COURT FILE NO.: D1664/13

DATE: 2014-03-03

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK KARIM RIFAI
Applicant

– and –

KARMEN GLENDA LEA GREEN
Respondent

Avy Jordan Ben-Zvi, - Counsel for the Applicant

Geoffrey Carpenter – Counsel for the Respondent

HEARD: February 28, 2014

THE HONOURABLE MR. JUSTICE PAZARATZ

1. This was an emergency motion brought by the Applicant father, on notice to the mother, requesting urgent relief in relation to a one year old child. The Respondent’s counsel argues there is no merit to the motion, and it shouldn’t even be heard prior to a case conference as this is not an “urgent” matter.

THE PARTIES

2. Some details about the parties:

a. The Applicant is 38 years old and resides in Burlington.

b. The Respondent is 31 and used to reside in Hamilton.

c. There is one child of this relationship, Kira Lea Green, born February 28 2013. She turned one year old the day the motion was argued.

d. Neither party has other children.

e. The parties started living together in October 2007.

f. They were married on August 1, 2008.

g. They separated in May 2012 – almost nine months prior to Kira’s birth.

h. Kira has remained in the Respondent’s custody since birth.

i. The Applicant last had contact with Kira on April 28, 2013 – when she was two months old.

j. There is disagreement between the parties as to how much access he had during the months of March and April 2013. The Applicant says it was fairly regular. The Respondent provided a detailed list of times and dates, setting out that the father was present in the hospital for five hours on each of February 28th and March 1st, 2013; and thereafter he saw her less than 10 times, for no more than an hour at a time.

k. Both parties agree all of his visits were in the Respondent mother’s presence. He has never had the child alone, and the mother says Kira has never been away from her for more than three hours at a time.

CHRONOLOGY

3. The chronology since the Applicant’s last visit 10 months ago is important:

a. In early May 2013 the Respondent proposed that she take the child to Alberta for a six week visit with her grandmother who was having health problems. The Applicant agreed.

b. At that point the Applicant was represented by former counsel. The Respondent had her current counsel. The lawyers exchanged letters addressing various issues.

c. On May10, 2013 the Applicant’s lawyer wrote requesting paternity testing which the Applicant was willing to pay for.

d. On June 11, 2013 -- while the Respondent and Kira were in Alberta as part of their “six week visit” -- the Respondent’s lawyer sent a letter which included notification that the Respondent intended “to ultimately re-locate to Alberta”.

e. On June 26, 2013 – with the Respondent and Kira still in Alberta – the Respondent’s lawyer wrote confirming the mother would agree to facilitate DNA testing. The letter went on to state: “Additionally, please be advised that it is my client’s intention to permanently re-locate to Alberta. She will be coming back to Ontario shortly in order to facilitate the litigation granting her such an order.” The lawyer said the mother’s Application would be served in July 2013.

f. However, the Respondent never returned from Alberta, nor did she commence an Application in this jurisdiction.

g. On June 26, 2013 the Applicant’s former lawyer wrote complaining that the Respondent mother had not yet committed herself to paternity testing. The Applicant’s lawyer also noted the Respondent had not yet returned to Ontario. Court action to compel paternity testing was threatened, unless the Respondent voluntarily complied.

h. During the next few months, discussion about the paternity testing dragged on, with disagreements or miscommunications as to the proper agency to conduct the testing.

i. Letters from the Applicant’s lawyer didn’t ask about access. They didn’t ask that the Respondent and Kira return to southern Ontario. The main topic of discussion seemed to be the lack of progress in finalizing the DNA testing.

j. On October 8, 2013 the father commenced a Divorce Application here in Hamilton seeking, among other things, custody and/or access to the child. In the Application, the father complained about the delay in obtaining paternity testing. He stated the testing firm which the Respondent had selected was not qualified or recognized to produce a report which could be used in the courts.

k. On October 17, 2013 the Respondent’s lawyer wrote reassuring the Applicant that the Calgary laboratory selected by the mother was indeed a recognized paternity testing facility.

