Turkish to English.

C. Summary of the Relevant Evidence

(i) The Parties Separation

[33] The evidence provided by the parties is replete with discussions about separation and divorce. Neither party provided evidence as to the final date of separation but provided documentary evidence of many exchanges about ending their relationship on a final basis.

[34] The mother's evidence is that it was very clear that her leaving Ontario on November 23, 2016 to reside in Alberta was a "final separation". The father's evidence is that he "believed that the Respondent/Mother perhaps just needed to think about things and would return to Toronto with the Children." His evidence is that he did not want to end the marriage and "hoped that we would work out our differences".

[35] The mother's evidence is that the parties' relationship was so toxic and that the manner in which the father spoke to and communicated with her was so "horrible" that it was "very clear to both of us that this was a final separation and I was not going to be moving back." The mother's evidence is that considering the number of times the father told her to leave and take the child with her and the crude and abusive way in which he did this, it is completely unbelievable that the father would hope or believe that the mother would return to Ontario and resume her relationship with the father.

[36] The father claims that he did not know the marriage was truly over and that the mother was not returning to Ontario until he received a letter from a lawyer on her behalf on February 2, 2017. The mother says in all of the circumstances the father could not reasonably believe that the mother would ever return to Ontario or to the marriage.

(ii) The Mother's Relevant Evidence

[37] The mother's evidence is that the father knew she was moving to Edmonton and did not hide this fact from him. Her evidence on this issue is as follows:

(a) The father demanded that she move out of the home they shared with the children. His behaviour in effect forced her to move to Edmonton with Alis;

(b) The parties terminated the lease on their apartment on November 18, 2016 and both would be moving out shortly thereafter;

(c) The father was aware of the fact that the mother was making plans to move;

(d) The mother's daughter Dimen, told the father in front of the mother three days before leaving that they were moving to Edmonton;

(e) The father told the mother on many occasions to go live with her brother and as her brother lives in Edmonton, it was clear that the father was giving the mother permission to move Alis's permanent residence to Edmonton;

(f) Prior to the move, the mother packed her luggage and left it by the front door for three days before moving so the father knew she was leaving;

(g) The father threatened the mother many times, including threats to never see Alis and to withhold financial support for him leaving her no choice but to move to Edmonton; and,

(h) The father's unconscionable behaviour towards the mother and her daughter pushed her to move to Edmonton for her safety as well as the safety of the children.

(iii) Mother's allegations of threats by father

[38] The mother's evidence is that the parties did not have a separation agreement or a court order in place that permitted her to move Alis's residence from Ontario to Alberta. She deposed that after "months of hearing Ali demand that I move (including demands that I go to live with my brother), I decided that I needed to leave for the safety of myself and the children."

[39] The mother's evidence is that numerous text messages from the father to her in which he tells her not to contact him and advises that he will not be contacting her or Alis once they live apart is evidence of his threatening behaviour towards her. He repeatedly writes that he will not respond to her if she tries to contact him and that she will not be able to find him if she tries, even if she is contacting him about their son. In his angry text messages he states that he wants nothing to do with Alis as he is a product of her and that if Alis suffers as a result of not having contact with his father, so be it. The mother says these messages were so threatening they forced her to leave the marriage and Ontario.

[40] The mother's evidence is that her husband's constant threats to leave her, abandon Alis, cut off all ties with both of them and hire lawyers to pursue a divorce forced her to leave Toronto and move to Edmonton with Alis. To support her position, the mother's affidavit evidence contains numerous excerpts from the text messages sent to her by the father between July and November 2016. The mother's evidence is that the text messages demonstrate that the father's threatening and unstable behaviour forced her to leave as the father:

(a) Made many threats to the mother and used horrible language;

(b) Told the mother many times not to have contact with him;

(c) Was abandoning the mother and Alis; and,

(d) Told the mother many times in the text messages to take the children and go live with her brother.

(iv) Mother's evidence of the father's consent to the move to Edmonton

[41] The mother's evidence is that since her brother lives in Edmonton, the father's text messages in which he tells her to go live with her brother, with whom the father had a long standing feud, amounts to the father consenting to the change in Alis's permanent residence.

[42] The mother's evidence is that the father not only told her to go live with her brother in Edmonton but pushed her to do so. In her affidavit evidence, the mother lists all the text messages the father sent her in which he states that she should go live with her brother or rely on him for her support.

