Court of Appeal for Ontario

CITATION: Murray v. Ceruti, 2014 ONCA 679

DATE: 20141002

DOCKET: C58592

Simmons, Rouleau and Hourigan JJ.A.

BETWEEN

Jennifer Lynn Murray

Applicant (Respondent)

and

Joseph Anthony Ceruti

Respondent (Appellant)

Gary S. Joseph and Ryan M. Kniznik, for the appellant

Cynthia Mancia, for the respondent

Heard: September 16, 2014

On appeal from the order of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated March 19, 2014.

By the Court:

[1] The appellant brought a motion to stay family law proceedings on the ground that Ontario lacks jurisdiction and, in any event, the State of Indiana was the more appropriate forum. The motion judge denied that motion.

[2] The appellant appeals the dismissal of his stay motion, submitting that the motion judge erred in law in holding that Ontario has jurisdiction over the custody and access issues in the matter, or, in failing to decline jurisdiction.

[3] For the reasons that follow, the appeal is dismissed.

Background

[4] The respondent, a Canadian citizen, moved from Ontario to Indiana to live with the appellant, an American citizen, on March 2, 2013. She became pregnant in April 2013 and the couple was married on May 8, 2013.

[5] On June 18, 2013, the parties separated and the appellant served the respondent with a petition for divorce and other relief, none of which related to the parties’ unborn child. On that same day, the respondent moved back to Ontario.

[6] The respondent’s Indiana counsel entered a notice of appearance in the Indiana proceeding on July 5, 2013.

[7] On August 1, 2013, the appellant sought an order in the Indiana proceeding for sole custody of the child upon the child’s birth.

[8] On August 28, 2013, the respondent’s Indiana counsel filed a petition to annul the marriage. No relief was sought in that petition with respect to the unborn child.

[9] The parties appeared at a court ordered mediation in Indiana on September 20, 2013. The mediation was not successful.

[10] On Friday, October 18, 2013, the appellant’s Indiana counsel withdrew from the record. On the following Monday, there was a hearing before Judge Pratt of the Allen Superior Court in the State of Indiana, on the appellant’s motion to preserve and retain jurisdiction, for final orders pertaining to custody and child support, and the appointment of a Guardian ad Litem. The respondent participated in part of the hearing, without counsel, via telephone from Ontario. She sought an adjournment but it was refused. She maintains that she did not fully understand what was happening.

[11] The respondent had previously consulted with Ontario lawyers and understood that custody could not be addressed until the child was born.

[12] On December 2, 2013, Judge Pratt ruled that the Indiana court has jurisdiction over the issue of custody of the unborn child. Judge Pratt ordered that the appellant have full and co-equal parenting time rights with the child when born.

[13] The parties’ child was born in Ontario on December 11, 2013. On December 20, 2013, the respondent brought an ex parte motion in the Superior Court in Windsor, Ontario, seeking temporary custody. The court granted an order directing that the child reside with her mother in Windsor, Ontario and not be removed from the province on an interim basis. On January 21, 2014, the respondent filed an application in the Superior Court seeking custody of the child.

[14] On January 22, 2014, the appellant brought a motion to set aside the ex parte order and to stay the respondent’s application. The motion judge denied the motion for a stay, finding that Ontario has jurisdiction over custody and access of the child.

[15] In so ruling, the motion judge held that the child was not habitually resident in Ontario under s. 22(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (the “CLRA”). However, he concluded that the factors in s. 22(1)(b) of the CLRA were all satisfied, permitting Ontario to exercise jurisdiction. In particular, the motion judge found:

• that the child was physically present in Ontario at the commencement of the application;

• that substantial evidence concerning the best interests of the child was available in Ontario;

• that no application for custody of or access to the child was pending before an extra-provincial tribunal in another place where the child was habitually resident – rather, that was a matter he had under consideration;

• that no extra-provincial order in respect of custody or access to the child had been recognized by a court in Ontario;

• that the child had only resided in Ontario and therefore had a real and substantial connection with Ontario; and

• that as the respondent had resided in Indiana for less than 100 days and was then living in Ontario, and as the child had spent her entire life in Ontario, on the balance of convenience, it was appropriate for jurisdiction to be exercised in Ontario.

[16] In addition, the motion judge considered s. 41(1) of the CLRA and concluded that an Ontario court was not required to recognize the order made by the Indiana court on December 2, 2013. Among other things, he was satisfied that, as the child was unborn when the order was made and as the child had never been present in or resided in Indiana, the Indiana court would not have had jurisdiction in accordance with s. 22 of the CLRA to make the December 2, 20213 order had it been a court in Ontario.

[17] The motion judge also found that, while the respondent had attorned to the jurisdiction of the Indiana court for the purpose of equalization of assets and other claims related to divorce, she had not attorned in relation to the issues of custody and access.