l. On November 4, 2013 the Respondent’s lawyer wrote advising that the Applicant had apparently attended for his part of the paternity testing, but that he had refused to pay for it, with the result that the testing facility was refusing to release the results. The Respondent’s lawyer requested that the Applicant pay the fee immediately, so that the test result could be ascertained.

m. On November 6, 2013 the Respondent’s lawyer sent Applicant’s counsel a copy of the DNA test confirming paternity. The letter included the comment “we should discuss the issue of jurisdiction forthwith.”

n. In December 2013 the Applicant apparently consulted with his current counsel.

o. In January 2014 the Applicant retained his current counsel.

p. On January 17, 2014 a Notice of Change of Representation was filed.

q. During all of this time the Applicant paid no support of any kind, even though he is steadily employed earning approximately $45,000.00 per year.

r. The Respondent says she is permanently settled in Cochrane, Alberta where she lives with her mother. She has found employment working in the cafeteria of a school where her mother is the business manager. She hopes to start a Bachelor of Education program in Alberta in September 2014. She has no life to return to – no job, no residence, no resources – in Hamilton.

s. There has never been a court order or written agreement in this matter.

EMERGENCY MOTION

4. On February 19, 2014 the Applicant brought a motion returnable February 28, 2014, requesting the following:

a. An order requiring the Respondent to return the child to the Applicant.

b. An order that the Applicant would have exclusive care and control of the child.

c. An order that the child not be removed from Ontario.

d. An order for police enforcement pursuant to section 36 of the Children’s Law Reform Act (“CLRA”).

5. In support of that motion the Applicant filed a 15 paragraph affidavit, very briefly setting out the chronology, and blaming his former lawyer for not bringing an emergency motion sooner.

6. The Respondent countered with a 41 paragraph affidavit dated February 24, 2014. Both affidavits included copies of letters exchanged between counsel dating back many months.

PARENTING SKILLS

7. In her materials the Respondent expressed concerns about the Applicant’s parenting skills. She said:

a. He was not very interested during the child’s first two months, before the move to Alberta.

b. She has concerns about his temperament. Historically he was abusive with her, frequently screaming, calling her names, and behaving in a controlling manner.

c. He spends $100 per week on marijuana.

d. Occasionally he uses cocaine.

e. He works full-time.

f. He has presented no credible or detailed plan as to how he would care for a one year old that he hasn’t even seen in 10 months.

g. His affidavit materials outline his own views and frustrations, but do not address the best interests of the child.

8. In contrast, the Applicant raised no concerns about the Respondent mother’s parenting skills – other than to allege that the mother was “alienating” the child.

THE LAW

9. I have considered the relevant provisions of Ontario’s Children’s Law Reform Act R.S.O. 1990, c.C.12, as amended (“CLRA”) and the Divorce Act.

10. Section 19 of the CLRA sets out the purposes of the custody, access and guardianship provisions:

11. 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.

11. Pursuant to s. 20(1) of the CLRA, a mother and the father of a child are equally entitled to custody of that child, except as otherwise provided in Part III of the Act. In the case of parents who live separate and apart, s. 20(4) provides:

12. Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

13. Section 22 of the CLRA deals with jurisdiction:

22(1) Jurisdiction 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.

22(2) Habitual residence

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.

22(3) Abduction

The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

13. Section 16 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c.3, as amended (the “Divorce Act”) governs custody orders made pursuant to that Act:

14. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Temporary order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an temporary order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

14. Both s. 16(8) of the Divorce Act and s.24(1) of the CLRA require the court to consider the best interests of the child as the sole criterion in matters of custody and access. This was confirmed by the Supreme Court of Canada in Young v. Young (1993), 1993 34 (SCC), 49 R.F.L.(3d) 117; and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.

15. While the Divorce Act governs the facts of this case, the Act provides little guidance as to the factors to be considered when making decisions dealing with the best interests of the children. The “best interests” factors are more fully set out in s. 24(2) of the CLRA, and are relevant to any case dealing with the best interests of children:

24(2) Best interests of child

The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and up-bringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

24(3) Past conduct

A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

24(4) Violence and abuse

In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(c) his or her spouse;

(d) a parent of the child to whom the application relates;

(e) a member of the person's household; or

(f) any child.

