Court File and Parties

Court File No.: Parry Sound FO 2006-08-0003 Date: 2012-05-07 Ontario Court of Justice

Between: Jade Baker, Applicant

— And —

James Eric Steengaard, Respondent

Before: Justice L.J. Klein

Heard on: May 1, 2012

Reasons for Judgment released on: May 7, 2012

Counsel:

• D. A. Thomson, for the applicant
• James Steengaard on his own behalf

KLEIN J.:

INTRODUCTION

[1] A motion to change a final order was brought by the Respondent Father, James Eric Steengaard (the "father") on March 23, 2012 to change custody of his son, Skylar William James Baker, born […], 2003 (the "child") from Applicant mother, Jade Baker (the "mother") and for an order for child support to follow that change of custody.

[2] The mother was originally charged in Ontario with child abduction and on March 20, 2012 she was arrested in Nova Scotia where she had been residing with the child since late 2006. At the date of the hearing of this matter the mother remained in custody in Ontario.

[3] The father brought a motion on an emergency basis seeking temporary custody of the child pursuant to R. 14 (12) of the Family Law Rules to proceed without notice to the mother who was at that time at the pleasure of Her Majesty in Ontario. This motion was denied by me as it did not meet the urgent/emergent test for proceeding without notice to the mother. I did permit the father to continue with his application if he first served his material upon the mother who was conveniently available through the Ministry of Correctional Services and Public Safety.

[4] The father had been in contact with officials from Nova Scotia Child and Family Services who advised him that the mother had placed the child together with two half-siblings with a family friend in Digby, Nova Scotia when she was arrested.

[5] The father's plan as set out in his motion materials was to obtain a court order in Ontario granting him temporary custody of the child, then to fly to Nova Scotia and return with the child to Ontario to live with him, his wife and their two children while seeking a final order for custody of the child. As part of that plan the father indicated that the father of another of the mother's three children, Ken Hopkins of Huntsville, Ontario, was intent upon obtaining an order granting him temporary custody of his child, namely Logan Baker-Hopkins and that the two fathers would facilitate access between Skylar and Logan when each was returned to Ontario. No mention was made as to what arrangements, if any, would be made for contact between Logan and Skylar and their other half-sibling Bailey Rose Amberly Baker, born […], 2007 whose biological father resides in Nova Scotia.

[6] The father asserted that over the past two years he had contact with the mother advising her of the Criminal Code warrant and of his desire to have access with Skylar.

[7] The mother's reported response was to reiterate her demands for child support and to advise that she and the child would never return to Ontario. Somewhat ironically, throughout much of the period of time that the mother was living with Skylar in Nova Scotia the father continued to make child support payments as required under the order of March 20, 2006 directly to the Family Responsibility Office (FRO) in Ontario who were unable to forward the same to the mother as they no longer had a current address for her in Nova Scotia. As a result, there are child support monies being held by FRO for the benefit of Skylar.

[8] The mother has appeared through counsel and has been present on all occasions. Counsel indicated that such attendances were a conditional attornment to this court's jurisdiction in the hopes of resolving matters on consent of the parties. The mother and her counsel were clear throughout that if resolution was not possible that they reserved their right to bring a motion for a declaration by this court that the child's ordinary residence was in the Province of Nova Scotia and that as a result the father's motion to change should be dismissed as this court would have no jurisdiction over this matter.

[9] These matters were not capable of being resolved and the mother brought her motion dated April 12, 2012 to this court on April 16, 2012. The argument on the mother's motion was adjourned for hearing before me on May 1, 2012 whereupon I heard argument on this motion ultimately reserving decision on the same.

BACKGROUND

[10] The mother and father began living together in June 2002. Their son, Skylar, was born on […], 2002. Within a few weeks thereafter the parties separated and have remained so.

[11] On March 20, 2006 Justice G.P. Rodgers of this court made a final order in the absence of the father granting the mother custody of the child, Skylar, together with child support in the amount of $275.00 per month commencing April 1, 2006 and continuing on the first day of each month thereafter based on Child Support Guidelines and the father's annual income of $31,200.00.

[12] This matter was returned before me on July 31, 2006 when the father was in attendance and I made a further final order granting the father reasonable access to the child upon reasonable notice. Both orders were in effect throughout the period to the date of this hearing.

