Superior Court of Justice - Ontario
CITATION: Crofts v. Crofts, 2017 ONSC 4676
COURT FILE NO.: FC-16-682-1
DATE: 2017/08/01
RE: Michael Vincent Crofts, Applicant
AND
Katherine Vaughn Crofts, Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Self-represented Applicant
Respondent not present
HEARD: July 28, 2017
ENDORSEMENT
[1] This is a motion that was brought in Procedural Motions Court. The Applicant is seeking orders for the following:
• Short service of the motion material on the Applicant, by e-mail;
• A finding that the matter is urgent, and that it be transferred to a judge for a decision on the same day;
• A finding that this court has jurisdiction to deal with the matter, and a temporary order of sole custody of the child, Kaitlyn Grace Crofts; and,
• That the Applicant may obtain and hold passports and travel documents for Kaitlyn and authorize travel for Kaitlyn outside of Canada without the consent of the Respondent.
[2] The Applicant is from Ottawa, Ontario. The Applicant and the Respondent married on November 18, 1995. Two children were born of the marriage, Cameron Vincent Crofts, born March 10, 1999, and Kaitlyn Crofts, born March 4, 2002. The parties were divorced in Alachua County, Florida on September 19, 2008. By Final Judgment of Dissolution of Marriage of the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, Florida dated September 19, 2008, the parties were granted shared custody of the children and a 2/2/3 parenting schedule.
[3] Paragraph 12 of that judgment provided: “The Court reserves jurisdiction over the parties and the subject matter herein to enter such other and further Orders as may be lawful and appropriate and for enforcement of the terms of this Judgment.
[4] In 2010, the Applicant father relocated to Ottawa, Ontario for employment purposes. A Final Judgment on Supplemental Petition for Modification was made by the Court in Alachua County, Florida on November 18, 2010, which modified the September 19, 2008 order to provide that the parties would continue to share parental responsibility for the children, outlined specific parenting time during holidays and school breaks with the Applicant, and provided for child support of $1019 per month to be paid by the Applicant to the Respondent.
[5] At paragraph 5, the Judgment provided: “Florida is the home state and the state of habitual residence of the children. Accordingly, Florida is the sole jurisdictional state to determine child custody, parental responsibility, time-sharing, rights of custody, and rights of access concerning the children under the Parental Kidnapping Prevention Act (PKPA), under the International Child Abduction Remedies Act (ICARA), and under the Convention of the Civil Aspects of International Child Abduction enacted at the Hague on October 25, 1980.”
[6] According to the Applicant’s materials, the child Cameron came to live with him on April 5, 2015 with the consent of the Respondent.
[7] The child Kaitlyn came to live with the Applicant on October 14, 2016. According to the Applicant this also was with the consent of the Respondent. The Applicant has attached as Exhibit A to his Affidavit sworn on July 28, 2017, an email dated September 18, 2016 purportedly from the Respondent confirming her consent to Kaitlyn residing with the Applicant in Kanata, Ontario and attending school at All Saints High School.
[8] Kaitlyn and Cameron have continued to reside with the Applicant since the respective dates of their arrivals, and the evidence of the Applicant is that Kaitlyn wishes to remain with him and does not want to return to Florida to live. Cameron is now 18 years of age and will be attending the University of Waterloo on a football scholarship in the fall.
[9] Neither party returned to court in Alachua County, Florida to vary the order of November 18, 2010 regarding the residence of the children. The Applicant’s evidence is that the parties simply informally agreed to the arrangements. The Respondent has visited with the children in Ottawa, and the children have also gone to Florida to visit with the Respondent since they came to live with the Applicant.
[10] Due initially to the Applicant’s efforts to deal with enforcement issues emanating from the Florida child support order, on May 7, 2017 the Respondent received a “Notice of Proceeding to Establish Administrative Support Order” through the Ontario Family Responsibility Office (FRO). On May 24, 2017, the Respondent filed an “Objection to the Department of Revenue in Florida as to Establishing a Support Order”, another Motion for Enforcement and a Motion for Contempt alleging that Kaitlyn was relocated without her consent.
[11] According to the Applicant, on July 27, 2017 a conference was held and the Judge in Florida ordered that a custody hearing is to be held for Kaitlyn on August 8, 2017, and that she is to be returned to Florida to be interviewed with respect to her preference. Again, according to the Applicant, Kaitlyn does not want to go to Florida, and indeed wishes to remain in Ottawa and continue residing with her father.
[12] In the interim, based on what he believed was necessary for the purposes of FRO, on June 27, 2017 the Applicant commenced an application seeking an order that Ontario now have sole jurisdiction over the issues of custody, access and child support, and seeking an award of retroactive child support for both children from October 14, 2016. He also brought today’s motion.
[13] The Applicant provided notice of the motion for today by emailing the documents to her on July 28, 2017. Pursuant to Rule 6 of the Ontario Family Law Rules, however, regular service by email requires the consent of the party receiving same. The Applicant has requested an order the he be permitted to serve the Respondent by email, however at this point she has not been properly served. The Respondent is not present today, nor has anyone appeared for her.
[14] Under the circumstances, I am satisfied that the Respondent is at least aware of the proceedings and today’s court date.
[15] It appears, based on the Applicant’s materials, that the Court in Ontario may have jurisdiction over Kaitlyn based on Section 22 of the Children’s Law Reform Act, (R.S.O. 1990, c. C.12, as am.), which provides as follows:
- Jurisdiction – (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 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 balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
(2) Habitual Residence – 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.
[16] However, the court cannot properly deal with the issue of jurisdiction without the Respondent having an opportunity to respond to the Applicant’s motion. I am, therefore, going to set a date for a motion to be heard with proper notice to the Respondent with proper opportunity for her to respond.
[17] I am going to additionally have this endorsement provided by my assistant to the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, and request that the Court adjourn the hearing currently scheduled for August 8, 2017, regarding Kaitlyn until the issue of the jurisdiction of the Ontario Court has been properly heard and resolved.
[18] Accordingly, I order:
that a motion regarding the jurisdiction of the Ontario Superior Court of Justice shall be held on August 23, 2017 at 10:00 am.;
the Applicant shall effect proper service of his documents on the Respondent which will include a Notice of Motion for August 23, 2017 at 10:00 am;
this endorsement will be provided to the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County Florida, by my assistant forthwith.
Madam Justice Tracy Engelking
Date: August 1, 2017
CITATION: Crofts v. Crofts, 2017 ONSC 4676
COURT FILE NO.: FC-16-682-1
DATE: 2017/08/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michael Vincent Crofts, Applicant,
AND
Katherine Vaughn Crofts, Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Self-represented Applicant
Respondent not present
ENDORSEMENT
ENGELKING, J.
Released: August 1, 2017