Court File and Parties

Ontario Court of Justice

Date: September 20, 2018

Court File No.: Toronto DFO 09 10160

Between:

JULIO MALDONADO Applicant

— AND —

HILDA FELICIANO (CARIAS) Respondent

Before: Justice M.B. Pawagi

Heard on: August 30, 2018

Reasons for Judgment released on: September 20, 2018

Counsel:

• Sage Harvey, counsel for the applicant
• Robert Shawyer, counsel for the respondent

Judgment

M. B. PAWAGI, J.:

OVERVIEW

[1] Does the court in Florida or in Ontario have jurisdiction to decide whether to change custody of the parties' 9-year-old daughter from the respondent mother to the applicant father?

[2] The child has been living with the mother since birth, with access to the father. Three years ago, the mother moved with the child and the child's older brother (from another relationship) from Ontario to Florida to be with her new husband, pursuant to a court order made on consent. The order also provided that the child would return to Ontario for access with her father 45 days every summer and 7 days every Christmas. The mother failed to comply with this order, sending the child to Ontario for only one single week in the past three years. On July 2, 2018, the father went to Florida and obtained an emergency pick up order for summer access. The child has been in Ontario with her father since July 8th.

[3] The father has brought the within motions asking the Ontario court to assume jurisdiction, to change custody to the father on a temporary basis, and to find the mother in contempt. His claim is based, in part, on the child's recent disclosure that she had been physically abused by her stepfather in Florida. The mother seeks to dismiss the father's motions on the grounds that the Florida court has jurisdiction. The preliminary issue of jurisdiction only was argued on August 30, 2018, with the child remaining in Ontario pending the result.

[4] For the reasons that follow, I find that while this court could assume jurisdiction, as requested by the father, I decline to do so, on the basis that it would be more appropriate for jurisdiction to be exercised in Florida, conditional on certain undertakings set out below to address the risk of harm to the child.

FACTS

[5] The parties had a brief relationship. The child was born in Toronto on February 3, 2009. She lived with her mother and older brother in Toronto from birth until she was six years old. During much of this time the parties were involved in family law litigation in this court. The mother made allegations of domestic violence against the father and the father made allegations that the mother was denying him access. The court made no findings of fact regarding these allegations as the litigation was resolved by way of consent orders.

[6] On October 26, 2011, Justice Ellen Murray made a consent final order ordering custody to the mother, with access to the father on alternate weekends, mid-week day access, and holidays; and ordering the father to pay child support.

[7] On June 12, 2012, Justice Brian Scully made a consent final order adding mid-week overnight access to the father.

[8] On May 26, 2015, Justice Ellen Murray made a consent final order [1] granting the following, among other things:

1. Permission for the mother to move with the child to Florida;

2. Access to the father in Ontario for 45 days every summer and 7 days every Christmas (with the option of changing the Christmas week to March break at the father's request), and Skype or telephone access three times per week;

3. Suspension of child support until the father obtains employment.

[9] The reason for the move was that the mother's new husband had been required to return to the United States after overstaying his visa in Canada. At the time of the order he was living in Miami, Florida, with an uncle, and searching for work. The order provided that "should the Respondent mother's husband obtain a temporary contract position for employment [the child's] ordinary place of residence shall continue to be Ontario."

[10] The mother, the child and the child's older brother moved to Florida in August 2015. The mother did not send the child from Florida to Ontario for an access visit Christmas 2015 saying she could not afford it. However, she was able to travel from Florida to New York with the child during this same Christmas break.

[11] The mother sent the child to Ontario for one week in March 2016 instead, contrary to the order which provided that such a substitution could be made only at the father's request. This was the only visit the mother arranged voluntarily.

[12] The father brought a contempt motion in Ontario before Justice Ellen Murray, which was heard on May 15, 2017. The mother was represented at the hearing and was present by video-conference. She argued that she could not comply with the access order because the child was not permitted to leave the United States while the child's immigration application was pending. Justice Murray made a finding of contempt against the mother, and ordered her to purge her contempt by applying immediately for "advanced parole" (permission to travel while an immigration application is pending) to allow the child to visit her father in Ontario from June 15 to August 15, 2017 and for two weeks at Christmas 2017.

