Court File and Parties

COURT FILE NO.: FC-22-1396 DATE: 05/25/2023 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: N.L., Applicant AND G.R., Respondent

BEFORE: Justice K. Jensen

COUNSEL: Ira Marcovitch, for the Applicant Bruno J. Sharpe, for the Respondent

HEARD: May 16, 2023

Endorsement

[1] The Respondent G.R. disputes the Court’s jurisdiction over the issues raised by the Applicant N.L. in her Application, which includes, inter alia, claims relating to decision-making responsibility, parenting time with respect to the child and child support.

[2] The parties began cohabiting in Montréal in November 2020. They are the biological parents of O.R. (born in Montréal in August 2021). The parties’ date of separation is in dispute. According to the Applicant, the parties separated in Montréal in April 2022, and according to the Respondent, they separated in Montréal in June 2022.

[3] The Applicant left Montréal in February 2022, taking the child with her, to stay with her parents in Ottawa following an argument between the parties. The Applicant returned to Montréal with the child in February 2022, and the parties attempted to reconcile between February and April 2022.

[4] In April 2022, the Applicant returned to Ottawa with the child to live with her parents. However, she went to Montréal regularly so that the Respondent could spend time with his daughter, O.R. She resided with the Respondent until April 2022 but subsequently rented an Airbnb whenever she visited Montréal.

[5] On July 27, 2022, the Applicant filed an application in the Ontario Superior Court of Justice. On August 11, 2022, the Respondent was served with the Application.

[6] On September 22, 2022, the Respondent served the Applicant with his Answer, and on October 11, 2022, he brought a motion seeking that the jurisdictional issue be deemed urgent. The Motion was dismissed.

[7] On January 5, 2023, the Respondent changed counsel, and on January 9, 2023, a case conference was heard with Justice Shelston presiding, who ordered this Motion to determine whether this Court has jurisdiction to hear the matter.

[8] Following this conference, Justice MacEachern issued a consent order with respect to parenting time.

[9] For the reasons that follow, I find that the Ontario Superior Court of Justice has jurisdiction to deal with this matter. I find that on the date of the Application, July 27, 2022, O.R. was habitually resident in Ontario with the implied consent or acquiescence of the Respondent.

Governing Law and Analysis

[10] The jurisdiction of the Ontario Superior Court of Justice to issue a parenting time order is governed by Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the Act”).

[11] Sections 22 and 23 of the Act set out the circumstances in which an Ontario court can exercise its jurisdiction over these issues.

[12] Section 22 of the Act provides that:

22(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

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

(b) the child is not habitually resident in Ontario, but the court is satisfied that:

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

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

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

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

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

[13] On the topic of “habitual residence,” s. 22(2) of the Act provides that:

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. If 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.

3. With a person other than a parent on a permanent basis for a significant period of time.

[14] Section 22(3) of the Act deals with the abduction of the child. It provides as follows:

The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to 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.

[15] In Dovigi v. Razi, 2012 ONCA 361, at paras. 9 to 13, the Ontario Court of Appeal ruled that there are four ways in which an Ontario court can exercise its jurisdiction under the Act to issue an order with respect to a child. Per the Court of Appeal:

The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.

First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.

Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.

Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.

Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.

[16] In this case, it is the first basis for the Court’s jurisdiction that applies.

[17] For the reasons set out below, I find that the Applicant has established that the child’s habitual residence was in Ontario at the time she filed her Application:

(a) The child has resided primarily with her mother in Ontario since at least mid-May. It is common ground that the child has always lived primarily with her mother and that the mother would travel to Montréal to allow the Respondent to spend time with the child in the evenings. In his Answer, the Respondent admits that in June 2022, the Applicant told him that the relationship was over and that she had no intention of returning to Montréal. However, during the last or second-to-last week of May 2022, the Respondent left for employment at a work camp for five weeks. The child remained with her mother throughout this period.

(b) The Respondent told the Applicant that he had spent five weeks in a treatment centre in June, when in fact he was at the work camp. He admitted that this was a lie he had told to avoid having his words used against him. The Applicant asked the Respondent for his address at the “treatment centre” so that she could bring O.R. there and know where to contact him in the event of an emergency with O.R. The Respondent did not reply to these messages. He later stated that he could not communicate with her because he had no Internet service at the camp. However, the Respondent admitted under cross-examination on his Affidavit that he had discovered during the first few weeks of his stay at the camp that he could obtain Internet service. Therefore, the Respondent could have given the Applicant his address and replied to her text messages. The fact that he did not keep in touch with her for five weeks and that he lied about his whereabouts supports the Applicant’s position that the Respondent acquiesced in her staying in Ontario with O.R.

