Court File and Parties

KINGSTON COURT FILE NO.: 365/18 DATE: 20190621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: H., Applicant - and - D., Respondent

BEFORE: TROUSDALE, J.

COUNSEL: Douglas Haunts, for the Applicant D., Respondent is self-represented and appeared by telephone. Legal Aid Supervisory Duty Counsel, Leanne Wight spoke on his behalf on this motion with his written authorization but is not otherwise on the record

HEARD: May 29, 2019

Endorsement on Motion

[1] The motion before me is to decide whether the jurisdiction to determine the issues of custody and access of two children is the court in New York State or the court in Ontario.

Background

[2] The parties were married in Ontario in August, 2004. The Applicant (“the mother”) is a Canadian citizen and the Respondent (“the father”) is an American citizen. Apparently the children have dual Canadian/American citizenship.

[3] The parties have two children, a daughter whom I shall refer to as “child A” who is 13 years old, and a son, whom I shall refer to as “child B” who is 7 years old.

[4] The parties and child A (born 2005) were residing in a city in New York State in 2009. The father was away for military training and the mother returned to Ontario with child A. The parties continued their relationship and travelled back and forth between New York State and Ontario. Their second child, child B was born in 2011.

[5] In the fall of 2011, the mother was arrested and charged for being an accessory after the fact to the murder of a young child. Child A who was 5 years old and child B who was an infant at the time, were brought into the care of Ontario child welfare authorities who commenced court proceedings in Ontario. The father travelled from New York State to Ontario to visit with the children twice per week. In or about 2013, or 2014, depending on whose evidence is correct, the mother was sentenced to 4 years in prison in Ontario.

[6] On June 11, 2014, the Superior Court of Ontario in the protection Application placed the children in the care of the father under the supervision of the Society with conditions for a period of 6 months which included a gradual transition into the father’s care from June to August, 2014.

[7] At the same time on June 11, 2014, the Superior Court of Justice in Ontario made a separate Final order in the family matter placing the children in the sole custody of the father with supervised access to the mother. The Court and the Ontario child welfare authorities knew that the father resided in New York State and that the children would be residing in New York State with the father.

[8] In April, 2015 the Superior Court of Justice in Ontario terminated the supervision order made on June 11, 2014. The custody order made by the Superior Court of Justice on June 11, 2014 has never been varied or set aside.

[9] The children and the father continued to reside in a city in New York State. The mother was released from prison to a half-way house in Ontario on or about December, 2014. In or about 2016, the mother began to have visits with the two children during holidays and vacations.

[10] In 2017, the father asked the mother and the mother agreed to have child B live with her and go to school for Grade 1 in Ontario for the 2017/2018 academic year as the child was having some behavioural problems. The father’s evidence is that this was to be for one school year only. The mother’s evidence is that there was no time limit on child B living in and going to school in Ontario.

[11] Up to this time, child A had always attended school in New York State since being placed in the father’s custody in 2014, and once child B started school he had always attended school in New York State with the exception of the 2017/2018 school year. There is some suggestion by the mother that child B may have also lived with the mother in Ontario with the consent of the father for several months commencing April, 2015 but this is not entirely clear. In any event child B resided with the father and child A in New York State for the 2015/2016 school year and the 2016/2017 school year.

[12] At the end of the 2017/2018 school year child B was returned to the father in New York State where the father and child A were continuing to reside.

[13] On July 27, 2018, the mother attended at the father’s home in New York State to pick the children up for the weekend to attend a birthday party. The children were to be returned to the father at the end of the weekend on July 29, 2018. The mother did not return the children to the father at the end of the weekend and thereafter the mother refused to return the children to the father in spite of the father’s demands that she do so.

[14] The father took steps to try to get the children returned to his care without success. One of these steps was to contact the police in the city in which he resides in New York State. As a result of this contact and a subsequent deposition given by the father, the mother has been charged with two counts of custodial interference by the police in the city in which the father resides in New York State. The mother has been advised by the police in that city by letter that there is an active warrant for her arrest in the United States.

