COURT FILE NO.: FC879/20
DATE: September 28, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: H.S.J.W., Applicant
AND:
B.W., Respondent
BEFORE: SAH J.
COUNSEL: Matthew Dupre for the Applicant
Erin O’Leary for the Respondent
HEARD: September 22 and 27, 2021
ENDORSEMENT
Overview
[1] The applicant took the parties’ three children to Newfoundland and Labrador in the summer of 2021 for a vacation. She intended on returning to Ontario. During the visit, she decided to remain in Newfoundland and Labrador with the children. The respondent requests, inter alia, that this court order the return of the children.
[2] Within the Provincial court in Newfoundland and Labrador, the applicant obtained an Emergency Protection Order ("EPO") which refrains the respondent from having any contact or communication with the applicant or the two younger children. The order also provides the applicant with care, custody, and control of the two younger children. The applicant opposes the return of the children.
Procedural History
[3] The applicant issued an application in the Superior Court of justice, Family Court, London, Ontario on October 7, 2020. The respondent filed an answer and claim by respondent on November 5, 2020.
[4] The parties have had a case conference and a settlement conference.
[5] At the end of August, the respondent moved, without notice, for relief requiring the parties’ children to return to Ontario and, if necessary, for police assistance.
[6] Tobin J. reviewed the basket motion and was not satisfied that the evidence provided supports that the motion should proceed without notice.
[7] He found the request to be urgent and that it should be dealt with on an expedited basis. Tobin J. adjourned the motion to September 3, 2021. He required the respondent to serve the applicant, through counsel.
[8] On the return of the motion, the court was made aware that an application was made for an EPO in the Provincial court of Newfoundland and Labrador.
[9] The motion was adjourned for argument before me with a request that details of the EPO be submitted.
[10] On the return date, counsel for the applicant requested an adjournment because the respondent had applied to the Provincial court of Newfoundland and Labrador seeking to set aside the EPO.
[11] That matter was scheduled to return to the Newfoundland and Labrador Provincial court the day after the scheduled motion. I denied the request for an adjournment and the motion preceded in part.
[12] I adjourned the continuation of the motion to the following week and requested that the parties provide an update as it relates to the Newfoundland and Labrador proceeding.
[13] Based on the evidence before me, the Newfoundland and Labrador Provincial court proceeding was not heard as scheduled. The proceeding was adjourned because counsel for the applicant, being the same counsel in this proceeding, was not present.
[14] The Provincial court in Newfoundland and Labrador attempted to contact counsel for the applicant with no success. The presiding justice would not proceed with the hearing without the applicant's counsel present. The proceeding was adjourned to September 28, 2021.
Issues
[15] Issues for determination include:
Is this court required to recognize or enforce the Newfoundland and Labrador EPO?
Are the children habitually resident in Ontario?
Did the respondent acquiesce or was there undue delay in commencing due process with respect to the children's removal and, if not, should the children be returned to Ontario?
Position of the Parties
Respondent - moving party
[16] The respondent requests an order that the children be returned to the Province of Ontario and for the resumption of the shared parenting arrangement enjoyed by the parties. Police enforcement is requested, if necessary.
[17] In the alternative, he seeks an order that the children primarily reside with him. He also seeks an order that the applicant not remove the children from the Province of Ontario without his written consent.
[18] The respondent submits that this court has jurisdiction and notes that the current EPO expires on October 2, 2021.
[19] The respondent submits that the children habitually reside in Ontario and he did not consent or acquiesce to their move to Newfoundland and Labrador.
[20] In fact, he suggests that he relied on correspondence between counsel wherein the applicant's counsel specifically stated: "My client will of course return the children to Ontario, their ordinary residence at this time".
[21] He submits that he commenced this motion immediately after the applicant confirmed that she intended to remain in Newfoundland and Labrador.
Applicant
[22] The applicant has no motion before the court.
[23] No submissions were made with respect to this court's jurisdiction.
[24] The applicant requests that the court consider the best interests of the children and requests the younger two children remain with her in Newfoundland and Labrador.
[25] The applicant submits that the children's views and preferences ought to be determined.
Legal Principles by Issues
1. Is this court required to recognize or enforce the Newfoundland and Labrador EPO?
[26] Section 41 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) provides that, on application, Ontario courts shall recognize an order granting decision making responsibility, parenting time or contact, made outside Ontario except in certain circumstances.
[27] Extra-provincial orders which are recognized are enforceable as orders of the Ontario court: see s. 41(2) CLRA.
