Court File and Parties

Ontario Court of Justice

Date: October 16, 2018

Court File No.: North Bay FO 16-267

Between:

Tyler Daniel Chartier Applicant

— AND —

Maki Furuta Respondent

Before: Justice A.H. Perron

Heard on: August 16, 2018

Reasons for Judgment released on: October 16, 2018

Counsel

Shawn Hamilton ......................................................... counsel for the applicant

Liam Sangster .......................................................... counsel for the respondent

Reasons for Judgment

Perron, J.:

Background

[1] Tyler Chartier (now referred to as the Applicant or father) and Maki Furuta (now referred to as the Respondent or mother) met in British Columbia in the winter of 2011. In July of that year, the respondent returned to her native country of Japan. The applicant joined her in September 2011 on a one-year working visa. They both began to live as a couple in Osaka Japan at that time.

[2] The couple married in Japan on August 31, 2012. The applicant continued to teach English as a second language while the respondent worked at the Mitsubishi Electric Corporation. Their son Kai Furuta was born on April 4, 2014.

[3] The applicant returned to Canada in April 2016. In August 2016 the respondent and her son Kai came to Canada for a visit. In order to have the appropriate amount of time to travel with her son at that time, the respondent left her employment with the understanding that she would quickly be rehired once she returned to Japan. Her plan was to return to Japan in September or October of that same year.

[4] After attending Canada, the relationship between the parties rapidly deteriorated. The respondent was in fact greatly worried as the applicant was threatening to call the authorities advising that she was illegally in Canada and that she could be deported back to Japan without her son to never return back to Canada.

[5] On November 8, 2016, the respondent discovered that the applicant had taken all of her credit cards, cash and their son's passport. The applicant became very confrontational and this threatening behavior resulted in the respondent calling 911 for police assistance. The respondent and her son then took temporary refuge at the Nipissing Transition House.

[6] The applicant commenced these proceeding on an ex-parte basis as he was worried that the respondent would be leaving the country with their son. A temporary without prejudice order was made on November 23, 2016 ordering that the residence of the child not change from the District in Nipissing without further order of this court. The matter returned to court on December 1, 2016 where an access order was made allowing the father to see the child on a regular basis.

[7] The matter proceeded to a number of case conferences in January and February 2017 which mostly addressed the issue of expanded access for the applicant. Finally, on April 12, 2017, the applicant was ordered to pay $200 a month in child support which was in fact the only source of income for the respondent at that time. The respondent was basically unemployable in Canada due to her limited ability to speak English and the fact that she was here on a temporary visa.

[8] After retaining counsel, the respondent brought a mobility motion returnable on May 4, 2017 seeking permission to return to Japan with the child. She explained that it would be in her son's best interest to return to Japan as he is having a great deal of difficulty getting acclimatized into the Canadian culture. Kai refuses to eat Canadian food and his English skills are very limited. The respondent mother also mentions that she does not have any access to medical care and any medical history concerning her son is only available in Japanese which is of little assistance to the Canadian doctors. She also mentions that she is unable to obtain employment in order to support herself and her child here in Canada mostly due to the fact that she does not have a permanent visa.

[9] The matter was adjourned a number of times in order to allow the applicant to file responding materials and then proceeded to mediation. Terms of reconciliation were in fact also being discussed between the parties.

[10] In August 2017, it became clear to the respondent that she and the applicant would not be able to come to an agreement and she became very fearful that her request to extend her visa to stay in Canada would be denied. She had in fact obtained legal advice from an immigration lawyer that she should be applying for permanent residency status under humanitarian and compassionate grounds. Unfortunately, a decision could take up to 29 months and her temporary visa was only valid until September 1, 2017.

[11] The mobility motion was therefore argued on August 18, 2017. At that time, the respondent, Maki Furuta was granted a temporary order of custody of the child Kai and granted permission to relocate with the child to Japan. Arrangements were made for extended access visits for the applicant until her departure and then provided for reasonable access to the child as could be arranged between the parties in either Canada or Japan which also included telephone access or Skype/Face Time access depending on the availability of same.

[12] The matter returned to court on August 24, 2017 at which time the respondent mother confirmed that her and the child would be leaving the country on August 31, 2017. At that time, there was some suggestion that the applicant father would also be relocating to Japan in order to remain close to his son.

