SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-11-17686
DATE: April 27, 2012
APPLICANT: Harry Perez-Lopez
RESPONDENT: Debbie Patricia Cordero
BEFORE: Mr. Justice Perkins
LAWYERS:
M.E. Zagazeta Garcia, for the applicant father
C. Falquez-Warkentin, for the respondent mother
HEARD: April 23, 2012
ENDORSEMENT
Issues on the motion
[ 1 ] This motion is to determine whether Ontario will exercise jurisdiction over two children, ages 7 ½ and 5½, who have been living in Mexico for the last 18 months.
[ 2 ] The children were born in Ontario and lived here for most of their lives. The father, who still lives here, wants this court to exercise jurisdiction and award him access to the children under the Children’s Law Reform Act. He is not asking for custody. The mother lives in Mexico with her husband, whom she married in October, 2010. The two children are living with the mother and her husband. She and her husband are now also the parents of twins born in July, 2011. She says it is inappropriate for this court to deal with the children because they are no longer connected with Ontario and because the father failed to take timely steps to assert his rights here.
[ 3 ] The parties are no strangers to the courts of Ontario. This will be outlined below.
[ 4 ] The parties are both 36 years old. The father is from Peru. He has lived in Canada for about 20 years and has permanent resident status in Canada. The mother has lived in Ontario almost all her life until her recent departure to Mexico, though her family of origin is connected with Mexico. The parties were never married, but lived together in Ontario from 2003 to 2010. They are the parents of the two children in issue, both of whom were born here and are Canadian citizens. The parties lived separate and apart under the same roof for over two years, if the mother is believed, or for a few months, if the father is correct, ending in July, 2010. Shortly after that, the mother took the two children with her to Mexico.
[ 5 ] Many of the facts are contested in this case, but the picture is clear enough for me to decide the jurisdiction issue on the affidavit evidence presented by the parties. The parties’ cohabitation was highly conflictual. Though the father accuses the mother of domestic violence, all the orders of the Ontario Court of Justice, in both family and criminal cases, are consistent with abuse by the father of the mother rather than the other way around.
Result
[ 6 ] Jurisdiction is declined. The father’s application is stayed.
Facts
[ 7 ] A chronology of the main facts, both contested and uncontested, is set out below.
Date Event
June/July, 2003
Parties begin cohabiting as spouses.
November 16, 2004
First child is born.
September 24, 2006
Second child is born.
December, 2008
Parties separate finally, according to mother, after a previous separation and unsuccessful attempt at reconciliation, but remain in same home.
March 23, 2010
Parties separate, according to father.
June 1, 2010
Father writes and signs a note: “I Harry Perez give Patricia Cordero full custody of my children [names].”
June 15-17, 2010
Father is charged with assaulting mother, is held in custody and then released on bail. Bail terms prohibit father from contacting mother.
July, 2010
Father and mother are still in contact. Father says mother initiated contact and they reconciled. Mother denies it.
July 29, 2010
Mother leaves children in father’s care while she is away on a work assignment. Father discovers that mother is involved with and planning to marry a man in Mexico (whom she marries in November).
August 1, 2010
Father transfers children to the care of their nanny. He intentionally takes an overdose of medication, gets drunk and telephones mother repeatedly. While drunk he damages property of a hotel and pulls fire alarm.
August 5, 2010
Father pleads guilty to assault of June 15 and new charges of criminal harassment, breach of recognizance, breach of probation, forcible entry, mischief and false fire alarm laid on August 2. Probation order prohibits direct and indirect contact with mother except through counsel for family court matters, to attend family court or through third party for business purposes. It also prohibits father from attending within 100 metres of mother except at family court and requires access to children to be arranged through a mutually agreed third party.
August 28-29, 2010
Father is charged with breaching bail terms for contacting mother in July and August and surrenders to police. He is held in custody.
August 30, 2010
Mother files application with Ontario Court of Justice seeking custody, child support and permission to travel with children without father’s consent. She also files a motion without notice for custody, which is granted, to be reviewed on September 22.
September 22, 2010
Father’s friend appears as his agent at OCJ motion hearing. Father is still in jail. Motion is adjourned to case conference November 29; father is to file responding materials by November 10.
September, 2010
Mother travels with children to Mexico. She says father knew and consented.
October 5, 2010
Father is released on bail. He is required to reside at family home; mother and children are no longer there.
