Court File and Parties
COURT FILE NO.: 998/13 DATE: 2020-08-14 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.T.W., Applicant AND: K.A.W., Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. P. Dehm, Counsel, for the Applicant Mr. S. Heeley, Counsel, for the Respondent
Endorsement
[1] The pre-Labour-Day “Let’s Change Johnny’s School” urgent motion has become somewhat of an unwanted annual tradition in family court.
[2] Sometimes it’s just the school.
[3] Sometimes it’s the city where the child is to live.
[4] Usually it involves an attempt to change the child’s primary residence from one parent to the other.
[5] In this case there’s a request to suddenly change the country where three adolescents are going to live and attend school.
[6] Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation.
[7] And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations.
[8] Why the frantic rush? a. Because the selection of a child’s school has so many implications in terms of long-term parenting arrangements. b. If a parent establishes enough concerns to justify quickly switching the child to the school in their city or neighbourhood, that instantly creates a new status quo which will have far reaching consequences. c. Judges rarely disrupt children’s enrolment once the school year is underway. So even if the initial concerns end up being unfounded or overstated, once the child becomes settled in a new school, the court will be reluctant to further disrupt this vitally important aspect of children’s daily lives. d. So if you can win the “school issue” by Labour Day – even on a “temporary” basis – it has enormous strategic consequences for the parent. e. And even more profound consequences for the child.
[9] Lawyers know this.
[10] Judges know this.
[11] And high conflict parents quickly learn this.
[12] So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days.
[13] Before the first school bell rings.
[14] It’s a lot to have to decide in a hurry, based on incomplete information.
[15] Judges don’t like being rushed. And we don’t approve of brinksmanship.
[16] So while judges dealing with custody issues always have to consider the big picture – this time of year, they especially have to guard against the potential for litigation strategy to conflict with a child’s best interests. We must be responsive to real problems, while at the same time discouraging transparent attempts to re-set the status quo.
[17] Sometimes in a parenting dispute, when you ask – and where you ask – is an important as what you ask for.
Background
[18] Some background information about this family: a. The parties were married in 2003 and separated in May 2013. b. They have three children: a 15 year old daughter S.M.; a 13 year old daughter C.R.; and a 10 year old son C.T.. c. At the time of separation, the family was permanently resident in Hamilton.
[19] On June 28, 2013 – commendably soon after separation – the parties obtained a final order from this court incorporating terms which the parties had agreed to in mediation. Justice McLaren’s consent order included the following terms: a. The parties share joint custody. They shall share an equal voice in the major decisions concerning the children, including but not limited to educational programming, religious instruction, and non-emergency medical intervention. b. Each parent can make minor or day to day decisions while the children are in their care. c. The parties shall share important information and documentation. d. The Respondent mother shall have primary residence. e. The mother may relocate the children’s primary residence to St. Louis, Missouri, with relocation intended to occur in July 2013 (also remarkably soon after the separation). f. The mother may apply for the children’s passports. g. The mother may apply for a change to the children’s citizenship. h. The Applicant father shall have periodic blocks of time with the children in Hamilton totalling about 11 weeks per year, with most of it being in the form of an extended visit from June to August each summer. i. The parties shall share transportation responsibility to facilitate timesharing. j. Each parent shall have liberal communication with the children through cell phones or Skype, when the children are with the other parent. k. Neither parent to make or allow negative statements about the other parent in the presence of the children. l. Both parents to attempt to be civil, verbally and in writing. m. They must keep one another informed of any changes of address and phone numbers. n. Each parent to provide 90 days notice of any intention to change their residence. o. Commencing July 15, 2013 the father to pay child support in the sum of $1,500.00 per month (described as voluntarily higher than the $1,264.00 table amount applicable to his projected annual income of $65,000.00). p. Mutual annual financial disclosure. q. “The Applicant and Respondent shall undertake to work out any differences between them and use the courts only as a last resort should any change in material circumstances arise. The process of dispute resolution shall begin with negotiations between themselves first and escalate to consideration of mediation or collaborative law, then mediation/arbitration hybrid, then parent co-ordination or arbitration prior to seeking relief from the court.” (Emphasis added)
[20] The parties complied with the order: a. In July 2013 the mother and the children relocated permanently to St. Louis. The father remained in Hamilton. b. Since 2013 timesharing has occurred as set out in the order. The father sees the children several times a year, including for most of each summer. c. (On November 25, 2014 Justice Lafrenière lowered the father’s child support payments to $1,068.00 per month based upon an imputed income of $55,000.00).
