Court File and Parties

COURT FILE NO.: FC34/20 DATE: 2021/03/05 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Jared William Cook, Applicant AND: Jenny Leigh Rosenthal, Respondent

BEFORE: T. PRICE, J.

COUNSEL: James Battin - Counsel for the Applicant Reagan Humphrey - Counsel for the Respondent

HEARD: February 11, 2021

Endorsement

Background

[1] The Applicant has brought a motion seeking an interim parenting order [1] with respect to the children born of his relationship with the Respondent.

[2] The Respondent has moved to British Columbia with the children and challenges this court’s jurisdiction to deal with the issues between the parties.

[3] By agreement, counsel addressed only the jurisdictional issue when they appeared before me on February 5, 2021. What becomes of the balance of the Applicant’s motion will depend on my ruling on the jurisdictional issue.

Facts

[4] The Applicant was born in Port Stanley, Ontario in 1981. He resided in British Columbia between 2006 and 2016. He is 40 years of age.

[5] The Respondent was born in 1985. She lived in British Columbia for most of her life prior to 2016. She is 35 years of age.

[6] The parties began to reside together in British Columbia in or around 2009. They never married.

[7] They are the parents of two children - a boy, born […], 2010 and a girl born […], 2013. Both children were born in British Columbia.

[8] The parties and the children moved from British Columbia to Port Stanley, Ontario in or about May 2016 in order that the Applicant could establish a watersports business. They remained here until the events which resulted in this proceeding. The only exception was that, on or about August 1, 2019, the Respondent and the two children took a trip to British Columbia to vacation with the Respondent’s family, who reside in Victoria. She returned thereafter to Port Stanley with the children.

[9] The Applicant has many relatives in the St. Thomas/Port Stanley area. Included amongst them are children of similar ages to the parties’ children. The Respondent’s extended family resides in British Columbia.

[10] The Applicant claims that the parties separated on August 27, 2019 when, following an argument between the parties, he left the matrimonial home. He returned after approximately three hours, but neither the Respondent nor the children were to be found. The Respondent had left a note informing the Applicant that she and the children had gone to stay at the home of the Applicant’s father, and they would be returning the next day. The Applicant took no steps to verify the information.

[11] The Respondent claims that the parties separated on August 28, 2019. On that date, at approximately 11:00a.m., the Respondent contacted the Applicant by cell phone. She informed the Applicant that she and the children were at the home of a friend. She provided no further information as to their location. They were not, in fact, at the home of a friend of the Respondent. She and the children were in a women’s shelter in St. Thomas, a fact not known to the Applicant.

[12] According to the Respondent, she and the children were initially in the women’s shelter in St. Thomas but were later moved to another shelter approximately 1.5 hours further away, where they resided for three weeks, after which they moved into Second Stage Housing.

[13] Over the next, approximately, eight days from August 28, 2019, the Applicant e-mailed the Respondent several times to ask when she would be returning with the children. She responded only once.

[14] Finally, on September 2, 2019, at 3:38 p.m., the Applicant sent an e-mail to the Respondent in which the Applicant wrote that, if the Respondent would not start communicating with him, he would be “forced to go to the courts tomorrow.”

[15] At 11:00 p.m. on September 2, 2019, police attended at the family residence and arrested the Applicant. He was charged with two counts of common assault against the Respondent, and one count of threatening to kill an animal. The allegations of common assault cover the periods May 1 to May 31, 2019 and June 1 to June 30, 2019. The charge of uttering a threat to kill an animal allegedly occurred during the argument on August 27, 2019.

[16] The Applicant was released from custody during the early morning hours of September 3, 2019 on a promise to appear which included conditions prohibiting him from communicating with the Respondent or the children.

[17] On or about September 4, 2019, the Applicant tried to retain counsel to assist him to commence a proceeding in the Superior Court of Justice, Family Court at St. Thomas Ontario. He was rebuffed for different reasons. He was advised to bring a motion and to serve the office of the Crown Attorney. He did so. The Crown Attorney did not respond. Without an accompanying Application, this motion may not have been successful if it had been placed before the court.

[18] While it is unclear when the Respondent and the children left Ontario - the Applicant believes their date of departure to have been on or about December 15, 2019 - the Respondent commenced an ex parte proceeding against the Applicant in Victoria under British Columbia’s Family Law Act, SBC 2011, c. 25 (hereinafter, the “BCFLA”) on December 20, 2019. The file number of that proceeding was 22985.

