COURT FILE AND PARTIES

COURT FILE NO.: FS-15-401630
DATE: 20150824

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rheba Gillespie, Applicant

AND:

Michael Jones, Respondent

BEFORE: Kiteley J.

COUNSEL: R. Adam J. Pyne-Hilton, for the Applicant

Michael Zalev, for the Respondent

HEARD: August 20, 2015

ENDORSEMENT

[1] The Respondent and the Applicant have each brought motions. Fundamental to these motions is whether Ontario has or should take jurisdiction. For the reasons that follow, I grant the motion brought by the Respondent and direct a stay of these proceedings.

Background

[2] The Applicant is almost 40 years old. The Respondent is 43 years old. The Applicant and Respondent met in Toronto during high school. According to the Applicant, they dated on and off for over twenty years. According to the Respondent, they have been in a romantic relationship since 2000 except for a three month break-up in 2008.

[3] Commencing in 2001 the Applicant obtained employment with the Toronto District School Board as an elementary school teacher. The Respondent is a self-employed software developer. He moved to Squamish, British Columbia in 2003.

[4] In 2010, the parties were engaged and the Respondent purchased a lot in Whistler, B.C. municipally known as 8524 Rope Tow Way. According to the Applicant, the mortgagee required that the Applicant join in the acquisition of the lot in order to rely on her income from full-time teaching with the TDSB.

[5] On July 7, 2012, they married in Toronto. In about August 2013, the Respondent moved into the home in Whistler.

[6] In early 2013, the Applicant became pregnant with a due date of December 2, 2013. According to the Applicant the parties agreed that she would continue her employment with the TDSB until she commenced her maternity leave. The Applicant says that she agreed to live at the house in Whistler during her maternity leave but she told the Respondent she would not give up her permanent position with the TDSB. The Respondent takes the position that she held on to her TDSB position during maternity leave in order to maintain health coverage and pension contributions but that they would remain together in B.C. indefinitely.

[7] The Applicant started early labour and the child Will was born October 29, 2013. The Respondent arrived in time for the birth and he stayed in Toronto for two months because the child was born prematurely. The Respondent returned to B.C. on December 26, 2013 to assist in the care of a friend who was dying. The Applicant and the child arrived in B.C. on January 27, 2014. The Applicant brought some of her personal belongings to B.C. and she put others into storage.

[8] The Applicant’s maternity leave ended on October 28, 2014. She started working as an ESL teacher at a school in Whistler for 1.5 days a week and she worked additional days as a supply teacher. The parties differ as to the average days per week she worked but they agree that the Respondent worked from the home and looked after the child while the Applicant worked. That teaching contract ended June 25, 2015.

[9] Before the end of her maternity leave, the Applicant applied for and received parental leave from the TDSB for the remainder of the 2014/2015 school year. The parental leave expires on August 31, 2015. According to the Applicant, she is required to return to her full-time teaching position with the TDSB in September 2015.

[10] From time to time, the Applicant brought Will to Toronto to visit family. At some point which I assume was early in 2015, the Applicant retained a lawyer. On February 13, 2015, while she was in Toronto with the child, she signed an Application in which she sought a divorce, child support, spousal support, custody, equalization of net family property and costs. On page 3 of the Application, the typed document indicated that she had been resident in Toronto since December 26, 2014. That is struck out and in handwriting the date of July 2012 appears. Under “relationship dates”, she indicated that they started living together on January 26, 2014 and separated on December 26, 2014. On page 5 under the grounds of divorce, she indicated that they had lived separate and apart since December, 2014.

[11] On February 13, she also signed a financial statement Form 13.1. The date adjacent to the signature is February 13, 2014 while the date on the front page is February 13, 2015. I accept that it was done in 2015.

[12] On March 24, 2015, on the occasion of another trip to Toronto, the Applicant signed Form 35.1.

[13] The Application was issued in the Superior Court at Toronto on March 26, 2015.

[14] As indicated below, the Respondent first became aware of the existence of the Application in an email from the Applicant on July 27 at 9:48 a.m.