[43] When asked if she has any documentary proof of the father's consent to the move to Edmonton, the mother gave evidence that her husband and her did not only communicate in writing.

[44] The mother was asked if she advised the father when she purchased the plane tickets for her and the children to fly to Edmonton. Her answer was that the father knew she had bought the tickets as her daughter told him.

[45] Two videos each of which were approximately 5 minutes in length, were entered into evidence by the father with certified translations from Turkish to English. The mother gave evidence that the video recordings were altered or manipulated by the father. She showed portions of the video in which one of the parties or their children suddenly appear and disappear from the frame to demonstrate that the videos have been altered.

[46] The mother did not argue to have the videos excluded from evidence. Rather, the mother argued that the court should give no weight to the video recordings and that the father's obvious manipulation or editing of the video should be sufficient to damage his credibility such that the mother's evidence should be preferred over his.

[47] The mother was cross examined at length regarding portions of both videos recorded on November 18, 2016, where the father asks the mother repeatedly where she and Alis are going to live and for an address. The mother gave evidence that she told the father, as seen in the video evidence, that Alis will be with her wherever she is and she could not give the father an address as to where she was going when he asked as she did not have an address yet to give him. She told the father when she moves and has an address she will give it to him. The mother's evidence on this issue was, "He's asking me which address I was staying at and I did not have an address to give him….I did not have an address so I did not give an address."

[48] When the mother was asked why she did not advise the father she was moving to Edmonton when he asked her where she was moving, she replied that she assumed that he was asking for an address and as she did not yet have an address she could not give him one. Her evidence was "I had not moved to Edmonton yet. How can I have an address without moving there?"

[49] The mother is heard in the video recorded on November 18, 2016, being asked by the father if she is going to move to Edmonton. She is heard in the video saying "nope" and "not in three days". The mother was asked about this portion of the video and why she did not say she was moving to Edmonton. Her response was that she said that, "not in 3 days, I do not say, no, I am not moving to Edmonton."

[50] The mother deposed that as the father had set up a video camera in their home, she began recording conversations with the father in order to protect herself "in case Ali made false allegations against me about our move to Edmonton (which is exactly what he has done now)…" She provided a recording of a conversation between the parties that degenerated into yelling and swearing by both parties that she alleges is evidence of the father assaulting her.

[51] The mother acknowledges in her evidence that she did not write any messages to the father advising that she was moving to Edmonton nor did she record a conversation on the subject.

[52] The mother's evidence is that she left most of hers and the children's personal belongings in the parties' apartment as she only took what she could carry in three suitcases as that was her checked baggage allowance. When asked if she planned to return to Toronto to retrieve the rest of her belongings she gave evidence that she thought the father might send the rest of her belongings to her until she received a text message from him asking her if he should throw her belongings in the garbage or donate them to charity.

[53] The day after she arrived in Edmonton, the mother's evidence is that she called her daughter's school to advise that Dimen would no longer be attending. She left a message with the person who answered the phone and produced cell phone records to confirm her calls to the school once in Edmonton.

[54] When the mother was asked why she did not advise the school in advance that Dimen was moving, she explained that she was preoccupied having only three days to pack while caring for the children and decided she would inform the school after she arrived in Edmonton. As she called the school the day after she arrived in Edmonton, "I was not late in calling."

[55] The mother's brother, Ercan Bozkurt, gave evidence as to when he learned that the mother, Dimen and Alis were moving to Edmonton. Mr. Bozkurt gave evidence that he first discussed moving with his sister after receiving a disturbing voicemail message from Dimen in which she said she did not want to live in this world anymore. Mr. Bozkurt called his sister out of concern for Dimen and was told by the mother that the father had choked her and beat Dimen.

[56] Mr. Bozkurt gave evidence that his sister sent him a voice recording of the father's abuse of the mother and Dimen and after hearing it he called his sister and asked her what she is going to do as she cannot "live like that". Mr. Bozkurt said that his sister told him that she was considering moving to Edmonton as her husband had told her to go and live with her brother. Mr. Bozkurt was asked when he received the voice mail from Dimen and he advised that it was after November 19, 2016.

[57] When Mr. Bozkurt was asked when his sister made the final decision to move, he gave evidence that his sister had mentioned moving "about a month before" but that she only told him she was coming to Edmonton 3 to 4 days before she arrived. Mr. Bozkurt's evidence is that his sister told him that her husband told her she had to leave their apartment or "he will kill her". Mr. Bozkurt told his sister if she comes to Edmonton, he will support her and the children.

