COURT FILE NO.: FC-20-1038
DATE: 2020/08/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: N.N.N.P.V., Applicant
AND
J.S., Respondent
BEFORE: Justice Engelking
COUNSEL: Ira Marcovitch, for the Applicant
Mimi Marrello, for the Respondent
HEARD: August 25, 2020
ENDORSEMENT
[1] Ms. V. brings a motion seeking a temporary order of sole custody of the child, T.N.V. (“N.”), born December 26, 2016 or, in the alternative, an order dispensing with Mr. S.’s consent to enroll N. in Julie Payette Public School in Kanata, Ontario. She has also requested that the parties’ names be initialized, which I find to be in the best interests of the child in this case.
[2] Mr. S. disputes that this court has jurisdiction in the matter, and seeks an order staying it pending the outcome of proceedings he has commenced in Gatineau, Quebec.
[3] Ms. V. and Mr. S. began dating in 2013, and in 2014 Ms. V. moved from New Brunswick, where she was living at the time to Ottawa with her daughter from a previous relationship, M. They underwent IVF treatments in early 2016 with a donor egg and donor sperm, more about which I will speak later. N. was born in December of the same year.
[4] While pregnant with N., Ms. V. bought a home in Gatineau, Quebec, which lived in with N. and M. until sometime after the March break of 2018, at which point Mr. S. also moved into the home. Around this same time, N. was accepted in a daycare spot in Gatineau.
[5] The parties resided together for between eight and ten months from September of 2018. The parties separated while both residing in Gatineau, Quebec, and they attempted mediation in July of 2019, which was not successful. Ms. V.’s evidence is that she advised Mr. S. at this time that if things were not going to work out with them, she would need to move to Kanata, Ontario to be near her family and receive help with the children. She indicates that a discussion took place and Mr. S. did not voice any objection to her stated intention.
[6] Ms. V. moved into the home of her brother and his partner in Kanata, Ontario in April of 2020. She has retained her house in Gatineau.
[7] According to Ms. V., Mr. S. has shown no interest in N., and July of 2019 was the last time that he spent any quality time with him. Ms. V. has been a stay-at-home parent with the children and has been N.’s sole primary caregiver for his entire life. The last time N. had contact with Mr. S. was on April 22, 2020 for a few minutes.
[8] N. is eligible to commence school for the Fall 2020 term in Junior Kindergarten (K4). Ms. V. has requested Mr. S.’s consent to enroll him in Julie Payette Public School, but Mr. S. has to date not provided his consent. In order to attend school this year, N. must be enrolled by August 27, 2020.
[9] Ms. V. requested that Mr. S. sign consent form for enrollment by email on July 7, 2020. Having received no response, she retained counsel, who requested he do so by letter dated July 17, 2020 and again by email dated July 26, 2020. Having received no answer to these requests, Ms. V. filed an Application with the court and sought leave to bring an urgent motion, which was granted by Master Fortier on August 13, 2020. She seeks one of the orders requested so that she can enroll N. at Julie Payette Public School by August 27, 2020.
[10] Mr. S. brought a cross-motion requesting an order from this court noting that it does not have jurisdiction to grant the orders requested. Mr. S.’s position is that N. is a resident of Quebec and has been so since his birth. He believes that Ms. V. continues to reside in Quebec for a number of reasons, which include:
a. Ms. V. still owns her home in Quebec, which is not rented out;
b. At the time of the filing of her Application, Ms. V.’s daughter M. was enrolled at the Centre Académique de l’Outaouais for the next academic year;
c. N.’s health coverage is with the Régie de l’assurance maladie du Quebec, and he has a nurse practitioner in Gatineau. He also sees an allergist in Gatineau, Dr. Lauren Miriam Segal; and,
d. N. is registered at and attending daycare at CPE Alakazou in Gatineau, Quebec.
[11] Mr. S.’s position is that N. is habitually resident in Quebec and that the Ontario Superior Court does not have jurisdiction over these proceedings; he is consequently not attorning to this court’s jurisdiction.
