Court File and Parties

Ontario Court of Justice

Date: 2016-03-04

Court File No.: Belleville, Ontario 288/15

Between:

K.A.M. Applicant

— AND —

A.M.J. Respondent

Before: Justice Wendy Malcolm

Heard on: February 26, 2016

Reasons for Decision released on: March 4, 2016

Counsel:

• William D. Watson — counsel for the applicant(s)
• Ellen Burke and Peter Girard — counsel for the respondent(s)

Decision

Malcolm, J.:

Issues

[1] The issues are jurisdiction of this Court to determine the custody of the Child A.J. and a review of the November 3, 2015 temporary order made without notice to the father.

Parties

[2] The Applicant mother is 37 years old. She lives in Maynooth, Ontario. She is unemployed. The Respondent father is 48 years of age and lives in Nova Scotia and works in Alberta. A.J. is their only child. The parties lived together from 2007 and separated in the fall of 2015.

Separation of the Parties

[3] The last ordinary residence of A.J. was Nova Scotia where she lived with her parents and the paternal grandparents until the mother took her on September 8, 2015, without notice to the father, to Ontario for what she described as a vacation for one month. On October 8, 2015, the mother's scheduled day to return, she contacted the father indicating she would not be returning to Nova Scotia.

Legal Proceedings

[4] An Application was brought on October 9, 2015 by the mother in the Ontario Court of Justice in Belleville for custody of and child support for the child, A.J. The mother requested that the matter be heard in Bancroft Court, a satellite Court 90 minutes North of Belleville, close to where she lives with her parents.

[5] The mother also brought an urgent motion without notice on October 9, 2015 for temporary custody which was heard in Chambers in Belleville on October 13, 2015. The motion was not granted but instead adjourned for service on the father or further evidence as urgency was not established.

[6] Another affidavit, sworn October 16, 2015 was submitted by the mother alleging that the father was coming to Ontario and she believed he would try to take the child with him to Alberta or British Columbia. The motion was considered on November 3, 2015 in Chambers in Belleville. An order without notice was granted that A.J. remain in the primary care of her mother and the father not remove the child from Ontario. The motion was adjourned to November 19, 2015 in Bancroft Court to ensure service on the father and to receive an updated affidavit from the mother.

[7] The Respondent father was served on November 7, 2015 in Nova Scotia with the order and the mother's Application, Motion and Affidavits of October 8, 2015 and October 16, 2015.

[8] On November 19, 2015, at the First Appearance of the Application in Bancroft, counsel for the mother advised the court that the father was obtaining counsel and access was being arranged. The motion was adjourned to December 17, 2015. The Order of November 3, 2015 was not reviewed.

[9] The mother brought a motion returnable on December 17, 2015 for child support with a supporting affidavit sworn November 20, 2015. The affidavit does not provide the update required by the Court as to the father's alleged intention or attempts to remove the child from Ontario.

[10] In the interim the father served the mother on November 25, 2015 with an emergency motion to be heard in Nova Scotia on December 3, 2015. That motion proceeded on December 3, 2015 unopposed by the mother. The mother filed no material and did not contact the Court or the father's Nova Scotia counsel. An Order was made that Nova Scotia is the appropriate jurisdiction to hear the matters concerning the child and the father was granted sole custody. A review date was set for February 5, 2016. The full written decision was released by the Honourable Judge Daley on January 7, 2016. A.J. v K.M., 2016 NSFC

[11] On December 17, 2015 in Bancroft Court the mother's motions and application were adjourned to February 25, 2016 to argue the issue of jurisdiction. The father asked that this court decline jurisdiction and allow the matter to continue in the Family Court of Nova Scotia in Pictou.

[12] By December 17, 2015 there were two competing Orders granted by two Courts involving the same child.

Judicial Communication

[13] On December 23, 2015 there was a formal request by the Nova Scotia Family Court for inter-jurisdictional judicial contact between this Court and the Nova Scotia Family Court pursuant to the Protocol established by the Canadian Judicial Council.