[15] As an email shows, in April 2015 the Applicant asked the Respondent for his help in updating her resume in order that she could apply for another contract at the Whistler school starting in September 2015. According to the Applicant, she did not get the position and she now says she only applied for it to demonstrate to the Respondent how difficult it would be for her to obtain employment in B.C. According to the Respondent, she told him that renewal of the contract was a possibility but not until after the 2015 school year started.

[16] As agreed, on June 17, 2015, the Respondent flew to England to start his visit with his family. The Applicant remained to complete the teaching contract on June 25 and then she and the child flew to England so that the child could visit his paternal grandparents and other relatives. On July 8, 2015, the Applicant and Respondent and the child returned to Toronto. The three of them spent time with the Respondent’s sister in Oakville, with friends in Haliburton and at the Applicant’s family cottage on Lake Simcoe.

[17] The Respondent returned to British Columbia on July 20, 2015. According to him, the Applicant was supposed to follow with the child on July 27. According to the Applicant, when he left on July 20, she did not have airplane tickets. In his reply affidavit, the Respondent said that they often booked last minute to get cheaper fares and that the two of them had looked on line for possibilities but he says she committed to returning within a week of his departure.

[18] While he was in transit, the Applicant and Respondent exchanged text messages and after his plane landed, the Applicant sent the Respondent a detailed email message in which she told him that she could not continue in their “current situation” and she was seeking a divorce. According to the Respondent he was devastated by the contents of the email and then stunned to discover when he entered the Whistler property that during the week when he had been in England, the Applicant had emptied the child’s room including his crib, change table, chair, dresser, clothing, toys and pictures and she had removed all of the furniture and belongings she had shipped to B.C. in January 2014.

[19] The Respondent immediately retained a lawyer in B.C. and on July 27 that lawyer signed a Notice of Family Claim which was filed in the Supreme Court of British Columbia on July 28, 2015. In the documents, the Respondent indicated that the parties had separated on July 20, 2015. He asked for orders respecting the child, namely parenting arrangements, guardianship, that the Supreme Court take jurisdiction over the child and he asked for an order that the mother return the child to B.C. or surrender the child to him so that he could return the child to B.C. He also made a request for child support. On July 27 at 9:48 a.m. the Applicant informed the respondent that she had initiated a proceeding in Ontario and that the process server would be in touch to serve him. He was served on July 29.

[20] On July 30, 2015, the lawyer for the Respondent sent a copy of the Notice of Family Claim to Mr. Pyne-Hilton and on August 5, the Applicant was served personally. On August 11, 2015, counsel in B.C. advised Mr. Pyne-Hilton that a judicial case conference was scheduled in the Supreme Court of B.C. for October 6.

[21] On July 30, 2015, the Respondent returned to Ontario. Pending the outcome of this motion, he has been staying with his sister who lives in Oakville and the Applicant stays at the home of her parents in Etobicoke. The Applicant has allowed the child to see his father on a daily basis but, until August 9, only in her presence. She has refused to let the child stay with his father overnight on the basis that she is still breastfeeding and that the child has never been apart from her overnight.

[22] The Respondent retained a lawyer in Ontario and on August 12, served a motion returnable August 20, 2015 along with his affidavit sworn August 11, 2015.

[23] On August 18, 2015, Mr. Pyne-Hilton served his client’s Notice of Motion also returnable August 20 along with the Applicant’s affidavit sworn August 18.

[24] On the morning of the motion, Mr. Zalev gave to me an affidavit of the Respondent sworn August 19.

[25] The evidence in the affidavits reveals considerable conflict in areas such as whether they shared parenting responsibilities relatively equally (the Respondent’s position) or the Applicant was the primary parent (the Applicant’s position) as well as the details of the conflicts in their relationship. The considerable evidence has not been tested by cross-examination. In some cases there is some independent documentation attached. But in several areas, the court is largely left with “she says, he says” which is typically not the basis on which a court on an interim motion ought to make findings of fact. However, to reach an outcome, I need not make those findings of fact.

(Relief Sought, statutory provisions, analysis, and order continue exactly as in the source text.)

Kiteley J.

Date: August 2015