Court File and Parties

Newmarket Court File No.: FC-18-56083 Date: 20180921 Superior Court of Justice - Ontario

Re: Alvaro Antonio Aguilar Ponce, Applicant And: Karine Dulac, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: A. Di Battista, Counsel for the Applicant D. Vasilescu, Counsel for the Respondent

Heard: September 19, 2018

Ruling on Motions

[1] There are two motions before the court. Both deal with the issue of the jurisdiction of this court to hear and determine custody and access of two children.

[2] The applicant (“father”) started a Divorce Application on April 30, 2018 in the Ontario Superior Court of Justice. Among other relief, he has claimed custody of the children. On May 3, 2018 the respondent (“mother”) started divorce proceedings in Québec. She also asked for custody of the children. This court was advised when the motions were argued that the Superior Court of Québec has adjourned the mother’s proceedings pending a decision of this court about the children's residence.

Background Facts

[3] These are the facts relevant to the parties’ motions:

(a) the parties married in Québec on February 26, 2012;

(b) there are two children of the marriage, a daughter (initials “AMAVAD”) born August 22, 2011 and a son (initials “AMAJPAD”) born January 14, 2015;

(c) the parties separated on December 1, 2014 shortly before their son’s birth;

(d) the children resided primarily with their mother in Montréal after the parties separated, and their was born;

(e) in or about June 2015 the father moved to Ontario for employment reasons. He maintained rental accommodations in Montréal until July 2018;

(f) until August 2017 the children enjoyed regular access with their father in Montréal and in Ontario for extended periods;

(g) in a July 15, 2017 text message exchange, the mother told the father;

“I always wanted to have children and I thought it would be the answer to my happiness… I was wrong… since they were born all I had has been pain and deception… so keep them… you will do a better job than I do… me Im (sic) too tired and fed up for it.”

(h) the father picked up the children from the mother's residence on or about July 16, 2017. This would have been the start of the children’s summer access with him. Since then they have resided with their father in Ontario. The parties dispute whether there was an agreement between them that the children's residency with their father was intended to be temporary only until such time as the mother was able to complete an educational program in Québec ending in December 2018. She was also employed;

(i) between July 16, 2017 and the start of their parents’ legal proceedings in Ontario and Québec respectively, the children enjoyed access with their mother at their father's residence in Woodbridge, Ontario and when the father took them to Montréal. In addition to telephone contact between the children and their mother, the children spent 15 days with their mother in Woodbridge between August 2, 2017 and April 1, 2018 and 38 days with her in Montréal between November 4, 2017 and August 21, 2018. During those times when the mother saw the children in Woodbridge, that time was spent at the father's residence, as it was cost efficient and convenient for the children. When the children spent time with their mother in Montréal, the father stayed in his rental premises;

(j) in her text to the father sent August 21, 2017 the mother said that her school program “ends in december (sic) 2018… so you will have the kids for 2 years…”

(k) in a September 7, 2017 text exchange the wife suggested that the parties “start the divorce” to which the father responded that they could;

“…start the divorce whenever you like.”

(l) in a September 15, 2017 text message to the father the mother thanked him for his support of her and in a September 17, 2017 text exchange she wrote;

“… once my school is finish (sic) we will have to found (sic) a way to be both present in our kids life… I cannot live away from them and I'm sure it is the same for you… We have to live in the same town so that they can enjoy both of their parents…”

(m) the father enrolled the parties’ daughter in grade 1 at a local French school in 2017 so that she would maintain her French heritage. She is currently attending grade 2 at that school. The son is registered in a senior kindergarten program at a learning centre near the children's home with their father in Woodbridge;

(n) the cordiality of the parties’ relationship deteriorated near the end of 2017/early 2018. The mother discontinued her studies in early January 2018 due to what she claimed was mental and physical fatigue caused by the combination of her work and studies, and emotional distress because she missed the children. It is a reasonable inference that around that time the parties discussed the children’s residency because the father reminded the mother on February 5, 2018 of her July 15, 2017 text to him that he would do a better job than her in parenting the children;

(o) the children spent nine days between March 10 to 19, 2018 in Montréal with their mother and three days with her between March 30 to April 1, 2018 in Woodbridge;

(p) on April 30, 2018 the father started his Application. He was self-represented. He claimed a divorce, custody of and support for the children, sole authority to make travel decisions involving the children and costs;

(q) on May 2, 2018 the mother texted the father “When are you sending me those papers of divorce?”;

(r) on May 3, 2018 the mother commenced parallel divorce proceedings in the Québec Superior Court of Justice and asked for a divorce and custody of the children;

(s) the father's Application was served on the mother on May 9, 2018;

(t) the father amended his Application on June 26, 2018. Under “IMPORTANT FACTS SUPPORTING MY OTHER CLAIM(S) the husband alleged in paragraph 13;

“In July 2017, the respondent told the applicant to take the children to Ontario for a period of one or two years because the respondent was going to lose her job and she wanted to attend school. Since that date the respondent quite (sic) her position of employment and has made very little effort to visit the children”

(u) the mother delivered her Answer on or about June 28, 2018. She disputed (among other things) the jurisdiction of this court to determine the father's corollary relief claims involving the children, and she claimed that the parties;

“…agreed, in August of 2017 that the children will reside with the Father, in Ontario, for one [1] year, until July 2018, when the mother anticipated she would be able to graduate from Rosemont College.”

