COURT FILE NO.: FS-18-18441
DATE: 20180411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley Thomas McLeod
Applicant
– and –
Louise Ann Peppe
Respondent
Tanya McNevin, for the Applicant
Jason P. Howie, for the Respondent
HEARD: February 9 and 13, 2018
KING J.
BACKGROUND AND ISSUE
[1] The applicant, Bradley Thomas McLeod (“Mr. McLeod”), and the respondent, Louise Ann Peppe (“Ms. Peppe”), are the parents of Linden Laverne Peppe McLeod (“Linden”), (d.o.b. February 26, 2015). The parties separated on or about December 24, 2017.
[2] Mr. McLeod commenced an application dated January 17, 2018 seeking, inter alia, the following:
joint custody or sole custody of Linden with his primary residence being with his father in Essex County;
child support; and
an access schedule for Ms. Peppe in Essex County.
[3] The original application was made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. However, the application was amended on January 19, 2008 to seek remedies pursuant to the Family Law Act, R.S.O. 1990, c. F.3, or the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[4] Two days later, the applicant filed an urgent motion returnable on January 26, 2018 seeking, inter alia, the following:
that Linden reside with the applicant pending further order of the court;
that any access granted to Linden occur in Essex County; and
that Linden not be removed from Essex County.
[5] That motion was adjourned to February 9, 2018.
[6] Ms. Peppe has challenged the jurisdiction of this court to hear and determine this motion pursuant to s. 22(1) of the Children’s Law Reform Act.
[7] The initial issue to be decided is whether the applicant has satisfied each of the six conditions prescribed in s. 22(1)(b) necessary for this court to have jurisdiction.
FACTS
[8] Mr. McLeod is originally from Ontario. Ms. Peppe is American. They began cohabitation in 2008 and were married in the State of Utah on August 16, 2010. They then located to Imperial, California in 2012 and resided there for a period of approximately five years. While resident in California, Ms. Peppe gave birth to Linden. He is the only child of the marriage.
[9] In 2017, Mr. McLeod received an offer of employment from an engineering consulting firm in Windsor, Ontario, in his line of work as a biologist. He accepted this offer of employment.
[10] As a result of Mr. McLeod accepting this new employment, Ms. Peppe and her mother (who resides in the State of Connecticut) travelled to Windsor to purchase a family residence. During that trip, Ms. Peppe submitted an offer to purchase a house at 2205 Curry Avenue, after consulting by telephone with Mr. McLeod. Ms. Peppe described the house as “ideal” in her affidavit filed on this motion. The unconditional offer to purchase was made in the names of both parties and was accepted by the vendor. Pursuant to the agreement of purchase and sale, the transaction was scheduled to close on January 31, 2018.
[11] During the first week of December 2017, the parties and their son vacated their rented residence in California. They drove north to Las Vegas, Nevada, and then flew to Detroit, Michigan. Detroit is located approximately two kilometres across a waterway from Windsor. The initial travel plan of the parties was to go to the residence of the applicant’s parents in London, Ontario before heading to Windsor.
[12] Upon arrival in Detroit on December 8, 2017, Ms. Peppe realized she had packed her passport in a moving company container that was transporting the personal goods of the parties to Windsor. As a result of this oversight, Ms. Peppe did not have the necessary documentation to cross into Canada. Her affidavit evidence indicates that while the parties were in Detroit, Mr. McLeod became “abusive”.
[13] As a result of these factors, Ms. Peppe announced to Mr. McLeod that she intended to travel with Linden to visit her parents in Connecticut. That discussion occurred on or about December 10, 2017. Thereafter, Ms. Peppe travelled with Linden by automobile to Connecticut. Mr. McLeod continued into Canada.
[14] While in Connecticut, Linden took ill. This required a visit to a local hospital emergency room. While at the hospital, Ms. Peppe stated that she became “educated with regard to intimate partner abuse.” Over a period of a few days, she concluded that it was not possible for her and Mr. McLeod to remain together.
[15] On or about December 24, 2017, Ms. Peppe advised Mr. McLeod by telephone that she intended to separate.
[16] On or about December 29, 2017, Mr. McLeod travelled with his mother to the residence of Ms. Peppe’s parents in Connecticut.
