ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-14-5723-00
Date: 2015-06-30

B E T W E E N:

CAMERON GUILLEMAUD

Erin Lepine, for the Applicant

Applicant

• and -

JENNIFER ANNE GEURTS

Alison Pengelley and Joseph Powers, for the Respondent

Respondent

HEARD: February 9, 10, 11, 12, April 21, 22, 24 and May 14, 2015

D E C I S I O N

WILCOX, J.

A. BACKGROUND

[1] The parties met in 2011 while living and working in Inuvik, Northwest Territories, and entered into a relationship. They never married. They moved to an apartment in Grande Prairie, Alberta, the Respondent in April 2012, followed by the Applicant in July 2012. Their son, John Anthony Martinez Guillemaud (Johnny) was born on July 19, 2012. They moved in December 2012 to a house that the Applicant owned in the County of Clear Hills, near Fairview, Alberta where the Applicant continues to reside. The Respondent moved out, taking Johnny, with the help of her parents, on March 11, 2013, while the Applicant was at work, and moved to the Respondent’s parents’ home in the Haileybury area of Ontario.

[2] The Applicant commenced legal action in the Court of Queen’s Bench at Calgary, Alberta. His “Claim – Family Law Act” was filed on April 11, 2013 with a return date of April 25, 2013 in Calgary. It sought the return of the child to Fairview, Alberta and that the Applicant be granted “parenting time”. An ex parte Order for substitutional service was pronounced by Madam Justice K.D. Nixon on April 10, 2013 in the following terms:

1 - the Applicant may substitutionally serve the Claim – Family Law Act, Statement – Parenting and Affidavit in the within action, together with a true copy of this Order, upon the Defendant, Jennifer Anne Geurts, by sending a true copy of the Claim - Family Law Act, Statement – Parenting, Affidavit and this Order to the email address of jenngeu@hotmail.com and popeyebay@hotmail.com. 2 – substitutional service effected in the manner specified in paragraph 1 shall be deemed good and sufficient service of the Claim – Family Law Act, Statement – Parenting, and Affidavit upon the Respondent. 3 – that substitutional service of any further documents in this action shall be deemed sufficient service if served in accordance with paragraph 1 of this Order. 4 – the Applicant shall be granted a minimum of 10 days to respond to the Application.

[3] An affidavit of service sworn April 24, 2013 states that the Respondent was served on April 12, 2013 by email to jenngeu@hotmail.com and popeybay@hotmail.com with copies of the order for substitutional service, the Claim – Family Law Act, the Statement – Parenting, and an affidavit.

[4] Madam Justice M.C. Erb of the Alberta Court of Queen’s Bench pronounced an Order (the Alberta Order) on April 25, 2013. The preamble indicates that the court received submissions on behalf of the Applicant, but that the Respondent failed to respond although served pursuant to the order for substitutional service. The court ordered that:

1 – the child shall be returned to Fairview, Alberta forthwith and within a maximum of four days from the date of this order; 2 – the Applicant shall have equal shared parenting time with the child pursuant to a schedule agreed to by the parties; 3 – in the event the parties cannot agree, the Applicant shall have parenting time with the child as follows:

week 1: Monday at 6:00 p.m. to Wednesday at 6:00 p.m. and Friday at 6:00 p.m. to Monday the following week at 6:00 p.m.; week 2, Wednesday at 6:00 p.m. to Friday at 6:00 p.m.

4 – both parties shall be restrained from removing the child from the Province of Alberta without the prior written consent of the other party;

3 – on the Respondent being in breach of any terms of this Order, any Police Officer or RCMP Officer is authorized to forthwith arrest the Respondent, and bring the Respondent, as soon as possible, before a justice of the Court of Queen’s Bench of Alberta to show reason why there should not be a finding of civil contempt. However, the Respondent shall not be arrested unless the Respondent has previously been served with a copy of this Order, or if not served, is shown a copy of this Order by the Police Officer or RCMP Officer and, on being given an opportunity to do so, does not then obey it;

4 – It is further ordered that, in making an arrest under this Order, a Police Officer or RCMP Officer is authorized to do anything necessary to carry out the arrest, including the use of as much reasonable force as may be necessary to make the arrest, and without warrant to enter any place where, on reasonable and probable grounds, the Police Officer or RCMP Officer believes that the Respondent may be found;

5 – This Order is sufficient authority for the keeper of a correctional institution to hold the Respondent in custody pending appearance before a Justice of the Court of Queen’s Bench of Alberta;

6 - Service on the Respondent shall be effected by email at the following addresses and such service shall be deemed good and sufficient: jenngue@hotmail.com and popeyebay@hotmail.com.

