Court File No. FC-13-01334

Neutral Case Citation No. 7239

SUPERIOR COURT OF JUSTICE

FAMILY COURT

B E T W E E N:

EUSTACE MOHAMMED

Applicant

• and -

DRUPATIE HITRAM

Respondent

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE D. CHAPPEL

on October 29, 2013, at HAMILTON, Ontario

APPEARANCES:

A. Katz Counsel for the Applicant

D. Hitram In Person

TUESDAY, OCTOBER 29, 2013

REASONS FOR JUDGMENT

CHAPPEL, J, (Orally):

This was the hearing of a motion relating solely to the issue of this court’s jurisdiction to hear this application and to hear a motion brought by the applicant which was originally returnable before me on August 23^rd, 2013.

The applicant and respondent in this case are the parents of the child Karishma Keatlin Mohammed, born October 11, 2002. Karishma is now 11 years old.

On August 14^th, 2013, the applicant issued this application in this court requesting an order for sole custody of the child. Soon after issuing this application on August 23^rd, 2013, the applicant brought a motion before me requesting an order for temporary custody and an order permitting the motion to proceed on an emergency basis prior to a case conference having been held.

On that date I raised the question as to whether this court had jurisdiction to hear the motion and to deal with this application. The case was adjourned to the current long motions list for the sole purpose of addressing a jurisdiction issue.

At the original return of the motion on August 23^rd, 2013, I declined to accept jurisdiction at that point, but made an order pursuant to S.40(1) of the Children’s Law Reform Act on a temporary, temporary, without prejudice basis providing for the child to reside with the applicant and permitting the applicant to register the child in school in the Hamilton area. The purpose of that temporary, temporary order was to provide some stability for the child in the very short term pending a determination of the jurisdiction issue.

By way of background, the parties were never married and the child is the only child of the relationship. The parties separated in July 2004. Orders respecting custody and access have been made in the past in the State of New York, United States of America. The history of orders made in New York is as follows:

a) On July 15, 2004, the final, a final order was made granting the parties joint custody and providing for the child to be in the physical custody of the respondent mother. The applicant father was granted access to the child every weekend from Saturday at 3:00 p.m. until Monday at 7:15 p.m.

b) On April 4, 2006, the July 15, 2004, order was varied to provide that the applicant’s access would be on alternate weekends from Saturday at 3:00 p.m. until Monday at 7:15 a.m. That order contemplated that the respondent mother would be moving to Florida in the near future, and provided that once the move occurred, the applicant father would have access to the child one month in the summer, over the child’s spring break each year, and additional visits as agreed upon in the State of New York, United States of America.

The April 4, 2006 order was the last order made respecting custody and access to the child. That order did not change custody of the child and accordingly the parties continued to retain joint custody, but physical custody of the child remains legally with the respondent pursuant to the terms of that order. The child remained in the physical custody of the respondent mother from the time of the parties’ separation until approximately March, 2010, a period of almost six years. I use the phrase “physical custody” as that is the phrase referred to in the April 4, 2006 order. The parties agree that the concept of “physical custody” as referred to in the order is the equivalent of what we refer to in Ontario as “primary residence”.

In May 2007, the father married his wife Esther Mohammed and came to Canada. The child came to Canada to visit with the father and his wife during the summer of 2009, and returned to her mother’s physical custody at the conclusion of that visit.

Based on the evidence of both the applicant and the respondent in this proceeding, I find that the mother experienced mental health difficulties in 2010, and as a result she executed a notarized document entitled “Power of Attorney Letter Child Custody”, in which she purported to grant custody and all legal rights respecting the child to the applicant father. This power of attorney was executed on February 18, 2010. In this document the respondent mother also consented to the applicant sponsoring the child for Canadian permanent residency. In a letter which the respondent signed around the same time, the mother indicated that due to mental health problems, she was permitting the child to travel with the applicant father’s wife, Esther Mohammed, previously known by her last name Jaggernauth to Canada so that the child could reside with the applicant father in Canada. The respondent gave this letter to Esther Mohammed so as to facilitate Mrs Mohammed bringing the child to Canada to live with the applicant father in March 2010.

