COURT FILE NO.: FS-21-25283-000

DATE: 20211013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CRISTOBAL SEVERO CASTILLO MERCEDES

Applicant

– and –

PILAR DEL CARMEN REYNOSO SALVADOR

Respondent

Lisa Allegro, for the Applicant

Self-represented, Respondent

HEARD: September 16, 2021

M.D. Faieta J.

REASONS FOR DECISION

[1] On August 19, 2021, the Applicant brought an ex parte motion in the Ontario Superior Court of Justice in Newmarket to have sole decision-making responsibility of their two children and that the children reside with him. This motion was dismissed for lack of jurisdiction. In arriving at this conclusion, G.A. MacPherson J. stated:

12. The children are ordinarily resident in: a) Dominican Republic; b) Montreal, or c) Toronto. That determination will have to be made. There is no evidence that the Children ever resided within the jurisdiction of Newmarket’s Court;

13. The evidence before the Court does not establish that the children are in danger. While there may be some evidence that the children may be removed from Ontario to Montreal, there is ample evidence that they may very well be ordinary residents in Montreal. It is noteworthy that at paragraph 33 of his affidavit the Applicant he requests the children be returned to Ontario and not precluded from going.

[2] On August 25, 2021, the Applicant was served with a family law proceeding that the Respondent had commenced in Quebec.

[3] On August 26, 2021, the Applicant commenced this Application in Toronto and filed a second motion for the immediate return of the children to Ontario. On this motion, the Applicant seeks the following Order:

1. An order for the immediate and emergency return of the children of the relationship, Diego Enrique Castillo Reynoso, born April 29, 2013, and Mia Serith Castillo Reynoso, born August 27, 2014 (the “Children”), from Quebec to their habitual residence of Ontario;

2. An Order that Ontario be designated the proper jurisdiction for this matter, as the Children have been habitually resident in Ontario since April 2018;

3. An Order that the application filed in Quebec be dismissed and the matter be dealt with properly in the jurisdiction of Ontario;

4. An Order that the Children be returned to the care of the Applicant and that the Applicant have sole decision-making responsibility for the Children;

5. An Order for the immediate resumption of in-person parenting time for the Applicant with the Children;

6. An Order that the Children’s passports, health cards, birth certificates and other government identification be provided to, and retained by, the Applicant;

7. An Order that this matter be referred to the Office of the Children’s Lawyer to provide such services under s. 89(3.1) and section 112 of the Courts of Justice Act, as they deem appropriate for the Children;

8. An Order that the Royal Canadian Mounted Police, the Ontario police, or the Quebec police, or any other law enforcement agency locate, apprehend and return the Children forthwith to the province of Ontario, pursuant to section 36 of the Children’s Law Reform Act;

[4] The Respondent submits that this motion should be dismissed because it lacks urgency and, alternatively, because this court lacks jurisdiction to hear this case.

BACKGROUND

[5] Both parties were born in the Dominican Republic. The parties began living together in the Dominican Republic in July 2012. The Respondent became a permanent resident of Quebec in about 2012. The Respondent moved to Quebec on October 26, 2012 where she rented premises in Brossard, Quebec.

[6] In November 2012 the Respondent returned to the Dominican Republic. On March 16, 2013, the Respondent returned to Quebec. On March 26, 2013, the Respondent returned to the Dominican Republic and the parties were married on that same day. On March 27, 2013 the Respondent returned to Quebec. On April 29, 2013, their son Diego was born in Quebec. On June 15, 2013, the Respondent returned to the Dominican Republic. On November 12, 2013, the Respondent’s sponsorship of the Applicant was approved and his application for permanent residence was granted. In January 2014, the Applicant arrived in Quebec for the first time and the parties moved to an apartment in Greenfield Park, Quebec. In June 2014, the Applicant moved to a friend’s house in Montreal for 15 days. On August 27, 2014, their daughter Mia was born in Quebec. On May 7, 2016, the Applicant returned to the Dominican Republic from Montreal as he was homesick. The Respondent applied for welfare.