[18] In addition to submitting that the motion judge erred in these determinations, the appellant seeks to adduce fresh evidence on appeal regarding the steps taken in the Indiana proceeding following the dismissal of the appellant’s stay motion in Ontario.

[19] The fresh evidence explains that on July 10, 2014, Judge Pratt released a Determination of Child Custody Jurisdiction and Decree of Dissolution of Marriage, in which he concluded that the Indiana court has jurisdiction over the child custody issue and granted the appellant full custody of the child. In his decision, Judge Pratt stated that he had been informed by Canadian counsel that the order of the Ontario motion judge dismissing the appellant’s stay motion was stayed pending appeal. In fact, no such stay was ever ordered.

Positions of the Parties

[20] The appellant submits that the motion judge made five errors in law:

(i) he misapplied the test for jurisdiction under s. 22 of the CLRA;

(ii) he made an order that was contrary to the objectives set out s. 19 of the CLRA;

(iii) he failed to decline jurisdiction under s. 25 of the CLRA and provided no reasons for doing so;

(iv) he incorrectly held that the respondent had not attorned to the jurisdiction of the Indiana Court with regard to custody and access issues; and

(v) he failed to order a trial of an issue involving conflicting evidence.

[21] The respondent submits that the motion judge was alive to the scope of the jurisdictional issues and founded his decision on a correct application of the facts and the law. Therefore, the respondent’s position is that there is no basis for appellate intervention.

Analysis

(i) Jurisdiction under s. 22

[22] Section 22(1) of the CLRA provides that the court shall only exercise its jurisdiction to make a custody or access order where the child is habitually resident in Ontario at the commencement of the application, or, if that condition is not met, where the criteria set out in s. 22(1)(b) of the CLRA are satisfied:

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.

[23] The motion judge’s finding that the child was not habitually resident in Ontario at the commencement of the respondent’s application is not in dispute. Rather, the appellant takes issue with the motion judge’s assessment of the criteria in s. 22 (1)(b) of the CLRA.

[24] As a starting point, the motion judge correctly determined that the only way the Superior Court could exercise jurisdiction was if all the criteria in s. 22(1)(b) were met: Turner v. Vian (2002), 2002 CanLII 41671 (ON CA), 26 R.F.L. (5th) 440, at para. 9 (Ont. C.A.). The motion judge found that they were. However, the appellant submits that the motion judge erred in two parts of the test.

[25] First, with regard to s. 22(1)(b)(ii), the appellant argues that, while there is some evidence in Ontario pertaining to the best interests of the child, there is substantial evidence in Indiana regarding the appellant’s involvement in the community, his desire to be a parent, and the support system available for the child.

[26] We see no merit in this submission. The respondent could make an equally compelling argument regarding the availability of evidence in Ontario regarding her ties to the community and her plans to parent the child. It is also important to remember that the child was just over two months old at the time of the hearing of the motion and had only ever lived in Ontario. Therefore, this case is distinguishable from many others where the child is older and there is a body of evidence developed in another jurisdiction, such as school and health records.

[27] We conclude that the motion judge committed no error in finding that there is substantial evidence concerning the best interests of the child available in Ontario. The existence of substantial evidence in Indiana is not incompatible with the existence of substantial evidence in Ontario.

[28] The second alleged error is in the balance of convenience analysis mandated by s. 22(1)(b)(vi). The appellant submits that where the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction: Nordin v. Nordin (2001), 2001 CanLII 28199 (ON SC), 17 R.F.L. (5th) 119, at para. 14 (Ont. S.C.). This is simply a recasting of the appellant’s argument that Indiana has more helpful evidence. As discussed above, Indiana does not enjoy an advantage in terms of available evidence.

[29] As for the appellant’s argument that the parties anticipated that the child would be born and raised in Indiana, in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, at para. 23, this court held that the motion judge erred by taking jurisdiction "[t]o protect the expectation that [the child] would be parented in Ontario". In that case, the pregnant mother had returned to the United States prior to the birth of her child. This court declined jurisdiction in favour of California as it was for the court with jurisdiction to decide where it is in the best interests of the child to be parented.

[30] Therefore, in our view, the appellant has failed to establish that the motion judge erred in his s. 22 analysis.

(ii) Order contrary to s. 19

[31] The appellant submits that the motion judge’s order is contrary to the policy objectives of the custody, access and guardianship sections of the CLRA enumerated in s. 19 of the Act. Specifically, the appellant argues that the order is inconsistent with the objectives of avoidance of forum shopping and the concurrent exercise of jurisdiction.