[19] The Respondent sought a Protection Order against the Applicant for herself and the children, alleging that the Applicant had threatened to kill her and the children if they ever left him. She alleged that she feared that the Applicant would come to British Columbia, locate her and the children “and make good on his threat.”

[20] Based upon those allegations, Associate Chief Judge S. Wishart of the Provincial Court of British Columbia issued the Protection Order that same day - December 20, 2019.

[21] According to the order itself, it “may not be enforceable in another province”.

[22] The Applicant learned that the Respondent had fled to British Columbia with the children when he was served by e-mail with the Protection Order, also on December 20, 2019.

[23] The Applicant commenced a proceeding in the Family Court in St. Thomas on December 23, 2019 under file number FC313/19. In that proceeding, the first appearance date for which was to be February 7, 2020, the Applicant claimed custody of the children. He further claimed that he understood that the Respondent had taken the children to British Columbia, but he did not know where she was located. That Application was apparently not served upon the Respondent and was ultimately withdrawn on February 3, 2020.

[24] The Applicant commenced another proceeding, seeking the same relief, in the Family Court in St. Thomas on February 6, 2020. He alleges that this claim was served on the Respondent in British Columbia by someone from “Old Victoria Process Service” on February 6, 2020. There is no evidence of such service in the court file. I was informed that an affidavit of service has been requested by the Applicant.

[25] On February 11, 2020, the Applicant was served with a claim commenced by the Respondent under the BCFLA on January 16, 2020 in the Provincial Court of British Columbia at Victoria. That claim bears the same file number (22985) as the Protection Order.

[26] In that proceeding, the Respondent is seeking “to become the primary care-giver of the children with sole parenting rights and responsibilities.” She also seeks child support and an order respecting the “time spent by the children with the Applicant.”

[27] The Applicant sought to obtain an ex parte order for the return of the children to Ontario by way of a Form 14B motion dated February 14, 2020. Justice Campbell directed that it was to be served on the Respondent together with his Application issued on February 6, 2020.

[28] According to an affidavit of service found in the Continuing Record, the Applicant served his Form 14B motion and an accompanying affidavit sworn February 14, 2020 upon the Respondent on February 26, 2020, by e-mailing copies of the documents to her British Columbia solicitor.

[29] The Applicant also filed a reply to the Respondent’s claim in British Columbia in which he is challenging the jurisdiction of the British Columbia Court to determine issues pertaining to the parenting of the children on the bases that:

a. their habitual residence is in Ontario, from which they were removed without the consent of the Applicant and

b. the ex parte Protection Order was obtained on the basis of untrue allegations.

[30] The Respondent filed an Answer to the Applicant’s claim in Ontario. She asserts that British Columbia is the proper forum to adjudicate the issues in dispute between the parties because she commenced her application in Victoria prior to the commencement of the Applicant’s claim in Ontario, pointing to her December 20, 2019 application for the protection order.

[31] Alternatively, should her jurisdictional argument be unsuccessful, the Respondent seeks a parenting order concerning the children and an order that the Applicant’s contact with them occur “on a schedule…determined by [the court] and by what means such access shall be exercised by the Applicant.

[32] On September 10, 2020, in a Family Management Conference held in the B.C. proceeding, the Protection Order dated December 20, 2019 was vacated. The Applicant was provided with “video parenting time with the children at least three times weekly on Tuesdays and Thursdays at 5 PM Pacific Standard Time and Saturdays at 10 AM Pacific Standard Time.”

[33] The Applicant was further prohibited from attending at the Respondent’s place of residence without her express written consent, but the parties could communicate with each other by email only as it relates to the children and parenting.

[34] The order specifically provides that it was “made under section 77(2)(a) of the Family Law Act and in no way prejudices the determination of the issue of jurisdiction.”

[35] The Applicant is of the position that the parties’ dispute over parenting, contact and child support should proceed in Ontario.

[36] The Respondent is of the position that the proceedings should occur in British Columbia.

