Tardif v. Guimont, 2015 ONSC 4193

COURT FILE NO.: FC-14-2721

DATE: 2015/06/29

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NATACHA RUIZ TARDIF, Applicant

AND:

CHARLES GUIMONT, Respondent

BEFORE: Madam Justice Lacelle

COUNSEL: Marc J. Coderre, Counsel for the Applicant

J. Alison Campbell, Counsel for the Respondent

HEARD: June 16, 2015

ENDORSEMENT

[1] This is a motion by the Applicant mother to address the jurisdiction of this court to adjudicate her Application.

Background

[2] By way of background, the parties were married on 22 December 2007. They separated on 24 March 2012. They are the parents of a son, J. G. T., born 27 August 2010. Their son is currently 4 years old. At the time of their separation, the parties lived in Cantley, Quebec.

[3] Following the separation, the parties obtained a divorce dated 7 November 2012 from the Superior Court of Quebec, sitting in Hull. Subsequently, the Applicant mother moved to Ottawa on 1 June 2013. The Respondent remained in the matrimonial home in Cantley, Quebec. Both the Applicant mother and the Respondent father are employed by the federal government and work in downtown Ottawa.

[4] Pursuant to minutes of settlement filed at the time of their application for a divorce, the parents share custody of their child. One week the child resides with the Applicant, the other week he is with the Respondent.

[5] The parents disagree about where their child should go to school. The Applicant mother wishes him to continue to go to a school in downtown Ottawa, while the Respondent father wishes him to attend a school between the residences of the Applicant and the Respondent, but located in Quebec.

[6] The Applicant mother commenced her Application in the Superior Court of Ontario on 28 November 2014. The relief requested is a court order that the child, J.G.T., be enrolled full time at the school in downtown Ottawa for the remainder of his primary education. The Respondent father has not filed an Answer. Instead, on 26 January 2015, he filed an Application in the Superior Court of Quebec seeking sole custody of the child.

The issue before this Court

[7] The sole issue before this court is whether the Superior Court of Ontario has jurisdiction to hear the Applicant’s Application. Counsel for the parties agree that the court may decide this procedural issue. Following the direction of MacKinnon J., the matter was set for hearing on this issue alone on June 16, 2015.

[8] For the reasons that follow, I find that section 4 of the Divorce Act governs the jurisdictional issue, and that this Court has jurisdiction to decide the Applicant mother’s Application. Accordingly, the Respondent’s Application in the Superior Court of Quebec is discontinued.

The positions of the parties

[9] The Applicant takes the position that section 4 of the Divorce Act is clear: the court where the first application is instituted has exclusive jurisdiction over the proceedings if the party commencing the proceedings is ordinarily resident in that province. While the court retains a residual discretion under section 6 of the Divorce Act to transfer proceedings where matters of child custody are concerned, the only test for establishing threshold jurisdiction is whether the Applicant is ordinarily resident in the province. In other words, section 4 of the Divorce Act establishes a presumptive right to commence proceedings where the Applicant is ordinarily resident.

[10] The Respondent relies on section 6 of the Divorce Act, and says that it provides that the jurisdiction to hear the proceedings lies in the province where the child of the marriage most substantially connected. Moreover, Rule 5 of the Family Law Rules provides that in a case dealing with custody of or access to a child, it shall be started in the municipality where the child ordinarily resides. The Respondent urges the court to apply the “most substantial connection test” as set out in Harrington v. McDermott, 2010 Carswell BC 947 (Sup.Ct.) at para 3 to the fundamental issue of jurisdiction. In other words, the Respondent urges the court to determine a) with which province the child is most substantially connected; b) whether the transfer is in the best interests of the child; and c) whether a transfer would impede the proper administration of justice. Accordingly, his submissions on the motion have been focused on those issues.

Analysis

[11] The parties agree and the law is clear that the Divorce Act governs their dispute. Section 4 of the Divorce Act provides:

4. JURISDICTION IN COROLLARY RELIEF PROCEEDINGS – (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceedings; or

(b) both former spouses accept the jurisdiction of the court.

(2) JURISDICTION WHERE TWO PROCEEDINGS COMMENCED ON DIFFERENT DAYS – Where corollary relief proceedings between the same former spouse and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding shall be deemed to be discontinued.

[12] Section 5 of the Divorce Act is identical with respect to provincial jurisdiction to hear a variation proceeding.

[13] Section 6 of the Divorce Act provides:

6. TRANSFER OF DIVORCE PROCEEDING, WHERE CUSTODY APPLICATION – (1) Where an application for an order under section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceedings to a court in that other province.