[58] Mr. Bozkurt did not introduce into evidence the voice message he received from Dimen.

[59] After living in Edmonton since 2008, Mr. Bozkurt's evidence is that he left Edmonton in December 2015 after being laid off from his employment. He vacated his apartment, gave his furniture to his girlfriend and drove his car to Toronto where he left it to be repossessed by the bank. He was gone from Canada from December 2015 until October 2016 when he arrived back in Toronto on route to Edmonton. Mr. Bozkurt's evidence is that he did not give up his residence in Edmonton, he just travelled for 7.5 months after being laid off from his job and to meet a woman in Iran he had been communicating with by telephone and video chat.

[60] The mother's evidence is that when the father saw her brother in Toronto in early October 2016, the father knew he was only in Toronto temporarily on his way back to Edmonton.

[61] The mother's evidence is that between the date she arrived in Edmonton and the commencement of proceedings in this court, she obtained accommodations, secured two jobs, bought a car, arranged daycare and a daycare subsidy for Alis, arranged a doctor for Alis, and, she and the children settled nicely into their new life in Edmonton.

(v) Father's Relevant Evidence

[62] The father's evidence is that the parties' relationship was strained and that they had been discussing physical separation for months but that the mother never requested his consent to move Alis's permanent residence to Edmonton nor did she advise him of her intention to remove Alis from this jurisdiction. A summary of his evidence on the issue is as follows:

(a) The parties had many discussions regarding who would move out of the apartment they shared but it was always understood that they would live close to one another so that Alis would have regular contact with him;

(b) The mother never advised the father of her plan to move to Edmonton despite being asked repeatedly by the father where she was moving and to provide an address;

(c) The father was aware of the fact that the mother was moving out of the home seeing as they terminated their lease but she never informed him of her intention to move to Edmonton;

(d) The parties discussed potential moves by the mother and the children to various locations including North York, Scarborough or Richmond Hill during which the mother never said she was going to move to Edmonton;

(e) On one occasion the parties discussed the possibility of the mother living with a friend in North York;

(f) The father asked the mother many times for the address she and the children were moving to only to be told by the mother that she did not have an address and when she has an address she will give it to him;

(g) The father relies on numerous text messages, Facebook messages and video recordings in which the parties discuss physically separating and at no time does the mother mention the prospect of her moving to Edmonton with the children;

(h) The father relies on a video recording of the parties in their home only days before the mother moved to Edmonton in which he asked her outright if she was planning on moving to Edmonton and she did not answer in the affirmative;

(i) The father relies on the fact that the mother did not inform Dimen's school that she was moving to Edmonton prior to leaving as he was the primary contact for the school and he claims that the mother was concerned that he would learn of her plan to leave through the school if they were advised in advance;

(j) The mother purchased the plane tickets for herself and the children only three days before she left and she did not advise the father of the purchase; and,

(k) The mother took very little of hers and the children's personal belongings when she left and there were no discussions or plans to forward the items she left behind to her in Edmonton.

[63] The father, who denies assaulting the mother, questions the authenticity of the audio recordings produced by the mother as well as the certified translation from Turkish to English. One of the recordings suddenly and inexplicitly speeds up, something the mother acknowledged at trial. With respect to the alleged assault, the father's evidence is that this is a fabrication and that the recording was the mother's attempt to "set him up".

[64] The father explained that the video camera he installed in the parties' home for safety reasons is motion sensor activated. He was asked to explain why parties suddenly appear and disappear from the picture in portions of the recordings he produced. He said he could not explain why this happened but denies interfering with the recording in any way. He points to a portion of the video in which he is in his underwear and says that if he knew how to alter the video he would have edited that out as this is very embarrassing for him, especially as a Muslim man.

[65] The father's explanation for the numerous text messages he sent the mother that she describes as threatening and in which he uses offensive language towards her is that he was "bluffing". He explained that he was hoping to convince the mother that they should not separate as if they did they would all suffer.

[66] The father's evidence is that when he wrote angry text messages to the mother telling her to go live with her brother, he was not telling her to live in Edmonton as he believed that Mr. Bozkurt had obtained accommodations and was looking for a job in Toronto. In the text messages the father is upset with the mother for taking her brother's side in a dispute he has with her brother which the father finds dishonourable. The father gave evidence that most of his angry text messages to the mother amounted to him "bluffing" in hopes that it would somehow result in the mother behaving in a manner that promoted or supported reconciliation.

