N.V.G. v. I.M.P., 2017 ONSC 6009

CITATION: NVG v IMP, 2017 ONSC 6009
COURT FILE NO.: FS-17-21788
DATE: 20171006

ONTARIO SUPERIOR COURT OF JUSTICE

B E F O R E:

N.V.G.
Applicant

-and-

I.M.P.
Respondent

BEFORE: F.L. Myers J.

COUNSEL: Courtney Kazembe and A. Karim, counsel for the applicant
No one appearing for the respondent

HEARD: October 5, 2017

ENDORSEMENT

[1] The mother NVG applies under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the Hague Convention) as enacted by s. 46 (2) of the Children’s Law Reform Act, RSO 1990, c C12 for declarations that the principal residence of the parties’ child is in Ontario and that he be returned to his primary residence in Toronto pending the determination of issues of custody and access.

[2] NVG also applies for an order granting temporary custody and primary care and control of the child pending the final resolution of this application under Ontario law.

[3] The issues under the Hague Convention are not properly before this court. The child is in Florida. Articles 9 and 12 of the Hague Convention make it clear that the application under the treaty is to be made where the child is located.

[4] What counsel seeks here then is a form of “chasing order.” (See the discussion in Thomson v Thomson, 1994 SCC 26, [1994] SCJ No. 6, at para. 71 to 78). I limit this decision to issues of temporary custody under Ontario law. I wish to make clear that I do not purport to make any decision under the Hague Convention or to fetter in any manner the plenary jurisdiction of the United States District Court or State Courts in Florida. We rely on the courts of our great neighbour to the south in matters of comity as they routinely rely on us. Absent a request under Art. 15 of the Hague Convention, US courts do not need any input from this court on matters within their jurisdiction.

The Facts

[5] The respondent father, IMP, lives in Florida.

[6] The applicant lived in Jamaica before moving to Toronto. The child lived in Jamaica with his mother until he was nearly five years old. For the next several years he lived with the respondent father in Florida although he joined his mother for lengthy vacations from time to time. In 2014, the parties agreed that the child would move to Toronto to join the mother permanently.

[7] On August 11, 2014, the respondent father signed a declaration for the Canadian government consenting to the child “immigrating to Canada” with his mother. The form recites that the respondent father understood that by consenting he “may be permanently separated from the…child.”

[8] The child formally became a permanent resident of Canada on September 10, 2015. He moved to Canada to take up permanent residency on December 31, 2015.

[9] Since then, for the past 18 months or so, the child has lived in Toronto, attended school, engaged a large number of extra-curricular activities, and done the things children do. He recently finished grade 4 and is enrolled in the same public school in Toronto for grade 5.

[10] On July 2, 2017, the parties both signed a consent letter to evidence their agreement that the child would spend the summer with the respondent father in Florida. The consent describes the child’s travel dates as July 3, 2017 to September 6, 2017. The applicant’s evidence is that just as the parties agreed that the child would have long holidays with her when he lived principally with the respondent, this year, they agreed that the child would have a long holiday with respondent for the summer. The respondent delivered no evidence to contradict this evidence.

[11] On July 31, 2017, the mother became concerned on learning from the child that the Respondent had kicked him. She sent a text message to the respondent asking “Did you kick [the child] on his leg because if you did that is not acceptable?”

[12] The respondent replied by text message “I will kick him until he has some sense. He is not a girl.”

[13] The applicant responded, “That’s not funny.”

[14] The respondent answered “And if you think that he can be treated like one I don’t know what to say.”

[15] The applicant told the respondent that physically hurting the child is child abuse. The respondent answered,

Hurting him that the point he needs to know I will go there so he won’t try me. He can not know what limits I might go. The issue now is [I] am the one that is taking this discipline thing seriously.

[16] On August 8, 2017, the respondent advised the applicant by text as follows:

You are incorporative [sic] and disrespectful and now prove incompetent to raise [the child] he is staying here.

[17] The applicant then asked,

Did you change the flight to have [the child] here before the beginning of school? It is very important that he arrives here before then.

[18] The respondent replied:

U better understand him not coming back

[19] It is apparent that the father changed his mind about returning the child at the end of the summer as he had previously agreed to do. The father did not return the child on September 6, 2017 as agreed. He has now told the applicant that he intends to enroll the child in school in Florida.

[20] The applicant mother has reported the matter to the Toronto Police Service. Her lawyer has also written to the respondent. The applicant swears that the respondent has threatened that he will never return the child and he will take whatever disciplinary measures he wishes to take if and when necessary. He has recently told the applicant that he will only allow her to speak to the child if she drops these proceedings.

[21] According to affidavits of process servers filed, the respondent and a woman who lives with him received notice of this application and of the hearing yesterday. Service is validated under the Family Law Rules. Refusing to answer the door and then throwing papers back at a process server is not an effective strategy to avoid service.

The Legal Framework

[22] The Children's Law Reform Act, RSO 1990, c C.12, http://canlii.ca/t/52vf6 deals with custody of children where there are no divorce proceedings under way. It starts from the premise in s. 20 (1) that both parents are equally entitled to custody of their child. Under s. 21 (1) of the statute, a parent can apply to the court to deal with issues of custody and access as the applicant has done in this case. If the court has jurisdiction to consider the matter, then s. 24 (1) of the statute provides that this issue is to be resolved by considering the best interests of the child.

[23] The jurisdiction of the court to decide the matter in issue is governed by s. 22 of the statute that provides as follows:

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. R.S.O. 1990, c. C.12, s. 22 (1).

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. R.S.O. 1990, c. C.12, s. 22 (2); 2016, c. 23, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

[24] It is apparent that the child in this case is habitually resident in Ontario under ss. 22 (1) (a), 22 (2) (b), and 22 (3). That is, he resides here with his mother with the father’s consent. The habitual residence cannot be interrupted by the withholding of the child without the custodial parent’s consent. Therefore the court has jurisdiction.

[25] The decision concerning primary residence of the child must necessarily be an interim one at this time. While the respondent was served and chose not to participate in the hearing, it is appropriate for the issue to be dealt with under the Hague Convention so that the parties will then both know which court will be involved overall. Rather than engaging in a full review of custody at this time, this court has jurisdiction to deal with interim residence and control of the child pending the determination in Florida. It is manifestly in the child’s best interests to remove him from a father who physically abuses him and thinks it is appropriate parenting to keep his son in fear of unlimited physical abuse because he is not a girl. It is also in the child’s best interests to start school at his existing school, with his friends, returning to his sports teams, and extra-curricular programs, and to return to his home, where all of his things are, into the care of his mother with whom he has been residing for a lengthy period in a relationship intended to be permanent.

[26] I am concerned that the formal order that counsel presented to me to sign in court may be seen to be ambiguous as to whether it purports to speak to Ontario law or to the Hague Convention. Lest there be no misunderstanding, the order dated October 5, 2017, and the findings that it contains, are limited to the laws Ontario as discussed above only.

F.L. Myers J.

Date: October 6, 2017