16. Temporary custody determinations are particularly challenging. Immediate determinations must be made based upon often incomplete and untested evidence.

17. A temporary order is significant because it will frequently influence or form the basis for a final order. Once a child settles into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child’s best interests to disrupt or significantly change the temporary arrangement.

18. That same concern about minimizing the risk of needless disruption often becomes even more acute at the temporary order stage, where courts are reluctant to change the status quo unless there are compelling reasons to do so. Grant v. Turgeon, 2000 22565 (SCJ); Kimpton v. Kimpton, 2002 2793 (SCJ); Tayebi v. Oukachbi 2013 ONSC 6960 (OCJ).

19. Accordingly, consideration of the “status quo” becomes an enduring component of access and particularly custody disputes, at virtually every stage of the process. It’s little wonder that so many lawyers – and parents – become preoccupied with the strategic implications of any pattern or routine a child comes to be used to.

20. Sometimes, determining the status quo can be problematic. Is it the most recent arrangement in a child’s life? Or is it an earlier routine which might have been more long-standing? Should we stick with what’s working at this precise moment? Or should we go back to something that was working well recently?

21. Very much related to this is the court’s increasing concern that parents should not be allowed to gain strategic advantage – and children should not be needlessly disrupted -- by a parent unilaterally creating a new status quo through manipulation or deliberate acts. Izyuk v. Bilousov 2011 ONSC 6451 (SCJ); Nyari v. Velasco 2008 ONCJ 272 (OCJ).

22. A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).

23. Where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate. Kennedy v. Hull 2005 ONCJ 275, [2005] O.J. No. 4719.

24. The longer the child has been in a new situation (or city) – however it may have been created – the more closely the court will have to focus on the child’s best interests, as opposed to any violation of parental rights. Sodhi v. Sodhi (2002) 2002 41503 (ON CA), 25 R.F.L. (5th) 420 (Ont. C.A.)

25. The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

26. Physical separation between parents usually entails some continuing geographic proximity – usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of “best interests” considerations. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry 2011 ONCA 705 (Ont. C.A.)

27. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Ongoing modifications to arrangements are relatively easy (and inevitable) as children get older. But where one of the parents proposes – or imposes – a significant geographic relocation, a host of additional legal and parental complications immediately arise.

28. Jurisdiction – both venue and perhaps the applicable law – must be determined based upon the child’s “habitual residence”.

29. More fundamentally, the greater the distance, the more challenging the overall “best interests” analysis. When travel time between homes is measured in minutes rather than hours, courts can work toward a “best of both worlds” approach to parental involvement. But where significant distance precludes frequent access exchanges, all too often courts are forced to make an “either/or” choice. Distance greatly reduces options, and courts should be cautious about permitting – or condoning – temporary relocations where custody or mobility are going to be in issue at trial. Plumley v. Plumley, 1999 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.); Mantyka v. Dueck 2012 SKCA 109 (Sask C.A.).

30. Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. Hazelwood v. Hazelwood 2012 ONSC 5069 (SCJ).

ANALYSIS

31. The Applicant argues the habitual residence of the child Kira is and always has been in Ontario (either Hamilton or Burlington).

a. He consented to a six week vacation.

b. He did not consent to a permanent relocation.

c. He never consented to the Respondent extending her stay in Alberta.

d. When he learned of the Respondent’s request to remain in Alberta, he did not consent.

32. The Respondent admits Kira’s habitual residence was in Hamilton. But she says with the passage of time things changed:

a. When she travelled to Alberta in May 2013, she only intended to remain for a six week family visit.

b. Once she and Kira spent time with family, she realized she could offer Kira a better life in Alberta.

c. In Ontario, the Applicant was being unsupportive. He had only a handful of visits during Kira’s first two months. He was paying no support. He denied paternity. He said he didn’t want more access until paternity was confirmed. But he was dragging his feet, and the DNA testing came to be delayed by months.

d. She felt the Applicant wasn’t actually interested in Kira’s life – but he wanted to keep his options open.

e. The Respondent couldn’t wait while the Applicant made up his mind about whether he wanted to be a father. She made a life for herself and her daughter in Alberta. And now that’s the child’s habitual residence.