[13] The mother is 25 years old and resides now in Digby, Nova Scotia. She had two children in addition to the child Skylar both of whom have different fathers one being the aforementioned Ken Hopkins of Huntsville, Ontario which is a short distance from Katrine, Ontario where the father currently resides. The father is 32 years old and resides with his wife, Jennifer Steengaard and their two children in a four bedroom home in Katrine. The child has lived with the mother since his birth until their recent separation due to her incarceration.

[14] With the knowledge of both the father and Ken Hopkins, the mother went to Nova Scotia with the children in the month of January 2007 to assist her family after her younger brother (by eight years), E., was removed from his mother's home by child welfare authorities as a result of allegations of abuse. She remained there for a short period until her mother was released from custody and then returned to Ontario.

[15] Within a short period of time the mother returned to Nova Scotia when E. complained of being mistreated in his foster home placement. It was her intention to have E. placed in her care as she believed she would be in Nova Scotia for a couple of weeks. Upon arriving in Nova Scotia she was informed that she would have to remain in the province for six months so that Social Services could ensure that she would be an appropriate care giver.

[16] She has remained in the Province of Nova Scotia ever since and has had fairly consistent contact with Ken Hopkins while having very little contact with the father and members of his family. Ken Hopkins has, with some difficulty, been able to exercise assess to his son, Logan as well as with Skylar who lived with Mr. Hopkins and the mother for about three years leading up to 2006. Mr. Hopkins enjoyed two in-person access visits with both "boys" in Nova Scotia with the last one occurring in 2008. Those visits were 7 days and 4 days long respectively.

[17] When the mother returned to live permanently in Nova Scotia in the early part of 2007, the father lost track of her and the child having neither a telephone number nor an address. With no address to serve the mother with court documents, the father turned to the criminal justice system in 2007 when charges of child abduction were laid in the District of Parry Sound. Originally, the warrant's return radius was limited to the Province of Ontario but was extended to a Canada-wide warrant in January 2012. With the execution of that warrant in March 2012 in Nova Scotia and the return of the mother to Parry Sound the issue of a change to the final order of custody and access came before this court in proceedings that ran parallel to the criminal proceedings.

[18] This court was advised during the proceedings that the courts in the Province of Nova Scotia had before them actions involving at least the child's two half-siblings, Logan and Bailey, if not the child, Skylar. All parties appeared to be aware of those proceedings. The father has not participated in any court proceedings in Nova Scotia nor has he attorned to Nova Scotia's jurisdiction, if any has been assumed.

DIFFERENT VERSIONS OF EVENTS

The Mother's Version of Events

[19] The mother and father vary greatly in their presentation of the facts upon which they rely in this action as they relate to their different intentions for their child.

[20] The mother alleged that the father showed no interest in having a relationship with Skylar both before her departure for Nova Scotia in early 2007 and after that time. He did not seem interested in Skylar's health issues and did not attend at Sick Kid's Hospital in Toronto. She further alleged that she provided contact information to Angie Steengaard with the news that Skylar was interested in communicating with his father. In the facebook exchanges with Angie, the mother provided an address in Ashmore, Nova Scotia but no telephone number on April 21, 2010. She further advised that she had plans to travel to Ontario that summer to visit family and also go to court to deal with the ­bs. Access for the father could occur then but only with conditions to be imposed by the mother such as to be held only at Angie's house and not in the presence of the father's spouse, Jennifer. She did provide some update re Skylar's kidney problems and promised to provide a home telephone number.

[21] The next contact between the mother and Angie was on January 29, 2012. The mother admitted that it was a long time between communications and provided an update regarding Skylar who was now 8 years old. He was "asking about his father more and more everyday and his family." She advised that she "would like Skylar to have a relationship with his dad even if it's only over the phone for now" and she provided a telephone number. The message concluded with the mother advising that "[Skylar's] excited to possibly see u [sic] all this summer."

[22] The mother's position is that she recognizes that the move from Ontario to Nova Scotia has made access more difficult for the father but that her move was not designed to frustrate access and that therefore she has not prevented reasonable access upon reasonable notice as set out in my order of July 31, 2006. She alleges that the father has not presented proposals as to what should constitute reasonable access despite having her contact information such as facebook account and her telephone number. The father, in her view, could have received the same information provided to Ken Hopkins by contacting Ken Hopkins. She further argued that the father chose to use the criminal courts to separate her from the child. His attitude in her view "shows little regard for how Skylar might react to being separated from his mother, brother and sister."

