COURT FILE NO.: FC-14-52
DATE: 2014/05/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cameron Guillemaud – Applicant v. Jennifer Anne Geurts – Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Erin Lepine, for the Applicant
Stephane A. MonPremier, for the Respondent
HEARD: March 7, 2014
ENDORSEMENT
[1] This was a motion for summary judgment brought by the Applicant, asking that the order of Justice M.C. Erb of the Alberta Court of Queen’s bench dated April 25, 2013 be recognized in the province of Ontario for the purposes of enforcement.
[2] The Respondent brought a cross-motion to have the matter transferred to the judicial centre nearest her current area of residence, Haileybury, Ontario, in the North East region, and for an order that a court in the Province of Ontario assume jurisdiction to determine the issues of custody and access to the child John Guillemaud.
[3] The time allotted for the presentation of the motions was 45 minutes. The parties presented contradictory affidavit evidence in support of the motions. Cross-examinations on the affidavit evidence did not take place.
[4] The factual background in this case can be summarized as follows:
• The Applicant Cameron Guillemaud and Respondent Jennifer Geurts were in a relationship for approximately two years. The Applicant is 55 years of age the Respondent is 37 years of age.
• They met in March 2011 when they were both living in the Northwest Territories and moved to the Province of Alberta early in the year 2012. They lived together from approximately December 2011 to March 2013.
• They had one child of their union, John Guillemaud, born on July 19, 2012.
• The parties relocated to the town of Fairview in the province of Alberta in December 2012.
• The Respondent advised the Applicant in January 2013 that she was not happy with the relationship and was considering moving to Ontario with their son. The applicant voiced his disagreement with this proposition. The couple tried counseling in Alberta; it did not work.
• By March 11, 2013 the Respondent left Alberta leaving a note to the Applicant that indicated that she would be in touch once she was in a safe place. The Respondent and Applicant were in communication until March 26, 2013.
• On April 8, 2013 the Respondent’s father emailed the Applicant. The Applicant determined at that stage the Respondent had likely moved back to her hometown in North Cobalt near Haileybury, Ontario to live with her parents.
• The Applicant commenced Family Court proceedings in the Court of Queen’s Bench of Alberta. The method of service he used was to forward the application to the Respondent’s and her father’s email addresses.
• On April 25, 2013 the Court of Queen’s Bench of Alberta ordered the Respondent to return her son to Alberta within four days and also granted a shared custody order regarding their child.
• The Respondent has made allegations of very abusive behavior on the part of the Applicant during the course of the relationship. The Applicant denies them categorically.
• The province of Ontario, more specifically the police, will not enforce the order.
• The Respondent mother and child began residing with her parents from the day she left Alberta in March 2013. They reside in North Cobalt, Ontario near Haileybury.
• Affidavit evidence filed by the Respondent alleges that she was not given an opportunity to respond to the Application.
• Affidavit evidence filed by the Respondent also alleges that the child suffers from emotional and psychological difficulties, whereby leaving the province of Ontario could seriously impact upon his well-being.
Recognition of an extra-provincial custody order
[5] Section 41(1) and (2) of the Children’s Law Reform Act provide as follows:
Upon application by any person in whose favour an order for the custody of or access to a child made by extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
(2) An order made by an extra-provincial tribunal that is recognized by a court shall be in order of the court and enforceable as such.
[6] Based on the material presented before me I am not satisfied that the extra-provincial order should be recognized without a full hearing on the issue of whether or not the Respondent had the opportunity to be heard by the tribunal that granted the custody order. In my view it is a triable issue that cannot be determined based upon the affidavit evidence filed and therefore the motion for summary judgment is dismissed.
Motion to transfer the matter to the court house at Haileybury in the North East Region
[7] The motion is granted on a clear balance of convenience. All of the witnesses who could testify as to the issues to be decided reside in that part of the province of Ontario. The motion should have been brought there in the first place. Therefore the matter is transferred to the court house located at 393 Main Street, Box 609, Haileybury, Ontario, P0J 1K0.
Does the province of Ontario have jurisdiction?
[8] Section 22 (1) and (2) of the Children’s Law Reform Act provide:
Jurisdiction
- (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
i. that the child is physically present in Ontario at the commencement of the application for the order,
ii. that substantial evidence concerning the best interests of the child is available in Ontario,
iii. that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
iv. that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
v. that the child has a real and substantial connection with Ontario, and
vi. that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Habitual Residence
(2) A child is habitually resident in the place where he or she resided,
(c) with both parents;
(d) 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
(e) with a person other than a parent on a permanent basis for a significant period of time.
[9] The matter of whether a court in Ontario has jurisdiction in this case requires a full hearing, including the presentation of viva voce evidence respecting all of the issues raised under section 22(1) Children’s Law Reform Act.
[10] Furthermore, the extent of the delay by the Applicant in bringing this application in Ontario and whether or not that can trigger section 22(2 (b) in terms of the issue of jurisdiction should also be considered after a complete hearing. This should take place before the Justice of the Superior Court in Haileybury, Ontario.
Conclusion and Costs
[11] While the court recognizes that summary judgment motions can be an expeditious and costs efficient means of determining disputes between parties, there are cases where a hearing, including the calling of evidence and allowing one or two days of court time, would be appropriate. When a court is called upon to determine issues that will forever impact the welfare of a very young child, it seems to me that an abundance of caution is warranted, and unless the case is crystal clear, a full hearing in the form of a trial rather than a 45-minute motion is the more appropriate means of dispensing justice.
[12] I will allow counsel 15 days of the date of this decision to provide two pages of written argument on the issue of costs failing which there will be no costs order.
Mr. Justice Robert L. Maranger
Date: May 1, 2014
COURT FILE NO.: FC-14-52
DATE: 2014/05/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: CAMERON GUILLEMAUD
Applicant
AND
JENNIFER ANNE GEURTS
Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Erin Lepine, for the Applicant
Stephane A. MonPremier, for the Respondent
ENDORSEMENT
Maranger J.
Released: May 1, 2014