ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-17808
DATE: 20120221

BETWEEN:

Patrick Dovigi Applicant – and – Mojdeh Razi Respondent

Harold Niman and Jeffery Wilson, for the Applicant

Esther L. Lenkinski, for the Respondent on the issue of jurisdiction only

HEARD: February 14, 2012

KITELEY J.

REASONS FOR DECISION

[ 1 ] Audrey Razi was born on January 14, 2012 in California. The Applicant and the Respondent are her parents. On January 17, 2012, the Applicant brought an Application in Ontario pursuant to the Children’s Law Reform Act ( CLRA ) in which he seeks temporary and permanent shared custody and equal decision-making.

[ 2 ] On January 19 th , the Applicant signed his affidavit in support of his motion dated January 19 th and returnable January 26 th in which he sought various orders including a temporary order that he and the Respondent have shared custody of the child and an order that the Superior Court of Justice has and intends to exercise jurisdiction in this matter. In addition, affidavits were filed by Deborah Mecklinger (Parenting Coach), Dr. Joseph Goodman (Clinical Psychologist), and Emina Begg (friend).

[ 3 ] On January 26 th , I dealt with the motion in a preliminary way. Ms. Lenkinski had been retained by the Respondent for the limited purpose of addressing the issue of jurisdiction. Ms. Lenkinski advised that the Respondent had or was in the process of commencing proceedings in California. (In fact, on January 23 rd , the Respondent’s Petition to Establish Parental Relationship was issued in the Superior Court of California in the County of Los Angeles in which she sought custody of the child.) On January 26 th , Ms. Lenkinski asked for an adjournment of three weeks.

[ 4 ] The endorsement I made included the following:

In November 2011 when the mother left Ontario for what the father understood was a visit to California, the evidence is clear that the mother and the father were habitually resident in Ontario. On that basis, I find that Ontario has jurisdiction to make a temporary order under the Children’s Law Reform Act with respect to the child. The issue of jurisdiction will be considered again after responding materials are filed.

[ 5 ] I established a timetable that required the Respondent’s material to be served no later than February 7 th and the Applicant’s reply material, if any, by February 10 th and the motion was adjourned to February 14 th . Pending the return of the motion, I directed that the Respondent would ensure that the Applicant had visits with the child. I also ordered that during the periods that the Applicant was in Los Angeles to visit the child, the Respondent was directed to ensure that he would not be personally served with any court documents related to the California proceedings.

[ 6 ] On January 30, 2012, a Notice of Constitutional Question (NCQ) was served on behalf of the Respondent. I shall return to the significance of this below.

[ 7 ] The Respondent’s affidavit is dated February 7 th . An affidavit dated February 7 th of Ms. Lenkinski’s law clerk was also served attached to which was a declaration by Leslie Shear attesting to California law as it related to the matters in issue.

[ 8 ] The Applicant served documents in reply, namely: his affidavit sworn February 10 th ; the affidavit of his mother sworn February 8 th ; the affidavit of Brittany Twiss (articling student at Mr. Niman’s firm) attached to which was a declaration by Lance S. Spiegel attesting to California law and responding to the declaration made by Leslie Shear; the affidavit of David Andrews (friend of the Respondent); affidavit of Adriana Remdes (nurse engaged by the Applicant for post-natal care in Toronto).

The Children’s Law Reform Act

[ 9 ] The following excerpts from the Children’s Law Reform Act are relevant:

S. 19 The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents or 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;

(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.

S.20 (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. . . .

S.21 (1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. . . .

s.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.

(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

whichever last occurred.

s.24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

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.

Analysis

[ 10 ] Section 22 is the source of jurisdiction. There are two options: s. 22(1)(a) where the child is habitually resident in Ontario at the commencement of the application; and s. 22(1)(b) where the child is not habitually resident. The alternative in s. 22(1)(b) does not apply because the child was not physically present in Ontario at the commencement of the application.

[ 11 ] It is important to note that habitual residence is defined in s. 22(2) of the CLRA . Of the three criteria, only one applies, namely whether Audrey is habitually resident in the place where she resided with both parents.

[ 12 ] Audrey has never resided in any place with both parents. Does that mean that Ontario has no jurisdiction?