[21] In the intervening period both parents have entered into new relationships: a. The mother remarried in St. Louis. She and her husband have a three year old daughter, and the mother is expecting a second child of this relationship this month. b. The father has a new partner in Hamilton.
[22] Pursuant to the joint custody order, the parents agreed upon the father’s summer access for 2020. a. Pursuant to the agreement, the three children arrived in Hamilton on June 20, 2020. b. They were supposed to return to the mother in St. Louis on August 9, 2020.
[23] On July 22, 2020 the father brought a motion to change parenting arrangements and child support.
[24] On July 30, 2020 the father brought the urgent motion I am currently dealing with. Among the relief requested: a. “An order that the court exercise its inherent jurisdiction to stay, on a temporary basis, the order of Justice McLaren dated June 28, 2013.” b. An order that the court exercise its jurisdiction in this matter pursuant to s.22(1)(b) of the Children’s Law Reform Act; or in the alternative s.40(b); or in the further alternative s.23. c. An order that on a temporary basis the three children reside with the father in Hamilton. d. An order that on a temporary basis the father be permitted to register the children for school in Ontario without the consent of the mother. e. An order that the Office of the Children’s Lawyer (“OCL”) be requested to intervene on behalf of the children.
[25] On July 29, 2020 the mother brought a cross-motion requesting that the father’s motion be dismissed or in the alternative stayed; and that the Ontario Superior Court of Justice decline to accept jurisdiction to determine the father’s claims.
[26] The father filed two affidavits, with a supporting affidavit from his sister. The mother filed a single affidavit.
[27] Given the timelines and the nature of the issues, I determined that the motions were urgent and allowed them to proceed on the initial return date of August 12, 2020.
The Allegations
[28] I will briefly review the reasons why the father says the existing order should be changed, to allow the children to remain with him in Hamilton.
[29] Much of his argument relates to the oldest child, 15-year-old, S.M.: a. He says she wants to live with him in Hamilton. She has expressed this to him “regularly over the years.” b. He says in July 2019 S.M. told the mother she wants to live with the father, but the mother refused. c. He says one of the issues is S.M.’s sexual orientation. About a year ago S.M. disclosed to the father that she is gay, but the teenager was uncomfortable revealing her sexual orientation to the mother. The father says he has embraced and encouraged his daughter’s sexual orientation, but that the mother has not. d. He says S.M. has been bullied at school as a result of her sexual orientation. e. He says S.M. finally revealed her sexual orientation to the mother in a telephone call from the father’s home in June 2020. He says S.M. wanted him present for the phone call. He said the mother’s response was that she did not “agree” with S.M. “being gay”, but that she still loves her daughter. f. He also disapproves of the fact that the mother started homeschooling S.M. in 2017. He says S.M.’s academic progress lagged as a result. More recently, S.M. has returned to the regular school system. But the father is still concerned about her progress.
[30] The mother’s response in relation to the oldest child: a. S.M. has never expressed any unhappiness or discontent with residing in St. Louis with the mother. b. Over the years, S.M. has had mixed feelings about the father. At times she has resented him for abandoning her and her siblings. The mother always encouraged their relationship, and sought counselling to assist S.M. with her anger towards the father. c. The father has pressured and manipulated S.M. while she has been with him for the summer. The child wants to have a good relationship with her father and has been vulnerable and receptive to his coaxing. d. There is no issue in relation to S.M.’s sexual orientation. The mother has known “for some time” that S.M. is gay. The mother was simply waiting for S.M. to “tell me on her own, when she felt the time was right.” e. The mother denies the father’s allegations that she is intolerant or unsupportive of S.M.’s sexual orientation. The mother described the father’s allegations as extremely insulting and hurtful. f. The mother admitted she didn’t approve of her 15 year old daughter attending a gay pride festival because it was an “extremely sexualized” event, intended for adults. But she accepts S.M.’s sexual orientation unconditionally. It doesn’t change the mother’s love for her child. She feels the father is exploiting this sensitive topic to try to drive a wedge between S.M. and the mother. g. As for home schooling, S.M. was having difficulty at school for a number of reasons, including the fact that the child suffers from scoliosis. The mother has been extensively involved in arranging medical treatments and physiotherapy for S.M. in St. Louis. h. The mother says she started homeschooling S.M. in 2017. The father knew about it all along, because she consulted him and kept him informed. She says S.M. has made significant academic progress while home schooled, and she is doing well now in the regular school system. i. She disputes the father’s allegation that she is inattentive to S.M.’s educational needs. She notes that the youngest child C.T. is a consistent straight A student, actively involved in many extracurricular activities. Similarly, 13 year old C.R. made the Middle School Honour Roll last year, and hopes to make the district swim team this fall. She is attentive to all of her children’s educational needs. j. She says all three of her children have been doing well in her care during the seven years since separation. She feels the father is trying to fabricate problems, or exaggerate minor issues – mainly because he wants to stop paying child support.