[14] There has been contact between the two Courts, once to establish the parameters of communication and then twice in January and February 2016 with the involvement of the parties and their counsel from Ontario and Nova Scotia. The two Courts exchanged their filings from each parent. Offers to facilitate hearings by video and telephone links for both counsel and witnesses were discussed and agreed upon. The conferences were conducted using a combination of video and telephone communication.

[15] Both Courts agreed that the temporary Orders granted by them could be reviewed after filing of evidence from the other parent and counsel from the parent's province could appear on their behalf by video link avoiding the expense of having two counsel.

[16] The parents' counsel were also offered an opportunity to have informal settlement discussions with a Judge of the Ontario Court or the Family Court in Nova Scotia. The parties and their counsel had an early settlement conference with a Justice from the Ontario Court of Justice and although they resolved some issues, the issue of which province should assume jurisdiction was left to be determined.

[17] Despite several attempts to assist the parents and their counsel to resolve the issue of jurisdiction amongst themselves, it was agreed that this Court would have a contested hearing on jurisdiction on February 25, 2016 in Bancroft Ontario. Because of inclement weather the hearing was adjourned to Belleville for February 26, 2016. Counsel for the mother appeared by telephone, as did Nova Scotia counsel for the mother, Ms. Burke. Mr. Girard, Ontario counsel for the father appeared in person.

Evidence at Hearing

[18] The evidence considered at this hearing is: the mother's application, dated October 8, 2015; her parenting affidavit; three affidavits dated October 8th, 2015, October 16, 2015 and February 23, 2016. Also considered was the father's affidavit of February 2, 2016, sworn in Nova Scotia in response to the mother's October affidavits.

[19] The father's affidavit, parenting statement and notice of motion of November 23, 2015 in support of his application in Nova Scotia were also filed with this court.

[20] A factum from both the mother and the father was filed and considered.

[21] Prior to the hearing, an oral motion was made by the father's counsel for me to strike part or all of paragraphs 3, 11, 14, 16, 18, 19, 20, 22, 23, 25, 26, 27, 43 and exhibits J and N of the mother's Affidavits sworn the 23rd day of February 2016.

[22] There was no time for the father to file an affidavit in response or bring a formal motion concerning the affidavit of the mother served on the afternoon of February 23, 2016. I allowed the oral motion because of the delay in determining the important issue of jurisdiction.

[23] The oral motion was made pursuant to Rule 1(8.2) of the Family Law Rules (O. Reg. 114/99) which provides that "the court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process."

[24] The motion was also pursuant to Rule 14(18) which states that affidavits as much as possible shall contain only personal knowledge.

[25] I did strike the offending portions of the mother's affidavit and exhibits after submissions and did not consider them in my decision.

[26] The mother filed copies of her calendars as evidence as to how much time the father had spent drinking. However there was no evidentiary basis for the admission of the calendar or any way to determine whether they accurately reflected the information contained in them. There were concerns about the fairness of the information and an intention to mislead the court. For example the mother indicated the father was drinking at friend's home from 1:30 p.m. to 7:30 p.m. and she went to pick him up. Therefore, she was not present when he was allegedly drinking. Even if the calendars were accepted as evidence for the hearing they are not relevant to the issue of jurisdiction. I struck the calendars from the mother's affidavit.

[27] The mother attached a photo of an undated, not identified drug test tendered to prove the father used drugs. I found it would be inherently unreliable and struck it from the mother's affidavit. There was no way to confirm the test was taken by the father or what the result revealed. Further it was extremely prejudicial, inflammatory and not relevant to the issue of jurisdiction.

[28] Further it was submitted that some statements made by the mother were not in her personal knowledge such as numerous statements as to what the father was thinking or aware of. The mother stated what she assumed the Honourable Judge Daley relied upon in making his decision on December 3, 2015. These statements were deleted from the mother's affidavit.

