Court File and Parties
COURT FILE NO.: FS-16-284-00 DATE: 2017-01-05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ERNEST WILLIAM BELOW Andrew Feldstein, for the Applicant Applicant
- and -
STACY SHEENE Reesa Heft, for the Respondent Respondent
HEARD: December 23, 2016, at Brampton, Ontario Price J.
Reasons For Order
NATURE OF MOTION
[1] Stacy Sheene, who is a U.S. citizen, moves for custody of the parties’ two young children. Ms. Sheene and the children resided in the State of Florida for most of their lives. In July 2012, a Florida Court made an order granting the children’s father, Ernest Below, specified access, which he exercised until April 2016, when he persuaded Ms. Sheene to move to Ontario with the children, by promising to provide financial assistance that would enable her to settle here. At about the time of her move to Ontario, Ms. Sheene learned that she required surgery for a lump in her breast. When she returned to Florida in May 2016 and in September 2016, for the surgery, she left the children in Ontario in the care of either Mr. Below or his parents. During Ms. Sheene’s absence, Mr. Below informed her that he had a new girlfriend, who was moving into his house with him, and that he was going to cease providing financial support to her. When Ms. Sheene, having no legal status in Canada and no other means of support, informed Mr. Below that she would return to Ontario for the children and then return with them to Florida, Mr. Below obtained a temporary order from the court in Ontario preventing her from removing the children from Canada.
[2] After hearing Ms. Sheene’s motion on an urgent basis before Christmas, and making a temporary and without prejudice order for Christmas access, the court, having reserved its judgment on the remaining issues, must determine whether it has jurisdiction over the issues of custody of and access to the children, and what order should be made regarding their residence.
BACKGROUND FACTS
[3] Mr. Below is a 45 years old self-employed landscaper and a Canadian citizen. Ms. Sheene is a 45 years school teacher and a citizen of the United States. Ms. Sheene is unable to work in Canada, as she has no legal status in this country.
[4] Mr. Below and Ms. Sheene were in a relationship for 3 ½ years, from 2005 to 2009. They met in St. Maarten in 2005. At that time, Ms. Sheene was employed as a flight attendant and was residing in Saudi Arabia. The parties began a long-distance relationship which continued until May 2007, when Mr. Below persuaded Ms. Sheene to come to Canada.
[5] There are two children of the relationship:
a) Joachim Carter Below (“Carter”), who is 8 years old, was born in Ontario on March 1, 2008.
b) Chloe Rain Below, (“Chloe”) who is 7, was born in Florida on September 29, 2009.
[6] Ms. Sheene alleges that in August 2008, when Carter was 5 months old, Mr. Below was violent toward her, and Ms. Sheene fled their home with Carter and went to a Domestic Abuse Centre. After remaining there overnight, they boarded an airplane and returned to Florida. Mr. Below, in his affidavit sworn November 24, 2016, acknowledges that Ms. Sheene “fled” to Florida, and adds that she removed Carter from Ontario without his consent.
[7] Mr. Below travelled to Florida to spend the winter, and the parties resumed co-habitation. Ms. Sheene became pregnant with Chloe, who was born in Florida in September 2009.
[8] Mr. Below acquired a house in Florida, where the parties co-habited for three months. The parties separated in December 2009, and continued living separate and apart under the same roof for two more years, until December 2011. Ms. Sheene states that she remained at Mr. Below’s house in order to continue providing that residence for their two very young children.
[9] Mr. Below returned to Canada, but continued to pay the bills for the Florida house. When he returned to Florida in the winter months, he stayed in the house also. In December 2011, he came to visit for Christmas and, according to Ms. Sheene, was “violent and verbally abusive”, so Ms. Sheene left the house with the children and went to live at her parents’ home in Florida.
[10] Ms. Sheene and the children continued residing with her parents until Ms. Sheene earned her B.A. degree in communications at Florida Gulf Coast University. In February 2012, Mr. Below began a legal proceeding in Florida, by a Petition to determine the paternity of the children. Ms. Sheene filed a response and Counter-Petition for relocation of the children.
[11] On June 29, 2012, the parties, through mediation, came to an agreement, which was filed with the Twentieth Circuit Court, in Charlotte County, near Fort Myers in southwest Florida. (“The Agreement”). The Agreement was incorporated into a Final Judgment of Paternity, by which Justice Schneider of the Circuit Court ordered the following:
- JURISDICTION. The Court has jurisdiction of the subject matter and the parties.
- PATERNITY ESTABLISHED. The Petitioner, Ernest W. Below, is the legal and natural father of, and has a duty to support, Joachim Carter Below, born March 1, 2008, and Chloe Rain Below, born September 29, 2009.
- PATERNITY SETTLEMENT AGREEMENT. The Settlement Agreement executed by and between the parties on June 29, 2012, together with the Amended Parenting Plan attached thereto, and filed with the Court, was entered into freely and voluntarily by the parties after full disclosure. The Court finds that the agreement is in the best interests of the children and therefore the Settlement Agreement is hereby approved and incorporated by reference into this Judgment, and the parties shall comply therewith. [Emphasis added]
[12] The order further provided for Mr. Below to pay child support in the amount of $1,200 per month and an additional $100 per month for health insurance for the children, until all of the children reached the age of 18 and graduated from high school, or became self-supporting. The order further provided for Mr. Below to pay retroactive child support in the amount of $2,400.
