Court File and Parties

Ontario Court of Justice

Date: May 17, 2018

Court File No.: F 14/208

Between:

Bradley John McQuade Applicant

— And —

Holly Anne Cardiff Respondent

Before: Justice M.G. March

Heard on: May 17, 2018

Reasons for decision given orally on: May 17, 2018

Counsel

Peter Sammon — for the Applicant

Natasha Pappin — for the Respondent

Decision

M.G. March J.:

Introduction

[1] On February 12, 2018, I decided the issue of "habitual residence" in favour of the Respondent, Ms. Cardiff, albeit reluctantly. Having done so, my Endorsement for the parties read:

"This matter must be litigated in future, if need be, in the Province of Quebec."

[2] Four days later, the Applicant, Mr. McQuade, brought a Motion to Change while the subject child, Rylan McQuade, was physically present in Ontario. Rylan was physically present in Ontario because Ms. Cardiff was respecting the court ordered access Mr. McQuade is entitled to exercise. On February 12, 2018, when I decided the "habitual residence" issue, Mr. McQuade's access rights were not disturbed. He continued to enjoy access to Rylan in accordance with the earlier Order of the Ontario Court of Justice made by Radley-Walters J. on September 25, 2014 granting sole custody to Ms. Cardiff with delineated access rights to their son specifically set out for Mr. McQuade.

[3] Mr. McQuade is now seeking to bring himself within the exception to "habitual residence" under section 22(1)(b) of the Children's Law Reform Act. The Ontario Court of Justice can only exercise jurisdiction over a child who is not habitually resident in Ontario if all of the statutory criteria are met, namely:

(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).

[4] I cannot give effect to the argument made by counsel for Mr. McQuade that, at the commencement of his new Motion to Change brought February 16, 2018, all six criteria prevail to endow jurisdiction upon the Ontario Court of Justice to decide issues of custody and access over Rylan.

[5] The primary test for whether jurisdiction exists in law for an Ontario Court to decide issues of custody and access is section 22(1)(a) of the Children's Law Reform Act. That issue was decided on February 12, 2018. It is "res judicata". Resort to section 22(1)(b) can be had, only if all of the six criteria are met in sub-sections (i) to (vi).

[6] The subject child, Rylan, age 6, has lived in Chapeau, Quebec for the last three years. He resides with his custodial parent, Ms. Cardiff, there. He goes to school there. He enjoys his extra-curricular activities there. His speech pathologist is there. The vast majority of his life is spent there.

[7] That was the ratio for deciding what I did on February 12, 2018 – specifically that the Ontario Court of Justice lacked jurisdiction to make future determinations as to custody and access regarding Rylan (see paragraph 12 of those Reasons for Decision). Indeed, the best evidence touching on Rylan's best interests now emanates out of Quebec. It is the jurisdiction in which he, Rylan McQuade, has the most real and substantial connection (see section 22(1)(b)(ii) and (v) of the Children's Law Reform Act).

[8] While I sympathize with Mr. McQuade's efforts to play a greater role in Rylan's life, which I truly do wish Ms. Cardiff would come to appreciate as a blessing, not a curse, I have not been persuaded that the basis for my decision in declining jurisdiction over Rylan changed four days after I released my reasons regarding the issue of habitual residence, and directing the parties to the Court of Quebec for resolution of future custody and access issues.

[9] Accordingly, I will dismiss the Motion to Change brought February 16, 2018. There shall be no order as to costs. However, if further litigation touching on issues of custody and access are brought before this Court, I will not be so inclined in future.

Released: May 17, 2018

Signed: Justice M.G. March