Family History

[29] The mother and father started living together in approximately 2007. Their child was born on […], 2012 in Calgary. The parents lived in Calgary until 2014. The mother had some employment in Alberta but the father was the primary wage earner for the family.

[30] There is some dispute as to when they moved to Nova Scotia but I find they intended to move to Nova Scotia in the summer and by the fall of 2014 the child's ordinary residence was in Nova Scotia.

[31] The father continued to work in Calgary on a rotation of 14 days on and seven days off. The mother and A.J. lived in Nova Scotia with the paternal grandparents. When the father was not working he returned to Nova Scotia every two weeks. The couple maintained some province of Alberta identification such as health cards and drivers licenses. Further the father owned a condominium in Calgary which he rented from September 2014. I find this is not relevant to the issue of jurisdiction.

[32] The father was unemployed from approximately January to August of 2015 and remained in Nova Scotia with the mother and child in the home of the paternal grandparents when they were not visiting other family. The mother was unemployed while in Nova Scotia.

[33] The mother claims that the father was controlling and abusive towards her and that he did not allow her to visit family. The father indicates that during the eight years the parties lived together she visited her family or was visited by them fifteen times. The maternal and paternal grandparents know each other as the grandfathers were chaplains together in the Canadian Armed Forces. The maternal grandparents have known each other for 40 years. A maternal uncle lives in New Brunswick. The mother claims that she has no support in Nova Scotia. On the contradictory evidence before me I am not satisfied that the mother was prevented from seeing her family or abused or controlled by the father. It is clear that she was unhappy in the relationship.

[34] In approximately August 2015 the mother started seeing a counselor from Family Services of Eastern Nova Scotia. She has attached the records of the counsellor to her affidavit of February 23, 2016. The notes are not properly identified by the person who made them and notice to admit has not been given. These documents were available five months ago. Notwithstanding, I will refer to the notes of the counsellor as they are relevant to the issues.

[35] On September 8, 2015 the mother told the father she was taking their daughter to the YMCA. Instead, the mother drove herself and the child to her parents in Maynooth Ontario. She sent an e-mail to the father enroute. She said she was taking a vacation in Maynooth and would return to Nova Scotia on October 8, 2015. The mother did not return. Instead, she commenced this Application. In the family history section of her Application she indicates that she separated from the father on September 8, 2015, the day she left Nova Scotia. However, I find the final separation was on October 8, 2015.

[36] In the counselling notes filed from August 10, 2015, the counsellor writes that the move to Nova Scotia from Calgary allowed her to be closer to her family who are in Ontario. She describes the father as losing his job and this led to significant financial concerns. The mother told the counsellor that she may start the counseling by herself, but is hoping her partner may join her at a later time if that would be helpful. The mother described some behavioural and controlling issues of the husband, but there was no discussion of any domestic violence. She told the counsellor that she was the victim of verbal and emotional abuse with another partner when she was very young.

[37] In the counseling records dated September 8, 2015, the mother told her counselor she was returning to Nova Scotia after her vacation in Ontario. The counselor noted that the mother was aware she may have to live at Tearmann House upon her return. It is only during her counseling session of November 3, 2015 that she tells her counselor she does not intend on returning to Nova Scotia. She indicates to her counselor that she has an appointment with a counselor in Ontario in December 2015.

[38] The father believed the mother was taking a vacation in Ontario in September and October and was surprised when she did not return on October 8, 2015. He was in Nova Scotia on October 8, 2015. He did not know mother intended on separating from him until that time. He tried to communicate with her to discuss the issue of the separation but the mother would not respond. The father asked for but was not allowed Facetime access with his daughter. He was sent videotapes or had phone calls.

Order without Notice dated November 3, 2015

[39] In support of her motion brought October 9th, 2015 and heard on October 13, 2015 the mother stated that the father was residing in Calgary and was exercising phone access with the child. I found there was no evidence of urgency pursuant to Rule 14(12). I ordered that the motion be served or further evidence filed.