[5] The Alberta Order was served on the Respondent by email on April 25, 2013, according to the affidavit of service sworn that date. However, neither the Respondent nor the child have returned to Alberta.

[6] The Applicant commenced court proceedings for the recognition of the Alberta Order in the Superior Court of Justice Family Court Branch at Ottawa, Ontario by Application filed January 9, 2014. He also brought a motion, ex parte. He and his counsel appeared, but the Respondent did not. Master Roger ordered on January 9, 2014 that:

1- the request for urgency is denied; 2- all materials are to be served on the Respondent; 3- the Respondent may be served by sending materials to her attention by email to her, email to her father, and by email to her brother at:

a) jenngeu@hotmail.com b) popeyebay@hotmail.com c) Anthony Geurts, 147 Cranston Avenue, Cambridge, Ontario;

4 – the Application may be issued in Ottawa under Rule 5(2) in order for the question of jurisdiction to be decided.

The Applicant’s appeal of this Order was dismissed by Metivier J. January 23, 2014.

[7] The Applicant then brought a motion for summary judgment, heard March 7, 2014. It sought the recognition in Ontario of the Alberta Order for the purpose of enforcement. The Respondent’s cross-motion sought the transfer of the matter to Haileybury, Ontario. Maranger J.’s order of May 1, 2014 reads:

1. The Applicant’s motion for summary judgment is dismissed. 2) This matter is transferred to the courthouse located at 393 Main Street, Box 609, Haileybury, Ontario, P0J 1K0. 3) With regard to the issue of jurisdiction:

a) 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 s. 22(1) of the Children’s Law Reform Act. b) The extent of the delay by the Applicant in bringing this application in Ontario and whether or not that can trigger s. 22(2)(b) in terms of the issue of jurisdiction shall also be considered after a complete hearing. c) The hearing shall take place before a justice of the Superior Court in Haileybury, Ontario. …

[8] The matter was transferred to Haileybury, Ontario. At a settlement conference on October 15, 2014, Nadeau J. ordered the hearing directed by Meranger J. to commence peremptory on February 9, 2015.

B. THE HEARING

[9] The hearing proceeded on various dates in February, April and May 2015, followed by written submissions.

[10] It is limited to deciding whether or not the Alberta Order should be recognized in Ontario and how to proceed in light of that decision. It is not about the substantive issues such as custody and access. Those would be the subject of further proceedings.

[11] This case falls to be decided under the Children’s Law Reform Act (CLRA), particularly Part III thereof. The purposes of this part are set out in s. 19 and are to:

1. entrench the “best interests of the child” as the criterion for determining issues before the court; 2) avoid the overlap of jurisdiction and promote deference to the courts in places with which the child has the closest connection; 3) discourage kidnapping by parents; and 4) facilitate the enforcement of Ontario and foreign custody and access orders. (Steinberg et al. Ontario Family Law Practice 2015, page 646.)

C. ENFORCEMENT OF EXTRA-PROVINCIAL ORDERS

[12] S. 41 of the CLRA deals with the enforcement of extra-provincial orders. The relevant subsections state:

s. 41(1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an 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 does 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 s. 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 deemed to be an order of the court and enforceable as such. … (4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.

1. REASONABLE NOTICE

[13] The first issue, then, is whether the Respondent was given reasonable notice of the commencement of the Alberta proceedings.

[14] As indicated above, she was served on April 12, 2013 for court on April 25, 2013, 13 days later.

[15] The Applicant seeks a finding that the Respondent was given reasonable notice of the Alberta court proceedings. The Respondent contends that she was not given reasonable notice.

