OSHAWA

COURT FILE NO.: FC-15-1586

DATE: December 11, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Tracey Louise Stevenson, Applicant

and

David Sykes, Respondent

BEFORE: The Honourable Madam Justice S. J. Woodley

COUNSEL: Brian Hall, for the Applicant

Respondent not appearing

HEARD: Read in chambers December 9, 2015

ENDORSEMENT

[1] The Applicant seeks Judgment for custody and return of the child, Kayleigh Sykes, born September 10, 1999, whose habitual residence was Ontario, prior to being removed from Ontario to Utah by the Respondent in September of 2015.

[2] The Application seeking custody and return of the child was issued on September 22, 2015 and was personally served upon the Respondent at his home in Utah, United States of America, on October 9, 2015 by a process server operating out of Salt Lake City, Utah.

[3] On September 23, 2015, the Applicant moved without notice for an Order for temporary custody and return of the child to the care of the Applicant mother in Ontario. As the Applicant mother had been granted “primary physical custody” by Order of Justice Quinn of the State of Utah on December 14, 2009, and as the child’s habitual place of residence has been with the mother in Canada since 2009, I concluded that the proper jurisdiction for determination of the dispute was Ontario and granted the requested Order on September 23, 2015 to return child to custodial parent with primary physical custody.

[4] The Respondent did not file an Answer or Reply to the Applicant’s proceedings and refused to return one child.

[5] On October 16, 2015, the Respondent obtained a preliminary injunction to the operation of the September 23, 2015 Order. The preliminary injunction was granted by Commissioner Kim M. Luhn who recommended that the UCCJEA is applicable to foreign countries`` (Canada is not a party to UCCJEA) and “this court exercises emergency jurisdiction”. Based on the non-appearance of the Applicant (petitioner) she was noted in default in the proceedings. Sole legal and physical custody was awarded to the Respondent.

[6] By Amended Recommendation dated October 16, 2015, Commissioner Luhn recommended as follows: “The UCCJEA is applicable to foreign countries, and the Utah court has exclusive and continuing jurisdiction under Utah Code Ann. Section 75B-12-202 and does not decline to exercise it under 78B-13-207. Thus Canada has no jurisdiction over child custody issues in this case”.

[7] I respectfully disagree with the recommendations made by Commissioner Luhn. I note physical custody of the child was awarded to the mother and it was noted that the mother and the child were to reside in Canada by the terms of Justice Quinn’s December 14, 2009 Order. I further note that the child has been habitually resident in Canada from December 2009 to the date the child was removed from Canada in September 2015. As such, pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, and several decisions of the Supreme Court of Canada (Thompson v. Thompson 1994 26 (SCC), [1994] 3 SCR 551 and W.(V.) v. S.(D.), 1996 192 (SCC), [1996] 2 S.C.R. 108), pending exceptional circumstances and despite Article 4., Canada has jurisdiction over the issues in this case.

[8] As a result of the Commissioners’ Amended Recommendations the child has not been returned to her mother in Canada.

[9] The Applicant appeared by way of a Rule 39 appearance on December 9, 2015. The Respondent did not attend nor did he file any materials. The Rule 39 Clerk endorsement noted that the Applicant was filing Form 23C Affidavit for Uncontested Trial.

[10] The Form 23C Affidavit for Uncontested Trial has been received and reviewed by me.

[11] Despite my finding that this court has jurisdiction, I cannot grant Judgment by way of an Uncontested Trial as the Respondent has not attorned to the jurisdiction and the Application was not served in accordance with the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents which is required in family matters (see decision of Justice Gray, Pittman v. Mol, 2014 ONSC 2551). As such the hearing to determine the Form 23C Affidavit for Uncontested Trial is adjourned to require service of the materials in accordance with the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents.

Justice S.J. Woodley

Released: December 11, 2015