COURT FILE NO.: FC-17-359 DATE: April 13 2017

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Rodney James, Applicant and Nadine Croxen, Respondent

BEFORE: The Honourable Madam Justice J.E. Hughes

COUNSEL: D. Turner, for the Applicant P. Novak, for the Respondent

HEARD: March 24, 2017

Endorsement

Nature of the Proceeding

[1] The Applicant issued an Application and an emergency motion in Ontario on February 23, 2017 to confirm and enforce the order of the Honourable Madam Justice Inglis of the Court of the Queen’s Bench Alberta, which was pronounced February 13, 2017. A copy of that order is attached for ease of reference at Schedule A of this endorsement. Essentially, the order of Inglis J. directs that the Respondent Mother return the child, Denzel James, born August 29, 2015, to the Applicant Father, who resides in Alberta. The order designates the Applicant Father to be the primary care parent, and the order is to be police enforced once the order is confirmed in the Province of Ontario.

[2] The Ontario Court’s response to the Applicant Father’s emergency motion was to require that the Respondent Mother be given notice. The Applicant Father was permitted to file additional material, which had been the basis of his claim to custody in the court in Alberta. The Respondent Mother filed an affidavit opposing the Applicant Father’s motion. On March 17, 2017, the Respondent Mother filed an Answer to the Applicant Father’s application, and her Affidavit in Support of a Claim for custody and access. The Respondent Mother also filed a Notice of Cross-Motion and a supporting affidavit seeking an order that the Ontario Superior Court of Justice assume jurisdiction over the custody of the child, Denzel James, and make a temporary order granting sole custody of the child to the Respondent Mother.

The Issue

[3] The central issue for this court’s determination is: which forum, Ontario or Alberta, has jurisdiction to determine the issues of custody and access relating to the child, Denzel James?

Decision

[4] I find that Alberta has jurisdiction to determine the issues of custody and access relating to this child.

Reasons and Analysis

[5] This court does not have jurisdiction pursuant to s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) to make an order for custody or access to Denzel James for the following reasons:

A. The Child’s Habitual Residence was Alberta

• I find that this child’s habitual residence was Alberta, not Ontario, when the Applicant Father and the Respondent Mother separated on September 27, 2016. Alberta is where the child last resided with both his parents (see s. 22(2) (a) of the CLRA). Both parents were originally from Alberta. The Respondent Mother joined the Applicant Father in Edmonton, Alberta, in March 2015. Denzel James was born in Alberta on August 29, 2015. He continued to reside in Alberta with both his parents until September 29, 2016, when the Respondent Mother departed to Ontario with Denzel.

B. There was No Agreement, Acquiescence, or Court Order Authorizing the Child’s Removal from Alberta

• I find that the Applicant Father did not consent or acquiesce to the Respondent Mother’s departure from Alberta with the child (see ss. 22(2) (b) and 22(3) of the CLRA). The Respondent Mother does not deny that the departure to Ontario with the child following the separation of the parties was without the Applicant Father’s knowledge or consent. The Applicant Father moved without delay to bring the issues of custody and access before the appropriate court in Alberta. More particularly: i) On October 3, 2016, the Applicant Father commenced an Application in the Court of the Queen’s Bench (Alberta) seeking a parenting order relating to the child, Denzel James; ii) On October 6, 2016, the Honourable Master S.L. Shulz of the Court of the Queen’s Bench in Alberta made an order granting the Applicant Father permission to serve the Respondent Mother by email at nadinepri@hotmail.com; iii) On November 7, 2016, the Applicant Father obtained an order for substituted service, permitting him to serve the Respondent Mother by registered mail at #110, 507 Dundas Street, Whitby, Ontario; iv) On February 13, 2017, the Honourable Madam Justice Inglis of the Court of the Queen’s Bench in Alberta made the interim order which the Applicant Father is currently seeking to confirm in Ontario; and v) The Applicant Father travelled to Ontario and filed an Application on February 23, 2017, in the Ontario Superior Court of Justice, Family Branch, and an urgent motion seeking confirmation of the interim order he had been granted in Alberta, and the enforcement of that order by the police in Ontario.

