ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

COURT FILE NO.: F1196/15

DATE: 2015/12/18

BETWEEN:

Shannyn Leigh Christie-Lyras

Michael H. Murray, for the Applicant

Applicant

• and -

Jean-Francois Alexandre Lyras

Scott M. Merrifield, for the Respondent

Respondent

HEARD: November 18, 2015

LEITCH J.

[1] In the respondent’s motion dated October 22, 2015 (which was returnable October 28, 2015), he sought a stay of the applicant’s application dated September 25, 2015 and requested (i) an order that on or before November 4, 2015 the applicant return his children to what he described as the family home in Dartmouth, Nova Scotia and (ii) an order that if the applicant failed to comply with such an order the respondent would have temporary custody of the children for the purpose of travelling with them by airplane to Dartmouth, Nova Scotia.

[2] On October 27, 2015, the applicant brought a motion also returnable October 28, 2015, seeking (i) an order that her motion proceed prior to the hearing of a case conference and attendance at the Mandatory Information Program (ii) an order that this court has jurisdiction to hear the proceeding (iii) an order for temporary custody of the children (iv) an order that she have primary care of the children and (v) an order dismissing the respondent’s motion as well as other relief.

[3] These motions were briefly spoken to on October 28, 2015 and adjourned to a special appointment set on an emergency basis for November 18, 2015.

[4] When the motions were heard, the respondent indicated that if he was successful on his motion he had no expectation that the children would be returned to Dartmouth, Nova Scotia until sometime during the Christmas break from school.

[5] The dispute that is apparent from these motions arises from the fact that according to the respondent, the parties were ordinarily resident in Nova Scotia at the time they separated and the applicant took their children to Ontario without his consent. Mr. Merrifield, as counsel for the respondent, asserts that the evidence in support of that contention is overwhelming.

[6] On the other hand, the applicant’s position is to the contrary. Mr. Murray, on her behalf, asserts that Ontario is clearly the children’s home and is the proper court to assume jurisdiction.

Background Facts

[7] The applicant and the respondent were married on November 11, 2014. They separated according to the applicant’s application, on September 20, 2015. In his affidavit sworn in support of his motion, the respondent disagreed that the parties separated September 20, 2015. He asserted that they separated on September 25, 2015.

[8] The parties have two children, Ryan born May 27, 2008 and Charlotte born June 28, 2010.

[9] The respondent is a helicopter pilot and is presently employed by HNZ Global (Canada). As the respondent deposed in his affidavit at para. 6, he currently holds the position of Flight Operations Manager of HNZ Global (Canada) based in Halifax. He has held this position since on or about March 1, 2015. He referenced a three year contract. His annual income pursuant to that contract is $170,000 per annum.

[10] The applicant operated a retail business in London, Ontario until she closed that business in the summer of 2015. The applicant and the children arrived in Nova Scotia August 23, 2015. The applicant left Halifax with their children and returned to London September 23, 2015. What occurred from August 23 to September 23, 2015 and the significance of that time in Nova Scotia is highly contentious and will be reviewed further in these reasons.

[11] During their marriage the parties lived in various places in Canada.

[12] They resided in London from the date of their marriage in November 2004 until the spring of 2005.

[13] During the period April 2005 until June 2008 they lived in Newfoundland.

[14] Thereafter they moved from Newfoundland to London for approximately one year.

[15] From June 2009 until January 2011 they lived in Georgetown, Ontario.

[16] They lived in London, Ontario from January 2011 until August 2015.

[17] Until March 2015, the respondent contracted his services as a helicopter pilot through a corporation, Lyras Aviation Services Inc. in which both he and the applicant are shareholders. He flew around the world and, as set out in his first affidavit sworn October 2015 at para. 15, he “generally worked” on a “six weeks on/six weeks off” basis.

[18] In paras. 16 and 17 of his affidavit the respondent acknowledged that his “work schedule was incompatible with conventional family life”. He did not dispute that during the time he was away from home “the applicant was exclusively responsible for child care with the assistance of her family members in London”. However, he indicated that during the extended periods he was not working he was “extremely active in child care” and both he and the applicant recognized the need for him to “make up for lost time with the children”.