The applicant father states that soon after the child arrived in Canada in March 2010, he learned about concerns that the respondent mother was being investigated for hitting the child, and regarding another incident pertaining to one of her other children. It was the applicant father’s impression that the child would have been apprehended from the respondent mother’s care by child welfare authorities in New York if the child had remained in the mother’s care at that time. I will discuss these concerns in further depth later in these reasons.

The child remained in the primary residence of the applicant father for a period of just over two years, from March 2010 until June 2012 with the respondent mother’s consent. However, neither party took any steps to formally change the April 4, 2006 order which, as I have noted, grants the respondent physical custody of the child. During this period of time when the child was in the primary care of the applicant father the child had extended summer visits with her mother in the summers of 2010 and 2011. The evidence indicates that the applicant allowed these extended summer visits to occur despite the alleged concerns regarding past child protection investigations involving the mother, because he had confirmed with a social worker in New York in July 2010 that there were no current protection concerns respecting the mother.

The child went to New York again for an extended summer visit in June 2012. On June 30^th, 2012, the respondent mother advised the applicant father that she would not be returning the child to Canada. The applicant father states that he objected to this decision. The evidence indicates that at that time the applicant pleaded with the respondent mother to send the child back to Canada. However, according to the applicant, the respondent mother refused to send Karishma back to Canada, claimed that the child was not adjusting to life in Canada, and stated that she felt that the child would be better off to return to her full-time care pursuant to the terms of the order dated April 4, 2006.

The applicant’s evidence is that he initially inquired about his rights as a parent to get the child back, and was informed that he would have to take the child back by force involving the courts and perhaps getting the police involved. He states that he was concerned that court action and possible police involvement would involve trauma for the child, and that he decided not to take any steps at that time but rather to simply monitor the situation. The applicant alleges that around this time the respondent telephoned him many times and threatened that if he took legal action he would never see the child again. In response, according to the applicant, he spoke with the child and told her that everything would work out and that he would not allow this to happen again once the child returned to Canada. The child in fact remained in New York for a period of slightly more than one year from early June 2012 until June 29^th, 2013. The applicant father did not initiate any court proceedings in either Canada or the state of New York to compel the respondent mother to return the child during that period of time.

The child came to Canada on June 29, 2013 after being with her mother for just over one year. According to the applicant father, the child told him at the end of July 2013 that she did not wish to return to New York. The applicant father advised the respondent mother on or about July 28^th of 2013 that the child would not be returning to New York. The respondent mother immediately objected to this plan, made numerous calls to the applicant in an attempt to resolve the issue, and advised the applicant father that she would be initiating court proceedings in New York to secure the return of the child to her care. In fact, on August 7^th, 2013, the respondent mother commenced a petition in the State of New York, United States of America, for an order finding that the applicant father had violated the custody order dated April 4, 2006. In addition, on August 12^th, 2013, she brought a motion for habeas corpus to secure the child’s return to the State of New York. On August 12, 2013, a writ of habeas corpus was issued in the Family Court of the state of New York directing the applicant father to produce the child before the Honourable Madam Justice Jolly of that court on September 19, 2013. The petition in New York has a return date of December 20^th, 2013.

The issue in this case, as I have stated, is whether this court has jurisdiction to hear this application and the motion that was originally returnable on August 23^rd, 2013. The applicant father argues that the court has the jurisdiction to deal with this matter. The respondent mother has not filed a cross motion. In response to the applicant’s motion, she states that the existing order in New York grants her physical custody of the child, and that this court does not have jurisdiction to hear this application or the motion that was originally returnable before me on August 23^rd, 2013. Her position is that any court proceedings relating to custody of and access to the child should be dealt with by the Family Court of the State of New York in the County of Queens.

