COURT FILE NO.: FC-12-1698
DATE: 2013/01/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jessika Ascani
Applicant
– and –
Patrice Robert
Respondent
Cheryl Hess, for the Applicant
Frédéric P. Huard, for the Respondent
HEARD: November 22, 2012
REASONS FOR DECISION ON MOTION
R. SMITH J.
Overview
[1] The issue to be decided on this motion is whether the Ontario family court has jurisdiction to deal with the custody and access to Vanessa, a three-year-old child.
[2] The mother submits that Vanessa has been habitually resident in Ontario since on or about August 1, 2011 when the parties finally separated and she moved to Ottawa, Ontario from Gatineau, Québec. The mother submits that she has been the primary caregiver for Vanessa from August 1, 2011 to date and the child has been registered in daycare in Ontario since that date.
[3] The father submits that the child spends approximately 50 percent of her time living with the mother in Ontario and approximately 50 percent of her time living with him in Québec. The mother disputes the father’s claims and states that the child spends more of her time living with her mother in Ontario than with her father in Québec (65 percent with her versus 35 percent with the father).
[4] The father argues that the Ontario family court lacks jurisdiction because an order was previously issued in Québec, before the mother commenced this application in Ontario. The Québec order ratified a custody and parenting agreement filed with the Québec court in November of 2009, however the parties reconciled for a substantial period of time shortly after signing the custody and parenting agreement.
Background Facts
[5] In September of 2009, a few weeks following the birth of the child, the parties separated and signed a custody and parenting agreement. The custody and parenting agreement was prepared by the respondent father, who is a lawyer employed by the Federal Government in Ontario. The mother signed the custody and parenting agreement on September 16, 2009 without receiving independent legal advice. In addition, she alleges that she was threatened by the father and states that she was suffering from post-partum depression at the time she signed the agreement. The mother’s post-partum depression is acknowledged in para. 20 of the custody and parenting agreement.
[6] The custody and parenting agreement provided that the residence of the child and primary day-to-day responsibility for the guidance and upbringing of the child would rest with the mother from September 16, 2009 until December 31, 2009 when Vanessa would have been three-and-a-half months of age. Commencing on January 1, 2010 the father was granted the primary day-to-day responsibility for the guidance and upbringing of the child. The agreement provided that the parenting responsibility for day-to-day parenting decisions rested with the father after January 1, 2010.
[7] The parties agree that they reconciled shortly after they signed the custody and parenting agreement and lived together subsequently for a substantial period of time. The parties also agree that the final separation occurred on August 1, 2011, almost two years after the original custody and parenting agreement had been signed and at least a year and one-half after they reconciled.
[8] The mother acknowledges that in the second week of September, 2009 her mother received a document at her home in Ottawa delivered by a bailiff stating it was from the Court of Québec. The mother never responded to the document and the parties never attended at any hearings before the court in Québec. Subsequent to receiving this document, the parties signed the custody and parenting agreement prepared by the respondent father on September 16, 2009. There were no further attendances or proceedings in the Québec court and the parties subsequently reconciled.
[9] Unbeknownst to the mother, the father filed the custody and parenting agreement with the Québec court. On or about November 18, 2009 a justice of the Superior Court signed a stamped endorsement on the custody and parenting agreement which stated: “MOTION GRANTED: RATIFIES the agreement entered into by the parties and orders the parties to abide by its terms. Gatineau, the 18th of November, 2009.”
[10] The father submits that the terms of the custody and parenting agreement filed with the Québec court became an order of the Québec court which remains a valid order, even though the parties reconciled subsequent to signing the custody and parenting agreement on September 16, 2009 and cohabited together until August 1, 2011, a period of approximately one year and nine months.
[11] The father further submits that the Québec order ratifying the custody and parenting agreement gives the Québec court exclusive jurisdiction to deal with all subsequent matters of custody and access and guardianship of the child, even if the custody and parenting agreement became null and void due to the parties’ subsequent reconciliation.