[13] The matter was then adjourned several times for the mother to purge her contempt. The mother provided father's counsel with a copy of her completed advance parole application but provided no further updates regarding the status of the application.

[14] On September 7, 2017, Justice Ellen Murray made a final order requiring the mother to return the child to Ontario by November 1, 2017 and granting the father the regular, court ordered, access he had prior to the child's move to Florida, of alternate weekends, midweek overnights and holidays.

[15] Mother deposes that she retained counsel to bring a motion to set aside this order, but did not proceed because the father then started an action in Florida.

[16] The father's action was a petition to domesticate the May 26, 2015 Ontario order (not the September 7, 2017 order). His petition proceeded on consent. An "Agreed Final Judgment of Domestication" was made on April 30, 2018 by Florida Circuit Court Judge Migna Sanchez-Llorens. [2]

[17] The order decreed that the provisions in Justice Murray's May 26, 2015 order are ratified, confirmed and adopted as orders of the Circuit Court, that the parties are ordered to comply with the provisions, and that "This court expressly retains jurisdiction of this cause for the purpose of enforcing, construing, interpreting, or modifying the terms of this Order."

[18] On May 3, 2018, three days after the Ontario order was domesticated (which provides for 45 days of summer access each year), father's counsel sent an email to arrange 2018 summer access. No response was received.

[19] By this time, the child had obtained permanent resident status in the United States and thus there were no restrictions on her travel outside the U.S.

[20] The father then brought an emergency motion in Florida for a pick up order which was heard July 2, 2018 by Judge Valerie Manno-Shurr. The transcript shows that the judge asked repeatedly why the access was not occurring:

THE COURT: What's the problem? Why won't the mother send the child?

MR. BUTLIEN [mother's counsel]: It's not a problem with her not wanting to send the child, she doesn't have any problem with the child spending time with the father. The problem is the cost of the ticket and, of course the age of the child. The child is young.

[21] The judge noted, among other things, that the May 26th 2015 order was made on consent and granted the emergency pick up order for July 7 to August 11, 2018.

[22] The child travelled to Ontario on July 8, 2018 for the access visit. Prior to the August 11th scheduled end date of the visit, the father brought the within urgent motions asking the Ontario court to assume jurisdiction, change custody, and find the mother in contempt based on mother's refusal to comply with access.

[23] This matter was adjourned to August 30, 2018 to give the mother an opportunity to file responding material, with the child to remain in Ontario pending the result of the motion.

[24] This court requested a Voice of the Child Report from the Office of the Children's Lawyer. [3] Clinical Investigator Tamara Genesove prepared the report. It is based on two interviews with the child. The child told Ms. Genesove the following:

She said she had not seen her father for a long time until this summer. She thinks this is because her mother's didn't want her to come to see him because her mother loves her. She said that it was been good to see her father, but she really misses her mother.

She said that there was arguing between her mother and stepfather, and she believes there was also some hitting, but she does not remember exactly. She is not sure if her stepfather and mother have actually separated, as sometimes he comes over and stays over. She became tearful when reporting this information.

She stated that her mother is fun and caring and loving. She said that she loves her mom. She started to cry and said that she misses her mom. She said that her mother is mostly a happy person when they are together. She said that sometimes her mother becomes angry if she does "bad stuff" and hits her on the buttocks with her hand. She said that this doesn't hurt; it just stings for a few seconds. She would also hit her 13-year-old brother in this manner.

She stated that her stepfather is "kind of mean" and would hit her and her brother with his hand, everywhere on her body, arm, and buttocks. She said that this hurt much more than when her mother hits her. She stated that this happened quite often and has continued to happen since the recent move to the apartment. She stated that her mother knows about some of these incidents but not all of them. She hadn't told her mother every time because she thought her stepfather might become upset with her. She was tearful when she reported this.

