ONTARIO COURT OF JUSTICE
DATE: 2025-03-12
COURT FILE No.: Guelph FO-25/31
BETWEEN:
Laura Elizabeth Clark
Applicant
— AND —
Simon Dykstra
Respondent
Before Justice S. E. J. Paull
In Chambers
Reasons on 14B Motion released March 12, 2025
Nora Sleeth ............................................................................................ counsel for the applicant
Respondent ............................................................................................................ unrepresented
Reasons
PAULL J.:
[1] The parties are the parents of one child, Samuel Simon Dykstra born […], 2019.
[2] Ms. Clark brings a 14B motion on notice with service occurring March 11, 2025, seeking various orders on an urgent basis including primary residence of the child with her in Fergus, Ontario with police enforcement.
[3] She deposes that she was served on March 7, 2025 with the Order and endorsement of Justice D. Isbester from the OCJ in Thunder Bay dated March 5, 2025 which found that she unilaterally moved the child to Fergus, Ontario and ordered her to return the child to Mr. Dykstra no later than 8 PM on March 12, 2025. If she failed to do so police assistance orders were to issue. The order further directed that neither party shall remove the child from the City of Thunder Bay except with a further court order or with the written permission of the other party. She alleges that she was not served with any other documentation including the originating application, motion, and supporting documents.
[4] She filed an application and this 14B motion in Guelph on the basis of allegations that the Guelph area was and remains the child’s habitual residence. She alleges that the parties’ time in Thunder Bay was temporary for approximately six weeks from late November 2024 to February 7, 2025 and that the child has only ever attended school in Fergus, Ontario. She also states that she returned with the child to Fergus with Mr. Dykstra’s consent.
[5] She further alleges safety concerns with Mr. Dykstra’s ability to care for the child given his past abusive behaviour and substance use. The child also has special medical needs which require medication and supports which Ms. Clark alleges Mr. Dykstra does not understand and is not capable of providing. She states that she has been the child’s primary caregiver since birth, and solely responsible for ensuring his special needs are addressed.
[6] She alleges that Family and Children’s Services of Guelph and Wellington County are involved and support her position. This is hearsay and there is no independent evidence from CAS to support this.
[7] Rule 5(1)(b) directs that a case dealing with decision-making and parenting time is to be commenced in the jurisdiction where the child habitually resides. Rule 5(2) outlines exceptions which permits the court to hear a motion in a jurisdiction that is not the habitual residence if it is satisfied that there is immediate danger to a child. However, the case shall be transferred to the jurisdiction referred to in Rule 5(1) immediately after the motion is heard, unless the court orders otherwise.
[8] Ms. Clark has not brought this as a motion without notice under Rule 14(12). Rather, she has brought this as a 14B motion to be heard in Chambers with service on Mr. Dykstra yesterday (March 11, 2025). The relief she seeks is not on consent and the motion was short served. Moreover, the relief she seeks is not procedural, uncomplicated, or unopposed as required under Rule 14(10), which makes a 14B motion addressed in Chambers inappropriate. While it was appropriate that she serve her motion, it should have been a notice of motion with service under Rule 14(11) alleging urgency and seeking an early date for a hearing.
[9] However, this is not the primary concern with Ms. Clark’s motion in this court. If her evidence is accepted it appears that she has a reasonable basis to claim that the matter proceed in Guelph and that the child remain in her primary care. However, the court cannot simply ignore the order of March 5, 2025. Neither can this court vary the order made in another proceeding in another jurisdiction. Further, as a result of the short service, Mr. Dykstra has not had the opportunity to respond.
[10] To avoid a duplication of proceedings and potentially conflicting orders, the proper jurisdiction needs to be dealt with first. The question is which court should make this determination.
[11] Section 66 of the Children's Law Reform Act sets out that where an application is made in one court, no application should be brought in another court. Only the original court can make a transfer order if it feels it is more appropriate to have the matter heard in the other court.
[12] I have no indication of which application was commenced first. What I do know is that another application has been brought in Thunder Bay and a temporary order already made, which I note was not without prejudice.
[13] Further, it is not clear whether Ms. Clark was served with anything other than the order and endorsement of March 5, 2025. If that order was granted without notice, Rule 14(15) required Mr. Dykstra to immediately serve the order together with all documents used on the motion. If Ms. Clark was only served with the order and endorsement, she must address this issue in that proceeding.
[14] As a result of a temporary order already having been made in another proceeding, and having no other information about when the applications were brought, I am not prepared to address the issue of the proper jurisdiction. In addition to the fact that another court has already made a temporary order, it would not be appropriate to address this and Ms. Clark’s other claims by way of a 14B motion in Chambers which was short served and not on consent.
[15] In the circumstances, I am satisfied that the issue of jurisdiction is more appropriately addressed in the proceeding underway in Thunder Bay. It remains open to Ms. Clark to file an urgent motion in that proceeding to address the safety concerns she alleges and the issue of the proper jurisdiction by seeking a finding of habitual residence in Guelph and the transfer of the matter to that court. She could have sought a suspension of the terms of the order of March 5, 2025 pending argument of the motions. In other words, she has remedies available to her but they rest, at least at this point, in the OCJ in Thunder Bay.
[16] I further note that if, as Ms. Clark alleges, Family and Children’s Services of Guelph and Wellington County have verified protection concerns with Mr. Dykstra and support the child remaining with her in Fergus Ontario, it has the authority to commence a protection application and to seek a temporary order. This would have the effect of staying any order and proceeding under the Children's Law Reform Act pursuant to section 103 of the Child, Youth and Family Services Act.
[17] I would also reiterate the sage comments of Justice Isbester in his endorsement of March 5, 2025 which urged the parties to communicate to achieve a reasonable resolution, while keeping the best interests of their child forefront in their discussions.
Order:
- The motion is dismissed, without prejudice to renewing the motion when the issue of the proper jurisdiction has been addressed.
Released: March 12, 2025
Signed: “Justice S. E. J. Paull”