[31] The father says the younger two children have also expressed a desire to remain with him in Hamilton, although he provides few particulars. The mother says all of the children are happy living with her and visiting the father.
[32] The father says housing is an issue. a. He says he and his wife live in a five bedroom home, with lots of room for the children. He says in contrast the mother’s rented duplex is overcrowded, and it will be even more overcrowded when the mother gives birth to a fifth child this month. b. The mother disputes that her housing is inadequate. She acknowledges she and her husband are looking for a larger residence, because their family is growing.
[33] The father says the mother has too many responsibilities and commitments to properly care for the children in St. Louis. a. He says the mother’s responsibilities toward her three year old and the new baby will mean she has insufficient time to focus on their three children. He says she also has to help look after her elderly parents who live in another state. b. The mother denies spending time away from home caring for her parents. She denies any lack of parenting skills or ability to be attentive to the children. Her husband has a full-time job and she is a full-time mother and homemaker. She says all of the children are doing well. And the three oldest children have a close sibling relationship with the three-year-old. Everyone is looking forward to the arrival of the baby.
[34] The father complains the mother hasn’t taken the children to the dentist during the seven years they have lived in Missouri. The mother says dental care in the United States is very expensive. She says she explained to the father that she has now obtained insurance, and she will schedule an appointment for the children to see a dentist as soon as the offices re-open after the COVID shutdown.
[35] The father admits he’s known about some of these problems for quite some time. But he says the COVID pandemic has now created a situation of urgency.
[36] The father says he has COVID-related concerns both about the mother and the city/country where she lives. a. He says he and his wife are adhering to all COVID safety protocols, but that the mother refuses to do so. b. She won’t wear a mask and doesn’t require the children to do so. c. She recklessly took the children on a long weekend vacation to Gulf Shores, Alabama in May 2020. d. He says she has announced she has no plans to get vaccinated against COVID or allow the children to be vaccinated. e. He says the mother told him that everyone should be exposed to the COVID virus so that their immune system may be built up.
[37] The mother says the father’s allegation that she is not COVID-safe is nonsense. a. Says his allegations about her not taking precautions and about her beliefs are blatantly false. She notes that he fails to provide the source of his information. b. She says her family has strictly complied with COVID precautions, including handwashing, social distancing and wearing masks. She says the father is fully aware she uses masks, because during the access exchange at the beginning of his summer visit, the mother asked the father if he needed masks for the children, and the father said he already had some. c. She says she only has contact with immediate family, in accordance with the State of Missouri “Stay At Home” order. d. She is 100% committed to complying with all protocols. e. She admits she took the children on a May vacation in Alabama, but at the time there was no restriction or recommendation against that type of travel. During the trip they practiced safety precautions including social distancing and handwashing. f. She says prior to COVID she and the father both decided that they would not vaccinate the children with respect to then-existing health concerns. They both shared concerns about the potential negative effects and risks to children. g. However, she said she is not opposed to vaccinating the children for COVID. She notes there is no vaccine currently available. As soon as a vaccine becomes available she will want to inform herself about the research and potential health risks associated with that particular vaccine. She proposes that she and the father could discuss it, and they could jointly decide if some unknown future vaccine is safe for the children. h. But she absolutely denies minimizing the risk associate with COVID, or making the statements attributed to her.
[38] The father says the children should remain with him in Canada, because he has general concerns about the high rates of COVID transmission in Missouri and throughout the United States. a. He attached to his affidavit various internet articles and news clippings showing that rates of COVID infection are currently higher in the United States than in Canada. b. The mother acknowledges that COVID rates in some parts of the United States have been high. But she insists that COVID transmission rates in her community are lower. In any event, she says that no matter what the risk in the overall country, she is taking COVID very seriously, and she is taking all necessary steps to protect herself and the children.