It is important to note that neither party has plead or relied upon the Hague Convention. In Ireland v. Ireland, 2011 ONCA 623 (C.A.), the Ontario Court of Appeal cited Thompson v. Thompson, 1994 26 (SCC), 1994 SCJ No.6, where the Supreme Court of Canada held that domestic legislation and the Hague Convention operate independently of one another. The Ontario Court of Appeal noted that as a result of this ruling where no application is brought under the Hague Convention to address custody and access issues, the issues before the court are to be determined on the basis of domestic legislation.

The parties in this case were never married, and accordingly the legislation that applies is the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. With respect to the question of jurisdiction S.19(b) of the Children’s Law Reform Act provides that one of the purposes of the Act is to recognize that concurrent exercise of jurisdiction by the judicial tribunals in more than one Province or Territory or State in respect of custody of the child should be avoided, and to make provision for ensuring that courts of Ontario refrain from exercising jurisdiction 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.

The first issue that must be addressed in this case is whether the issue of jurisdiction should be dealt with pursuant to the principles set out in S.22 and S.23 of the Children’s Law Reform Act, or alternatively pursuant to S.42 and S.43 of the Act. S.22 and S.23 address the issue of jurisdiction in circumstances where there is no existing extra-provincial order in respect of custody of or access to the child in question.

S. 42 and S.43 apply to situations where an extra-provincial order is in effect and a request is made to supersede that order.

Counsel for the applicant submits that S.22 and S.23 of the Act apply in this case. As I understood his position, his initial submission was that S.42 and S.43 deal with the test for deciding whether to supersede an extra-provincial order once jurisdiction is established under S.22 and S.23. Later in his submissions, he suggested that S.42 and S.43 are not applicable, since the power of attorney which the respondent mother executed in February 2010 had the effect of negating the April 4, 2006 order dealing with custody and primary residence.

I do not agree with the applicant’s position that S.22 and S.23 are the provisions that apply for the purposes of determining jurisdiction in this case, and I conclude that S.42 and S.43 are the operative sections. The Ontario Court of Appeal confirmed in Brooks v. Brooks, 1998 CarswellOntario 3097 (C.A.), that S.42 and S.43 set out the criteria for determining jurisdiction where a request is made to supersede and extra-provincial order. I do not accept the submission of counsel for the applicant that the power of attorney which the respondent executed in February 2010 had the effect of negating the extra-provincial order granted in New York on April 4, 2006. While parties are free to conduct their affairs regarding the care of their children in a manner that differs from the terms of a formal custody and access order, there is no legal authority in Ontario for the proposition that a power of attorney or any type of oral or written agreement can legally supersede an existing court order. Counsel for the applicant has not brought my attention to any legal authority in the State of New York that would support the conclusion that a power of attorney of the type which the respondent executed on February 18, 2010 could nullify a valid court order. Accordingly, since the applicant is essentially asking for an order from this court that it supersede the April 4, 2006 order, S.42 and S.43 of the Children’s Law Reform Act apply.

I turn therefore to the requirements set out in S.42 for the court to assume jurisdiction. The first basis for asserting jurisdiction is set out in S.42(1). That section provides that jurisdiction may be assumed if the child is habitually resident in Ontario at the commencement of the application. The phrase “habitually resident” is not defined in S.42 of the Act, but there is a definition set out in S.22(2). This definition applies equally to S.42(1). The relevant portion of S.22(2) is subsection (b), which provides that in the case where parents are living separate and apart, a child is habitually resident in the place where they reside with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other, or under a court order. S.22(3) stipulates that the removal or withholding of the 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.