[28] Section 41(1) sets out the circumstances that would lead to the Ontario court failing to recognize an extra-provincial order, they include:
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
2. Are the children habitually resident in Ontario?
[29] Section 22 of the CLRA establishes the basis for jurisdiction in the Ontario court for the making of parenting or contact orders.
[30] Specifically, s. 22(1) states that 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.
[31] Section 22(2) of the CLRA provides that a child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
a. With both parents.
b. 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.
c. With a person other than a parent on a permanent basis for a significant period of time.
3. Did the respondent acquiesce or was there undue delay in commencing due process with respect to the children's removal and, if not, should the children be returned to Ontario?
[32] Section 22(3) of the CLRA provides that 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.
[33] If a child is being unlawfully withheld from a person who has decision-making responsibility, s. 36(1) of the CLRA provides that the court may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to decision-making responsibility, parenting time or contact, as the case may be.
[34] Further, the court may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person who has applied for such an order: see s. 36(2) CLRA.
Analysis by Issues
1. Is this court required to recognize or enforce the Newfoundland and Labrador EPO?
[35] The applicant has not submitted an application requesting the Ontario court to recognize the EPO.
[36] Further, two of the five circumstances set out in s. 41(1) of the CLRA apply to this case. As such, this Ontario court will not recognize the EPO made in Newfoundland and Labrador.
[37] On page 1 of the EPO dated September 2, 2021, at paragraph 2, it specifically states that the application was made without notice to the respondent.
[38] He deposes that on September 2, 2021, his lawyer received an email from the applicant’s lawyer attaching the EPO.
[39] After being served with the EPO, the respondent received a copy of the application submitted by the applicant to the Provincial court in Newfoundland and Labrador. The application is dated September 2, 2021. The evidence in support of the application for the EPO, a document sworn by the applicant, is also dated September 2, 2021.
[40] The respondent was not given reasonable notice of the commencement of the proceeding in which the EPO was made.
[41] The application and the EPO were made on the same day and the respondent was not given notice.
[42] Instead, the respondent received a copy of the EPO after it was signed by Provincial court Judge W. Gorman.
[43] Accordingly, this court fails to recognize the EPO.
[44] Furthermore, the respondent was not given an opportunity to be heard by the Provincial court in Newfoundland and Labrador before the order was made. This is the second circumstance, as set out in s. 41(1) of the CLRA, that leads the court to not recognize the EPO.
[45] The respondent has applied to the Provincial court in Newfoundland and Labrador seeking to set aside the EPO. The out of province court matter was scheduled to take place in advance of the return of this motion, however, the evidence filed suggests that it did not proceed as planned because the presiding Provincial court judge chose not to proceed in the absence of the applicant’s counsel, Mr. Dupre.
[46] In his oral submissions, Mr. Dupre informed me that he is not licenced to practice law in Newfoundland and Labrador, nor is he retained for the purpose of assisting the applicant with the out of province application.
[47] The respondent intends to proceed with his motion to set aside the EPO on September 28, 2021. The respondent’s evidence suggests that Provincial court Judge Gorman advised that the EPO expires on October 2, 2021 and questioned whether he wanted to proceed with his motion to have it set aside given that it is nearly expired.
[48] The status of the EPO is that it will either be set aside at the respondent’s motion on September 28, 2021 or it will expire on October 2, 2021.
[49] Regardless of the outcome of the respondent’s motion or the impending expiration date, I find there is no application before me as required in s. 41(1) of the CLRA and I am satisfied that the circumstances set out in s. 41(1)(a) and (b) exists. Based on the foregoing, this court is not required to recognize the EPO.
2. Are the children habitually resident in Ontario?
[50] The applicant advised the respondent in April 2021 that she intended to travel to Newfoundland and Labrador with the children during the summer. The applicant and all three children left on or about June 30, 2021.
[51] At the time of their departure, travel to Newfoundland was prohibited due to the pandemic. The respondent believes that she obtained an extension seeking family support as she had recently delivered a child born from another union.
[52] The respondent deposes that he planned to join the children in Newfoundland, but he was unable to get the exemption to travel to that province.
[53] In or around late May 2021, the parties’ eldest child told the respondent that the applicant had discussed with him her intention to move to Newfoundland. The respondent was concerned and, through counsel, advised that he did not agree with the children moving and that he did not consent to the children travelling unless the applicant confirmed, in writing, that the children would return.
[54] By way of responding email, the applicant’s lawyer wrote to the respondent’s lawyer, stating: “My client will of course return the children to Ontario, their ordinary residence at this time.” Based on this representation and assurance, the respondent permitted the children to leave with the applicant.