[13] By the end of May 2018, the matter had returned to our court approximately 12 times with no significant progress or change in the situation. In fact, it appears that the applicant father moved to Japan approximately one month after the mobility order was granted and was able to find a temporary job pursuant to temporary visa which also allowed him to exercise access with his son Kai. On the May 31, 2018 court appearance, the court began questioning if it still had jurisdiction to continue with this matter. Counsel requested time to confirm their retainer and to do some preliminary research on the issue.

[14] On June 21, 2018, the court clearly explained to the parties that it was questioning its jurisdiction to continue dealing with this matter and the parties were provided time to research the issue and the matter was adjourned to August 16, 2018 for formal submissions on that issue.

The Law and the Parties' Positions

[15] Section 22 of the Children's Law Reform Act mentions 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

(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); 2016, c. 23, s. 6.

Abduction

(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).

[16] Counsel for the applicant father argues that the respondent attorned to the jurisdiction of this court when the application was originally filed. The court clearly had jurisdiction at that time and the court was correct in assuming jurisdiction at that time. He now asks "how can the court lose jurisdiction?" He in fact argues that section 22 of the Children's Law Reform Act suggests that the court shall in fact maintain jurisdiction. There is no proceedings commenced before the Japanese court and therefore this court still has jurisdiction and the respondent mother is still attorning to the jurisdiction of the court.

[17] Counsel for the Applicant father refers to the decision of Williams v. Boulter [2005] OJ 2292, a decision of the Ontario Superior Court of Justice made in April 2005. Counsel for the applicant argues that the facts are very similar as there was interim mobility motion that was granted allowing the child to move to Nova Scotia. Justice Panet mentions at paragraph 5 and 6 that:

"In my view it would be inconsistent with the intent of the legislation that the effect of an interim order in a proceeding allowing a parent to take the child out of the jurisdiction result in that court losing jurisdiction to deal with that child. I therefore conclude that I have jurisdiction to deal with the matter before me".

[18] On the other hand, counsel for the respondent mother argues that the issue of jurisdiction never in fact came up during these proceedings and the respondent mother had no other alternatives but to accept jurisdiction due to financial issues, language barriers and ongoing issues with immigration. He goes on by saying that the child's habitual residence is not in Ontario and therefore this court did not have jurisdiction to deal with this matter.

[19] He in fact refers to the Ontario Court of Appeal decision in Turner v. Viau, 26 RFL (5th) 440 which confirms that a court may exercise jurisdiction over a child not habitually resident in Ontario at the time of the commencement of the application only if all the six criteria mentioned in that section have been satisfied. Therefore, he suggests that the court did not have jurisdiction as the 6 criteria in section 22(b) have not been met.

Analysis

[20] The Children's Law Reform Act provides a number of ways for Ontario courts to assume jurisdiction and make a custody order. In the case at bar, only the provisions in section 22(1)(a) or section 22(1)(b) could apply with the major difference being where the child is habitually resident.

[21] Kai Furuta was born in Japan on April 4, 2014. He lived with both of his parents in Japan until April 2016 when the applicant father moved to Canada. Kai remained with his mother in Japan until August 2016 at which time both of them travelled to Canada with the plan to return the following September or October. The relationship between the parties deteriorated in the fall of that year and Kai resided with his mother at a halfway shelter until the court granted the respondent mother permission to return to Japan in August 2017. Their return was not possible until that time as the applicant father was withholding the child's passport and had destroyed the respondent mother's credit cards. Kai has been residing with his mother in Japan since then.

[22] Kai is now approximately 4 ½ years old. He has lived in Japan all of his life save and except between August 2016 to August 2017. As already mentioned, his stay in Canada was prolonged for reasons out of the respondent mother's control. In any event, Kai has clearly lived most of his life in Japan. Accordingly, it is this court's view that Kai Furuta's habitual residence is in Japan and not Ontario.