Counsel for the applicant argues that the child was habitually resident in Ontario at the time when the proceedings were commenced based on the power of attorney which the respondent mother executed on February 18, 2010, the letter which the respondent executed around that time purporting to grant the applicant custody of the child, and the child’s physical presence in Canada from 2010 until June 2012, and again from June 29, 2013 until on or about August 13, 2013 when this application was commenced. He states that this evidence brings the case within the scope of S.22(2)(b) in that the respondent consented to the child living with him in Ontario in February of 2010. He further argues that the respondent mother withheld the child in New York without his consent or acquiescence from June 2012 until June 2013, and that this withholding did not have the effect of altering the child’s habitual residence.

I do not agree with the applicant’s position regarding the child’s habitual residence. If the applicant had commenced an application for custody in 2012, he may very well have had a case for arguing that the child’s place of habitual residence was in Ontario based on the child being physically present in Ontario for two years with the mother’s consent. However, at the time that this application was commenced in August 2013, the child had been in Ontario for a period of less than six weeks, after having settled back into the care of the respondent mother for a period of just over one year. In fact, the child has been in the primary care of her mother for the majority of the time since the parties’ separation with the exception of the two year period from March 2010 until June 2012.

The facts of this case fall within S.22(2)(b) of the Children’s Law Reform Act in that at the time of the application, the child had been in the care of the mother in New York for just over one year pursuant to the terms of the April 4, 2006 order. Quite apart from the existence of the court order granting the respondent physical custody of the child, I find that the case also falls within S.22(2)(b) of the Act in that the child was living with her mother for a period of just over one year from approximately early June 2012 until the end of June 2013 with the implied consent or acquiescence of the applicant father.

In order to properly address this point, it is necessary to analyze the historical back and forth situation respecting the child since June 2012. As stated earlier, the evidence indicates that the child did not return to the applicant father’s care after visiting with her mother in June 2012. I accept the applicant’s evidence that he voiced his objections to the respondent mother in June 2012 about the respondent’s decision not to return the child. However, the evidence satisfies me that after initially objecting to this development the respondent acquiesced to the child remaining in New York with the respondent mother, with the result that the child remained in the mother’s care for just more than one year.

Alternatively, even if his conduct does not amount to acquiescence, the evidence indicates that he did not commence any due process during that one year period to have the child returned to his care. His failure to take formal steps in this regard for more than one year constitutes undue delay in commencing due process within the meaning of S.22(3) of the Children’s Law Reform Act. The applicant did not produce any documentary evidence of objections on his part to the respondent’s decision to keep the child in her care in June 2012. Further, he did not adduce any documentary evidence indicating that he intended to start court proceedings, and he acknowledges that he did not in fact start any court proceedings to secure the return of the child to Ontario. In fact, in his affidavit evidence, as I have noted, the applicant acknowledges that he decided to simply monitor the situation with the child in the respondent’s care out of concern about traumatizing the child by initiating court proceedings and possible police involvement.

Based on the evidence before me, I conclude that the child’s residence with her mother for the period of just more than one year from early June 2012 until late June 2013 changed the child’s habitual residence from Ontario to New York. I am also satisfied based on the evidence before me that the respondent mother has not consented to or acquiesced in the applicant’s decision to keep the child in Ontario in late July 2013. The evidence indicates that, as I have noted, in fact the respondent has consistently voiced her objection to the applicant refusing to return the child to New York since that time and that she promptly initiated court proceedings in New York to have the child returned to her care.

I turn to S.42(1)(b) of the Children’s Law Reform Act which sets out further criteria upon which this court could assume jurisdiction. That provision provides that the court may assume jurisdiction in some circumstances even though the child is not habitually in residence in Ontario, provided that five criteria are met. All five criteria must be satisfied.

The first criteria set out in S.42(1)(b)(i) is that the child is physically present in Ontario at the commencement of the application. This criterion is clearly satisfied in this case as the child was present in Ontario on August 13, 2013.

