Dovigi v. Razi

110 O.R. (3d) 593

2012 ONCA 361

Court of Appeal for Ontario,

Cronk, Juriansz and Epstein JJ.A.

May 31, 2012

Family law -- Custody -- Jurisdiction -- Mother leaving Ontario while pregnant and giving birth to child in California -- Child not habitually resident in Ontario as defined by s. 22(2) of Children's Law Reform Act ("CLRA") -- Motion judge erring in finding that legislative gap existed as child did not fall within ambit of CLRA and in relying on court's parens patriae jurisdiction in assuming jurisdiction over father's application for shared custody of child -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 22(2).

While pregnant, the mother left Ontario for what the father understood to be a visit to California. She gave birth to the child there and intended to become a permanent resident. The father brought an application in Ontario for temporary and permanent shared custody. The mother commenced custody proceedings in [page594] California. The motion judge assumed jurisdiction over the father's application by exercising the court's parens patriae power to protect the child. The mother appealed.

Held, the appeal should be allowed.

The child was not habitually resident in Ontario as defined by s. 22(2) of the Children's Law Reform Act ("CLRA"). The motion judge erred in finding that the fact that the child did not fall within the ambit of the CLRA meant that a legislative gap existed. The fact that circumstances fall outside a definition may be a matter of legislative design rather than legislative oversight. The motion judge also erred in relying on the court's parens patriae jurisdiction. That jurisdiction is founded on the need to act for the protection of those who cannot care for themselves. In this case, there was no evidence that it was necessary for the Ontario court to act for the protection of the child. First, the California court had taken jurisdiction over issues relating to the child's custody and California's laws and procedures are similar to those of Ontario. Second, the motion judge erred by taking jurisdiction to protect the expectation that the child would be parented in Ontario. In so doing, she assumed the conclusion of the inquiry into where the best interests of the child lay. Where it is in the best interests of the child to be parented must be decided by the court with jurisdiction. The outcome of the inquiry into best interests does not provide a basis for taking jurisdiction.

APPEAL from the order of Kiteley J., [2012] O.J. No. 897, 2012 ONSC 1199 (S.C.J.) assuming jurisdiction over the father's application for shared custody.

Cases referred toE. (Mrs.) v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388, [1986] S.C.J. No. 60, 31 D.L.R. (4th) 1, 71 N.R. 1, J.E. 86-1051, 61 Nfld. & P.E.I.R. 273, 13 C.P.C. (2d) 6, 2 A.C.W.S. (3d) 42; Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. No. 3912, 216 O.A.C. 78, 32 R.F.L. (6th) 246, 152 A.C.W.S. (3d) 105 (C.A.) Statutes referred to Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 22, (1), (a), (b), (2), (b), (3), 23, 69 [as am.] Authorities referred to McLeod, James G., Child Custody Law and Practice, looseleaf (Scarborough, Ont.: Carswell, 2007)

E. Lenkinski and M. Mehra, for appellant. H. Niman, A. Volikis and J. Wilson, for respondent.

The judgment of the court was delivered by

[1] JURIANSZ J.A.: -- This is an appeal from the order of Kiteley J. dated February 21, 2012 assuming jurisdiction over a father's application for temporary and permanent shared custody of his child.

[2] The mother appeals, submitting that Ontario lacks jurisdiction over the custody of and access to the child and, in the [page595] alternative, that Ontario should decline to exercise jurisdiction and defer to California as the forum conveniens.

[3] The mother and father, who are the biological parents of the child, both resided in Ontario during the course of their relationship. By November 2011, the parents were no longer romantically involved. On November 26, 2011, the mother, then some seven months pregnant, left Ontario for what the father understood was a visit to California. The child was born on January 14, 2012 in California and the mother is now living there and intends to become a permanent resident. The child has never been physically present in Ontario. The motion judge found as a fact that the mother did not form the intention to live in California until after the child was born, a finding the mother attacks on this appeal.