[19] However, according to para. 66 of the applicant’s affidavit sworn October 27, 2015, “even when the respondent was home, he gave little time for the children and childcare responsibilities were left” to her, she made all major decisions regarding the children’s educational needs, she attended all of their extracurricular activities and the respondent missed many of the children’s important events.

[20] As is readily apparent from my outline of the background facts, there was considerable conflicting evidence presented on these motions. Before addressing the evidence and the jurisdictional tests, I will first deal with the troubling allegations made by each of the parties against the other.

The respondent’s allegation that the applicant has been deceitful and intentionally misleading in her application and the applicant’s request that I draw an inference that the move to Nova Scotia was to enable the respondent to obtain a strategic advantage

[21] Mr. Merrifield was highly critical of the information presented by the applicant in her application and her Form 35.1: Affidavit in Support of Claim for Custody or Access dated September 25, 2015. With respect to the family history, the applicant noted that she had been a resident of the county of Middlesex since January 2011.

[22] She was cross-examined on that statement and acknowledged that such a statement was not correct. She explained that it was “obviously a mistake” (question 125, page 18). She was asked on her cross-examination if she intended to deceive the court and she responded “absolutely not” (question 143, page 21).

[23] In her Form 35.1 she also stated that the children “are enrolled” in a London school and, she lives in this jurisdiction. However, this affidavit was completed only the day after the children returned to London from Nova Scotia.

[24] In further cross-examination, the applicant stated that it was “an oversight” that she did not include in her application any information respecting the fact that she and the children had moved to Nova Scotia August 23, 2015 (question 161, 162 and 163 page 24).

[25] Mr. Merrifield submitted that there was a pattern of deceit perpetuated by the applicant in failing to disclose or make any reference to the family’s time in Nova Scotia. He noted that there were other omissions in her application as well as intentionally misleading statements to the effect that the respondent moved to Nova Scotia in June 2015 and he resided in a condo there. Mr. Merrifield contended that the applicant did not explain her omissions and her evidence is unreliable if not intentionally misleading.

[26] Mr. Murray also contended that the respondent has acted underhandedly. He took the position, and asked me to infer, that the respondent moved to Nova Scotia to obtain a strategic advantage in matrimonial proceedings.

[27] In para. 115 of her affidavit, the applicant deposed that “the respondent planned the move and intended to end our relationship once we had moved to Nova Scotia, protecting himself from matrimonial property rights in Ontario, including those related to the matrimonial home and his business interests”.

[28] Mr. Murray referenced the fact that in prior years the respondent had sought legal advice in relation to a separation. Mr. Murray contended that the respondent was therefore knowledgeable regarding Ontario law. He alleged that the respondent became knowledgeable with respect to Nova Scotia law and the fact that a division of property in that jurisdiction will be more advantageous for the respondent than in Ontario. Further Mr. Murray contended that because of the move to Nova Scotia, the sale of the matrimonial and the applicant’s closure of her business, the respondent now controls all of the parties’ assets and he is in a more advantageous position than the applicant.

[29] The respondent in a reply affidavit “categorically” denied that he had “some kind of plot to separate from the applicant once he moved to Nova Scotia”.

[30] I am not prepared to attribute ulterior motives to either party on this evidentiary record nor am I prepared to draw negative inferences in respect of either of them.

[31] There is simply no evidence on which I can conclude that the respondent’s move to his current residence in Nova Scotia was motivated to ensure Nova Scotia law governed his family law proceedings.

[32] I also am not prepared to find that the applicant intentionally and deliberately misled the court in the information she disclosed in her application in order to gain a strategic advantage.

[33] I will turn next to the evidence relating to the respondent’s employment and how the family came to be in Nova Scotia on August 23, 2015.

The Evidence Respecting the Respondent’s Employment and the Move to Nova Scotia

[34] In the respondent’s affidavit sworn October 23, 2015, he deposed that after he accepted the three-year contract with HNZ Global (Canada), which required him to be based in Halifax, the applicant and he decided in the late spring of 2015 to move their family to Halifax.

[35] They listed their London home for sale and it sold quickly with a closing date of August 28.