She wished she could spend equal time with each of her parents like she used to do when she was younger and lived in Canada. She said if shared time not possible, then she wished to live with her mother and visit her father whenever she wanted like during the summer holidays and other times.

[25] Ms. Genesove reported the child's disclosure to the Peel Children's Aid Society (as the child is with her father on an access visit and the father currently resides in the Region of Peel).

PRELIMINARY ISSUES

[26] On August 30, 2018, just prior to the hearing of the within motion, I contacted Florida Circuit Court Judge Migna Sanchez-Llorens (who made the domestication order), as the parties' motion material raised a possible issue regarding multiplicity of court proceedings. Judge Sanchez-Llorens suggested this be addressed by her conferencing in by telephone with counsel and the parties. I relayed this suggestion to counsel indicating that I would only proceed with such a call on the consent of both parties. As counsel for the father did not consent, I contacted Judge Sanchez-Llorens to advise her we would not conference her in, but that I would send her a copy of my ruling.

[27] On September 18, 2018, after the hearing of the motion, I conducted a telephone conference call with both counsel to obtain an update regarding the status of the children's aid investigation. Counsel for the father advised that Peel Children's Aid interviewed the father and the child and it appeared that a referral was made to child protective services in Miami-Dade County, Florida. No further information was available at this time.

ANALYSIS AND THE LAW

Issue 1: Does this court have jurisdiction to make an order changing custody?

[28] There are only three ways in which this court can assume jurisdiction to make an order for custody of a child pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "Act").

1. Pursuant to s. 22(1)(a), where the child is habitually resident in Ontario.

2. Pursuant to s. 22(1)(b), where the child is not habitually resident in Ontario, but is physically present in Ontario, and five other requirements are met.

3. Pursuant to s. 23, where the child is physically present in Ontario, and the court is satisfied that the child would suffer serious harm under certain specified circumstances.

Dovigi v. Razi, 2012 ONCA 361 (C.A.) at paras. 9-13. [4]

1. Is the child habitually resident in Ontario?

[29] Section 22(1)(a) states:

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;

[30] Habitual residence is defined in s. 22(2) of the Act as follows:

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.

[31] Only s. 22(2)(b) applies here as the child has only ever resided with the mother, first in Ontario, and then in Florida for the past three years.

[32] Counsel for the father submits that despite the fact the child currently resides in Florida, her habitual residence is Ontario because the court order provides on consent that "should the Respondent mother's husband obtain a temporary contract position for employment [the child's] ordinary place of residence shall continue to be Ontario."

[33] I do not accept that for two reasons: First, the provision appears to link the continuation of the child's ordinary residence in Ontario with the mother's husband's temporary contract position, implying that the continuation is also only temporary. And the mother's husband is now permanently working in Florida. Second, even if the continuation of the child's ordinary residence in Ontario was not meant to be temporary it is not valid because parties cannot confer and courts cannot assume jurisdiction simply because it is on consent.

[34] The law is clear on this point, as summarized by the Court of Appeal, that "Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered."

J.N. v. Durham Regional Municipality Police Service, 2012 ONCA 428 (C.A.) at para. 25

[35] Furthermore, regardless of how that provision in the order is interpreted, it is not disputed that the parents understood the move to Florida to be permanent not temporary.

[36] Counsel for the father further relies on the September 7, 2017 order that purported to order the return of the child to Ontario, on the basis that the child's habitual residence is Ontario from that date. However, given that the child's habitual residence was Florida at the time the order was made, that the child was not physically present in Ontario at the commencement of that proceeding and that the judge made no findings regarding serious harm, it does not appear that the court had jurisdiction to make that order. I also note that the father chose to domesticate the May 26, 2015 order (that the child reside in Florida) rather than the September 7, 2017 order.

[37] The Supreme Court of Canada recently modified the test for determining habitual residence by requiring that the court consider all of the child's circumstances, which the Court described as taking a "hybrid approach," as opposed to only considering parental intention. While the case was decided pursuant to the Hague Convention, it applies to the case at bar as the definition of "habitual residence" has been held to be the same in Hague cases and in extra-provincial cases pursuant to Part III of the Act.

Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] S.C.J. No. 16 at para. 73

[38] I find the child's circumstances to be the following:

1. She has lived in Florida with her mother for the past three years.

2. She has attended all of her schooling apart from kindergarten in Florida (grades one, two and three).

3. She was clear and consistent in the recent interviews conducted while she is in Ontario on an access visit, that while she loves her father and wishes she could see him more, she misses her mother and brother and wants to return to Florida to live with them.

[39] Thus, in taking the hybrid approach, and considering both parental intention and the child's circumstances, I find that the child is not habitually resident in Ontario.

2. If the child is not habitually resident in Ontario, has the test in s. 22(1)(b) been met?

[40] Section 22(1)(b), provides a second way this court can assume jurisdiction. It states:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(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.

[41] The Court of Appeal held that the court may assume jurisdiction pursuant to s. 22(1)(b) only if all of the six criteria have been satisfied (emphasis added).

Turner v. Viau, [2002] O.J. No. 1229 (C.A.)

(i) The child is physically present in Ontario at the commencement of the father's application.

Yes.

(ii) Substantial evidence concerning the best interests of the child is available in Ontario?

Yes. The child was born in Ontario and lived the first six years of her life in Ontario. She has access to her father who lives in Ontario. She has extended family on both her mother and father's sides who live in Ontario. The Office of the Children's Lawyer prepared a Voice of the Child Report based on interviews with the child in Ontario.

(iii) There is 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.

Yes. There is no application for custody or access pending in Florida. The application that is pending in Florida (commenced by the mother) is with respect to child support only.

(iv) There is no extra-provincial order in respect of custody of or access to the child that has been recognized by a court in Ontario.

Yes. There is no Florida court order that has been recognized by a court in Ontario.

(v) The child has a real and substantial connection with Ontario;

Yes. The child is nine years old. She was born in Ontario and lived in Ontario the first six years of her life.

(vi) On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

No. I find that on the balance of convenience it would not be appropriate for jurisdiction to be exercised in Ontario.

[42] Justice Sherr in Jean-Francois v. Barnes, 2012 ONCJ 124 at para 31, set out the factors the court should consider in analyzing the balance of convenience:

1. The location of the majority of the parties;

2. The location of key witnesses and evidence;

3. Contractual provisions that specify applicable law or accord jurisdiction;

4. Geographical factors suggesting the natural forum;

5. The avoidance of a multiplicity of proceedings;

6. The applicable law and its weight in comparison to the factual questions to be decided; and

7. Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

[43] Some of the above factors are not relevant as follows: there is no "majority" of parties here as there are only two parties, one in each jurisdiction (Ontario and Florida); there are no contractual provisions; there are no geographical factors that suggest a natural forum as there is one party and witnesses in each location necessitating travel either way; and the parties did not raise any issue (nor do I note any issue) regarding the applicable law and its weight.

[44] The factor concerning location of key witnesses and evidence is evenly balanced between the parties as there are key witnesses in both jurisdictions: one parent in each jurisdiction, the child's teachers and doctors for the last three years all in Florida, and the Office of the Children's Lawyer clinician and Peel Children's Aid Society worker in Ontario. I also do not find that declining jurisdiction would deprive the father of a legitimate juridical advantage in Ontario; he has been successful in actions in both Florida (domesticating the Ontario order and obtaining an emergency pick up order) and in Ontario.

[45] In a similar case, Haggarty v. Haggarty, [1997] O.J. No. 960 (C.J. (Gen.Div.)), the children had only lived in New Hampshire for several months before the mother moved back to Ontario and then timed her application for custody to coincide with the children's scheduled visit to Ontario. Justice Perkins found that Ontario was not the appropriate forum, despite the fact that, as in the case at bar, the children were born and raised in Ontario, had family members and other in Ontario who could give relevant evidence, both parties had lawyers in Ontario and the case was proceeding in family court in Ontario. Justice Perkins commented that public policy behind the Act is that children's custodial arrangements should be dealt with in their "home" jurisdiction unless there was very good reasons for a court in another place to assert jurisdiction based on physical presence and balance of convenience.

