Court File and Parties

Ontario Court of Justice

September 27, 2018

Court File No.: Toronto D21358/18

Between:

J.K. Applicant

— And —

L.R. Respondent

Before: Justice Roselyn Zisman

Heard on: September 24, 2018

Reasons for Judgment released on: September 27, 2018

Counsel

Ruth R. Richards — counsel for the applicant

L.R. — on his own behalf

Ruling on Motion

ZISMAN, J.:

1. Introduction

[1] This is the return of the Applicant's (mother) urgent motion heard on September 10, 2018 without notice to the Respondent (father).

[2] Justice Paulseth who heard the motion made a temporary without prejudice order granting the mother custody of the children and a temporary without prejudice order that the father have no access and an order that the police assist with enforcement of the order. A separate restraining order was issued that the father have no contact or communication with the mother and the children, except through counsel to arrange access and that he was not come within 100 metres of the mother or the children.

[3] The issue to be determined is whether this Court has jurisdiction over the question of custody of the children.

[4] The father asks that the mother's application be dismissed as Ontario is not the proper jurisdiction and there are outstanding family court proceedings in the Family Court of the State of New York County of Erie. He asks that that the children be immediately placed in to his care.

[5] Counsel for the mother submits that this court has jurisdiction either as a result of the children being habitually resident in Ontario pursuant to section 22 (a) or section 23 of the Children's Law Reform Act.

2. Background

[6] The mother is 33 years old and resides in Toronto. She is a Canadian citizen and has no status in the United States except as a visitor. The mother worked as a nurse in Toronto for 11 years before she became pregnant. She is not able to work in the United States.

[7] The father is 45 years old and resides in Buffalo New York. He is an American citizen. The father is in receipt of disability benefits and as of November 2017 he also started a construction management business.

[8] The parties are the parents of three children namely, J.R. born 2012, R.R. born 2015 and V.R. born 2016.

[9] All of the children were born in Toronto and by virtue of their father's citizenship are also American citizens.

[10] Since birth the children have spent the majority of their lives residing in Toronto in the primary care of their mother. The parties had a long distance relationship. The father would either travel to Toronto on the week-ends or the mother would travel with the children to Buffalo.

[11] In July 2017, the parties agreed that they should all reside together as a family and the mother and children would reside in Buffalo. The mother and the children would return to Toronto almost every week-end and every holiday was spent in Toronto with the mother and her family. The parties separated on July 15, 2018.

[12] The mother deposes that she agreed to move the Buffalos to allow R.R. who was diagnosed with Muscular Dystrophy, collagen 6 myopathy and torticollis right side at birth to have access to the speech therapists in Buffalo. Although R.R. was receiving treatment and therapy from the Sick Kids Hospital and Erinoaks Treatment Centre in Toronto, the father who is in receipt of social assistance felt that he would have better access to therapists in Buffalo. According to the mother he also wished to receive disability benefits for R.R.. The father did not dispute that he was receiving these disability benefits.

[13] The father obtained a three bedroom apartment in Buffalo for the family but the lease is in the father's name alone.

[14] However, the mother still maintained her residence in Toronto.

[15] The child J.R. attended S[…] School as of September 2017 and was enrolled as of September 2018. She attended for a few days before the mother withdrew her from the school. J.R. has now attending S[…] Catholic School where she previously attended for the school year 2016 to 2017. She is back in the same class with her same classmates.

[16] The child R.R. commenced school in September 2018 at A[…], a school for children with developmental disabilities. The mother removed him from that school on September 10, 2018.

[17] The children's doctors and dentists are located in Toronto. During the year they lived in Buffalo the children have still continued to have appointments their family doctor and dentist in Toronto and R.R. has had appointments at the Hospital for Sick Children. The children have health coverage through OHIP. R.R. had a pre-scheduled appointment at the Sick Kids Hospital on September 11, 2018 with the Neurology and Genetics Department and a follow-up appointment for an assessment with the Holland Bloorview Rehabilitation Hospital on October 17, 2018. R.R. also has appointment for a sleep test on September 30th.

[18] Since the separation on July 15, 2018 the children have remained in the sole care of the mother. The mother left Buffalo on July 16th with the children and returned to Ontario.