[17] On December 31, 2017, the parties executed a document that was witnessed by Ms. Peppe’s mother and worded as follows:
“To Whom it May Concern
I, Louise Ann Peppe, give permission for Bradley T. McLeod to take our son, Linden Laverne Peppe McLeod, across the Canadian/US border to visit his Canadian family in London, Ontario. Linden may also visit his father in Windsor, Ontario or any other location in Southern Ontario. I plan to pick up my son from his Canadian family in the middle of January 2018, at a date to be decided.”
[18] Upon returning to Canada with Linden, Mr. McLeod commenced an application in this court dated January 17, 2018 seeking, among other things, custody of Linden, child support, and other relief.
[19] In the period prior to the hearing of the motion, Mr. McLeod took the following steps:
He commenced employment in Windsor;
He restructured and finalized the agreement of purchase and sale and took possession and sole ownership of the house on Curry Avenue;
He moved into the house with Linden; and
He enrolled the child in daycare.
[20] Ms. Peppe has remained in Windsor while this litigation has continued. She has maintained regular access with Linden.
Statutory Considerations
[21] The Divorce Act has no present application because neither party has been ordinarily resident in Ontario for at least one year, as required by s. 3(1). This is what triggered the amendment of Ms. McLeod’s original application.
[22] In addition to the Divorce Act, the Children’s Law Reform Act (“CLRA”) also has jurisdiction to hear and determine issues of custody, access and residence of children in Ontario.
[23] Section 22(1)(a) of the CLRA provides that an Ontario court has jurisdiction where a child is habitually resident in Ontario at the commencement of an application. The parties agree that, for the purposes of this motion, Linden was not habitually resident in Ontario when the application commenced as defined in s. 22(b) because he has not lived in this province with both parents. Neither is he in Ontario with Mr. McLeod pursuant to a separation agreement, or with the consent to reside in Ontario (implied or otherwise), of Ms. Peppe.
[24] Furthermore, the December 31, 2017 written agreement executed by Ms. Peppe and Mr. McLeod permitting him to bring Linden to Ontario from Connecticut to visit his “Canadian Family” does not establish habitual residence: see Snetzko v. Snetzko, 1996 CanLII 11326, 23 R.F.L. (4th) 448 (Ont. Ct. J. (Gen. Div.)).
[25] As Linden is not habitually resident in Ontario, the provisions of s. 22(1)(b) must be assessed to determine whether this court has jurisdiction. That section provides as follows:
22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(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.
ANALYSIS
[26] Counsel for Ms. Peppe concedes that subparagraphs (i), (iii) and (iv) are satisfied in these circumstances. Linden was physically present in Ontario when the application was made [s. 22(1)(b)(i)]; there was no application for custody or access to the child pending in another place where the child is habitually resident [s. 22(1)(b)(iii)]; nor was there any order from another jurisdiction with respect to Linden that has been recognized in Ontario [s. 22(1)(b)(iv)].
[27] However, Ms. Peppe vigorously asserts that since the conditions set out in subparagraphs (ii), (v) and (vi) have not been satisfied, this court cannot exercise jurisdiction.
[28] For the reasons that follow, I have determined that all six conditions necessary for this court to exercise jurisdiction have been met. I will address the three subsections in dispute between the parties.
Has the applicant established that there is substantial evidence concerning the best interests of the child available in Ontario?
[29] It is significant to note that Linden turned three years old as this litigation commenced. At that age, a child has no personal experiences upon which to assess their best interests, other than through their life with their parents. The quantity of evidence concerning the best interests of a three-year-old child will generally be less than that of an older child, such as a teenager. In the context of a child of this age, I have concluded that substantially all of the evidence concerning the best interests of Linden correlates to the child’s interaction with his parents. That evidence is now in Ontario.
[30] Counsel for Ms. Peppe suggests that more substantial evidence exists in California. That is where the child’s medical records and information from his pre-school can be found.
[31] However, an assessment of whether substantial evidence exists in Ontario does not involve a comparison of the evidence that may exist in one or more other jurisdictions. The wording of s. 22(1)(b)(ii) does not establish a competition between evidence in California and Ontario.
