Camilleri v. Dudley Sr., 2013 ONSC 6202

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D10/13 & FS-13-1248-00-Appeal
DATE: 20131003

B E T W E E N:

DOREEN CAMILLERI

Alexei Goudimenko, for the Applicant

Applicant

• and -

SHAWN DUDLEY SR.

Elizabeth Julien-Wilson, for the Respondent

Respondent

HEARD: September 23, 2013

REASONS FOR JUDGMENT

[On appeal from the judgment of Pawagi J. dated February 14, 2013]

1This is an appeal by Doreen Camilleri of the decision of Justice Pawagi of February 14, 2013. Doreen filed an Application against her partner, Shawn Wayne Dudley Sr. at the Ontario Court of Justice at Brampton on January 3, 2013 seeking child support and custody or access for their two sons, Shawn Dudley Jr., born November 16, 2010 and Nolan Camilleri-Dudley, born July 29, 2012.

2On February 14, 2013 the Ontario Court of Justice declined to exercise its jurisdiction with respect to Shawn Dudley Jr., on the basis that the child was habitually resident with his father in British Columbia. The application, as it related to Shawn Jr. was therefore dismissed.

3This appeal raises three questions for consideration: 1) Did Justice Pawagi misapprehend the evidence before her as it related to Shawn Jr.’s habitual residence? 2) Did Justice Pawagi err in law in refusing to assume jurisdiction on the subject of Shawn’s custody and support in accordance with ss. 22, 23 and 40 of the Children’s Law Reform Act? and 3) Can this court assume parens patriae jurisdiction to make orders for the return of Shawn Jr. from British Columbia and for a temporary custody order in Doreen’s favour?

BACKGROUND FACTS

4Doreen and Shawn Sr. started their relationship in March 3, 2010. Within a week, Shawn moved in with Doreen. Their first son, Shawn Jr. was born on November 16, 2010. Their second son, Nolan, was born on July 29, 2012.

5In the months leading up to Nolan’s birth, Doreen and Shawn encountered severe financial difficulties. They had various disagreements and disputes. More dramatically, they were not able to keep up with their rental payments and as a result, Doreen had to live at the Peel Family Shelter from March to the end of June, 2012. Some time in July she and Shawn and Shawn Jr. moved into a room at a Howard Johnson motel.

6In addition to being pregnant and having to contend with these various challenges, Doreen had a number of medical issues, including depression. She was hospitalized in late June or July for gestational diabetes and bladder and kidney infections.

7Compounding Doreen’s stress and various challenges was the realization that Shawn Jr. who was about 20 months or so was having trouble walking. The pediatrician was sufficiently concerned that she arranged for Shawn Jr. to be examined by various medical experts, including an orthopedic surgeon and a pediatric neurologist. The diagnostic tests were to include an MRI evaluation.

8The Peel Children’s Aid Society became involved with Doreen and her family on July 30, 2012, the day after Nolan’s birth and ten days after Shawn had left for B.C. In February 2013, the Society reported that although it became involved because of concerns with Doreen’s mental health, her housing situation and Shawn Jr.’s medical issues, they were pleased with Doreen’s progress. They said that Doreen worked collaboratively with the Society and that the Society remained involved in a supporting capacity.

9Ten days before Nolan’s birth, Shawn advised Doreen that he wanted to go out to B.C. for a job interview with the RCMP. He suggested that given the imminent birth of their 2nd child, he would bring their son Shawn Jr. with him. Doreen agreed with that proposal. She understood from Shawn that if the RCMP offered Shawn a position, she and their newborn child would join Shawn and Shawn Jr. just as soon as she could travel. Shawn told her that if he did not get the job, he would be returning to Ontario together with Shawn Jr.

10Shawn did not get the job with RCMP. But he also did not return with his son back to Ontario.

11There is an evidentiary gap with respect to the communications that took place between Doreen and Shawn in the period between July 20, 2012 and November 22, 2012. The record does include a letter from Shawn’s own mother (Doreen’s mother in-law), to Shawn, where she was especially critical of her son’s departure on the eve of Nolan’s birth, his abandonment of his wife and his refusal to return to Ontario. His mother went as far as to suggest that she would report her son to the Children’s Aid Society in Peel if he did not come home from B.C.