[39] As stated, the Applicant’s sister filed an affidavit supporting his evidence.
General Analysis
[40] Before we get into the threshold issue of jurisdiction, we need to be clear about the nature of the motion brought by the father. a. There’s a comprehensive final parenting order dated June 28, 2013. b. Pursuant to that consent order the children have been living primarily with the mother in St. Louis since July 2013. c. In fact, the mother doesn’t just have primary residence. She has the children with her about 80 per cent of the year, and 100 percent of the weeks when the children’s ordinary routine is in place (i.e., attending school; participating in extra curricular activities; etc.). She is an above-average primary residence parent, who has always assumed full responsibility for the children’s day to day lives. d. The parties have been strictly complying with the timesharing order for seven years. e. When the mother brought the children to the Canadian border on June 20, 2020, the mother and all three children fully expected that this was going to be another seven-week visit in Canada. The mother and the children all had expectations and plans for the resumption of their regular routines in St. Louis at the end of the summer. f. The father accepted the children for the summer; undertook that they would be returned to the mother August 9, 2020; and gave no forewarning that any of this was going to occur. g. I am quite certain that if the mother did the same thing – if she had unilaterally cancelled the summer visit at the last minute – there would have been howls of protest from the father and the children. And rightly so.
[41] The father now seeks to immediately and profoundly change a long-standing final order and status quo.
[42] In F.K. v. A.K. 2020 ONSC 3726 this court recently set out an extensive analysis of the relevant factors and considerations when a parent seeks to change a custody and/or access order. a. The starting point is that the original order is presumed to be appropriate and in the best interests of the child. b. In a variation proceeding, the threshold test is whether there has been a material change in circumstances since the previous order was made. c. If there is no material change in circumstances, the inquiry goes no further. d. If a material change in circumstances has been established, the court will embark upon a determination of the child’s best interests. This must be a broad and careful inquiry which takes into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. e. Even if there has been a change in circumstances, the court must still decide whether it is appropriate to change the existing order, and if so, in what manner. f. The court should have all relevant information before it makes any changes. As a result, courts are very reluctant to impose temporary changes with respect to final orders. In most circumstances the existing order should continue until the court has confidence that all necessary information has been assembled and considered. The safest course is to fully ascertain the immediate and longer-term impact of any change on the child – before implementing the change. A poorly considered or misguided change may actually prejudice the child. And further correction or reversal of a premature variation could only compound the harm to the child. g. In extreme or urgent circumstances, the court may have no alternative but to consider a temporary variation to provide some immediate protection or benefit for the child which cannot or should not be delayed. h. But the onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. And they must clearly establish that the immediate benefit to the child is significant and necessary, and outweighs any foreseeable negative consequences or prejudice resulting from disruption of the child’s situation, relationships or routine. i. Given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.
[43] In that context, the father’s materials do not nearly establish that the dramatic changes he is asking for would be in the best interests of the children – let alone that there is any element of urgency which would justify hurriedly imposing such sweeping changes on a temporary basis.
[44] To a large extent the father has simply assembled a collection of issues he has known about for years: homeschooling; dental care; crowded housing; etc. Each of those issues may require consideration. But none of those issues – either individually or cumulatively – justify sudden, dramatic upheaval in the children’s lives. A parent can’t save up a list of complaints over a number of years, and then select a self-serving moment to declare an emergency.
[45] The father insists a primary concern is new and serious: the COVID pandemic. a. He says he is COVID-safe and the mother isn’t. b. He says he lives in a country and community which is COVID-safe, and the mother doesn’t. c. So he says the children are safer with him than her.
[46] Although it’s only been about six months, it seems like an eternity that courts have been struggling with the appropriate parental response to COVID. Expectations have been clearly articulated in many court decisions, including this court’s analysis in Ribeiro v. Wright, 2020 ONSC 1829. The recurring theme is that parents have a responsibility not only to keep children safe (obviously) -- but also to work together in a creative, respectful and cooperative manner, to help them through these emotionally unsettling times. To provide reassurance that things are going to be ok. To maintain as much stability, continuity and parental involvement as possible. This is no time for strategic manoeuvring.
[47] But if one of the priorities during this health crisis is to try to keep children’s lives as “normal” as possible, how could that possibly be promoted by suddenly uprooting them from everything they have known for the past seven years? A new primary parent. A new home. A new city. A new country. New schools. New friends. New activities. New everything and a loss of everything they know.