[15] The father also met with the police in the city in Ontario where the mother resides but was told they could not help him enforce the order.

[16] In or about July or August, 2018, the mother made allegations about the father’s care of the children to the local child welfare authorities in the city in which she resides in Ontario. The child welfare authorities indicated that they would not be opening a file as this is a custody/access matter that needs to be addressed in family court as there is a final order. The child welfare authorities in Ontario strongly recommended to both parties that they follow the current order while they both resolve this matter.

[17] On August 15, 2018, the mother commenced an Application in Ontario with a first return date of November 7, 2018 claiming custody of the two children and restricted access by the father, and an order to confirm that the jurisdiction on the issue of custody shall be the Superior Court of Justice in the city in which the mother resides in Ontario. A copy of the Ontario custody order made on June 11, 2014 was attached to the Application together with a copy of the Ontario order made in April, 2015 terminating the 6 month supervision order. The mother’s Application was not served on the father in New York State until October 29, 2018.

[18] The father wrote to the mother’s current counsel on September 5, 2018 as he had become aware that this counsel was acting for the mother in a custody case against the father. In the letter, the father enclosed a copy of the court orders made in 2014 and 2015 as aforesaid, and informed the mother’s current counsel that the Ontario order granting him custody was still in effect. The father requested the return of the children to him. This did not occur.

[19] The mother registered the two children in school in the Ontario city in which she resides in September, 2018 and they commenced school there at the beginning of the 2018/2019 school year. The father alleges that the registration by the mother of the children in school in Ontario for the 2018/2019 school year was done without his knowledge or consent.

[20] On November 19, 2018, the father commenced an urgent motion in the Superior Court of Justice in the Ontario city in which the mother resides, for relief including a request for an order for the return of the children to him forthwith and an order that the Superior Court of Justice in the city in Ontario where the mother resides has no jurisdiction to hear the mother’s Application as the children are habitually resident in New York State. The mother had not permitted the father to see the children since July 27, 2019.

[21] This motion was heard in the Superior Court of Justice in Ontario on November 28, 2018. The Justice hearing the motion stated in the endorsement that there was a dispute regarding jurisdiction which needed to be heard on a long motion. In the meantime, however, the Justice stated that the order made on June 11, 2014 is the current order and that the children were to be returned to the father in New York State pending further order. The parties then worked out on consent that the children would remain with the mother until December 21, 2018 so that they could finish the school term in Ontario prior to returning to the father in New York State. The Justice also ordered that a long motion be set on the issue of jurisdiction only.

[22] The children were returned by the mother to the father on December 22, 2018. The children have resided in the State of New York with the father since that time. The mother has had no physical contact with the children since that time but more recently has been able to have video chats with both children and Snapchat conversations with child A.

[23] In December 2018 after the children were returned by the mother to the father’s care, the mother contacted Child Protective Services in the city in New York State in which the father resides with allegations of abuse of the children by the father.

[24] On February 26, 2019, the New York State Office of Children and Family Services advised the father by letter that the results of the investigation into a report of suspected child abuse or maltreatment investigated by the local child protective services was determined to be “unfounded”. The letter went on to say that “This means that CPS did not find believable proof (credible evidence) that a child was abused or mistreated.”

[25] The motion regarding jurisdiction was originally scheduled to be heard on March 13, 2019. However, there was a dispute between the parties regarding the evidence to be used and ultimately, the motion was further adjourned to May 28, 2019 so further material could be filed. The motion on the issue of jurisdiction only was heard by me on May 28, 2019.

Issue

[26] Should jurisdiction regarding custody and access of child A and child B be in Ontario where the mother resides or in New York State where the father resides?

The Law

[27] Neither the mother nor the father has requested relief pursuant to or relied upon the Hague Convention. Accordingly, as per Ireland v. Ireland, 2011 ONCA 623 (C.A.), if there is no application brought under the Hague Convention to address custody and access issues, the issues before the court are to be determined on the basis of domestic legislation.