33. The Applicant argues the Respondent shouldn’t be allowed to gain strategic advantage through deception and manipulation. She disrupted the “status quo” in Hamilton through self-help, by refusing to return to Hamilton as she had originally promised. He says she shouldn’t be allowed to now perpetuate an “Alberta status quo” which never should have arisen in the first place.

34. The Respondent counters that there was no trickery or manipulation. She was always candid and truthful in disclosing her plans as they developed. She says the Applicant chose to ignore the evolving situation, focusing only on getting DNA tests in the misguided hope that they might clear him of any parental responsibility.

35. I have little doubt that had the Applicant brought these issues to court in a timely way, his position in relation to both habitual residence and status quo would likely have prevailed. He almost certainly would have been successful obtaining an order for some of the relief he now seeks – compelling the Respondent mother to return the child to this jurisdiction; and at the very least establishing some access to this very young child.

36. As of mid-summer 2013 the basis for such emergency judicial intervention would have been clear:

a. The parties and the child had all been habitually resident in Ontario – the Applicant residing in Burlington, and mother and child residing in Hamilton.

b. The mother had represented she was only taking the child away for a relatively brief vacation. That’s the only travel the Applicant consented to.

c. Whether the mother had been deceptive about her plans all along, or whether she legitimately changed her mind once she got to Alberta – either way, she had no right to act unilaterally and decide not to return the child from Alberta.

d. The proposed relocation would have enormous – and likely permanent – impact on custody and access determinations.

e. The Respondent mother had no right to engage in self-help and simply impose a dramatically new parenting arrangement – and obviously, a new status quo.

f. At that point – mid-summer 2013 – the court would inevitably have concluded that in the absence of any emergency justification for a relocation to Alberta, the child should be immediately returned to this jurisdiction. The mother’s proposal to relocate to Alberta could then have been fully considered in the context of a comprehensive “best interests” analysis in a custody/access proceeding.

37. But regrettably, the Applicant father didn’t take any action in July 2013 to require the mother to return Kira to Ontario. By the end of July it was clear she wasn’t returning to Ontario to commence proceedings (as mentioned in the June 26th letter).

38. He didn’t take any action in August or September 2013.

39. In October 2013 the father (through former counsel) issued his Application which included requests for:

a. A declaration that he is the child’s father

b. Paternity tests

c. Custody (or access in the alternative)

d. “An order enjoining the Respondent from moving the child’s residence from the Regions of Hamilton-Wentworth or Halton.”

40. By the time the father brought an Application to prevent the mother from relocating to Alberta, she and the child had already been there five months. Despite opening a court file, he brought no motion to compel the mother to return.

41. As of November 2013 ongoing correspondence between counsel still focussed on DNA testing – and the Respondent’s complaint that the Applicant was being uncooperative and delaying the paternity determination.

42. The Applicant argues he didn’t really want to pursue access until he was sure he was the father. But discussions about paternity testing first arose in March 2013 – before the mother even left for Alberta. It is incomprehensible why the Applicant allowed paternity testing to take so long. The Applicant can’t blame the Respondent, because letters exchanged by the lawyers demonstrate that clearly the mother was cooperating.

43. Even after the Applicant received DNA confirmation on November 6, 2013 that Kira is indeed his child, he still did nothing to either request access or compel the Applicant to return the child.

44. The Applicant blames his former lawyer for failing to inform him that emergency proceedings could have been initiated sooner. At some point that delicate solicitor-client issue may be further explored. But however well or poorly informed the Applicant was as a litigant, as a putative father he was clearly aware that:

a. He might be the father of this child.

b. He had already had some access during the child’s first two months, which he described as beneficial and enjoyable.

c. He wasn’t paying any child support even though clearly the mother had need and he had the ability to pay.

d. He wasn’t pursuing DNA testing in any particular hurry.

e. He wasn’t pursuing access in any particular hurry.

f. He didn’t even ask the Respondent to return to Ontario, after she announced she was staying in Alberta.