[40] Rule 14(12) of The Family Law Rules provides that a motion may only be brought without notice if:

(a) the nature or circumstances of the motion may notice unnecessary or not reasonably possible;

(b) there is the danger of the child's removal from Ontario and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of the child or of the party making the motion and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) the service of the notice of motion would probably have serious consequences.

[41] On November 3, 2015 the motion was returnable again in chambers. The mother, in her affidavit in support, said she was afraid based on their relationship and things said that the father who resided in Calgary was coming to Ontario and he may try to take the child forcibly with him out of Ontario to either Alberta or British Columbia, where his sister lives. A temporary order was made without notice that the child remain in the primary care of the Applicant and not be removed from Ontario.

[42] The Order of November 3, 2015 has not been reviewed by the Court. No updated Affidavit has been provided as ordered.

[43] The father denies the mother's allegations that he threatened to take the child to Alberta or British Columbia and denies the allegations of abuse. The mother did not file an updated affidavit as ordered by the Court. Any motion that is granted without notice, if possible, is to be reviewed within 14 days. This matter should have been reviewed on November 19, 2015, but because the father was in the process of obtaining Ontario counsel the order was not reviewed. It has now been several months since the order was made.

[44] The Bancroft Court is a satellite court sitting once a month, there is neither video conference capability nor access to the Government internet in the Court room for trial coordination. If the motion was heard in Belleville the motion could have been reviewed much more quickly.

[45] On the evidence that is now before the Court there was no reliable evidence that the father came, tried or threatened to come to Ontario in October or November 2015 to remove the child from the care of the mother. Further the mother has only facilitated one visit with the child in the Maynooth area despite the order providing the access can be anywhere in Ontario with no restrictions on the access.

[46] The father has an order from the Family Court in Nova Scotia giving him custody and he has not attempted to have that order registered in Ontario or enforced. He has been very respectful and patient in the circumstances.

[47] I find that the mother has mislead the court and exaggerated the possibility of the father attending and taking the child out of the province to Calgary or British Columbia.

[48] Further I find that the father maintained his residence in Nova Scotia throughout these proceedings. He works in Alberta and lives in Nova Scotia. He was in Nova Scotia on October 8, 2015 when the mother was to have returned, he was there on November 7, 2015 when he was served and on November 23, 2015 when he swore his affidavit in support of his motion for custody. He was in Nova Scotia on December 3, 2015 when Judge Daley heard the motion. He was in Nova Scotia in January 2016 when the inter-jurisdictional communication occurred.

[49] The mother claims that the father's employment contract indicates that he must prove his residence is in Alberta. However it shows the opposite. The contract indicates proof of residence is required for the "living out allowance" which is obtained by someone not living in the area.

[50] The order of November 3, 2015 made without notice shall be vacated.

Jurisdiction

[51] Pursuant to Rule Five of the Family Law Rules cases are to be started in the municipality where the child is ordinarily resident. The Rule is as follows:

RULE 5: WHERE A CASE STARTS AND IS TO BE HEARD

WHERE CASE STARTS

5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,

(a) in the municipality where a party resides;

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,

(i) section 22 (jurisdiction of an Ontario court) of the Children's Law Reform Act, and

(ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act; or

(c) in a municipality chosen by all parties, but only with the court's permission given in advance in that municipality. O. Reg. 114/99, r. 5 (1) .

STARTING CASE — DANGER TO CHILD OR PARTY

(2) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, if there is immediate danger that a child may be removed from Ontario or immediate danger to a child's or party's health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise. O. Reg. 114/99, r. 5 (2) .

[52] I find that the child was not ordinarily resident in Ontario on October 9, 2015 when the mother filed her application or on October 8, 2016 when she signed her parenting affidavit. The parents had not resided together in Ontario, the father had not consented expressly or implied nor had he acquiesced to the removal of the child from Nova Scotia. The father had not consented to Ontario as the jurisdiction to determine custody of the child.

