Court File and Parties

Court File No.: Toronto D55674/11 Date: 2012-04-04 Ontario Court of Justice

Between: Jeffrey Pearson, Applicant

— And —

Christina Whittingham, Respondent

Before: Justice Ellen B. Murray

Heard on: March 27, 2012

Reasons for Judgment released on: April 4, 2012

Counsel:

• Barry Nussbaum, for the applicant
• Andrew Feldstein, for the respondent

MURRAY J.:

Issue

[1] The issue posed by this case is whether a parent, who has the primary care of a child with the acquiescence of the other parent for a brief period after separation, can unilaterally change the child's "habitual residence" by moving to another province and thus change the jurisdiction to determine custody and access issues concerning the child.

Facts

[2] The Applicant and the Respondent are the father and mother of the child Cyndee Pearson, born October 9, 2009. The parties lived with Cyndee in Toronto, and separated on June 23, 2011. The Applicant commenced an application in this court on December 16, 2011, requesting access to the child.

[3] The Respondent asks that his application be dismissed on the basis that this court does not have jurisdiction, arguing that the child's "habitual residence" was in Calgary at the time the application was brought. The Applicant does not agree.

[4] This issue was raised at a first case conference on March 22, 2012. Counsel agreed that a motion to have the issue decided as soon as possible was appropriate. It was agreed that each party would swear an affidavit confirming the accuracy of the facts alleged in his or her pleadings and case conference briefs for the purpose of the motion. That was the material before me when the matter returned on March 27, 2012, supplemented by a brief affidavit from the Respondent's mother, Louise Whittingham.

Statutory Framework

[5] Part III of the Children's Law Reform Act deals with orders for custody, access and guardianship of children. The purposes of that part were detailed by the Ontario Court of Appeal in Brooks v. Brooks, 163 D.L.R. (4th) 715:

"Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children."

[6] Sections 22 and 23 of the Act deal with jurisdiction. Section 23 has no application to this case; section 22 is set out below.

Jurisdiction

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.

Habitual Residence

(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

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

whichever last occurred.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of 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.

Evidence

[7] The facts relevant to the issue of jurisdiction are largely uncontested. I set those facts out below.

1. The parties began cohabiting in September 2008 in Toronto.

2. They separated on June 23, 2011, when the Applicant left the family home. Cyndee remained in the Respondent's care.

3. There is no court order or written agreement dealing with the issues of custody of or access to Cyndee.

4. The Applicant alleges that he contacted the Respondent within a week of the separation; that is denied by the Respondent. However, they both agree that on August 16, 2011, the Applicant contacted the Respondent through her Facebook account, asking to see Cyndee. The Respondent refused.

5. On October 1, 2011, the Respondent moved to Calgary with Cyndee. She did not inform the Applicant of the move. She says that she "had no obligation" to provide that information.

6. On October 5, 2011, the Applicant again contacted the Respondent through Facebook, asking to see Cyndee for her birthday.

7. On October 8, 2011, the Respondent communicated her refusal through Facebook as follows: "Now you give a s*? Maybe you should have thought of that before you decided to walk out on her."

8. Thereafter, the Respondent blocked any communication on Facebook from the Applicant.

9. The Applicant did not have a working phone number for the Respondent.

10. The Applicant attended at the Respondent's home in Toronto, and found that it was vacant.

11. The Applicant commenced an action for access on December 16, 2011.

12. Believing that the Respondent had moved with the child to the home of the maternal grandmother, Louise Whittingham, in Toronto, the Applicant had the materials served at that address by a friend. He accompanied the friend. Ms. Whittingham accepted the documents.

13. The Applicant alleges that Ms. Whittingham told him that the Respondent was just "out for the day." Ms. Whittingham denies this. However, it is agreed that she did not tell him that the Respondent and Cyndee had moved from Toronto.

14. It was only on February 2, 2012, when this case was first in court, that the Applicant learned that the Respondent had moved with the child to Calgary.

15. The Applicant now lives with his mother and sisters in Toronto.

16. The Respondent and Cyndee now live with "Steve," a man the Respondent identifies as her fiancé, in Calgary.

17. The Respondent has not commenced a proceeding for custody of the child in Alberta.

Analysis

[8] The Respondent's argument is as follows:

• The Applicant acquiesced in the child remaining with her after the separation.

• The Applicant waited almost six months after separation to commence his action for access.

• The Respondent thus has de facto custody of the child.

• Absent a court order or separation agreement providing for specified access, or prohibiting a change of a child's residence, a custodial parent is entitled to determine the place of a child's residence and to change that place.

• There was no court order or written agreement between the parties governing access between Cyndee and the Applicant. Therefore, there was no legal impediment to her moving the child from Ontario to Alberta.

• Cyndee was not habitually resident in Ontario at the time the Applicant commenced his application in December 2011. She was habitually resident with her mother in Alberta.

• The court thus has no jurisdiction to entertain the Applicant's claim.

[9] The Applicant submits that the Respondent concealed the fact of the move from him, and that while he acquiesced in the Respondent being Cyndee's primary caregiver, he never acquiesced in a move that would take Cyndee half-way across the country. He argues that, given all the circumstances, he commenced his application to obtain access to the child within a reasonable time.

[10] In my view, the Respondent's motion must fail. If her position is correct, than a parent, by adopting a non-confrontational course at separation and not immediately litigating custody or access, faces the risk that the parent who has possession of the child will unilaterally and without notice change the child's "habitual residence," and change the forum in which issues about the child must be litigated.

