Court of Appeal for Ontario

Date: 20240221 Docket: COA-23-CV-0758

Before: van Rensburg, Roberts and Favreau JJ.A.

Between: Nikkie Los, Applicant (Respondent) And: Guillaume-Alexandre Ross, Respondent (Appellant)

Counsel: Susan Galarneau and Bruno Sharpe, for the appellant Ira Marcovitch, for the respondent

Heard: November 24, 2023

On appeal from the order of Justice Karen Jensen of the Superior Court of Justice, dated May 25, 2023, with reasons reported at 2023 ONSC 3127.

Favreau J.A.:

A. Introduction

[1] The issue on this appeal is whether Ontario, rather than Quebec, has jurisdiction to decide the parties’ family law dispute. The appellant father, Guillaume-Alexandre Ross, appeals an order that the Ontario court has jurisdiction to make parenting time, decision-making responsibility, and child support orders.

[2] The motion judge concluded the court has jurisdiction because the parties’ child was habitually a resident of Ontario. She found that the father tacitly consented or acquiesced to the respondent mother, Nikkie Los, moving the child from Montreal to Ottawa after the couple separated.

[3] The father submits that the motion judge erred in considering matters that occurred after the mother commenced her application in Ontario and that the evidence did not support a finding that he tacitly consented or acquiesced to the child’s move to Ontario between the time of the separation and the commencement of the application.

[4] I disagree that the motion judge erred in finding that the father tacitly consented or acquiesced to the child’s move to Ontario. This inquiry is contextual and fact specific. While the motion judge did err in viewing the father’s consent to an interim order made in the context of the Ontario proceedings as evidence of his acquiescence, her other findings on the evidence as a whole support her conclusion that the father tacitly consented or acquiesced to the child habitually residing in Ontario. In this case, while the time between the separation and the beginning of the proceedings in Ontario was relatively brief, the father’s actions during that time supported the motion judge’s conclusion.

[5] I would therefore dismiss the appeal.

B. Background

(1) Relationship between the parties

[6] The parties started living together in Montreal, Quebec, in November 2020. They have one child, who was born in Montreal in August 2021.

[7] In early February 2022, after a fight between the parties, the mother left Montreal with the child to go live with her parents in Ottawa. The mother returned to Montreal later that same month, and the parties tried to reconcile between February and April 2022.

[8] In April 2022, the mother went back to Ottawa with the child to live with her parents. She thereafter returned to Montreal regularly so that the father could spend time with their child. The mother resided with the father when she went to Montreal until April 2022, after which she stayed in a separate apartment rented through Airbnb, and not with the father.

[9] Toward the end of May 2022, the father went to a work camp for his employment for five weeks. The father did not tell the mother that he was at a work camp and instead told her that he was going to a treatment centre. He also told the mother that it would not be possible for them to communicate during that time. In reality, it would have been possible for the father to communicate with the mother while he was at the work camp as he had access to internet service while he was there. During the father’s absence, the mother sent him multiple text messages asking for his address so that she could visit with the child or so that she could contact him in case of an emergency. The father did not reply to these messages. The child was with the mother in Ontario throughout this time.

[10] While there is disagreement between the parties over the date of their separation, the father admits that in June 2022, the mother advised him that the relationship was over and that she had no intention of returning to live in Montreal.

(2) Court proceedings in Ontario

[11] On July 27, 2022, the mother commenced an application in the Superior Court in Ontario. The application was served on the father on August 11, 2022. On the application, the mother sought primary parenting time and sole decision-making responsibility for the child. She also sought child support.

[12] The father served an answer to the application on September 22, 2022, in which he sought equal parenting time and shared decision-making responsibility.

[13] On October 11, 2022, the father brought an urgent motion challenging the Ontario court’s jurisdiction. However, the Superior Court declined to hear the motion on the basis that it was not urgent.

[14] The father then changed lawyers and, at a subsequent case conference on January 9, 2023, the court scheduled the motion for jurisdiction to be decided as a preliminary matter.