[55] Six weeks into the trip, the applicant text messaged the respondent to inform him that she could not come back to Ontario, indicating that the eldest child wanted to live with him but she was not certain about the younger two. The applicant’s text messages stated that the children agreed that it was best for the applicant to remain in Newfoundland.
[56] In response, the respondent’s lawyer wrote to the applicant’s lawyer, confirming that he did not consent to any of the children remaining in Newfoundland.
[57] Arrangements were made for the eldest child to return to Ontario. That child did return on July 26, 2021.
[58] The younger two children asked the respondent if they could stay in Newfoundland for a while longer, and he reluctantly agreed.
[59] When the time came for the younger two children to return to Ontario, the applicant informed the respondent that “they are not ready to go.”
[60] The respondent became concerned as summer ended and the children were registered to attend school in person in Ontario commencing September 7, 2021.
[61] The applicant text messaged the respondent, stating that “they will not be leaving on Friday.”
[62] Shortly thereafter, the respondent commenced the motion currently before the court.
[63] Based on the evidence presented, I find that all three children are habitual residents of Ontario, being the place where the children resided last with both parents.
[64] Although the parties are living separate and apart at this time, the evidence clearly establishes that the respondent did not provide consent, implied consent or acquiesce to a change in the children’s habitual residency and, in fact, advised the applicant immediately that he did not agree with them remaining in Newfoundland.
[65] While the applicant deposes that she believes all three children should reside with her in a safer environment, where she can be provided with more security and extended family support, she has not brought a motion before the court authorizing the move or seeking an order that she and the children be permitted to continue to reside in Newfoundland.
[66] In fact, the applicant, in her affidavit, deposes that she understands that, due to the court process in Ontario, the two younger children should be returning to Ontario by September 2021 and, further, if she chooses to remain in Newfoundland, they will be returned to the respondent’s care until the children’s residence could be dealt with by an agreement or further court order.
[67] Notwithstanding the clear understanding as set out in her affidavit, the applicant failed to move before this court seeking relief in support of her position.
[68] Based on the evidence before me, I find that all three children habitually reside in the Province of Ontario pursuant to s. 22(2)(a) of the CLRA.
3. Did the respondent acquiesce or was there undue delay in commencing due process with respect to the children's removal and, if not, should the children be returned to Ontario?
[69] As outlined above, the respondent did not acquiesce or delay in commencing this motion after receiving knowledge of the applicant’s intention of remaining in Newfoundland with the children.
[70] In fact, the evidence demonstrates that the respondent made attempts for the two younger children to be removed to his parents’ care in Newfoundland, with a plan that they return to Ontario just as the eldest child did.
[71] The evidence demonstrates that the respondent informed the applicant as early as July 15, 2021 that he did not consent to any of the children remaining in Newfoundland and that he was hopeful a motion could be avoided.
[72] The respondent received a text message from the applicant on August 18, 2021, indicating that the younger two children would not be returned to the respondent’s father as planned.
[73] Nine days later, he swore his affidavit in support of a motion seeking their return. I find that the respondent acted swiftly in bringing this matter to the court’s attention and that it cannot be found that he acquiesced or delayed in commencing this motion.
[74] As a result, he has not altered the children’s habitual residence.
[75] I am satisfied that this court has the jurisdiction to make the parenting order sought by the respondent.
Conclusion and Disposition
[76] The applicant has not applied to the court for recognition of the extra-provincial order. In any event, in accordance with s. 41(1)(a) and (b) of the CLRA, this court fails to recognize the EPO from the Provincial court of Newfoundland and Labrador.
[77] The children are habitual residents of the Province of Ontario in accordance with ss. 22(1)(a) and 22(2)(a) of the CLRA.
[78] The respondent did not acquiesce and there was no undue delay in commencing due process with respect to the children’s removal from the Province of Ontario and this court has jurisdiction to make the parenting orders sought by the respondent in his notice of motion.
[79] The applicant has not moved for interim residency of the three children, for an order that a referral be made to the Office of the Children’s Lawyer or for supervised parenting time between the respondent and the two younger children.
[80] It is not up to the court, at this stage, to determine the issue of relocation. Generally, the issue of relocation and parenting time are best dealt with at trial.
[81] Based on the evidence presented, the applicant never intended to stay in Newfoundland. Her decision to remain in Newfoundland with the two younger children cannot create a status quo requiring the children to remain in Newfoundland pending a final resolution at trial or through settlement.