[13] The order concluded with the following:
- RESERVATION OF JURISDICTION. The parties are hereby ordered to comply with the terms of the Settlement Agreement and the Court reserves jurisdiction to enforce the provisions thereof. [Emphasis added]
[14] The Agreement provided, among other terms, for the following:
D. THE PARENTING PLAN. The parenting plan is as follows:
1. Summer Parenting Time in Canada for 2012.
(a) Father will have parenting time with both children for a two-week period commencing on or about July 2 and lasting until on or about July 16, 2012 in Canada. Mother shall accompany the children to Canada for this visit. Father shall provide airline tickets for the Mother and the children to travel to his home in Canada for this visit. The Father will arrange for the Mother and children to stay at his parents’ home free of charge for the first week of the visit, and he will rent a cottage on the lake for the second week, at his expense, for her use with the children. The Father will pay the necessities for the Mother and children during this visit. Father will spend time with the children without Mother being present to the extent he desires to do so and it is feasible, but it is understood that the children will spend the nights with the Mother. Father will provide a vehicle for Mother to use while in Canada for the summer visitation period.
2. Summer parenting Time in Canada for 2013.
Father will have the ability to have parenting time for two (2) periods of seven (7) days each in Canada with both children in 2013. (Father shall be responsible for payment of any travel costs associated with this visitation. In the event Mother accompanies the children, because she decides in her sole discretion that this is in the best interests of the children, the Father will provide cost of travel for the Mother as well as separate living accommodations while she remains in Canada during the visitation period similar to that provided for the 2012 summer schedule).
3. Summer parenting Time in Canada for 2014 and Future Years.
The parties contemplate that the Father’s parenting time for 2014 and future years will be increased, but the details are not being addressed at this time. If the parties are unable to agree to an appropriate parenting schedule in the best interest of the children then they will engage in mediation in an attempt to resolve their issues.
4. Father’s Parenting Time in the USA.
For any periods when Father is in the USA and within reasonable proximity to the Mother and children (30 miles or less), the parties will have equal time-sharing with the children on a 4/3, ¾ basis each week. If the Father prefers because of school schedules, he can instead pick the children up each week on Friday afternoon/evening and return them to the Mother Sunday afternoon/evening.
5. Relocation.
Mother has agreed to dismiss her request to relocate with the minor children without prejudice, it being understood that she can seek relocation in the future if she deems this advisable for herself and that it is in the best interest of the children.
[15] The agreement additionally provided for alternate parenting time on Christmas Eve and Christmas day for any periods when Mr. Below was within 30 miles proximity to Ms. Sheene and the children, and for Mr. Below to have parenting time for Father’s Day weekend and his birthday, and for any of the children’s birthdays when he was within 30 miles of where Ms. Sheene and the children were residing.
[16] Although the Agreement does not explicitly grant custody of the children to Ms. Sheene, it implicitly provides that the children will reside primarily with her, in that it provides only specified access to Mr. Below.
[17] After the Agreement was signed, Mr. Below, whose landscape business is dormant during the winter months, rented a house in Florida where he resided for the season. Mr. Below acknowledges that while in Florida, he had generous and liberal access to the children.
[18] Ms. Sheene obtained a B.A. in communications from Florida Gulf University, and a Teaching Certificate. She and the children then went to Orlando Florida, where Ms. Sheene became employed as a substitute teacher for the academic years of 2014/15 and 2015/16. During this period, Carter began studies at a school in their neighbourhood.
[19] In April 2016, as a result of discussions between Mr. Below and Ms. Sheene, in which Mr. Below promised to sponsor Ms. Sheene’s immigration to Canada, and to provide financial assistance to her until she was economically self-sufficient in Ontario, Ms. Sheene returned to Ontario with the children. The precise nature of the parties’ discussions that preceded her return is in dispute.
[20] The day before leaving Florida, Ms. Sheene underwent a mammogram which disclosed a lump in her breast. Her doctors immediately performed a fine needle aspiration biopsy, the results of which she received when she arrived in Canada. The results were inconclusive, but the lump was found to be a fast growing tumour that could be cancerous or benign. Her doctors recommended that she undergo removal of the lump to determine whether it was malignant or benign.
[21] Following Ms. Sheene’s return to Florida and her surgery in May and September 2016, she developed complications from the surgery, which required her to extend her hospitalization. In November, Mr. Below informed her that he was no longer going to support her and that his girlfriend had moved into his house, so Ms. Sheene could no longer reside there. Ms. Sheene had nowhere to reside in Ontario, and was forced to contact a friend, whom she had not spoken to in 7 years, to request temporary lodging. Ms. Sheene is a U.S. citizen, has no status in Canada, and no family or means of support in this country.
