COURT FILE NO.: FC-18-1001
DATE: 2018/06/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Billy Alcine, Applicant
AND
Princess Murray, Respondent
BEFORE: Justice Stanley Kershman
COUNSEL: Aaron Heard, for the Applicant
Jared Persaud, friend of the Court, for the Respondent via telephone
HEARD at Ottawa: June 14, 2018
ENDORSEMENT on MOTION
Introduction:
[1] This is a motion brought by the Applicant Father, (“Father”), Mr. Alcine, for various relief, including the return of the child, Princess Anya Grace Alcine, d.o.b. November 25, 2017, to the jurisdiction of Ottawa and that the child not be removed from this jurisdiction, pending further order of the Court.
[2] Various other relief was requested on the motion, however, the most pressing issue is the one of jurisdiction.
[3] A cross-motion was brought by the Respondent Mother, (“Mother”), Princess Murray, seeking to stay the proceedings commenced by the Father in Ottawa and to continue the matter in the Superior Court of Ontario at Newmarket.
[4] In Ottawa, the matter was originally before Justice Corthorn on May 24, 2018. At that time the motion was adjourned to May 31, 2018.
[5] The matter was before Justice Blishen on May 31, 2018, who determined that the issue of jurisdiction was urgent. She stated that the jurisdiction issue was to be decided before the issues of parenting could be dealt with.
[6] The Mother’s cross-motion was filed over the bench on May 31, 2018.
[7] The Court notes that Mr. Persaud is retained through Legal Aid in Toronto to deal with the York Application only. He is acting as a friend of the Court on this motion and cross-motion.
[8] The Mother’s motion confirmation form, dated June 12, 2018, requested that the motions be adjourned because there was an ongoing CAS investigation. A letter was attached to the confirmation form from the CAS setting out certain information. The letter was not in affidavit form and will not be considered on the motion.
[9] At the motion, the Mother withdrew her request for an adjournment and said that both motions could be argued. Both motions were argued on June 14, 2018.
Father’s Position:
[10] According to the Father, the parties commenced a relationship about two years ago and started formally living in the basement apartment in the paternal grandmother’s residence in Ottawa, Ontario on or about January 1, 2017. Princess Anya Grace Alcine, was born on November 25, 2017. Neither party contests being parents of the child.
[11] The Father is employed at Vital Air delivering oxygen and uses his income to support the family.
[12] According to the Father, on May 9, 2018, the Mother indicated that she wanted to take a trip to Markham, Ontario and stay with the child for a few weeks to visit with friends. The Father did not want the child to go for a trip that long and did not approve of it. Notwithstanding that fact, the Mother packed her bags and called a taxi and left with the child.
[13] The Father called the police and asked them to follow up with the matter. The Mother stayed in a shelter on May 10, 2018 and then left for Markham. The police had gone to the train station to speak with the Mother, but they had arrived after the Mother and the child had left.
[14] On the Tuesday after Mother’s Day the Mother messaged the Father about meeting her in Kingston with the child for a family visit.
[15] Unfortunately, that did not occur.
[16] The Father claims that the Mother has mental health issues.
Mother’s Position:
[17] The Mother argues that she moved to the Markham area, because all of her family, emotional and financial supports are in the York Region. She claims that she only moved to Ottawa to be with the Father.
[18] She claimed that she commenced her application in the York Region on May 14, 2018 with a first appearance in Superior Court on July 24, 2018. The Mother claims that the Father knew this before he issued his Application in Ottawa.
[19] The Mother argues that the Father had agreed to have the matter heard in the York Region. An email from Mr. Heard to Mr. Persaud dated May 24, 2018, stated that if “something more substantial was on the table, my client would be willing to drop his case here and attend to the matter in Markham”.
[20] The Mother argues that she has been taking the child to her medical appointments, notwithstanding that she missed a vaccination in Ottawa on May 25, 2018.
[21] She argues that she does not have any mental illness and is open to parenting with the Father.
[22] The Mother wishes to have this matter proceed in the York Region where she is now living.
Issue: What is the Jurisdiction for the Hearing of this Matter?
[23] The Mother’s Application commenced May 14, 2018. The Father’s Application commenced May 24, 2018. The Court notes that the Mother was living in Ottawa starting on January 1, 2017 and the child was born on November 25, 2017 in Ottawa. While the Mother was on the phone at the hearing of the motion, the Court asked what she did before the baby was born. She indicated that she was registered and attending at Algonquin College to obtain her high school equivalency and that she was also working at Loblaws. She indicated that she stopped work and stopped going to school when the baby was born.
[24] She indicated that she intended to return to school at Centennial College in the York Region in the Fall.
Jurisdiction:
[25] Rule 5 of the Family Law Rules, O. Reg. 114/99, Courts of Justice Act, R.S.O. 1990, c. C.43 reads in part as follows:
- (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,
(a) in the municipality where a party resides;
(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,
(i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and
(ii) subsection 91 (2) (place for child protection hearing) and subsection 203 (1) (place for adoption proceeding) of the Child, Youth and Family Services Act, 2017; or
(c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality. O. Reg. 114/99, r. 5 (1); O. Reg. 298/18, s. 6 (1).