[53] The father tried to contact the mother to discuss the separation but she refused to talk to him. She had a lawyer but there was no communication until she obtained an order without notice that she had primary residence of the child.

[54] I have considered Rule Five and the case law provided by the mother in support of her Application, namely Cskoke v. Fustos (2013 ONSC 2417), Camilleri v. Dudley (2013 ONSC 6202), and Iaskhani v. Al-Saggaf (2006 O.J. No. 5130) and I find the child did not ordinarily reside in Ontario, in particular the County of Hastings when these proceedings were commenced.

[55] Therefore the Court must look to the Children's Law Reform Act (RSO 1990, c. C 11 as amended) to determine if there is an exception to be considered, in particular section 22 and 23 which read as follows:

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

Habitual residence

22. (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) .

Abduction

22. (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) .

Serious harm to child

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 .

[56] The Court must be satisfied that all six conditions in section 22(1) of the Children's Law Reform Act have been satisfied before assuming jurisdiction of a case.

[57] Although the child is physically present in Ontario, there is an Application for custody before the court in Nova Scotia where the child had been habitually resident.

[58] The only connection with Ontario has been established after the mother withheld the child from the father.

[59] On a balance of convenience it is more convenient to have the hearing in Nova Scotia because much of the evidence on which the mother would rely is in Nova Scotia. She claims the father drank to excess and did not care for the child there. She consulted with an RCMP officer before leaving Nova Scotia. She saw a counsellor in Nova Scotia. The parents lived in the home of the paternal grandparents. All of these witnesses live in Nova Scotia.

[60] However pursuant to section 23 of the Children's Law Reform Act, the Court can exercise its jurisdiction if the Court is satisfied on the balance of probabilities that the child would suffer serious harm if the child is removed from Ontario. The mother claims that the father is abusive and controlling to her but on the material before me I am not satisfied on a balance of probabilities that the child would suffer serious harm or that he was abusive.

[61] There may be financial costs to the mother retuning to Nova Scotia, but she has brought this inconvenience upon herself. If the mother does not return with the child, the child will be with her father and his parents where she lived for approximately one year before being removed from the province. The matter will be before the Family Court and will be decided on the best interests of the child after a full hearing on notice.

[62] Having considered that the mother removed the child from Nova Scotia on false pretences and then not facilitated access to the child, the Honourable Timothy G. Daley writes in paragraph 38 of his decision:

{38} All of this gives rise to serious concerns that the mother has used the opportunity of leaving Nova Scotia to her advantage, and is attending to establish jurisdiction in Ontario. Had she provided notice in advance, had she discussed the matter with the father, had she given him a full indication of where she would be and when, and had she provided full and meaningful contact and access with both her and the child since relocating, the decision might be different. She could have applied to this court for an order permitting her to reallocate the child with her to Ontario. The father would have had an opportunity to respond and a mobility hearing would have resolved the matter.

[63] The court cannot condone parties taking the law into their own hands. The mother should have dealt with the issue of the child's custody before she left Nova Scotia or at the very least should have served the father with her motion of October 9, 2015 and allowed generous unfettered access. She has used the Order without notice granted on November 3, 2015 to great mischief to the child who has only seen the father once since the application was commenced.

[64] Considering all the facts and the law I find that the correct jurisdiction to determine the custody and access of the child A.J. is Nova Scotia.

Order

It is ordered that:

1. The order of November 3, 2015 is vacated.

2. The issue of support could remain in Ontario as an Inter-jurisdictional Support Order Application, but I recommend that the parties and their counsel resolve all matters in one court.

3. A further inter-jurisdictional conference may be scheduled between counsel and the Courts of Ontario and Nova Scotia to facilitate the enforcement of this Order and further steps in Nova Scotia.

4. Counsel may make brief written submissions on costs within 14 days.

Released: March 4, 2016

Signed: Justice Wendy Malcolm