SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 374/15

DATE: 20151015

RE: Peter Alexis Mills Henderson, Applicant

AND:

Kelly Ann Winsa, Respondent

BEFORE: J.S. McLeod, J.

COUNSEL: Theresa M. MacLean, Counsel, for the Applicant

David K. Sherr, Counsel, for the Respondent

HEARD: September 30, 2015

reasons on motion

[1] This is a motion brought by the applicant father prior to case conference. The motion seeks, amongst other relief, an order that “the respondent be restrained from removing the child, C.H. (d.o.b. March 27, 2002), from the Province of Ontario without the express prior written consent of the applicant or further order of this Honourable Court.”

[2] The respondent mother objects to Ontario exercising jurisdiction over the custody/ access issues. She submits that Hawaii is the proper jurisdiction.

[3] The materials filed by the respondent mother make it clear that a custody/ access application had been commenced in the family court of the Third Circuit in the State of Hawaii. Despite the application being issued in April of 2015, it was not served upon the applicant father until August the 10th, 2015.

[4] At the outset of these proceedings, and in light of the fact that there were concurrent proceedings, a joint judicial conference involving the parties, their Hawaii counsel, the Honourable Justice A. Wilson of the Third Circuit, Ontario counsel, and myself was organized. The conference was set for September 30th, 2015 @ 3:00 p.m. The purpose was to discuss how our two courts should proceed in light on concurrent proceedings.

[5] The parties were present personally and with counsel in the Peterborough, Ontario, courthouse. The Honourable Justice A. Wilson and Hawaii counsel were conferenced and those discussions are the subject of court record. The parties discussed process. Prior to these discussions, counsel in Ontario were provided with a copy of the Recommended Practices for Court to Court Judicial Communications.

[6] Specifically, the parties discussed whether or not an agreement, or consensus, could be reached as to which court should determine the issue of jurisdiction. The parties were unsuccessful in coming to a consensus and accordingly as indicated to Justice Wilson and to Hawaiian counsel I advised that I would be making a determination as to the Ontario Court’s jurisdiction in this matter and providing a copy of my reasons and decision.

The Facts

[7] The applicant and the respondent lived together for approximately eight years, then were married in Canada on the 21st day of August 1993 and separated in Canada on the 5th of June 2014.

[8] There are two children born of the relationship O.H. (d.o.b. April 15, 1998) and C.H. (d.o.b. March 27, 2002). Both children were born in Canada. This motion deals with the issues specific to C.H.

[9] The affidavits of the applicant father, sworn the 16th of September 2015 and September 30th, 2015 were served and filed with the Court.

[10] The affidavits of the respondent mother, sworn the 16th day of September 2015 and September 29th, 2015 were served and filed with the Court.

[11] The applicant father possessed a 0-1 Immigration Visa that allows him to travel to and work in the United States of America through his employment at a production company. The Visa is set to expire in 2016.

[12] The respondent mother and the two children each have a 0-2 Immigration Visa that allows each of them to attend school and reside in the United States. Their Visas are conditional upon the applicant father presenting the U.S.A. Border and Protection Service the original of his Visa prior to the other Visa’s being stamped.

[13] The 0-2 Immigration Visas are three years in length. No evidence was produced to indicate that upon the expiry of the applicant father’s 0-1 Visa, the respondent mother and children would be entitled to continue to reside in United States.

[14] The applicant and respondent are Canadian citizens as are the children.

[15] Given the fact that the applicant and respondent are divorced, pursuant to an order dated August 4th, 2015 (issued in Canada), the respondent is no longer eligible to reside in Hawaii as she is no longer covered by the applicants previous 0-1 Visa. The child, C.H.’s passport expired on the 5th day of August 2015. He currently has a provisional passport. C.H.’s previous passport clearly indicates that he was born in Toronto, Canada.