[48] Make no mistake: The court will have little tolerance for parents who either ignore or exploit the pandemic.
[49] But how could we possibly risk life-changing upheaval for these children on the basis of bald and uncorroborated allegations that the mother won’t wear masks or engage in social distancing? Particularly where the mother categorically denies these allegations, and there is no evidence that she has ever been reckless in any aspect of her life. a. These are good people. Good parents. Both of them. b. I may not agree with the father’s decision to bring this motion. c. But historically and consistently, these parents have shown mutual respect, trust, maturity, cooperation, and exemplary parenting skills. Both of them. d. Within weeks of separation in 2013 the father demonstrated enough confidence and faith in the mother that he consented to her relocating their three young children to another country. That’s an undeniable vote of confidence in her parental judgment and responsibility. e. And despite the pot-shots he has taken in this proceeding, he also acknowledges that she’s got a lot of strengths and done a lot of things right. Just as she has always trusted him to be a responsible parent when the children come to Canada. f. These are good kids. And these parents deserve a lot of credit. Both of them. g. I accept the father’s concern and hope that the mother should be as COVID-safe as possible. h. I also accept the mother’s reassurance that she is just as COVID-safe as he is. i. We can’t let children get caught in the cross-fire as parents engage in a self-serving competition to show which of them is more COVID-safe. j. And we certainly can’t make decisions about specific children and specific parents, based on media reports of ever changing international COVID numbers and trends. We haven’t reached the stage where an American parent automatically loses custody to a Canadian parent. It just doesn’t work that way.
[50] Finally, the father submits the long-standing custody arrangement should be instantly changed because he says the children would like to remain here with him. That’s also a complicated topic which can’t be rushed. a. There is no doubt that children’s views and preferences are one of the many things judges have to consider. A lot depends on the child’s age. b. There is also no doubt that children’s views and preferences can be spontaneous or influenced. They can be consistent or changeable. They can be clear or ambivalent. They can be compelling or unreliable. Again, a lot depends on the child’s age and overall situation. c. The reason we set up mechanisms to ascertain and respond to children’s views is because we want to help them; to make their lives better. We want to acknowledge and respect children’s feelings. d. But we don’t want to draw them into the fray.
[51] When a parent unilaterally decides not to return a child at the end of a visit, they usually end up making life much worse for the vulnerable young person they claim they’re protecting. a. The default position for almost all children is that they love both parents; they don’t want to hurt either parent; they wish their parents could get along; and they wish the adults in their lives would make the decisions. b. By all indications, that’s exactly how S.M., C.R. and C.T. feel. And that’s how they have been allowed to feel for these past seven years. c. But the father’s precipitous actions have changed everything. d. When a parent defies a court order and brings an emergency motion “because that’s what the children want”, the parent drags the children into the guilt-ridden role of co-conspirator. e. The father tells the world: “The children want me to do this.” But his unspoken message to the children: “You’d better back me up on this.” f. And instantly the children are stripped of any sense of neutrality or innocence. Suddenly they have to choose. g. Do they reject their mother? h. Do they reject their father? i. They have to live somewhere. St. Louis or Hamilton. There’s no week-about option here. j. They never had to choose before. Their parents let them enjoy the best of both worlds. k. But now we’ve got lawyers and judges and courts and legal fees involved. The tone has become negative, destructive and hurtful. Benign family conversations are being quoted and misquoted. And the escalation of conflict seems irreversible. l. So no matter what – if anything – the children say. And no matter what a judge decides. Things will never be normal again. Relationships will never be as good as they used to be. m. Parents should think really hard before they bring these end-of-summer-choice-of-school motions. The damage can last long after Labour Day.
[52] The irony is that while the father says he wants the children’s voices to be heard, his misguided actions currently preclude that possibility. a. Judges want to know and consider how children feel. The law requires that we do so, whenever those views can be fairly ascertained. b. But we also want to make sure that inquiry is productive and sensitive to the child’s situation. c. Asking a child to tell a stranger about their parents is never a painless endeavour. No matter how skilled the process, it always involves a balancing act. The intrusive and awkward experience for the child must be weighed against the potential that important information might be obtained which could assist in determining the child’s situation. d. But where a child has been placed in a situation of enormous pressure and susceptibility to influence, we do the child a disservice by asking questions when we know ahead of time the answers are going to be unreliable. e. Children’s views and preferences are best ascertained in a calm and unhurried environment. f. In situations of crisis, volatility and looming deadlines, asking a child to quickly “pick sides” is likely to result in more harm than good.