[ 13 ] Counsel have referred to cases dealing with the term “habitual residence” many of which involve applications under the Hague Convention . However, the CLRA contains its own definition of habitual residence. I am mindful of the article written in McLeod, Child Custody Law and Practice CCLPRAC 3(3) in which the author at page 5 observed that one must be cautious about importing the definition of habitual residence developed by the courts under the Hague Convention . The distinction between “habitually resident” in CLRA cases and in Hague Convention cases appears to have been accepted by the Ontario Court of Appeal in Korutowska-Wooff v. Wooff 2004 5548 (ON CA) , [2004] O.J. No. 3256 at para 9 .

[ 14 ] I turn to the evidence before me. Leaving aside the paragraphs or portions of paragraphs challenged by counsel for the Respondent for non-compliance with Rule 14(18) and (19) and leaving aside the details of the versions which each of the Applicant and the Respondent presented which are disputed, the undisputed facts are these:

(a) The Applicant is 32 years old and was born in Ontario and has lived in Toronto for many years. His extended family lives in Ontario. The Respondent was born in Iran 36 years ago and has lived in Toronto since 1988. Her father, step-mother and older brother reside in Toronto. Her mother is deceased. The Respondent has friends and relatives in California. Both the Applicant and the Respondent are Canadian citizens.

(b) The Applicant is an entrepreneur whose business was primarily in Ontario but has recently expanded to other provinces. The Applicant owns a condominium and a recently purchased home in Toronto as well as a cottage in Muskoka and a home where his mother resides in Sault Ste Marie, Ontario.

(d) The Applicant and Respondent met in early 2009 and started dating in June 2009. The relationship was tumultuous.

(e) The Applicant and Respondent had broken up in early May 2011 and the Respondent learned in late May that she was pregnant.

(f) Between early June and mid September, the relationship was in a state of flux. In June they resumed their relationship. In July they became engaged. September 24 th was chosen as the wedding date and preparations were made.

(g) The Applicant was hesitant about the immediacy of the wedding. There were issues about a marriage contract. Just before the wedding date, the wedding was called off.

(h) On September 1, 2011, following an ultrasound, the radiologist said that the child may have had ecogenic bowel which has significant consequences. Both the Applicant and the Respondent investigated options for a second opinion. On October 7 th , the Applicant and Respondent flew to Los Angeles to consult with Dr. Tabsh who concluded that the child did not have ecogenic bowel. They returned to Toronto. The Respondent continued to have concerns. The Applicant arranged a consultation with Dr. Nevo in Toronto.

(i) The Applicant and Respondent continued to have a great deal to do with each other. He hosted a birthday party for her on September 25 th . They held a baby shower in a restaurant on November 6 th . As indicated, they consulted a physician in California and in Toronto.

(j) According to the Respondent , even though the wedding was called off, she said they continued to be a couple. She said the final break up occurred in November when she found out he was seeing another woman. According to the Applicant , the relationship ended in September and the Respondent went to California in November after she learned about his new relationship. In other words, while they disagree about the extent of the relationship after the wedding was called off, they do agree that it was a turning point when the Respondent found out about the Applicant’s new relationship.

(k) The Respondent had rented a unit in a condominium building. In the fall of 2011 she purchased a unit in the same building with the expectation that she would live in it with the baby. The closing of the sale occurred on December 15, 2011.

(l) On November 26 th when she was 7 months pregnant with a due date of January 24 th , the Respondent went to California. She told the Applicant she was going for a visit with extended family.

(m) When she left for California, both the Applicant and the Respondent were habitually resident in Ontario.

(n) In November and December the Respondent told the Applicant that she was considering whether to have the baby in California or in Toronto.

(o) After the Respondent left, the Applicant was in touch regularly but the Respondent became less responsive. In a letter dated December 19, 2011, Mr. Niman inquired of Ms. Lenkinski when Ms. Razi would be returning for the birth of the child and confirming the Applicant’s expectation that he would be present for the birth. In a letter dated January 3 rd , Ms. Lenkinski wrote the following:

. . . She and your client thus traveled to Los Angeles, California, together, in September 2011 [sic] to consult with an obstetrical specialist and obtain a second opinion. At that time, Ms. Razi was advised that the amniocentesis was, indeed, risky and an unnecessary procedure. Ms. Razi continues to be under the care of this physician.

Ms. Razi is confident in the abilities of this particular physician and, as such, has decided to have the birth in Los Angeles, California. . . . Mr. Dovigi should not attend any medical appointments and/or the birth of the child. This would cause Ms. Razi, and by extension, the baby, unnecessary stress and strain.