C. The Respondent Mother had Notice of the Applicant Father’s Application in Alberta

• At paragraph 31 of her affidavit, sworn February 27, 2017, the Respondent Mother acknowledges that she was served with the Applicant Father’s court documents by courier sometime in November 2016, and was surprised that he was able to commence proceedings in Alberta given that Denzel was now residing in Ontario.
• The Respondent Mother continues in that affidavit to advise that she immediately attended the Legal Aid Office and received a Legal Aid referral for a certificate. She confirms being told that Legal Aid Ontario would help her in finding a lawyer to represent her, however, she alleges that when she advised them that she would not travel to the court in Edmonton because she did not have money to do so, her Legal Aid application was not approved.
• I reject the Respondent Mother’s evidence on this point for two reasons. First, the courts routinely permit parties to attend hearings by teleconference/videoconference. Second, the Respondent Mother at paragraph 37 of her affidavit, sworn March 7, 2017, indicates that she had sufficient financial resources to assist the Applicant Father with travel costs to visit his son in Ontario. I find it improbable that, following separation, she would have sufficient financial resources to assist the Applicant Father to travel to Ontario but insufficient financial resources to travel to Alberta.
• The Respondent Mother took no steps to bring her claim to custody and access before the courts, even though she had actual notice of the Applicant Father’s proceeding in Alberta, until the Applicant Father sought to enforce in Ontario the order of Inglis J., which he had obtained by following the proper court procedure in Alberta. It was not until March 17, 2017 that the Respondent Mother filed her Answer and Cross-Motion seeking custody, including her supporting documents, with the courts in Ontario.

D. Given the Particular Facts as Found in this Case, s. 22 of the CLRA Does Not Permit this Court to Assume Jurisdiction

• Where, as in this case, there is already an application for custody of or access to the child pending in another jurisdiction, and where, as in this case, the court determines that a child’s habitual residence is not Ontario, then this court cannot exercise jurisdiction pursuant to s. 22 of the CLRA to make an order for custody of or access to the child (see s. 22(1) (b)(iii) CLRA).

[6] Section 23 of the CLRA would give this court jurisdiction to make an order for custody of or access to Denzel James (despite the court’s findings under s. 22 of the CLRA) if this court was satisfied that the child would, on a balance of probabilities, suffer serious harm if he was returned to Alberta to the care of his father. However, the evidence before the court does not support that finding.

A. There was No Corroboration for Abuse Allegations

• The court accepts the Respondent Mother’s evidence that there was conflict between the parties that resulted in their separation. This is often the reason marriages fail. However, the Respondent Mother provided no corroboration for the many allegations of abuse she levelled at the Applicant Father – no police reports, no CAS reports, and no medical reports.

B. There were No Allegations of Abuse Toward the Child

• The Respondent Mother made no allegations that the Applicant Father caused harm to the child during the relationship, or that the Applicant Father would be likely to cause harm intentionally to Denzel if the child was placed into his care.

C. There were Material Inconsistencies in the Respondent Mother’s Evidence

• At paragraph 37 of the Respondent Mother’s affidavit, sworn March 7, 2017, she states, “After leaving the relationship with the Applicant, I reached out and offered to help pay for a one-way ticket for the Applicant to come visit Denzel, however, he refused.”

[7] I find the Respondent Mother’s offer to financially assist with the purchase of a one-way ticket to Ontario for her alleged abuser completely inconsistent with her evidence that she was forced to leave the Applicant Father and flee Alberta because he was physically and verbally abusive and she feared for her safety and that of her children, and continues to fear him now (see paragraphs 4 and 13 of the Respondent Mother’s affidavit sworn February 27, 2017).

• The Respondent Mother’s material makes it clear that she moved to Edmonton to join the Applicant Father on the understanding that they would stay approximately a year and then move back to Ontario together. Paragraph seven of her affidavit sworn March 7, 2017 reads, “the Applicant had convinced me to move to Edmonton in March 2015, promising that we would only stay there for a year and then move back to the Toronto area. However, once we were in Edmonton, the Applicant refused to consider moving back to Ontario.”

