CITATION: Morey v Bisson, 2016 ONSC 7252

COURT FILE NO.: FC-16-272

DATE: 2016/11/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy Marilyn Morey, Applicant

AND

Stephane Antoine Bisson, Respondent

BEFORE: Justice Marc R. Labrosse

COUNSEL: John Allan, Counsel, for the Applicant

Ronald Paquette, Counsel, for the Respondent

HEARD: October 11, 2016

ENDORSEMENT

Introduction

[1] The Respondent Father brings this Motion for Summary Decision on a legal issue to dismiss the Application by the Applicant Maternal Aunt for custody, access, child support and for the appointment of the Children’s Lawyer on the basis that the Courts of the Province of Ontario have no jurisdiction over the matter.

[2] The Applicant states that this Court should assume jurisdiction pursuant to subsection 22(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C.1 (the “CLRA”) despite the fact that the children are habitually residents in the province of Quebec. The Applicant goes on to state that where jurisdiction is found to exist, the second step should be an inquiry on the concept of forum conveniens.

[3] The Respondent’s motion was filed in the French language as he is unilingual francophone. The Application was filed in English as the Applicant is unilingual anglophone. At the hearing of the Motion, the Respondent argued the matter in English. I have therefore decided to issue this Endorsement in English. The Respondent is entitled to French translation of this Endorsement, if requested, pursuant to section 126 of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).

[4] For the reasons set out herein, I conclude that the Application should be dismissed. The evidence establishes that the children are habitually residents of the Province of Quebec. This was conceded by the Applicant. Further, I have concluded that it would not be appropriate for me to assume jurisdiction pursuant to subsection 22(1)(b) of the CLRA. Finally, even if I had assumed the jurisdiction, the forum conveniens analysis calls for any proposed custody & related litigation to be conducted in the Province of Quebec where the children are habitually residents and before the Courts of the Province of Quebec who have assumed jurisdiction over these children in past proceedings.

Factual Background

[5] The Respondent is the biological father of Maika Bisson, born August 26, 2004 and Jacob Bisson, born October 10, 2007.

[6] On May 5, 2008, the mother Terri-Lyn Morey was awarded sole custody of the children by Order of Justice Ginette Piché of the Cour supérieure du Québec and the Respondent had access on alternating weekends.

[7] On October 29, 2010, the parties consented to an order amending the terms of access as the mother resided in Gatineau, Québec and the Respondent in Saint-Hyacinthe, Québec.

[8] The Respondent states that his relationship with the mother was difficult to the point that he stopped seeing the children as of February 13, 2011.

[9] The Applicant’s evidence is that in February 2015, the mother was hospitalized for health reasons. The Applicant then relocated to the mother’s home in Gatineau to reside with the children on a full-time basis until June 2015. Thereafter, the children moved in with the Applicant in her home in Ottawa. They would have attended school in Ottawa from September 2015 to November 2015 while residing with the Applicant.

[10] In or about November 2015, the children returned to live with their mother in Gatineau and then returned to Ottawa to reside with the Applicant in January 2016. On January 18, 2016, the Youth protection (Centres jeunesse de l’Outaouais) confirmed in writing their approval that the children be entrusted to the care of the Applicant.

[11] The Respondent Father became aware of the mother’s illness on January 22, 2016 and had access with the children from January 28, 2016 to January 31, 2016.

[12] The Respondent states that he came to an agreement with the mother and the Centres jeunesse de l’Outaouais in early February 2016 that the children would be placed in his care.

[13] This Application was commenced on February 5, 2016 while the children were residing in Ottawa with the Applicant.

[14] On February 8, 2016, the Centres jeunesse de l’Outaouais wrote to the Respondent confirming that there had been an oral agreement between the mother and the Applicant for the children to reside with the Applicant. In the letter, the Centres jeunesse de l’Outaouais confirmed that they did not place the children with the Applicant and that they expected both the Applicant and the Respondent to collaborate to determine what was in the best interests of the children.

[15] On February 11, 2016, the Centres jeunesse de l’Outaouais wrote to the Respondent confirming that it did not object to the Respondent having the children under his care. Further, on February 11, 2016, Caroline Groulx from the Centres jeunesse de l’Outaouais signed a statutory declaration confirming that:

(a) the mother was no longer able to care for the children;

(b) the Respondent had been assessed and that there were no protection concerns raised about the Respondent and that he was able to care for the children; and

(c) the responsibility to care for children belongs firstly to the parents.