[16] The CLRA gives no indication of what would be reasonable notice.

[17] The Alberta Claim-Family Law Act contained a warning in the following words:

If you do not come to Court either in person or by your lawyer, the Court may give the Applicant(s) what the Applicant wants in your absence. You will be bound by any court order that the Court makes.

If you wish to respond to the Claim, you must file a Response with the Court. If you disagree with some or all of the orders asked for by the Applicant(s), and you want the Court to know your side of this matter, you must file Reply Statement(s) or an affidavit to support your position. You must serve all your documents on the Applicant(s) within a reasonable time before the court date shown above, but anything less than 10 days’ notice will be presumed to be prejudicial to the Applicant(s).

[18] To put some perspective on the situation, April 12th, 2013 was a Friday and April 25th was a Thursday. There were two weekends – four days – in between. That left eight working days to obtain a lawyer and to prepare for court.

[19] The primary objective of the Family Law Rules is to enable the court to deal with cases justly. That includes insuring that the procedure is fair to all parties. Fairness includes the provision of reasonable notice.

[20] An objective indication of what is considered to be reasonable notice may be found in the Ontario Family Law Rules. Rule 10(1) gives a party who is served in Canada or the U.S.A. 30 days to serve and file an Answer.

[21] In the case of Osborn v. Towaij, [2002] O.J. No. 1789, 15 days’ notice to a party in Ontario of court proceedings in California was found not to be proper notice. The court found no jurisprudence on the meaning of “proper notice”. The court noted that the Family Law Rules and other legislation in Ontario had 30 day notice periods.

[22] The Applicant relied on two cases, Cummings v. Rankin, 2007 BCSC 682, 2007 B.C.S.C. 682 and Landry v. Martin, 2001 N.B.Q.B. 20, in which courts in British Columbia and New Brunswick were dealing with practically identical legislation to Ontario’s CLRA s. 41. In Cummings, eight days’ notice was found to be sufficient, and in Landry two days’ notice was.

[23] However, these cases are distinguishable from the present one. In Cummings, the parties had met and started a relationship that produced a child while living and working in the Cayman Islands. The mother had left with the child for British Columbia but returned to the Caymans for a two week visit during which she was served with notice of the father’s court proceedings. She filed court documents and attended court with counsel, where an order was made for the child to be in the mother’s care subject to the father’s access. The mother returned to B.C. with the child. The father applied in the B.C. Supreme Court to have the Cayman Islands order recognized. The B.C. court found that the mother had had reasonable notice, noting that she had had time to retain counsel, file documents and appear in court to make submissions. This case is distinguishable from the present in that the mother had lived in and was presumably familiar with the area where the order was made, the Cayman Islands, and she had returned to and was present there when served with notice of the court proceedings. She was able to obtain counsel and participate effectively in those proceedings.

[24] In Landry, the parties had lived in Ontario and had a relationship there which produced a child. Following separation, the mother moved to New Brunswick, taking the child. She had obtained a lawyer and started court proceedings in New Brunswick before the father’s documents for proceedings in Ontario were served upon her, to which she failed to respond, resulting in an order for the father’s temporary custody. It was in the father’s subsequent proceedings in New Brunswick to have the Ontario order recognized there that the mother was found to have had reasonable notice of the Ontario proceedings, although the reason for that finding was not expressed. I find that case is distinguishable from the present one in that she had a lawyer and had already commenced legal proceedings in New Brunswick and, so, was in a better position to respond to the father’s application in Ontario on short notice.

[25] The point of notice provisions is to give litigants an opportunity to obtain counsel if they choose to and, in any event, to be able to consider what the other side has served upon them and then serve and file their own responding documents so that the parties and the court have an appreciation of both sides of the case. In this case, both sides needed counsel to help them navigate through unfamiliar laws and procedures. The Applicant claimed that he had found his lawyer in one day, with one phone call. This might suggest that the Respondent should have been able to do the same and that, therefore, she had adequate notice. However, the Applicant’s story does not stand up under scrutiny.