[11] Respondent's counsel does not argue that the rights he attributes to a de facto custodian spring up immediately after a separation. For example, he agreed that Respondent would not legally have been able to move the child to Alberta a week after separation, relying on an argument that she was the de facto custodial parent. He submits that a significant period of time—six months, or perhaps less—must elapse from the date of separation, during which time one parent acquiesces in a child remaining in the care of the other parent, before the residential parent is endowed with this authority. In support of his argument, counsel referred me to the following quote from Justice Denning cited by Justice James Turnbull in Moniz v. Deschamps, 2010 ONSC 598:

"Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less."

[12] The flaw in this argument is that the Respondent moved the child from Toronto to Calgary barely two months after the separation. She did it without notice to the Applicant, and she concealed the fact of the move from him as long as possible. Even if the other propositions in the argument of the Respondent's counsel are accepted, I do not think that it can be said that the Respondent had the authority to make this decision at that time as a de facto custodian.

[13] The Respondent referred me to no cases that would support the proposition that a parent who has had de facto care of a child for a period as short as two months post-separation has such authority. The cases submitted indicate that de facto care for a brief period will give a parent the right to change a child's habitual residence only if the other parent consents, but that where the de facto care period is much longer—for example, three years—then that may be sufficient to endow the residential parent with authority to make that decision without consent of the other parent.

[14] In Shimokawa v. Shimokawa, 2004 CarswellOnt 6123 (S. Ct.), the court was called upon to determine the habitual residence of a child who had lived her entire life in Japan, until she was brought to Ontario by her mother. The child had been in Ontario only one month when the mother announced her intention to remain there. The evidence was that the father agreed that the child could remain in the mother's care, and that the child could remain in Ontario. Based on this consent, the court found that the child's habitual residence was Ontario.

[15] In Moniz v. Deschamps, supra, the parties after separation had established a schedule under which the children spent equal time with each of them. There was no court order or written agreement. The mother then agreed that the children would reside in the father's primary care. After the children had been with him for six months, the father moved with them to Hamilton. The mother objected, and quickly raised the issue of jurisdiction of the Hamilton court. The father argued that the mother had acquiesced in him having de facto custody of the children, and that this gave him the right to change their residence and establish a new habitual residence. The court did not agree, observing that:

"The courts have to be vigilant about parents unilaterally taking children from a city or town where they have lived and relocating to another area of the province or country, far from where they have habitually resided. The mischief that such conduct can cause is clear. One parent can not unilaterally change the child's ordinary residence by physically removing the child from that place without the consent or acquiescence of the other parent."

[16] In Renaud v. Prickett, 1993 CarswellOnt 4347 (Ont. Prov. Ct), although a California court order granted custody to the mother, the father had had de facto custody of the children for three years, and the mother acquiesced in his removing the children from California. Father took the children to Ontario, where he quickly applied for custody. Mother argued that only the California court had custody. Based on Father's lengthy period of de facto custody and Mother's acquiescence in the move from California, the Ontario court found that the children were habitually resident in Ontario, and that it had jurisdiction pursuant to s. 22(1) of the Act.

[17] Based on the facts of this case, I find that Cyndee's habitual residence was Ontario at the time that the Applicant issued his application on December 16, 2011. The facts that are most important to me in making this decision are as follows:

• The child lived in Ontario with both parents until separation.

• The child had been in the Respondent's sole care for just two months when the move occurred.

• The Respondent did not advise the Applicant of her plan to move the child; in fact, she concealed the move from him.

• The Respondent did not consent to the move, explicitly or implicitly.

[18] I dismiss the Respondent's motion.

Additional Comments on Mobility Rights

[19] Although not necessary to resolve the motion, I wish to comment upon another submission made by the Respondent: that absent a court order or separation agreement providing for specified access, or prohibiting a change of a child's residence, a custodial parent is entitled to determine the place of a child's residence and to change that place, and thus to determine the jurisdiction for any future litigation concerning the child. Respondent's counsel cites two cases in support of this proposition, Wright v. Wright, 1973 CarswellOnt 148 (C.A.) and Wickham v. Wickham, 1983 CarswellOnt 313 (C.A.).

[20] I question whether these cases accurately represent the current state of the law in Canada, in the light of the decision of the Supreme Court of Canada in Gordon v. Goertz, S.C.J. 52. The court in that case rejected the use of "mechanical propositions" (such as that proposed by the Respondent) to determine issues of mobility of children:

"Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining."

[21] The court held that the best interests of the child is the only test in such cases.

[22] Gordon v. Goertz was a variation case heard under the Divorce Act. Its principles, however, have been applied to mobility cases of first instance and cases under provincial statutes.

[23] Based on the decision in Gordon v. Goertz, I do not think that it can be said that there is an "automatic rule" or a presumption applicable a priori in any category of case that a custodial parent may unilaterally change a child's residence and thus change the jurisdiction in which the arrangements for a child must be determined.

[24] Counsel should arrange a case conference before me at their earliest convenience. The parties shall participate in the conference; the Respondent may participate by teleconference if so desired, but her counsel must make prior arrangements with court staff.

Released: April 4, 2012

Signed: "Justice Ellen B. Murray"

Footnotes

[1] Baron v. Fields, 2009 O.J. 4299 (S.C.), quotes the Wickham and Wright cases, but only in restating the argument of a party. The court did not hold that those cases represent the current state of the law.

[2] See Annual Review of Family Law, 2011, James McLeod and Alfred Mamo, Carswell Legal Publications, pp.146-148.

[3] absent a provision allowing the custodial parent this authority in an agreement or order.