SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D 1372/05
DATE: 2012/11/21

RE: Roseanne Bridgeman, Applicant

AND:

Eddison Balfour, Respondent

BEFORE: The Honourable Madam Justice D.L. Chappel

HEARD: October 30, 2012

ENDORSEMENT

I. INTRODUCTION

[ 1 ] These are my Reasons for Judgment on the issue of the jurisdiction of this court to hear two Motions to Change Final Order brought by the Respondent Eddison Balfour (“the Respondent”). The Respondent argues that the court has jurisdiction to hear the Motions. The Applicant’s position is that the Motions should be dismissed on the basis that the court lacks jurisdiction. For the reasons that follow, I conclude that this court does have jurisdiction, and that the Motions should be scheduled for a hearing before me as soon as possible.

II. BACKGROUND

[ 2 ] The parties were married on September 15, 2002. There is one child of their relationship, namely Isaiah Eddison Balfour, born […], 2003 (“Isaiah”). The parties separated in 2004. Following the separation, the Applicant Roseanne Bridgeman (“the Applicant”) commenced divorce proceedings in this court, in which she sought both a divorce and corollary relief. In the context of those proceedings, Lafrenière, J. made a final order on February 16, 2006 granting the Applicant sole custody of Isaiah and the Respondent access rights to the child. The order stipulated that the request for a divorce would proceed on an uncontested basis based upon one year’s separation. A divorce order was subsequently made in June, 2006.

[ 3 ] On December 9, 2008, the Applicant brought a Motion to Change the February 16, 2006 order. She sought an order permitting her to relocate with Isaiah to Florida. On August 21, 2009, Parayeski, J. granted an order which, inter alia , permitted the Applicant to move to Florida with Isaiah. The Respondent’s access was varied to take into account this change in the child’s residential situation. The August 21, 2009 order did not include any terms regarding jurisdiction for any subsequent proceedings.

[ 4 ] Since August 21, 2009, there have been numerous proceedings in this matter, as follows:

a. On October 26, 2009, the Respondent brought a Motion on an ex parte basis seeking to enforce his telephone and web-cam access rights, and for a finding of contempt against the Applicant. The Motion was dismissed on the basis that it was not appropriate to have brought it on an ex parte basis.

b. On March 25, 2010, Brown, J. heard a further motion brought by the Respondent for a finding that the Applicant was in contempt of the access terms of the August 21, 2009 order. She dismissed the Motion, but held that the issue of make-up access could be addressed on a subsequent Motion.

c. On December 14, 2010 the Respondent brought the anticipated Motion requesting make-up access for visits which he had missed with Isaiah. By order of Brown, J. dated February 25, 2011, the Respondent was granted twelve days of specified make-up access.

d. The Respondent initiated a further Motion to Change Final Order on April 6, 2011, requesting changes to the August 21, 2009 order to include a number of terms relating to the location of access exchanges and other specifics regarding access. This is one of the two Motions that are currently before the court. At the case conference held on May 10, 2011, the Applicant objected to the court’s jurisdiction to hear the Motion to Change, on the basis that the child had been living in Florida with the Applicant for approximately two years.

e. The Respondent subsequently filed a further Motion to Change on January 9, 2012, requesting, inter alia, make-up access visits for the Christmas access which he stated he had been denied in 2011. This is the second Motion to Change which is currently before the court.

f. Both Motions brought by the father were before McLaren, J. on January 13, 2012. The hearing of the Motions could not proceed on that date due to concerns on the part of the judge that the Applicant had not been given sufficient notice. On that date, the court indicated that there were two jurisdiction issues that needed to be decided. First, the Applicant again argued that the Motions should be heard in Florida rather than Ontario. Second, it was noted that the Respondent had moved to Burlington, and the issue was raised as to whether the proceedings should be heard in the Halton Region as a result of the change in his residence.

III. POSITIONS OF THE PARTIES

[ 5 ] The Applicant requests an order dismissing both Motions to Change which the Respondent has brought on the basis that Broward County, Florida, United States is the proper jurisdiction in which to litigate any custody and access issues respecting Isaiah. She relies on the jurisdiction provisions set out in sections 22 and 23 of the Children’s Law Reform Act [1] (the “CLRA” ) which provide 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.

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.

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.

Serious harm to child

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

[ 6 ] The Applicant argues that none of the above noted criteria for establishing jurisdiction in Ontario have been met in this case. She states that the Isaiah’s habitual residence is Broward County, Florida, where he has been living for the past twenty seven months.