Law and Analysis

[37] Section 21(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (hereinafter, the “CLRA”) provides as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting, (a) decision-making responsibility with respect to the child; and (b) parenting time with respect to the child. [2]

[38] Section 22(1) of the CLRA provides as follows:

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if, (a) the child is habitually resident in Ontario at the commencement of the application for the order; or (b) the child is not habitually resident in Ontario, but the court is satisfied that, (i) the child is physically present in Ontario at the commencement of the application for the order, (ii) substantial evidence concerning the best interests of the child is available in Ontario, (iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario, (v) the child has a real and substantial connection with Ontario, and (vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [3]

[39] It is clear from both section 22(1)(a) of CLRA that, for children habitually resident in Ontario and section 22(1)(b)(i) of the CLRA, for children not habitually resident in Ontario but physically present here, the relevant time for determining whether an Ontario court has jurisdiction to make a parenting order or contact order is “at the commencement of the application for the order.”

[40] For children who are not habitually resident in Ontario at the commencement of an application, the six facts required to be established pursuant to section 22(1)(b) of the CLRA are conjunctive. Ojeikere v. Ojeikere, 2018 ONCA 372, [2018] O.J. No. 2041 (C.A.) ] In other words, each must be established before an Ontario court can assume jurisdiction to make an order with respect to children not habitually resident in Ontario.

[41] Since the parties’ children were not physically present in Ontario at the commencement of the application, one of the necessary facts cannot be established under s. 22(1)(b)(i) of the CLRA, so the court is precluded from assuming jurisdiction to make a parenting order with respect to or contact with the parties’ children unless, at the time that the Applicant commenced this proceeding on February 6, 2020, the children were habitually resident in Ontario.

[42] In her submissions, counsel for the Respondent suggests that the words “at the commencement of the application” found in both s. 22(1)(a) and 22(1)(b)(i) can draw in the application commenced by the Respondent in British Columbia. She argues that the children were, in the first instance, not habitually resident in Ontario at that time because they were in B.C. when that application was commenced, and that they were not physically present in Ontario at that time, in the latter case.

[43] That is a misreading of the legislation. The only application that the sections can be referring to is an Ontario application, since it is Ontario legislation and an Ontario court can only exercise its authority in Ontario, subject to a foreign jurisdiction agreeing to enforce an Ontario order.

[44] As to whether the children’s mere presence in British Columbia means that they were habitually resident there, such a submission totally also ignores s. 22(2) of the CLRA, which define a child’s habitual residence for purposes of the Act, and s. 22(3) of the CLRA, which addresses the abduction of children from their place of habitual residence.

[45] Section 22(2) of the CLRA provides as follows:

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.
2. If 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.
3. With a person other than a parent on a permanent basis for a significant period of time. [4]

[46] I need not consider s. 22(2).3 since there is no evidence that any of the children were ever residing “with a person other than a parent on a permanent basis for a significant period of time.”

[47] It is clear on the evidence that the children were resident in Ontario with both parents continuously between May 2016 and August 27 or 28, 2019, when the Respondent left the family home with the children.

[48] That fact is sufficient to establish the children being habitually resident in Ontario pursuant to section 22(2).1 of the CLRA. This is the circumstance upon which the Applicant relies in claiming that the children were habitually resident in Ontario when he commenced this proceeding.

[49] However, I must also have regard to section 22(2).2 of the CLRA and, if it applies, I must determine which last occurred – the situation that results in s. 22(2)(a) applying or the situation that results in s. 22(2).2 applying.

[50] To fall within the provisions of s. 22(2).2 of the CLRA, the proponent of its application – in this case, the Respondent, who claims that the children were habitually resident in British Columbia when this application was commenced - must establish that:

a. the parents are living separate and apart; and b. the children are residing [in British Columbia] with one parent: c. under a separation agreement; or d. with the consent, implied consent or acquiescence of the other parent; or e. under a court order.

[51] It is clear that, at the time this application was commenced by the Applicant, the parties were living separate and apart, the children were residing with the Respondent in British Columbia, and they were not doing so under the terms of a separation agreement.

[52] That leaves the question of whether the children were living with the Respondent “with the consent, implied consent or acquiescence of” the Applicant, or under a court order.

[53] I conclude that the children were not living with the Respondent “with the consent, implied consent or acquiescence of” the Applicant. The evidence is clear that, within days of the Respondent’s departure from the family residence, the Applicant was requesting that she and the children return, requests which she ignored.

[54] It is also the fact that, when the Respondent continued to ignore the Applicant’s requests for her return with the children, he informed the Respondent on September 2, 2019 that he intended to commence a court application the next day seeking the return of the children if the Respondent would not communicate with him.