[23] Her final position was that as proceedings had been commenced in Nova Scotia the best interests of Skylar ought to be determined by that court.

The Father's Version of Events

[24] The father's material alleges that the mother duped both he and Ken Hopkins when she returned to Nova Scotia in early 2007. Neither he nor Hopkins consented to her remaining there with their sons as it amounted to a denial of their rights to access to their children on a reasonable basis. The mother did not provide him with a home address to allow Skylar to receive card or gifts or a telephone number to allow for regular talks between he and his son.

[25] The father did not bring this matter back before this court at an early date because he was of the belief that he had to first be in a position to personally serve the mother with his motion material. On that basis, sometime in 2007 he attended before the OPP and made a complaint of child abduction on the part of the mother. He then relied upon the criminal justice system to bring the mother before the courts to require her to provide him with access to their son, Skylar. That process was originally frustrated when the warrant was restricted to the Province of Ontario and only in early 2012 did it become Canada-wide.

[26] Angie Steengaard did have contact with the mother personally with the knowledge and consent of the father. From the material provided by the mother this contact via facebook occurred in April 2010 where the mother provided an address in Ashmore, Nova Scotia but not a telephone number to permit talks between the father and Skylar. At that same time the message was that the mother would return to Ontario (presumably with Skylar) with the intention to visit family and also to "go to court and deal with the bs". This was a deadline that was passed without any appearance by the mother or Skylar.

[27] By February 14, 2012 the promises of contact between father and son were no longer being made. The mother's response to the father's wife Jennifer was profanity-laden and threatening in tone. It clearly indicated that the mother was not interested in fostering a relationship between Skylar and his father.

[28] The father's version of what information he had post hearing and what access he enjoyed prior to the mother leaving was corroborated by Ken Hopkins. Mr. Hopkins was clear that he and the father first became aware of the mother's plan to remain in Nova Scotia in the early part of 2007 only after she was living there with their children. Both he and the father objected at the time and shortly thereafter the father went to the OPP to make the allegations that led to the criminal charges. Mr. Hopkins further contradicted the mother's allegation that the father had refused a ride from him to travel to Nova Scotia to visit their sons. No such offer was ever made by him to the father. On each of the two occasions that he visited the boys in Nova Scotia, Skylar was most anxious to hear about his father which Mr. Hopkins took as a clear sign that Skylar very much wanted a relationship with his father. Further Mr. Hopkins was very sure that the mother would never allow a relationship to develop between the father and Skylar.

[29] The father's position was that the only way that he could be assured of having a relationship with his son Skylar would be if temporary custody of Skylar were granted to him. He had no faith that the mother would not frustrate his efforts and those of Skylar at every turn by disappearing into the bosom of her friends and family or by imposing such terms and conditions on his access as to make it impossible for him to comply. Further he pointed out that as the working father of a household of four with relatively modest income and very limited vacation time the likelihood of his being able to see Skylar with any frequency was not very high. He was not convinced that even were the child support monies currently being held by FRO for the benefit of Skylar made available to him he was not sure that those funds would permit even annual access visits. He is convinced that he could not attend in Nova Scotia to press for access to Skylar and that for that reason alone the case should remain in this court in Ontario.

RELEVANT LEGISLATION AND STATUTORY PATHWAY

[30] With much thanks to my brother Justice S.B. Sherr in Kanafani v. Abdalla and Hashen, 2010 ONCJ 185 I will follow his recitation of the statutory underpinnings for my decision as follows:

[31] The following sections of the Children's Law Reform Act are applicable to this case:

22. Jurisdiction. — (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 probabilities, it is appropriate for jurisdiction to be exercised in Ontario.

(2) Habitual residence. — 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.

(3) Abduction. — 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.

25. Declining jurisdiction. — A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

40. Interim powers of court. — Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[32] The first determination for the court is whether the child was habitually resident in Ontario at the commencement of the proceedings as per section 22(1)(c) of the Act. If so, this court will have jurisdiction to hear the father's motion. If not, the court may still find jurisdiction to hear the matter pursuant to s. 22(1)(b) of the Act. To do so all six criteria in sub-clauses (i) to (vi) must exist. In our case the child was not resident in Ontario when the motion for change was started and thus this court does not have the jurisdiction to hear this matter.