[26] The Applicant alleged that he had decided upon receiving an email from the Respondent’s father, Marty Guerts, on April 8, 2013 to get counsel and that he had not sought counsel before that. He then called a lawyer in Peace River, based on the advice of whom he had obtained a lawyer in Calgary which he said is a nine hour drive south of Fairview, Alberta. He estimated that he met with the Calgary lawyer a couple of days after getting the aforementioned email. One reason for choosing Calgary was because his family was there and could act as witnesses. To his knowledge, the Respondent had never lived there and her relatives were in British Columbia and Ontario.

[27] The strong indication, however, is that the Applicant had sought counsel before that. His affidavit and statement were both sworn on April 8, 2013 at Calgary in front of his lawyer, Megan P. Zybutz. This would undermine any contention that the Respondent should have been able to find counsel in Calgary in as little as one day.

[28] The Respondent testified that she received the initial documents out of the Alberta court on the afternoon of Friday, April 12, 2013. She understood the documents to mean that she had to serve her Response at least 10 days prior to the court date and, therefore, she had only the weekend (of April 13 and 14) in which to meet that requirement. Although this is a misreading of the document, in any event, she testified that she tried to find a lawyer for a few days, but was unable to. She also stated that she had called the courthouse for duty counsel, but was unable to reach anyone, just an automated system.

[29] To some extent, it could be argued that the Respondent is the author of her own misfortune in that, by removing herself and the child from Alberta to Northern Ontario, she put herself in a difficult position from which to respond to the Alberta court proceedings that the Applicant later brought.

[30] Even if she had not, but had remained in the Fairview area, still keeping her whereabouts unknown to the Applicant, she would have been faced with the prospect of responding to the Alberta proceedings in Calgary, a nine hour drive away, while caring for a breastfeeding infant and with no nearby family or friends to assist and no apparent financial resources, save for her parents.

[31] In these circumstances, I find that the Respondent was not given reasonable notice of the commencement of the proceeding in which the order was made.

2. OPPORTUNITY TO BE HEARD

[32] Having made that finding, I think that it follows that the Respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made.

3. ALBERTA LAW, THE ALBERTA ORDER AND PUBLIC POLICY

[33] The Alberta Family Law Act Part II is entitled “Guardianship, Parenting and Contact Orders and Enforcement of Time with a Child”. The Part includes s. 16 through 45.1.

[34] S. 18(1) requires the court to take into consideration only the best interests of the child in proceedings under this Part.

[35] Division II of the Part is about parenting orders which may contain, among other things, an allocation of parenting time, which may be by way of a schedule. The Alberta order would have been made on the basis of the Applicant’s Claim-Family Law Act, a Parenting Statement and possibly also with reference to his affidavit of April 8, 2013 made in support of his motion for an order for substituted service. The Applicant testified in the current proceedings that he was not in the courtroom in the Alberta proceeding to give evidence as to the best interests of the child.

[36] The Claim sought the return of the child to Fairview, Alberta and that the Applicant be granted “parenting time” with him. It was supported by the Applicant’s sworn Statement, attached to the Claim.

[37] The Statement and the affidavit provide a bare outline of the history of the parties’ relationship. There is very little if anything about the child’s needs and circumstances that would be necessary to know to make an order in the best interests of the child.

[38] Nevertheless, the Order required the child to be returned to Fairview, Alberta within four days, that the parties share parenting time equally, and for the arrest and incarceration of the Respondent mother in the event of a breach of the Order.

[39] In the appeal of Master Rogers’ Order, Metivier J. looked at the terms of the Alberta Order and questioned how they could be in the best interests of the child. Even the Applicant’s counsel expressed in that hearing some misgivings about the terms. In her reasons, Metivier J. notes that the Alberta Order says that the child shall be returned to Alberta, but not how he will be treated in the event of the mother’s arrest. Metivier J. went on to state:

I have a further real concern about J. Erb’s order. Although principles of comity lead me to wish to apply his Order to the full extent possible, I am extremely conscious that the child who was eight months old when he was taken, and when Justice Erb made his order, is now 18 months old and has not seen his father in that time. To order him returned without more to his father, while perhaps exceedingly fair to the father, would in my view, be inappropriate and unjust in terms of dealing with the best interests of the child.

