COURT FILE AND PARTIES

COURT FILE NO.: FS-941-14

DATE: 2014-12-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jonathan Patrick Costello, Applicant

AND:

Ashley McLean, Respondent

BEFORE: The Honourable Justice G. A. Campbell

COUNSEL: Barry T. Paquette, Counsel for the Applicant

Sharon McKim-Ryan, Counsel for the Respondent by Telephone (in presence of the Respondent)

HEARD: December 17, 2014

ENDORSEMENT

[1] Both of the parties’ motions were argued today only on the issue of the new born, Hunter’s, “habitual residence” as it relates to whether this Court or the Supreme Court of Newfoundland and Labrador Trial Division (Family) should take jurisdiction over the cross-claims of the child’s parents.

[2] Hunter was born in Cambridge, Ontario on September 5, 2014. The Respondent, originally from Newfoundland, has resided in Ontario since 2006. The Applicant has lived his entire life in this Region of Ontario and has never been to Newfoundland. He has voluntarily paid child support for Hunter since the child’s birth.

[3] The parents have been in a “relationship” since March 2013 and lived together from May 2013 until about June 2014. After that they continued “in relationship”, although the Applicant lived full-time at his mother’s in Elmira. The Respondent stayed there with him until close to Hunter’s birth in September.

[4] Although not living together full-time, the Applicant attended the Respondent’s pre-natal medical and ultra sound visits. By September 5, 2014, Hunter’s birth day, the party’s had become estranged and the Applicant was “not allowed” by the Respondent to attend into the delivery room with her for the birth.

[5] After the child’s birth, the Respondent lived in Cambridge and the Applicant in Elmira (about 30 minutes apart by car). The Applicant had intermittent contact with their son, depending on the Respondent’s view of how they were getting along.

[6] According to the Applicant, he was told by the Respondent that she “went on a trip” for “a visit” to see her grandfather (who was ill) to Belle Island, Newfoundland from October 18 to November 1, 2014. She then returned to Cambridge. He thought the return was permanent. She now says that it wasn’t.

[7] Hunter had a medical procedure in Cambridge on November 5, 2014. Because the Applicant thought that the Respondent was being entirely arbitrary regarding his and his family’s access to Hunter, on the 10th of November 2014 he instructed his lawyer to write the Respondent to try to instigate a regular access schedule. That letter is dated November 12, 2014. The Respondent does not deny receiving same. No response was forthcoming from the Respondent until the Applicant received a text from the Respondent on November 20, 2014 that she was back in Newfoundland for good. Faitacompli.

[8] The Applicant avers that this text was the first time he was advised that the Respondent had any intention of relocating to Newfoundland (or anywhere else for that matter).

[9] Not so, avers the Respondent. She asserts that she’d always intended to return to Newfoundland and that she’d told the Applicant of that plan and that he knew and had acquiesced to that decision.

[10] I am disinclined to accept the Respondent’s version of the “planned move”, based mostly on the timing of the lawyer’s letter and her disappearance from Ontario.

[11] As my colleague, Pazaratz J. observed at paragraph 25 of his decision in the case of Coe v. Tope 2014 ONSC 4002 (and I paraphrase) determination of temporary motions are particularly challenging, because:

25 …

a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.

b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.

c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing “status quo” even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.

d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process – quite often at a trial. Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (SCJ) (WestlawECarswell or QuickLaw); Neilipovitz v. Neilipovitz, 2014 ONSC 3889 (SCJ) (WestlawECarswell or Quicklaw).

e. The status quo should only be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change. Button v. Konienczny, 2012 ONSC 5613, 2012 CarswellOnt 12353; Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (SCJ); Rifai v. Green, 2014 ONSC 1377 (SCJ); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (SCJ).

f. Courts must be mindful of – and actively discourage – efforts of parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ).

g. 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.).

h. 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. Rifai v. Green (supra).

[12] The law in Ontario is of course set by s.22 of the Children’s Law Reform Act (see Appendix “A”). Counsel for the Respondent, Ms. McKim-Ryan advises me during her submissions that the Ontario legislation is very similar to that in Newfoundland/Labrador

[13] I have re-read s.22 of the Children’s Law Reform Act in its entirety as well as Professor James McLeod’s annotation that precedes the case of Snetzko v. Snetzko (1996) 17 R.F.L. (4th) at 31, wherein he refers to the seminal Ontario case of Carter v. Brooks (1990), 1990 2623 (ON CA), 30 R.F.L. (3d) 53 (OCA), as representing the law in Ontario.