[22] Ms. Sheene was unable to return to Canada until about November 25, 2016. On November 20, she e-mailed Mr. Below and informed him that it was her intention to return to pick up their children and return to Florida with them. When Ms. Sheene returned to Canada on November 25, 2015, she learned that earlier the same day, Mr. Below had obtained an order, without notice to her, that prevented her from removing the children from Canada. The court adjourned the balance of Mr. Below’s motion from time to time to December 23, 2016, to enable Ms. Sheene to complete her medical treatment for post-surgical complications (requiring a further 5 days of hospitalization), retain counsel in Ontario, and deliver responding material.
[23] Ms. Sheene states that in August 2016, Mr. Below provided child support in the amount of $1,300 per month, but otherwise terminated his financial support to her.
ISSUES
[24] The court must determine whether it has jurisdiction to make an order respecting custody of, or access to, the children. If it does have jurisdiction, the court must determine what order as to custody and access would be in the children’s best interests.
PARTIES’ POSITIONS
[25] Mr. Below argues that the children have been habitually resident in Ontario since April 2016, when Ms. Sheene entered the Province with a settled intention to remain here with the children. He submits that the children are thriving in his care and that it is in their best interests that he have custody of them and that they have their primary residence with him.
[26] Ms. Sheene argues that the children are not habitually resident in Ontario. She states that “it would be impossible for me to form a ‘settled’ intention to stay here when I was lured to Canada with false promises.” While acknowledging that the children continue to thrive in Ontario, she submits that they have their most substantial connection with the United States, that she has been their primary caregiver and is best able to meet their needs, and that it will be effectively impossible for them to maintain a relationship with both parents if they remain in Ontario, where she is unable to work or continue residing.
ANALYSIS AND EVIDENCE
a) Does this court have jurisdiction in respect of custody of, and access to, the children?
Legislative framework
[27] The court’s jurisdiction in matters of custody of or access to a child is governed by the Children’s Law Reform Act (“CLRA”). It provides, in part:
Jurisdiction
22.(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(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,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has 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.
Habitual residence
(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.
Serious harm to child
- Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on a balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally entitled to custody of the child,
(ii) the child is returned to the custody of the person legally entitled to custody of the child, or
(iii) the child is removed from Ontario.
Declining Jurisdiction
- A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
Interim powers of court
- 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:
Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
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 condition as the court considers appropriate.
- 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.
Superseding order, material change in circumstances
42.(1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,
(iii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iv) that the child has a real and substantial connection with Ontario, and
(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Declining jurisdiction
(2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
Jurisdiction of Superior Court of Justice
- This Part does not deprive the Superior Court of Justice of its parens patriae jurisdiction.
Jurisprudence
[28] The court must determine the preliminary question of the children’s “habitual residence” under s. 22 before embarking on the inquiry as to whether Ontario was the appropriate jurisdiction for the hearing of the issues raised in an application for custody. While it is generally necessary, if not desirable, to identify one jurisdiction with sole authority to determine questions of custody of and access to children, a child can be found to have two concurrent habitual residences pursuant to s. 22(2)(b) of the CLRA (See Riley v. Wildhaber, 2011 ONSC 3456). The decision depends on the particular facts of the case. In Riley v. Wildhaber, the Ontario Divisional Court held that “where the child was the subject of a joint custody consent order exercised in two provinces for the last seven years, it was not appropriate to use the child’s last shared residence as the sole habitual residence. However, Ontario courts have the ability to decline to exercise jurisdiction where another jurisdiction would be the more appropriate forum.”
[29] The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
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.
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 all of the other requirements of the section are met.
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 one of the specified circumstances set out in the Act.
The court may exercise its parens patriae jurisdiction, which specifically preserved by s. 69 of the CLRA. (Dovigi v. Razi, 2012 ONCA 361)
[30] In Ghaeinizadeh v. Ku De Ta Capital Inc., 2013 ONCA 2, the Court of Appeal held that “the minimum criteria to establish jurisdiction simpliciter for the purposes of an urgent, summary motion were met where the child was living in Ontario at the time of the application; the child had been living in Ontario with his parents for many months; there was no application for custody or access made elsewhere at the time of the motion; there was no extra-provincial order relating to custody or access recognized in Ontario; the child having lived for several months in Ontario and being enrolled in preschool had a real and substantial connection with Ontario; and on the balance of convenience, it was in the child’s best interest for jurisdiction to be exercised in Ontario.”
[31] In Turner v. Viau (2002), the Court of Appeal agreed with the following statement from Obregon v. Obregon (1984): “under s. 22(1)(b) [of the Children’s Law Reform Act] a court may exercise jurisdiction over a child not habitually residing in Ontario at the time of the commencement of the application only if all of the six criteria in that section have been satisfied.”
[32] In Brooks v. Brooks (1998), the Court of Appeal held that s. 40 of the CLRA “was clearly intended to permit the court to make interim custody orders even in circumstances where the court has declined jurisdiction under s. 25 or 42, or to conclude that it did not have jurisdiction in light of the provisions of s. 22.”