[40] Clearly, I am not the only one that has concerns about how the enforcement of the Alberta Order would affect the interests of the child.

[41] Although the Alberta legislation requires consideration of the best interests of the child in making such orders, nothing indicates that this was done in this case. Rather, it appears that the order was made without this important consideration.

[42] The Applicant argued that the Alberta Order was not contrary to public policy. He relied on the case of Essa v. Mekawy, 2014 ONSC 7409, 2014 O.N.S.C. 7409 where G.A. Campbell J. stated at paragraph 80:

It is well established that the court should give very careful consideration before deciding that something is contrary to public policy. In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 (S.C.C.), the Supreme Court of Canada held that an argument based upon public policy is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the claim, for the sole reason that the foreign jurisdiction would not yield the same result as might occur in Ontario or Canada. At paragraph 76, the S.C.C. stated:

The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly. The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application.

This case is distinguishable from the present situation. The challenge to the Alberta order is not based on a difference between Alberta law and Ontario law. Rather, it is based on the observation that, in making an Alberta Order, the court did not consider the best interests of the child, as both Alberta and Ontario law would require.

[43] In Cummings v. Rankin, 2007 BCSC 682, 2007 B.C.S.C. 682 at paragraphs 31 and 32, in considering whether to recognize an extra-provincial family law order, the court seems to accept that it would be contrary to public policy for a court to make a custody and access order without considering, or considering sufficiently, the best interests of the child, but was not satisfied that the best interests of the child had not been considered in that instance and therefore found no contravention of public policy.

[44] In Gorrie v. White, 1994 Carswell Ont 4370, in dealing with an application for the recognition in Ontario of a BC order for interim custody, Gordon J. of the Ontario Court of Justice (General Division) stated that the order was not contrary to public policy, noting that the BC court had carefully considered the best interests of the child.

[45] Public policy has been defined as principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society. (Black’s Law Dictionary – Seventh Edition.)

[46] With all due respect, I am satisfied that the Alberta order is contrary to public policy in Ontario. It was made with little or no information about or apparent consideration of the best interests of the child, but contained terms about parenting time, access and enforcement that would have direct and serious impacts on him. In my view, the order should have been limited to procedural matters to set the case up for a consideration of the substantive issues of parenting time and access on the merits with fulsome evidence allowing for the determination of the best interests of the child as required by Alberta law. In making the order it did, one which appears on its face to be a final one, I note, I find with respect that the Alberta court went too far.

[47] It follows that the Order of M.C. Erb J. is not recognized.

D. JURISDICTION

[48] The next issue is whether this court has jurisdiction to make an order for custody of or access to the child.

[49] S. 22 of the Children’s Law Reform Act states:

(1) The 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, (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

(2) 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.

(3) 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.

1. HABITUAL RESIDENCE

[50] Certainly, the child was habitually resident in Alberta while he lived there with both parents up to the date of separation, March 11, 2013. He has been living in Ontario with the Respondent since shortly after that, without the Applicant’s consent or acquiescence. In these circumstances, s. 22(3) comes into play and the question of whether there has been undue delay by the Applicant in commencing due process must be considered.

[51] The Applicant argues that the one month delay in commencing proceedings in Alberta after the Respondent left with the child is not undue. Although I expect that he could have proceeded more quickly, I have already indicated my belief that he consulted his Calgary lawyer earlier than he stated. I do not find the delay in starting the Alberta proceedings undue.

[52] I am more concerned with the delay in the proceedings in Ontario. Having obtained the Alberta Order and served it on April 25, 2013, the Applicant would only have had to wait the four days provided by that Order, to April 29, 2013, to see if the Respondent would comply. When she did not, the Applicant could have begun looking into enforcement proceedings, if he had not already done so in anticipation of her disobeying that Order. The Applicant already had a family law lawyer in Calgary for the case. He could have sought advice about how to enforce the Order outside of Alberta. The evidence in this regard was only that he was told that it was enforceable.