[12] The mother submits that the custody and parenting agreement became null and void when the parties subsequently reconciled for a lengthy period of time. She submits that if the custody and parenting agreement became void so too did the order ratifying the said agreement by the Québec court.
[13] The mother further submits that even if the court accepts the father’s evidence that the child is spending 50 percent of her time with her father in Gatineau and 50 percent of her time with her mother in Ontario, the Ontario and Québec courts have concurrent jurisdiction to deal with issues of custody and access pursuant to s. 22(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[14] The mother submits that the child was habitually resident in Ontario at the commencement of the application for the order, or alternatively was concurrently habitually resident in the province of Ontario and the province of Québec.
[15] The mother further submits that the child has been habitually resident in Ottawa since August 1, 2011 with the implied consent or acquiescence of the father, pursuant to s. 22(2)(b) of the CLRA, as the father did not object to the mother moving to Ontario with the child and did not object to the child spending at a minimum 50 percent of her time with her mother in Ontario since August 1, 2011, a period of some 16 months.
[16] The following issues must be decided:
(1) Does the Ontario court have authority to exercise jurisdiction over the issues of custody and access for Vanessa?
(a) Is the child habitually resident in Ontario?
(b) Does Ontario have concurrent jurisdiction?
(2) Is the custody and parenting agreement dated September 16, 2009 void?
(3) Should the Ontario Court decline to exercise jurisdiction under s. 25 of the CLRA?
(4) Would Ontario recognize a custody or access order obtained by filing a custody and parenting agreement, where the agreement has become null and void because the parties reconciled?
(5) Should the Ontario Court supersede the Québec order based on a material change of circumstances?
Issue #1 Does the Ontario court have authority to exercise jurisdiction over the issues of custody and access for Vanessa?
[17] Sections 19, 22 and 25 of the CLRA address the purpose of this part of the CLRA, define the situation where an Ontario court will exercise jurisdiction, define habitual residence, and set out when an Ontario court will decline to exercise jurisdiction to make orders for custody, access and guardianship of children. The sections read as follows:
Purposes
- The purposes of this Part are,
(a) to ensure that applications to the courts in respect of custody of, incidents of 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;
(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and
(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.
Jurisdiction
- (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.
Declining jurisdiction
- 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.
(a) Is the child habitually resident in Ontario?
[18] Section 22(1)(a) of the CLRA states that a court will only exercise its jurisdiction to make an order for custody or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order. Section 22(2)(b) states that a “child is habitually resident in the place where he or she resided, ... (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.”
[19] The parties separated on a final basis on August 1, 2011 when the applicant mother moved to Ontario to live with her mother in the city of Ottawa. The applicant mother submits that Vanessa spent 65 percent of her time in Ontario (nine of 14 days in a 14-day period). The father disputes the amount of time that the mother claims the child spends in Ontario and submits that it is closer to 50 percent of her time in Ontario and 50 percent of her time with him in Québec. For the purposes of my analysis I will assume that the child spends 50 percent of her time in Ontario with the mother and 50 percent of her time in Québec, although I make no finding on this issue as the evidence is contested.
[20] The case of Moniz v. Deschamps, 2010 ONSC 598, 2010 CarswellOnt 460, (Sup. Ct.) at para. 14, Turnbull J. quoted from the English case of Re G.E.P. which held that a six-month delay would go far to show acquiescence, and stated as follows:
Our courts have cited with approval the English case of Re G.E.P., [1965] Ch. 568 at 585-586, [1964] 3 All E.R. 977 (C.A.), wherein Lord Denning stated:
Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months’ delay would, I should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less. [Emphasis added]
[21] In the case before me, the father allowed the child to reside with the mother in Ontario at least on a 50 percent basis (the mother alleges 65 percent) and to be enrolled in daycare in Ontario from August 1, 2011 until July 9, 2012, when the mother commenced this application. Vanessa was habitually resident in Ontario at least 50 percent of the time for approximately 12 months before the application was commenced in Ontario without objection by the father. (The father was served with the Ontario application on July 30, 2012.)