[16] On February 19, 2016, the Respondent obtained a judgment from the Cour supérieure du Québec in Saint-Hyacinthe granting him custody of the children. There is conflicting evidence about the Applicant’s participation in the proceedings which transpired in the Cour supérieure du Québec. The Applicant states that she was not properly heard by the Court in Saint-Hyacinthe and that Respondent states that she did make representation and filed documents in support of her position.

[17] The Respondent came to get the children on February 20, 2016 and they have resided with him in Saint-Hyacinthe since that time. They have attended school in Saint-Hyacinthe since February 22, 2016.

[18] The evidence of the hearing before the Cour supérieure du Québec (Chambre de la famille) in Saint-Hyacinthe demonstrates that the mother filed documents setting out her position that the Cour supérieure du Québec did not have jurisdiction to deal with the Respondent’s custody application and that the proper forum was in Ontario. The record shows that the Applicant was also present.

[19] The February 19, 2016 judgment was rendered orally and provided for the following:

(a) it was an interim decision in effect until March 18, 2016;

(b) custody of the children was awarded to the Respondent Father;

(c) the Respondent was to bring the children to Gatineau every weekend to see the mother and at any other moment depending on the mother’s health;

(d) the payment of child support by the Respondent was suspended; and

(e) the Applicant undertook to avoid conflict with the Father and was to avoid visiting the mother when the Father and the children were present.

[20] On March 18, 2016, the February 19, 2016 Temporary Order was extented to April 28, 2016.

[21] On March 21, 2016, the mother passed away.

[22] On April 28, 2016, the Respondent Father’s custody application was struck. No further evidence was provided as to the reasons for striking the application.

Position of the Parties

[23] The Respondent moves pursuant to Rule 16(8) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”). This Rule states that where the only genuine issue is a question of law, the Court shall decide the issue and make a final order. The Repondent also relies on Rule 16(12) which allows the Court to dismiss or suspend a case because the Court has no jurisdiction over it. As both parties filed affidavits in support of their respective positions, FLR Rule 16(13) does not apply.

[24] The Respondent relies on the factors set out in subsection 22(1)(b) of the CLRA and states that the evidence clearly establishes that these factors are not met and that consequently, this Court should not exercise its jurisdiction allowing this Application to proceed to an order for custody of these children.

[25] The Applicant conceeds that the evidence establishes that the children are habitually residents in the Province of Quebec. However, the Applicant relies upon subsection 22(1)(b) of the CLRA and states that all factors are met to allow this Court to exercise its jurisdiction. Further, the Applicant relies on the factors relevant to the real and substantial connection inquiry set out by the Ontario Court of Appeal in Jasen v. Karassik, 2009 ONCA 245 at para 18 in support of her position that she has met the “real and substantial connection” test which allows this Court to exercise its jurisdiction over these children.

[26] The Applicant goes on to state that where jurisdiction is assumed, the second step should be an inquiry on the concept of forum conveniens and the Applicant relies on Kasprzyk v. Burks 2005 2062 (ON SC), [2005] OJ No. 289 for the factors to be considered under such an analysis.

Analysis

[27] When I consider both the provisions of subsection 22(1)(b) of the CLRA and the factors relevant to the real and substantial connection inquiry set out by the Court of Appeal in Jasen v. Karassik, I come to the conclusion this is not a situation where the Ontario Superior Court should exercise its jurisdiction to make an order for custody to these two children for the following reasons:

(a) Custody, access and support issues involving these two children have been governed by orders of the Cour supérieur du Québec since May 2008; and

(b) the decision by the mother to enter into a verbal agreement with the Applicant for the Applicant to assume the care of the children was invalid as it did not take into consideration the rights of the Respondent and of the children to properly determine what was in the best interests of the children. The mother should have moved to vary the existing order of October 29, 2010.

[28] While I do not agree with the Respondent’s decision to stop seeing the children as of February 2011 due to the conflicts with the mother, that decision did not terminate the Respondent’s rights as a biological parent to seek custody of the children upon the mother no longer being able to care for the children.

[29] In the face of objections by the mother and in the presence of the Applicant, the Cour Supérieure du Quebec assumed jurisdiction and issued temporary orders granting custody of the children to the Respondent. Those temporary orders were not appealed and remained valid.

[30] Upon the death of the mother, the ongoing custody, access and support litigation between the mother and the Respondent came to an end and likely for this reason the matter was struck. As the Respondent is the only parent, there is no ongoing custody dispute. If the Applicant would want to seek custody of the children, such an application would have to be brought before the courts of the Province of Quebec.