October, 2010
Father obtains telephone number in Mexico of mother’s future husband, calls him and warns him against marrying mother. Mother and new husband get married in Mexico. Mother becomes pregnant almost immediately.
November 22, 2010
Mother is granted immigrant status in Mexico.
November 29, 2010
Case conference at OCJ. Father has not filed answer or financial statement. Mother tells judge she wants to travel with children for a visit to Uruguay, where she has family. She does not tell court she is staying in Mexico with children. Consent temporary order without prejudice is made, providing mother to continue to have temporary custody and father to have weekly access starting December 24 after mother’s return. Parties were clearly intending that mother would have permission to travel but consent signed by parties does not refer to travel. I have not been provided with the signed order. Order also includes term for child support to be paid by father to mother from December 1.
December 13, 2010
Mother’s obstetrician recommends against air travel in December.
December 15, 2010
Both children are granted immigrant status in Mexico.
December 24, 2010
Father attends at agreed access location and discovers mother and children are not there and people living there do not know about access plans.
January, 2011
Father says he learns mother did not go to Uruguay, is in Mexico with children, is pregnant and is not able to travel because of pregnancy complications.
January-February, 2011
Father is granted extension of time to file responding materials on January 18 and again on February 1.
February 4, 2011
Mother files affidavit by Lorelei Lucero in OCJ confirming mother went to Mexico in September, 2010 with children and is still in Mexico and attaching medical opinion that mother is unable to travel. Father has not filed answer or financial statement and has not paid child support.
February 17, 2011
Father has still not filed answer in response to mother’s application. Father’s lawyer asks for and obtains order to get off record. OCJ judge refuses to extend time for father to respond to application and permits mother to proceed to uncontested trial on affidavit evidence.
May 18, 2011
Mother files affidavit for uncontested trial in OCJ, sworn April 26, 2011. In it she deposes she is living in Mexico with the children, having travelled there in September, 2010 “with the respondent’s consent for vacation purposes. While in Mexico I met an old friend that rekindled an old romantic relationship. I did not anticipate getting pregnant or the high risk of my pregnancy, evidence of which has been provided in these proceedings, and was not able to travel back to Canada. ... As a result of these unexpected events, I have decided to remain in Mexico with the children.” She further says “father has been aware of my residency in Mexico with the children as early as at least October of 2010” because he contacted “my current partner by phone to inform him that I was no good and that he would regret his relationship with me.” No child support has been paid under order of November 29, 2010.
May 24, 2011
OCJ grants final uncontested order for custody to mother, no access to father.
June 3, 2011
Father consults a new lawyer who does not speak Spanish. She contacts mother’s lawyer in Mexico, who does not speak English.
June 17-20, 2011
Father retains his current lawyer, who does speak Spanish and who contacts mother’s lawyer in Mexico. Father begins paying child support.
September 15, 2011
Father’s lawyer writes mother’s lawyer in Mexico a letter, asking for access to children. Mother’s lawyer denies receiving it.
November 1-4, 2011
Father files this application and a motion without notice. Motion is adjourned to December 8 for service on mother’s lawyer. Father’s lawyer again writes mother’s lawyer.
November-December, 2011
Contact between parties’ lawyers in Ontario about court dates and disclosure. Access is raised. Mother is unwilling to have children come to Ontario without appropriate access supervisors.
January 3, 2012
Father proposes to exercise access in Mexico after January 24, 2012 court date.
February-April, 2012
Motion is on adjournment until heard.
Conclusions
[ 8 ] There is no doubt that the father knew as early as July, 2010 that the mother was involved with a man in Mexico. His telephone call to the man in October, warning against marriage to the mother, shows he knew there was a serious involvement, but I can not find he knew the mother intended to take the children there. When he returned to an empty home in October, however, the father must have suspected the children were with the mother in Mexico. Nevertheless, I can not find knowledge or acquiescence at this point.
[ 9 ] Once the mother had a custody order in her favour, as of August 30, 2010, it was open to her to remove the children from Ontario and begin the process of changing their habitual residence: see Children’s Law Reform Act, s. 22 (2) (b). This she did, by establishing them in a home she shared with her new husband and achieving immigrant status, first for herself and then for them. She registered them in school in the fall of 2010 (date uncertain, from the evidence) and in recreational activities. By December the children’s habitual residence, over which the mother had sole authority by virtue of the custody order of August 30, 2010, renewed September 22 and November 29, had been relocated to Mexico. They had by then assumed a new ordinary pattern of life, including school and recreational activities.
