Court File and Parties
COURT FILE NO.: FC-20-1004
DATE: 2020/09/16
RE: Darren Brophy, Applicant
AND
Tonya Leanne Briand, Respondent
BEFORE: Justice M. O’Bonsawin
COUNSEL: Kristie Smith for the Applicant
John Allan for the Respondent
HEARD: September 4, 2020
Decision
Overview
[1] The Applicant filed an urgent Motion seeking the return of BB born January 19, 2016, and LB born September 12, 2017 (hereinafter “the children”) from Nova Scotia to Ottawa, Ontario, and joint custody of the children.
[2] On July 5, 2020, the Respondent left the family home and returned home to Nova Scotia.
[3] On July 17, 2020, the Applicant served his urgent motion material on the Respondent. Afterwards on the same date, the Respondent advised the Applicant that she had received an ex parte Order from March J. of the Supreme Court of Nova Scotia (Division) that granted her interim custody of the children and supervised parenting time with the Respondent.
[4] On July 24, 2020, Doyle J. found that the Applicant’s motion was urgent.
Facts
[5] I will briefly summarize the facts. The parties started dating in February 2011 and moved in together two weeks later. The parties did not marry. In March 2014, the Applicant joined the Canadian Armed Forces where he remains employed. Both children were born in Nova Scotia. The Respondent did not return to work on a full-time basis after their births.
[6] In August 2018, the Applicant had a psychotic episode while on HMCS Halifax. He was then diagnosed with schizophrenia and followed by a psychiatrist.
[7] In October 2019, the Respondent left the Applicant. On October 12, 2018, the Respondent and the children received support from the Halifax & Region Military Family Resource Center and left their accommodations “due to safety concerns necessitating their departure from the family home” (letter dated October 22, 2018 from the Mental Health & Well Being team at the Halifax & Region Military Family Resource Center).
[8] The Department of Community Services Child Protection in Dartmouth, Nova Scotia were involved with this family until they closed the file in January 2019. After the Applicant started taking Olanzapine, the Respondent and the children returned to live with the Applicant. The Department provided the following information in a letter dated January 15, 2019:
The concern regarding physical neglect-parent emotional/mental health has been substantiated given the concern regarding Darren Brophy’s mental health. Given you, Tonya, demonstrated ability to protect the children and recognized the concerns regarding Darren’s mental health and Darren is confirmed to be involved with services to address his mental health. The file will be closed. You, Tonya, have reported to the Agency that Darren will not be unsupervised with the children until you receive information from health professionals that it would be safe to do so.
[9] In October 2019, the Applicant accepted a post in Ottawa. His posting expires in March 2023. The Respondent reluctantly moved to Ottawa with the children and the Applicant from Shearwater, Nova Scotia.
[10] The Respondent was concerned with the Applicant’s mental health. In January/February 2020, the Applicant decided to return to Nova Scotia with the children. However, the COVID-19 pandemic began and she was not able to do so. In May 2020, the Applicant stopped taking his Olanzapine. An altercation took place between the parties on July 3 and the Military Police attended the parties’ residence. The physical separation of the parties took place on July 4, 2020.
[11] From July 6 to July 10, 2020, the Respondent received support services from the Military Family Resource Centre - National Capital Region (MFRC) since the family shelters were full.
[12] The Respondent returned with the children to Nova Scotia without advising or receiving the consent of the Applicant. She and the children moved in with her parents in Dingwall, Nova Scotia.
[13] On July 16, 2020, the Respondent filed her documents with the Nova Scotia Supreme Court (Family Division) and an ex parte motion hearing took place before Marche J. at which time she provided her interim Order. On July 21, 2020, the Applicant wrote a letter of objection and the matter continues to proceed through the Nova Scotia court process.
[14] In August, the Respondent applied for Regional Housing with the Cape Breton Transition House (“CBTH”). In a letter dated August 24, 2020, the Outreach Coordinator advised that the Respondent’s application was given priority status. She explained, “[i]f accepted, this would allow [the Respondent] to be placed sooner for safe and affordable housing”.
[15] The Applicant has always denied having schizophrenia. In the clinical entry for August 13, 2020, Dr. Morel, the Applicant’s current psychiatrist notes under the heading Diagnosis/Clinical Impression the following: “Difficult situation for the member. No evidence of psychosis; in fact, since I met him in October 2019, there has been no evidence of psychosis. Nor has he ever given me reason to believe that he was a threat to the children or to his wife. However, I have never interviewed his family regarding safety”.
[16] The Applicant currently has video access to the children.
Issues
[17] The issues in this matter are as follows:
• Does this court have jurisdiction over this matter?
• What parenting regime should be put into place?
• What school should BB attend?
Analysis and Findings
Does this court have jurisdiction over this matter?
[18] The Applicant submits that the appropriate jurisdiction for this matter is Ontario, and in particular, the municipality of Ottawa, being the ordinary and habitual residence of the children prior to the Respondent’s unilateral removal of the children from the province.