[22] In the case of Snetzko v. Snetzko, 1996 CanLII 7278, 17 R.F.L. (4th) 31, at para. 7, the court stated: “[T]here was no evidence of Mr. Snetzko's demanding the return of his children until his affidavit of 30 November 1995 reached the applicant.” I find that the failure of the father to object to his daughter residing with the mother in Ottawa, at least 50 percent of the time for a period of 12 months, where Vanessa was enrolled in daycare in Ontario amounts to implied consent or acquiescence as defined in s. 22(2)(b) of the CLRA.
[23] In Harper v. Harper, 1994 CarswellOnt 1982, [1994] W.D.F.L. 1440, at para. 22, the court stated that it takes less time for young children to become habitually resident in a new locality. In that case two years was a significant enough period to conclude that a young child was habitually resident in Ontario. In the case before me, Vanessa has not developed any substantial connection with the province of Québec as she is three years and three months of age and the child has developed connections with Ontario. She has developed some friendships in her neighbourhood, her family doctor is in Ottawa, she attends daycare three times a week in Ottawa, and she attends playgroups and activities in Ottawa.
Disposition of Issue 1(a)
[24] Based on the above facts and case law, I find that Vanessa is habitually resident in the province of Ontario pursuant to s. 22(1)(b) of the CLRA for the reasons given above.
(b) Does Ontario have concurrent jurisdiction?
[25] In Riley v. Wildhaber, 2011 ONSC 3456, 2011 CarswellOnt 6587, at para. 42, the Divisional Court held that a child can be found to have two concurrent habitual residences, and stated:
After examining the above jurisprudence, we are of the opinion that a child, in the appropriate circumstances, can be found to have two concurrent habitual residences pursuant to s. 22(2)(b) of the CLRA. The decision will ultimately depend on the individual facts of a case. Cognizant of the legislative purposes for which s. 22 was legislated, we are not persuaded that this conclusion will undermine those purposes. This conclusion also recognizes the living reality of those children who are in a truly joint custodial arrangement, whose numbers will be limited.
[26] In Jerome v. Steeves, (2006) 2006 CanLII 36605 (ON CA), 30 R.F.L. (6th) 256, O.J. No. 4337, the Ontario Court of Appeal held that it was possible for a child to have two concurrent habitual residences and it depended on the facts.
[27] In this case, Vanessa has been commuting to and from Ottawa and Gatineau over the past 15 months which is similar to the facts described in Riley v. Wildhaber. In Riley the court held that deference should be given to the location where the parties first initiated proceedings and where the parties had many prior contested hearings. In this case the applicant mother was the first party to initiate proceedings following their separation on August 1, 2011 – some 15 months after the parties finally separated – and as such I find that deference should be given to her choice of forum in these circumstances following the reasoning in Riley, supra.
Disposition of Issue 1(b)
[28] Based on the Riley decision, I find as the child is concurrently habitually resident both in Ontario and in Québec even assuming the father’s evidence is accepted, that the child spends 50 per cent of her time with each parent.
Disposition of Issue #1
[29] I therefore find that the Ontario Court has jurisdiction to deal with the issues of custody and access to Vanessa firstly because Vanessa is habitually resident in Ontario with the implied consent of the father or alternatively, is concurrently habitually resident in both Ontario and Québec.
Issue #2 Is the custody and parenting agreement dated September 16, 2009 void?
[30] The parties initially separated in September of 2009, shortly after the child’s birth. The father commenced proceedings in the family court in Québec but a court hearing was never held because the father prepared a custody and parenting agreement which the mother signed. The applicant mother signed the custody and parenting agreement on September 16, 2009. The custody and parenting agreement was prepared by the father who is a lawyer. The applicant mother does not have any legal training and was not given the opportunity to obtain independent legal advice before signing the agreement.
[31] The applicant mother submits that the father’s conduct was abusive and that he used his position of power to intimidate and coerce her to sign the agreement without respecting her legal rights.
[32] The father filed the custody and parenting agreement with the court in Québec where it was ratified by a Québec Superior Court judge on November 18, 2009. However, the parties reconciled in November, 2009, shortly after signing the custody and parenting agreement. The respondent father acknowledges that the parties reconciled shortly after they signed the custody and parenting agreement.