(2) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, if there is immediate danger that a child may be removed from Ontario or immediate danger to a child’s or party’s health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise. O. Reg. 114/99, r. 5 (2).
[26] Paragraph 22 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), reads as follows
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).
22 (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.
22 (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).
Analysis:
[27] The Court notes that the child did habitually reside in the province of Ontario. In accordance with s. 22(2)(a) of the CLRA, the child lived with both parents in Ottawa and thereafter the Mother left the jurisdiction.
[28] In accordance with s. 22(3) of the CLRA, the removal or withholding of a child without the consent of the parent having custody of the child does not alter the habitual residence of the child unless there has been some acquiescence or undue delay in commencing due process by the person from whom the child has been removed or withheld.
[29] Pursuant to Rule 5(1)(b), the wording of that subsection means that the matter should have commenced where the child was ordinarily residing and if the matter was improperly commenced in a particular proceeding, the Court could order a particular proceeding be transferred and does not need to consider a transfer motion pursuant to Rule 5(8) (see Mohr v. Sweeney, 2016 ONSC 2248, paras. 16-17).
[30] Given that the Mother had only moved to her new municipality 6 to 8 days before commencing her motion, it is questionable that the child was ordinarily residing in the Markham area. There is case law that a recent, unilateral move will generally not be accepted as “ordinarily resides” as defined. Those three cases are: A.A.B v. A.P.J., 2012 ONCJ 546 at paras. 59-63; Benson v. Forsyth, 2012 ONCJ 304 at paras 15-29; and Sangha v Sangha, 2014 ONSC 4088 at paras 47-48.
[31] The Court is aware that Rule 5(2)(b) allows a motion to be heard elsewhere where there are allegations of danger to the party; however, it is to be transferred back to the usual venue (i.e.: where the child ordinarily resides) unless the court “others otherwise”. The words “orders otherwise” should be narrowly interpreted, as Rule 5(2) is designed to prevent forum shopping and the parties using self-help to remove the children from the municipality where they ordinarily reside (Van Roon v. Van Roon, 2013 ONCJ 276, at para. 70).
[32] The Court finds that the child was removed from the Ottawa jurisdiction by the Mother, notwithstanding the habitual residence of the child in Ottawa.
[33] The Court finds that the Father did not acquiesce in the removal of the child. The Court notes that he did not stop the Mother from leaving to go to Toronto, however, had he done so, there would have been a potential for him to have been charged with domestic violence.
[34] The Court notes that the Mother did commence her Application in the York Region very shortly before the Father commencing his Application in Ottawa.
[35] The Court finds that there was no undue delay by the Father in commencing the process.
[36] The Court finds that notwithstanding the fact that the Mother commenced her Application before the Father by a few days, that the proper jurisdiction for this matter to be dealt with is in the City of Ottawa. The parents lived here together, the Mother worked here, she went to school here, the child was born here and was raised here for approximately six months before the Mother unilaterally left for Markham.
[37] It was open for the Mother to leave the home, but she did not have to leave the jurisdiction. She chose to do so.
[38] Now she chooses to bring an Application in a jurisdiction that she has had no direct relationship with from January 1, 2017, until the middle of May 2017, which is approximately 17 months.
[39] The Court finds that the appropriate jurisdiction for the dealing of this matter is Ottawa.
[40] The Court orders that the Mother shall return the child to the City of Ottawa within 10 days of June 18, 2018 and the child shall remain in the Ottawa jurisdiction until the matter is dealt with by the Courts. The Court is aware that the Mother is breastfeeding the child and that if the child is ordered to be returned that in all likelihood she, in turn, will have to return.
[41] The Mother is to provide evidence within 15 days of June 18, 2018 that the child has been returned to the City of Ottawa and will remain here until the matter is dealt with by the Courts. That being said, if the Mother does not return the child to the Ottawa jurisdiction within 10 days from June 18, 2018, the Court orders that the police having jurisdiction to enforce this order, shall remove the child from the jurisdiction which she is located and return the child to this jurisdiction. In such a case the child will be placed with the Father until such time as the matter can be resolved.
[42] The Court orders that a copy of the Order be taken out by the Applicant’s counsel within the next 5 days after being approved as to form and content by the Mother. In the event that the Order is not approved as to form and content, it shall be provided to Kershman J. who shall review the Order to ensure that it is satisfactory, and, in such case, the Mother’s approval as to form and content of this Order is dispensed with.
[43] A copy of the order shall be filed in the Superior Court of Justice Family Court in Newmarket, Ontario, in Court File # FC-18-56204-00 and be brought to the attention of any judge dealing with the matter.
Costs:
[44] The issue of costs is reserved until the matter is finally dealt with. The Court orders that the costs of today are fixed at $500.
[45] Order to issue accordingly.
Mr. Justice Stanley Kershman
Date: June 20, 2018
COURT FILE NO.: FC-18-1001
DATE: 2018/06/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Billy Alcine, Applicant
AND
Princess Murray, Respondent
BEFORE: Justice Stanley Kershman
COUNSEL: Aaron Heard, for the Applicant
Jared Persaud, friend of the Court, for the Respondent via telephone
ENDORSEMENT ON MOTION
KERSHMAN J.
Released: June 20, 2018