[67] In support of his claim that he believed that the mother's brother had moved to Toronto, the father points to the evidence that on October 2, 2016, after seeing the mother and her brother at a Starbucks in Toronto, the father sent the mother a text message that can only be described as an expletive filled rant in which he accuses her of trying to create trouble by having her brother "move right next to me". The relevant portion of the English version of the text message reads, "I said I don't want to see him around my place, now you are after having him move right next to me so you can create trouble. I have never seen a bitch like you." He tells her she will hear from his lawyer and that "you are not my wife from now on". After calling the mother a traitor, the father writes, "Let your slanderer brother take care of you."

[68] On November 16th, 2016, the father sent the mother a text message in which he writes, "Don't even think of getting your brother to move in here by using your good credit." On November 18, 2016, the father sent the mother a text message in which he advises the mother that her brother is not to enter their apartment and if she tries to have him help her move her belongings he will call the police.

[69] The father called evidence from the secretary at Dimen's school to confirm that the mother did not advise the school that Dimen was moving to Edmonton. The secretary's evidence was that after a period of absences the school contacted the father to enquire as to Dimen's whereabouts. It was only after contacting the father did the school learn that Dimen had moved with the mother to Edmonton. Ms. Nosella denies receiving a message from the mother in which she advised that Dimen would no longer be attending the school.

[70] The father's evidence is that as the mother left a significant amount of both hers and the children's personal belongings, he thought that this meant she might return.

[71] The father's affidavit evidence included as exhibits copies of every text message he says the parties exchanged between July 2016 and November 24, 2016, to demonstrate that there was no written communication to confirm the mother's evidence that the father was aware of and consented to the move to Edmonton. The mother did not argue that the text messages were not sent by her or were not authentic.

(vi) The Mother's Arrival in Edmonton

[72] What occurred after the mother arrived in Edmonton, Alberta is not disputed. The parties agree on the following:

(a) When the mother landed in Edmonton and turned on her phone there was a text message from the father asking where she was and if she was returning to retrieve the rest of her belongings;

(b) The mother replied to the father's text message by advising that she and the children had just landed in Edmonton;

(c) The father sent the mother a reply text message saying she had told him she was not going to Edmonton and asking if she had kidnapped Alis, to which the mother responded, "Why should I kidnap my own child?";

(d) Between November 23rd and November 26th, 2016, the parties exchanged text messages about bills and the mother's key to the apartment in Toronto;

(e) The parties had no further communication after November 26, 2016;

(f) The father did not call the mother or Alis to enquire about Alis;

(g) On February 2, 2017, the father received a letter from a lawyer in Edmonton on behalf of the mother seeking child support for Alis; and,

(h) The father commenced proceedings in this court on February 13, 2017.

III. The Law

[73] Section 22 of the Children's Law Reform Act provides that:

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. R.S.O. 1990, c. C.12, s. 22 (1).

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. R.S.O. 1990, c. C.12, s. 22 (2); 2016, c. 23, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

[74] As Alis was not physically present in Ontario at the commencement of this proceeding, in order for this court to assume jurisdiction pursuant to section 22 of the Children's Law Reform Act, I must find that despite not being physically present in Ontario, Alis's habitual residence was in Ontario at the commencement of the proceeding.

[75] In order to determine where Alis had his habitual residence at the commencement of this proceeding, I must first decide if the mother's move with Alis from Toronto to Edmonton was done with the father's consent. If the father did consent to the move, the issue for the court becomes whether the evidence establishes that Alis's habitual residence changed from Toronto to Edmonton before the father changed his mind and commenced proceedings in this court to have Alis returned to this jurisdiction. If Alis's habitual residence did in fact change from Toronto to Edmonton, I must find that I do not have jurisdiction to make orders effecting Alis.

[76] If the court finds that the father did not consent to the mother moving Alis's permanent residence from Toronto to Edmonton, the court is then required to determine whether the father's actions following the wrongful removal of Alis amount to his acquiescing to the move such that Alis's permanent residence changed from Toronto to Edmonton in which case Alberta would be the appropriate jurisdiction to determine issues effecting Alis. If the father's conduct does not amount to acquiescence, I must find that as of the date of commencement of this proceeding, Alis's habitual residence was in Toronto and that Ontario has jurisdiction to decide the issues of custody of and access to Alis.

[77] The mother argues that Alis's habitual residence is in Alberta and not Ontario on the basis that the father either consented to the change in his residence or he acquiesced to the change after it took place.