12The first formal communication between Doreen and Shawn appears to be a lengthy and very aggressive e-mail letter dated November 22, 2012, from Shawn to Doreen. In that letter, Shawn declared that his relationship with Doreen was over. He also requested Doreen’s permission to keep Shawn Jr. in B.C. with the view of giving Doreen generous access. Shawn also proposed that Doreen retain custody of their second child with generous access arrangements for him.

13In the days between November 20 and 24, Shawn made several promises to bring Shawn Jr. over to visit Doreen. Such a visit never materialized.

14On November 24, 2012, in a second communication, Shawn expressly asked Doreen if she would allow him to keep Shawn Jr. The request was broken out in a series of text messages.

15Shawn‘s communications with Doreen strongly suggest that he was actually back in Toronto. Shawn told Doreen that he was interviewing with a service provider for Pearson Airport. He was hopeful that a job offer would be forthcoming. Furthermore, his repeated promises to bring Shawn Jr. over to Doreen during those few days would also suggest that Shawn Jr. was also back in the Greater Toronto Area.

16Doreen objected strenuously and immediately to Shawn’s custody and access request. She was very clear in her objections and indicated that she would be seeking the assistance of CAS and another person at Trillium.

17It took some time for Doreen to commence legal proceedings to have Shawn returned to her but she did launch her application on January 3, 2013, roughly six weeks from the time that she realized that Shawn would not be bringing back her son. Some procedural concerns that are not material to this appeal delayed the hearing of the application to February 2013.

ANALYSIS

18The question for this court is whether Justice Pawagi erred in her decision to decline the Ontario Court’s jurisdiction to hear the application. That question breaks down into two parts: 1) Did Justice Pawagi misapprehend the evidence before her as it related to Shawn Jr.’s habitual residence? and 2) Did Justice Pawagi err in law in refusing to assume jurisdiction on the subject of Shawn’s custody and support in accordance with ss. 22, 23 and/or 40 of the Children’s Law Reform Act? The appellant also raises the question of whether or not this court can assume parens patriae jurisdiction to order Shawn Jr.’s return to Ontario and for temporary custody in Doreen’s favour.

1) Did Justice Pawagi misapprehend the evidence before her as it related to Shawn Jr.’s habitual residence?

19Justice Pawagi’s factual analysis on the subject of Shawn Jr.’s habitual residence suggests a cursory review of the facts. Her conclusion that Shawn Jr., was habitually resident in British Columbia rested on three factual findings.

20She noted that Doreen consented to the original arrangement for Shawn to take their son to B.C. Although she acknowledged that the consent was tied to a specific job offer and to Doreen’s expectation that she too would travel to B.C. if Shawn succeeded in his interview, Justice Pawagi also interpreted the consent to be open-ended. Doreen’s expectation that Shawn would return if his interview were not successful seems to have been discounted or otherwise not appreciated.

21Then Justice Pawagi placed significant emphasis on the fact that apart from the letter from Shawn’s own mother reprimanding him on his continued absence from Ontario, there was no evidence of Doreen’s objections to Shawn Jr.’s continued absence until late November. Doreen also did not commence any legal proceedings for the return of her child until January 2013. By the time of the hearing in February, Justice Pawagi found that the child had been residing in B.C., for six months, that he was enrolled and doing well in day care, and that he had a B.C. health card.

22In Justice Pawagi’s view, these delays were fatal and amounted to acquiescence by Doreen. Moreover, Doreen’s silence supported the conclusion that Shawn Jr. was habitually resident in B.C. Justice Pawagi also treated the departure to B.C. in July as the point in time when Doreen and Shawn started living separate and apart. By implication, she held that Doreen consented to Shawn living separate and apart with their son. She held that Shawn Jr., was habitually resident in B.C., “since the parents started living separate and apart, with first the consent of, and then the acquiescence of, the other parent”. In other words, Doreen consented to living separate and apart in July and then acquiesced to that arrangement in November. The problem with this understanding is that it does not correspond with what actually occurred.

23There are two errors in Justice Pawagi’s approach to the subject of Shawn Jr.’s habitual residence. The first is the apparent disregard of a number of relevant facts and inferences that could be drawn by those facts. The second is the confusion over the date when Doreen and Shawn would be considered to be living separate and apart.

24Beginning with the factual deficiencies, there was enough evidence before the court to drawn the conclusion that Doreen’s consent for her son’s initial travel with his father was conditional on his employment with the RCMP and time-limited. Doreen’s uncontested evidence was that she expected Shawn to return to Ontario if he did not obtain a job with the RCMP.