[32] Mr. McLeod’s counsel relied on Snetzko. This decision references the decision in Nichols v. Nichols, 1995 CanLII 6241 (Ont. Ct. J. (Prov. Div.)), where the court prescribed that the appropriate test pursuant to s. 22(1)(b) is only whether such evidence is available in Ontario. It does not result in a comparison of whether more substantial evidence is available in California. In certain cases, there may be significant evidence available in two or more jurisdictions. That there might be substantial evidence in a jurisdiction other than Ontario does not preclude a finding that there is also substantial evidence in Ontario.
[33] In the circumstances of this young child’s life at present, virtually all of the evidence regarding the best interests of the child is in Ontario.
[34] Accordingly, I conclude that there is substantial evidence concerning the best interests of the child available in Ontario.
Does the child have a real and substantial connection with Ontario?
[35] I find that Linden has a real and substantial connection with Ontario. Mr. McLeod now lives and works in the province. Furthermore, notwithstanding Ms. Peppe’s decision to end the marriage, she too has a real and substantial connection with Ontario as the parties made a bona fide decision together to relocate from California to Ontario. She was an equal decision-maker in establishing and putting in place a plan that her son Linden would also become a resident of Ontario. Not only did Ms. Peppe sever both her and Linden’s residential ties to California, she took numerous steps in clear furtherance of the intention to move to Ontario. She travelled to Windsor to search for a new marital residence for herself, her husband, and their child. She demonstrated her commitment to residing in Windsor by jointly making a bona fide offer on a house in her name and that of Mr. McLeod after consulting with Mr. McLeod. Once the house purchase was confirmed, Ms. Peppe travelled with her husband and child to Detroit, Michigan, consistent with the intention and decision to reside in Ontario. To this point in the narrative, Ms. Peppe had what would be characterized as a “settled intention” to reside in Ontario.
[36] A settled intention is defined as an intent to stay in a place, whether temporarily or permanently, for a particular purpose such as employment, family and/or education: see Gavriel v. Tal-Gavriel, 2015 ONSC 4181, 65 R.F.L. (7th) 452, at para. 49.
[37] In A.H. v. F.S.H.(C.), 2013 ONSC 1308, Kruzick J. described a settled intention, at para. 52, as follows:
There must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose.
[38] On the appeal in Snetzko, Carnwath J. found that the trial judge did not err in finding jurisdiction pursuant to s. 22(1)(b) with respect to whether a child has a real and substantial connection, as follows at para. 18:
Judge Dunn also placed reliance on the relatively young age of the children, finding them less likely to an independent connection with Yonkers, New York, as would teenage children. He adopted … the view expressed by Judge Schnall in Nichols v. Nichols, above, expressed as follows:
Thus the court must consider not only the child’s independent formation of a connection with the jurisdiction, but also the connection established through the child’s dependence on the parent, and the parent’s connection with Ontario.
[39] For these reasons, I conclude that the applicant and respondent had a settled intention to reside in Ontario.
[40] Had Ms. Peppe crossed into Canada with her then-nuclear family in early December 2017, the provisions of s. 22(1)(a) would have applied immediately and Linden would have been considered habitually resident in Ontario. For example, in Csoke v. Fustos, 2013 ONSC 2417, the court found, at paras. 311–12, that a child had established a new habitual residence in Canada within three days of arriving with her parents.
[41] Even though Ms. Peppe and Linden did not travel to Ontario at that time, and habitual residence in Ontario was not established, the evidence of settled intention is probative and relevant to an analysis of whether Linden has a real and substantial connection with Ontario.
[42] Ms. Peppe travelled by car with Linden from Detroit, Michigan to her parents’ residence in Connecticut. While present in that state, she decided to separate. That was a choice she made based on an allegation of abuse. While her decision to separate from Mr. McLeod may be understandable (and even laudable depending on what may have occurred between the parties), that decision does not, in and of itself, vitiate Linden’s real and substantial connection with Ontario. Irrespective of the decision of Ms. Peppe to separate from Mr. McLeod and discontinue her plan to reside permanently in Ontario with her husband and son, there remains at minimum a significant connection between Linden and his father who has a clear connection with this province. That state of affairs exists regardless of Ms. Peppe’s decision with respect to her marital status and future place of residence.