[55] According to the evidence of the Applicant, he was prevented from doing anything the next day because he was arrested at the behest of the Respondent during the evening of September 2, 2019. However, following the Applicant’s release from custody, according to his evidence, which I accept, on September 4, 2019 he began seeking to retain counsel.

[56] When those efforts failed, he commenced an application in Family Court, unrepresented, on December 23, 2019. Despite discontinuing that application on February 3, 2020, he commenced a new application three days later, on February 6, 2020. That is the application which is currently before the court.

[57] In both of his applications - that of December 23, 2019 and that of February 6, 2020 - the Applicant requested custody of the children.

[58] Additionally, having been served with the application commenced by the Respondent in British Columbia on January 16, 2020, the Applicant retained counsel and filed a response challenging the jurisdiction of the British Columbia court to adjudicate issues of parenting of and contact with the children on the basis that they were habitually resident in Ontario.

[59] There is nothing in the evidence of the Respondent to suggest that, at any time following her removal of the children from the family home on August 28, 2019, the Applicant consented, expressly or impliedly, or acquiesced in any way to the children residing with the Respondent in British Columbia or elsewhere.

[60] To be fair to the Respondent, she does not make the argument that he did. Instead, it is her position that, at the time that the Applicant commenced this proceeding on February 6, 2020, the children were residing with her “under a court order”, which is the remaining option available to the Respondent to establish that the children were habitually resident in British Columbia when this application was commenced.

[61] As has been noted, the Respondent points to the Protection Order dated December 20, 2019 made by Associate Chief Justice Wishart in the Provincial Court of British Columbia as being “a court order” “under” which the children were residing with her.

[62] To determine whether there is merit to this submission, one must take a closer look at the legislation under which the Protection Order was granted, the application upon which the Protection Order dated December 20, 2019 was based, and the Protection Order itself.

[63] The Protection Order was issued under s. 183 of British Columbia’s Family Law Act. That section provides, in part, as follows:

183 (1) An order under this section (a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and (b) need not be made in conjunction with any other proceeding or claim for relief under this Act. (2) A court may make an order against a family member for the protection of another family member if the court determines that (a) family violence is likely to occur, and (b) the other family member is an at-risk family member. (3) An order under subsection (2) may include one or more of the following: (a) a provision restraining the family member from (i) directly or indirectly communicating with or contacting the at-risk family member or a specified person, (ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place, (iii) following the at-risk family member, (iv) possessing a weapon, a firearm or a specified object, or (v) possessing a licence, registration certificate, authorization or other document relating to a weapon or firearm; (b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact; (c) directions to a police officer to (i) remove the family member from the residence immediately or within a specified period of time, (ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or (iii) seize from the family member anything referred to in paragraph (a)(iv) or (v); (d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court; (e) any terms or conditions the court considers necessary to (i) protect the safety and security of the at-risk family member, or (ii) implement the order. (4) Unless the court provides otherwise, an order under this section expires one year after the date it is made. (5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

[64] The legislation clearly indicates that a Protection Order can be a stand-alone document, and if one was made at the same time as another order, they are to be “recorded” on different documents.

[65] The Protection Order and the Respondent’s application for it were produced as exhibits to the affidavit of the Applicant sworn September 28, 2020.

[66] At paragraph 4 of the Application for the Protection Order, the only relief requested by the Respondent was a protection order for herself and the children.

[67] She indicated, in response to a question on the application, that there were no “existing written agreements or court orders about the children concerning parenting arrangements, child support, contact with the child or guardianship.”

[68] The remainder of the application pertains to reasons why the Respondent sought the protection order. No information was requested in the application about where or with whom the children should be residing.

[69] Nothing in the Protection Order itself addressed where or with whom the children were to reside. Instead, it contained provisions prohibiting the Applicant from:

a. having contact or communication directly or indirectly with the Respondent or the children; b. having contact or communication directly or indirectly with two other named persons; c. attending at the place of residence, employment or school of the Respondent, the children and the other named persons; and d. possessing any specifically listed weapons.

[70] The Protection Order specifically exempted from its prohibitory conditions any communication by the Applicant with the Respondent “while in attendance at a settlement conference or a family case conference in a court action”.

[71] In my view, the fact that the exemption pertains to attendance at a conference in connection with a court action, rather than the court action, strongly suggests that the Protection Order had a very specific purpose, and that it contemplated the prospect of further litigation. That interpretation is consistent with the legislation permitting a person to seek a Protection Order without seeking another order at the same time.