Applying the legal principles to the facts
[33] In the present case, there are many facts that are disputed and, in the absence of cross-examination or verification by a disinterested third party, should not form the basis for the court’s determination. That said, there are sufficient facts that are not in dispute or that can reasonably be inferred from the evidence of both parties, to enable the court to make the necessary determination as to its jurisdiction over the issues of custody of and access to the children.
(i) Were the children habitually resident in Ontario?
[34] I begin with the determination as to the children’s habitual residence. Pursuant to s. 22(2) of the CLRA, 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.
[35] Justice Kruzik stated in A.H. v. F.S.H., 2013 ONSC 1308, in 2013, “It is…this court’s task is to determine the intention of the parents as of the last time that their intentions were shared.” For the reasons that follow, I find that there was no shared understanding between Mr. Below and Ms. Sheene in April 2016 from which it can be concluded that they had a settled intention to relocate the children, unconditionally, to Canada either permanently or, for a specific purpose, temporarily. I find that the last time the parties’ intentions were shared was when they consented to the Order of Justice Schreiber on July 23, 2012, incorporating the Amended Parenting Plan they had signed the previous month.
[36] I further find that Ms. Sheene did not acquiesce in the children being in the sole care of Mr. Below when she left for her surgery in May 2016 but rather, that she left them in the care of Mr. Below’s parents. It cannot reasonably be said that the children are habitually resident in Ontario, within the meaning of s. 22(1)(a) of the CLRA by reason of the temporary arrangements Ms. Sheene made for their care while she was undergoing emergency medical treatments in Florida.
The Order made in Florida in July 2012
[37] I find that the children’s habitual residence, as defined in s. 22(2)(b), was the State of Florida at the time when Mr. Below commenced the application, and is still the State of Florida now. Despite the fact that the children lived in Ontario for eight months in 2016, I find that the parties had no shared understanding, or settled intention, specific or unconditional enough to supplant the one that is reflected in their mediated agreement dated June 29, 2012, where the parties agreed that they would live separate and apart, with the children continuing to reside with Ms. Sheene in Florida. As noted above, that agreement was later incorporated into the order made on July 23, 2012, by the Honourable Lee Schreiber, Circuit Judge of the of the Twentieth Judicial Circuit in and for Charlotte County, Florida. As noted above, that Order provided, in paragraph 6:
The parties are hereby ordered to comply with the terms of the Settlement Agreement and the Court reserves jurisdiction to enforce the provisions thereof.
[38] The Settlement Agreement, with Amended Parenting Plan, implicitly provided that the children would be principally resident with Ms. Sheene, subject to the access by Mr. Below that was specified in the Parenting Plan.
[39] It is not disputed that at the time Mr. Below made the present application, the parties were still living separate and apart. I find, on a balance of probabilities, that Ms. Sheene left the children in the care of Mr. Below’s parents. The children were not residing with Mr. Below with the “consent and acquiescence” of Ms. Sheene. It is therefore my finding that Florida does, and should, maintain jurisdiction over matters relating to the parties’ children.
Were the parties living together in April 2016?
[40] It is clear from the evidence of both parties that a disagreement existed between them soon after Ms. Sheene arrived in Ontario with the children. Ms. Sheene alleges that Mr. Below inveigled her into returning to Ontario by promising to finance a business that they discussed starting, and by promising to sponsor her as a resident and cover her expenses until the business became viable. Mr. Below denies that he deceived Ms. Sheene but acknowledges that he promised financial assistance until she was able to secure employment.
[41] The disagreement centered on two issues, namely, what financial assistance Mr. Below would provide to Ms. Sheene if she returned to Ontario, and what the relationship between the parties would be.
[42] With regard to the financial support that Mr. Below allegedly promised to Ms. Sheene if she returned, there is no independent evidence of this promise that is contemporaneous with Ms. Sheene’s return to Ontario in April 2016. The evidence from six months later discloses that, at least by then, serious differences existed between the parties as to what the arrangement had been, or was.
[43] Ms. Sheene states that in April 2016, Mr. Below induced her to return to Canada by promising to finance her in a business they would commence, and by promising to sponsor her as a spouse for immigration purposes. He promised that he would pay her $1,000 per week until their business was viable. On this basis, Ms. Sheene agreed to move back to Canada in order to secure more economically advantageous circumstances for the children.
[44] Mr. Below states that during Ms. Sheene’s “brief employment” as a teacher in Orlando and because she “had not worked consistently for years”, she had acquired a great deal of debt and turned to him for assistance, whereupon they decided to rekindle their relationship. He states that he agreed to assist financially “for a short period of time” to enable Ms. Sheene to move to Ontario with the children, and until she was able to find employment and stabilize her life here. He states that Ms. Sheene asked him to help her move to Canada with the children so that they could provide a better life for them here and attempt to raise them together.