[43] I have carefully considered all of the jurisprudence presented by both parties. Of particular relevance is the decision in Wirta v. Wirta, 2016 ONSC 3835, 89 R.F.L. (7th) 451. That case involved a family moving from Seattle, Washington, to Ottawa, Ontario in furtherance of a joint decision made between the parties that the wife would transfer her employment. They packed up their house in Washington and shipped their personal belongings to Ontario. The mother entered into Canada with the children. She commenced work and the children were enrolled in school. However, the father was prohibited entry to Canada because of his criminal record for impaired driving. Despite numerous efforts to effect a change in status, he was never able to enter Canada before their marriage broke down.
[44] The litigation proceeded as a dispute between the father in the United States and the mother with the children in Ontario. At para. 41 of Wirta, MacKinnon J. stated:
In this case, since the parties shared legal decision-making custodial rights for their children, the court must determine the shared intentions of the parents with respect to the relocation to Ontario. The question is: immediately before the physical move, were the parties jointly intending to move to Ottawa with the children and to stay there, temporarily or permanently, for a particular purpose, which could be employment or family? If so, does the evidence establish that the children have in fact settled into the new location to the extent that they have acquired a new habitual residence? (See Csoke v. Fustos, 2013 ONSC 2417, at para. 260).
[45] As in Wirta, Mr. McLeod and Ms. Peppe had undertaken the process of residing in Canada. They took the steps necessary to effect this decision, including the purchase of a house in Windsor, moving from their rented residence in California, shipping their personal goods from California to Ontario, and travelling from California to Detroit, Michigan just across from Windsor, Ontario.
[46] The conclusion reached at para. 46 of Wirta, parallels with the facts in this case, as follows:
There is no doubt that the father agreed to the family moving to Ontario. He intended to enter Canada with the children and to join his wife in Ottawa. I find the parents had a shared intention to move from Washington State and to take up residence in Ottawa together with their children.
[47] It is true that Ms. Peppe would almost certainly not have travelled to Windsor to purchase a matrimonial home, or depart from California for Ontario, had she known her marriage would end shortly. However, her decision to separate does not unilaterally revoke her consent to their shared intention that Linden would reside in Ontario: see Wirta, at para. 51.
[48] In Wirta, the court decided that the wife and children were habitually resident in Ontario. While Linden is not habitually resident in Ontario, the evidence of the shared intention of the parties to move to Ontario compels me to conclude that the child’s connection with Ontario is real and substantial.
[49] The respondent relied on Gilbert v. Gilbert, 1985 CanLII 4967 (ON SC), 47 R.F.L. (2d) 199, [1985] O.J. No. 767 (Uni. Fam. Ct.). In that matter, the parties and their children had resided in New Brunswick until the mother went to Ontario with the children and then announced her intention to remain there. The father sought an order for custody to return the children to New Brunswick. The mother’s motion was for interim custody of the two children (aged six and seven).
[50] Chief Justice Steinberg, held that the children were not ordinarily resident in Ontario and conducted an analysis of the same three subsections of s. 22(1)(b) as are in issue on this matter. He determined the children should be returned to New Brunswick as the mother could not satisfy the provisions of subsections (ii), (v) and (vi): see paras. 21–26.
[51] That case is distinguishable for a number of significant reasons.
[52] Firstly, in Gilbert, it was never the settled intention of both parents to reside in Ontario. The mother travelled with the children to Ontario of her own accord. She unilaterally decided to terminate the marriage and then sought to obtain an order that the children were ordinarily resident in Ontario. Those facts must be juxtaposed with this case, where the parties jointly decided to move to Ontario and took substantial steps in furtherance of those intentions. Unlike Gilbert, both parties had a shared intention to move to Ontario.
[53] As well, in Gilbert, the children were older and had significant history and personal connection to friends and other family in New Brunswick. No such evidence exists in this case. Linden was not yet three years old when his parents departed from California. There is no evidence the child has a history of friends or family remaining in California. There is no evidence that anything but his medical and day care records exist in California.
[54] In a number of decisions presented by counsel for Ms. Peppe, there was a jurisdictional tug-of-war between a parent in Ontario and the other parent living in a jurisdiction where the family had recently resided and the children had spent considerable time and had a substantial connection: see Gilbert [New Brunswick]; Nordin v. Nordin, 2001 CanLII 28199, 17 R.F.L. (5th) 119 (Ont. Sup. Ct.); and Atout v. Atout, 2016 ONSC 5487, 83 R.F.L. (7th) 138 [Qatar]. These cases are all distinguishable for this reason.