[12] Mr. S. additionally disputes paternity of the child, N. He obtained a paternity test, the results of which are reported on April 16, 2020 to conclude that there is a 0% chance that he is the father of the child, though the results also acknowledge that: “Test results are for informational purposes only. Samples were not collected under a strict chain of custody. Patient names and sample origin cannot be verified.” Mr. S.’s evidence is that he retained counsel in Quebec, Ms. Genevieve Blais, to “contest the paternity” of N., however, due to a suspension of the institution of legal proceedings in Quebec since March 15, 2020, he was unable to commence proceedings there until very recently. On August 20, 2020, Mr. S. filed a “Motion to Institute Proceedings in Modification of the Declaration of Filiation” in the Superior Court (Family Division) in Gatineau, Quebec, which was served on Ms. V. on August 21, 2020 by email. In it, Mr. S. seeks, inter alia, an order declaring that he is not N.’s father, that he has no legal obligation to N., nor N. to him and for his name to be removed from the child’s birth certificate. Mr. S.’s position is that the Superior Court (Family Division) of Quebec is the court with jurisdiction over this matter.
[13] Ms. V.’s position is that N.’s habitual residence is in Ontario. Her evidence is that she does not live in her house in Quebec and intends to list it for sale as soon as she has properly cleared it of her belongings. She does not deny that N. is covered by Quebec health care. Ms. V. also admits that N. attends daycare in Quebec and indicates that she has been able to negotiate with his (former) daycare in Gatineau that he can attend there on weekdays when she is in Gatineau attending to the clearing of the home. She attests additionally that her daughter, M. has now been accepted to attend Julie Payette Public School in Kanata. It is her position that N. is habitually resident in Ontario and that this court has jurisdiction over her Application and Motion. Ms. V. concedes that it is possible that another individual is the biological father of N. based on a sperm donation made subsequent to Mr. S., but about which she says he knew or ought to have known.
Analysis
[14] Sections 22(1) and (2) of the Children’s Law Reform Act provides as follows:
- Jurisdiction – (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 or of 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.
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.
[15] In the case of Beaver v. Hill, 2017 ONSC 7245, Justice Chappel conducted an extensive review of the “traditional conflict of law principles” regarding a determination of jurisdiction.[^1] At paragraph 51 of the case, Justice Chappel indicated:
[51] By way of general overview, conflict of laws, also referred to in the case-law as “private international law,” concerns three broad areas of inquiry. First it addresses whether a court has jurisdiction to hear a dispute. Second, it deals with the law the court should apply in resolving the dispute between the parties. Finally, it provides principles for determining whether a court should recognize and enforce a decision of a court in another jurisdiction.
[16] Justice Chappel notes at paragraph 52 that the branch of the law known as conflict of laws “is relevant in any situation where the parties seek to rely on competing legal systems and systems or sets of law” and is not limited to those disputes involving foreign litigants.
[17] At paragraph 57, Justice Chappel noted:
[57] Conflict of laws jurisprudence establishes that the inquiry into the court’s jurisdiction involves two stages. First, the court must decide whether it has jurisdiction simpliciter, which involves a determination of whether it has or can assume jurisdiction. If jurisdiction simpliciter is established, the court must at the second stage of the analysis decide whether it should nonetheless decline to take jurisdiction.
With respect to the jurisdiction simpliciter stage of the analysis, the following principles apply:
The court has jurisdiction if there is a statutory provision that grants it jurisdiction.
If there is no applicable statutory provision, the court must turn to the common law principles to determine the question of jurisdiction simpliciter. At common law, the traditional grounds for jurisdiction simpliciter are:
a. The Respondent was present in Ontario and was served within Ontario;
b. The Respondent consents to the jurisdiction of the court, even if they are not in Ontario; or
c. A Respondent attorns to the court’s jurisdiction, even if they are not present in Ontario.
- In addition, at common law, a court can assume jurisdiction in a case involving a Respondent who has no presence in the territorial jurisdiction of the court and does not consent or attorn to the court’s jurisdiction if the Respondent has been properly served ex juris and there is a real and substantial connection between the forum and the subject matter of the litigation.
Is There a Statutory Provision That Grants This Court Jurisdiction?
[18] In this case, section 22 of the Children’s Law Reform Act (“CLRA”) is the statutory provision though which this court may have jurisdiction. The question is whether Ms. V. has satisfied the court that Ontario is the habitual residence of N. pursuant to section 22(1)(a) or, if he is not habitually resident in Ontario, whether the criteria outlined in section 22(1)(b) are met.
[19] I am not satisfied that the evidence supports that N.’s habitual residence is in Ontario for a number of reasons. First, although Ms. V. and the children have been in Ottawa since April 25, 2020, they have not acquired a home in the jurisdiction; rather, they have been staying or residing at the home of Ms. V.’s brother and his partner. Ms. V. has maintained her residence in Gatineau, and frequents it regularly, particularly on week days. On those very same days, N. has continued to attend daycare in Gatineau at the same rate at which Ms. V. had received on a subsidized basis from the Province of Quebec. Third, although Ms. V. noted that N. has one specialist at the Children’s Hospital of Ontario, his medical coverage is from Quebec, and he has access to a nurse practitioner and allergist in Gatineau. Additionally, at the time Ms. V. made her Application for the orders requested, her daughter M. was enrolled to attend school in Gatineau. The language of section 22(1)(a) is clear that a child’s habitual residence is required to be “at the commencement of the application for the order”.