[28] Section 19 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (herein “the Act”) sets out the purposes of Part III of the Act which is entitled Custody, Access and Guardianship. That section states the following:

19. The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario. R.S.O. 1990, c. C.12, s. 19.

[29] Section 22 of the Act deals with the issue of jurisdiction and states 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.

(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.

(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.

[30] In Dovigi v. Razi, 2012 ONCA 36, the Ontario Court of Appeal at paragraphs 9 to 13 summarized the jurisdiction of Ontario courts over custody disputes as follows:

[9] The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.

[10] First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.

[11] Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met. [page597]

[12] Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.

[13] Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.

[31] Section 22(1) of the Act requires that the court first determine the habitual residence of each child.

[32] Section 22(2) of the Act defines habitual residence. The applicable paragraph to the situation before me is Section 22(2)(b) as the parents are living separate and apart.

[33] There is no separation agreement but there is a court order made by the Superior Court of Justice in Ontario on June 11, 2014 granting custody of child A and child B to the father who on the face of that order has his residence shown as residing in a city in New York State where he still resides.

[34] Pursuant to that order the mother has supervised access to the two children pending any further order from this court. The supervision is be performed by a person approved by the child welfare authorities in the region where the order was made.

[35] The order goes on to state that any variation of the custody or access order for the mother shall only be made following notice to the child welfare authorities where the order was made. There is no evidence that the mother has served her Application in this court on the child welfare authorities where the order was made.

[36] Although both children were present in Ontario at the time the mother commenced her Application, in looking at habitual residence, it must be borne in mind that under s. 22(3), one parent cannot arbitrarily change the habitual residence of a child by removing or withholding the child without the consent of the person having custody of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is being removed or withheld.

[37] Child A had resided with the father in New York State from August, 2014 to July, 27, 2018 except for some holiday and vacation visits with the mother until the mother picked up child A and child B from the father’s home in New York State with the father’s consent to attend a birthday party in Ontario, with child A and child B to be returned to the father on July 29, 2018. Up to that time child A had attended school in New York State since Sept. 2014.

[38] On the evidence before me, I find that there is no question that child A is habitually resident in New York State with the father. Pursuant to s. 22(3) of the Act, the mother could not change the habitual residence of child A by withholding the child from the father without his consent.

[39] The situation with child B is slightly more complicated. Child B had resided with the father in New York State from August, 2014 to September, 2017 except for some holiday and vacation visits with the mother. It is acknowledged by both parties that child B lived in Ontario with the mother and attended Grade 1 in Ontario with the consent of the father from September, 2017 to June, 2018 when the child was returned to the care of the father in New York State. The father’s evidence is that he only consented to child B residing with the mother for one school year. The mother’s evidence is that there was no time limit set for child B to remain in Ontario.

[40] There is nothing in writing between the parties regarding the understanding upon which child B came to reside with the mother and to attend school in Ontario for the 2017/2018 school year. On the evidence before me, I have come to the conclusion that child B is habitually resident in the State of New York. In so doing, I have taken into account the following:

(1) The father has a custody order for both children since June 11, 2014 which remains in full force and effect. Although the custody order was made in Ontario, it was quite clear that the children would be residing with the father whose residence was in New York State.

(2) Child B did live in Ontario with the mother for one school year for the purpose of attending school here but Child B was returned to the care of the father by the mother at the end of the 2017/ 2018 school year;

(3) Child B has resided in New York State with the father and child A for the better part of three out of four years prior to being withheld by the mother at the end of an access visit on July 29, 2018;

(4) The mother in her affidavit material does not say that the father consented to her removing child B (or child A) to Ontario for more than the Birthday weekend. She states that she did not return the children to the father as she “did not feel it was safe for them there, and their needs were not being met.” These allegations have not been verified as will be discussed later in this endorsement.