25Doreen’s understanding is corroborated to a significant extent by the letter that Shawn’s mother sent to Shawn soon after Doreen delivered her second son. His mother’s objection over Shawn’s continued absence from Ontario could not be more forceful. On the hearing of this appeal, counsel for Shawn asked this court not to place any weight on the letter because it was evidence that was presented by Doreen as an exhibit to one of her affidavits. Counsel suggested that Shawn’s mother should have sworn an affidavit before the court could take the evidence into account. For the purposes of this appeal, although I note the respondent’s concern, the letter is not a primary determining factor in this analysis. But it does give some insight into the nature and extent of Doreen’s consent. Given the sparse evidence on the issue of Doreen’s consent, it would be inappropriate to disregard the communication entirely. Parenthetically, counsel did not apply the same standard to a letter from CAS, and from a day care that purported to report on Shawn Jr.’s well – being.

26Judge Pawagi’s emphasis on the gap in the evidence over the communications between Doreen and Shawn in the period between July 20 and November 22, 2012 to support the conclusion that there was actual silence by Doreen and therefore acquiescence is a second factual error. Although it may be open to a court to draw adverse inferences from a deficiency in the evidence, in this case the lack of evidence cannot be equated automatically with a conclusion of consent or acquiescence. There are deficiencies in the evidence by both parties. Nowhere, for example does Shawn say that he had Doreen’s unqualified consent to take Shawn out to B.C. indefinitely. To the contrary, the evidence would suggest that Shawn sought Doreen’s consent only once he decided that he would not be returning to Ontario. In the absence of either viva voce evidence or cross-examinations on the respective affidavits, the conversion of the evidentiary gap into evidence of consent or an adverse inference in Shawn’s favour does not follow.

27The written communications that did occur between Shawn and Doreen in late November 2012 underscore the need for caution in the way the evidentiary gap is to be treated. In those communications, it is evident that the letters were the culmination of recent communications, however they occurred. The expressed frustration and anger has a cumulative character. Shawn seeks Doreen’s permission to keep Shawn Jr. because he does not have it. In response, Doreen refuses. There is a range of inferences that may be drawn from these formal communications to fill in the evidentiary gap. But consent or acquiescence is not one of them.

28The evidentiary gap, and Doreen’s delay in taking steps to address her situation must also be considered in light of Doreen’s overall situation. No consideration is apparent in the reasons of the court below. To say that Doreen was overwhelmed during this period of time might be an understatement. Her pregnancy and her living conditions leading up to the birth of her second child were horrendous. She lived in a shelter and then a hotel room. She was temporarily estranged from her own parents, though after she delivered Nolan she moved in with them. Her partner was without a job and was seeking employment across the country. She had to deal with various medical issues. She tried to be optimistic and hopeful that if Shawn got a job with the RCMP, she and her second son would go out to B.C. to start their family life there. Viewing her situation through that light, it is one more reason to refrain from drawing any conclusions on the basis of an evidentiary gap.

29Perhaps, though, the most compelling evidence in support of the conclusion that Doreen did not consent or acquiesce to Shawn Jr.’s residency in B.C. rests with Shawn’s own requests in November for Doreen’s consent to leave Shawn Jr. with Shawn. He would not be asking for further permission if he believed that Doreen had already consented to the proposed custody arrangements.

30An additional fact that seems to have fallen by the side but that is relevant to the assessment of Shawn Jr.’s habitual residence was Shawn’s return to Ontario in November 2012, possibly with Shawn Jr. In one of the e-mail exchanges in November, Shawn advised Doreen that his interview with a service provider for Pearson Airport went well and that subject to his security clearance he expected to receive a job offer. Over the course of four days he also kept telling Doreen that he would bring Shawn Jr. over to her. The exchanges on Shawn Jr.’s potential visit with his mother regrettably seemed to get tied into Shawn’s request for longer term custody arrangements. When Doreen refused that request, Shawn did not produce Shawn Jr. at all. What is significant for the purposes of this appeal is that Shawn Jr.’s residence in B.C. was not continuous as suggested by the Court. Shawn’s ostensible return to Ontario in November, is a further indicator that at least until November Shawn Jr. was habitually resident in Ontario. After November, even if he was taken back to B.C., it was without his mother’s consent.

