COURT OF APPEAL FOR ONTARIO

DATE: 20001026

DOCKET: C33782

RE: NATALIE RITA KRISKO (Petitioner/Respondent)

v. KIM RUDOLPH KRISKO (Respondent/Appellant)

BEFORE: OSBORNE A.C.J.O., LABROSSE and DOHERTY JJ.A.

COUNSEL: John A. Bland,

for the appellant

James G. McLeod,

for the respondent

HEARD: October 19, 2000

On appeal from the judgment of Madam Justice P. H. Wallace dated January 27, 2000

E N D O R S E M E N T

[1] The father appeals the order of Wallace J. (the “motions judge”), dismissing, in part, his application for a declaration that Ontario lacks jurisdiction under the Divorce Act and the Children’s Law Reform Act to deal with custody and access proceedings commenced by the parties.

[2] The facts can be briefly stated as follows.

[3] The father and mother are respectively a lawyer and a doctor in good standing to practice in Ontario. They were married in Ontario in 1994 and moved to Dubai in the United Arab Emirates in 1996 where the father operated a business as an immigration consultant and the mother worked at the American hospital. Two children were born from the relationship: Rachel Ann, born December 21, 1997 and Nolan Eric, born September 21, 1999. Both children were born in Dubai and are Canadian citizens.

[4] Before and after the birth of the children the parties experienced marital difficulties. Their actions caused each of them great concern. They underwent marriage counselling while in Dubai.

[5] During the time that the parties lived in Dubai, they made regular trips to Canada to visit their families. In November 1999, the mother and children came to Ontario on the understanding that the father would join them for the Christmas season and that they would subsequently all return to Dubai. It was the mother’s evidence that the return to Dubai was to be for a short period of time and they would then re-establish residence in Ontario. The father’s evidence is that the return was to be for an indefinite period of time. Neither party was cross-examined on their affidavits.

[6] In December, the mother expressed fears about their marital problems and their lack of agreement on a date to return to Canada. When they could not agree on the terms for the family to move back to Canada she commenced various proceedings, including proceedings for custody of the children. She obtained an ex parte order that determined that the children would reside with her in Ontario, subject to access to the father. The father came to Ontario in mid-December and also commenced proceedings for custody.

[7] The motions judge found that the father had attorned to the jurisdiction on the basis that he had not only put the issue of jurisdiction before the Ontario court but had also raised substantive issues. However, she concluded that she did not have jurisdiction to deal with custody and access under the Divorce Act, as neither the father nor the mother satisfied the requirement of ordinary residence (s. 3(1)). These findings are not being attacked on appeal. The motions judge then considered the relevant provisions of the Children’s Law Reform Act. She found that the children were also not habitually resident in Ontario (s. 22(2)). This finding is also not being attacked.

[8] The motions judge then considered s. 22(1)(b) which sets out the criteria that must be established before an Ontario court will take jurisdiction on a custody application where a child is not habitually resident in Ontario. In detailed reasons, she found that:

(i) the children were physically present in Ontario at the commencement of the proceedings;

(ii) substantial evidence concerning the best interests of the children is available in Ontario;

(iii) there is no pending application for custody and access in another place where the children are habitually resident;

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

(v) the children have a real and substantial connection with Ontario; and

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

After thoroughly reviewing the evidence relevant to the s. 22(1)(b) criteria, the motions judge concluded that all the criteria had been met.

[9] More specifically, with respect to the balance of convenience, the motions judge expressed concern as to how Canadian law would be applied in Dubai. She remarked that it was not clear that any custody dispute would be resolved according to the children’s best interests nor that both parents would have equal rights before the court. She was also concerned that Dubai is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and that in her present circumstances the mother may experience sponsorship problems in Dubai.

[10] In our view, the findings of the motions judge are supported by the evidence and we see no basis to interfere with her conclusion that the criteria of s. 22(1)(b) have been met.

[11] The motions judge also concluded that the mother had not abducted the children nor surreptitiously removed them from Dubai. Given the conflicts in the evidence outlined above, we also see no basis to interfere with this conclusion.

[12] It is in relation to the last criterion of s. 22(1)(b) (balance of convenience) that the father seeks to introduce fresh affidavit evidence to refute certain evidence to the general effect that the mother could not get access to the courts in Dubai in a custody dispute. This evidence was served on the father at the hearing and referred to by the motions judge in her reasons. As correctly pointed out by the mother in her factum, the fresh evidence addresses the way the information was obtained and not the veracity of the information. More importantly, it deals with only one aspect of the criterion of balance of convenience and it is not likely to be conclusive of whether the balance of convenience favours Ontario. In fact, to the extent that the fresh evidence confirms that the law of Ontario would be the applicable law if the matter were adjudicated in Dubai, it fortifies the motions judge’s finding that the balance of convenience favours Ontario.

[13] The application for fresh evidence must be dismissed.

[14] Accordingly, the appeal is dismissed. The parties are to make written submissions on costs within fifteen days.

(signed) “C. A. Osborne A.C.J.O.”

(signed) “J. M. Labrosse J.A.”

(signed) “Doherty J.A.”