[19] The mother alleges that the father called her every day, called her parents and made threats about her to her mother who is currently in palliative care battling cancer. The State police contacted her and advised that the father was seeking to press charges of abduction against her. Fearing criminal charges, the mother returned to Buffalo with the children on July 31, 2018.

3. History of Court Proceedings in Ontario and Buffalo New York

[20] On July 31, 2018, the mother obtained an ex parte temporary protection order that expires on September 30th. The mother alleged that the father woke the mother at midnight on July 15th while the mother was sleeping with the children in their room, attempted to fondle her breasts, shoved her, accused her of cheating on him, put his hands on her neck and strangled her and would not let her out of the room. The 6 year old child, J.R. was woken up and began to hit the father telling him to move. Eventually the mother pushed the father out of the room. In the morning the mother left with the children.

[21] Justice Deanne Tripi issued the temporary order that states that the father is to:

Refrain for assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offence against J.K..

[22] The father submitted that this was simply a standard order and implied that it was not particularly serious. At this stage of the proceedings, I do not have the benefit of any evidence with respect to the law in New York State but based on common sense I infer that any order of a court is serious.

[23] On August 6th, both parties appeared before Justice Tripi and the matter was adjourned to August 16th so both parties could be assigned legal counsel.

[24] On August 6th, the mother also prepared a petition for custody with the assistance of her Domestic Violence Advocate Kate Rogers.

[25] On August 16th, both parties were again before Justice Tripi. The mother was advised for the first time that the father had issued his own petition for custody issued on July 27th.

[26] The court has not been provided with any order made on August 16th or a copy of any notation or endorsement of the proceedings before Justice Tripi. Both parties agree that Justice Tripi stated that the children were not to be removed from Buffalo. The mother also alleges that the Justice Tripi advised that the father due to the violence which occurred in the presence of the children was not to be left alone with the children.

[27] The parties returned to court on August 28th before Christine Saturnino, Referee. At that attendance both parties had assigned counsel and an attorney for the children was also present. However, the parties agree that only the attorneys were in the courtroom with the referee. The order of Referee Saturnino states the father having filed a petition for custody/visitation for the children that he is ordered to have telephone access at 7:00 p.m. and that the children are not to be removed from Erie County.

[28] William Curtain, who represents the mother in the Buffalo court proceedings, provided correspondence that is attached as an Exhibit to the mother's September 24st affidavit that states that on August 28th he consulted with the mother about possible supervisors for the father's visitation. He confirms that they did not discuss the non-removal of the children as he was under the impression that the mother was aware of that "verbal order" from a prior attendance which he had not attended.

[29] On September 5th the police charged the father with a breach of the July 31st protective order. In the outstanding criminal proceedings a temporary order of protection was made that requires the father to stay 100 feet away from the mother and amongst other terms to have no contact or communication with her.

[30] It is alleged that on September 4th, the mother observed the father's car parked next to hers at J.R.'s school. The father exited his car and began to look into the mother's car and when he noticed the mother, he left alleging it was a coincidence. Later that evening, when leaving a friend's home with the children, the father was outside watching the building. He began driving behind the mother and close to her car. At a stop light the father exited his car, approached her car and started to yell at the mother asking her to reconsider the separation. J.R. began to scream and the mother drove away worried about the safety of herself and the children and she contacted the police.

[31] The father denies the allegations and intends to proceed to trial.

[32] On September 10th the mother commenced proceedings in this court and sought an urgent ex parte order for custody. At the time the children were still in Buffalo and the mother and children were "couch surfing" with various friends as the mother had no accommodations. The mother deposed that she feared taking the children across the border without a court order as the father had threatened to have her charged with abduction and she did not wish to engage in any form of self-help remedy.

[33] After the order was granted on September 10th, the mother and children came to Toronto on September 11th.

[34] On September 20, 2018, the court was contacted by Referee Saturnino to advise of the outstanding court proceedings in Buffalo and to discuss the contradictory court orders that had been made in both jurisdictions.

[35] On September 20th, both parties and their counsel were present before Referee Saturnino and pursuant to the mother's petition for custody, an order was made that provided as follows:

ORDERED that in accordance with this Court's prior temporary ruling under Docket Nos. V-11079-18, V-11080-18 on August 28, 2018 the children are not to be removed from Erie County and if removed, shall be returned to Erie County forthwith, and it is further

ORDERED that the children shall attend school as required by New York State.