[20] Ms. V. submits that, pursuant to section 22(2)(b), Mr. S. has acquiesced in N. living with her in Ontario. Her evidence in support of this is that he did not voice any objection to her stated intention in July of 2019 to move to Ontario, and he did not take any steps to object when she did in fact go to Kanata in April of 2020. However, in July of 2019, her stated intention was just that, an intention expressed in a conversation between them at the breakdown of the relationship. It did not, in fact, happen at the time. As for the removal in April of 2020, Mr. S.’s evidence is that he did not know it had occurred until he read in her application received in July that Ms. V. had left Gatineau on April 25, 2020. His evidence, supported by his Quebec counsel, was that he had retained counsel several months before to commence proceedings in Quebec, which were only delayed as a result of the COVID-19 pandemic and the suspension of court operations. On the whole, I am unable to conclude on the evidence before me that Mr. S. acquiesced in N.’s habitual residence being established in Ontario.
[21] Having not made out that N.’s habitual residence was in Ontario at the commencement of the application, it becomes incumbent on Ms. V. to satisfy the criteria in section 22(1)(b) of the Act, which criteria are cumulative, not severable. While the first factor is satisfied, the second, that substantial evidence concerning the best interests of the child is available in Ontario, is not. N. has spent his entire life in Gatineau, Quebec, but for the past few months. As I have indicated above, his medical practitioners are in Gatineau, as is his daycare provider. Thus, most evidence concerning his best interests is available in Quebec, not Ontario. Nor am I certain that the child yet has a “real and substantial connection with Ontario”, but for the fact that he has essentially been staying with relatives in Kanata for the past nearly four months, albeit while continuing to attend daycare in Gatineau during the week. He appears to have a more of real and substantial connection with Quebec. Additionally, although there is no “application for custody or access” to N. pending in another jurisdiction, there is an application in Quebec, the outcome of which will likely ultimately affect those issues. Consequently, Ms. V.’s claim that the Ontario Superior Court has jurisdiction on this ground must fail. Having not met the criteria of either section 22(1)(a) or (b), there is no statutory provision grounding jurisdiction in this court.
Do the Common Law Principles Support a Finding of Jurisdiction Simpliciter?
[22] As per paragraph 57 of Beaver v. Hill quoted above, Mr. S. was not present in Ontario at the commencement of the application, nor was he served in Ontario. Mr. S. does not consent to the Ontario Superior Court having jurisdiction over this matter. Mr. S. has not attorned to the court’s jurisdiction, by either word or deed.
[23] I find that the Superior Court of Ontario has no jurisdiction over this matter, and that the proper venue for a dispute between these litigants is the Superior Court of Quebec (Family Division).
[24] Having said that, pursuant to section 40(b) of the CLRA, where this court may not exercise jurisdiction under section 22 of the Act, it may nevertheless make an interim order in respect of custody or access as the court considers is in the best interests of the child. Given that 1) Mr. S. has made no claim for custody of or access to the child, 2) Ms. V. has been the child’s sole caregiver from birth and has attended to all of his needs, and 3) Ms. V. requires a custody order to make important decisions for the child which will not affect the substance of the relief requested by Mr. S. in the Superior Court of Quebec, such as enrolling him in school, I am prepared to grant a temporary order of sole custody of N. to Ms. V.
[25] There shall thus be an order as follows:
The Superior Court of Ontario has no jurisdiction over this matter; and,
The Applicant, Ms. V. shall have temporary sole custody of the child, T.N.V., born December 26, 2016.
Costs
[26] If the parties are unable to agree on liability for costs of the motion by September 30, 2020, counsel may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.
Justice Engelking
Date: August 27, 2020
COURT FILE NO.: FC-20-1038
DATE: 2020/08/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: N.N.N.P.V., Applicant
AND
J.S., Respondent
BEFORE: Justice Engelking
COUNSEL: Ira Marcovitch, for the Applicant
Mimi Marrello, for the Respondent
ENDORSEMENT
Engelking J.
Released: August 27, 2020
[^1] Beaver v. Hill, 2017 ONSC 7245, paragraph 49.