Court File and Parties

COURT FILE NO.: 08-FD-336304 FIS DATE: 20190619

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brandy Denise Starring AND: Christopher Joseph Carrier

BEFORE: J .T. Akbarali J.

ENDORSEMENT

[1] I have been assigned to deal with a request for communication from a court in Michigan related to a proceeding that was finally determined in this court in 2008.

[2] On April 15, 2008, Paisley J. of this court heard an uncontested trial. His order arising out of that trial is dated April 18, 2008. It awards sole custody of the two children of the marriage to the applicant and provides for the payment of costs. It also divorces the parties.

[3] Since that time, it does not appear that this court has had any involvement with the parties or the children.

[4] On June 17, 2019, Craig Sewell, an Attorney/Referee for the Circuit Court - Family Division in Allegan County, Michigan, wrote to this court. In his email, he advised that a protective proceeding is pending in the Michigan court over which the Michigan court has assumed temporary emergency jurisdiction. Mr. Sewell believes two of the children are Canadian citizens residing in Michigan with the applicant. It appears these two children are the children of the marriage who were the subject of the custody order made by Paisley J. on April 18, 2008. Mr. Sewell states that this court also has jurisdiction over the issues pending in Michigan based on the prior divorce action.

[5] Mr. Sewell advises that under Michigan statutes, the Michigan court is required to communicate with this court regarding various matters, including jurisdictional issues on how to proceed. The Michigan court seeks a conference call with Paisley J. to address these issues. As noted, I have been assigned to respond to this request.

[6] There is a protocol in Ontario that governs how this court should deal with inter-jurisdictional communications between judges, titled "Protocol regarding inter-jurisdictional judicial communication with respect to cases of inter-jurisdictional child abduction". The protocol is designed to address inter-jurisdictional issues arising out of proceedings brought under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. I attach a copy of this protocol to this endorsement.

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[7] Although it is not clear to me whether Mr. Sewell is proposing a telephone call between judges or between a judge of this court and himself, and although Mr. Sewell's request is not related to a proceeding under the 1980 Hague Convention, this court has used the protocol referenced above in other cases as well: see Wallace v. Williamson, FS-19-8416-0000 (unreported). I conclude that it is appropriate to follow the protocol in the communication that the Michigan court seeks with this court. Nothing before me suggests that doing so would be contrary to the primary objective: s. r. 2(2), Family Law Rules, O. Reg. 114/99.

[8] This court's administrators will contact Mr. Sewell to arrange a telephone call with me and the appropriate representative of the Michigan court at which a court reporter shall be present.

[9] Consistent with the protocol, the communications between this court and the Michigan court shall be limited to procedural matters.

[10] This court does, however, require clarification from the Michigan court as to why it believes the involvement of the Ontario Superior Court of Justice may be necessary, and what, if any, position the parties to this application have taken as to jurisdiction, if any such position is known.

[11] This court would also benefit from additional background information, including a confirmation of the identities of the children, any information as to how long they have been resident in Michigan, and whether the Michigan court has any information as to the residence of either the applicant or respondent in the proceeding that was dealt with in this court.

[12] I have directed staff to retrieve the file for this application from storage and to serve this endorsement on the last known addresses for the parties and their counsel. At present, I do not know whether such service will be effective at bringing this endorsement to the attention of the parties.

[13] Either party may make a request to be present for the communication between this court and the Michigan court. If such a request is made, I will first communicate with the Michigan court to determine if both courts agree to permit the parties or their representatives to be present, consistent with the attached protocol.

[14] This court will issue a further endorsement after the call with the Michigan court.

Date: June 19, 2019

PROTOCOL REGARDING INTER-JURISDICTIONAL JUDICIAL COMMUNICATION WITH RESPECT TO CASES OF INTER-JURISDICTIONAL CHILD ABDUCTION

Preamble

WHEREAS the Canadian Judicial Council has recommended that courts across the country establish protocols to expedite the handling of inter-jurisdictional child abduction cases, including the facilitation of communications between judges at the inter-provincial level,

WHEREAS in the context of urgent cases and emergency situations such as inter-jurisdictional child abduction, it may be appropriate for a judge to communicate directly with another judge in a different national, provincial or regional jurisdiction.

AND WHEREAS direct judicial communications should be guided by certain safeguards accepted by the 2001 Special Commission on the Civil Aspects of International Child Abduction,

The Superior Court of Justice of Ontario and the Ontario Court of Justice, in consultation with the Central Authority, pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention) for Ontario, have established protocols for communications between judges internationally and across provincial jurisdictions and judicial regions within the province.

PROTOCOL

1. Liaison Judge

A judge from each of the Superior Court of Justice and the Ontario Court of Justice (as well as an alternate should he/she be unavailable) will be designated to be the Liaison Judges. Judges may contact the Liaison Judge for information or assistance with respect to the Protocol or they may initiate inter-jurisdictional communications directly based on the guidelines established in this Protocol.

2. Scope of the Communications

Communications between judges should be limited to logistical issues and exchange of information and not an exchange of opinion on findings of fact or matters of discretion for the judge before whom the case has been presented.

3. Notification of the Parties of Communication

Parties involved should be notified in advance, where possible, of the nature of the proposed communication.

4. Recording Communications

Both judges involved in the particular communication should keep a record of what was discussed, preferably using a recording device or court reporter, or alternatively both judges involved should, at minimum, make notes of the communication.

5. Consensus or Arrangement

Confirmation of any consensus or arrangements reached as between judges should be confirmed in writing and made available to the parties.

6. Participation of Parties

If both judges involved in the communication agree, the parties or their representatives may be permitted to be present during the communication.

If both judges involved in the communication agree to permit one party or representative to be present, then the other party or representative should be permitted to be present.

If both judges involved in the communication agree, the parties or their representatives may be permitted to speak during the communication.

If the judges involved in the communication agree to permit one party or representative speak, then the other party or representative should be permitted a chance to answer.