- DATE: 20020408 DOCKET: C37312
COURT OF APPEAL FOR ONTARIO
RE:
KELLY ANN TURNER (Appellant) and STEPHANE RONALD VIAU (Respondent)
BEFORE:
FELDMAN, MACPHERSON AND SIMMONS JJ.A.
COUNSEL:
Karine Devost
For the appellant
No one appearing
For the respondent
HEARD:
April 4, 2002
On appeal from the judgment of Justice Paul Lalonde dated October 30, 2001
E N D O R S E M E N T
[1] The appellant lived in a common law relationship with the respondent from March 1998 until August 26, 2001. The parties had one child, Jessica Ann, born November 19, 1998. The issue on this appeal is whether the motions judge erred in denying the appellant’s request for a declaration that Ontario has jurisdiction to entertain custody, access, and support proceedings relating to Jessica.
[2] The parties lived in Gatineau, Quebec throughout their relationship, save for one period, from approximately July 1, 2000 until February 28, 2001, when they lived in Stittsville, Ontario. On August 26, 2001, the appellant left the respondent and returned to Stittsville, Ontario with Jessica. She claims that the respondent knew that she was returning to Ontario, and that he agreed that she would have custody of Jessica.
[3] The appellant commenced this application for custody of and support for Jessica on September 21, 2001 in Ottawa. The respondent commenced proceedings in Hull, Quebec on September 24, 2001, claiming joint custody of Jessica, and requesting a determination of child support. Both sets of material were served on September 25, 2001. The proceedings in Quebec were ultimately adjourned pending a decision in Ontario concerning jurisdiction.
[4] The motions judge found that Jessica was habitually resident in Quebec at the time this application was commenced. He also found that the balance of convenience favours Quebec “as the equalization of the parties net family properties must be made in Quebec”. He said “not all items listed in s. 22(1)(b) [of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12] have been met, especially section 22(1)(v) and (vi)” and “I do not want to favour a parent who will remove a child to another province and apply for custody in that province giving it jurisdiction on the parent’s own motion”.
[5] The appellant contends that the motions judge erred in fact and in law in failing to find that Jessica was habitually resident in Ontario as of the date this application was commenced. She submits that the motions judge took account of an irrelevant factor by stating that the parties cohabited in Gatineau for 3 ½ years, that he misapprehended the evidence when he said Jessica “only came to … Ontario following the couple’s separation on August 26, 2001”, and that he failed to take account of the parties’ verbal arrangement that the appellant would have custody of Jessica, in circumstances where the respondent knew she would be returning to Ontario. In the alternative, the appellant claims that the motions judge erred in failing to find that all of the prerequisites for accepting jurisdiction under s. 22(1)(b) of the Children’s Law Reform Act were met. In particular, the motions judge erred in finding that Jessica does not have a real and substantial connection with Ontario, and in finding that the balance of convenience favours Quebec.
[6] It is unclear whether the motions judge appreciated that Jessica lived in Ontario for about 8 of the approximately 21 months that she lived with both parents. Nevertheless, in our view, the motions judge did not err in finding that the appellant had not established that Jessica’s habitual residence was Ontario as of September 21, 2001.
[7] Section 22(2) of the Children’s Law Reform Act provides:
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.
[8] The respondent deposed that the appellant advised him, on August 26, 2001, that she was going to Stittsville for two weeks to consider their situation. He claimed that he did not consent to the appellant taking their child to live in Stittsville. Faced with the respondent’s evidence, and the brief time frame between separation and the institution of proceedings, without a trial of the issue, we see no error in the motions judge’s conclusion that the appellant had not established an agreement that the child would live in Ontario, or even acquiescence.
[9] We agree with the statement in Obregon v. Obregon (1984), 1984 576 (ON SC), 39 R.F.L. (2d) 164 (U.F.C.) that “under s. 22(1)(b) [of the Children’s Law Reform Act] a court may exercise jurisdiction over a child not habitually resident in Ontario at the time of the commencement of the application only if all of the six criteria in that section have been satisfied”. The appellant made several points relating to the child’s connection with Ontario and the number of witnesses that would be from Ontario. However, we are not persuaded that she demonstrated a basis for concluding that the motions judge’s finding that the balance of convenience favours Quebec “as the equalization of the parties net family properties must be made in Quebec” is clearly wrong. The alternative ground of appeal therefore fails.
[10] The appeal is accordingly dismissed. As no one appeared for the respondent, there will be no order as to costs.
“K. Feldman J.A.”
“J.C. MacPherson J.A.”
“Janet Simmons J.A.”