This order shall remain in effect until further order of the Court.

[36] On September 24th the ex parte motion was returnable before me. The court had been advised that the father would be attended and the motion was held down until he could arrive. The father was provided with the assistance of duty counsel and prepared an affidavit with various attachments that was filed with the court. The mother in addition to her initial affidavit of September 10th filed and relied upon her affidavits sworn September 20th and September 24th.

[37] Prior to the commencement of the motion, I advised counsel that in my view it would be prudent to adjourn the motion for a few days so that more thorough affidavits could be prepared in view of the last minute materials that had been filed. Mother's counsel agreed as she acknowledged that the mother's affidavits had been prepared in haste and had omitted significant information that reflected badly on her client and she did not wish to make similar errors.

[38] However, the father insisted that the motion proceed that day as he had driven here with a friend and had nowhere to stay and wanted to children placed in his care immediately so he could return them to Erie County.

[39] The father was further advised that the motions would only proceed on the facts in the affidavits and that he would not be permitted to orally refer to facts that had not been set out in his affidavit or the mother's pleadings.

[40] The father declined the assistance of duty counsel to argue this motion despite being advised that there were legal arguments that would be made.

[41] On this basis, the return of the ex parte motion proceeded. After hearing the submissions I advised the parties that I was reserving my decision, this is my decision.

4. Applicable Legal Principles

[42] Pursuant to the Children's Law Reform Act (CLRA), the Ontario Court of Justice Ontario court can assume jurisdiction to make an order for custody of or access to a child on any of three bases:

1. Under section 22(1)(a) of the CLRA, if the child is "habitually resident" in Ontario.

2. Under section 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 specified in the section are met.

3. Under section 23, where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm under certain circumstances, including the removal of the child from Ontario.

[43] These provisions are all found in Part III of the CLRA. Section 19 sets out the overall purpose of Part III as follows:

(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.

[44] The specific purposes of section 22 CLRA include deterring parties from "forum shopping" to decide their custody dispute and to discourage parties from child abduction.

[45] Although neither sections 22(1)(a) or (b) requires the court to consider the needs or circumstances of the children, all decisions with respect to custody of or access to children must be considered on the basis of the best interests of children.

[46] As stated by the Ontario Court of Appeal in Ojeikere v. Ojeikere:

But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature's overriding concern with a child's best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent's interests over that of the child.

Sections 23 and 69 also reflect the Legislature's overriding concern with children's best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child's habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.

5. Application of Facts to the Applicable Legal Principles

(a) Application of Section 22(1)(b): Physical Presence and Other Requirements

[47] Section 22 of the CLRA provides that the court can assume jurisdiction if a child's habitual residence is in Ontario or if not habitually resident in Ontario is physically present and other specified requirements are met.

[48] Section 22 provides as follows:

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.

(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.

(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.

[49] On the facts of this case, it is clear that section 22(1)(b) of the CLRA does not apply as the children were not physically present at the commencement of the application. In fact, the mother purposely left the children in Buffalo so that she could obtain a court order that would grant her custody and the ability to remove the children to Ontario. Further, there is an application for custody of or access to pending before another court. Even though the children may have a real and substantial connection with Ontario and it would be more appropriate for jurisdiction to be exercised in Ontario, it is settled law that all of the criteria of sec. 22(1)(b) must be met.

(b) Application of Section 22(1)(a): Habitual Residence

[50] It is submitted by mother's counsel that the children have two habitual residences. She relies on the cases of Brouillard v. Racine and Metatawabin v. Abraham. In making findings that the children had two habitual residences, the courts in those cases relied on either court orders or separation agreements that provided for shared custody arrangements with the child spending significant periods of time with each parent in different jurisdictions.

[51] Justice McKinnon in the case of Wilson v. Huntley came to the same conclusion. At paragraph 32 of her decision, in the context of a Hague Convention hearing, she states that:

In my view, it is possible for a person, including a child, to have consecutive, alternating, habitual residences in two different States, at separate times. It is a question of fact in each individual case.

[52] In this case, there is no separation agreement or court order and the children were living in an intact family. Although the facts are therefore distinguishable, in my view the concept of a person or child having more than one habitual residence is still applicable.