[45] In Mr. Below’s e-mail dated October 12, 2016, he states:
After reading your reply to my email I realized that we have a big problem. I told u that the money in Florida would run out and that would be it. What I had said was that I will pay for the groceries and the bills for the house and stuff the kids need. U will have to borrow money from YOUR family for your bills. I have been giving u the support payment to help u I pay for the needs out of my pocket. I will not make any payments to u once the money in Florida runs out. I didn’t need to give that money…I told u to leave ur car their (sic) but u wouldn’t. There was 16,000 U.S. dollars in that account I haven’t touched it. When it is gone u will have to make other arrangements for ur bills. I have helped u financially for many years. I can’t anymore. If u think u can talk to me call me if not I understand. [Emphasis added]
[46] In an earlier e-mail dated October 5, 2016, Mr. Below had written:
Moving forward, I will continue to pay you the $1300 US ($1715 CDN) until the account runs out. I will continue to pay for all of the groceries but will require receipts every time… I will continue to pay your cell phone and gas until you have a stable full time job (after immigration), which you will need to get obtain in a reasonable time frame.
Once the house in Shelburne (sic) sells, I will give you 25% of my share of the profits. At that time, you would find your won place (and hopefully have a full-time position)… Until then, if you need extra money on top of what I have stated above, you will need to borrow that from your side and pay them back once you receive the 25%.
As this is not a legal document; once you obtain Canadian Citizenship we will need to have a new agreement drawn up by a lawyer that will state you cannot move back to the US with the kids, everything stated above is only if you are to remain in Canada and continue with your immigration. Any legal fees that will have been paid for your immigration will be deducted from the 25% and we will split the cost of the parenting plan documents after immigration. Let me know what you think.
[47] Ms. Sheene explains that the $16,000 (she says it was $15,000) that Mr. Below refers to above was an account that he opened in Florida, from which he transferred his monthly child support of $1,300 U.S. to her. She notes that she never had access to the $16,000 account from which the transfers were made. Neither party has offered an explanation as to the source from which Mr. Below obtained these funds or the circumstances in which he set up the account.
[48] I find that there was no meeting of the minds between Mr. Below and Ms. Sheene in October 2016, if there ever was, as to the support he would provide to her if she came to Ontario. Ms. Sheene appears to have interpreted Mr. Below’s inducements to her as an undertaking to provide support until she became established in Ontario; Mr. Below says that they consisted of an offer to continue the child support payments which he was required to make pursuant to the Florida Order until the $16,000 fund was depleted, at which point he would terminate any financial support to her.
[49] With regard to the parties’ understanding as to what their relationship would be if Ms. Sheened returned, Ms. Sheene understood that the quid pro quo for her returning was simply that she and the children would be residing in closer proximity to Mr. Below, enabling him to exercise access to the children more easily. Ms. Sheene later learned that Mr. Below demanded that they resume their romantic relationship.
[50] Mr. Below’s position differs from Ms. Sheene’s. Mr. Below states, “It was always our understanding that the children would be permanently moving to Canada, notwithstanding the status of our romantic relationship.” He attached a series of e-mails that purported to support his statement. Based on the e-mails referred to above, from October 2016, I find no evidence that it was “always” the parties’ understanding that the children would be permanently moving to Canada. As noted above, there was no shared understanding between Mr. Below and Ms. Sheene as to what financial assistance Mr. Below would provide to Ms. Sheene and, apart from Mr. Below’s self-serving and after-the-fact evidence, there is no evidence of an agreement upon which her permanent residence in Ontario, or that of the children, depended.
[51] Mr. Below states, “Stacy had even discussed her intention with respect to immigration in text messages which she had sent to my sister.” He attaches an excerpt of a text message which states, on its face “To: Stacy Sheene” and contains, for one excerpt, the date August 18. The text states:
I want to stay here with the kids. I want to be able to work and have a life/place of my own. He just wants things to stay as they are. He thinks that this is just that I am mad and that I will change my mind and we will continue to live here together.
[52] While the text messages that Mr. Below has attached are incomplete and do not provide sufficient content to provide context, it is clear, even from the excepts that he has provided, that there were fundamental differences between Ms. Sheene and Mr. Below as to what the arrangements between them were to be. Those differences had significant implications as to Ms. Sheen’s ability or intention to remain in Canada, in that in the absence of the co-habitation of the parties, which Ms. Sheene was not agreeing to, his sponsorship of her as a spouse was not possible.
[53] Mr. Below states that at Ms. Sheene’s request, he covered the fees to commence an immigration application on various occasions. He attaches, in support of his statement, a copy of invoices from immigration lawyers from August 23, 2016, for a “consultation for Stacy Sheene”, and September 13, 2016, for “initial preparation of Spousal Sponsorship & Work Permit”. There is no evidence that Mr. Below applied to sponsor Ms. Sheene or as to how he proposed to sponsor her as a spouse if they were not, in fact, spouses.
Ms. Sheene’s medical condition and arrangements made for the children’s care
[54] Mr. Below characterizes Ms. Sheene’s medical condition from April 2016, when she first came to Ontario, to November 2016, when she was last hospitalized in Florida, in the following way:
Prior to moving to Ontario, Stacy had undergone a biopsy for a suspicious lump in her breast. The results confirmed that the lump was benign and that there were no issues pertaining to same.