(5) I find that the father did not consent or acquiesce to the mother withholding child A or child B at the end of a weekend access visit on July 29, 2018. On the evidence I find that the father took a number of steps to try to have child A and child B returned to his care commencing August 1, 2019, including contacting police in both jurisdictions, contacting child welfare authorities in the city where the mother resides and in the city in Ontario where the child protection order and the custody order were originally made, contacting the mother’s lawyer with a copy of his custody order, and bringing a motion for the return of both children to his care and for a declaration that the jurisdiction is New York State.

(6) By his actions, the father made it quite clear to the mother and to other authorities in Ontario and in New York State that he had an order for the custody of the children and that he was not consenting to the mother not returning the children to him at the end of the weekend on July 29, 2018, as agreed.

(7) I find that the mother exercised self-help in withholding both children from the father rather than following due process.

[41] As I have made the finding that both child A and child B are habitually resident in New York State, this court in Ontario has no jurisdiction to make an order for custody of the children under s. 22(1)(a) of the Act.

[42] Accordingly, I must now determine whether this court has jurisdiction to make an order for custody under s. 22(1)(b) of the Act. In the case of Turner v. Viau, 2002 ONCA 41671, at paragraph 9, the Ontario Court of Appeal confirmed as follows:

We agree with the statement in Obregon v. Obregon (1984), 1984 ONSC 576, 39 R.F.L. (2d) 164 (U.F.C.) that “under s. 22(1)(b) [of the Children’s Law Reform Act] a court may exercise jurisdiction over a child not habitually resident in Ontario at the time of the commencement of the application only if all of the six criteria in that section have been satisfied”.

[43] S. 22(b)(i) requires that the child is physically present in Ontario at the commencement of the application for the order. I find that both children were physically present at the commencement of the application for the order. However, the children were physically present because the mother refused to return them to the father in New York State on July 29, 2018 as agreed.

[44] S. 22(b)(ii) requires that substantial evidence concerning the best interests of the child is available in Ontario. I find there is some evidence in Ontario regarding the children, and particularly child B as he went to school here for the 2017/2018 school year, as well as for the fall term in the 2018/2019 school year. The mother’s evidence is that both children also have a doctor and dentist in Ontario, but each of them also has a doctor and dentist in New York State, and the New York State records would cover a longer period of time and be more up to date at this time as both children are residing in New York State with the father. All of child A’s school records with the exception of the fall term in the 2018/2019 school year are in New York State.

[45] S. 22(b)(iii) requires that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child habitually resident. At the time that this Application was commenced by the mother in Ontario, there was no such extra-provincial application pending in New York State. At the hearing of this matter, I became aware from submissions of both counsel that the father has commenced a proceeding in New York State in or about November, 2018 to obtain an order of a New York Court confirming his Ontario June 11, 2014 custody order.

[46] It should be pointed out that the father does have a final custody order made in Ontario on June 11, 2014 which has not been varied or vacated. Accordingly, the mother should have commenced a Motion to Change that final order rather than commencing a fresh Application as if there had been no prior court proceedings. In addition she should have served the child welfare authorities who were involved at the time the custody order was made as per the required term to do so contained in that custody order. To my knowledge the mother has not done so.

[47] S. 22(b)(iv) requires that no extra-provincial order in respect of custody or access to the child has been recognized by a court in Ontario. I do not believe that this is the case. I note that the Ontario court order granting custody of both children to the father made on June 11, 2014 has been recognized by this court on November 28, 2018 as being the current order.

[48] S. 22(b)(v) requires that the child has a real and substantial connection with Ontario. Child B has had a greater connection to Ontario than child A as he has spent more time here. Both children do have some connection to Ontario through their mother, her friends, her and their membership and involvement in a First Nations Band in Ontario and its culture and their involvement in extracurricular and other activities while they were here. From July 29, 2018, however, the children were withheld in Ontario by the mother from the father. I find that child A and child B have over the years had a much more real and substantial connection to New York State.

[49] S. 22(b)(vi) requires that on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. As I have previously stated, both children have resided for a much longer period in New York State with their father than they have resided in the city in Ontario where their mother resides. Many of the witnesses who are dealing with the children now and in the past regarding schooling, health, counselling, extra-curricular activities and general well-being are in New York State.