45. The Applicant apparently consulted his current lawyer in December 2013, but waited another month to retain him. And even though the Applicant’s affidavit filed in this motion appears to have been typed on January 17, 2014, it was not actually signed until February 10, 2014. No explanation was provided for this additional delay.

46. Altogether, the Applicant father waited eight full months between when he received notification of the mother’s plan to remain in Alberta, and when he finally signed motion documents seeking to compel her return.

47. Eight months is a conspicuously long time, particularly when you factor in that it’s really been 10 months since the Applicant last saw his child.

48. To put things in perspective, in Abbott-Ewen v. Ewen 2010 ONSC 2121 (SCJ) a mother unilaterally relocated a young child from Ontario to Alberta. Gareau J. expressed disapproval of the mother’s self-serving behaviour. But focussing on “best interests” considerations, the court concluded that the new four month status quo should not be disrupted.

49. The Applicant’s lawyer argues the clock didn’t really start running eight months ago. He says even if the court doesn’t accept the father’s various explanations for delay, the bottom line is the court should not allow the mother to benefit from self-help and deception. She didn’t have permission to stay in Alberta. She should be forced to bring the child back.

50. The Respondent’s counsel submits that with the Applicant having clearly acquiesced to mother and child remaining in Alberta all this time, it’s unrealistic – and certainly not in the best interests of the child – to change things now. Her lawyer urged the court to consider the realities of life for a single mother with a baby:

a. The Respondent mother went through virtually the entire pregnancy and birth of the child, with very little involvement by the Applicant.

b. She says he had only a handful of brief visits during the child’s first two months.

c. She was a single mother staying temporarily with her sister in the Waterdown suburb of Hamilton.

d. She has family in Alberta, including her mother and a grandmother who really was ill (ie, the initial reason for the trip).

e. She ultimately decided it was best for her and the child to remain in Alberta where she has a support network to help with the child; and where she found employment working in the same school as her mother.

f. The Applicant was being non-committal about his role in the child’s life, at a time when this newborn needed commitment.

g. Despite his claims that he wanted access as soon as paternity was confirmed, he was allowing months and months to go by without facilitating DNA testing. Months without any mention of wanting access.

h. And despite promising to pay child support, had has paid nothing since Kira was born.

51. The Respondent’s lawyer strenuously denied the mother had ever acted in bad faith. She openly communicated her efforts to deal with a difficult situation, at every stage. She moved on with life – because Kira needed at least one parent to step up and make a commitment.

52. Citing Konkin v. Aguilera 2010 ONSC 4808 (SCJ) the mother’s counsel urged the court to take a realistic approach; compare the alternatives that are available; and then determine which of the available alternatives is in the child’s best interests. He submitted:

a. The Respondent has been the young child’s sole caregiver.

b. The Applicant is a virtual stranger to the one year old, with no contact since the end of April 2013.

c. The Applicant seeks immediate transfer of the child – not only from Alberta to Ontario, but also from the mother into the father’s custody. But the Applicant’s 15 paragraph affidavit says nothing about either his plan for the child or any best interests considerations.

d. The Applicant’s alternate position is that the Respondent should bring Kira back to Ontario so the father can have alternate weekend access. Given the fact that the Applicant is not only a virtual stranger – but the Respondent has also raised serious concerns about him including drug use and anger management issues – even an “alternate weekend” regime would appear to be unlikely in the near future.

e. The ultimate question: Dealing with the facts not as they might have been in June 2013 but rather as they are now: What is the best arrangement for the child? Creating an opportunity for contact with the father will definitely benefit this one year old. But will that benefit offset the upheaval the child will face, being uprooted from the stability of a now secure life in Alberta?

f. And in any event, what are the practicalities of forcing Kira back to Ontario? The Applicant did not contradict the Respondent’s evidence that she has nothing to come back to. No residence. No job. No support network.

FINDINGS

53. There is no doubt Kira’s habitual residence was in Hamilton, Ontario until at least mid-June 2013.

54. However, a child’s habitual residence can be changed in a number of ways, including “with the consent, implied consent or acquiescence of the other party.”