[72] In fact, that is what occurred. It was not until January 16, 2020 that the Respondent commenced a “Family Law Matter Claim” in the Provincial Court of British Columbia in which she specifically sought “a court order about the following family law matters”, including “parenting arrangements” and “child support”.

[73] Section 45 of the BCFLA provides as follows:

45 (1) On application by a guardian [5], a court may make an order respecting one or more of the following: (a) the allocation of parental responsibilities; …

[74] Section 41 of the BCFLA provides, in part, as follows:

41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

[75] Section 149 of the BCFLA provides as follows:

149 (1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person. (2) An application may be made by (a) a child's parent or guardian…,

[76] Subsection 3 does not apply because it pertains to stepparents.

[77] In Schedule 1 to her “Family Law Matter Claim”, the Respondent indicated that she was “applying for the allocation of parenting time as follows”, entering onto the form the words: “to become the primary care-giver of the children with sole parenting rights and responsibilities.”

[78] In Schedule 3, the Respondent indicated that both she and the Applicant are guardians of the children.

[79] At paragraph 6 of her “Family Law Matter Claim”, the Respondent was asked whether there “are existing written agreements or court orders about parenting arrangements, child support, contact with a child, guardianship, and/or spousal support.” The Respondent indicated that there was, identifying the Protection Order granted December 20, 2019.”

[80] Certainly, of the options presented in the question, the Protection Order did address “contact with the child”, but it did not address “parenting arrangements, child support…, guardianship, and/or spousal support.”

[81] As a result, it is my view that the Respondent’s answer is only partially correct, and that her claim of the significance of the protection order is otherwise inconsistent with the statute’s wording.

[82] There matters stood, subject only to the Applicant’s response to the B.C Family Law Claim, until September 10, 2020, when Adjudicator K.V. Sacca vacated the Protection Order of December 20, 2019 and granted the Applicant video parenting time with the children. That order, again, did not specifically address with whom the children were to reside.

[83] Section 216 of the BCFLA provides as follows:

216 (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.

[84] Certainly, if the Respondent had obtained an interim order granting her parental responsibilities or had made an interim order in her favour with respect to parental responsibilities before the Applicant had commenced this proceeding, it stands to reason that she would have drawn that fact to my attention. That she has not leads me to conclude that no such interim order was obtained by the Respondent.

[85] Based upon all of the evidence and my reading of the BCFLA, I reject the contention of the Respondent that, when the Applicant commenced this proceeding on February 6, 2020, the children were residing with the Respondent under a court order.

[86] The Respondent also made submissions that the court should consider that the Respondent has demonstrated a “settled intention” to reside in British Columbia, to which heed should be paid when determining the issue of whether this court can exercise its jurisdiction to hear the Applicant’s claim with respect to the children.

[87] The concept of “settled intention” is a factor in assessing a child’s habitual residence under the common law rules for such determination, such as in cases under the “Convention on the Civil Aspects of International Child Abduction”, commonly referred to as the “Hague Convention”, where a court must determine the child’s habitual residence as part of its analysis. (Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398)

[88] However, the common law factors pertinent to habitual residence play no role in this case because the process of determining where these children were habitually resident at the commencement of this proceeding has been statutorily defined in s. 22(2) of the Children’s Law Reform Act. (Dovigi v. Rasi (2012), 2012 ONCA 361, 110 O.R. (3d) 593 at para. 14 (C.A.))

[89] Another response to the Respondent’s submission about the children being habitually resident in British Columbia when this proceeding commenced because the Respondent intended to settle and remain there is found in s. 22(3) of the CLRA, which provides as follows:

(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to 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. [6]

[90] I have already determined that the Applicant neither acquiesced to the removal of the children from Ontario by the Respondent, nor did he unduly delay in commencing this proceeding.

[91] Accordingly, the children’s removal from Ontario by the Respondent in the circumstances of this case did not change their habitual residence from Ontario to British Columbia.

[92] That determination is not the last step in the analysis, however.