[19] The Respondent argues that she does not attorn to the jurisdiction of this court in Ontario; the proper forum is the Nova Scotia Supreme Court (Family Division). The children’s normal residence is in Nova Scotia where all their support systems are located.
[20] Rule 5(1) of the Family Law Rules, O. Reg. 114/99, deals with the jurisdiction of this court and it provides:
5(1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction – Family Court), a case shall be started,
a. in the municipality where a party resides;
b. if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,
i. section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and
ii. subsection 91 (2) (place for child protection hearing) and subsection 203 (1) (place for adoption proceeding) of the Child, Youth and Family Services Act, 2017; or
c. in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.
[21] Section 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”) provides for a court’s jurisdiction to make a custody or access Order. Particularly, the court shall only exercise its jurisdiction to do so 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] In section 22(2) of the CLRA, “habitual residence” is defined as where a child is habitually resident in the place where he or she resided, either with a) 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.
[23] Section 22(3) of the CLRA also addresses the situation where one parent unilaterally removes or withholds a child and states: “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.” In this matter, the Applicant did not consent to the Respondent moving back to Nova Scotia with the children.
[24] The key cases regarding “habitual residence” are Brooks v. Brooks, 1998 CanLII 7142 (ON CA), 39 R.F.L. (4th) 187 (Ont. C.A.) and Ojeikere v. Ojeikere, 2018 ONCA 372, 2018 CarswellOnt 5917 (Ont. C.A.). In Ojeikere, the Court of Appeal provided insightful comments about the policy reasons for s. 22 and 23 of the CLRA. The Court stated:
14 The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks(1998), 1998 CanLII 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
15 Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test — neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1) and the catalogue of best interests considerations listed in s. 24 (2)
16 But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent's interests over that of the child.
17 Sections 23 and 69 also reflect the Legislature’s overriding concern with children’s best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child’s habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.
[25] The Applicant refers me to Alcine v. Murray, 2018 ONSC 3856, a decision in which Kershman J. found that the child’s habitual residence was in Ottawa and ordered the child returned from Markham to Ottawa. The mother had argued that her family, emotional and financial supports were in the York Region.
[26] The Applicant also refers me to Van Roon v. Van Roon, 2013 ONCJ 276. In this case, the parties resided together in Guelph until their separation. The mother argued that there were instances of abuse and moved with the children into her parents’ home in Toronto. The court ordered that the matter be transferred to the Ontario Court of Justice in Guelph.
[27] I find the facts in this matter are quite distinguishable from Alcine and Van Roon. In Alcine and Van Roon, prior to the moves with the mothers, the children did not reside outside of Ottawa or Guelph. In this matter, the children were born in Nova Scotia where they resided for the majority of their short lives. They only resided in Ottawa for approximately nine months, from October 2019 to July 2020. It is important to note that if the COVID-19 pandemic had not occurred, the Respondent would have returned to Nova Scotia earlier. The children do not have a family physician in Ontario. The children’s physician is in Nova Scotia, the Department of Community Services Child Protection in Dartmouth, Nova Scotia has already been involved with this family and the Respondent’s extended family resides in Nova Scotia. In addition, the Respondent is on a priority list for Regional Housing with the Cape Breton Transition House.
[28] The Applicant argues that the children’s physician is located five hours away from Dingwall. The Respondent provided evidence that the physician who cared for her and her children prior to the family’s moved to Ottawa is willing to take them back as patients. Furthermore, the Applicant advises that BB is registered to attend school in Ottawa.
[29] It cannot be said that the Applicant left Ontario in order to avoid this province’s jurisdiction. I find that the evidence demonstrates everything ties these children to Nova Scotia: it is where their parents are from, where the parties met, where they lived as a family (until October 2019), where their extended families are located, where their support network is situated, where the children’s doctor is located and where the people they know and who know them are situated. Had it not been for the pandemic, it is likely that the Respondent would have returned to Nova Scotia much earlier (within 3-4 months). Child protection services were involved with that family in that province. The children have a much more substantial connection to Nova Scotia than to Ontario. As a result, it would be more appropriate to let the Nova Scotia court deal with this matter, which it already has. Consequently, I find that the appropriate jurisdiction to hear this matter should remain in Nova Scotia.
If this court has jurisdiction, what parenting regime should be put into place?
[30] Since I have determined that this court does not have jurisdiction over this matter, I will not review this issue.
What school should BB attend?
[31] Since I have determined that this court does not have jurisdiction over this matter, I will not review this issue.
Costs
The Respondent is the successful party on this motion. If the parties cannot agree as to costs, they may provide brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The Respondent will have ten days from the date of this Decision to provide her submissions and the Applicant will have ten days thereafter to do the same. The Respondent will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next five days.
Justice M. O’Bonsawin
Date: September 16, 2020
COURT FILE NO.: FC-20-1004
DATE: 2020/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Darren Brophy, Applicant
AND
Tonya Leanne Briand, Respondent
BEFORE: Justice M. O’Bonsawin
COUNSEL: Kristie Smith for the Applicant
John Allen for the Respondent
decision
Justice M. O’Bonsawin
Released: September 16, 2020