COURT FILE AND PARTIES

COURT FILE NO.: FS-13-3806-00

DATE: 20131128

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vince Augusto Rinaldi, Applicant (Husband)

AND:

Mary Pia Rinaldi, Respondent (Wife)

BEFORE: Edwards J.

COUNSEL:
F. L. Jamal, for the Applicant

E. Lenkinski, for the Respondent

HEARD: November 27, 2013

ENDORSEMENT

[1] This motion is brought by the respondent, Mary Pia Nasser Rinaldi, (“Mary”) seeking to have the temporary ex parte order of Justice Barnes, dated September 3, 2013 (“Order”) set aside and the applicant's proceeding be dismissed for lack of jurisdiction.

[2] In the Order, amongst other things, the applicant, Vince Augusto Rinaldi (“Vince”), was granted temporary sole custody of Miranda, who is one of the parties’ children, and her return to Ontario, as well as liberal access to Adam, who is the parties’ other child.

[3] This motion was originally scheduled as a regular motion and on November 18, 2013, I ordered a stay of the Order and adjourned the motion to a long motion to be heard on November 27, 2013.

[4] I heard the motion on November 27, 2013 and these are my reasons.

[5] The first issue which must be considered is whether the Order should be set aside. Counsel for the respondent submits that there are no Family Law Rules, O. Reg. 114/99 directly on the point as to the basis upon which an ex parte order should be set aside. She directs me to Family Law Rule 1(7), which provides that by analogy corresponding Rules in the Rules of Civil Procedure, R.R.O 1990, O. Reg. 194 should be applied when there is not a specific Family Law Rule on point.

[6] Counsel directs me to Rule 39.01(6) of the Rules of Civil Procedure that provides that the failure to provide full and fair disclosure of all material facts is itself sufficient grounds to set aside the Order.

[7] Also, Rule 37.14(2) of the Rules of Civil Procedure provides that a court may set aside the ex parte order on such terms as are just.

[8] Counsel for the applicant submits that the appropriate test is that the evidence now presented, if present at the time of the original motion would probably have changed the result. She submits that this is not the case.

[9] I am satisfied that, although Vince may not have intended to misrepresent any facts, his affidavit sworn November 18, 2013 which was before Justice Barnes, could well be considered to be a less than full and fair disclosure of all material facts. There is a lack of clarity regarding Vince’s living arrangements. From his affidavit it is not clear that he resides in the basement of his parents’ home. There is a less than candid discussion of the date of separation. In his affidavit sworn August 30, 2013 he states that he was not aware that he was separated until August 26, 2013, and yet in his affidavit sworn November 18, 2013, attached, as Exhibit E is a draft separation agreement that he prepared and in which the date of separation is stated as March 1, 2011.

[10] Further, had the evidence of Mary been before Justice Barnes, which would have been the case had she been served with the motion record, I am satisfied that it probably would have altered Justice Barnes decision.

[11] Further, the ex parte Order is a temporary order made under Rule 14 of the Family Law Rules. Rule 14(14) requires where an order is given without notice that such matter shall come back to the court within 14 days or on a date chosen by the court. Rule 14(12) sets forth the circumstances in which a motion without notice may be brought, none of which in my view exist in this matter.

[12] Further, the applicant has acknowledged that this court does not have jurisdiction over Adam; whereas the Order purports to exercise such jurisdiction.

[13] Finally, the best interest of the child must be paramount in a family law proceeding. As Rule 14(14) contemplates, a full airing of this issue is critical to ensuring that the best interests of the child is the guiding principle in any judicial decision. Section 24(1) requires that the court take into consideration the best interests of the child in making custody and access orders.

[14] Accordingly, I set aside the order of Justice Barnes dated September 3, 2013.

[15] The next issue that must be dealt with is a determination as to whether this court has jurisdiction to hear the applicant’s proceeding.

[16] The respondent asserts that this court lacks jurisdiction. She submits that the court’s jurisdiction to make orders with respect to custody of, or access to, a child arises under s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c C.12 (“CLRA”).

[17] She submits that there are six criteria in s. 22 (1)(b), which are cumulative. As the child was not “physically present in Ontario at the commencement of the action,” jurisdiction cannot be found under this subsection.

[18] A court does have jurisdiction under s. 22(1)(a) where "the child is habitually resident in Ontario at the commencement of the application for the order.” Accordingly, for this court to have jurisdiction it must be found that the child is "habitually resident.” Counsel for the respondent asserts that neither child was habitually resident in Ontario at the commencement of the application; therefore this court has no jurisdiction.

[19] Section 22(2) states: 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.

[20] Counsel for the applicant agrees that the issue is whether the child is habitually resident in Ontario and submits that Miranda was habitually resident. She concedes that Adam was not habitually resident at the time of the commencement of the application for the order and therefore, this court has no jurisdiction to make an order with respect to his custody or access.

[21] Counsel submits that an examination of the Hague Convention, s. 46 of the CLRA, and the cases on this issue demonstrate that the appropriate test for habitual residence is the parties’ settled intention combined with an appreciable period of time at that location.

[22] There has been considerable movement of this family between Ontario and Texas. Vince’s affidavit evidence is that the periods when Miranda was in Ontario was pursuant to an agreement that she would reside here and that her habitual residence is Ontario. He points to indicia of that fact that include registration at school and medical professionals.

[23] Mary’s affidavit evidence is that when she and the children went to Texas in 2009 it was with the intention of residing there permanently. Mary’s evidence is that Miranda stayed with Vince in Ontario in late summer of 2011 on a temporary basis and a defined period because Vince claimed that he had chest pains from loneliness, and because staying in Canada allowed Miranda to begin school a year earlier.

[24] Mary’s evidence is that she visited Ontario between June 28, 2013 and July 2, 2013 for the sole purpose of returning the children permanently to Texas and that a one way ticket to Texas was purchased for Miranda.

[25] Vince’s evidence is that Miranda went to Texas at that time for a holiday, and that the parties had agreed that he would go to Texas in August to bring Miranda back to Ontario.

[26] This is a motion and I cannot make findings of credibility based upon conflicting affidavits in the absence of corroborating evidence. There is insufficient evidence before me that would enable me to make a finding of Miranda’s habitual residence. The issue of Miranda’s habitual residence requires a trial of an issue.

[27] Counsel for the respondent urges me to decline jurisdiction under the forum non conveniens doctrine.

[28] I am satisfied that s. 25 of the CLRA empowers the court to decline to exercise jurisdiction where it is of the opinion that it is more appropriate for the matter to be heard outside of Ontario. However, under s. 25 there first must be a finding that the court has jurisdiction.

[29] Therefore I order:

(a) The temporary Order of Justice Barnes dated September 3, 2013 is set aside.

(b) A trial of the issue as to whether this court has jurisdiction to make orders with respect to Miranda’s custody and access be held.

(c) Should this court find that it has jurisdiction, the respondent is free to argue forum non conveniens.

Edwards J.

Date: November 28, 2013