[ 7 ] The Respondent accepted that sections 22 and 23 of the CLRA apply in this case. He acknowledged that the child was not habitually resident in Ontario when these proceedings were commenced, but argued that the child was physically present in Ontario at the time when the Applicant should have made the request for jurisdiction to be with the Florida court, and submitted that this satisfied section 22(1) (b)(i) of the CLRA . In addition, the Respondent argued that all of the other criteria set out in section 22(1)(b) are also met in this case.

IV. ANALYSIS

[ 8 ] Although both parties argued that the issue of jurisdiction in this case is governed by sections 22 and 23 of the CLRA , I conclude that the CLRA is not in fact the applicable legislation in this case. Rather, I find that the Divorce Act [2] applies in this case, and that the governing provision respecting jurisdiction is section 5 of that Act .

[ 9 ] The Parliament of Canada has been granted the power to deal with divorce pursuant to section 91(26) of the Constitution Act, 1867 . This power allows Parliament to legislate respecting the issues of custody and access when these matters are raised in the context of divorce. The final order of Lafrenière, J. dated February 16, 2006 as it related to the custody and access issues was not made pursuant to the CLRA , but rather pursuant to section 16 of the Divorce Act , in the context of a divorce proceeding in which the Applicant also requested corollary relief. This is apparent from paragraph 9 of the order, which refers to the divorce being dealt with at a later date on an uncontested basis.

[ 10 ] Although the February 16, 2009 order of Lafrenière, J. was made prior to the divorce being granted, this does not alter the fact that the order was made pursuant to the Divorce Act . Section 16 of the Divorce Act provides that a court may make an order respecting custody of or access to a child on application by either or both “spouses.” It is significant that this provision does not refer to “former spouses,” as in section 17 dealing with variation proceedings, or in section 4 dealing with jurisdiction in separate corollary relief proceedings. The use of the term “spouses” in section 16 reflects an intention that custody and access orders can be made pursuant to the Divorce Act in the context of a divorce proceeding prior to the divorce being made, provided that a divorce order is in fact subsequently granted.

[ 11 ] The conclusion that the February 16, 2006 order was made under the Divorce Act rather than the CLRA is further supported by Section 27 of the CLRA , which provides that when divorce proceedings are commenced, any claims respecting custody and access under the CLRA that have not been determined are stayed, except by leave of the court.

[ 12 ] Since the issues of custody and access were dealt with pursuant to the Divorce Act , changes to the existing orders must be addressed by means of variation proceedings brought pursuant to section 17 of the Divorce Act. [3] Section 5 of the Divorce Act addresses the issue of jurisdiction to hear a variation proceeding as follows:

Jurisdiction in variation proceedings

5 . (1) A court in a province has jurisdiction to hear and determine a variation proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

( b ) both former spouses accept the jurisdiction of the court .

[ 13 ] The residence of the child is not the governing consideration in deciding the jurisdiction issue under the Divorce Act . Rather, the focus is on whether either former spouse is ordinarily resident in the province at the time, or alternatively, whether both former spouses accept the jurisdiction of the court. Jurisdiction in Ontario can therefore be established even if the child is not physically within the province. [4] I find that the Respondent was ordinarily resident in Ontario when these proceedings began, and that he has therefore satisfied the test for initiating these proceedings in Ontario.

[ 14 ] Rule 5 of the Family Law Rules [5] stipulates where a case is to be started. Rule 5(1)(b) provides that in cases dealing with custody of or access to a child, the case must be started in the municipality where the child ordinarily resides, except for cases described in section 22 of the CLRA and in certain provisions of the Child and Family Services Act. While section 25(2) of the Divorce Act allows competent authorities authorized by the province to make rules regulating the practice and procedure that apply to proceedings under the Divorce Act , those Rules cannot override clear provisions in the Divorce Act addressing the same issues. In my view, section 5 of the Divorce Act sets out clear directions regarding jurisdiction based on the residence of one of the parties.