[53] Beyond that, even at its strongest, the father’s evidence about the children’s preferences is not very compelling. a. He says the 15-year-old wants to live with him, although the mother denies it. b. He provides the vaguest of information that the 13 and 10 year olds have recently said the same thing. Again, the mother denies that they have any such feelings or preferences. c. The context here is important. d. As stated, these are both good parents. The children love them both. They have excellent relationships with the respective new partners. e. The father has not provided any persuasive evidence of any significant problems the children are experiencing in their lives with the mother in St. Louis. f. More to the point, he provides no information about what the children’s lives would look like in Hamilton. What adjustments they would face. g. It’s wonderful that the children enjoy their summer vacations with the father. I have no doubt that that the children wish summer lasted longer, and that their time with the father lasted longer. h. But apart from bald statements that the children love him (which is not disputed) and that they want to be with him (which is disputed), the father’s materials demonstrate little parental insight. No understanding of all the negative consequences of disrupting such a long and successful status quo. And no specification of a plan for their future.
[54] Even if there was no threshold jurisdictional issue – even if all of these parties resided in Ontario – I would dismiss the father’s motion as a misguided, strategic attempt to reset the status quo. a. There has been no material change in circumstances. b. There is no urgent or emergency situation which requires correction by way of a temporary order. c. The father has identified no problems which could not be addressed through cooperative and therapeutic options which are specifically provided for in the existing order. d. The father has failed to establish that he even has a plan for the children, let alone that it would be in their best interests. e. And sadly, the father appears to be blind to the damage he has caused for this family – and for the children in particular – by exercising self-help and bringing this ill-conceived and destructive motion.
Forum
[55] Having said that, I will return to the obvious threshold jurisdictional issue. I agree with the mother that with the children having been permanently resident in St. Louis for these past seven years, the father has commenced this court proceeding in the wrong jurisdiction. a. The father’s Notice of Motion proposed that jurisdiction may be found in one or more of the following sections of the Children’s Law Reform Act (CLRA): s22(1)(b); s.23; or s.40(b). (During submissions the father abandoned the argument as it relates to s.23.) b. The mother’s counsel submits that those same sections confirm that this court does not have jurisdiction to grant the relief requested. The mother requests that the court dismiss the father’s claims and order that the children should immediately be returned to the mother. She says the State of Missouri is the appropriate forum for any determination parenting issues.
[56] The court's jurisdiction in matters relating to custody of or access to a child is governed by the CLRA. The relevant provisions include the following:
22(1) Jurisdiction 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.
22(2) Habitual residence 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.
22(3) Abduction 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.
23. Serious harm to child Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where, (a) the child is physically present in Ontario; and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if, (i) the child remains in the custody of the person legally entitled to custody of the child, (ii) the child is returned to the custody of the person legally entitled to custody of the child, or (iii) the child is removed from Ontario.
[57] In his submissions, counsel for the father noted that as set out by the Ontario Court of Appeal in Murray v. Ceruti 2014 ONCA 679, the only way the Superior Court can exercise jurisdiction is if all the criteria in s. 22(1)(b) are met. Mr. Dehm submitted that in this case the father is in fact able to satisfy all six criteria (although he conceded, some more easily than others).
[58] The mother’s counsel did not dispute some of those criteria: a. The children were physically present in Ontario at the commencement of the father’s motion. b. No application for custody or access is pending before an extra-provincial tribunal in Missouri where the children habitually reside. c. No extra-provincial order has been recognized by a court in Ontario. The only two orders were made in Ontario in 2013 and 2014.
[59] The father’s counsel acknowledged that the s.22(1)(b)(ii) requirement was more complicated. But he submitted that the father and his extended family members are all in Ontario and they are available to give evidence about the children. Mr. Dehm again referenced Murray v. Ceruti as stating that “substantial evidence” can exist in more than one jurisdiction.
[60] In response, the mother’s counsel noted that upon closer reading, the Murray v. Ceruti decision actually works against the father. In that case, the child was just over two months old, and had only ever lived in Ontario. At paragraph 26 the appeal court noted: “…this case is distinguishable from many others where the child is older and there is a body of evidence developed in another jurisdiction, such as school and health records.”