[4] The motion judge assumed jurisdiction by exercising the court's parens patriae power to protect the child. For the reasons that follow, I would allow the appeal. A. The Motion Judge's Decision

[5] The motion judge, citing James G. McLeod, Child Custody Law and Practice, looseleaf (Scarborough, Ont.: Carswell, 2007), 3(3), observed that the two purposes of jurisdictional requirements are to avoid concurrent jurisdiction and to discourage the abduction of children. The first consideration does not apply in this case, she said, because the issue of concurrent jurisdiction arose only when the appellant commenced proceedings in California after being served with the respondent's application in Ontario. The second consideration does apply, she said, because "to decline to take jurisdiction in these circumstances would be to encourage a pregnant mother to depart from the original jurisdiction in circumstances that are arguably analogous to abduction" (at para. 21).

[6] The motion judge recognized that she did not have jurisdiction under the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"). Section 22 of the CLRA defines when Ontario courts can exercise their jurisdiction to make an order for custody of or access to a child. The motion judge held that s. 22(1)(b) did not apply because the child was not physically present in Ontario at the commencement of the application. Section 22(1)(a) requires that the child be "habitually resident in Ontario" at the time of the application. The circumstances of the child did not fall within the ambit of the definition of "habitually resident" under s. 22, but, in her view, this constituted a gap in the statute, since the child appeared to have no habitual residence under the statute. Given the statutory gap, the fact that both parties had a real [page596] and substantial connection with Ontario, and the fact that the mother's proceedings in California were commenced only after the father's application was filed and served in Ontario, the motion judge concluded, at para. 24:

This is a situation in which it is necessary to invoke the parens patriae jurisdiction to deal with the uncontemplated situation where it is necessary to do so for the protection of the child who falls within that ambit. I am mindful that California's laws and procedures are similar to those of Ontario in that there are jurisdictional requirements, parents have equal rights, and the best interests of the child is the principle upon which judgments are made. However, until the [appellant] allegedly changed her mind, the expectation was that [the child] would be parented in Ontario. There is evidence as to their respective parenting abilities in Ontario. To protect the expectation that [the child] would be parented in Ontario, this court must take jurisdiction. There is no basis to refrain from exercising jurisdiction either under s. 19(b) or s. 25 of the CLRA.

B. The Parties' Arguments

[7] Counsel for the appellant raised a number of arguments. The only one I find necessary to deal with is that this is not a case for the exercise of the court's parens patriae jurisdiction.

[8] Counsel for the respondent submits that it is not necessary to consider whether the motion judge erred by exercising her parens patriae power, because, in any event, she had jurisdiction under the CLRA. He posits that a child necessarily must have the same habitual residence as its parents. Here, according to the facts as found by the trial judge, both parents were habitually resident in Ontario when the application was commenced. He went further, arguing that the father's habitual residence in Ontario, by itself, was enough to find the child was habitually resident in Ontario. This reasoning, he submits, makes it unnecessary to refer to the statutory definition to identify the child's habitual residence. C. Jurisdiction Over Custody Disputes

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

[10] 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.

[11] 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. [page597]

[12] 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.

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

[14] Of the heads of jurisdiction outlined above, the only two argued to be available in this case are s. 22(1)(a) -- the child is habitually resident in Ontario -- and the court's parens patriae jurisdiction. I do not accept the respondent's argument that the child is "habitually resident" in Ontario because her parents, or at least one of her parents, are so resident. In essence, counsel advocates a common law approach to "habitual residence" in determining the court's jurisdiction. However, it is elementary that a statutory definition must be applied when interpreting the very term defined. The phrase "a court shall only exercise its jurisdiction" in s. 22 makes clear that the statute has superceded the common law.

[15] The motion judge was correct to find that the circumstances of the child in this case do not fall within the ambit of the statutory definition of "habitual residence". She was wrong, though, to conclude from that fact alone that there was a legislative gap. The fact that circumstances fall outside a definition may be a matter of legislative design rather than legislative oversight. Discerning the legislative design requires a close consideration of the legislation.

[16] Section 22(1) limits when the court has jurisdiction to make an order for custody or of access to a child on the basis that the child is either habitually resident in Ontario at the commencement of the application for the order or, if not habitually resident, the child is physically present in Ontario and meets a number of other criteria. Since the child here was not physically present in Ontario, the focus becomes the child's place of habitual residence.