[78] The father argues that he did not have knowledge of the mother's plan to move with Alis to Edmonton and as such did not consent to the move. He further argues that in all of the circumstances of this case his actions after Alis was wrongfully removed from Ontario do not amount to his acquiescing to the move such that Ontario has lost jurisdiction over Alis.

IV. Analysis of the Evidence

(a) Did the father have knowledge of and consent to the mother moving Alis's permanent residence to Edmonton?

[79] The case of Moniz v. Deschamps, 2010 ONSC 598, considered by Justice Ellen Murray in Pearson v. Whittingham, 2012 ONCJ 187, cites the 1964 English case of P.(G.E.) (An Infant), Re (1964), [1965] Ch. 568 (Eng. C.A.) as the original authority for the concept that one parent cannot change a child's permanent residence without the other's consent. In the English case Lord Denning stated:

"Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less."

[80] Mr. Justice D.J. Gordon summarizes the law succinctly in Mehta v. Gandhi, 2016 ONSC 2453, where he states at paragraph 24:

"A party cannot establish a new habitual residence by surreptitiously removing the child to another province or country. A relocation by self-help will not establish jurisdiction. See Carter v. Brooks (1990), 30 R.F.L. (3d) 53 (Ont. C.A.); and Mantyka v. Dueck, 2012 SKCA 109. However, where the other parent consents to the move, or takes no steps when made aware of the move, either agrees or acquiesces in the child moving, as provided in section 22(2)(b), a new habitual residence is created."

[81] In Moniz v. Deschamps, 2010 ONSC 598, Mr. Justice J.R. Turnbull of the Superior Court of Justice was asked to determine if the mother acquiesced to the father's move of the children from Cambridge to Hamilton. Justice Turnbull found that the move was done without the mother's consent and noted at paragraph 13:

"The courts have to be vigilant about parents unilaterally taking children from a city or town where they have lived and relocating to another area of the province or country, far from where they have habitually resided. The mischief that such conduct can cause is clear. One parent can not [sic] unilaterally change the child's ordinary residence by physically removing the child from that place without the consent or acquiescience [sic] of the other parent. Andrews v. Andrews (1988), 14 R.F.L. (3d) 21 (Ont. Dist. Ct.)."

[82] In the case before this court, the mother did not give evidence of a single conversation between her and the father during which they specifically discussed her moving to Edmonton with Alis, the logistics of such a move, where she would live, when Alis would see his father and how those arrangements would be made. To the contrary, her evidence is that the father's consent to Alis's move to Edmonton can be found in or implied from his angry text messages, his alleged abusive treatment of her, and, his repeated comments to her to go live with her brother.

[83] I find that that the mother moved Alis's permanent residence from Toronto to Edmonton without the father's knowledge or consent. The evidence the mother provided on this issue is not persuasive. The mother had many opportunities to tell the father of her plan to move to Edmonton but chose not to do so. Now she asks the court to draw the conclusion from the father's behaviour and angry text messages that he consented to the move.

[84] There are several examples of undisputed facts in evidence that the court relies upon in finding that the mother's move to Edmonton was done surreptitiously. Some examples are as follows:

(a) On October 27, 2016, the father sent the mother a text message in which he asked her if she was going to move out of or stay in the apartment they shared as his plan was to move and if she intended on moving out they must inform the landlord. If the father thought the mother might remain in the apartment they shared, it suggests he expected her to remain in Toronto;

(b) After the parties terminated their tenancy agreement on November 18, 2016, they exchanged several text messages about vacating their apartment. Two days before she purchased the plane tickets, the mother told the father via text message that she is leaving and will be out of the apartment by "Monday for sure" but did not say that she was moving to Edmonton.

(c) In conversations between the parties that were videotaped, the father repeatedly asked the mother for an address where she was moving with Alis. The mother's evidence is that as she did not yet have an address she had no address to give the father. In response to the father's repeated questions as to where she was moving, the mother told him that Alis would stay where she stays and that when she has an address she will give him one. At no time did the mother advise the father that the address she would eventually give him would be in Edmonton;

(d) The mother did not advise her daughter's school before leaving Toronto that Dimen was moving to Edmonton in the middle of the school year. The mother acknowledges calling the school the day after she arrived in Edmonton;

(e) The mother did not advise the father that she purchased the plane tickets for her and the children to travel to Edmonton on November 20, 2016;

(f) The mother did not advise the father that the children and her were leaving for Edmonton on November 23, 2016;

(g) The mother left Toronto with only the items she could fit into three suitcases. There were no discussions between the parties regarding arrangements to have the rest of hers and the children's belongings sent to Edmonton;

(h) The mother moved to Edmonton without having arranged permanent housing for herself and her children. When they arrived they stayed with the mother's friends; and,

(i) The mother moved to Edmonton without having any discussions or an agreement in place addressing when, where and how Alis would see his father.