[7] On August 10, 2016, the Respondent also contacted a lawyer, Ana Henrique, to prepare a separation agreement. The Applicant returned to Quebec in August 2015 and on August 25, 2016 the parties, represented by counsel, signed a without prejudice, interim custody and support agreement in Quebec which provides as follows:

• The Respondent was granted custody of their two Children.
• The Applicant consents to the Respondent travelling outside of Canada with the Children without his prior authorization.
• The Applicant stated that he earns $6,000 per year and the Respondent stated that she earned no income. The parties agreed that the Applicant would not pay support.
• The Respondent was granted exclusive use of their family home in Greenfield, Quebec.
• The agreement was to continue until October 20, 2016.

[8] The parties’ relationship improved during September 2016-December 2016.

[9] In early 2017, told the Applicant that she wanted to look for work in Ontario as she felt that she would be more marketable as speaks both English and French. The Respondent stated that the Applicant did not like this suggestion as he would then have to take care of the Children while she worked.

[10] In August 2017 the Respondent found work in Ontario however she had to quit because the Applicant left their home.

[11] The Respondent states that on October 30, 2017, the Applicant resumed living with the Respondent in Quebec. The Respondent found another job in Ontario. Until about April 2018, the Respondent worked in Toronto during the week and lived with the Children in Quebec on weekends. She would travel by coach bus from Montreal to Toronto each week.

[12] In March 2018, the Government of Quebec approved the Respondent’s temporary departure from Quebec to Ontario for work purposes. In April 2018 the Applicant and the Children moved to Toronto after the Respondent rented an apartment in Toronto for a one-year term. She states that they tried to live as a family again from June to December, 2018 however the Applicant was deeply depressed to the point that he threatened to kill himself.

[13] On January 15, 2019, the Respondent received notice that her employment would end in March 2019. She asked the Applicant to return with the family to Quebec however he told her that he preferred to return to the Dominican Republic. By June 2019, the Respondent found that she was earning enough money as an immigration consultant and proposed to the Applicant that they start their own immigration consulting company. The Applicant did not want to do so. She started a company without the Applicant’s participation, and he became more depressed as he believed that the Respondent would end their relationship.

[14] The Respondent sent a letter to the Canadian Embassy in September 2019 stating:

I founded Kaizen Canadian Corporation in August 2019. The corporation offers immigration and settling down services to our clients. In 2018, I, Pilar Reynoso, CEO of Kaizen Canadian Corporation and Petya Ignatova from Advikus Immigration Consulting, began a partnership. I became an Immigration agent in January 2018 and started the business with people in the Dominican Republic. I signed an agent agreement with Petya Ignatova in July 2018, and I became formally registered as an authorized Agent. The business was going very well from the beginning, and I was getting many people and clients. In March 2018, I decided to involve my family in the industry and also my Husband‘s family and some friends as well. By the end of 2018, I was able to pay my expenses and also pay commission to all the agents in the Dominican Republic. In April 2019 Petya Ignatova and I decided to rent a business office in Mississauga; by this time a total of 8 agents were already working for me in the Dominican Republic. In August 2019, my partner and I decided to merge the immigration firm Advikus Immigration Consulting with a new corporation, “Kaizen Canadian Corporation.” Today Kaizen Canadian Corporation has its Authorized Immigration consultant under Petya Ignatova’s license and a total of 8 Agents in the Dominican Republic. We also have other two agents in United Stated. We signed a formal agreement in august 2019 between Petya Ignatova, Kaizen Canadian Corporation and the eight agents from Dominican Republic. [Emphasis added]

[15] It appears that the parties and their Children continued to reside together in Toronto. The Respondent states that the Applicant’s depression became worse and that by the end of November 2019, the Respondent states that the Applicant diagnosed himself with mental illness. He refused to see the family doctor in Toronto. He refused to return to Montreal. The Respondent states that she was called from a mental health centre to pick up his car after he had been taken to a hospital out of concern for his threatening suicide.