[ 10 ] There was certainly some deception or concealment by the mother, both toward the father and toward the court, in the period from November 29 to the end of December. While it may be – I do not conclude one way or the other – the mother actually intended to take the children on vacation to Uruguay, where she has family, her intention was clearly to make the children permanent and habitual residents of Mexico before the November case conference. Her agreement to provide access in Ontario at the end of December was at best hollow. The father was treated shabbily, being left to discover that not only were the children not there for access, but also that the purported access facilitators had never heard of the arrangement. However, the test for assuming or declining jurisdiction does not rest on poor treatment by one party of the other, though it is a factor to be weighed.
[ 11 ] It is clear the father knew by the end of January, 2011 that the children had been established in a new home in Mexico. Despite this knowledge and much earlier and well grounded suspicions, the father never took steps to defend the mother’s application in the OCJ, never moved against the custody order, never moved for access, never disclosed his finances as required for child support and never paid child support. After five months of inaction, the father was told by the OCJ judge on February 17, 2011 that his chances were at an end. But the mother left him yet another opportunity to take steps in the OCJ, which he did not take, until finally on May 18 she filed her affidavit in support of a final custody order. This was over eight months after the mother first obtained a custody order and three months after the OCJ judge directed that the mother could proceed uncontested to obtain a final order. This delay and the number of opportunities missed by the father amount in law to acquiescence to the children’s new mode of life in Mexico.
[ 12 ] The mother says that the father’s recourse to this court, rather than returning to the OCJ to try to change the orders made there, is an abuse of process. Of course, if Toronto had a family court of unified jurisdiction, this argument would not even be possible. Nor would the father’s defence, which is that he wanted recourse to a court with parens patriae jurisdiction, which the OCJ does not have. There are situations, generally gaps in a statutory scheme or situations not contemplated by a statutory scheme, where there is room for parens patriae to operate. This is not one of those situations. Sections 18-25 of the Children’s Law Reform Act are completely apt to the situation and there is no need to look beyond them.
[ 13 ] The mother is right, however, in her contention that the father should be justifying a change to the existing orders of the OCJ, rather than appearing here in a fresh case as if those orders did not exist. Those orders have not been appealed or set aside and will necessarily be considered as correctly made.
[ 14 ] Even if the children were still considered to be habitually resident in Ontario when the father started this application, it is open to this court to decline to exercise jurisdiction over them if “it is more appropriate for jurisdiction to be exercised outside Ontario”: CLRA, s. 25. The test is akin to balance of convenience, informed by the purposes set out in CLRA s. 19 (a) and (b).
[ 15 ] The father says the only evidence respecting the relationship between him and the children is to be found in Ontario. However, this neglects the fact that the children, whose memories, emotional health and feelings are central to the issue of access, especially given the domestic violence history in the family, are in Mexico. They have already been seen by a psychologist there. The father had the children in his care for only a very short time after the separation date he contends is valid.
[ 16 ] The mother, on the other hand, has always had the children in her primary care and this has been in Mexico since at least October, 2010. The children’s lives are now settled into a new routine and family home there. In young children, the most recent evidence is always the most valuable. The most recent year and a half, a large percentage of these children’s lives and a much greater time than what the father says is the period from the physical separation of the parents to his being restrained from returning to the family home, has been in Mexico.
[ 17 ] Though the mother’s concealment of important facts is not to be condoned, the children’s best interests will be best ascertained and protected by the courts of Mexico rather than those of Ontario operating at long distance from the children, from the evidence and from the enforceability of court orders.
[ 18 ] This court declines to exercise jurisdiction over the children and stays the father’s application.
[ 19 ] Costs are to be addressed initially in written submissions of not more than three pages, plus costs summaries and any relevant offers, to be served and filed in the continuing record. The mother is to submit hers by May 12. The father is to respond by May 26. The mother may provide a two page reply if desired by June 2. The mother is responsible for having the file sent to my attention. Either party may require an oral costs hearing of 30 minutes on a day arranged through the trial coordinator when I am sitting. If no costs hearing is requested by June 2, the costs decision will be made on the basis of the submissions in the record.
Perkins J.
Date: April 27, 2012