[53] I note that Alberta has the Extra-Provincial Enforcement of Custody Orders Act, accessible on the Alberta Government’s e-laws site. One would expect it to be known to Alberta family law lawyers who could suspect that, and look into whether, Ontario had similar legislation, and be able to refer the Applicant to Ontario counsel, if retained to do so.

[54] The Applicant’s evidence was that he contacted various police forces in Alberta and Ontario, without results. Months went by until September 2013 when the RCMP told him it was not enforceable outside Alberta, why, and to seek legal advice. However, the Applicant wrote back to the RCMP stating the advice he had obtained from Alberta and Ontario lawyers was that it was enforceable. This is incredible. There is no other evidence that he had contacted an Ontario lawyer then. If he had, the solution would have been clear – apply for recognition in Ontario of the Alberta Order. The RCMP did not reply to the Applicant for another two months. On November 17, 2013, they advised him to speak to a family lawyer about applying to court in Ontario to do just that. Only then did he retain a lawyer in Ontario.

[55] To put this into perspective, the Applicant testified as to how important his son was to him. Given that, a delay of days in getting answers as to how to proceed, let alone months, would have seemed interminable. I contrast this with the case of G.(P.A.) v. G.(K.A.), (1992) 10 O.R. (No. 3d) (641) C.A. In it, an American citizen who had lived in New Zealand since 1971 and who was estranged from his wife who had custody of their children, subject to his access, learned in May, 1992 that she had left New Zealand with the children for Canada, and assumed correctly it was to Ontario where her parents lived. He retained Canadian counsel who issued a Notice of Application on June 6, 1992. If he could do this from New Zealand, it is an indication that the Applicant herein could have acted more quickly.

[56] When the Applicant brought his Application dated January 9, 2014, it claimed the following relief:

(1) an order that this matter be heard without notice pursuant to s. 36(3) of the Children’s Law Reform Act and Rule 14(12) of the Family Law Rules. (2) an order that this Application be commenced in Ottawa, Ontario pursuant to Rule 5(2) of the Family Law Rules or in the alternative an order that this Application be transferred to the Superior Court of Justice in Haileybury, Ontario pursuant to Rule 5(6)(ii) of the Family Law Rules. (3) an order recognizing the Order of Justice M.C. Erb of the Court of Queen’s Bench of Alberta dated April 25, 2013 for the purpose of enforcing the Order in Ontario, pursuant to s. 41 of the Children’s Law Reform Act. (4) an order that upon request and receipt of an original Order or certified copy of the Order, pursuant to s. 36 of the Children’s Law Reform Act, Ontario Provincial Police, Temiskaming Police Detachment, sheriff’s officers and any other police force having jurisdiction in any area where it appears that the child, namely John Anthony Martinez Guillemaud born July 19, 2012 may be, shall locate, apprehend and deliver the child to the Applicant, Cameron Guillemaud. (5) an order that for the purpose of locating and apprehending the child, a member of a police force may enter and search any place where he or she has reasonable and probably(sic) grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time. (6) an order pursuant to Rule 6(15) of the Family Law Rules for substituted service of this application and affidavit of Cameron Guillemaud dated December 12, 2103(sic) and all other documents related to this court application by:

a. emailing a copy to the last known email address of the Respondent, being jenngeu@hotmail.com; and, b. emailing a copy to the last known email address of the Respondent’s father, Marty Geurts being Popeybay@hotmail.com.

[57] CLRA s. 36 provides:

(1) Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the Applicant, the court by order may authorize the Applicant or someone on his behalf or her behalf to apprehend the child for the purpose of giving effect to the rights of the Applicant to custody or access, as the case may be. (2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

(3) An order may be made under (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay.

[58] This section provides for the making of orders authorizing the apprehension of a child being unlawfully withheld from someone having a custody or access order. In addition, the court may order the police to enforce such orders. It is the order for police enforcement, not the original apprehension order, that the section allows to be made without notice.

[59] I do not read this section as justifying the bringing of this application without notice.

[60] Family Law Rule 14(12) provides for the making of motions without notice. We are dealing here with an application. Family Law Rule 8(5) requires applications to be served, by special service.

