McPherson v. McPherson, 2017 ONSC 4736
CITATION: McPherson v. McPherson, 2017 ONSC 4736
COURT FILE NO.: 169/17
DATE: 20170804
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DOUGLAS McPHERSON, Applicant
AND:
TARA JACQUELINE McPHERSON, Respondent
BEFORE: Shaw J.
COUNSEL: Jonathan Krashinsky, counsel for the Applicant
Michael Ruhl, counsel for the Respondent
HEARD: August 1, 2017
ENDORSEMENT
Background
[1] On April 19, 2017, the applicant commenced an Application seeking, amongst other things, custody of the three children of the marriage. The respondent filed an Answer dated June 22, 2017. A case conference was conducted on July 31, 2017. Prior to the case conference, the applicant served a Notice of Motion seeking, amongst other things, interim custody. The Notice of Motion and supporting Affidavit were served on the respondent’s counsel on July 26, 2017 and was returnable on August 1, 2017. The respondent requested an adjournment and the issue before the court on August 1, 2017 was the terms of that adjournment.
[2] At the case conference on July 31, 2017, the parties agreed to a timetable to argue the issue of jurisdiction of the court to deal with this matter. A timetable was also agreed upon to deal with the issues of interim relief, if this court decides it has jurisdiction.
[3] The parties agree that the first issue that must be determined is whether this court has jurisdiction to make an order for custody or access pursuant to s. 22 of the Children’s Law Reform Act, R.S.O.1990, c. C.12, as amended (“CLRA”). Until very recently, the parties and their three children had been living in Germany where the respondent has been working. The family moved to Germany in March 2015 for the respondent’s employment. Prior to that, the family lived in Elora, Ontario, where they still own a home and their extended family resides. While living in Germany, the applicant did not work and stayed home to care for the children. The parties separated in January 2017. The applicant returned to Canada one week ago.
[4] The only issue before the court is whether, as a term of the adjournment of the motion, the court can make an order that the children travel from Germany to Ontario in August, which had been scheduled prior to the separation. The issue of whether or not the court has jurisdiction to make a custody or access order will be before the court at a later date in August. The court is not being asked to make that determination today.
THE LAW
[5] Counsel for both parties referred to s. 40 of the CLRA which states as follows:
40 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 conditions 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. R.S.O. 1990, c. C.12, s. 40.
[6] Section 22 states:
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. R.S.O. 1990, c. C.12, s. 22 (1).
The Position of the Parties
[7] The applicant’s position is that pursuant to s.40, this court can make an order regarding the children’s trip to Ontario, even before a determination is made regarding jurisdiction pursuant to s. 22 of the CLRA.
[8] The applicant’s position is that s. 40 specifically provides interim powers of the court in a situation where the court “may not exercise jurisdiction under section 22”. The applicant’s submission is that the wording of s. 40(b) contemplates a future determination being made regarding jurisdiction and what powers the court can exercise pending that determination. In support of that position the applicant relies on two cases. The first is Brooks v. Brooks, [1998] No. 3186 and the second is Atout v. Atout, [2016] O.J. No. 4530.
[9] At para. 29 of Brooks, the Court of Appeal found:
Section 40 was clearly intended to permit the court to make interim orders even in circumstances where the court has declined jurisdiction under s..25 or 42 of the CLRA, or concluded that it does not have jurisdiction in light of the provisions of s.22. The Ontario Court (General Division) did not act under s. 40 in making interim custody orders.
[10] At para. 30 in Atout, Myers, J held:
As a result, under s. 40, the court is empowered to deal with custody and access in the interim. In light of my finding that this court has no jurisdiction, I am looking only at a very short term stop gap measure.
[11] The respondent’s submission is that s. 40 exists to allow the court to set up a temporary framework to deal with immediate custody and access issues when the court determines it does not have jurisdiction.