[82] The applicant’s application for the EPO sets out allegations of sexual assault of one child and financial control. The application fails to disclose all court matters involving the parties or the children. The EPO does not disclose that their children live in Ontario.
[83] The respondent denies allegations of sexual abuse. He deposes that he has not been contacted by the RCMP or any other police force regarding the allegations, nor has he been contacted by any child protection agency.
[84] The child's disclosure of alleged sexual assault ought not be disregarded. This allegation should be dealt with in Ontario and by the Ontario court.
[85] No parenting orders have been made in the Province of Ontario. There is no dispute that the parties engaged in a shared parenting arrangement.
[86] There is no dispute that, following the parties’ final separation in December 2018, the parties co-parented the children while the applicant continued to reside in the respondent’s home.
[87] There is no dispute that the parties tried to engage in a nesting arrangement.
[88] There is no dispute that the applicant left the respondent’s home in or around the spring of 2020 and thereafter they continued to share care of the children. The shared parenting arrangement persisted despite one child’s disclosure to the applicant on June 20, 2020 that she felt uncomfortable with the respondent.
[89] The applicant deposes that the child who disclosed sexual abuse did not provide her with much detail on June 20, 2020; however, in her application for the EPO, such detail was included. These allegations should be investigated and addressed when the children return to Ontario.
[90] There is no dispute that the children were in the respondent’s care every Monday, Tuesday and Wednesday and alternate Thursday, and in the applicant’s care alternate Thursdays, and Fridays, Saturdays and Sundays.
[91] Accordingly, when the children return to the Province of Ontario, they should reside with each party on an equal basis.
[92] An order will issue that the applicant return the children, C.R.J.W., born in 2009, and R.W., born in 2011, to Ontario and that all children, namely, C.B.W., born in 2006, C.R.J.W., born in 2009, and R.W., born in 2011, shall reside with the parties on an equal basis.
[93] Similarly, an order shall issue prohibiting the applicant from removing the children from the Province of Ontario without the respondent’s written consent.
[94] Courts are reluctant to make orders with police enforcement. Comments made by the applicant’s counsel during oral submissions have caused concern, particularly when he indicates that, if the respondent was going to send the police, “good luck, things will not end well.”
[95] Both parties need to appreciate that police enforcement should be an option of last resort and all reasonable efforts should be taken to ensure that police are not called.
[96] As a precaution only, a police enforcement clause will be incorporated with my order. The police enforcement clause will only remain in force for a period of two months.
[97] A final order shall go as follows:
The applicant shall forthwith return the children, namely C.R.J.W., born in 2009, and R.W., born in 2011, to Ontario.
The parties shall have shared parenting time with the children, namely C.B.W., born in 2006, C.R.J.W., born in 2009, and R.W., born in 2011, on an equal basis in Ontario.
The applicant shall not remove the children from the Province of Ontario without the respondent’s written consent.
For the purpose of enforcing the provisions of this order, the Royal Canadian Mounted Police, the Royal Newfoundland Constabulary and any other police force whose attention this order has been brought shall locate, apprehend and deliver the children, namely C.B.W., born in 2006, C.R.J.W., born in 2009, and R.W., born in 2011, to the respondent, B.W., or a person authorized by the respondent.
For the purpose of locating and apprehending the said children in accordance with this order, the Sheriff or police officer(s) may enter and search any place where he or she has reasonable and probable grounds of believing the said children may be, with such assistance and such force as are reasonable in the circumstance and that such search and entry may be made at this time.
The Sheriff or police officer(s) shall do all things reasonably able to be done to locate, apprehend and deliver said children, namely C.B.W., born in 2006, C.R.J.W., born in 2009, and R.W., born in 2011, in accordance with this order.
All of the above police assistance provisions shall remain in force for a period of two months.
Costs
[98] The parties are encouraged to settle the issue of costs.
[99] If the parties cannot agree on costs, they may deliver costs submissions not exceeding three pages, double-spaced (not including any offers to settle or their bill of costs).
[100] The respondent may deliver costs submissions within 7 business days of receipt of these reasons.
[101] The applicant’s costs submissions may be delivered within 7 business days of receipt of the respondent’s costs submissions.
[102] If a reply is necessary, the respondent may deliver no more than 1 page of submissions, double-spaced, within 3 business days of receipt of the applicant’s costs submissions.
[103] If no submissions are received pursuant to the timelines set out above, the issue of costs will be deemed to have been settled.
“Justice Kiran Sah”
Justice Kiran Sah
Date: September 28, 2021