[61] Family Law Rule 6 defines special service. It also provides for the making of orders for substituted service, for dispensing with service, for service by advertisement and approving irregular service.

[62] The Applicant knew or at least had a good idea where the Respondent and the child were. His Application, under family history, says she was resident in North Cobalt, Ontario from March 2013 and adds that he believed, “that upon leaving Fairview, Alberta, with the child on March 11, 2013, the Respondent travelled to stay with her father, Marty Geurts, on Paradis Bay Road, located off Silver Centre Road, travelling east of Haileybury, Ontario”, but that he did not know if she remained there, or if she was staying with other friends or family members such as her brother in Cambridge, Ontario.

[63] Despite suspecting where she might be, he made no effort to locate her and the child.

[64] The Applicant already had the Order For Substituted Service from Alberta. He could have sought another from Ontario, although he probably would have been required to first show more effort to locate her and to effect special service. This relief was requested in the Application, but apparently not pursued. At a minimum, he could have served her by email according to the Alberta Order and sought approval of irregular service. Instead, he chose to proceed ex parte.

[65] The Application was initially heard by Master Roger on January 9, 2014. He endorsed that, “This motion is not urgent on the evidence presented and shall be made on notice”. (his underlining).

[66] The Applicant appealed Master Roger’s order, specifically the requirement that the Respondent be given notice of the Application. Metivier J. dismissed the appeal, noting that the matter was being brought some ten months after the Respondent allegedly absconded with the child, making it hard to argue there is urgency. She stated that “it is not going to be helpful to carry on … this process as an ex parte motion”.

[67] Metivier J. made some further relevant comments:

Accordingly I dismiss the motion brought today and the order of Master Roget(sic) stays, the Respondent is to be served, as he set out, and I would suggest that the matter be transferred to Haileybury at the first possible moment.

The Applicant is not in Ottawa, although his counsel is, but Haileybury is where the mother and now, the child, are so that would be an appropriate place and there, on full notice, with recent facts before the court, the appropriate order could be made.

[68] Metivier J. went on to indicate that the matter should be transferred to Haileybury, preferably, although not necessarily, before a case conference was held.

[69] When questioned about whether it had occurred to the Applicant to start the Application in Haileybury, the answer was that the Applicant had been given the option by counsel of trying to proceed in Ottawa under s. 5(2) and that he had been willing to take that risk, knowing that it was possible that the court would order the case to Haileybury.

[70] The Applicant testified in the present trial that he started the case in Ottawa thinking it was fair because he could get a flight there and the Respondent could get there by car, although after a six hour drive from her parents’ home. Conversely, his counsel frankly told Metivier J. that the case was brought in Ottawa for the convenience of the Applicant’s counsel.

[71] The Application was served, and the matter was case conferenced by Master McLeod on February 27, 2014. He stated in his endorsement that, “the factor which complicates this is the delay between the making of the order in Alberta in April of 2013 and the launching of this proceeding in Ontario”, and that, “it is not reasonable after almost a year to construe the matter as so urgent that there should not be a reasonable opportunity for the Respondent to file an affidavit … setting out her version of events”, for use in the impending Motion for Summary Judgment.

[72] The Applicant’s Motion for Summary Judgment seeking recognition of the Alberta order was heard on March 7, 2014. Maranger J.’s endorsement and order are dated May 1, 2015. In the endorsement dismissing it, he stated that he was “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”.

[73] Furthermore, the motion for summary judgment, he said, should have been brought in Haileybury, to where he transferred it, in the first place. He went on to comment that, “the extent of the delay by the Applicant in bringing this Application in Ontario and whether or not it can trigger s. 22(2)(b) in terms of the issue of jurisdiction should also be considered after a complete hearing”.

[74] Finally, he concluded:

“While the court recognizes that summary judgment motions can be an expeditious and cost efficient means of determining disputes between parties.(sic) 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.”

[75] The terms of Order itself dismissing the Motion for Summary Judgment and transferring the matter to Haileybury are set out above.