[36] As previously set out, the applicant closed her retail business.

[37] The applicant and the children arrived in Halifax on August 23, 2015.

[38] In para. 26 of his affidavit, the respondent deposed that “after arriving in Halifax/Dartmouth, our actions were inconsistent with any other conclusion but that Halifax was now our home”. The respondent referenced the fact that they changed the licence plates on the applicant’s motor vehicle to Nova Scotia plates. He outlined also that the applicant met with a family doctor to make arrangements for that person to serve in that capacity for their family.

[39] The parties also requested confirmation that they were Nova Scotia residents. The individual who assisted them with their one-year lease provided written confirmation of these arrangements. This was necessary to establish their residency in order to obtain coverage under the Nova Scotia Medical Services Insurance plan.

[40] The respondent referenced the fact that the parties certified to the province of Nova Scotia that they were permanent residents of, and ordinarily resident in, Nova Scotia in order to be registered for health services in that province.

[41] He also referenced email correspondence between the applicant and the director of the French language school in Dartmouth confirming the plan to register the children at that school. The children were enrolled in that school and attended until September 23.

[42] The respondent also referenced the children’s registration in extra-curricular activities which they began to participate in during September 2015.

[43] The respondent’s position is that the parties moved to Halifax and intended to live there for an indefinite period of time. He asserted that the applicant took the children from Nova Scotia against his express wishes.

[44] As the respondent noted, within two days of the applicant’s departure from Nova Scotia he received by courier the applicant’s application, Form 35.1 affidavit and sworn financial statement. He deposed these documents would have had to have been sent from London on September 24.

[45] In her affidavit the applicant deposed that it was her understanding that the respondent’s contract in Nova Scotia was “for around nine (9) months, not three years” (para. 22).

[46] The applicant further deposed that when they had discussed the respondent’s employment offer in Nova Scotia, she was “led to believe it was temporary and that we would be returning to Ontario in less than a year” (para. 25).

[47] She described the respondent’s evidence respecting their move to Nova Scotia as “inaccurate” and deposed the following in para. 77 to 80 of her affidavit:

77. That it was the Respondent who decided that he wanted to move to Halifax. Again, it was my understanding that it was a temporary 10 month contract and with a view to trying to save my marriage it was agreed that the children and I would try it, however, it was never the plan to move away from London permanently.

78. That the Respondent’s decision to take the management position was a career move. A step up in his career and was not based on becoming more available for family.

79. The home at 1662 Cedarcreek Crescent, London, was listed for sale to take advantage of the summer real estate market, rather than rent it and have to sell it in the winter upon our return and the Respondent and I had been discussing looking for a place in the country outside of London which would have more space for the children and give us some space from our neighbours.

80. The move was supposed to be a temporary relocation and we would return to London and buy a better home with a bigger lot.

[48] The applicant also deposed that all of her family and the children’s friends and their school are in London. According to the applicant, they have no substantial connection to Nova Scotia, all of their assets are in Ontario, the children attended school in Nova Scotia for only 14 days, the children had limited involvement in their extracurricular activities, the children were not registered with a family physician or dentist in Nova Scotia and even if the respondent’s 10-month contract was extended, it was the family’s intention to return to Ontario.

[49] The applicant’s evidence was that they moved to Nova Scotia “on the premise that we were moving there for approximately 10 months” (question 70, page 11) and that it was “a temporary move” (question 71, page 11). She described the time in Nova Scotia as a “brief excursion”.

[50] When asked on cross-examination about why they moved to Nova Scotia, the applicant indicated it was because their “marriage was very shaky. It was a last-ditch attempt to try and make things work” (question 205, page 30). When she was asked if there was a consensus between her and the respondent that it would be good for their family, she indicated that they “felt it would be good for the marriage, to make sure that it would work and to see if it would work” question 208, page 31).

[51] According to the applicant’s affidavit, the respondent informed her on September 20 when he was in Montreal that “the marriage is over”. She then informed him that she “would not stay in Nova Scotia” and that she would return to Ontario with the children. In para. 14 of her affidavit, she indicated that “the respondent did not say anything, he made no other comment and the conversation ended”.