[8] I find that the Respondent Mother’s offer to purchase the Applicant Father a one-way ticket to Ontario following their separation completely consistent with her wish that the parties return to the Toronto area;

• The Respondent Mother argued that compliance with Inglis J.’s order would probably cause Denzel serious harm because she has been his primary care parent since birth and the child has no relationship with the Applicant Father. The Respondent Mother states at paragraph 15 of her affidavit sworn March 17, 2017 that “Denzel does not know the Applicant Father. Although I tried to arrange Skype access, the Applicant Father would not participate.” This allegation is contrary to the Respondent Mother’s statement at paragraph 39 of her affidavit sworn March 7, 2017, which confirms that the Applicant Father did Skype with Denzel “approximately 7-8 times, which was facilitated by me (the Respondent Mother).”
• At paragraph 13 of the Respondent Mother’s affidavit, sworn March 17, 2017, she asks this court to accept her allegation that, given the chance, the Applicant Father will not make it easy for her to be a part of Denzel’s life. It is difficult for the court to have any sympathy for the Respondent Mother’s circumstances given that she chose not to participate in the court process commenced in Alberta, and is now complaining about the prospect of being placed in the very position she imposed on the Applicant Father.

D. Evidence of the Applicant Father’s Bond to the Child

• I find that the Applicant Father had a parental bond with this child and immediately objected to the Respondent Mother’s unilateral decision to take the child and leave Alberta. The Respondent Mother attached text messages to her affidavit sworn March 7, 2017, which confirm his extreme upset, and give some insight into the bond this father had to his son. A text message from the Applicant Father on Thursday, September 29, 2017, (the date the Respondent Mother left Alberta with Denzel), reads, “I don’t even want to know wats [sic] next I just want to go home and go to sleep and not wake up unless he’s here but I have to pay the bills and u took him.” When the Respondent Mother did not return home with the child, he took immediate steps toward obtaining an order. I reject the Respondent Mother’s suggestion that the Applicant Father’s motivation for bringing this proceeding is to cause her pain.

[9] In summary, I find it improbable that Denzel will suffer serious harm if the order of Inglis J.’s is affirmed by this court. The Court of Appeal for Ontario has held that jurisdiction should not be accepted by courts in Ontario where children would not be harmed by a return to the place in which jurisdiction had already been invoked.[^1]

[10] I do, however, find it probable that Denzel will experience some measure of separation anxiety if removed from his mother’s care and, as specifically outlined below, I find that I do have jurisdiction to mitigate that likelihood.

[11] Section 19(c) specifies that one of the purposes of Part III of the CLRA is to discourage the abduction of children as an alternative to the determination of custody rights by due process. Parents are equally entitled to custody of their children (see s. 20 of the CLRA). In the absence of an agreement between the parties, acquiescence on the part of the Applicant Father, or a court order authorizing the removal of Denzel from Alberta to Ontario, what the Respondent Mother did following the separation was tantamount to child abduction, and wrongful. A child is not a ball that a parent can pick up and leave with once they perceive the game to be over. There are rules to be followed and, in this case, the Applicant Father followed those rules by immediately bringing the issues of custody and access before the courts where the child had been habitually residing, that being Alberta. It would, therefore, be against public policy and against the purposes of Part III of the CLRA to grant the relief sought by the Respondent Mother in her Cross-Motion.

[12] Where, as in this case, the court is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario, s. 40 of the CLRA gives this court jurisdiction to make interim orders in respect of custody or access as the court considers is in the best interests of the child. Section 40(3) authorizes this court to 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 costs of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[13] To be clear, this court is ordering the return of Denzel James to Alberta, as that is the jurisdiction that has authority to determine the issues of custody and access relating to this child. In crafting a temporary order to accomplish this task, I wish to consider the respective plans of his parents, which I ask they propose with a view to minimizing Denzel’s adjustment to this change. I will consider those proposals and then impose the temporary order I determine to be in the child’s best interests.

[14] Accordingly, order to go:

1. The Applicant Father and the Respondent Mother shall have ten (10) days from the date this decision is released to file with this court their respective parenting plans for transitioning the child, Denzel James, born August 29, 2015, back to Alberta, where he will continue to reside until the issues of custody and access relating to this child are determined.

Justice J.E. Hughes Released: April 13 2017

[^1]: Solnik v. Solnik (1983), 41 O.R. (2d) 427 (U. Fam. Ct.); varied (1983), 44 O.R. (2d) 684 (C.A.); and leave to appeal refused [1984] S.C.C.A. No. 67 (SCC).