The baby is due at the end of January 2012. When Ms. Razi returns to Toronto, she fully intends to arrange for Mr. Dovigi to see the baby.

(p) The child was born on January 14 th . The Respondent did not inform the Applicant. The Applicant found out from a friend. He contacted the Respondent but she was unresponsive to his inquiries about the child and about his requests to visit the child.

(q) As the Applicant learned later, on January 12 th the Respondent indicated on her Facebook page that she was having the baby in Los Angeles and she would be there “ for the next few months”.

(r) On January 25 th , the Respondent’s lawyer in California (Barry P. King) wrote to Mr. Niman and indicated, amongst other things, that “it has been her settled intention since her arrival here to establish residence in the United States and raise Audrey in California”.

(s) On February 4 th , the Respondent posted a message that she would be there “ for a few months”.

(t) The first time the Respondent formally indicated her intention was in paragraph 119 of her affidavit sworn February 7 th in which she said she intended to permanently live in California.

(u) The Respondent is living in the home of Tim Mulcahy. She had been engaged to him before she met the Applicant. He has homes in California, Ontario and Quebec. She had been involved in the interior design of those properties.

(v) The contents of the emails between the Applicant and Respondent are an embarrassment to both of them.

[ 15 ] There are many disputed facts including the key fact as to when, if ever, the Respondent formed the intention to live in California. At paragraph 129 of her affidavit, she said that in or about October 2011, she contacted an immigration lawyer to find out how she could reside permanently in California and she asked that he begin putting together the necessary information. At paragraph 139 she said that by November 2011 she had made up her mind to move to California permanently and she had taken steps to regularize her immigration status in the U.S. She provided no corroboration of such investigations. And in any event she did not tell the Applicant at that point. At paragraph 140 of her affidavit she said that she did not tell the Applicant in November because she was “concerned that he would interfere with” her plans. She said that the Applicant told her that he had tracking devices on the cell phones of his employees and she was afraid he could track her with her cell phone. Yet, as the Applicant pointed out at paragraph 51 of his February 10 th affidavit, she continues to use his company’s SIM card in her Ipad. Furthermore, in paragraph 161 of her affidavit sworn February 7 th , she said that “Tim and I are taking things slowly with our relationship” yet paragraph 4 of the NCQ served January 30 th indicates that “the Respondent has a new partner in California, with whom she is residing and who is providing both emotional and financial support”. The material filed on her behalf indicates uncertainty on this key issue of intention to move permanently to California.

[ 16 ] On this record, without cross-examinations or oral evidence, I must be cautious about drawing conclusions. As the Court of Appeal indicated in paragraph 18 of Ierullo v. Ierullo [2006 CarswellOnt 5887 ] where it is necessary to make credibility findings on a significant matter in dispute where the record contains only the competing affidavits of the two parties, the motion cannot be properly decided and a trial is required.

[ 17 ] That is not the case here for two reasons. First, on the key issue as to whether the Respondent told the Applicant she intended to remain in California, there is no credibility issue. She agreed that she did not tell him before the birth of the child.

[ 18 ] Second, on the key issue as to when she formed the intention to stay in California, what she did in furtherance of that intention and whether her explanation for not telling the Applicant is reliable, there are competing affidavits: the Respondent asserting that she did not tell him in November because he might “interfere with her plans” and because she feared he would track her; and the Applicant asserting that she was punishing him because he did not respond to her demands and because he became involved in a new relationship. But on this key issue, there is also independent evidence supporting the Applicant’s assertion:

(a) the letter from her Toronto lawyer dated January 3 rd indicating an intention to return to Toronto after the birth of the child;

(b) on January 12 th she put a message on her Facebook page that she would be having the baby in Los Angeles and that she would be there “for the next few months”;

(c) an affidavit from her friend that he spoke with her on January 18 th and she told him she would be back to Toronto as soon as she was “cleared to fly” which she says in paragraph 165 of her affidavit is the middle of March;

(d) the letter from her California lawyer dated January 25 th that it had been the Respondent’s settled intention “since her arrival” in California to establish residence in the United States; and

(d) on February 4 th she posted a message on her Facebook page that she would be in California “for a few months”.

[ 19 ] On this record, I draw the inference that the intention to live in California was not formed until after the child was born and indeed was probably formed as a result of the proceedings commenced by the Applicant in Ontario.