[53] In the case of Korutowska-Woof v. Woof, Justice Feldman of the Ontario Court of Appeal outlined the often quoted principles to be considered when deciding "habitual residence". Although the term was explained in the context of a Hague Application, Ontario jurisprudence has held that the term has the same meaning as it has pursuant to the CLRA. The Court stated as follows:

• the question of habitual residence is a question of fact to be decided based on all of the circumstances;

• the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";

• a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

• a child's habitual residence is tied to that of the child's custodian(s).

[54] In this case, it is clear that the father's habitual residence was Buffalo.

[55] It is less clear as to the mother's habitual residence. Except for the last year, the mother and the children's habitual residence was clearly Ontario. The mother and children were born here and lived here for all of their lives except for the last year. The older child went to school in Toronto and the children's doctors, dentists and other service providers were all in Toronto.

[56] During the last year since moving to Buffalo, the mother has still maintained her residence in Toronto and is still only has a visitor's status in New York State. She has maintained all of her benefits in Ontario such as qualifications for publicly funded medical insurance. It is questionable if she would be entitled to maintain this coverage if she and the children were not residents of Ontario. The children have continued to have their medical and dental needs met in Ontario. Although I assume that R.R. is also having his medical needs met in Buffalo, neither mother nor father actually provided any proof of this except that he had attended a school for children with disabilities for a few days on September 2018. Even in the last year, the mother and children spent significant amounts of time in Toronto where all of the mother's extended family resides.

[57] The children were residing with both parents at the time of separation in Buffalo. However, I find that the mother did not have a settled intention to live either temporarily or permanently in Buffalo. The mother alleges that there were several other incidents of verbal and physical altercations and she had concerns about the father physically disciplining the children. It appears that she was keeping her options open and never fully cut her ties with Ontario.

[58] I find that on a balance of probabilities the mother has met the burden on her to prove that she had two habitual residences and as a result I conclude as she was the de facto custodial parent that the children also had two rotating habitual residences.

(c) Application of Section 23 of the CLRA: Serious Risk of Harm

[59] However, if I am wrong in finding that the children's habitual residence was in both Ontario and Erie County, I would still make an order pursuant to section 23 of the CLRA.

[60] Section 23 of the CLRA provides that:

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.

[61] In making this finding, I have considered serious credibility issues that have been raised with respect to the mother's court proceedings in this jurisdiction and whether or not the mother was simply forum shopping and whether or not she abducted the children.

[62] Although the mother did omit from her initial affidavit that she had filed a petition for custody in Buffalo, I accept her explanation that in the short time that she had to meet with counsel and prepare her urgent motion she neglected to include this fact. I find that she did not do so with the intention of misleading the court as she outlined in her affidavit the proceedings before the court in Buffalo and further that she also prepared that petition without the assistance of counsel and without any understanding of the jurisdictional issues. Counsel for the mother advised that if this court assumes jurisdiction the mother will be withdrawing her petition in Buffalo.

[63] However, the mother also neglected to mention in her initial affidavit that Justice Tripi on August 16th had told her not to remove the children from Erie County. It does appear that no actual order was made and the mother deposed in her September 24th affidavit that as she was not provided with any Order or other court document she believed that only advise or a recommendation was being made. Further, she omitted to include in her affidavit the fact that on August 28th, Referee Saturnino made an order that the children not be removed form Erie County. However, based on the correspondence of mother's counsel in Buffalo it appears that she may have been unaware of this order.

[64] The mother initiated court proceedings in this jurisdiction before removing the children from Erie County and sought a court order to bring the children to Ontario. Obviously, I cannot know if Justice Paulseth would have made her order on September 10th if she had been aware of the outstanding order of non-removal.

[65] It is of course very concerning that the mother removed the children in violation of a court order from the Buffalo court and was not transparent in this jurisdiction. If she was uncertain about the status of the non-removal order she should have made inquiries and it was her obligation to provide all of the facts to this court on the urgent ex parte motion. However, as stated by the Ontario Court of Appeal in Ojeikere v. Ojeikere:

Sections 23 and 69 also reflect the Legislatures' overriding concern with children's best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child's habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potential serious harm.