[50] The mother alleges that the father has been abusive to the children and that he has not provided properly for their needs. The father will want to call evidence from witnesses in New York State to refute these allegations.

[51] The mother raises the issue that if jurisdiction is found to be in New York State, she will have difficulties in attending in New York State as there is a warrant out for her arrest. I note that the mother presented as evidence a copy of a letter to her dated January 1, 2019 from the Department of Police in the city where the father resides. In the letter it is stated “Please contact me at (phone number) to make arrangements to surrender yourself in this matter and the warrant lifted. I urge you to take advantage of this notification to resolve this matter on your own terms.”

[52] The warrants against the mother in New York State arose because of her conduct in exercising self-help by withholding the children from the father rather than following due process. It appears that the mother could take steps to have the warrant lifted so that she could attend court in New York State, but there is no evidence before me that the mother has taken any steps to have the warrant lifted.

[53] S. 19(c) of the Act sets out the purposes of the Act, which include discouraging abduction of children as an alternative to the determination of custody rights by due process. In addition that section recognizes that concurrent exercise of jurisdiction by judicial tribunals of more than one province or state regarding the same child are to be avoided, and that the courts of Ontario, unless there are exceptional circumstances, will refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection.

[54] I find on the balance of convenience that it is appropriate that the issue of custody of both children be dealt with together in the same jurisdiction of New York State where the children have a much closer connection. I find that on the balance of convenience on the facts of this case, it would not be appropriate for jurisdiction to be exercised in Ontario.

[55] Accordingly as not all of the 6 requirements have been met under Section 22(2)(b) of the Act, I find that the Ontario court should not exercise its jurisdiction to make an order for custody in this matter pursuant to s. 22(2)(b).

[56] The mother has alleged that the father has been abusive to the children and is not providing for their needs. As the children have been already been returned to the custody of the father pursuant to the temporary order made in this court on November 28, 2018, I do not need to consider whether the Ontario court should exercise jurisdiction to make or to vary an order in respect of the custody of or access to the children pursuant to s. 23 of the Act which permits the Ontario court to assume jurisdiction if the court is satisfied that the children would, on the balance of probabilities suffer serious harm if they were returned to the father as the person having legal custody of the children.

[57] With regard to the allegations of the mother about the father’s alleged mistreatment of the children, I do note that the child welfare authorities in the city where the mother resides were not prepared to take any action. The child welfare authorities in New York State investigated the allegations and found that they were unfounded.

[58] I have not been requested to exercise my parens patriae jurisdiction nor do I find that there is any reason to do so as there is no legislative gap. Section 22 of the Act provides a complete code with respect to determining jurisdiction in this matter.

[59] I find on the evidence before me that the Ontario court does not have jurisdiction in this custody matter as this matter does not fit within the four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child as set out above by the Ontario Court of Appeal in Dovigi.

Conclusion

[60] I find that on reviewing the legislation and the facts of this case on the evidence before me, the court in Ontario should not exercise jurisdiction regarding the custody and access of child A and child B. I find that the father has a custody order regarding the two children and that their habitual residence is in New York State. Both children have a much closer connection to New York State than Ontario and I find that the appropriate court in New York State has jurisdiction to determine any issues regarding custody and access of child A and child B.

[61] I find that the Applicant’s Application commenced on August 15, 2018 in the Superior Court of Justice in the Ontario city in which the Applicant resides, shall be dismissed.

Costs

[62] If the parties are unable to agree on the issue of costs between themselves, the Respondent may serve and file written submissions as to costs of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle by July 5, 2019. The Applicant shall have 14 days after receipt of the Respondent’s submissions to serve and file written submissions of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle. The Respondent shall have 7 days after receipt of the Applicant’s response to file written reply submissions of no more than two typewritten pages. If no submissions are served and filed within this timeframe, there shall be deemed to be no order as to costs.

Order

[63] Order to go accordingly.

Justice A. C. Trousdale Released: June 21, 2019