[16] On December 4, 2019, the Applicant returned to the Dominican Republic. The Applicant states that he was the Children’s primary caregiver until this date. He states that he bathed them, brought them to school, picked them up from school and made their lunches. He also took care of all household duties, including cooking, cleaning and laundry.

[17] The Respondent stated that the Applicant’s mood quickly improved after his return to the Dominican Republic. The Applicant travelled to the Dominican Republic with the Children on December 29, 2019.

[18] The Respondent states that in January, 2020 the Applicant refused to return to Canada with the Children and told her that she would have to pick them up. On January 15, 2020, she sent the Applicant a text message telling him that if he was not returning, then she and the Children would go back “home” to Quebec. At some point, in early 2020, the Respondent brought the Children back to Toronto from the Dominican Republic. Once schools in Toronto closed on March 18, 2020 as a result of the COVID-19 pandemic, the Respondent moved with her Children back to Quebec. However the Respondent continued to have immigration clients that she needed to support. She sublet her apartment in Toronto to her clients until they found a home of their own.

[19] The Respondent states that from about March 2020 she and the Children lived in a basement apartment in Montreal. The Children participated in virtual learning.

[20] In June 2020 the Respondent rebuffed the Applicant’s offer to reconcile. In August 2020 the Respondent found a house in Quebec for her and the Children to live in.

[21] In October 2020, the Respondent states that the Applicant contacted her while she was staying at her apartment in Toronto with the Children and her new partner, Juan Carlos Ulloa. She states that Mr. Ulloa brought the Children downstairs to see the Applicant. The Applicant told the Respondent that he was living in Bradford, Ontario and wanted to see the Children every weekend. The Respondent told him that she and the Children were living in Quebec and was only temporarily working in Toronto.

[22] The Applicant states that he returned from the Dominican Republic on October 4, 2020 and that the Children spent at least every weekend with him. He states that they spent all of December 2020 with him.

[23] The Respondent travelled to the Dominican Republic with the Children from January 2, 2021, until June 2, 2021 when she returned to Toronto. The Applicant states that the Respondent has not shared any information on her or the Children’s whereabouts. He states that the Respondent blocks his calls and refuses to allow him to have access to the Children whether in person or by telephone. The Respondent denies these allegations.

[24] The Applicant states that due to the Respondent’s silence, he involved the authorities that administer the Hague Convention as he did not know if she was still in the Dominican Republic with the Children. On June 7, 2021, the Toronto Police Service conducted a wellness check at the request of the Applicant and found that the Children were doing well.

[25] By letter dated June 24, 2021, the Applicant’s former lawyer, Elka Zagazeta Garcia, proposed terms to the Respondent for parenting time and financial disclosure.

[26] On July 9, 2021, the Respondent notified the Ms. Garcia that:

…We are back home in Montreal as we are coming to Ontario and travelling internationally for job purposes, please let me know how you would like to proceed because of the jurisdiction change in Quebec. …

Before leaving in December 2020, I proposed him staying with the kids while I was working so the link between them would not be broken and deprived, and that I could also take a breath and could work property without having to take care of all the school commitments and other details involved in having two little people fully dependent on you. I got a “no” for a response. I also proposed to leave the kids here in Ontario under my partner and his mom’s surveillance giving him full access to them and he did not agree, so I had no choice but to travel with them both. ….

National and international traveling is mandatory for my work, and this is why I offered him to say with the kids while I am away so they stay connected. Since January 2020 I have traveled and worked carrying my kids with me. After December 2020 Mr. Castillo does not talk to me in any way. Anytime he wants to know anything he asks the kids so I don’t even know how this agreement can be effective in any matter or any place. …”

[27] The Applicant states that he learned on July 15, 2021, that the Respondent was looking for rental accommodation in Montreal and that she had not moved there yet.

[28] On July 16, 2021, Ms. Garcia sent a letter to the Respondent demanding that she not remove the Children from Ontario:

I am advised by my client that the habitual residence of the children has been the province of Ontario since 2018 … .