[66] Section 23 permits the court to assume jurisdiction if the children are physically present in Ontario. The children are now present in this jurisdiction therefore the court can make or vary an order with respect to custody if the court is satisfied that the children would suffer serious harm if removed from Ontario.

[67] On the facts before the court at this stage of the proceedings, I find that the children would suffer serious emotional harm if returned to Buffalo for the following reasons:

1. The mother has always been the primary caregiver of the children. The father requested that the children simply be placed in his care at the conclusion of the motion despite the fact that he has never cared for them for any significant period of time and showing a lack of insight on the impact such an order would have on the children. If the children were removed from the mother's care the children would suffer intolerable harm;

2. The mother has no permanent status in the United States. She enters the States as a visitor and if she overstates her stay or it is determined that she is not legally entitled to remain in the States, she could be deported and not permitted re-entry into the States;

3. The father has threatened to initiate criminal charges of abduction and only deposed in his affidavit that he is unaware if such charges have been laid. Therefore the mother may be subject to criminal charges if she returns to the States;

4. The mother has no accommodations in Buffalo. The children would be required to "couch surf" with friends of the mother. The lack of a permanent home would impact in the physical and emotional well-being of the children especially in view of R.R.'s special needs;

5. The mother is unable to work in the States and therefore would have no means to support the children. When the parties resided together, the mother relied on the father's receipt of disability income to support herself and the children;

6. The mother has a very strong prima facie case for custody. The father at this time only has an order for telephone access from the Buffalo court. He is facing criminal charges and it is alleged that he breached a no contact order;

7. As a result of the incidents of July 15th and September 5th, the mother fears for her safety and the safety of the children. The mother also alleges prior incidents of physical and verbal abuse. J.R. who was present during both incidents has been asking why her father choked the mother and has had anxiety attacks, has thrown up and cried in her sleep.

[68] Although at this stage of the proceedings there is no independent proof of the children being upset or anxious and the allegations that they were exposed to domestic violence are being disputed by the father, nevertheless I find that requiring the mother to return the children would place them at serious risk of harm. The mother's lack of immigration status, lack of housing and a lack of a source of income would place the children in an intolerable situation. The father did not present any evidence that the health and related benefits he receives would apply to the mother and the children as they are now living separate and apart and the children are in her care. Accordingly, to require the mother to return to the States may jeopardize the health of all of the children especially R.R..

[69] I have also considered that the best interests of the children require this court to assume jurisdiction. The mother has been the primary parent and has been the parent that has met all of the children's needs. The children have resided in this jurisdiction for most of their lives and they are closely bonded to the mother's extended family all of whom reside in this jurisdiction. The mother and children have the support and assistance of the extended maternal family. The children have access to free health care. J.R. is attending her previous school and the mother is in the process of enrolling R.R. in school and he has scheduled appointments with various health specialists. The mother has obtained subsidized daycare for V.R..

[70] This jurisdiction is the most convenient for a final determination of custody and access. It is my intention to appoint the Office of the Children's Lawyer to conduct a clinical investigation and make recommendations as to the parenting arrangements that are in the children's best interests.

6. Conclusion

[71] Having found that this court should exercise its jurisdiction to determine the issues of custody and access as a result of Ontario being the children's habitual residence pursuant to section 22(1)(a) of the Children's Law Reform Act or in the alternative that this court assumes jurisdiction pursuant to section 23 of the Children's Law Reform Act, there will be a temporary order as follows:

(1) The Applicant J.K. shall have temporary custody of the children, J.R. born 2012, R.R. born 2015, and V.R. born 2016.

(2) The children shall remain in their habitual residence of Ontario and shall not be removed without a prior Court Order.

(3) The Respondent L.R. shall have telephone access to the children on Mondays, Wednesdays and Fridays at 7:00 p.m. unless the parties agree otherwise.

(4) The Office of the Children's Lawyer shall be appointed to represent the children.

(5) The restraining order of September 10, 2018 shall continue in full force and effect.

(6) The next attendance shall be on October 12, 2018 for a case conference. Briefs to be served and filed in accordance with Family Law Rules.

[72] I do not find that this is a proper case for costs. However, if costs are being pursued by the mother's counsel oral submissions can be made on the return date.

Released: September 27, 2018

Signed: Justice Roselyn Zisman