Stacy moved to Ontario upon confirmation of same but left on May 30, 2016, as she wanted further confirmation about the medical results pertaining to the biopsy. She had returned back to Ontario with a clean bill of health on June 23, 2016, with the intention of continuing with the immigration process. She had then unexpectedly left again in September 2016 to undergo surgery. I was advised by Stacy that she would be undergoing a mastectomy (in exchange for implants/breast reconstruction) as she believed she had an increased chance of developing breast cancer and would also be getting liposuction. I am not certain as to the full details of this surgery as she has refused to provide said details.
I was surprised upon receiving this information and could not understand the need for said surgery as the doctors had seemed to indicate that the previous lump found was not cancerous. I also did not understand the need for liposuction. It is my position that this was an elective surgery and not one required.
[55] In April, Ms. Sheene resided at Mr. Below’s home and enrolled the children in school. In May, she returned to Florida to meet with an oncologist and undergo testing. At that time, she left the children with Mr. Below’s parents. She made the necessary arrangements with the children’s school for the school bus to do all pick-ups and drop-offs of the children at Mr. Below’s parents’ home.
[56] The children have since been enrolled at Palgrave Public School in Caledon, where they attend from Monday to Friday, from 9:00 a.m. to 3:30 p.m. Mr. Below states that his parents often assist in picking the children up from school and that his mother is also “greatly involved in assisting with the care of the children.” He states that his girlfriend, Marianna Cancelliere, has also been assisting with the care of the children. Mr. Below notes that the children attend the same school as their cousin, with whom they have a good relationship. They also regularly visit Mr. Below’s parents and siblings, who live within 2 minutes of each other.
[57] In Florida, Ms. Sheene’s oncologist informed her that she had a 34% chance of developing breast cancer, which was considered a high risk. She therefore returned to Florida on September 17, 2016, where she underwent a single surgery combining a double mastectomy and reconstruction. Ms. Sheene’s hospital record from Florida from September 2016 notes, under her Diagnosis Code, “Description: Family history of malign”.
[58] Again, she left the children with Mr. Below’s parents during her absence, which she said she did in order to insulate them from her health issues. Following the mastectomy, Ms. Sheene was informed that the lump was benign.
[59] Ms. Sheene states that her intention, when returning to the United States for her surgery in September, was to recover the children after her surgery and then return to Florida with them, as it was evident to her by then that “Canada was not going to work out”.
[60] In support of his position that the parties agreed, in May 2016, that the children would be in his care in Ontario, Mr. Below tendered the school enrollment forms for the children, which give Mr. Below’s address for the children. The forms are dated April 18, 2016, two days after Ms. Sheene and the children arrived in Ontario. At that time, Ms. Sheene was residing at Mr. Below’s house, which was therefore the only address she could provide to the children’s school.
[61] The radiological (bone densitometry) examination of Ms. Sheene was performed on April 13, 1016, and the report, which Mr. Below attached to his affidavit dated November 28, 2016, was given to her the day before she left Florida. Ms. Sheene received the results of the biopsy after she arrived in Ontario. The results were inconclusive but because the lump was determined to be a fast growing tumour, which might be cancerous, she was told that she needed to undergo surgery to remove the lump, to determine whether it was benign or malignant.
[62] Ms. Sheene returned to Florida in May 2016, to meet with an oncologist and undergo further tests, including genetic testing. Her Florida hospital record discloses that she was admitted on May 12, 2016. When Ms. Sheened left Ontario for her hospitalization in May, she left the children with Mr. Below’s parents. Therefore, the enrolment forms dated a month earlier, on April 18, 2016, do not assist the court in determining whether Ms. Sheene left the children with Mr. Below or his parents after she left for Florida the following month.
[63] Mr. Below has tendered an affidavit from his sister, Lori Chiarot, who states that, while Ms. Sheene underwent surgery, she left the children in Mr. Below’s care. Ms. Chiarot does not state that she had personal knowledge of the arrangements made for the children’s residence, nor identify the source of her information or the basis of her belief. The best evidence on the issue, apart from the parties themselves, would logically come from Mr. Below’s parents themselves. Mr. Below is the person with the best access to them and he did not furnish an affidavit from them. I draw an adverse inference from this, and conclude that their evidence, if given, would not be favourable to Mr. Below.
[64] Ms. Sheene states that she made arrangements with the school for Mr. Below’s parents to pick the children up and drop them off at the school. Mr. Below acknowledges in his Affidavit sworn November 24, 2016, that his mother picks the children up from school on a regular basis and helps take care of them while he is at work. Both he and Ms. Chiarot acknowledge that he relied on his parents for their assistance in caring for the children and continues to do so.
[65] Based on the foregoing, I find that the children were habitually resident in Florida when the parties last had a shared understanding as to where the children would reside. I find that the parties had not resumed cohabitation in April 2016, when Ms. Sheene returned to Ontario. Further, I do not find that Ms. Sheene either agreed or acquiesced in the children being in Mr. Below’s sole care when she left in May 2016, or in September 2016, for her emergency medical treatments in Florida.
(ii) Are all of the requirements of s. 22(1)(b) met?
[66] As noted above, this court may assume jurisdiction pursuant to s. 22(1)(b) where the following requirements are met:
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,
iv. that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
v. that the child has 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.