The second criterion set out in S.42(1)(b)(ii) is that the child no longer has a real and substantial connection with the place where the extra-provincial order was made. I am not satisfied that this criterion has been met on the facts of this case. At the time when these proceedings were commenced, the child had only been back in Ontario for a period of less than six weeks. She continued to have substantial connections in New York. She has resided with her mother, stepfather, and siblings in New York for approximately 13 months. She had attended a full year of school in New York while in the care of her mother. In addition, she had received counselling services in New York as a result of concerns which the respondent mother had apparently noted regarding her emotional well-being.

The third criterion set out in S.42(1)(b)(iii) is that substantial evidence concerning the best interests of the child is available in Ontario. I am not satisfied that this criterion has been met either. Although there is historical evidence in Ontario relating to the child’s time in the care of the applicant from March 2010 to June 2012, as well as evidence from the applicant father and his wife, the more recent and the substantial evidence that is relevant to the child’s overall best interests is from New York. This will be discussed later in these reasons, but by way of overview, the applicant has raised concerns about the well-being of the child in her mother’s care based on historical involvement by child welfare agencies, concerns regarding the quality of the relationship between her mother and the mother’s husband, and concerns regarding the influence of the child’s older sister. He has also raised concern about the fact that the child required therapy after returning to the mother’s care. All of the evidence relating to these matters is in New York. By contrast there were no school or other professionals involved with the child in Ontario at the time that these proceedings were commenced in August 2013.

Turning to S.42(1)(b)(iv), it is also necessary to establish that the child has a real and substantial connection with Ontario. This requirement does not involved a comparative analysis of the relative strengths of the connections which the child has in each jurisdiction. I am satisfied that Karishma has a real and substantial connection to both Ontario and New York based on the evidence before me by virtue of the periods of residence which he has had in each jurisdiction and the close connections which she has with her family members in each jurisdiction.

Finally, S.42(1)(b)(v) requires the court to be satisfied that on a balance of convenience it is appropriate for jurisdiction to be exercised in Ontario. I am not satisfied on this point. In reaching this conclusion I have given considerable weight to the evidence which would be required to properly litigate the issues of custody and access, and my conclusion is that most of the relevant and important evidence respecting these issues is from New York. In order to respond to the applicant father’s concerns about the history of child welfare involvement with the mother, it will be necessary to call the child protection professionals who were involved with the family as witnesses, and to summons records. In order to address the applicant father’s concerns about the fact that the child required therapy after returning to the mother’s care, it will be necessary to adduce evidence from the therapist who has been involved with the child in New York.

Furthermore, in order to properly respond to the applicant’s concerns about problems in the respondent’s relationship with her husband, it will be necessary for both respondent and her husband to testify on these matters.

The applicant has also in his affidavit evidence relayed comments which the respondent’s husband allegedly made to him, which are damaging to the respondent’s case. Specifically, he has alleged that the child’s stepfather told him that the mother made the child lie to social workers who are involved with the family. Evidence from the child’s stepfather will also in all likelihood be necessary to respond to this allegation.

With respect to the applicant’s concerns about the influence of the child’s older sibling, evidence from that sibling in New York will also very likely be required. In addition, the applicant has referred in his affidavit evidence to comments which the child’s older sister Rashma(ph), who also is in New York, allegedly made to him which were highly critical of the respondent mother. Evidence from that sibling may also very well be necessary in order to properly assess those allegations. In addition, as previously noted, the most recent evidence regarding this child’s school performance and adjustment is from New York where the child attended school for the past year. The most recent and relevant evidence regarding the child’s medical health would also be from any physicians involved with her in New York.

Based on all of these considerations, I have concluded that on a balance of convenience, it is appropriate for jurisdiction to be exercised in New York rather than Ontario.