[16] The parties negotiated, with the assistance of legal counsel, an interim separation agreement dated the 15th day of August 2014. The agreement indicates that it is a domestic contract within the meaning of “The Family Law Act, RSO 1990, c.F.3.” In addition the agreement makes several statements of fact. It speaks to the fact that the children have lived for the four years preceding the August 2014 agreement in Hawaii for the academic year between August 18th and May 30th.

[17] It indicates that the parties separated on the 5th of June 2014 and that they continued to live separate and apart in a property they owned in Woodview, Ontario.

[18] The agreement indicated that the applicant father rented an apartment in Toronto and that the Woodview, Ontario property would continue to be used by the parties until its sale.

[19] The agreement recognized that the respondent and the children would return to Canada each summer and Christmas. And that in the summer of June 2015 a new parenting schedule would be negotiated as it pertained to the children. The “new agreement” was never achieved.

[20] The agreement speaks to section 7 expenses for the children. Section 7 expenses are specifically defined under the Federal Child Support Guidelines, made under the Divorce Act which is Canadian Federal Legislation. It talks about the designation of a matrimonial home in accordance with the provisions of the F.L.A.

[21] The independent legal advice is provided by counsel who practice in Ontario. The certificates of independent legal advice are dated in the City of Toronto.

[22] It is clear to me that the children went to school in Kamuela, Hawaii for four years but otherwise resided in Ontario.

[23] The property owned in Hawaii was jointly owned by the applicant and respondent as was the property owned in Ontario. The Ontario property sold in June of 2015. The parties continued to reside in Ontario at a rental property located within the County of Peterborough.

[24] The affidavits filed by the applicant father make it very clear that C.H. wishes to continue to reside with the applicant and not to return to Hawaii.

The Law

[25] Section 22(1) of the Children’s Law Reform Act deals with issues of jurisdiction. Para “a” raises the issue of “habitually resident in Ontario.” Sub-para 2 deals with habitual resident. Para 23 deals with issues of serious harm to child.

Legal Principles

[26] “The CLRA provides four answers for an Ontario Court to exercise its jurisdiction to make an order for custody of a child.

First, under section 22(1)(a) of the CLRA, an Ontario Court may make an order for custody of a child where the child is “habitually resident” in Ontario.

Second, under section 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met. (This section is not applicable given the concurrent custody/ access applications)

Third, under section 23, a court has jurisdiction to make an order for custody, where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

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.

Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by section 69 of the CLRA. Dovigi v. Razi,2012 ONCA 36, [2012] O.J. 2418 (Ont. C.A.) at pages 10-13.

Section 22(2) of the CLRA defines “habitually resident” as follows:

To be “habitually resident” in Ontario is defined by section 22(2) of the Act as follows:

(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.”[^1]

[27] In this case the evidence is undisputed that an application was made by the applicant father in August of 2015 at a time when both the respondent mother and the child were resident in Ontario.

[28] The fact that the child went to school in Hawaii does not, in my opinion, alter the fact that the child was and is habitually resident in Ontario given the facts that I have herein before identified.

[29] Even if I am wrong that section 22(1)(a) “habitually resident in Ontario” is applicable then I am satisfied that the child would, on the balance of probabilities, suffer serious harm if returned to Hawaii to live with the respondent mother.

[30] I make this finding specifically in light of the following facts:

1. In an effort to have contact with his father, the child C.H., removed a canoe from a nearby marina and paddled across Stoney Lake to meet with his father;

2. the child, while in the care of his mother borrowed money from a stranger in the lobby of a hotel so that he could call his father to meet with him;

3. that on the 11th of September 2015 while attempting to leave Canada with the child C.H., the respondent was approached by U.S. Customs. The child C.H. indicated that he was removed from Canada “against his will”;

4. on the 13th of September 2015 C.H. advised that his mother had tackled him to the ground and had taken away his iPad so that he would no longer be in a position to speak with applicant father;

5. on the morning of the 14th of September 2015 the child, C.H., left a message for his father indicating that he would be waiting in the hotel lobby so that he could be picked up to commence residency with his father; and

6. on the 17th of September 2015 the child took such dramatic steps as to ensure that he was present before myself and wished to give his views and preferences directly to the court.