[ 20 ] I agree with Ms. Lenkinski that the Respondent has mobility rights guaranteed by the Charter of Rights and Freedoms . The Respondent can live where she wants to live. I do not agree that the mobility rights of a pregnant mother automatically determines jurisdiction over the child. I agree that in Canada, there is no jurisdiction in courts to entertain an action affecting a foetus before the child’s birth and that the court has no parens patriae jurisdiction over unborn children. [ Winnipeg Child & Family Services v. G. (D.F.) [1997] 3 S.C.E. 925] That means that the Respondent could travel to California. It does not mean that by travelling to California and having the child there that the court in Ontario loses jurisdiction because, as a result of that action, the child has not resided in a place with both parents as described in s. 22(2) of the CLRA .

[ 21 ] As indicated at page 1 of the McLeod article above, the purposes of the jurisdictional requirements are (a) to recognize that concurrent jurisdictions ought to be avoided and (b) to discourage abduction of children. At the time the application was commenced in Ontario on January 17th , the Applicant believed the Respondent would be returning to Ontario. The issue of concurrent jurisdictions arose when the Respondent filed her Petition in California on January 23 rd . Consequently, that purpose of the jurisdictional requirements does not apply. Furthermore, to decline to take jurisdiction in these circumstances would be to encourage a pregnant mother to depart from the original jurisdiction in circumstances that are arguably analogous to abduction.

[ 22 ] In Johnson v. Athimootil , ( 2007 CarswellOnt 6277 ) the parents and 3 children lived in Toronto for 5 years and then moved to Saudi Arabia. The mother and one child moved back to Toronto while the father and the other two children stayed in Saudi Arabia. The court took jurisdiction over the child in Toronto and the issue was whether the court had jurisdiction over the two children in Saudi Arabia. Justice Harvison Young held that the last residence at which both children lived with both parents was Saudi Arabia and that remained their habitual residence. There was no jurisdiction under any subsection of the CLRA.

[ 23 ] Justice Harvison Young pointed out at paragraph 29 that courts will invoke jurisdiction on the basis of parens patriae to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within their ambit. She decided that it was necessary to use parens patriae to fill the gap caused by one child being covered by the CLRA but not the other two. She held that there was no evidence that another court could or would assume jurisdiction. She noted that this was one of those rare cases in which there is a real and substantial connection between the mother, the two children in Saudi Arabia and Ontario despite the fact that the children were not habitually resident in Ontario at this point. She observed that courts settle questions of jurisdiction by considering policy-driven factors such as the doctrine of comity and the principle of certainty and predictability and that the real and substantial connection test is meant to encompass those policies. In light of the absence of proceedings commenced in Saudi Arabia and that fact that the mother had been in Ontario approximately 6 months, the concerns relating to multiplicity of proceedings and potentially conflicting results were weak. In addition, even on the father’s evidence, the two children in Saudi Arabia were missing their sister tremendously.

[ 24 ] In the case before me, the Applicant and the Respondent were “habitually resident” in Ontario on November 26 th . There is a gap in establishing “habitual residence” of the child within the meaning of the CLRA because of the acts of the Respondent. The Applicant and the Respondent have a real and substantial connection with Ontario. The proceedings were commenced in California only after the Application was filed and served in Ontario. This is a situation in which it is necessary to invoke the parens patriae jurisdiction to deal with the uncontemplated situation where it is necessary to do so for the protection of the child who falls within that ambit. I am mindful that California’s laws and procedures are similar to those of Ontario in that there are jurisdictional requirements, parents have equal rights, and the best interests of the child is the principle upon which judgments are made. However, until the Respondent allegedly changed her mind, the expectation was that Audrey would be parented in Ontario. There is evidence as to their respective parenting abilities in Ontario. To protect the expectation that Audrey would be parented in Ontario, this court must take jurisdiction. There is no basis to refrain from exercising jurisdiction either under s. 19(b) or s. 25 of the CLRA .

California Law

[ 25 ] I have received declarations from experts on behalf of both the Applicant and the Respondent. They agree on some issues and disagree on others. As Ms. Lenkinski observed, California has a concept of “home state” which is not known in Ontario. In these reasons, I have decided on the basis of whether Ontario should take jurisdiction. I make no determination as to whether California has concurrent jurisdiction.

Onus

[ 26 ] During submissions, I raised the issue as to whether the Applicant or the Respondent had the onus of establishing jurisdiction. Mr. Niman took the position that the onus was on the Respondent to satisfy me that Ontario did not have jurisdiction. Ms. Lenkinski took the position that the onus was on the Applicant to satisfy me that Ontario did have jurisdiction.