[33] The mother argues that Nova Scotia is Skylar's habitual residence as he has resided there with her since her move there in 2007 with consent, implied consent or acquiescence of the father (s.22(2)(b) of the Act).

[34] The father argues that the child was improperly withheld from him, without his consent, pursuant to subsection 22(3) of the Act. Such a finding by this court would result in this court having jurisdiction to hear this case.

ANALYSIS OF THE EVIDENCE

The Father's Evidence

[35] The father's belief that the only avenue open to him in regaining his rights to have access with his son Skylar lay through the criminal courts was unfortunate in so many ways. Firstly, it resulted in a considerable delay in bringing this matter back before the courts in Ontario. His reliance on an arrest warrant being executed in Nova Scotia to compel the mother to answer to a criminal charge could only be intended to separate her from the child (and his two half-siblings) thus leaving a vacuum in child care arrangements for all three children...a situation that could hardly be described as being in their best interests given the length of time that had elapsed since last they had seen their fathers. In Skylar's case a period of five years, well over one-half his life. Secondly, the fact that a warrant for the arrest of the mother was outstanding being clearly known by her made her "go underground" and caused her to refuse to return to Ontario or even to permit access between the father and the child thus further frustrating his original intent which was to visit with his child. It is obvious from the evidence provided by the mother that she knew of or strongly suspected that a warrant of arrest was outstanding in Ontario. Her facebook exchanges with Angie Steengaard on April 21, 2010 wherein she provided an address in Ashmore, Nova Scotia but no telephone number and the words: "I plan on coming to ontario (sic) this summer to visit family and also to go to court to dealw (sic) ith (sic) the bs." In a facebook exchange with Ken Hopkins on October 3, 2011 wherein they were bemoaning the fact that he was in Ontario and she was in Nova Scotia thus making it difficult for him to take a greater role in being a father to his son Logan, the mother wrote: "I know if I didn't have the fucking problems their (sic) truthfully Id (sic) move back in a heart beat."

[36] The father was clearly without resources, financial, legal and otherwise which caused him to rely on the criminal justice system...a blunt instrument in the delicate ballet that forms so much of family law matters. It was unfortunate that the father chose this as his only route as it foreclosed all other options in his mind. Even the facebook interactions between Jennifer and Angie Steengaard and the mother could have been used to gain access, to provide an avenue for service of family court documents and other similar ways to advance this matter in this court without delay and without the dramatic gesture of the arrest and return of the mother to this jurisdiction.

The Mother's Evidence

[37] The mother's reaction to the certain knowledge that a warrant existed for her arrest of child abduction charges speaks volumes as to her respect for and adherence to valid court orders. In short, she was not prepared to answer to any court process unless dragged here kicking and screaming. She consciously exposed herself and, most unfortunately, her children to the blunt instrument of the criminal arrest warrant. She compounded that by having moved out of the jurisdiction without prior court approval thus potentially flying in the face of court orders. She refused to return to the jurisdiction despite ample proof that she knew that that was what was required of her thus ensuring that she would have a very difficult task of making bail. She did all this with three children under the age of 9 under her sole care given that she had actively discouraged their father's from being significantly involved in their lives.

[38] The mother's explanation for her behaviour in the face of the court order providing access to the father of Skylar borders on the laughable. I presided at the hearing of the motion that led to the making of the access order on July 31, 2006 and did so in the face of her active resistance to the making of it. She wanted nothing to do with the father and wished him out of Skylar's life, and promptly went off to make it so despite his best efforts in the summer and fall of 2006 as attested to by Ken Hopkins in his affidavit of May 1, 2012. She did not forswear the receipt of child support from the father during the early years of her disappearance into Nova Scotia. It was only after she became aware of the existence of the warrant that she refused to provide a home address to the fathers and to FRO. The written record is littered with her successful attempts to not provide a home address.

Findings of Fact

[39] I make the following findings of fact on the evidence of the parties:

(a) In January 2007 the mother left the Province of Ontario to relocate with the child to the Province of Nova Scotia without the consent or acquiescence of the father.