[17] To be "habitually resident" in Ontario is defined by s. 22(2) of the Act as follows:

(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 [page598] (c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

[18] As can be seen, the definition contemplates three possible situations: where the child is living with both parents, with one parent, or with neither parent. Where the child is living with one parent the key provision is s. 22(2) (b), which specifies that the statutory meaning of "habitually resident" differs from the common-law meaning. Even a child with a stable and settled life in Ontario residing with one parent is not "habitually resident" here under the statute unless the child's residence is in accordance with a separation agreement, consent or a court order.

[19] The possibility that the child is living with one parent outside Ontario as a result of abduction is specifically addressed by s. 22(3) of the CLRA, which provides that abduction does not change the "habitual residence" of a child.

[20] That the child is residing with one parent in California without a separation agreement, consent or a court order no more indicates a gap in the statute than would a child residing in Ontario with one parent in similar circumstances. I conclude that while the motion judge was correct that the child does not fall within the ambit of the provisions of the CLRA, she erred in finding that this results from a legislative gap.

[21] I turn to the motion judge's reliance on the court's parens patriae jurisdiction. The Supreme Court of Canada in E. (Mrs.) v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388, [1986] S.C.J. No. 60 makes it clear, at p. 426 S.C.R., that 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". In the circumstances of this case, there was no evidence that it was necessary for the Ontario court to act for the protection of this child.

[22] First, the California court has taken jurisdiction over issues relating to the child's custody, and as the motion judge noted, California's laws and procedures are similar to those of Ontario, parents have equal rights, and the best interests of the child is the principle upon which judgments pertaining to the child are made. This is not to say that there could be no circumstances under which a child may be in need of this court's protection even where the other state has comparable laws. The circumstances of this case, however, simply do not give rise to any protection concern.

[23] Second, the motion judge erred by taking jurisdiction "[t]o protect the expectation that [the child] would be parented in Ontario" (at para. 24). In so doing, she assumed the conclusion of the inquiry into where the best interests of the child lay. Where [page599] it is in the best interests of the child to be parented must be decided by the court with jurisdiction. The outcome of the inquiry into best interests does not provide a basis for taking jurisdiction.

[24] I conclude that the motion judge did not have a proper basis for exercising the court's parens patriae power. E. The Motion Judge's Findings of Fact

[25] This court's conclusion that the motion judge erred in law in invoking parens patriae is sufficient to allow the appeal and overturn the decision below.

[26] However, in case this decision is appealed and as there is ongoing litigation in California, I deal with the appellant's challenge to certain findings of fact made by the motion judge.

[27] The motion judge acknowledged that, in light of this court's decision in Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. No. 3912, 32 R.F.L. (6th) 246 (C.A.), she could not draw conclusions of fact about significant matters in dispute where the record contained only the competing affidavits of the parties. Yet, citing what she characterized as "independent evidence" she proceeded to find facts. The summary of "undisputed facts" that preceded her finding that the appellant did not form the intention to live in California until after the child was born included the fact that the appellant bought a condominium in Toronto, the sale of which closed on December 15, 2011. She made no reference, however, to para. 116 of the appellant's affidavit dated February 7, 2012, which states that the condominium was rented to a tenant on December 30, 2011. Nor did she make reference to para. 55 of the respondent's affidavit dated January 19, 2012, which states that he "recently discovered that between November and December 2011, [the appellant] has been purchasing furniture and other items for the child and having them shipped to . . . California".

[28] In my view, this was a case in which the guidance of Ierullo should have been followed. F. Fresh Evidence

[29] The appellant sought to introduce fresh evidence on the appeal, largely related to the custody proceedings in California and the processing of her application for immigration to the United States.

[30] The respondent does not contest the admission of the evidence of the California court's decision to take jurisdiction. This evidence is admitted. The remainder of the evidence is not admitted as it was not pertinent to the appeal. [page600] G. Stay Motion

[31] By order dated May 16, 2012, this court ordered a stay of the motion judge's order dated May 8, 2012 providing the father with access to the child in Ontario. The stay was warranted by the balance of convenience and the court's view that the appeal ought to be allowed. H. Conclusion

[32] I would allow the appeal, set aside the motion judge's order dated February 21, 2012 and replace it with an order dismissing the father's application for want of jurisdiction.

[33] In accordance with the agreement of counsel, there will be no costs of the appeal, the motion to stay and the motion for fresh evidence.

Appeal allowed.