[4] The father's Notices of Assessment for 2015-2017 are addressed to his Montréal residence. His evidence is that he filed his income taxes in Québec and not in Ontario to take advantage of the more favourable tax treatment of his Montréal rental costs even though his business was registered, and conducted, in Ontario. The father said that he maintained a Montréal telephone number to avoid the mother having to pay long distance charges when she spoke to the children.

[5] The father objected to the inclusion in the mother’s affidavit of a record of the children's pediatrician’s records for medical appointments at that Montreal clinic from after their birth to and including June 26 and 29, 2018 (these are dates when the children do not appear to have been in their mother's care).

[6] It is unchallenged that the children's Health Cards are from the Province of Québec.

Analysis

[7] Section 22 of the Children's Law Reform Act provides a two-step jurisdiction test for determining a child’s residency. Subsection (1) 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).

[8] Habitual residence is defined by subsection (2),

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.

[9] The issue in this case is whether the parties agreed, expressly, impliedly or acquiesced to the children habitually residing with their father in Ontario or whether the change in residency was time-limited. If this court should determine that the children are habitually resident in Ontario then pursuant to subsection 22(1)(a) that is the end of the matter. If, however, the court should decide that the children are not habitually resident in Ontario then the provisions of the section 22(1)(b) are engaged. All of the criteria in that subsection must be satisfied before jurisdiction will be assumed. Turner v. Viau (2002). In this case, subsection 22(1)(b)(iv) does not apply because there is no existing extra-provincial Order.

[10] Neither of the parties’ pleadings is consistent with their text exchanges during July and August 2017 dealing with the change in the children’s residency and whether there was a time-limited agreement to shift habitual residence. What is clear is that the mother, on her own initiative, asked the father to take the children to live with him in Ontario. There was no time-limited condition to that request. There is no evidence that was ever discussed. The mother asserted afterwards, on August 21, 2017, a limitation that varied according to when she graduated from college, first that was expected to happen in December 2018 (in her August 21, 2017 text) then (in her Answer) in July 2018. There is no evidence, independent of the parties’ allegations, such as an email or text exchange, that the father ever acknowledged the mother’s unilaterally-imposed condition, that he agreed to it, or that he acted in a way that caused the mother to rely on those actions so as to believe that he accepted her limitation.

[11] The mother points to the father’s rented Montreal premises and the children’s medical care in Quebec as evidence supporting her claim that the children’s habitual residence never changed from that province. That evidence is equivocal in my view because it is clear that, given the mother’s circumstances, the father took the children to Montreal to visit with her and made available his residence in Woodbridge for her to see the children there too. These were financial imperatives underpinning the parties’ arrangements which can only be viewed as benefitting the children.

[12] The fact is that the mother changed her mind when she discontinued her studies. It is reasonable to infer that was the reason for the father’s February 5, 2018 email to the mother reminding her about her July 15, 2017 text that he take custody of the children. Knowing, or reasonably suspecting the father’s position, the mother planned for the children’s summer access with her and did nothing until after the father started his proceedings in Ontario. There is no evidence explaining why the mother did not act sooner. That the mother regretted her decision should not alter the fact that she knowingly agreed to change the children’s residency to the father: she should not be entitled to unilaterally impose unacknowledged time limitations of an indeterminate or contingent nature.

[13] Accordingly, the following is ordered:

1. The habitual residence of AMAVAD born August 22, 2011 and AMAJPAD born January 14, 2015 is declared to be the Province of Ontario.
2. On a without prejudice basis to the parties’ claims for custody, the children shall primarily reside with their father.
3. The children shall have broad and generous time with their mother as the parties may agree. Leave is granted to the mother to, if necessary, bring a motion for access prior to a Case Conference.
4. The mother shall file a financial statement in the prescribed form by October 12, 2018.
5. The parties shall forthwith arrange with the court offices for a Case Conference to proceed on the earliest available date. Leave is granted to the mother to participate in the conference by telephone or video to be arranged by her counsel.

[14] This has been a difficult decision. It is not possible to determine at this time where lie the best interests of the children. Nor is that a relevant consideration at this juncture. Costs of the parties’ motions should be reserved to the final disposition of these proceedings. However, if the parties wish to claim costs and are unable to agree, the following is directed:

(a) the party seeking costs shall deliver their submissions by October 5, 2018;

(b) the other party shall deliver their submissions by October 17, 2018; and

(c) reply (if any) shall be delivered by October 23, 2018.

[15] Submissions shall be limited to four pages; reply to two pages. All pages shall be double-spaced and filed in the Continuing Record. Offers to Settle, Bills of Costs and any Authorities upon which a party may wish to rely shall be filed by the deadlines noted in 14 to (c) above. Counsel are requested to notify the judicial secretary when their submissions are filed at nurit.suzana@ontario.ca.

Justice David A. Jarvis Date: September 21, 2018