Court File and Parties
COURT FILE NO.: FC-20-1641
DATE: 2020/11/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Princess May Kollie, Applicant, Represented by John Allan
-and-
Godefroid Katelay Musangu, Self-Represented
BEFORE: Justice P. MacEachern
HEARD: November 4, 2020, in writing
E N D O R S E M E N T
The Applicant seeks a motion to be scheduled on an urgent basis. She seeks an order for the return of the parties' child, now 15 years of age.
The Respondent has not filed any material in response. The Respondent resides in Alberta. The Applicant states the Respondent has commenced legal proceedings in Alberta seeking a parenting order from the Court of Queen's Bench of Alberta.
The child is currently with the Respondent in Alberta. The Applicant's position is that the child is habitually resident in Ontario and should immediately return to her care. She states the child went to Albert to spend the summer of 2020 with the Respondent, on an agreement that the child would return at the end of summer to attend school in Ottawa and reside with her. The Respondent has refused to return the child.
The Applicant has commenced an Application before the Ontario Superior Court of Justice, issued on October 22, 2020. It is not clear on the evidence before when the Respondent was served with this Application, and whether he has been served in accordance with the Rules.
The Applicant states she has not filed any material in the Alberta court proceeding because she refuses to attorn to the Alberta court's jurisdiction. The Respondent appears to be taking a similar position because he does not wish to attorn to the Ontario court's jurisdiction. The Respondent has not filed any material before this court concerning the Applicant's request for an urgent motion; the motion material was provided to him and his lawyer. The parties dispute whether Ontario or Alberta is the proper jurisdiction to determine the parenting dispute between them. I point out to the parties that I question whether jurisdiction of the court to make a parenting order may be confirmed simply by attornment. In other words, attornment may be a false issue.
As triage judge, I do not find that this matter meets the test of urgency to schedule a motion before a case conference being held (or the Respondent being in default, in which case a case conference is not required) or to schedule a motion on an urgent basis outside of the normal process.
It might be that this matter would have been urgent due to the allegation of withholding the child if the Applicant had pursued this issue at the end of August 2020. That is when the Respondent refused to return the child. At this point, that refusal does not justify urgency as it appears that the motivating reason that the Applicant has commenced these proceedings is that the Respondent has started court proceedings in Alberta.
This matter is also not urgent because the Respondent has commenced court proceedings in Alberta, and the Applicant wishes, for perhaps strategic reasons, to obtain a court order in Ontario before there is a court order in Alberta.
It seems wrong-headed for this to be, in effect, a race to whomever can get a court order first. That should not be how this dispute is resolved. The issue of which court has jurisdiction, or should exercise jurisdiction, will need to be resolved, either by agreement of the parties or by a court. I urge the parties to engage in a more constructive discussions that would allow them to make submissions on their client's behalf in the other jurisdiction, on the issue of jurisdiction, with an agreement that doing so is without prejudice to their client's position that the respective court does not have jurisdiction. To be clear, the issue of which court has jurisdiction to determine the parenting issues, or which court should exercise jurisdiction to determine these issues, should be determined based on submissions from both parties' without prejudice to their client's respective positions on the subject.
The Applicant's motion for leave to bring an urgent motion is dismissed. But I make the following orders for the purpose of moving this matter forward in accordance with the primary objective of the Rules (Rule 2):
a. The Applicant shall take immediate steps to serve the Respondent with her Application court documents in accordance with the Family Law Rules (which requires special service for an originating Application);
b. The Applicant may obtain a case conference date for a date at least 30 days after service of the Application documents on the Respondent. The focus of this case conference shall be to address a process for determining the jurisdiction issue.
c. The Respondent may file an Answer in this proceeding, and participate in this proceeding, without prejudice to his position that this court does not have jurisdiction to determine the issues;
d. A copy of this endorsement shall be provided to the Court of Queen’s Bench in Alberta where the Respondent’s court proceeding has been filed, and brought to the attention of the presiding judge.
Dated: Nov 4, 2020 _____________________
Justice P MacEachern