[33] The following are important factors when considering whether the custody and parenting agreement entered into by the parties was valid and legally binding:
(a) The mother was not given the opportunity to obtain independent legal advice before signing the agreement and the mother alleged she was coerced into signing the agreement by the father.
(b) The respondent father is a lawyer and had much greater legal knowledge than the mother who was therefore in an unfair bargaining position. The mother had no legal knowledge.
(c) The mother was suffering from post-partum depression when she signed the agreement which was acknowledged in the custody and parenting agreement.
(d) The parties reconciled shortly after they signed the custody and parenting agreement for a period of at least a year and nine months which would nullify the custody and parenting agreement.
(e) The parties never attended a court hearing in Québec, nor was any contested order made in the province of Québec; rather, the custody and parenting agreement was simply filed with the court by the father without notice to the mother. The mother was never aware that the custody and parenting agreement was filed with the court in Québec and ratified as an order.
(f) The custody and parenting agreement arbitrarily provided that the child’s residence would be with the mother until December 31, 2009, and thereafter would revert to the father. This term of the agreement is arbitrary and not to be based on factors related to the best interests of the child.
Effect of Reconciliation
[34] In Shortman v. Shortman, 1999 CanLII 3039 (ON CA), 1 R.F.L. (5th) 116, 1999 CarswellOnt 2395, the Ontario Court of Appeal at para. 2 held that it was open to the trial judge to conclude that the reconciliation terminated the separation agreement and stated as follows:
What was the effect of the reconciliation on the separation agreement?
We are of the view that it was entirely open to the trial judge on the facts of this case to conclude that the reconciliation effectively terminated the separation agreement, including the mutual release with respect to pensions. We are not at all persuaded that the release was in any way connected to the division of property effected under the agreement as contended by the appellant.
[35] I find that the reasoning of the Shortman decision, supra, applies to the facts before me. As the parties reconciled for a substantial period of time (in excess of one year) following entering into the custody and parenting agreement, I find that the custody and parenting agreement became null and void especially considering the factors that I have listed in para. 33 above.
[36] It is unnecessary for me to decide whether the agreement was never valid due to the factors set out above as I have found that the agreement became null and void due to the parties’ reconciliation for a lengthy period of time.
Disposition of Issue # 2
[37] I find that the custody and parenting agreement entered into by the parties following their initial separation in September of 2009 is null and void because the parties subsequently reconciled for a lengthy period of time. I also find that the Québec order dated November 18, 2009 ratifying the custody and parenting agreement also became null and void as the agreement had become null and void due to the parties’ reconciliation.
Issue #3 Should the Ontario Court decline to exercise jurisdiction under s. 25 of the CLRA?
[38] The respondent argues that because the custody and parenting agreement was filed and ratified by the Québec court, it became a Québec order. I agree that the ratification becomes an order by way of a stamp and a signature; however, I do not agree that by so doing, the Québec court has acquired exclusive jurisdiction to deal with all subsequent custody and access matters related to Vanessa.
[39] The Ontario court may decline to exercise its jurisdiction where it is of the opinion that it would be more appropriate for jurisdiction to be exercised out of Ontario. I do not find that the Québec court would be more appropriate than the Ontario court for the following reasons:
(a) The parties never had a hearing before the Québec court, and the Québec court has not heard any evidence from the parties or their circumstances related to custody of the child;
(b) The Québec court has not made factual or legal findings;
(c) The Québec court has not acquired any knowledge or experience with the parents or child which would, considering the best interests of the child, weigh in favour of the Québec court having exclusive jurisdiction in this matter;
(d) The parties reconciled for approximately one year and nine months after signing the custody and parenting agreement which was ratified by the Québec court. The custody and parenting agreement was ratified without any motion or hearing or materials being filed by the mother; without the knowledge of the mother, and where the custody and parenting agreement had become null and void due to the reconciliation of the parties for a lengthy period of time.
