Court File and Parties

Court File No.: 380/08 Date: 2012-06-04 Ontario Court of Justice

Between: Jennifer Lynn Deneau (Riberdy) Applicant,

— AND —

Wilfred Eric Scott Respondent.

Endorsement

Heard: May 31, 2012

Counsel:

• Gordon M. Gervais, counsel for the applicant, Jennifer Lynn Deneau
• Wilfred Eric Scott, on his own behalf

TOBIN J.:

1. Introduction

[1] The applicant is the mother of two children and they reside in Michigan. Though previously resident in Ontario the children were permitted to reside in Michigan with their mother under an order of this court made following a trial where the issue of mobility was determined. The respondent father is entitled to access with the children under that order. Access may be exercised in Ontario. The order which allowed the move and defined access was made by Phillips J. on April 19, 2011.

[2] Both parties move to change the terms of the April 19, 2011 Order.

[3] The preliminary issue to be resolved is whether this court has the jurisdiction to make a new custody and access order in circumstances where the children's residence is now outside of Ontario.

2. Facts

2.1 The original custody and access orders

[4] Jennifer Lynn Deneau (the mother) and Wilfred Eric Scott (the father) are the parents of Emily Margaret Scott born March 3, 2006 and Eric Andrew Scott born November 9, 2007.

[5] The mother was granted custody of the two children by Order of Phillips J. dated November 3, 2008.

[6] The father was granted access to the children by Order of Phillips J. dated February 12, 2009.

2.2 The first motions to change

[7] Subsequent to these orders being made both the mother and the father brought a motion to change the provisions of the custody order and the access order. The father sought a joint custody order and the mother sought permission to relocate the residence of the children to Michigan. On August 17, 2010 Phillips J. granted a temporary order which allowed the mother to move the "ordinary place of residence" of the children to Warren, Michigan.

[8] The motions to change were finally resolved, after a six day trial, by the April 19, 2011 Order. Paragraph 4 of the Order provides:

"The court is satisfied that the best interest of the children would be served by allowing the applicant, Jennifer Lynn Riberdy to relocate to Warren, Michigan."

2.3 The second motions to change

[9] The mother now brings a motion to change the April 19, 2011 Order. She wants the access terms changed. This motion to change was issued on February 12, 2012 in the Ontario Court of Justice at Windsor.

[10] The matter was first before the court on March 30, 2012. At that time the father was granted additional time to file his response to the motion to change and on an interim basis was directed to provide medication to one of the children while that child had access with the father.

[11] The father filed his response to the mother's motion to change and within it he too sought an order changing the April 19, 2011 Order. He seeks custody or joint custody of the children.

[12] When the matter was next before the court on May 10, 2012 I raised with the parties whether the Ontario Court of Justice could assume jurisdiction as the children now reside in Michigan. At that time neither party was represented by counsel. The matter was adjourned to May 31, 2012 so they could consider the issue and return for argument of the jurisdiction issue.

[13] The mother, now represented by Counsel, filed an Affidavit sworn May 28, 2012. This affidavit sets forth that the two children have resided in Warren, Michigan since August, 2010. The children live with the mother, her husband and step siblings. The children are well integrated in their community. They reside, attend school, have friends, have their medical and dental needs met and are involved in extra-curricular activities in Warren, Michigan.

3. Position of the parties

[14] The mother now argues that the Ontario Court of Justice does not have jurisdiction in this matter because the children were not habitually resident or physically present in Ontario at the commencement of the motion to change.

[15] The father's position is that the court should assume jurisdiction because that is what the best interests of the children require. Further, he argues, that because he was ordered to give a child medication during access visits the court has already assumed jurisdiction and therefore it would be wrong for the court not to continue with the case.

4. Legal considerations

[16] The determination of the issue of jurisdiction requires a consideration of Sections 22 and 23 of the Children's Law Reform Act (the Act) which are formulated as follows:

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. R.S.O. 1990, c. C.12, s. 22 (1).

(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. R.S.O. 1990, c. C.12, s. 22 (2).

(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. R.S.O. 1990, c. C.12, s. 22 (3).

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario. R.S.O. 1990, c. C.12, s. 23.

[17] The Act defines when an Ontario court has jurisdiction to adjudicate custody or access proceedings. Since this jurisdiction requires subject matter jurisdiction, not merely in personam jurisdiction, parties cannot confer jurisdiction by attornment: see James G. McLeod and Alfred A. Mamo, Annual Review of Family Law - 2011 (Toronto: Carswell, a division of Thomson Reuters Canada Limited, 2012) at 35.

[18] In Dovigi v. Razi (2012) ONCA 361 (Ont. C.A.) the court stated that the Act contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child as follows:

[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.

[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.

5. Analysis

[19] Pursuant to clause 22(2)(b) of the Act the children are habitually resident in Michigan. The parents live separate and apart. The children live with the mother under a court order. The father acknowledged this in his submissions. Consequently this court may not "exercise its jurisdiction to make an order for custody or access to a child" under clause 22(1)(a) of the Act.

[20] This court is not able to exercise jurisdiction under clause 22(1)(b) of the Act. In order for the court to exercise jurisdiction under clause 22(1)(b) all six of the criteria set out in that clause must be satisfied: see Obregon v. Obregon (1984), 39 R.F.L. (2d) 164 (U.F.C.) and Turner v. Viau (2002), 26 R.F.L. (5th) 440 para. 9. Here there is no evidence that the children were physically present in Ontario at the commencement of the motion to change.

[21] Section 23 does not apply in this case as the children are not physically present in Ontario. Even if it could be said that the children are physically present in Ontario from time to time while the father exercises access, there is no evidence that the children would, on the balance of probabilities, suffer serious harm if they remained in the custody of their mother or were permitted to return to Michigan.

[22] With respect to the fourth way a court in Ontario can exercise jurisdiction, the Ontario Court of Justice has no parens patriae jurisdiction.

[23] None of the four ways contemplated in the Act in which an Ontario court can exercise its jurisdiction to make an order for custody apply in this case.

[24] The father's request that the issue of jurisdiction be determined on the basis of best interest is not open to this court.

[25] That an interim order was made requiring the father to give medication to one of the children during access cannot confer jurisdiction upon this court.

6. Conclusion

[26] The basis upon which the Ontario Court of Justice can exercise its jurisdiction to make or change an order for custody has not been made out. Consequently the motions to change the order of Phillips J. dated April 19, 2011 are dismissed for want of jurisdiction.

[27] There shall be no order for costs.

Released: June 4, 2012

Barry Tobin Justice