[46] I find the question of balance of convenience in this case turns on the issue of multiplicity of proceedings. The parties domesticated the May 26, 2015 Ontario order on consent in Florida on April 30, 2018. On June 4, 2018, the mother filed a "Petition for Modification of Domesticated Property Settlement and Child Support" in Florida to amend the domesticated order to obtain child support. On July 2, 2018, the father obtained an emergency pick up order by virtue of that domesticated order. The father has not yet filed a response to the mother's petition for child support and no court date has been scheduled. On August 2, 2018, the father filed a Motion to Change in Ontario to obtain custody. If his custody claim proceeded in Ontario there would be two court proceedings in two different jurisdictions regarding this child: custody in Ontario and child support in Florida. These two issues are inextricably linked and should be decided by the same court to avoid conflicting orders (such as the mother potentially obtaining child support in Florida, but losing custody in Ontario). That court should be Florida as that has been the child's habitual residence for the past three years.

[47] Thus, I find that on the balance of convenience it would not be appropriate for jurisdiction to be exercised in Ontario.

3. Would the child suffer serious harm if returned to the mother's care in Florida?

[48] Section 23 of the Act reads:

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.

[49] In deciding what constitutes "serious harm," courts have equated the risk of serious harm in the Act with the standard in the Hague Convention; namely, a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, 19 I.L.M. 1501 (entered into force December 1, 1983), Article 13(b)

[50] However, in a recent decision of the Court of Appeal, Justice Laskin held that the "serious harm" test in the Act is less stringent than the "intolerable situation" test of the Hague Convention. Justice Laskin reasoned that when a court is contemplating a return to a country that is not a signatory to the Hague Convention, the court does not have the reassurance that similar considerations regarding the best interests of the child will apply, and thus the threshold to prevent a return should not be as high.

Ojeikere v. Ojeikere, 2018 ONCA 371 at para. 59-60

[51] I find that the severity of harm in this case meets both the "serious harm" test and the "intolerable situation" test. The child disclosed that her stepfather hits her "everywhere on her body, arm, and buttocks;" that this hurts "much more" than when her mother hits her; that it happens "quite often;" and that she was fearful of disclosing it because her stepfather might become upset with her. The harm she disclosed is serious and would put her in an intolerable situation if she was returned to the same situation.

[52] I find the child's disclosure to be credible and trustworthy. The clinician who interviewed her noted that the child's views were consistent over two interviews, that her stated position was independent; that she indicated no one told her what to say. Furthermore, the clinician reviewed the child's statements with her to ensure the report was accurate.

[53] I turn now to risk, as the issue is not only the severity of the harm, but also the risk of it occurring. As Justice Laskin noted, "As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm and the severity of future harm."

Ojeikere v. Ojeikere, 2018 ONCA 371 at para. 62

[54] There is a presumption that the courts of a child's home jurisdiction will be able to make arrangements that will protect a child from harm if the child is returned there, but it is open to a parent who wrongfully removed or retained a child to establish that such arrangements will not be effective or cannot be made.

Brown v. Pulley, 2015 ONCJ 186 at para 129; Ireland v. Ireland, 2011 ONCA 623, at para 48; Ellis v. Wentzell-Ellis, 2010 ONCA 347, at para 50; Finizio v. Scoppio-Finizio, [1999] O.J. NO. 3579 (C.A.) at para 34.

[55] Counsel for the father, in his submissions, addressed only the severity of the harm, he did not establish that Florida will not be able to protect the child from harm. As Justice Laskin alluded to above, when a court is contemplating a return to a country that is a signatory to the Hague Convention (as the United States is), the court has the reassurance that similar considerations regarding the best interests of the child will apply.

[56] The problem that the child protective services and the Circuit Court in Miami-Dade County, Florida will need time, respectively, to complete an investigation and conduct a hearing can be addressed by undertakings from the mother that the child not be in contact with the stepfather pending further court order.