[31] When considering the specific criteria under subsection 22(1)(b) of the CLRA, I am not satisfied that there is substantial evidence concerning the best interest of the children in Ontario. To the contrary, the children have always had their habitual residence in the Province of Quebec except for their brief stays with the Applicant. The mother’s verbal agreement to place the children with the Applicant did not consider the rights of the Respondent. The Centres jeunesse de l’Outaouais assessed the Respondent and determined that he is able to parent the children. There is insufficient evidence to allow me to conclude that the best interests of the children lie in Ontario. To the contrary, the evidence of the Centres jeunesse de l’Outaouais supports that they should be in the care of the Respondent.

[32] Other than having short-term stays in Ontario with the Applicant while the mother was too sick to care for them, I conclude that the children have no real and substantial connection with Ontario and that it is in their best interest for custody and access to be determined in the Province of Quebec.

[33] Further, if I am wrong in my view that the Ontario Courts do not have jurisdiction over this matter, I am of the view that Quebec is clearly the most appropriate forum to determine the issues of custody and access which affect these children. In coming to this conclusion, I have considered the following list of factors set out by the Court of Appeal in Muscutt v. Courcelles 2002 44957 at para 41:

(a) the location of the majority of the parties;

(b) the location of key witnesses and evidence;

(c) contractual provisions that specify applicable law or accord jurisdiction;

(d) the avoidance of a multiplicity of proceedings;

(e) geographical factors suggesting the natural forum; and

(f) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic Court.

[34] In analyzing these factors and their applicability to the present case, I make the following findings:

(i) the Respondent and the children currently reside in Saint Hyacinthe in the Province of Quebec and they have resided in the Province of Quebec most of their lives;

(ii) while I do not have evidence of the location of most of the relevant witnesses for an eventual custody dispute, there is no evidence that these witnesses reside in the Province of Ontario. The key witnesses in this case would include the Applicant, the Respondent and the children, likely represented by the children’s lawyer or equivalent in Quebec. If the Office of Children’s Lawyer in Ontario were appointed, this person would have to travel to Saint-Hyacinthe to meet with the children, Respondent and collaterals. Alternatively, an assessment may have to be done by a bilingual assessor. The practicalities are that it would make more sense to appoint someone residing in the Province of Quebec. There would also be evidence of the Centres de jeunesse witnesses who reside in the Province of Quebec. I acknowledge that travel time from Ottawa to Saint Hyacinthe is not insurmountable and some witnesses may actually reside in the Gatineau area which would be closer to Ottawa;

(iii) the issue of multiplicity of proceedings is certainly relevant. The Courts of the Province of Quebec have already assumed jurisdiction over these children. Orders for their custody were previously made between the parents. Further, faced with the objections of the mother and the Applicant, the Cour supérieure du Québec assumed jurisdiction in March 2016. While I can only infer as to the reason for striking the custody order dated February 19, 2016 following the Mother’s death, the ability of the Father to care for the children has already been assessed by the courts in the Province of Quebec. I am of the view that to allow for matters to proceed in Ontario may result in the proceedings in the Province of Quebec being revived which could lead to a multiplicity of proceedings;

(iv) I have no evidence on any deprivation of a juridical advantage for the Respondent if matters were allowed to proceed in Ontario. However, given that the best interests of these children have already been assessed between the parents in the past and earlier this year in favour of the Respondent in the Province of Quebec, I see no reason why the assessment of the best interests of these children should now be done according the laws of the Province of Ontario.

[35] After applying these factors from Muscutt, I am left with the only conclusion that any custody and access proceedings involving these children would be more conveniently held in the Province of Quebec where the children and Respondent have resided most of their lives and before the Courts of the Province of Quebec who have already assumed jurisdiction over these children.

Conclusion

[36] For the reasons set out above, the Respondent’s Motion for Summary Decision pursuant to Rule 16(12) of the FLR is granted and the Application is dismissed as the Courts of the Province of Ontario have no jurisdiction over the custody and access issues surrounding these children.

Costs

[37] If the parties are unable to agree as to costs, the Respondent will have 15 days to provide written costs submissions of a maximum of 3 pages in length excluding attachments. The Applicant will then have 15 days to respond, subject to the same limitations for length of the written submissions.

Justice Marc R. Labrosse

Date: 2016/11/21

CITATION: Morey v Bisson, 2016 ONSC 7252

COURT FILE NO.: FC-16-272

DATE: 2016/11/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Tammy Marilyn Morey, Applicant

AND

Stephane Antoine Bisson, Respondent

BEFORE: Justice Marc R. Labrosse

COUNSEL: John Allan, Counsel, for the Applicant

Ronald Paquette, Counsel, for the Respondent

ENDORSEMENT

Justice Marc R. Labrosse

Released: 2016/11/21