[85] A review of the contested evidence provides additional support for the finding that the mother moved the child's permanent residence without the father's consent. For example:

(a) The mother deposed that she recorded some of her conversations with the father to protect herself and specifically, to protect herself from being accused of kidnapping Alis or improperly removing him from Toronto. The mother had some of the conversations transcribed and translated from Turkish to English. What is glaringly missing from these recordings and transcriptions is any discussion of the mother moving with Alis to Edmonton. If the mother was truly recording conversations to protect herself from exactly what has occurred, why is there not a recorded conversation about her moving to Edmonton?;

(b) If the mother was attempting to protect herself from being wrongfully accused of improperly removing Alis from Toronto, why is that she failed to advise the father she was moving to Edmonton given the opportunity to do so on several occasions when he asked her for an address and a location where she was moving? Her evidence that she would provide the father with an address when she had one was not evidence from someone who was trying to protect herself from being wrongfully accused of improperly removing Alis from Ontario. Rather, she was evasive with the father and her evidence justifying the way in which she answered the father's questions presented as someone who was trying to hide something;

(c) The mother did not produce any written evidence between the parties in which the father gives his consent to moving Alis's permanent residence from Toronto;

(d) The mother gave evidence that the father knew she was moving to Edmonton as she had packed her bags and left them at the front door for three days before leaving. The mother contradicted herself when giving evidence explaining why she did not notify Dimen's school in advance of leaving for Edmonton. She said that she only had three days to pack before leaving and with the added responsibility of caring for the children, chose to notify the school upon her arrival in Edmonton. As the mother booked her flight on November 20, 2016 and left on November 23, 2016, it is not possible, according to her own evidence that she only had three days to pack, that she left her packed bags at the front door for three days;

(e) The mother's brother's evidence did not assist the mother in demonstrating that she moved with the father's knowledge and consent. First Mr. Bozkurt gave evidence that the mother raised the possibility of a move to Edmonton about a month before she arrived and then gave evidence that he first spoke to the mother about a potential move to Edmonton after November 19, 2016, when his sister told him that her husband told her to go and live with Mr. Bozkurt. The next day she purchased her plane tickets. Three days later she left Toronto. This evidence describes a move that was made in haste, not one that was planned well in advance;

(f) The mother and her brother were not forthcoming about Mr. Bozkurt's residence in October 2016, which was a focal point in the evidence of both parties as the mother argues that when the father told her to go live with her brother he was telling her, in effect, to go live in Edmonton, where her brother lives. The evidence of the mother's brother supported the father's evidence that he did not believe that Mr. Bozkurt lived in Edmonton when he told the mother in text messages to go live with her brother. Mr. Bozkurt in fact left Edmonton in December 2015. He did not have a job, a home or a car in Edmonton. He travelled to Turkey and Iran and did not come back to Canada until October 2016, 10 months later. The father's evidence is that he could not have concluded that the mother would move to Edmonton when he told her in text messages to go live with her brother as he was not living in Edmonton at the time of the messages; and,

(g) The father's text messages to the mother in October and November 2016 in relation to her brother supports the father's evidence that he did not believe Mr. Bozkurt was living in Edmonton. He asks the mother why she would assist her brother to move next door to them considering the extremely contentious relationship between the men. He also comments in a text message that he hopes Mr. Bozkurt does not move into the apartment with the mother after the father moves out. These messages do not support the mother's evidence that the father knew her brother lived in Edmonton.

[86] All of the evidence considered together, contrary to the mother's claims, strongly suggests a last minute move by the mother with the children.

[87] The evidence does not establish that the father consented to or had knowledge of the mother's plan to move Alis's permanent residence to Edmonton. Many of the text messages included in evidence by the father supports his version of the events. The facts upon which the mother relies would not reasonably lead to the conclusion she is asking the court to make. I specifically reject the mother's argument that the string of angry text messages from the father to her in which he tells her to go live with her brother amounts to consent by the father. I find that the mother's removal of Alis from this jurisdiction was done surreptitiously and without the father's consent.