[93] Section 25 of the CLRA addresses the issue of whether an Ontario court, despite having jurisdiction in respect of custody and access, ought to exercise that jurisdiction. Section 25 provides as follows:

25 A court having jurisdiction under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. [7]

[94] Justice S. Sherr has concluded that “[the] analysis under section 25 is akin to the balance of convenience test in subclause 22(1)(b)(vi) of the Act.” (Kanafani v. Abdalla, [2010] O.J. No. 4226 at para. 80)

[95] In that case, Justice Sherr further wrote:

79 In determining whether to decline to exercise its jurisdiction, the court should consider the purposes of the Act, specifically as outlined in clause 19(b), which reads: (b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection; [8]

[96] Justice L. Snowie similarly summarized at paragraph 99 of her decision in Dhillon v. Benipal, [2009] O.J. No. 1311 the matters which the court should take into consideration when assessing whether it should decline jurisdiction under s. 25 of the CLRA:

99 To summarize briefly, in determining whether to decline to exercise its jurisdiction, the court should consider the purposes of the Act, specifically as outlined in s. 19(b). The analysis under s. 25 is akin to the balance of convenience test in s. 22(1)(b)(vi). Another factor to consider is the existence of a foreign court order.

[97] I also regard s. 19(c) as being of importance. It provides that another of the “purposes” of Part III of the CLRA, which contains the custody and access provisions of the Act, is:

“to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process;” [9]

[98] The question to be answered at this point is, therefore, whether the court “is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.” To answer that question requires a consideration of where the balance of convenience lies in this case.

[99] Neither counsel focused much on this issue.

[100] Counsel for the Applicant submitted that the “balance of convenience, particularly with respect to witnesses for both parties, favours that jurisdiction be exercised in Ontario.”

[101] Counsel for the Respondent submitted that the balance of convenience favours British Columbia because, “[t]here is substantial evidence concerning the best interests of the children in British Columbia and the network of people with whom support is in the best interests of the children”, who also “have a substantial connection to British Columbia.” Counsel further submits that the Respondent has “many witnesses” who can testify on her behalf, all of whom are from British Columbia.

[102] In response to a similar submission made in Murray v. Ceruti, [2014] O.J. No. 4684, albeit apparently with respect to evidence other than the testimonial evidence of witnesses, the Court of Appeal wrote:

26 We see no merit in this submission. The respondent could make an equally compelling argument regarding the availability of evidence in Ontario regarding her ties to the community and her plans to parent the child. It is also important to remember that the child was just over two months old at the time of the hearing of the motion and had only ever lived in Ontario. Therefore, 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.

27 We conclude that the motion judge committed no error in finding that there is substantial evidence concerning the best interests of the child available in Ontario. The existence of substantial evidence in Indiana is not incompatible with the existence of substantial evidence in Ontario.

[103] In Nordin v. Nordin, [2001] O.J. No. 599, Justice Mesbur held that the balance of convenience favoured a jurisdiction other than Ontario because “the children's teachers, doctors, and instructors”, the evidence of whom she thought “will be of great assistance to the court as independent witnesses”, were all located in the foreign jurisdiction.

[104] Additionally, according to the affidavit of the Respondent sworn October 19, 2020, the children participated in Ontario in “extracurricular activities” including “karate lessons”, “ballet lessons” “toddler reading time at the library” and “a crafting club at the library”. She also deposed that she took the children to the home of the Applicant’s grandmother twice weekly to “read aloud together” for the five months immediately preceding the parties’ separation. Presumably, the evidence of persons connected to those activities, and of the Applicant’s grandmother, would be of assistance to the court, and they are all resident in Ontario, as are the many members of the Applicant’s family with whom the children are said to have had contact while they were residing in Port Stanley, as many are said to have also resided in and about Elgin County.

[105] The Covid-19 pandemic has introduced new technologies to the court process, and it is now very common for witnesses to testify electronically via programs such as Zoom.

[106] The children were ages 6 years and 2½ years of age when the parties moved to Ontario. They were 9 years of age and 5¾ years of age when the parties separated. The children remained in Ontario with the Respondent for 3 months more after separation before being taken by the Respondent to British Columbia.

[107] Therefore, the elder child spent roughly 1/3 of his life in Ontario before his removal, and the younger child spent roughly 2/3 of her life here before her removal.

[108] While I recognize that the ages of the children in this case are different than that of the child in Murray v. Ceruti, and they did previously reside in British Columbia, the fact is that, immediately before their surreptitious removal to British Columbia, they resided in Ontario for three years. Their lives were here. Furthermore, they did not attend school here, as they were home-schooled.