[52] She further deposed that when the respondent returned to Nova Scotia September 21, she called him again and “confirmed a second time” her “intention to return to Ontario” and on September 22, she “confirmed a third time” her intention to return to Ontario with the children.

[53] She also deposed that the respondent witnessed her packing both her belongings and her children’s belongings to return to Ontario and “the respondent did not ask me to stay or object to me taking the children to Ontario”.

[54] On her cross examination the applicant indicated that she had obtained legal advice that she was allowed to return the children to Ontario.

[55] The respondent disagreed with the applicant’s version of events. The respondent deposed in para. 40 that when he arrived home on September 23, he found “that the applicant had packed her motor vehicle and trailer with the belongings of she and the children. She announced that she was returning to Ontario with the children. The children were noticeably upset and confused”.

[56] In a reply affidavit, the respondent denied informing the applicant that their marriage was over as she asserted, although he stated that he did not deny that their marriage was “under stress by that time”. He reiterated he “certainly gave no indication to the applicant that the marriage was over”.

[57] Also in his reply affidavit, the respondent indicated that he made it clear that he was not agreeing to the children being moved back to Ontario; “that decisions about the children were not hers to make”; and, he “had a say in the matter” as their father. He further took the position that the applicant’s statement that he did not object to the applicant packing their belongings was untrue.

[58] The respondent also deposed that the applicant’s assertions that she was led to believe that his employment in Nova Scotia was temporary and they would be returning to Ontario in less than a year is “simply untrue”.

[59] He referenced the three-year term of the contract and indicated that him returning to London every six weeks was “exactly the family schedule that we were attempting to bring to an end by our move to Halifax”.

[60] Further, he deposed that contrary to the applicant’s allegations, they “have virtually no personal property in Ontario. All of our furniture and belongings are in storage or at our home in Nova Scotia other than what the applicant took with her when she left with the children”.

[61] The applicant replied to the respondent’s reply affidavit and reconfirmed all of her statements in her first affidavit, specifically stating that the respondent told her that the marriage was over on September 20, 2015 that his affidavit was untrue. She disagreed with virtually all the contents of the respondent’s affidavit.

What are the Written Terms of The Respondent’s Employment Contract?

[62] The continuing record contains a copy of the February 18, 2015 offer of employment to the respondent to be a permanent flight operations manager.

[63] The contract itself states on page two that the respondent was “offered a minimum three-year term of employment”. With respect to the general scope of his work, the contract stated on page three that in addition to general duties his “initial scope of work will be focused on HNZ Global’ s Shell Halifax contract for services in Halifax, Nova Scotia. The Shell contract will start July 1/2015 and run for a minimum of nine months with possibility of extension of three-six additional months”.

[64] According to the contract, the respondent was provided with an apartment condominium in Halifax. Pursuant to the contract, he agreed to “relocate and reside in Halifax in support of the Shell Halifax operations”. The contract provided that the “term is expected to last nine to thirteen months. Should Halifax operations be extended beyond the expected nine to thirteen months … the employee has the option to remain in Halifax or to commute from their permanent residence currently outside of Nova Scotia.”

[65] The respondent was offered payment for a “household move” to the Halifax area and in fact the expenses with respect to the family’s relocation to Halifax were paid by the respondent’s employer.

[66] The respondent’s contract also included the following provisions:

It is also possible that should Halifax operations temporarily suspend in-between periods of work that Employee may be required, at the company’s expense, to tour domestically or internationally in a role that will maintain current salary and at least an equal time rotation schedule i.e., 4 week on –4 weeks off. Company will pay travel, accommodation and living expense (per diem) during such work terms.

It is the intent of the Company to develop long term Oil and Gas /SAR operations in Canada and that the FOM role will remain a key element of this structure and ongoing business development in Canada.

Company is prepared to provide a round trip economy ticket for you from the Halifax work location to London Ontario every 6 weeks. The value of this ticket can be used to assist travel of your family to visit you in Halifax as you see fit.

The Jurisdictional Test under the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[67] Section 3(1) and 4(1) set out the court’s jurisdiction as follows:

3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

4. (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 proceeding; or

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

[68] Therefore for this court to have jurisdiction pursuant to the Divorce Act, the applicant must be ordinary resident in Ontario.