[88] A parent who moves a child's permanent residence any significant distance from the other parent without a court order or Separation Agreement permitting such a move, must be prepared to demonstrate in no uncertain terms that the other parent consented to the move. Unequivocal consent to such a move must be clear and concise, not based on inferences. Clear and concise consent cannot be found in cryptic text messages or bad behaviour.

[89] Family courts strive to make orders that have the effect of encouraging parents to act within the law when making decisions that affect their child and his or her relationship with their other parent. In order to achieve that goal, court orders must be unequivocal in establishing what is and is not reasonable behaviour by a parent. Family court Judges who are asked to determine if a parent consented to a long distance move of their child should be extremely cautious when being asked to find consent by digging deep into the meaning of an angry text message, voice mail or Facebook post. To rely on such flimsy evidence will send a dangerous message to parents and, undoubtedly result in the unintended result of parents engaging in self-help measures under the most questionable of circumstances.

[90] The mother relied unsuccessfully on the incredibly offensive language and tone used by the father in his text messages to her to demonstrate that the father pushed or forced her to move to Edmonton with Alis. While the mother was not successful in demonstrating consent through the text messages, the court cannot remain silent about the hideous and offensive nature of the text messages. The court finds that the text messages sent by the father to the mother amounts to emotional abuse. It was very difficult for the court to read the text messages, as many of them use appalling language directed at the mother.

[91] Maybe even more concerning to the court was the audio and video recording provided by both parties in which the parents' interaction with one another in front of their children was at best hostile and the language used was grossly inappropriate in the presence of their children.

(b) After Alis was wrongfully removed from this jurisdiction, did the father acquiesce to the move such that Alis is now habitually resident in Edmonton?

[92] As the court has found that the mother moved Alis's permanent residence from Ontario to Alberta without the father's knowledge and consent, the issue for the court now becomes whether the father's conduct after the child was wrongfully removed from Toronto amounts to his acquiescing to the mother's wrongful removal of Alis from Ontario. In other words, did the father's inaction and/or delay in commencing proceedings to have Alis returned to Ontario result in the creation of a new habitual residence for Alis such that Ontario does not have jurisdiction over matters effecting Alis?

[93] As the court has determined that Alis was removed from Ontario by the mother without the father's knowledge or consent, it is the mother's onus to demonstrate that the father has acquiesced to the move. In order to discharge her onus, the mother must present clear and cogent evidence of unequivocal consent or subjective acquiescence. Whether a wronged parent acquiesces to the move after the fact is a subjective test. The wronged parent's conduct, including what they do and do not do and what they say and do not say is all relevant. See Katsigiannis v. Kottick-Katsigiannis 2001, 55 O.R. (3d) 46 (OCA) and Jackson v. Graczyk, 2007 ONCA 388.

[94] In Gillis v. Fenton, 2009 ONCJ 113, Justice Thibideau writes at paragraph 25, "There is no hard and fast rule with respect to the time delay between the event and the complaint crystallized by a court action. Much depends on the individual actions and the individual attitudes of the participants in each case."

[95] The fact that Alis was removed from this jurisdiction surreptitiously is relevant to the consideration of whether the father's conduct following the move amounts to acquiescence by him to the move. Courts should be loath to make any decisions that encourage or ignore self-help measures taken by parents rather than pursuing resolution in the appropriate manner through negotiation or the courts. At some point a parent who has been wronged by the self-help measures employed by the other parent will have to take decisive action to right the wrong. If they do not, it will follow that it is reasonable for the other parent, and the court, to conclude that they have accepted the consequence of the other parent's actions.

[96] In support of her claim that the father did in fact acquiesce to the move, the mother relies on the undisputed fact that the father took no action to challenge the mother's unilateral change in Alis's residence for over two months. The mother believes that she made her intention to remain permanently in Alberta clear to the father when she wrote in one of her last text messages to him that she took everything she wanted from their home and would not return to retrieve anything left behind as she is "going to try to set up my life" in Edmonton.

[97] Upon the mother's arrival in Edmonton and after receiving her text message advising that she would not be returning, the father did not contact her or the authorities. He did not enquire about Alis. The mother claims that the 82 days it took the father to act is too long a period of time in the circumstances of this case as it was abundantly clear to the father that she was not coming back to Ontario and he ought to have acted sooner. As he did not, she arranged housing for herself and the children, obtained employment, purchased a car, enrolled Alis in daycare, obtained a daycare subsidy, and, located a doctor for Alis making Alberta his new habitual residence with, what she thought, was the father's implied consent.