[67] The children were physically present in Ontario when Mr. Below commenced the application.
[68] Substantial evidence concerning the best interests of the children are available in Ontario, as well as in Florida.
[69] No application for custody or access is pending in Florida, and no extra-provincial order in respect of custody of or access to the children has been recognized by a court in Ontario. However, an order for principal residence of and access to the children was made in Florida in 2012 which should be recognized by this court, especially because it was made with the consent of the parties, arrived at with the advice of lawyers.
[70] While the children have a real and substantial connection with Ontario, they have a greater connection with Florida, where they lived for most of their lives before coming to Ontario in April last year.
[71] On the balance of convenience, it is appropriate for jurisdiction to be exercised in Florida, as Mr. Below is better able, financially and otherwise, to assert his claims in that jurisdiction than Ms. Sheene is in Ontario, where she has no legal status, no ability to obtain employment, and no means of support, other than what she receives from Mr. Below, who says that he is unable to continue providing the financial support she would require to remain here.
[72] Based on the foregoing, I find that the requirement of s. 22(1)(b)(vi) is not met and that the court should not assume jurisdiction based on s. 22(1)(b) of the CLRA.
(iii) Would the children face serious harm if they remain in, or leave, Ontario?
Domestic violence and substance abuse
[73] Each of the parties makes allegations that the children would face harm if they are in the care of the other parent. Each party denies the other’s allegations, and there is conflicting evidence as to whether the allegations are true.
[74] Ms. Sheene alleges that Mr. Below has physically abused her and uses drugs in the presence of the children. She states that upon her arrival in Canada, Mr. Below became controlling and abusive, which she attributes to his use of drugs. On several occasions, she says, Mr. Below physically assaulted her, including an incident when she was pregnant with Carter, when he chased her down basement stairs, pushed her to the ground, grabbed her rubber slipper, and struck her in the face with it, then grabbed her hair and dragged her into another room.
[75] Ms. Sheene states that when she was hospitalized for Carter’s birth in Toronto in March 2008, the Children’s Aid Society attended as a result of a report from her obstetrician/gynecologist, whom she had asked to refer her to a counsellor who could provide treatment to Mr. Below for his drug addiction. She states that the C.A.S. came to her hospital room to inquire whether it was safe for her to return home to Mr. Below with Carter, owing to his drug issues.
[76] Ms. Sheene states that while living in Mr. Below’s home following her return in April 2016, she discovered that Mr. Below was buying drugs and trafficking in cocaine and marijuana. She alleges that he is constantly smoking marijuana from the time he awakens in the morning until bedtime, and that he has rolled joints and smoked them in front of the children. She reported these activities to the Children’s Aid Society, who undertook an investigation, not completed at the time of the hearing on December 23rd.
[77] Mr. Below states that he has not abused drugs. He states:
With respect to [Ms. Sheene’s] email dated November 24, 2016, and attached hereto as Exhibit “L”, I query to the allegations that she makes with respect to illegal activities as I have no idea what she is referring to. She comments with respect to a Waiver which is a document I had required to enter the United States due to the fact that I was charged with possession of marijuana when I was 19 years old. I have since been pardoned. The United States requires this waiver as a pardon is not sufficient for their purposes when crossing the border. I am not aware of any other charges or illegal activity.
[78] Ms. Sheene states, in reply, that in 2015, Mr. Below attended the Amen Clinic in Virginia for cocaine addiction and has been in rehabilitation multiple times, both as an in-patient and as an out-patient, although she is unable to furnish the details.
[79] Mr. Below and his sister, Lori Chiarot, alleges that Ms. Sheene consumes alcohol to excess. Mr. Below alleges that he has observed Ms. Sheene operating a car with open liquor in the car while the children were in the car. Ms. Chiarot states that during Ms. Sheene’s visit to Canada, she informed Ms. Chiarot that she had a daily ritual of consuming three beers in rapid succession and then consuming voldka for the balance of the day. Ms. Chiarot asserts that she observed Ms. Sheene consuming alcohol in this manner during a visit in March 2016 and following her return in April 2016. Ms. Sheene denies
[80] Ms. Sheene alleges that Mr. Below is unable to care properly for the children. In particular, she states that the children’s school notified her that after she left for Florida in September, both children were absent from school for 9 days in November and an additional 2 days in December. Ms. Sheene also expresses concern about Mr. Below’s drug use and trafficking, and the fact that he permits the children to swear in his presence, play a violent video game, and skate without a helmet in a skate park that Mr. Below built in his backyard. He also removed from the children’s I-Pad a “Facetime” application that Ms. Sheene used to speak with the children, and prevented them from speaking freely with her. Mr. Below responded to this allegation by stating that he had never permitted the children to have the Face Time application on their I Pads.
Limited interest in exercising access
[81] Mr. Below states that, when he visited Florida after the Charlotte County Circuit Court made its order on June 29, 2012, “The children continued to visit me and my family in Canada and I would regularly visit the children in Florida.” Ms. Sheene states that after Mr. Below exercised access for two or three days, he regularly called and insisted that she pick the children up as he had “had enough”.