[15] Following the scheduling of the motion for jurisdiction, but before the motion was heard, the court issued a consent interim order addressing parenting time. The terms of the order had been negotiated between the father’s prior counsel and the mother’s lawyer. The order granted parenting time to the father every other weekend.

(3) Court proceedings in Quebec

[16] On July 13, 2022, the father consulted with a lawyer in Quebec. At that time, there were no communications between that lawyer and the mother.

[17] The father did not commence his family law proceedings in Quebec until January 11, 2023.

(4) Motion judge’s decision

[18] The motion judge dismissed the father’s motion challenging jurisdiction. She determined that the child was habitually resident in Ontario with the implied consent or acquiescence of the father. In reaching this conclusion, the motion judge relied on four factors.

[19] First, the child had always lived principally with her mother, and she had lived primarily with her mother in Ottawa since at least mid-May 2022, including during the period when the father left for the work camp.

[20] Second, the father lied to the mother about being at a treatment centre rather than a work camp, and about not being able to communicate with her while he was away. The motion judge stated that the “fact that [the father] did not keep in touch with her for five weeks and that he lied about his whereabouts supports the [mother’s] position that the [father] acquiesced in her staying in Ontario with [the child]”.

[21] Third, the father did not object to the mother moving with the child to Ottawa until he filed his answer to the mother’s application in October 2022. The motion judge expressed the view that the father’s primary concern was with shared parenting time rather than with the child’s residence:

The [father] testified under cross-examination that until he received the Application, he thought the [mother] would share parenting time and decision-making responsibility with him on an equal basis. Once he received the Application and realized that the [mother] 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 [father] was more interested in shared parenting time than in the child’s habitual residence.

[22] Fourth, the motion judge found that by consenting to the interim parenting order through his counsel on December 8, 2022, the father “effectively agreed that [the child’s] habitual residence was in Ontario with the [mother]”. She stated that the order was not made “without prejudice” and noted that the father did not argue that he had not consented to the order through his previous counsel. She rejected the father's position that his previous counsel had not been properly served with the motion.

[23] The motion judge recognized that some factors may have supported a finding that the child’s habitual residence was Montreal. For example, the father enrolled the child in a Montreal daycare centre in August 2022, the child’s pediatrician was in Montreal, the child had a Quebec health card and the mother received a Quebec government family allowance. However, the motion judge concluded that “the child’s principal and habitual residence is in Ottawa, where she has resided since at least mid-May 2022”.

C. Statutory framework

[24] Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), governs the issues of parenting time and decision-making responsibility.

[25] Section 22 of the CLRA sets out the circumstances under which a court in Ontario has jurisdiction over parenting and contact orders. Section 22(1)(a) specifies that the “court shall only exercise its jurisdiction” over such orders where “the child is habitually resident in Ontario at the commencement of the application for the order”. Section 22(2) defines a child’s habitual residence as including where a child resides in Ontario with one parent with the other parent’s “consent, implied consent or acquiescence”:

(2) 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. [Emphasis added.]

[26] Section 22(1)(b) also provides that a court in Ontario can exercise jurisdiction where a child is not habitually resident in Ontario but the court is satisfied that the following circumstances exist:

(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.

[27] Section 22(3) specifies that a child’s habitual residence is not Ontario where the child has been taken to Ontario in the following circumstances:

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.

[28] Finally, s. 23 of the CLRA provides that, despite s. 22, the court in Ontario can exercise its jurisdiction over a parenting or contact order where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm if:

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[29] As noted by the motion judge, in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal refused, [2012] S.C.C.A. No. 348, at paras. 9 to 13, this court specified that there are four different circumstances in which a court in Ontario has jurisdiction to make an order respecting child custody (now referred to as parenting time and decision-making responsibility) under the CLRA:

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.

[30] In this case, it is the first circumstance that is relevant. Specifically, whether the motion judge erred in finding, pursuant to ss. 22(1)(a) and 22(2)2 of the CLRA, that the child was habitually resident in Ontario with the implied consent or acquiescence of the father.