[32] This was not a case of forum shopping. The respondent had a very short-term residence in the United States. She had no family in Indiana, no employment and no legal status to remain there on the dissolution of her marriage. It is hardly surprising that, in these circumstances, she would choose to return home to Canada.

[33] While it is unfortunate that parallel proceedings are extant on both sides of the border, it is not incumbent upon a Canadian court to decline jurisdiction to avoid this result. The policy objectives identified in s. 19 inform the consideration of the issues in that part of the CLRA, but they do not override the jurisdictional test set out in s. 22.

[34] Further, the motion judge’s endorsement makes clear that he was mindful of the policy objectives of the CLRA, including the concerns raised by the appellant. Specifically, he was aware of the order of the Indiana court and correctly noted that the s. 41 criteria requiring recognition of that order had not been satisfied as the child was unborn when it was made and had never been habitually resident nor physically present in Indiana.

(iii) Failure to decline jurisdiction under s. 25

[35] The appellant submits that the motion judge erred in failing to conduct an analysis under s. 25 of the CLRA to determine if Ontario should decline jurisdiction.

[36] In our view, it is clear from the endorsement that the motion judge was alive to the central issues of whether Ontario has jurisdiction and whether Ontario or Indiana should exercise jurisdiction. He conducted a thorough analysis on the point and reached a conclusion that was open to him to make.

[37] The failure to avert specifically to s. 25 in these circumstances was not an error.

(iv) Attornment

[38] The motion judge found that, while the respondent attorned to the jurisdiction of the Indiana court for the purpose of equalization of assets and other claims related to divorce, she did not attorn in relation to the issues of custody and access.

[39] In our view, the correctness of the motion judge’s ruling on attornment need not be decided. There is disagreement as to what precisely occurred in the Indiana proceedings and whether the respondent’s attendance by telephone for some part of the proceedings in the circumstances of this case amounts to attornment. It is also not clear what effect attorning to a proceeding involving an unborn child will have on a later custody proceeding after the birth of the child. Further, the respondent has not provided any authority suggesting that a party can attorn to only part of a proceeding.

[40] However, assuming without deciding that the respondent did attorn, it is important to have regard to the role of attornment in a jurisdictional analysis under the CLRA. Attornment is not referenced in the CLRA. At most, it is a factor to be considered in the analysis mandated by s. 22(1)(b), and in the analysis of whether to decline jurisdiction under s. 25. On the facts of this case, it is not dispositive of either issue.

[41] Even assuming that the motion judge erred in finding that the respondent did not attorn to the jurisdiction of the Indiana court, we are not satisfied that this amounted to a material error that affected his s. 22 analysis or his decision not to decline jurisdiction. There was ample evidence to support a finding that Ontario is the more convenient forum, including, that the child was born in Ontario, the child has only resided in Ontario, and the mother has lived most of her life in Ontario and has property and family in Ontario. Moreover, as the child had never been present or resident in Indiana, the December 2, 2013 Indiana order was not an order Ontario courts were obliged to recognize.

(v) Failure to order the trial of an issue

[42] The appellant submits that the motion judge erred in failing to order a trial of an issue. We disagree. We note first that neither party requested a trial of an issue. While it was open to the motion judge to order a trial, he was not required to do so in the circumstances of this case. The credibility issue related to whether the respondent had attorned to the jurisdiction of the Indiana court. As noted above, this issue was not determinative of the primary issue of which court should take jurisdiction.

(vi) The Fresh Evidence

[43] In our view, the fresh evidence should not be be admitted. It is largely information as to what occurred following the motion judge’s order. In any event, it would not have any effect on the outcome.

[44] The July 2014 order of the Indiana order was made following the March 2014 order of the Ontario court, in which the motion judge held that Ontario has jurisdiction and declined the appellant’s motion to stay the Ontario proceeding. Contrary to what the Indiana judge was told before making the July 2014 order, the December 2013 and February 2014 Ontario orders were not stayed at the time, but rather were in full force and effect.[^1] The fact that an Indiana court has chosen to proceed in the face of a valid Ontario order would not alter the validity of the motion judge’s decision. Moreover, as we have said, the Indiana orders are not orders that an Ontario court is obliged to recognize under s. 41 of the CLRA. The child was never present or resident in Indiana.

Disposition

[45] For the foregoing reasons, we dismiss the appeal.

[46] The respondent, as the successful party, is entitled to her costs. She seeks the sum of $13,400, all inclusive, which is entirely reasonable. We order that the appellant pay the respondent costs of $13,400, inclusive of all fees, disbursements and H.S.T.

Released: October 2, 2014 “J.S. ”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”

“C. William Hourigan J.A.”

[^1]: A stay of the December 2013 Ontario order expired by its terms when the motion judge rendered his decision. The appellant did not obtain a stay of the motion judge’s order pending appeal.