The Applicable Legal Principles Respecting Jurisdiction under the Children’s Law Reform Act

[69] As set out in s. 19 of the Children’s Law Reform Act, R.S.O. 1990 c. 12 (the “CLRA”), abduction of children is to be discouraged as an alternative to the determination of custody rights by due process.

[70] The Court of Appeal in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, at para. 9-13, a decision relied on in the case authorities presented by counsel outlined when an Ontario court may exercise jurisdiction and make an order for custody of a child:

9 The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.

10 First, under s. 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.

11 Second, under s. 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.

12 Third, under s. 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 under certain specified circumstances set out in the Act.

13 Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.

[71] The term “habitually resident” is defined by s. 22(2) of the CLRA as follows:

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.

[72] Therefore for this court to have jurisdiction under s. 22(1)(a) on the basis that the children are habitually resident in Ontario, I must be satisfied that the children are living with the applicant with the consent, implied consent or acquiescence of the respondent.

[73] If I find that the children are not habitually resident in Ontario, for this court to have jurisdiction under s. 22(1)b I must find that the following requirements of s. 22(1)(b) are satisfied:

(i) that the children are physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the children are available in Ontario,

(iii) that no application for custody of or access to the children are pending before an extra-provincial tribunal in another place where the children are habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the children has been recognized by a court in Ontario,

(v) that the children have a real and substantial connection with Ontario, and

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

[74] Section 23(3) of the CLRA states that abduction does not alter the “habitual residence” of a child.

[75] In the event a court does not have jurisdiction under s. 22, section 40 of the CLRA provides what are described as limited powers of the court on an interim basis:

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

Disposition

[76] These motions raise the question as to whether:

(1) the children are ordinarily resident in Ontario to meet the jurisdictional requirements of the Divorce Act;

(2) whether the children were habitually resident in Ontario on the dates of the application;

(3) the children are not habitually resident in Ontario the issue whether the court may exercise jurisdiction under s. 22(1)b of the CLRA given that the children are physically present in Ontario; and

(4) if the court does not have jurisdiction should an interim order be made under s. 40 of the CLRA.

[77] Dealing with the first issue I am satisfied that the “ordinary residence” test under the Divorce Act, as not satisfied.

[78] In MacPherson v. MacPherson, 1976 854 (ON CA), 1976 CarswellOnt 188, [1976] O.J. No. 2195 (Ont. C.A.), a family lived in Ontario for four and a half years before moving to Nova Scotia. After eight months, the wife returned to Ontario and the husband stayed in Nova Scotia. The wife filed her application in Ontario about two and a half months later. At p. 239, Evans J.A. wrote:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community. In the present matter, while the husband and wife expressed opposing views as to their intention with respect to the establishment of a permanent residence in Nova Scotia, I do not believe that the intention alone can determine the issue of ordinary residence. Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact she was ordinarily resident in Nova Scotia for that period which continued until she moved and established her residence in Ontario.

[79] I am satisfied that these circumstances are analogous to those in MacPherson. The parties sold their home in London. The applicant closed her business in London. The parties moved to Nova Scotia for an indefinite period of time. They intended to live in Nova Scotia. The children were enrolled in school and extra-curricular activities in Nova Scotia. The parties took steps to establish their life in Nova Scotia including arranging for health care coverage in Nova Scotia. The fact that the applicant did not believe their relocation was permanent does not displace my conclusion that the children were not ordinarily resident in Ontario when the application was commenced. The jurisdictional requirements of the Divorce Act are not met.

[80] I next turn to the second issue – whether the children were habitually resident in Ontario on the date of the application. The contentious issue arising from the definition of habitual residence is whether the children are in Ontario living with the applicant “with the consent, implied consent or acquiescence of” the respondent. The respondent has clearly stated that he neither consented nor acquiesced to the applicant returning to Ontario with the children. Further, I note that the applicant obtained and relied on legal advice she obtained before moving to London. On this evidentiary record, I cannot find that the respondent consented to or acquiesced in the children’s return to Ontario. Therefore I conclude that the children are not habitually resident in Ontario within the meaning of that term under the CLRA.