(b) The father on discovering that the mother had no intention of returning with the child to Ontario thus depriving him of access to the child took the unusual step of making a complaint to the OPP and not in proceeding with a parallel action in the court.

(c) The mother took no steps to ensure that the father had access of any kind including telephone or skype access to the child despite the child's understandable curiosity as to his father.

(d) The child from all accounts had a genuine desire to get to know his father.

(e) The child has lived his whole life with his mother and has been cared for by no other person during his over 8 years on this earth.

(f) The child lives with his two half-siblings, brother Logan and sister Bailey.

(g) Through no fault of the father, the child has little or no relationship with him at present.

(h) The child is in full-time attendance at school in Nova Scotia.

(i) The child has no connection with the District of Parry Sound other than that his biological father resides here.

Analysis

[40] The court finds that the child's habitual residence is in Nova Scotia as defined in section 22(2)(d) of the Act. The father's choice of proceeding in the criminal courts rather than in the family courts caused unreasonable delay and amounted to acquiescence on his part and the establishment of a status quo situation in Nova Scotia.

[41] By deciding thusly I am acutely aware that I might be seen to be rewarding bad or inappropriate behaviour on the part of the mother wherein she:

(a) Failed to seek court approval to change the province of residence in the face of the father's order granting him reasonable access;

(b) Failed to return to Ontario when first she became aware of the existence of the warrant for her arrest thus forestalling the obvious; and

(c) Failed to provide even a modicum of access to the father.

Such behaviour on her part is outrageous in so many ways. Perhaps the time spent at the pleasure of her majesty will be all that is required to bring to her attention the absolute necessity to follow the letter and the spirit of orders of all courts. Her behaviour was self-indulgent in the extreme.

[42] Access to one's child is a part of the bundle of rights and responsibilities that attach to the determination of what is in a child's best interest when dealing with their care and upbringing. Access to a parent is for the benefit of the child in order that the child may acquire knowledge of who their non-custodial parent is and come to enjoy the strengths, the knowledge and the affection that that person can bring to the child's life. Access to Skylar by his father will be complicated by the lack of resources within the family whether financial or otherwise and the sheer distances that are involved. The father did obtain a telephone number to contact Skylar at our last hearing date and it is hoped that that contact will open the doors for a fuller and lasting father-son relationship.

Declining Jurisdiction

[43] Even if I had determined that Ontario had jurisdiction to hear this case, I would have declined to exercise it under section 25 of the Act.

[44] The Court when determining whether to decline its jurisdiction should look to the purposes of the Act specifically 19(b):

(b) to recognize that the concurrent exercise of jurisdiction by the judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has closer connection;

[45] This analysis under section 25 is similar to a balance of convenience test in section 22(1)(b)(vi) of the Act.

[46] I would therefore decline the exercise of jurisdiction in this matter for the following reasons:

(a) The child resides in the Province of Nova Scotia

(b) The child has lived in that province for 5 of his 8 years.

(c) The child has a closer connection to Nova Scotia than Ontario. Digby, Nova Scotia is the only home the child knows.

(d) The child is in school in Nova Scotia and is under the watchful eye of Social Services there.

(e) The child now has his kidney problem being monitored by the medical community in Nova Scotia.

(f) The child no longer has a real and substantial connection with Ontario.

(g) The child resides in a blended family with two half-siblings from two fathers other than his own including Ken Hopkins with whom he lived for almost three years.

(h) The best evidence available about the best interests of the child is available in Nova Scotia and not Ontario.

(i) This matter will be before the court in Nova Scotia as are the matters involving his half-siblings Logan and Bailey and involving many of the same issues that are extant in this case.

(j) It is best to avoid a multiplicity of proceedings and the potential for conflicting results when dealing with matters such as this especially in light of the basic principles that are to be considered such as the best interests of the child.

CONCLUSION

[47] The mother's motion to dismiss the father's motion to change the custody of the child is hereby granted due to lack of jurisdiction of this court.

[48] Given the unique circumstances under which this matter has come before this court and bearing in mind the comments that I made in relation to the mother's actions in causing this matter to be brought before this court I am ordering that there be no order as to costs.

Released: May 7, 2012

Signed: Justice L.J. Klein