S.43 of the Children’s Law Reform Act must also be considered in this case. That section provides a further basis for asserting jurisdiction to supersede an extra-provincial order where the test set out in S.42 has not been satisfied. Specifically S.43 provides that the courts may supersede the extra-provincial order respecting custody of or access to a child if it is satisfied that the child would on a balance of probabilities suffer serious harm if the child remained in the custody of the person legally entitled to custody, the child is returned to the custody of the person entitled to custody of the child, or the child were removed from Ontario. In the case of Ireland v. Ireland the court held that the harm referred to in S.43 of the Act must be of a degree that would amount to an intolerable situation for the child. It emphasized that the threshold for the exercise of jurisdiction pursuant to S.43 of the Act is very high hurdle.

In this case, as I have previously noted, the applicant has raised concerns about the well-being of the child in the respondent mother’s care. The question to be determined is whether the evidence relating to these alleged concerns is sufficient to meet the onus of establishing “serious harm” within the meaning of S.43. I am not satisfied that the evidence relating to these concerns satisfies this onus.

I wish to address each of these concerns. First, the applicant alleges that the respondent allowed the child to reside with him in March 2010 due to the involvement of New York child welfare authorities with the mother because of concerns that the respondent mother had hit the child and other unspecified concerns respecting another child of the respondent. The applicant did not adduce any documentary evidence from the relevant child welfare authorities or any other professionals from New York to support these allegations. Furthermore, despite those alleged concerns, the applicant acknowledges that he allowed the child to return to the care of the respondent mother for extended summer access in 2011 and again in 2012 on the basis that the relevant child welfare authorities in New York had confirmed that there were no protection concerns respecting the respondent mother as of the summer of 2011.

The applicant has also raised concerns regarding the child’s half sister. In particular, he alleges that upon the child’s return from the respondent mother’s care in August 2011, the child stated that her half sister had self injured herself by cutting, and had told her to try it since this would take away any pain she was feeling. The applicant raised concerns about the impact of this type of commentary on the child’s well-being. However, it is important to note that this concern is based solely on comments made by the child almost two years ago, and that the applicant sent the child for an extended summer visit with the respondent in 2012 despite these alleged concerns. It is also important to note that there is no evidence before the court respecting the extent of the child’s contact with the sister in question during the one year period from June 2012 until June 2013, when the child remained in the care of the respondent mother.

The applicant also raised concerns about conflict between the mother and stepfather, and between the respondent mother and her son Ryan. Again, these allegations are based largely on comments allegedly made by the child to the applicant. There is no independent documentary evidence to support these concerns, nor has the applicant provided particulars about the frequency of these types of disputes or the reasons for the disputes. Even if the evidence respecting conflict in the respondent mother’s home is accepted in its entirety, the evidence respecting those alleged concerns is not sufficient in my view to support a conclusion that the conflict rendered the child’s situation intolerable.

The applicant has raised concerns regarding the respondent mother going out to bars and staying out until early in the morning while the child was residing with her. Again, no details were provided regarding the frequency of these alleged incidents, and there is no evidence that satisfies me on a balance of probabilities that the child was left with inappropriate caregivers on any such occasions. There is a suggestion by the applicant that the child was left on some of these occasions with her older half sister who had self harmed in the past. However, even if I accept that the older sister engaged in self harmful behaviour at some point in her history, the applicant does not provide specifics regarding the timing of any such self harmful behaviours or whether this type of concerning conduct persisted at the time when the respondent allegedly left the child in the sister’s care.

In short, based on the forgoing I am not satisfied that the applicant has met the onus required by S.43 of the Children’s Law Reform Act of establishing that the child would suffer serious harm if she were to be returned to the care of the respondent mother in New York.