Unstable residence
[82] Mr. Below states that during the time the children resided in Florida with their mother, she took on numerous jobs, which she would often terminate prior to beginning them, and would regularly move the children from school to school and from residence to residence. He states that it is his understanding that Carter, who is in Grade 3, was in five different schools since kindergarten. Ms. Sheene denies that she moved around a lot or that Mr. Below paid for her moves. She states that she left her parents’ home to take a job teaching and that at all material times, the children had a stable home with her.
[83] In Mr. Below’s e-mail to Ms. Sheene dated October 5, 2016, which he attaches to his affidavit sworn November 24, 2016, he says that he helped Ms. Sheene with only three moves, once from the residence they shared in Punta Gorda (Charlotte County) Florida to her parents’ home, once from her parents’ home to Orlando, and once from Orlando to Ontario. I do not find this to be inconsistent with Ms. Sheene’s account of her moves, or that it discloses an erratic history or residence or employment.
Children’s well-being when with each parent
[84] Mr. Below acknowledges, in his affidavit sworn November 24, 2016, that the children have been in the care of their mother from when they were born until April 16, 2016. He states that they were in the care of both parents from April 16 to May 30, 2016, in his care alone from May 30 to June 23, in the care of both parents from June 23 to September 17, 2016, and in his care from September 2016 to the date of the hearing on December 23rd.
[85] Ms. Sheene states that the children were always happy, healthy and thriving in Florida and have a wonderful relationship with her mother and step father as well as her siblings. While Mr. Below makes a vague assertion that the children told him that they were unhappy in Florida and never saw their maternal grandparents, there is no substantial evidence contradicting Ms. Sheene’s statement that the children were thriving and happy when in her care.
[86] Mr. Below states that the children have been thriving in Ontario since April 2016. Ms. Sheene does not dispute that that fact.
[87] The parties’ allegations about each other’s shortcomings as a parent are not supported by evidence from disinterested third parties. They are inconsistent with both parties’ willingness, in the past, and especially at the time of their agreement in 2012, to entrust the children to the other’s unsupervised care, even for short periods of time.
[88] In Finch v. Butler (2010), 2010 ONSC 4796, a proceeding brought to vary a final order for child custody/access, DiTomaso J. heard the interim motion for a temporary custody/access. There was only conflicting affidavit evidence upon which no cross-examinations had been held. He was not satisfied, on such evidence, that circumstances existed that warranted a change of an existing order. In Logiacco v. Papadopoulos (2005), Hoilett J., as he then was, observed, “I make the trite observation that it is risky business trying to resolve factual issues based on conflicting affidavits upon which there has been no cross-examination; indeed, even where there has been cross-examination the undertaking can be at times daunting.” One can find many pronouncements to the same effect in the jurisprudence. I do not find any credible support, based on the conflicting evidence, that the children would face serious harm in the care of either parent.
The Florida Court Order
[89] As noted above, the CLRA provides:
42.(1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,
(iii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iv) that the child has a real and substantial connection with Ontario, and
(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Declining jurisdiction
(2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
[90] For the reasons stated above, I find that although there have been changes in circumstances since the Florida Court Order was made in 2012, those changes do not affect the best interests of the children and are not material, in that if they had existed at the time of the hearing before Justice Schneider, they would not have resulted in a different outcome.
[91] I find, for the reasons stated above, and on the balance of convenience, it is most appropriate for jurisdiction to be exercised by the 20th Circuit Court for the County of Lake Charlotte, Florida, and for the courts of Ontario to decline jurisdiction.
Return of the children to Florida
[92] As noted above, the CLRA provides:
- 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:
Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
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 condition as the court considers appropriate.
- 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.
[93] For the reasons stated above, I find that the children are being wrongfully retained in Ontario and should be returned to Florida in Ms. Sheene’s care. I have found that there is no jurisdiction in this Court pursuant to s. 22 of the CLRA and if this Court did have jurisdiction, I would decline such jurisdiction pursuant to s. 25 and 42.
CONCLUSION AND ORDER
[94] For the foregoing reasons, it is ordered that:
This court has no jurisdiction in relation to the children:
a) Joachim Carter Below ("Carter"), who is 8 years old, was born in Ontario on March 1, 2008.
b) Chloe Rain Below, ("Chloe") who is 7, was born in Florida on September 29, 2009.
This court has no jurisdiction in relation to the children.
The court’s temporary order prohibiting Ms. Sheene from removing the children from Ontario is terminated.
Ms. Sheene’s passport and those of the children shall be returned to her, and she may return to the United States with the children.
Mr. Below and his family shall forthwith return the children to the care of Ms. Sheene.
Mr. Below shall forthwith pay the expense of flying Ms. Sheene and the children back to Florida.
Any further motions in relation to the children shall be brought in the Circuit Court for the 20th Judicial Circuit in and for Charlotte County, Florida.
If the parties are unable to agree on costs, they shall submit written arguments, not to exceed 4 pages in length, and a Costs Outline, to my judicial secretary by January 20, 2017.
Price J.