Analysis
[12] I do not agree with the applicant’s submission regarding the interpretation of s.40 of the CLRA. In both Brooks and Atout, the court had made a decision regarding jurisdiction. Neither were situations where the court was going to make a determination in the future regarding jurisdiction. In fact, in para. 29 of Brooks, the court specifically stated that s. 40 was clearly intended to permit the court to make interim orders where it has concluded that it does not have jurisdiction in light of s. 22. That indicates that a decision has already been made regarding jurisdiction.
[13] As a jurisdiction decision has not yet been made by this court, s.40 is not available to the court to make any interim orders, even with respect to a trip to Ontario.
[14] The applicant also submits that this is a situation where the court can exercise its parens patriae jurisdiction. The basis for that is a foreign court has declined jurisdiction and the applicant would now be in a position where no court has assumed jurisdiction to deal with the issue of the children travelling to Ontario. The applicant commenced an application in Germany in June, 2017. Counsel provided a copy of the translation of the application and of the decision. The wording is not clear and both counsel agree that there could be some translation issues. The application states that the applicant is seeking the right to determine the “place of residence for the children”. It also requests that the respondent hand over the identity documents for the children. (The passports were being held by the respondent and the applicant wanted them so that the children could travel to Canada.) In his application, the applicant discussed the travel plans to Canada and how those plans were being thwarted by the respondent by withholding the passports.
[15] In the decision from the court, it first noted that the passport issue had been resolved. In fact, it was not resolved. The full translated reasons are as follows:
Entitlement to a temporary order has not been demonstrated in the present case. As far as the application for 2), to hand over the Identity documents is concerned, this Issue has been settled. The counsel for the Respondent stated that she had deposited the children's passports, but In the meantime, due to a school trip of the children, returned them to the Applicant.
Entitlement to an interim order is also lacking with regard to the application for 1). Reasons for transfer of the right to determine the place of residence have not been demonstrated, nor are they apparent.
Insofar as the parties Involved seek a fundamental decision with respect to the center of the children's life, a transfer of the right to determine the place of residence to one of the parties involved Is currently not indicated, since the parents continue to reside together with the children in the marital home and therefore a physical separation has not yet taken place. Further, in consideration of the undisputed fact that the parties involved have jointly extended their stay In Germany until approximately 09/01/2018, the question of the center of the children's life and the right to determine the place of residence of the parties involved could potentially be resolved In a· principal proceeding.
[16] A reading of the decision suggests that the court in Germany did not necessarily decline to accept jurisdiction to deal with the issue of the children travelling to Canada but may have found that there was insufficient evidence to make a determination of “the place of residence” which is the term used in the translated decision.
[17] The applicant relied on the decisions of Ramjeet v. Ramjeet, [2010] O.J. No. 4145 and Johnson v. Athimootil, [2007] O.J. No. 3788 where the court exercised its parens patriae jurisdiction. In both of those decisions, the court was faced with the possibility of no court assuming jurisdiction to deal with issues of custody and access. Those decisions can be distinguished from these facts as it is not clear that the court in Germany declined to exercise its jurisdiction.
[18] The matter before the court deals only with a trip to Canada by the children. There is no issue of custody or access. This is not a case where there is any type of legislative gap that must be filled by way of the court exercising its parens patriae jurisdiction. As noted by the Court of Appeal in Dovigi .v Razi, 2012 ONCA 361, 2012 CarswellOnt 6704 parens patriae jurisdiction is founded on necessity, namely the need to act to protect those that cannot care for themselves. This is not a situation of necessity. The relief requested is that the children travel to Canada in August. I am not prepared to exercise the court’s parens patriae jurisdiction in this instance.
[19] The court will not make any order regarding the children until the issue of jurisdiction is determined by this court.
Shaw J.
Date: August 4, 2017
CITATION: McPherson v. McPherson, 2017 ONSC 4736
COURT FILE NO.: 169/17
DATE: 20170804
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOUGLAS McPHERSON, Applicant
AND:
TARA JACQUELINE McPHERSON, Respondent
ENDORSEMENT
Shaw J.
Released: August 4, 2017