[31] In Zafar v. Azeem, 2024 ONCA 15, at para. 74, this court recently stated that the test for determining a child’s habitual residence under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, applies equally to determining a child’s habitual residence under the CLRA. In Balev, the Supreme Court held that, in determining a child’s habitual residence under Article 3 of the Hague Convention, courts should adopt a “hybrid approach” that looks to “all relevant considerations arising from the facts of the case at hand”, including the child’s situation and the parents’ intentions, especially where the child is an infant: at paras. 42-47. The court emphasized that “there is no legal test for habitual residence and the list of potentially relevant factors is not closed”: at para. 47. In other words, each case must be decided on its own facts and circumstances.

[32] While this case focuses specifically on whether the motion judge erred in finding that the father tacitly consented or acquiesced to the child’s habitual residence being in Ontario, this inquiry also requires an examination of the context and circumstances of the child’s move to Ottawa, including evidence of the father’s intentions based on his words and actions.

[33] Given that this is a factual inquiry, absent a legal error, this court owes deference to the motion judge’s decision, and will only interfere if she made palpable and overriding errors.

D. Analysis

[34] The father submits that the motion judge erred in finding that the child was habitually resident in Ontario. If the court agrees, he seeks various interim ancillary orders, including the return of the child to Quebec and a new parenting schedule.

[35] I disagree that the motion judge erred in concluding that the child is habitually resident in Ontario. It is therefore not necessary to address the ancillary relief sought by the father.

[36] The father makes several arguments in support of his position that the motion judge erred in finding that he tacitly consented or acquiesced to the child moving to Ontario.

[37] First, he argues that the motion judge erred in considering the father’s actions following the commencement of the application, including the interim consent parenting order. I agree that the motion judge erred in this respect, although it does not affect my view that she did not err in her overall conclusion that the father tacitly consented or acquiesced to the child’s move to Ontario.

[38] Section 22(1)(a) of the CLRA explicitly provides that the Ontario court has jurisdiction if “the child is habitually resident in Ontario at the commencement of the application for the order”. Implicitly, this means that the father’s conduct following the beginning of the application is presumptively not relevant to this determination. This makes sense given that a parent who has consented to a child’s move prior to the beginning of an application should not be able to affect the applicable analysis by withdrawing consent after the commencement of an application. Conversely, as in this case, consent to an interim parenting order should not prejudice a parent contesting jurisdiction as this could have significant consequences on that parent’s parenting time pending the determination of a jurisdiction motion.

[39] Accordingly, I agree with the father that the motion judge erred in considering the father’s conduct following the commencement of the application, and specifically his consent to the interim parenting order. [1] However, the analysis does not end here because this was not a reversible error that affects the outcome of the jurisdiction issue.

[40] The consent order was only one of several factors the motion judge relied on in reaching her conclusion that the father tacitly consented or acquiesced to the child’s habitual residence in Ontario. This factor was not foundational to her decision. In addition to the consent order, she also relied on the fact that the child had only ever lived with the mother, that she had lived with the mother in Ottawa since at least mid-May 2022, that the father had been absent for five weeks without disclosing his whereabouts or communicating with the mother, and that he had never opposed the child’s move to Ottawa until after the mother commenced the application. Regardless of the error regarding the consent order, these circumstances were sufficient to support the motion judge’s finding that the father tacitly consented or acquiesced to the child’s move to Ottawa and that the child was therefore habitually resident in Ontario.

[41] The father argues that the motion judge erred in failing to consider that he had consulted a lawyer on July 13, 2022, and that her analysis should have focused on whether he tacitly consented or acquiesced to the child moving to Ottawa between July 13 and 27, 2022. There is no merit to this position. The relevant time is from when the child was moved to Ottawa to the beginning of the application. The father never advised the mother that he consulted a lawyer nor is there any evidence in the record regarding the purpose of this consultation. Specifically, there is no evidence that the father consulted the lawyer for the purpose of contesting the child’s move to Ottawa. If instead he consulted the lawyer about parenting time, the consultation becomes irrelevant to the issue of acquiescence to the move.