(2) TRANSFER OF COROLLARY RELIEF PROCEEDING WHERE CUSTODY APPLICATION – (2) Where an application for an order under section 16 is made in a corollary relief proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the corollary relief proceeding to a curt in that other province.

(3) TRANSFER OF VARIATION PROCEEDING WHERE CUSTODY APPLICATION – Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

[14] I agree with the Applicant mother that the terms of the custodial arrangement are not governed by a court order, but by minutes of settlement. Accordingly, she is not bringing a motion to vary a court order, but a new application for corollary relief. Accordingly, section 4 of the Divorce Act applies.

[15] On this issue, I note that the Respondent does not take significant issue with how the Applicant’s proceeding is characterized, given that section 5 of the Divorce Act contains identical language with respect to the jurisdiction to hear a variation proceeding. In other words, even if I am wrong in my conclusion that the Applicant has brought an application for corollary relief governed by section 4 of the Divorce Act, the analysis would be the same for a variation proceeding under section 5 of that Act.

[16] In addition to the plain wording of the statute, the Applicant relies on a number of authorities which address sections 4 and 5 of the Divorce Act, including L.(B.) v. L.(P.C.), [2004] BCSC No. 1652, Arsenault v. Arsenault, [2006] NSCA 38, Bridgeman v. Balfour, 2012 ONSC 6583, and Hiscocks v. Marshman, [1991] O.J. No. 1537 (Ont.Ct.Jus.(Gen. Div.)). These authorities are persuasive.

[17] The decision in Bridgeman is particularly apposite to the issue before the Court. There, the Court was dealing with a motion to vary an order. It held that section 5 of the Divorce Act applied to the parties’ dispute, as the original custody order that was at issue had been made pursuant to the Divorce Act. Accordingly, notwithstanding provisions in the Children’s Law Reform Act which focused on where the child was habitually resident, the test in the Divorce Act governed. The court held at paragraph 13:

The residence of the child is not the governing consideration in deciding the jurisdiction issue under the Divorce Act. Rather, the focus is on whether either former spouse is ordinarily resident in the province at the time, or alternatively, whether both spouses accept the jurisdiction of the court.

[18] The Respondent seeks to distinguish the authorities relied upon by the Applicant because the cases which dealt with determining the appropriate jurisdiction within Canada for the proceedings addressed property issues under the Divorce Act, and did not, as this case does, address the interests of children.

[19] I have considered the Respondent’s submission, and find that acceding to it would be tantamount to reading in to section 4 of the Divorce Act language limiting its application to property issues. A plain reading of the section indicates no intention to so limit the court’s jurisdiction, and I decline to impose such a requirement.

[20] In this instance, the Applicant mother was “ordinarily resident” in the province of Ontario at the time she commenced proceedings. She has lived in Ottawa since June 1st, 2013. She works in Ottawa. She has a new partner with whom she lives. There can be no doubt, and the Respondent does not suggest otherwise, that the Applicant was “ordinarily resident” in the province of Ontario at the commencement of the proceedings in November 2014, as required by section 4(1) of the Divorce Act.

[21] Insofar as the application of section 4(2) of the Divorce Act is concerned, it is clear that the Applicant was the first to file her application. Her application pre-dates the proceedings commenced by the Respondent in the Superior Court of Justice in Quebec. The Applicant has not discontinued the proceedings.

[22] Accordingly, on a plain reading of section 4 of the Divorce Act, I find that the Applicant is entitled to bring her application in Ontario, and the Superior Court of Ontario has exclusive jurisdiction to hear it. As required by section 4 of the Divorce Act, the proceedings commenced by the Respondent in the Superior Court of Quebec are deemed to be discontinued.

[23] I do not view the applicability of section 4 of the Divorce Act in this instance to mean that section 6 does not apply. The court’s limited role on this application is to determine whether the Applicant may litigate her application in Ontario, and as indicated, I find that the Superior Court of Ontario has exclusive jurisdiction in these proceedings. At the same time, it remains open to the Respondent father in his Answer to the Application to request that the court exercise its discretion under section 6 of the Divorce Act to transfer the proceedings to Quebec. Any conclusion on the appropriateness of a transfer pursuant to section 6 of the Divorce Act is considerably premature at this time, as the Respondent father has not yet filed an Answer to the Applicant’s Application. The issue is not properly before the court. In the circumstances of this case, any litigation on that issue will require proper notice to allow both parties the opportunity to ensure a proper evidentiary record on the issue is before the court.

[24] With respect to the issue of costs for this motion, the parties may make submissions of two pages or less within 30 days of receipt of these reasons. Those submissions should be directed to the Superior Court of Justice in Cornwall.

Madam Justice Laurie Lacelle

Date: June 29, 2015