55. I find that the Applicant only consented to Kira travelling to Alberta in May 2013, on the basis that this was a trip of a finite duration for the purpose of visiting family members. His reasonable expectation at the time was that the child would return after about six weeks. He did not consent to any change in the child’s habitual or ordinary residence.

56. I find that the Applicant’s express “consent” to Kira’s presence in Alberta ended in mid-June 2013, the moment he was advised through counsel that the mother was unilaterally changing the arrangement.

57. At that point, the Respondent mother’s actions and unilateral decisions concerning the child could easily have been addressed and “corrected”, if the Applicant had been sincerely interested in doing so.

58. There are consequences to the fact that the Applicant ended up doing nothing – for eight full months. Time moves on. Children move on. The Respondent and Kira moved on. And really, it is difficult to blame the mother for seeking out a family support network, in the face of such ambiguous and half-hearted involvement from the father.

59. In this case, consideration of the “status quo” is a bit of a double-edged sword for the Applicant. He’s quite correct: In June 2013 she changed the status quo. Had he proceeded in a timely manner, he could persuasively have argued that the status quo here in Ontario should have been reinstated.

60. But by acquiescing, the father allowed a new status quo to gradually emerge. Really, a more meaningful status quo from the child’s perspective, given the fact that she’s now lived in Alberta with her mother for the last 10 of her 12 months.

61. The Applicant father objects to the manner in which the current status quo was created. But really he’s got no one to blame but himself. It may be a painful and even tragic lesson. But he simply waited far too long to do something, if he really wanted the Respondent and Kira to return to this jurisdiction even on a temporary basis.

62. Ultimately, this court must focus on the best interests of the child, while still safeguarding the process from manipulation and unfairness.

THE ORDER

63. In all the circumstances:

a. The Applicant’s motion for the child Kira to be returned to his care and control is dismissed.

b. The Applicant’s motion requiring the child to be returned to this jurisdiction immediately is dismissed.

c. The Applicant’s motion for police enforcement is dismissed.

OTHER ISSUES

64. During submissions a number of other issues were raised.

65. The Respondent’s lawyer raised no preliminary objection to the Applicant’s motion proceeding. As stated, comprehensive reply materials were filed. But toward the end of submissions the Respondent’s lawyer noted that the Applicant’s emergency motion violated Rule 14(4) of the Family Law Rules in that it was not sufficiently “urgent” that it should be dealt with prior to a case conference. Indeed, the Applicant’s counsel acknowledged he had not even canvassed the availability of securing an early date for a case conference.

66. Given my finding, I agree the motion was not urgent. An early case conference might have helped get this file back on track. But as stated, Respondent’s counsel didn’t even raise the Rule 14(4) issue until we were well into submissions. At that point – given the impact of further delay on this child – I elected to allow the motion to proceed.

67. As well, during submissions both counsel briefly touched on the possibility of immediately listing the matter for trial. On reflection, I have elected not to do so at this time. There are a number of jurisdictional issues which will need to be addressed. For example, this action was commenced in Hamilton because the Respondent previously resided in Hamilton. But there’s no Hamilton connection now. The Applicant resides in Halton.

68. More to the point, I anticipate a jurisdictional issue may arise as to whether this custody dispute should be dealt with in Alberta, since that appears to be Kira’s habitual and ordinary residence. I received no submissions on this topic, and I make no determination in this respect.

RESIDUAL ISSUES

69. Counsel may see me if they wish to address any residual issues other than costs.

70. If costs are being requested, the party seeking costs shall serve and file written submissions within 21 days. The opposing party shall serve and file their costs submissions within 14 days of receiving the initial submissions. Any reply submissions shall be served and filed within seven days.

Pazaratz, J.

Released: March 3, 2014

COURT FILE NO.: D1664/13

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK KARIM RIFAI
Applicant

-and

KARMEN GLENDA LEA GREEN
Respondent

REASONS FOR JUDGMENT

Pazaratz, J.

Released: March 3, 2014