[61] I agree with the mother’s counsel on the issue of substantial evidence. a. These children have resided permanently in St. Louis for the past seven years. There is an overwhelming body of evidence – much of it independent, third party evidence – available from schools, doctors, other professionals, members of their church, recreational facilities, friends, neighbours, and others involved in their daily lives. b. In contrast, the evidence to be presented by the father would basically be from his family members whose observations would be limited to periodic visits. There is no independent evidence available in Ontario about the many factors which must be part of a best interest analysis. c. I am not satisfied that there is substantial evidence concerning the best interests of the children available in Ontario.
[62] Similarly, I agree with the mother’s counsel that the father is unable to establish that the children have a real and substantial connection with Ontario; or that the “balance of convenience” requirement as set out in s.21(1)(b)(vi) can be satisfied. a. The children periodically visit with the father in Hamilton, but they have no other ongoing connections to this jurisdiction. b. Mr. Dehm acknowledged that all of the independent witnesses involved in the children’s lives are in St. Louis. But he submitted that it would be equally convenient to deal with the case in Ontario, because modern technology (like Zoom) means everyone can participate remotely. c. I find that with the children having been permanently resident in St. Louis since they were ages eight, six and three – and with all of the evidence and independent witnesses being in Missouri -- the balance of convenience clearly favours these children’s lives being determined by the court in Missouri.
[63] In the alternative, the father’s counsel submitted that at the very least the court should make a temporary order placing the children with the father, pursuant to s. 40(b)(1) of the CLRA which states:
40. Interim powers of court Upon application, a court, (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or (b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following:
- Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
- Stay the application subject to, i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or ii. such other conditions as the court considers appropriate.
- Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
[64] The father’s counsel suggested this was essentially a “best interests” test – and that even if this court declines jurisdiction, it should still make a temporary order placing the children with the father, while his concerns are further investigated.
[65] On this topic as well, I agree with the mother’s counsel. a. As outlined above, based upon the evidence I am not satisfied that the dramatic, immediate change the father is seeking would be in the best interests of the children. b. And there would be no logic in making a temporary order placing the children with the father in Ontario, if there is going to be no court proceeding in Ontario.
[66] As an aside, the jurisdictional issue raised a unique evidentiary issue. a. The father attached as an exhibit to his August 4, 2020 affidavit a letter from N.S., a St. Louis lawyer the father had consulted about this issue. The letter was dated July 30, 2020 – after the father had already commenced his Ontario motion. b. The father’s lawyer attempted to adduce the letter to justify the father’s decision to pursue his claims in Ontario. c. However, I agreed with the mother’s lawyer that the letter was not admissible. It was not sworn evidence. It was not presented as expert evidence (it wouldn’t have qualified). As well there was solicitor-client privilege. It was basically a letter from the father’s St. Louis lawyer which the father’s Hamilton lawyer was trying to use to argue that the father was doing things properly. d. Notably, even if it had been admissible, the letter wouldn’t have helped the father’s case. His St. Louis lawyer was simply giving him strategic advice that there would be certain hurdles in seeking to change custody in St. Louis. But the letter said it would be easier for him to proceed in Missouri if the Ontario court declined to accept jurisdiction. And that’s exactly what I’m doing. e. An order that the court exercise its jurisdiction in this matter pursuant to s.22(1)(b) of the Children’s Law Reform Act; or in the alternative s.40(b); or in the further alternative s.23.
[67] The order: a. The Applicant father’s motion is dismissed. b. The Superior Court of Justice declines to take jurisdiction in relation to the children S.M., C.R., C.T. – save and except to order that the children are to be returned by the Applicant to the Respondent mother in St. Louis forthwith.
[68] If any issues other than costs need to be addressed, counsel should contact the Trial Co-ordinator to arrange a time for a further meeting by Zoom video.
[69] If only costs remain to be determined, the parties are to provide written submissions on the following terms: a. Respondent’s written submissions (not more than three pages, together with a maximum of three pages of attachments, excluding case law) to be served and filed by September 4, 2020 at 4:00 p.m. b. Applicant’s written submissions (not more than three pages, together with a maximum of three pages of attachments, excluding case law) to be served and filed by September 18, 2020 at 4:00 p.m. c. Any rely submissions (maximum two pages) to be served and filed by September 25, 2020.