[31] On the 17th of September the matter of jurisdiction was initially brought to my attention.

[32] Previously the order of Gunsolus, J. dated September 8th, 2015 restricted the removal of the child from the Province of Ontario.

[33] On the return date of the 17th of September 2015 I ordered that a privately commissioned report be prepared in order that the “voice of the child” could be received by a properly appointed expert and presented to this court.

[34] The views and preferences of the child report was prepared by Linda Chodos, MSW RSW Acc.FM. That report is dated the 29th day of September 2015. In that report the assessor was asked to address the following issue:

The report is to address the issues as to the impact of a decision for the child C.H. (d.o.b. March 27, 2002) to reside with either of his parents and to specifically identify if there are serious concerns that his well-being will be impacted if a determination is made which is contrary to his views and preferences.

[35] The report clearly indicates that the child is conflicted.

[36] The following are key portions of the report:

“This conflict has resulted in C.H. needing to make a choice as a way of retreating from the conflict. He says he wants to stay here but he wants his mother to go back to Hawaii as he cannot manage them both in the same city. As his mother becomes increasingly strong, in what she believes is essential to protecting her children, C.H. has become more argumentative in his behaviour towards her and more strident in his views. Yet, he did not say he would not ultimately honour the Judge’s order. He said he would be extremely sad. (page 9 of report)

In summary, C.H. wants me to tell the Judge he wants to live with his father. It needs to be made official so that his father can buy him a desk and maybe a dog. His father is waiting for confirmation before he fixes up the room and gets things in order. He would like to spend one or two weeks in Hawaii during the summer, not longer, because he and his father have plans to travel and do road trips together. (page 8 and 9 of report)

C.H. is clearly caught in the middle of his parents’ conflict. The conflict has escalated this summer and has resulted in C.H. feeling like he has to make a choice. The police have been involved several times. It is likely that he has heard comments from both parents. He seems quite focused on financial issues and has told me that he needs to know everything. (page 9 of the report)

C.H. indicated that he was impacted by his father’s desire to be with him. He noted that he has always lived with his mother. It was clear that he misses his father and feels bad about how his mother is portraying him. C.H. wants to have a relationship with him. (page 10 of the report)

The matter of his residence needs to be resolved so that C.H. can extricate himself from the adult conflict and once again focus on age appropriate issues and concerns. (page 10 of the report)

Given the information gleaned from my interviews with C.H., I am able to say that C.H.’s views and preferences were consistent in the two meetings. However, I am not convinced that his views and preferences were independent, strong and without influence from either parent. (page 10 of the report)

There was no suggestion in my interviews with C.H. that would lead me to have any serious concerns that C.H.’s well-being would be impacted if a determination is made which is contrary to his views and preferences.” (page 10 of the report)

[37] Given the above facts the court would be of the view that C.H. would, on the balance of probabilities, suffer serious harm if returned to the custody of his mother in Hawaii. There is a real possibility that C.H.’s behaviour would escalate. The unauthorized removal and use of a canoe on open water, the approaching of a stranger for money to place a call to his father, the contact with border crossing guards, the alleged “tackling” by his mother, and the description of his escalating resistance to his mother satisfies this court that the child, C.H. would on the balance of probability suffer harm. As I had indicated on the last return date it is not to be suggested that this harm would be as a result of the risk of physical harm at the hands of his mother but rather the extreme steps taken by a 13 year old boy in an effort to establish his residency with the father.

[38] This case is reflective of the need for cases to be conferenced prior to motion, wherever it is possible. The views of this 13 year old boy are significant.

[39] As neither party has requested costs, non are warranted or payable.

[40] A copy of these reasons and my September 30, 2015 endorsement are to be forwarded to the Honourable Justice A. Wilson of the Third Circuit, Hawaii.

McLeod, J.

Date: October 15, 2015

[^1]: Matrook v. Bani-Ahmad, 2015 ONSC 1620