[98] The mother argues that the father's lack of action led her to believe that he would not be protesting her move to Edmonton. The mother argues that the court can and should rely on the father's inaction to find that he consented to the move after the fact by acquiescence; that Alis's habitual residence is in now in Edmonton, Alberta; and, that this court does not have jurisdiction to make orders affecting Alis.

[99] After learning of the mother's move to Edmonton on November 23, 2016, the father took no action to have the child returned until February 13, 2017. He wanted to believe that his wife would bring his son back to him and return to Toronto and the marriage. He believed this until he received a letter from a lawyer in Edmonton on behalf of the mother.

[100] The father did not know the mother was removing Alis to Alberta. He was led to believe that the parents would live close enough to one another to ensure he and his son had regular contact. He was upset about the prospect of a failed marriage and that his child was taken away from him without his consent. He did nothing until he received a letter from a lawyer that to him meant the mother would not be returning to Ontario. Within days of receiving that letter, less than three months from the date Alis was removed to Alberta, when he accepted that the mother would not be returning to Ontario with Alis, the father commenced proceedings in this court.

[101] The father argues that in all of the circumstances, he acted quickly upon accepting the fact that the mother was not coming back to Toronto with Alis. As several courts have noted, there is no hard and fast rule as to how fast a parent must act after a child has been wrongfully removed from their care. The court must consider all of the circumstances when considering whether a parent's action or inaction amounts to acquiescence of the move. The test is a subjective one.

[102] The mother sent the father two text messages in relation to her move to Edmonton shortly after arriving. In one text message she advised the father that she is not going to return to retrieve any belongings she left behind and she is going to try and "set up her life" in Edmonton. When the father asked her if she kidnapped Alis, she sent a further text message in which she reminded him of the number of times he told her that he was going to disown Alis and that she was going to take care of him. When the father responded by advising that he is going to hire a lawyer, the mother encouraged him to do so and reminded him of "what a hellish life the children and I had with him". This is the extent of the mother's communication with the father upon her arrival in Edmonton in relation to the move. She never unequivocally stated in writing or in a subsequent conversation with the father that she would not be returning to Ontario with Alis. She did not provide him with her permanent address once it was arranged nor did she provide him with any details about Alis's daycare, doctor etc., which if she had, may have clarified for the father that his hope that she would return was unfounded.

[103] The mother's communication with the father on the subject of where she was going to live before she left Ontario was extremely ambiguous. Nothing she did after leaving Ontario clarified the ambiguity for the father that she created around where she was moving with Alis. The father believed the mother was going to live close enough to him to ensure he had regular contact with his son. He did not know that she in fact was moving to Edmonton.

[104] In all of the circumstances of this case, and specifically considering that the mother concealed her plans to move and did so without the father's knowledge or consent, I find that the father's delay in taking action was not unreasonable. In the two months and 21 days it took the father to take action against the mother's wrongful removal of Alis, he did not do anything explicit that suggested to the mother that he was consenting or acquiescing to the move.

[105] I find that the father's delay in seeking to have the child returned to Toronto until February 2017 does not amount to conduct that can be interpreted as his acquiescing to the child remaining in Edmonton with the mother.

VI. Conclusion

[106] Based on the circumstances of this case, I find that Alis's habitual residence was Ontario at the time that the father issued his Application on February 17, 2017.

Order

1. The Ontario Court of Justice has jurisdiction to make orders affecting Ali Mustafa Duman (Alis), as his habitual residence at the commencement of the Application was in Toronto, Ontario.

2. The mother shall have 30 days from the date of this decision to serve and file her Answer and Claim.

3. The case shall be returned to Justice Carole Curtis, the case management judge. A case conference shall be scheduled by counsel through the trial coordinator's office.

Costs

4. If either party is seeking an order for costs of the trial, they shall serve and file their cost submissions within 20 days of the date of this Judgment. Those submissions may not be longer than 5 pages not including attachments or a Bill of Costs. A party responding to the other's request for costs may, within 15 days, serve and file a response to the cost submissions. The Response to Cost Submissions shall not be longer than 5 pages not including attachments.

All cost submissions shall be delivered (not by fax) to my attention through the Trial Coordinator's office.

Dated: September 1, 2017

Justice Melanie Sager