[ 27 ] As indicated in s. 22(1) above, the court must be satisfied that it has jurisdiction before any order can be made. On that basis, I assume that the onus was on the Applicant to establish jurisdiction and he has done so. [ Ireland v. Ireland [2011] O.J. No. 4311 at para. 27]

Attornment

[ 28 ] Having arrived at the foregoing conclusion I need not address the issue of attornment but I asked for submissions and will deal with them.

[ 29 ] As indicated above, on January 30 th , a Notice of Constitutional Question was served on the Applicant and on the Attorney General of Ontario and of Canada and was filed in which the Respondent gave notice of her intention to question the applicability of s. 6 of the Canadian Charter of Rights and Freedoms in relation to the matter of the proper forum to determine matters of custody and access in relation to Audrey. In paragraph 11 of the NCQ, the Respondent claimed that California has exclusive jurisdiction over the matters of custody and access of Audrey and in the alternative if the Superior Court of Justice of Ontario finds that it has concurrent jurisdiction, that Ontario should decline to exercise its jurisdiction on the basis that the Respondent’s mobility rights, pursuant to the Charter of Rights and Freedoms would be infringed if the matter were determined in Ontario and pursuant to Ontario law.

[ 30 ] When an NCQ is filed, there is a procedure to be followed during which the court will receive evidence and submissions and make a determination of the constitutional question. I have not heard any evidence and have received only brief submissions. During submissions, I inquired of Ms. Lenkinski whether, by serving and filing the NCQ and seeking a remedy in Ontario, the Respondent had attorned to the jurisdiction. I asked a similar question of counsel for the Applicant in reply submissions. None of the counsel had anticipated my question and all were unprepared to respond authoritatively. I indicated that I would require written submissions on the point. I observed as well that since, I had imposed an ambitious timetable on January 26 th , and since the NCQ had been served on January 30 th , that, if it constituted attornment, counsel for the Applicant might consider whether they would agree to permit the withdrawal of the NCQ.

[ 31 ] Later in the day of February 14 th Ms. Lenkinski served a Notice of Withdrawal of the NCQ.

[ 32 ] In the written submissions filed on behalf of the Applicant on February 15 th , counsel argued that serving and filing the NCQ did constitute attornment and that the NCQ could only be withdrawn by leave of the court. In the written submissions filed on behalf of the Respondent on February 17 th , counsel argued that serving and filing the NCQ did not constitute attornment; that leave of the court was not required to withdraw it; that, if leave is required, counsel asked for leave; that filing the NCQ was unnecessary because the issue of mobility could be argued in the absence of a NCQ.

[ 33 ] As indicated in paragraph 11 of the NCQ, the Respondent invoked the jurisdiction of this court to provide a substantive and affirmative remedy. That constitutes attornment. [ Wolfe v. Pickar 2011 ONCA 347 () , [2011] O.J. No. 2035 (C.A.) at para. 44 ; Toronto Dominion Bank v. Switlo [2004] A.J. No. 301 (Alta. Q.B.) at para 19 ; Krisko v. Krisko 2000 CarswellOnt 3774 (C.A.) at para. 7 and 10] I agree with counsel for the Respondent that leave is not required to withdraw the NCQ. [Rule 12(2)] Withdrawal means that there may be cost consequences and there may be an issue about the extent to which the Respondent may be cross-examined about the factual allegations in the NCQ. Withdrawal means that the Respondent no longer intends to rely on the Application or pursue it further. Withdrawal does not mean the Application for relief pursuant to the Charter never occurred. Withdrawal does not mean that the act of attornment never occurred.

ORDER TO GO AS FOLLOWS :

[ 34 ] The Ontario Superior Court of Justice has and intends to exercise jurisdiction in this matter.

[ 35 ] The motion is adjourned to March 8, 2012 at which time a timetable will be established for (a) a case conference, (b) the hearing of the motion for temporary and other relief as set out in the Applicant’s notice of motion and (c) written submissions as to costs of the attendance on January 26, 2012 and on February 14, 2012.

Kiteley J.

Released: February 21, 2012

COURT FILE NO . : FS-12-17808
DATE : 20120221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Patrick Dovigi Applicant AND Mojdeh Razi Respondent

REASONS FOR JUDGMENT

Kiteley J.

Released: February 2012

Dovigi v. Razi, 2012 ONSC 1199

Case Summary