[109] The last factor identified for consideration by Justice Snowie in her decision in Dhillon v. Benipal, supra, was “the existence of a foreign court order.”

[110] I have already noted that, on September 10, 2020, in the Respondent’s proceedings in British Columbia, Adjudicator K.V. Sacca made an order which provided the Applicant with regular video contact with the children, without addressing the issue of “parental responsibilities.”

[111] In fact, that order specifically provides as follows:

“This Order is made under s. 77(2)(a) of the FLA and in no way prejudices the determination of the issue of jurisdiction.”

[112] Section 77 of the BCFLA provides as follows:

Wrongful removal of child

77 (1) This section applies if a court (a) may not make an order or declines to make an order under section 74 [determining whether to act under this Part], or (b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia. (2) In the circumstances set out in subsection (1), a court may do one or more of the following: (a) make any interim order that the court is satisfied is in the best interests of the child; (b) stay an application to the court for an order, subject to (i) the condition that a party to the application promptly start a similar proceeding before an extraprovincial tribunal, or (ii) any other conditions the court considers appropriate; (c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other expenses of the child and of any parties to or witnesses in the proceeding.

[113] Clearly, the British Columbia court, in making its order under s. 77(2)(a), made an interim order that it regarded as being in the best interests of the children.

[114] To do so, however, it also had to conclude that the “circumstances set out [in s. 77(1)] applied.

[115] Those circumstances consist of the court:

1. determining that it may not make an order under s. 74;
2. declining to make an order under s. 74; or
3. being satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

[116] Section 74 appears to be the British Columbia equivalent to ss. 22(1) and 25 of the CLRA. It is worded similarly. It sets out the prerequisite conditions to the British Columbia court being able to assume jurisdiction to address parenting issues relating to children habitually resident or physically present in British Columbia and allows for the court to decline jurisdiction if the court is of the view that it would be more appropriate for jurisdiction to be exercised elsewhere.

[117] Based on the wording of Adjudicator Sacca’s order of September 10, 2020, it is clear that the issue of jurisdiction over the children has not been determined there. That is acknowledged by both parties, and I am informed that the British Columbia court is awaiting my decision on the issue of whether Ontario should assume jurisdiction in this case.

[118] In the context of Justice Snowie’s summary in Dhillon v. Benipal, supra, therefore, I conclude that there is no order in British Columbia to which I need have regard. I also conclude that the court in British Columbia is very much alive to the argument raised by the Applicant in his response in those proceedings that the children were wrongly removed from Ontario.

Conclusion

[119] As a result, based on all of the forgoing, I conclude that the balance of convenience favours Ontario retaining jurisdiction in this matter, and that the Applicant’s claim may proceed here.

[120] Accordingly, I direct counsel for the parties to immediately confer and communicate with the Trial Coordinator at St. Thomas to schedule a date for argument with respect to the interim parenting order (including parenting time) which should be made having regard to the best interests of the children, since by agreement that issue was not addressed on February 11, 2021.

[121] I am not seized of that issue but am prepared to continue with the motion if counsel and the Trial Coordinator can arrange a hearing before me in the near future at a time convenient to everyone.

[122] Costs of this motion are reserved to the Justice hearing the motion with respect to the interim parenting order (including parenting time) concerning the children. It is my conclusion that the Applicant is the successful party on this part of the motion, subject to the terms of any offers to settle which may be disclosed only after the completion of the next phase of the motion.

Justice T. Price Date: March 5, 2021

Footnotes

[1] In the Application, the Applicant seeks custody. However, the Children’s Law Reform Act, R.S.O. 1990, c. C.12, was amended as of March 1, 2021 by the Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25, Schedule 1. There are no transition provisions in the amending legislation. The changes with respect to the clauses engaged on this motion are mainly in terminology. In this endorsement, I will be referring to the post-March 1, 2021 terminology, but will footnote the former statutory provisions which were referred to by counsel when the motion was argued.

[2] Formerly:

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

I am of the view that there were no changes of substance to the former provisions as they pertain to this motion.

[3] Formerly:

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.

[4] Formerly:

(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.

[5] Section 39 of B.C.’s Family Law Act provides as follows:

39 (1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

[6] Formerly:

(3) 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.

[7] Formerly:

25 A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

[8] Section 19(b) now reads:

“to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;”

[9] Formerly:

“to discourage the abduction of children as an alternative to the determination of custody rights by due process”