[23] With this finding having been made, it is therefore clear that this court can only assume jurisdiction over this matter pursuant to section 22(1)(b) of the Children's Law Reform Act. In reviewing this section, it is clear that all of the six criteria as listed in that section must be satisfied in order for the court to have jurisdiction over the matter. It is also interesting to note that contrary to 22(1)(a), Section 22(1)(b) does not make reference to the habitual residence of the child at the commencement of the application. The physical presence of the child is only another factor to be considered among many outlined in section 22(1)(b).

[24] When the proceedings were commenced in the fall of 2016 and until the departure following the argument of the mobility motion in August 2017, all six criteria were satisfied. The child and both parties were physically present in Ontario and the balance of convenience clearly dictated that the matter proceed in Ontario as the issue of ongoing access, temporary child support and the eventual issue of mobility be decided here. As the parties and the child were physically in Ontario, the substantial evidence concerning the best interest of the child was also available. The parties were not before any other tribunal or courts in either Canada or Japan and due to their physical presence in Ontario, the child had a substantial connection to Ontario. Therefore, this court clearly had jurisdiction to deal with the matter on a temporary basis as it did.

[25] One of the major arguments of the applicant father is the fact that the respondent mother attorned to the jurisdiction of this court. I adopt the reasoning of the Ontario Court of Appeal in the decision of E. (H.) v. M. (M.) 2015 ONCA 813 which confirms that the Children's Law Reform Act makes no reference to attornment. I agree that it would be an error in law to find that attornment is crucial to whether the court had jurisdiction to entertain a custody claim. At best, as ruled by the Ontario Court of Appeal, attornment can be only one factor to be considered under the analysis under section 22(1)(b).

[26] I also do not accept the applicant father's reference to the Williams v. Boulter decision of the Superior Court of Justice. That matter dealt with mobility between provinces. What we are dealing with in our particular matter is mobility between countries which in my view clearly distinguishes our matter as we do not have freedom of mobility between countries as we do between provinces. Our country, as all other countries in the world have strict immigration laws that foreigners need to respect in order to enter and remain in our country. This in fact was one of the reasons why the court needed to act in an expedited matter to deal with the mobility issue in August 2017 as the respondent mother's temporary visa was ending and she would therefore be in this country illegally.

[27] As mentioned earlier, nothing much has happened on this matter since the hearing of the mobility motion in August 2017. The court has now received confirmation that the applicant father is now living in Japan on a temporary work visa. He relocated shortly after the granting of the mobility motion in order to be closer to his son. Accordingly, neither party nor the child are presently residing in Ontario and have not been since October 2017 save and except some possible short visits by the applicant father.

[28] Any medical evidence, educational evidence or information concerning daycare or extracurricular activities of the child are in Japan. The substantial amount of evidence on these issues is not in this jurisdiction. This can also be extended to say that the child has no real or substantial connection to Ontario as he was here for what was supposed to be a short visit of a few months and had to be extended due to the withholding of passports and credit cards and the lack of ability to return to his native country with his mother.

[29] If this matter does in fact proceed to trial there is no assurance that the respondent mother or in fact any of her witnesses would even be allowed to enter Canada due to some uncertainties concerning her immigration status. How would it be in any way fair to force the respondent mother to proceed in this court when we are not even sure if she is allowed to return to Canada. Obviously, the applicant father has no immigration issues in Japan as he has been there since September 2017 and in fact has lived and worked there since September 2011 until now save and except for a period of 17 months from April 2016 to September 2017.

[30] The parties, the child and most if not all witnesses who could testify to the well-being of the child are not in Ontario. Therefore, the balance of convenience clearly dictates that it is inappropriate for jurisdiction to be exercised in Ontario.

Conclusion

[31] In reviewing the six criteria as outlined in section 22(1)(b) of the Children's Law Reform Act, this court concludes that the criteria as listed in subsection 22(1)(b)(ii), (v) and (vi) have not been met. As mentioned earlier, in order for this court to have jurisdiction on this matter, all six criteria have to be satisfied. Accordingly, this court no longer has jurisdiction to deal with this matter.

[32] Under those circumstances and as provided by section 106 of the Courts of Justice Act, this court orders a stay of proceedings. The matter can only be returned to this court within the next six months with leave granted by motion in the event that the status of the parties or the child changes during that period of time.

Released: October 16, 2018

Signed: Justice A.H. Perron