… A parent cannot unilaterally change a child’s habitual residence by surreptitiously removing the child from one province to another. At one time, it was thought that a parent who had custody of a child could, as an incident of custody, change the child’s residence. Such a conclusion assumes that a custodial parent has the right to change the child’s residence. In Carter v. Brooks (1990), 1990 2623 (ON CA), 30 R.F.L. (3d) 53, 41 O.A.C. 389, 77 D.L.R. (4th) 45, 2 O.R. (3d) 321, the Ontario Court of Appeal held that a custodial parent did not have a unilateral right to change a child’s residence. While the authority of Carter has been questioned in some mobility cases, no case to date has granted a custodial parent an absolute right to move with the child. Hence, the suggestion that a custodial parent has the right to change a child’s residence should be rejected. However, if one parent agrees to the child moving permanently or indefinitely with the other parent to another province or country, a move by the custodial parent with the child will change the child’s habitual residence because the parents consented to the change in residence.

If a parent does not expressly consent to the child moving but does not take any steps to prevent the move when made aware of it, a court may find that he or she has acquiesced in the move, which is tantamount to agreeing to it. One parent’s consent to or acquiescence in the child living with the other parent does not mean that consent to or acquiescence in the child moving with the other parent. A court must draw a distinction between consent to or acquiescence in the child living with a parent and consent to or acquiescence in the child moving with a parent.

Section 22(2) of the Act provides that a child is habitually resident in the place where he or she resides with a parent under a separation agreement or with the consent or acquiescence of the other parent or under a court order. That a child lives with one parent with the consent of the other does not mean that the child’s habitual residence is wherever the custodial parent chooses to live. In order to change a child’s habitual residence under s. 22(2)(b), a parent must consent to the child living with a parent in a particular place.

[14] That case (Carter v. Brooks) is still good law in this province.

[15] On these facts and on the yet untested evidence of the parents and despite his young age, I find that Hunter’s “habitual residence” as defined by the legislation is Ontario. I also have little doubt that if the removal of Hunter from Ontario is not reversed pending a trial on the merits of the matter, delays will occur and a significant status quo will ensue and Hunter will be deprived of any real relationship at all with Mr. Costello or the child’s extended family.

[16] The Applicant commenced his application immediately upon realizing that the Respondent had surreptitiously removed the child from his “home” in Cambridge. Hence the Applicant’s text sent November 29, 2014 (after he had started his action) did not acquiesce to this removal to Newfoundland. The test merely represents evidence of a despondent and depressed parent.

[17] I also find that after he launched this legal proceeding, in these circumstances the text is not an informed acquiescence, agreement or consent, as is intended by the legislation (s.22(2)(b) of C.L.R.A.) nor does it meet the intention of the legislation as set out in s.22(3) of the C.L.R.A.

[18] I also find that the Respondent has intentionally removed and withheld Hunter from this jurisdiction with the intention of depriving the child from any contact or relationship with his father and that by doing so, the court cannot (for public policy reasons) condone, accept or disregard the effect of the Respondent’s unilateral decision upon Hunter.

[19] That this order will cause the Respondent “significant hardship” (as her counsel argues) is as a direct result of her own decision to act without consultation with or input from the Applicant. Any hardship that arises is brought upon her by her own precipitous actions. The Respondent somehow had ample resources to travel to/from Ontario/Newfoundland several times in October and November without apparent “hardship” to her. She will now need to access those same resources to give effect to this order.

[20] Accordingly, based upon these facts and after considering the legislation and the case law (and also reviewing s.24 and 25 of the C.L.R.A. (see also Appendix “A”):

(a) this court accepts jurisdiction over this matter and this child;

(b) orders the Respondent to return the child to this Region (Region of Waterloo) on or before January 1, 2015;

(c) should the Respondent not comply with (b) above, the R.C.M.P. or the local Police Service with jurisdiction in St. John’s, Newfoundland shall forthwith locate, apprehend and deliver this child, Hunter, to the Applicant or his designate, who is to attend at that city to receive the child into his/her/their care and custody so that the child may be returned forthwith to this Region;

(d) the Respondent’s motion dated December 12, 2014 is dismissed without costs;

(e) the relief sought by the Applicant at paragraphs 1, 2, 4, 5 and 6 are granted;

(f) the relief regarding the party’s parenting time with Hunter is adjourned to be argued on January 7, 2015 at 10:00 a.m., after Hunter has been returned to this Region; and

(g) costs are granted to the Applicant per Rule 24(1) (successful party presumed entitled to costs).

[21] Unless counsel can agree, I will accept Mr. Paquette’s brief (less than 4 pages), written submissions in this regard, together with his dockets and costs outline within 10 days hereof. Ms. McKim-Ryan may briefly respond thereto within 5 days and Mr. Paquette may reply to that response with 3 days thereof.

G.A. Campbell J.

Released: 18 December 2014