Disposition of Issue #3
[40] I find that on the facts of this case the jurisdiction of Québec would not be a more appropriate jurisdiction to decide these issues given that the application has already been commenced here in Ontario and the child is habitually resident in Ontario and has a substantial connection to Ontario. I therefore would not decline to exercise jurisdiction in Ontario pursuant to s. 25 of the CLRA.
Issue #4 Would Ontario recognize a custody or access order obtained by filing a custody and parenting agreement, where the agreement has become null and void because the parties reconciled?
[41] Section 41(1) of the CLRA states as follows:
- (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
[42] Section 41(1)(b) of the CLRA states that an Ontario court shall not recognize a custody or access order made by an extra-provincial tribunal unless both parties were given an opportunity to be heard by the extra-provincial tribunal before the order was made. In this case I would not recognize the Québec order because it was based on a custody and parenting agreement, which has become null and void as a result of the parties’ reconciliation for one year and nine months.
Disposition of Issue #4
[43] The custody and parenting agreement was ratified in an ex parte proceeding and was endorsed without a hearing having been held or notice of a hearing being given to the applicant. As a result, I find that an Ontario court would not recognize the Québec order based on a custody and parenting agreement which is now null and void and which was ratified without giving the mother an opportunity to be heard.
Issue #5 Should the Ontario Court supersede the Québec order based on a material change of circumstances?
[44] In the event that I am mistaken in finding that the Québec order of November 16, 2009 should not be recognized in Ontario, then under s. 42(1) of the CLRA the Ontario court has authority to supersede the Québec order. Section 42 of the CLRA reads as follows:
Superseding order, material change in circumstances
- (1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(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 the child no longer has a real and substantial connection with the place where the extra-provincial order was made,
(iii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iv) that the child has a real and substantial connection with Ontario, and
(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Declining jurisdiction
(2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
[45] Section 42(1) sets out a two-part test to determine whether a court has authority to supersede an extra-provincial order. The first step is for the court to determine that there has been a material change in circumstances affecting the best interests of the child. The child must be habitually resident in Ontario at the commencement of the application or the conditions set out in 42(1)(b) must be found to exist. I have found that Vanessa is habitually resident in Ontario.
[46] I am also satisfied that there has been a material change in circumstances since the Québec order was issued on November 16, 2009 ratifying the custody and parenting agreement. The material changes in circumstances are as follows:
(a) The parties subsequently reconciled for one year and nine months, which made the custody and parenting agreement null and void;
(b) The parties finally separated on August 1, 2011; and
(c) The father acquiesced in allowing the mother to move with the child at least on a 50 percent basis to Ontario until a year later when he objected to the Ontario jurisdiction.
Forum conveniens
[47] Given that I have found that Ontario has jurisdiction to deal with custody and access of the child, for the reasons given, I do not find that the respondent father has met his onus to show that Québec is the forum conveniens to litigate the claim for custody and access for Vanessa.
Disposition of Issue #5
[48] After weighing the above factors, I would supersede the Québec order ratifying the terms of the void custody and parenting agreement which gave the province of Québec jurisdiction to determine matters of custody and access of the child. I find it would be in the best interests of the child to have her custody and access determined promptly, she is habitually resident in Ontario and she has a substantial connection with Ontario, substantial evidence of her best interests is available in Ontario, and that the balance of convenience favours Ontario.
Disposition of the Motions
[49] I grant the applicant’s motion and find that the Superior Court of Justice, Family Branch at Ottawa has jurisdiction to determine the issues of custody, access, and child support for Vanessa, as well as spousal support.
[50] The respondent’s motion to stay the application for lack of jurisdiction of the Ontario family court is dismissed.
Costs
[51] The applicant may make submissions on costs within ten (10) days, the respondent to respond within ten (10) days and the applicant to reply within seven (7) days.
R. Smith J.
Released: January 11, 2013
COURT FILE NO.: FC-12-1698
DATE: 2013/01/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jessika Ascani
Applicant
– and –
Patrice Robert
Respondent
REASONS FOR DECISION ON MOTION
R. Smith J.
Released: January 11, 2013