[81] This finding raises the third issue which is whether jurisdiction can be established under s. 22(1)(b). Mr. Merrifield acknowledged that many of the prerequisites to the application of s. 22(1)(b) are met. The children are physically present in Ontario. There is substantial evidence concerning their best interests available in Ontario. No application is pending in another jurisdiction where the children are habitually resident. No extra-provincial order has been recognized by a court in Ontario and the children have a real and substantial connection with Ontario. However, it is his position that the sixth requirement is not met, that is, that “on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario”. In this regard he notes that based on his position that the habitual residence of the parties is in Nova Scotia, Nova Scotia property law will apply to their matrimonial proceeding.

[82] In assessing the balance of convenience, it is appropriate to consider where the parties have been living, where the children are located, where the parties’ assets are located, where witnesses are located and which law applies.

[83] All of these factors must be assessed in the context of what is in the best interest of the children. It is appropriate to consider where independent evidence that may assist the court in addressing the contentious issues between the parties relative to their children, is located. In this case, the preponderance of that evidence for example, from the children’s teachers, doctors, instructors, family members and long-term neighbours is all in Ontario. Kitely J. in Gillespie v. Jones, 2015 ONSC 5265, observed at para. 54 that witnesses “with the crucial evidence of the parenting relationship before the separation” were primarily in British Columbia and as a result it was more convenient that the parenting issues in dispute in that case be resolved there. That conclusion is certainly apt in these circumstances in respect of Ontario.

[84] The children lived in Nova Scotia from August 23 to September 20. They were enrolled in school and in extracurricular activities in Nova Scotia for an extremely short period of time because their parents’ relationship deteriorated quickly after the family moved to Nova Scotia. Although the parties do not have real property or any other fixed assets in Ontario, they similarly do not have such property in Nova Scotia. There was no evidence that the respondent will suffer a juridical disadvantage if this court assumes jurisdiction. I conclude that the balance of convenience favours a finding that it is appropriate for jurisdiction to be exercised in Ontario and all of the factors under s. 22(1)(b) are met.

[85] In terms of what law will apply to the property rights of the parties, I observe that s. 15 of the Family Law Act provides that property rights will be governed by the law of the place where both spouses had their last common habitual residence. My conclusions on this motion are not made to determine the issue of what law will apply in relation to the resolution of the parties’ property rights. I simply observe that if Nova Scotia law must be applied, a consideration of that fact in the context of all of the other factors does not lead me to a conclusion that the balance of convenience tips in favour of a finding that jurisdiction cannot be found under s. 22(1)(b) of the CLRA.

[86] As a result of this finding, the respondent’s motion is dismissed.

[87] On the evidentiary record before me, I am prepared to make, pursuant to the applicant’s motion, a temporary order providing that the applicant has custody and primary care of the children, noting that the issues of custody and access have not yet been properly put before the court nor has there been a case conference.

[88] In the circumstances of these children, I decline to make an order under s. 40 that would require that they relocate to Nova Scotia.

[89] These circumstances are very unfortunate because it appears to me that the respondent entered into his current employment arrangement so that he could spend more time with his children.

[90] Although the applicant has been successful on her motion, I observe that “self-help” must be discouraged by the courts. It inevitably leads, as it did here, to highly contentious positions respecting the appropriate jurisdiction where matters relating to the dissolution of their marriage are to be determined. In addition, any discussion of, or determination of issues relating to their children begin in a highly adversarial environment. This is in no one’s best interest and particularly not in the best interests of the children.

[91] I would ask that counsel endeavour to resolve the issue of costs relating to these motions, however, if those efforts are not successful, counsel may make brief submissions in writing in the next 30 days.

Justice L.C. Leitch

Date: December 18, 2015

COURT FILE NO.: F1196/15

DATE: 2015/12/18

ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT

BETWEEN:

Shannyn Leigh Christie-Lyras
Applicant

• and -

Jean-Francois Alexandre Lyras
Respondent

REASONS FOR JUDGMENT

LEITCH J.

Released: December 18, 2015