COURT FILE NO.: 253/19
DATE: 20191120
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kayla Bridget MacLean, Applicant
AND
Tyrone Darren Hill, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Peter S. McCullough, for the Applicant
None for the Respondent
HEARD: In Chambers
ENDORSEMENT
[1] This is an uncontested trial on affidavit evidence. I decline to make the substantive orders sought at this time for the following reasons relating to jurisdiction and procedural fairness.
Basic Facts
[2] The parties have one child between them, Lilian age 3. They separated in Newfoundland and Labrador (“Newfoundland”) on May 25, 2018. The applicant issued her application in Ontario on June 3, 2019 seeking custody of Lilian, child support, a restraining order, and “leave to apply in the Province of Ontario as the forum conveniens under s. 22(1) or (2) of the Children’s Law Reform Act, R.S.O. 1990, c. 12”. It is important to note that she relocated to Ontario from Newfoundland “in April 2019” which, as she did not indicate the specific day, could have been as little as 34 days before her application was issued. She indicates “I relocated to Ontario for medical reasons; an important medical procedure was only available to me in Ontario as well as family support: I had no family constellation in Newfoundland and the paternal grandfather has recently confirmed that the respondent is not residing in Newfoundland and is in fact residing in Ontario”.
[3] The applicant brought a motion seeking substitutional service on the respondent by way of regular mail on the paternal grandfather who still lives in Newfoundland, indicating that she was certain that he keeps in contact with the respondent. That motion was granted on July 30, 2019. The father has not responded to the application following the indirect service, hence this uncontested trial.
[4] In her affidavit sworn October 3, 2019, the applicant says “I commenced this application with the apparent acquiescence of the respondent/father” stating that he knew of her plan to relocate to Ontario since February 2019. However, she also discloses that “[t]he Respondent father now appears to reside with his father” and that on August 14, 2019 he started his own application in Newfoundland seeking “parenting” and a return of the child. She indicates that she has “declined to respond” to that process. She alleges deficiencies that she purportedly learned from unnamed court officials in Goose Bay, and says no order for custody, access, or parenting has been made.
[5] The applicant goes on to assert that there is substantial evidence of the child’s best interests in Ontario, namely she has a family doctor, an optometrist, and a daycare. Those same assertions were contained in the application, which means that these were all put in place sometime between the date she moved to Ontario in April and when she started her proceeding here on June 3, 2019.
[6] In view of the above, the applicant argues that “Ontario remains the most convenient forum” and “[t]he child is presently habitually resident in Ontario since April, 2019”. She added that “I fear harm to the child if she is required to relocate back to Newfoundland especially if the respondent returns since he has been violent and negligent to me, this child, and his other children in the past. I view the Court proceedings as a way of re-establishing control over me and high risk to the child”.
Law
[7] Subrules 10(5) and 1(8.4) of the Family Court Rules provide for an uncontested trial where no answer has been filed. Affidavit evidence may be used but only if it would have been admissible if given by the witness in court (subrule 23(21)(c)). Notwithstanding the lack of opposition, it goes without saying that the evidence must still entitle the applicant to the relief sought.
[8] The parties were not married so the threshold issue of jurisdiction is governed by subsections 22(1) and (2) of the Children’s Law Reform Act (“CLRA”) which read 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).
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] Section 40 of the CLRA provides that even where the court does not have or has declined jurisdiction it can still make certain orders for interim custody or access, staying the application, and/or a return of the child.
Analysis
[10] Regard must first be given to the ever-present issue of procedural fairness. Despite the order for substitutional service, there is now fresh evidence before the court that the applicant knows the respondent’s whereabouts. In my view further effort to involve him is required. In addition, communication between the two courts may become necessary to avoid conflicting orders and ‘forum shopping’, and the applicant has neglected to file a copy of the Newfoundland application.
[11] Having said that, I will comment briefly on the reasons why I would in any event decline to assume jurisdiction at this point on the evidence before me.
[12] The first question regarding this court’s jurisdiction is whether the child was habitually resident in Ontario when the application was commenced. As the parties were separated and there does not appear to be any written agreement or court order, per subsection 22(2)(b) the child’s habitual residence was “the place where … she resided … with one parent [the applicant] … with the … implied consent or acquiescence of the other [the respondent]”.
[13] While a fine point, I note that the applicant does not actually assert that the respondent acquiesced to the change in the child’s habitual residence. Rather what she says is that he acquiesced to her “commencing her application” here, which is not the same thing.
[14] According to Black’s Law Dictionary, Ninth Edition (Thompson Reuters, St. Paul, Minnesota, 2009), “acquiescence” means the same as implied consent, namely a person’s tacit or passive acceptance. The applicant makes two points. First, she asserts that the respondent knew in February 2019 of her plan to move. However, knowing of her plan is not the same thing as accepting an actual relocation. Second, the applicant refers to her understanding that at the time she moved the respondent had also relocated to Ontario. However, that appears to have come secondhand from the paternal grandfather, and the respondent was back at some point living with him in Newfoundland. In summary, not only is there a lack of evidence of implied consent, but the respondent has inconsistently taken his own step of bringing an application seeking a “return of the child”.
[15] I am not satisfied on the affidavit evidence before me that I can exercise jurisdiction on the basis that the child was habitually resident in Ontario on June 3, 2019.
[16] The question then becomes whether the applicant can meet all of the six tests in subsection 22(1)(b). While she focused on the last one (balance of convenience), in my view, given that the respondent has brought an application in Newfoundland seeking a “parenting” order, subsection 22(1)(b)(iii) has not been satisfied and this alternative basis for exercising jurisdiction is also not available. The relevant time for applying that test appears to be when the court is being asked to make the order, as only subsection 22(1)(b)(i) contains the qualifier “at the commencement of the application”. However, as I will be adjourning this uncontested trial to a court date, the applicant will have an opportunity to argue otherwise on the return. At that time issues with the evidence in support of the other tests (subsections 22(1)(b)(ii), (v), and (vi)) can also be addressed.
[17] Even though the applicant has made conclusory statements referring to fear of harm to the child in Newfoundland, there was no specific evidence, and no request was made for the court to assume jurisdiction under section 23 of the CLRA (‘Serious Harm To Child’).
Decision
[18] For the above reasons, I am not prepared to make the orders requested at this time, nor am I prepared to make an order under section 40. Rather, in my view the most prudent way forward is to make the following procedural orders:
(a) The applicant shall personally serve the respondent with copies of the Application, supporting materials, the ‘Form 23C: Affidavit for Uncontested Trial’, and this endorsement.
(b) The applicant shall file a copy of the Newfoundland court application and all supporting materials in her possession.
(c) Failing a response or further steps by the respondent, this uncontested trial shall be adjourned to a 1 hour hearing on the first available date that is 20 days after the Affidavit of Service with respect to (a) above has been filed. Jurisdiction is still an issue.
Mr. Justice Timothy Minnema
Date: November 20, 2019