[ 15 ] Having satisfied the threshold test set out in section 5 of the Divorce Act for commencing the proceedings in Ontario, the next issue is whether Hamilton is the appropriate region in which to proceed with the claims. The Divorce Act includes provisions respecting the transfer of variation proceedings between provinces, but does not address the issue of transfers between municipalities within a province. This latter issue is addressed in Rule 5(8) of the Family Law Rules, which stipulates that the court may on motion transfer a case or any step in a case to another municipality if it is “substantially more convenient” to deal with the matter in another municipality. There is no Motion before the court to transfer the case to a different municipality in Ontario, and in any event, I am not satisfied that it would be substantially more convenient to deal with the Motions in the Halton region. The Respondent was resident in Hamilton when he commenced the Motion to Change Final Order on April 6, 2011. He did not move to the Halton Region until part way through these proceedings. All of the proceedings in this matter have to date been litigated in this court, and a transfer at this point would result in a further delay in dealing with the Motions. Finally, this is not a case in which witnesses will be required to deal with the issues, and in any event, there would not be any relevant witnesses from the Halton region. Accordingly, I conclude that it is appropriate for these particular Motions to remain in Hamilton.

[ 16 ] I have also considered the issue of whether the jurisdiction of this court is negated by the fact that the Applicant resided outside of the jurisdiction at the time when the Respondent commenced these proceedings. In Jasen v. Karassik , [6] the Ontario Court of Appeal dealt with this issue in the context of a variation proceeding under the Family Law Act . [7] The court held that it could assert jurisdiction against the father, who resided in the United States, in three circumstances: the father is physically present in Ontario; the father consents, agrees or attorns to the jurisdiction; or Ontario has a real and substantial connection to the matter being litigated and service ex juris has been properly effected. The court cited its previous decision in Muscutt v. Courcelles [8] in support of its decision. In that case, that court noted that the “real and substantial connection” test is “deliberately general in order to allow for flexibility in the application of the test.” [9] It cited the Supreme Court of Canada decision in Morguard Investments Ltd. v. De Savoye , [10] in which the court described the concept of “real and substantial connection” as a connection “between the subject-matter of the action and the territory where the action is brought”, “between the jurisdiction and the wrong-going,” “between the damages suffered and the jurisdiction,” “between the defendant and the forum province,” “with the transaction or the parties,” and “with the action.” The court further noted in Morguard that the real and substantial connection test is not meant to be rigid, but rather is intended to reflect the need for limits on the claims to jurisdiction, and “the requirements of order and fairness, not a mechanical counting of contacts or connections.”

[ 17 ] In Muscutt , the Court of Appeal set out the following list of factors which the court may consider relevant in carrying out the real and substantial connection analysis:

a. The connection between the forum and the moving party’s claim;

b. The connection between the forum and the moving party;

c. The unfairness to the moving party and the responding party in assuming or not assuming jurisdiction;

d. The involvement of other parties to the suit;

e. The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

f. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

[ 18 ] I am satisfied that the Applicant in this case has been properly served ex juris , and that the matters being litigated in this case have a real and substantial connection with Ontario. Both parties lived in Ontario with Isaiah until the Applicant’s move to Florida in 2009, which the Respondent did not consent to. Since that time, the parties have litigated all matters arising out of the existing orders here in Ontario. The Respondent continues to live in Ontario, and he has rights pursuant to the August 21, 2009 order to visit with Isaiah in Ontario. The requirements of fairness in the circumstances of this case support this court assuming jurisdiction. To compel the Respondent to go to Florida to litigate the issues in these proceedings arising from the history of orders made here, when he did not consent to the child’s relocation in the first place, would in my view place an unfair burden on him in his efforts to pursue his rights in relation to Isaiah and to advance his views respecting Isaiah’s best interests. In reaching this conclusion, I have considered the nature of the relief which the Respondent is seeking in his two Motions before this court. I find that the nature of the relief sought is not such that witnesses from Florida would be required. Neither of the parties has indicated a need to call any witnesses in this case.

[ 19 ] I emphasize that my conclusions on the jurisdiction issues are limited to the particular Motions that are currently before the court. The jurisdiction questions may need to be reconsidered in any subsequent proceedings, depending on the particular facts of the case and the nature of the relief which may be requested in those proceedings.

[ 20 ] Based on the foregoing, an order shall issue as follows:

a. The Applicant’s request for an order dismissing the Respondent’s Motions to Change dated April 6, 2011 and January 9, 2012 (“the Motions”) is dismissed.

b. The Motions shall be scheduled for a half day hearing before me, to be arranged through the Trial Coordinator’s Office. The Applicant shall have the right to participate via teleconference. If she wishes to participate in this manner, she shall make all necessary arrangements to do so through the Trial Coordinator’s Office.

c. Costs of the appearance in this matter on October 30, 2012 are reserved, to be determined at the conclusion of the hearing of the Motions.

The Honourable Madam Justice D.L. Chappel

Date: November 21, 2012