My client advises that you and the children are still residing at the apartment that you shared with my client in North York, ON and you should not remove the children from that residence unless there is an agreement by the parties or court order. If you remove the children from the jurisdiction of Ontario, my client has instructed me to bring an emergency motion for the non-removal of the children and we will be seeking costs against you.

[29] On July 19, 2021, the Respondent responded that she had left Ontario without notice or consent. The Respondent suggested that the Applicant take 50% of the responsibility of the Children. A copy of this message was not provided by the parties.

[30] On July 23, 2021, Ms. Garcia sent a further letter to the Respondent expressing the Applicant’s willingness for the Children to primarily reside with him:

My client’s position continues to be that the children’s primary residence is the province of Ontario and that the Children should be returned to this jurisdiction immediately. My client is prepared to negotiate residence and parenting time with the children by way of a Separation Agreement provided that the children are returned to the province of Ontario. …

Again, we sent you correspondence on June 24, 2021, and you did not disclose that you were planning on relocating with the children to Montreal. Self-help methods to change the primary residence of the children are not appreciated by family court judges. Please advise of your residential address forthwith.

[31] On July 23, 2021, the Respondent advised Ms. Garcia that:

… We moved to Montreal in 2020 and Mr. Castillo has that info on his email and also WhatsApp so no way to say that I didn’t tell him. Actually, I remember asking him in writing if he was able to come back with us so I could wait for him but oh surprise he never came back. …

Putting the kids at school in his area means that they have to start all over, I have to move back to Ontario to share custody so everyone who was left behind now have to accommodate the newcomer! Please can he at least has something that can be convenient for all of us and not only for him. …

[32] On August 19, 2021, Ms. Garcia incorrectly filed an urgent motion on the Respondent’s behalf in Newmarket.

[33] On August 25, 2021, the Respondent’s lawyer in Quebec sent Ms. Garcia a Notice of Application for a Divorce.

[34] The parties raise the following issues:

(1) Should this motion be heard prior to a Case Conference?

(2) Does this Court have the jurisdiction to make the parenting order sought by the Applicant?

(3) If so, should this Court make the parenting order sought by the Applicant?

ISSUE #1: SHOULD THIS MOTION BE HEARD PRIOR TO A CASE CONFERENCE?

[35] The Respondent submits that this motion is not urgent and thus, pursuant to Rule 14(4) of the Family Law Rules, it should not be heard prior to a case conference.

[36] However, this issue has already been addressed. On September 2, 2021, Hood J. made the following Endorsement:

Order to go as follows: 1. The applicant’s urgent motion is adjourned to September 16, 2021 at 10 am for a 1 hour motion. 2. The respondent is to serve and file her responding material on or before September 7, 2021. 3. Any reply material is to be served and filed on or before September 10, 2021. 4. Factums are to be served and filed on or before September 14, 2021. 5. In addition to filing of the material all material is to be uploaded to CaseLines. As set out in the Notice to Profession all affidavit material should be bookmarked, and all factums hyperlinked. 6. Costs of today are reserved to the judge hearing the motion. Today’s attendance took 40 minutes time. While the most urgent issue is the schooling the motion is not confined to that one issue and the applicant may deal with the issues as set out in his motion. I am not seized of the motion.

[37] I do not see how it would serve the interests of justice to re-visit the determination made Hood J. that this motion should proceed in advance of a case conference. This motion has scheduled with this court’s approval, motion materials have been filed and the motion on both this procedural issue and for substantive relief has been heard. At this point, the limited resources of all concerned should be focused on addressing the merits of this motion rather than re-visiting a procedural determination previously made by this Court. Accordingly, I dismiss the Respondent’s request for an order that this motion is not urgent and should not be heard prior to a case conference.

[38] I note that, contrary to Hood J’s direction, none of the affidavits filed by the parties (with a total of about fifty exhibits) were bookmarked and neither Factum was hyperlinked.

ISSUE #2 – DOES THIS COURT HAVE JURISDICTION TO MAKE THE PARENTING ORDER SOUGHT BY THE APPLICANT?