[76] The Applicant testified that some of the delay was due to his spending time and resources dealing with various criminal allegations relating to this matter. I do not accept that. No charges were ever laid and the demand on the Applicant’s time and resources was minimal.

[77] The Applicant delayed the case by bringing it to court in Ottawa initially, knowing that it could be transferred to Haileybury. Further delay resulted from his bringing of the matter ex parte, when the norm is special service, and then by appealing the order that service be effected. More months were lost in the unsuccessful attempt to obtain summary judgment. At each step, the judicial officer commented about the length of time that had elapsed, which should have both put the matter of delay front and centre in the Applicant’s mind and caused him to re-think his approach, with a view to expediting matters. Furthermore, a transfer to Haileybury at the first possible moment was suggested by Metivier J. on January 23, 2014, but not done until ordered by Maranger J. on May 1, 2014.

[78] In my view, proceedings for the recognition and enforcement of the Alberta Order could and should have been commenced in Haileybury, Ontario, the court centre for Temiskaming District in which the Respondent’s parents’ residence is located, by June of 2013, on notice to the Respondent. If that had been done, this matter could have been dealt with in court approximately 12 to 18 months earlier than it was. I find that delay to be undue. Therefore, I further find that the child is habitually resident in Ontario for the purposes of dealing with custody of and access to him.

2. CLRA S. 22(1)(b)

[79] If I am wrong in finding undue delay and that, therefore, the child is not habitually resident in Ontario, I am satisfied that the requirements of CLRA s. 22(1)(b) are met:

(i) The child has been physically present in Ontario since about March 15, 2013.

(ii) Substantial evidence concerning the best interests of the child is available in Ontario. He has lived most of his young life here, with his mother and maternal grandparents in the same general area that his mother grew up in. They, of course, have neighbours and friends in the area. The child has been attending various programs for children. His nurse-practitioner and doctors are here. Also, there is the staff of the supervised access facility where the Applicant visits with him. By way of contrast, almost the only evidence available in Alberta would be from the Applicant. Although he has family there, the evidence is that they had little contact with the child.

(iii) There is no evidence of any application for custody of or access to the child pending elsewhere than in Ontario. The only known proceedings outside of Ontario were those in Alberta that resulted in the order that has not been recognized by this court and which appears on its face to be final.

(iv) No extra-provincial order for the custody of or access to the child has been recognized by a court in Ontario.

(v) The child has a real and substantial connection to Ontario, as noted above in considering the evidence available here. Although that connection has resulted, to a large extent, from the Respondent’s improper removal of the child from Alberta, which is the subject of further comment below, it is nevertheless real. This case is distinguishable from Essa v. Mekawi, 2014 ONSC 7409 in which a real and substantial connection was not found where any connection of the children to Ontario was found to have been “nefariously created with the sole intent of making a status quo argument and meeting the “substantial connection” test.” In the present case, the Respondent was unhappy with her situation in Alberta, left, and returned to where she was originally from. Although the Respondent’s actions in doing so may be criticized, I do not see the evidence as revealing that she acted in a nefarious manner with the conscious intent of meeting a legal test.

(vi) Finally, on the balance of convenience, given that the child lives in Ontario and most of the evidence with respect to custody and access would be from witnesses located here, it is appropriate for jurisdiction to be exercised in Ontario.

[80] In conclusion, I find that the court may exercise its jurisdiction to deal with the custody of and access to this child.

E. COMMENT

[81] This decision should in no way be interpreted as condoning the Respondent’s actions in taking the child out of Alberta as she did. The appropriate course of action when she decided to separate from the Applicant would have been to deal with the issues arising from the separation there. However, in my view, the evidence shows that the disruption that would be caused by returning the matter to be dealt with in Alberta at this point would not serve the child’s interests. Those interests should not be sacrificed in order to punish the Respondent. Although discouraging the abduction of children as an alternative to the determination of custody rights by due process is one of the purposes stated in s. 19 of the CLRA, that would have to be accomplished by other means.

F. COSTS

[82] The parties have 30 days from the date of this decision to serve and file submissions as to costs, limited to two double-spaced pages plus Bills of Costs.

Justice J.A.S. Wilcox

Released: June 30, 2015