31Insofar as Shawn Jr.’s attendance in day care was relied upon by the court as a further indicator of the child’s habitual residence, that evidence cannot be taken to be determinative of Shawn Jr.’s habitual residence. The letter from the day care does speak to the stability of Shawn Jr.’s well-being. However, it must be read with exceptional caution because the letter identifies Shawn and Niki as the parents. The day care did not appear to have any appreciation of who Shawn Jr.’s mother actually was. That letter might be relevant to the actual review of custody, but it could not be used as an indicator of Shawn Jr.’s habitual residence. Similarly, the fact of obtaining a B.C. health card cannot, on its own be determinative of a child’s habitual residence.

32Apart from the factual deficiencies by the lower court, Justice Pawagi also erred in her conclusion that Shawn and Doreen separated on July 20. Until Shawn’s declaration on November 22 that the relationship between him and Doreen was over, Doreen and Shawn were not living separate and apart. His trip to B.C. for the ostensible purpose of finding work, and with the implication that Doreen would join him as soon as she could travel with their new born, had all the hallmarks of one family unit making adjustments to their employment and location conditions, but as a family, not as separate and apart. For the purposes of applying the requirements of the CLRA, Doreen and Shawn started living separate and apart after Shawn declared the relationship was over and after Doreen accepted his declaration, namely on November 24, 2012. This differentiation is crucial because insofar as Doreen consented to anything, her consent was linked to her and Shawn being one family unit. She never consented or acquiesced to Shawn Jr.’s residence with his father once the two broke up.

33Taking all of these facts into consideration, Shawn Jr.’s absence from Ontario for at least two extended periods of time could not amount to a change in his habitual residence. Doreen’s consent was time-limited and for a specific purpose. It is doubtful that she would have consented at all but for her own very difficult situation at the time that she did agree to Shawn Jr.’s travel. Nor can the facts support an inference that Doreen acquiesced to Shawn Jr.’s residence in B.C. If anything, when it became abundantly clear to her that Shawn would not be bringing his son back to Ontario, she took the necessary steps to have her son returned to Ontario. Any delays in her actions, given her circumstances, ought not to be taken to imply either consent or acquiescence, or to be treated against her.

2) Did Justice Pawagi err in law in refusing to assume jurisdiction on the subject of Shawn’s custody and support in accordance with ss. 22, 23, and/or 40 of the Children’s Law Reform Act?

34The dispositive law on the subject of the court’s jurisdiction to make an order for custody of and access to a child is outlined in ss. 22 and 23 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12.

35On the subject of jurisdiction, s. 22 requires:

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. R.S.O. 1990, c. C.12, s. 22 (1).

(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. R.S.O. 1990, c. C.12, s. 22 (2).

36The critical definition here is the child’s habitual residence. Shawn Jr. resided with both parents in Ontario. When his parents began to live separate and apart, Doreen did not consent to Shawn Jr.’s residency in B.C. In light of this court’s conclusion regarding Shawn Jr.’s habitual residence, the Ontario Court ought to have assumed jurisdiction in accordance with s. 22 of the CLRA.

37Counsel for Doreen identified ss. 23 and 40 of the CLRA as alternative ways for the Ontario Court to assume jurisdiction. The court did not explore these provisions. Given this Court’s findings on the application of s. 22 of the CLRA, there is no need to review the requirements of either of these sections. Nor is it necessary to decide whether they might have been available to the Court as alternative ways of assuming jurisdiction.

3) Should the Ontario Court of Justice have exercised its jurisdiction under s. 40 of the CLRA and can this court assume parens patriae to rule on the issue of Shawn Jr.’s custody?

38Section 40 of the CLRA defines a court’s interim powers. Specifically it states:

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. R.S.O. 1990, c. C.12, s. 40.

39In this instance, Doreen can pursue her Application in Ontario pursuant to s. 22 of the CLRA. This court might have had a basis for assuming parens patriae jurisdiction if neither ss. 22 nor 23 of the CLRA could be accessed to establish Ontario jurisdiction. But this is not the case. Accordingly there is no need to consider this issue.

CONCLUSION

40Doreen’s appeal is allowed. The application should be heard by the Ontario Court of Justice. Given the delay caused by the Court’s original disposition, the appeal of that decision, the outcome of this appeal, and the Shawn Jr.’s very young age, the application for his return to Ontario and the related issue of custody and access ought to proceed on an urgent basis.

41Doreen is entitled to her costs on this appeal. If the parties cannot reach an agreement, counsel for the Applicant may make submissions by October 10, 2013 and counsel for the Respondent may file her submissions by October 15, 2013.