[55] Ms. Peppe submits that by deciding to terminate the marriage, the previous plans have been reshuffled and Ontario should not have jurisdiction. She no longer has any intention to reside in Ontario. That is a misguided view of the situation. At a minimum, the child currently has a real and substantial connection to Ontario because of his father. Mr. McLeod came here pursuant to a plan made by the parties. That plan was acted upon jointly, and almost fully completed jointly.
[56] Unlike the jurisprudence presented by Mr. Howie, this is not a situation where the parties split up while in California and then Mr. McLeod brought the child to Windsor, Ontario, enrolled him in daycare, and then made an application for custody in Ontario. That course of conduct would have been the mischief that s. 22 was clearly enacted to prohibit.
On the balance of convenience, is it appropriate for jurisdiction to be exercised in Ontario?
[57] In a word, yes. At present, Ontario is clearly the appropriate jurisdiction to judicially determine what is in the best interests of Linden with respect to interim residency.
[58] Unlike the situation in Gilbert, where the children had a significant history in New Brunswick, Linden has only resided in California as a newborn and infant. If any medical or daycare records are relevant to determine interim residency in Ontario, those California records are easily available.
[59] Counsel for Ms. Peppe ably attempted to persuade the court that the parties still have a real and substantial connection with California because of their many years of residing in that state with Linden.
[60] He suggested that by commencing this litigation in Ontario immediately after bringing the child here from Connecticut to visit Canadian family — pursuant to the December 31, 2017 agreement — amounts to forum shopping, or an attempt to gain a litigation advantage.
[61] I respectfully reject those submissions. Section 22(1)(b) of the CLRA is intended to prevent forum shopping by establishing six conditions that must all be satisfied as a precondition to conferring jurisdiction with respect to a child that is not habitually resident in this province.
[62] Ms. Peppe characterizes the situation as Mr. McLeod acting improperly by commencing this litigation after bringing Linden here for a visit.
[63] However, that is not the evidence I consider as paramount in this situation. Linden is in Ontario today in furtherance of the settled intentions of his parents to move to Ontario. It is not because Mr. McLeod initiated the move to Ontario in the first instance pursuant to the December 31, 2017 agreement.
[64] There is no other evidence that can result in a conclusion that any jurisdiction other than Ontario is more convenient. The parties departed their rental property in California. They shipped their personal goods to Ontario. Mr. McLeod resides here now and has the employment that was the genesis of the move decided upon jointly by the parties.
[65] To further and conclusively demonstrate that this family’s tether to California is non-existent, Ms. Peppe has listed her address as that of her parents in Canaan, Connecticut. That location is on the east coast of the United States, over 4,500 kilometres from Imperial, California.
CONCLUSION
[66] The applicant has satisfied each of the six conditions prescribed in s. 22(1)(b) of the CLRA. Accordingly, I have concluded that this court has jurisdiction to determine the issue of the interim residency of Linden and the other orders requested on the motion filed January 19, 2018, initially returnable on January 26, 2018 and adjourned to February 9, 2018.
ORDER
[67] Trial co-ordination is requested to schedule a hearing date to determine the issues on the motion.
[68] The terms and conditions of paragraph 4 of my order, dated February 15, 2018, are extended until further order of this court. As well, the order of Verbeem J., dated February 20, 2018, shall continue in effect until further order of this court.
COSTS
[69] This was a complicated jurisdictional issue. While the respondent was unsuccessful in challenging the jurisdiction of this court pursuant to s. 22(1)(b) of the CLRA, the unique facts in this case justified an adjudication of the jurisdictional issue. For that reason, it is appropriate that both parties bear their respective costs for the hearing dates of February 9 and 13, 2018.
Original signed by Justice George W. King
George W. King
Justice
Released: April 11, 2018
COURT FILE NO.: FS-18-18441
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley Thomas McLeod
Applicant
– and –
Louise Ann Peppe
Respondent
RULING ON MOTION
King J.
Released: April 11, 2018