[57] Thus, I find that this court does not have jurisdiction through any of the three possible routes.

Issue Two: If the court has jurisdiction, should the court decline to exercise it?

[58] Even if I had determined that Ontario had jurisdiction, s. 25 of the Act provides a statutory basis for refusing to exercise that jurisdiction.

Dhillon v. Benipal, [2009] O.J. No. 1311 (S.C.J.) at para 85

[59] Section 25 states:

s. 25 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.

[60] When a court is considering whether to decline jurisdiction, it should have in mind the purpose of Part III of the Act, particularly as enunciated in s. 19(b). This analysis is similar to the balance of convenience analysis conducted pursuant to s. 22(1)(b)(vi) above.

Wickham v. Wickham, [1983] O.J. No. 140 (C.A.)

[61] Section 19 states:

s.19 The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by 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 a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.

[62] For the same reasons set out in the balance of convenience analysis above, I would decline to exercise jurisdiction pursuant to s. 25, having regard to s. 19(b): to avoid concurrent exercise of jurisdiction (Florida for child support and Ontario for custody) and to have the jurisdiction be the one where the child has the closer connection. And I find the child has a closer connection with Florida having lived and attended school there for the past three years.

Issue Three: Should the court make any interim order?

[63] Where a court has decided it may not exercise jurisdiction, or where it has declined jurisdiction, it may still make an interim order in the best interest of the child.

[64] Section 40 of the Act sets out the interim powers. It states as follows:

s. 40 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.

[65] Section 24(2) of the Act sets out the best interest factors. It states:

s. 24 (2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[66] Thus this court may make a temporary order pursuant to s. 40 to facilitate the return of the child to Florida and to establish transitional parenting terms until the Florida court can address the parenting issues on their merits.

[67] Given the child's expressed views and preferences, the length of time she has lived with her mother (her entire life), the love she has for both her parents and her disclosure of physical abuse by her stepfather, it would be in her best interests to return to her mother in Florida conditional on her mother undertaking to ensure that she has no contact with her stepfather pending further court order and that she has access to her father.

CONCLUSION

[68] An order shall go on the following terms:

1. The child is to be returned to her habitual residence in Florida on the following terms and conditions:

   a. Until such time as the Florida Circuit Court determines a motion to be brought for temporary parenting arrangements upon completion of the investigation by child protective services in Miami-Dade County, the mother shall undertake to ensure that she and the child do not reside with, and the child has no contact with, the mother's husband;

   b. The mother undertakes to send the child to Ontario for access with the father for two weeks during the 2018 school Christmas break (dates and mode of transportation to be specified in the undertaking), this extended visit is to start the make-up of access missed to date (approximately 16 weeks);

   c. The mother shall pay for the child's transportation for her return to Florida and for the Christmas access visit.

[69] This order is conditional on the mother providing the above undertakings in writing to the father's counsel. The child shall be returned to Florida within 7 days of the undertakings being provided.

[70] The father's motion to change and contempt motion, and the mother response is stayed pending costs submissions.

[71] Parties may make costs submissions in writing (not more than 3 pages), attaching bill of costs and any offers to settle, by October 11, 2018, and any responding submissions by October 25, 2018.

[72] Court staff shall send a copy of this decision and the Voice of the Child Report to the Honourable Circuit Court Judge Migna Sanchez-Llorens.

[73] Counsel for the father shall send a copy of this decision and the Voice of the Child Report to child protective services in Miami-Dade County, Florida.

Released: September 20, 2018

Signed: Justice M.B. Pawagi

Footnotes

[1] A copy of the May 26, 2015 order is attached to this ruling as Schedule "A."

[2] A copy of the April 30, 2018 decree is attached to this ruling as Schedule "B."

[3] A Voice of the Child Report is a focused report for the purpose of providing the views of the child to the court. It does not involve an investigation. It does not provide recommendations.

[4] The Court of Appeal also sets out a fourth way, by the exercise of parens patriae jurisdiction, but that is available only to the Superior Court of Justice, not the Ontario Court of Justice.