(c) The Respondent did not object to the Applicant’s move to Ontario until he filed his Answer to the Application in October 2022. The Respondent states in his Affidavit that the mother never asked him if she could take the child to Ontario and that he did not consent to the child residing in Ontario. However, there is nothing on the record to indicate that the Respondent objected to the child residing in Ontario until he was faced with the possibility of not sharing parenting time and decision-making responsibility. He admitted under cross-examination that he had not provided evidence in the form of text or other messages that he objected to the Applicant moving to Ontario with the child. The Respondent testified under cross-examination that until he received the Application, he thought the Applicant would share parenting time and decision-making responsibility with him on an equal basis. Once he received the Application and realized that the Applicant was not proposing joint decision-making responsibility and equal parenting time, he filed his own application in Quebec and challenged the jurisdiction of the Ontario court. I think it likely that prior to receiving the Application, the Respondent was more interested in shared parenting time than in the child’s habitual residence.

(d) By consenting to the Interim Parenting Order through his counsel on December 8, 2022, the Respondent effectively agreed that O.R.’s habitual residence was in Ontario with the Applicant. The Consent Order granted the Respondent parenting time every other weekend from 1:00 p.m. on Friday to 1:00 p.m. on Sunday. Obviously, the rest of the time, O.R. would be with her mother, who lives in Ontario. Consent to the Order was not given “without prejudice.” The Respondent could have stated that he consented to the Order without prejudice to his right to argue that O.R. was not habitually resident in Ontario or that he did not accept the jurisdiction of the Ontario Superior Court of Justice. He did not do so. Furthermore, the Respondent did not contend during these proceedings that his previous counsel had mistakenly consented on his behalf or that she had done so without his informed consent or without him having been informed of the consequences of such consent. The Respondent argued that he did not know a consent order had been made for his parenting time because the procedural motion to make the order had not been served on counsel using Form 14B. However, the draft order was sent to the Respondent’s counsel at the time. I therefore find it hard to believe that the Respondent was unaware that the consent and draft order would be filed with the Court and that the signed order would subsequently be issued. Counsel for the Respondent argued that if the proper procedure had been followed, the file he received from the Respondent’s former counsel would have included the Form 14B and the Order, and he would have been in a position to seek the revocation of his client’s consent. I fail to see on what basis counsel for the Respondent could have revoked the Respondent’s consent to the parenting time agreement. Accordingly, I reject the argument that the Respondent did not consent to Justice MacEachern’s Order. By consenting to this Order, the Respondent consented to O.R. being habitually resident in Ontario.

[18] Admittedly, certain factors might suggest that the child could have been habitually resident in both Ottawa and Montréal when the Application was filed. For example, the Respondent enrolled O.R. in a Montréal daycare centre in August 2022, O.R.’s pediatrician was in Montréal, she has a Quebec health card and the Applicant was receiving the Quebec government’s family allowance. While these factors may suggest that the child may have had a concurrent residence in Montréal, I find that in all the circumstances, including those set out above, the child’s principal and habitual residence is in Ottawa, where she has resided since at least mid-May 2022.

[19] This case is distinguishable from N.N.N.P.V. v. J.S., 2020 ONSC 5137, in which Justice Engelking found that the four-year-old child was not habitually resident in Ottawa. In that case, the mother still owned a house in Gatineau and had not put it up for sale. The child attended the Gatineau daycare centre, to which the mother transported her daily.

[20] In contrast, the child never attended the Montréal daycare centre in this case. In addition, although the Applicant had a job in Montréal, she left it two days after returning to work and accepted a job in Ottawa. She states that it was the father who applied for the family allowance and the child’s health card in Quebec. She has tried to get an Ontario health card but has been unable to do so to date because she needs O.R.’s birth certificate, which the Respondent has kept. It was the Respondent who applied for the family allowance on behalf of the Applicant and, according to her, he kept most of the cheques issued by the Quebec government.

Conclusion

[21] Accordingly, I find that on the date of the Application of July 27, 2022, the child was habitually resident in Ontario with the implied consent or acquiescence of the Respondent and that the requirements of ss. 22(1)(a) and 22(2) of the Act have therefore been met. The Applicant has established the jurisdiction of the Ontario Superior Court of Justice.

[22] At the hearing of the Motion, the Respondent requested that his motion for an interim order relating to parenting time and decision-making responsibility be dealt with separately once the jurisdictional issue had been determined. I therefore authorize the Respondent to make a motion for an interim order on parenting time and decision-making responsibility.

Justice K.A. Jensen Date: May 25, 2023