[42] The father also argues that the motion judge erred in considering where the child was “principally” resident instead of where she was “habitually” resident. In making this argument, the father points to one paragraph in the decision. It is evident from the rest of the decision that the motion judge knew that the applicable test was the child’s “habitual” residence. In fact, in that paragraph, the motion judge also referred to the child’s “habitual” residence. The use of the word “principal” appears to have been at most an inadvertent misstatement and was of no consequence.

[43] The father argues that the motion judge failed to consider that the child had many ongoing connections to Quebec, including that she was registered at a daycare in Montreal in August 2022, that she had a Quebec health card and pediatrician in Montreal, and that the mother was receiving the Quebec government’s family allowance. One of the factors the father relies on most is the child’s registration in a daycare in Montreal. However, it was the father who registered the child in August 2022, and he did so after the commencement of the application. More importantly, as reviewed above, the motion judge did acknowledge these connections between the child and Quebec, but she found that they did not outweigh the other circumstances that led to her conclusion that the child’s habitual residence was Ontario. This was not an error and was consistent with the contextual and fact-specific weighing exercise required in determining the child’s habitual residence.

[44] Finally, the father suggests that the motion judge erred in failing to apply s. 22(3) of the CLRA. Specifically, he argues that the mother unlawfully took the child to Ontario without his consent, thereby wrongfully removing her, and that, in accordance with s. 22(3) of the CLRA, the child’s removal to Ontario should not affect the fact that her habitual residence is Quebec. In making this argument, the father relies on the Supreme Court of Canada’s decision in F. v. N., 2022 SCC 51. In my view, s. 22(3) of the CLRA has no application in this case. The core of the dispute between the parties on the issue of jurisdiction was whether the father tacitly consented or acquiesced to the child’s move. I see no error in the conclusion that he did. In any event, there is no evidence that the mother surreptitiously took the child to Ottawa with the intention of preventing the father from seeing her. The father was aware that the mother moved to Ottawa with the child. He visited her while she was there, and the mother returned to Montreal regularly so that the father could spend time with the child. It is evident that the father consented to the child going to Ottawa with the mother. The issue was whether he tacitly consented or acquiesced to Ottawa becoming the child’s habitual residence. Section 22(3) is irrelevant to this case.

[45] Ultimately, the issue of whether the father tacitly consented or acquiesced to the child habitually residing in Ontario is a contextual and factual inquiry. Many factors supported the motion judge’s finding, including her finding that the child had been living primarily with her mother in Ottawa since at least mid-May 2022, that the father left for five weeks without providing accurate information about his whereabouts or how he could be contacted, and that he did not object to or take the position that the child should remain in Montreal until after the mother commenced her application seeking sole custody and parental decision-making.

[46] Under the circumstances, I see no error in the motion judge’s conclusion that the court in Ontario has jurisdiction in this matter. Notably, the finding of jurisdiction does not determine the parenting issues in this case. It is simply a determination that the court in Ontario can decide the parenting issues between the parties. Issues regarding parenting time and where the child will reside will ultimately be decided based on the best interests of the child pursuant to s. 24 of the CLRA. As the majority held in F. v. N., 2022 SCC 51, at para. 62, “when courts determine whether Ontario should decline jurisdiction in favour of foreign courts and return children, they are deciding, fundamentally, which court will decide on custody, not custody itself”.

Disposition

[47] I would dismiss the appeal.

[48] The parties are to make submissions on costs. The mother’s submissions are due with 10 days of the release of this decision and the father’s reasons are due 10 days thereafter. Submissions are not to exceed two pages, excluding bills of costs.

Footnote:

[1] On the motion and on the appeal, the father also took issue with the motion judge’s reliance on the consent interim parenting order on the basis that the notice of motion was never properly served and he had never in fact consented to the order. As adverted to above, the motion judge rejected this position. It is not necessary for this court to decide whether this was an error given my conclusion that the interim parenting order is not relevant to the determination of jurisdiction. However, I note that the correspondence between the mother’s counsel and the father’s former counsel clearly demonstrate that the terms of the order were negotiated and agreed to. At most, there may have been an error by the mother’s counsel in failing to serve the formal notice of motion on the father’s counsel.

Released: February 21, 2024 “K.M.v.R.” “L. Favreau J.A.” “I agree. K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.”