I wish to emphasize that even if I had accepted the applicant counsel’s position that S.22 and S.23 of the Children’s Law Reform Act govern the issue of jurisdiction in this case, I would have reached the same conclusion. S.23(1) of the Act allows a court to assume jurisdiction where a child is habitually resident in Ontario at the commencement of the application. For the reasons which I have already outlined, the child did not in my view habitually reside in Ontario when this proceeding was commenced. The alternative basis for assuming jurisdiction set out in S.22(b) of the Act would not have applied in this case either since subsection (vi) of that provision requires at a criterion for assuming jurisdiction that the court be satisfied that it is appropriate for jurisdiction to be exercised in Ontario. For the reasons that I have already outlined in relation to the balance of convenience analysis in connection with S.42 of the Act, I am not satisfied that it would be appropriate for Ontario to exercise jurisdiction in this matter.

S.23 of the Children’s Law Reform Act allows the court to assume jurisdiction on the same basis as set out in S.43. That is, where the court is satisfied that the child would suffer serious harm if it were returned to the care of the respondent. As noted previously I am not satisfied that the applicant has met the onus of establishing that the child would suffer such harm if returned to the mother’s care.

The applicant advanced an alternative argument that if jurisdiction cannot be assumed on the basis of the applicable provisions set out in the Children’s Law Reform Act this court should assume jurisdiction based on its parens patriae jurisdiction. The Superior Court of Justice can only invoke its parens patriae jurisdiction in circumstances where there is a legislative gap and it concludes that resort to this special jurisdiction is necessary in order to safeguard a child’s interests. I am not satisfied that there is a legislative gap in this case. The Children’s Law Reform Act sets out clear and comprehensive principles and tests respecting the jurisdiction issue. In any event, I am not satisfied that the exercise of my parens partiae jurisdiction is necessary to safeguard the child’s interests. Court proceedings have been commenced in New York which is in my view the most appropriate place to litigate these issues. The Family Court of the State of New York is fully able to grant any orders required to protect the child and promote her best interests.

For all of the forgoing reasons I conclude this court does not have jurisdiction to deal with the applicant’s application or the motion that was originally returnable before me on August 23^rd, 2013.

S.40 of the Children’s Law Reform Act allows a court that has declined to assume jurisdiction a broad discretion on application by a party to make such interim order in respect of custody or access as the court considers is in the best interests of the child. The court also has the authority pursuant to S.40 on application by a party to order a party to return the child to such place as the court considers appropriate.

I do not consider it appropriate in this case to make an interim order respecting custody of her access to the child. The State of New York has jurisdiction in this matter and the respondent mother has commenced legal proceedings in New York to address compliance with the April 4, 2006 order respecting the child. Having regard to the comments which I have already made regarding the preponderance of evidence relevant to the custody and access issues in New York, I conclude that it is most appropriate to deal with the issues of temporary custody and or access in New York. The Honourable Madam Justice Jolly at the Family Court of the State of New York, United States of America, has already through the writ of habeas corpus issued on August 12^th, 2013 ordered the respondent to produce the child before her for such further proceedings as the court may direct. The respondent is obliged to comply with that order. If he wishes to obtain a temporary order to custody and primary residence of the child, he should bring the necessary proceedings in New York on an urgent basis to obtain this relief.

The respondent has not brought a motion for an order requiring the applicant to return the child to New York or for specific directions as to how the return of the child should be effected. As I have stated, the writ of habeas corpus issued by Justice Jolly on August 12^th, 2013 places the responsibility of returning the child to New York on the applicant. If the applicant fails to discharge his obligation to return the child to New York, the respondent may bring such further motion in this court for any orders which may be required to secure the child’s return to New York.

For the forgoing reasons an order shall issue as follows:

1. The application herein and the motion originally returnable on August 23^rd, 2013 are dismissed on the basis that this court lacks jurisdiction to hear these proceedings.

2. The temporary order dated August 23^rd, 2013 is terminated.

3. In the event that the applicant does not comply with the writ of habeas corpus issued by the Honourable Madam Justice Jolly on August 12^th, 2013, the respondent may on motion in this court seek further directions and orders from the court respecting return of the child to New York and the specifics as to how this transfer should be effected. She is granted leave to argue any such motion via teleconference. I am seized of any such motion.