[39] Sections 5, 19, 20, 21, 22 and 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, are relevant on this motion.

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, …

(b) if the case deals with decision-making responsibility, parenting time or contact with respect to a child, in the municipality where the child habitually resides, except as provided for under section 22 of the Children’s Law Reform Act;

19. The purposes of this Part are,

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to Children will be determined on the basis of the best interests of the Children;

(b) 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;

(c) to discourage the abduction of Children as an alternative to the determination of decision-making responsibility by due process; and

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.

(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.

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.

(4) An application under subsection (1) or (2) for a parenting order or subsection (3) for a contact order shall be accompanied by an affidavit, in the form specified for the purpose by the rules of court, of the person applying for the order, containing,

(a) the person’s proposed plan for the child’s care and upbringing;

(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part V of the Child, Youth and Family Services Act, 2017, or in any criminal proceedings; and

(c) any other information known to the person that is relevant to the factors to be considered by the court under section 24 in determining the best interests of the child.

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.

(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.

(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.

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[40] The Respondent relies on the common law approach to the determination of “habitual residence” described in Ludwig v. Ludwig, 2019 ONCA 680. However, subsection 22(2) of the CLRA supersedes the common law approach to determining “habitual residence”: Dovigi v. Razi, 2012 ONCA 361, para. 14; 2021 Cook v Rosenthal, 2021 ONSC 1653.

[41] “Reside” means to have one's permanent home in a particular place: see The Concise Oxford Dictionary, (7th ed.).

Section 22(1)(a)

[42] The Applicant submits that this case falls within the scope of s. 22(1)(a) and 22(2) of the CLRA. He submits that the Children have been “habitually resident” in Ontario since April 2018 in that they have attended school in Toronto, engaged in extra-curricular activities in Toronto, visited their doctor and dentists in Toronto and have friends and favourite parks in Toronto.

[43] However, the Applicant’s submission does not reflect the analysis required by s. 22(2) of the CLRA to determine habitual residence.

[44] Turning to s. 22(2)1., I find on the evidence that the place that the Children last resided with both parents was in Toronto in December 2019 before the Applicant left to visit the Dominican Republic from December 2019 to October 2020. Although the Respondent and the Children visited the Applicant in the Dominican Republic for Christmas 2019 to January 2020, I find that the Children did not “reside” in Dominican Republic during this short period as it was not their permanent home.

[45] With respect to s. 22(2)2. I find that the parties lived separate and apart after the Respondent returned from the Dominican Republic in January 2020. After that time the Respondent lived with the implied consent of the Applicant in Toronto. The temporary Separation Agreement that the parties entered into in August 2016 lapsed several years earlier. There is no evidence to find that the Children’s change of residence to Montreal in July 2021 was made “under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order”. The Applicant’s actions from June 2021 to August 2021 does not suggest that there was “consent, implied consent or acquiescence” in respect of the removal of the Children to Quebec.

Section 22(1)(b)

[46] Section 22(1)(b) cannot form the basis to give this court jurisdiction to make the order sought by Applicant as the Children were not physically present in Ontario on August 26, 2021, being the date that this Application and motion were commenced, given that the Children had returned to Montreal with the Respondent more than one month earlier. Accordingly, the Children’s removal to Montreal did not change their habitual residence.

Section 22(1)(c)

[47] Section 22(1)(c ) is inapplicable as there is no evidence that the Children resided with “…. a person other than a parent on a permanent basis for a significant period of time.”

[48] Having found that Ontario is the habitual residence of the Children, I turn to consider whether this Court should decline to exercise its jurisdiction under s. 22(1)(a) of the CLRA.

Section 25

[49] Section 25 of the CLRA states:

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

[50] The test for determining whether it is more appropriate for a court in Quebec to determine parenting time and decision-making responsibility turns on a determination of where the balance of convenience lies: Cook, para. 98. The factors that typically inform this assessment include the location of witnesses who can be expected to testify in this parenting dispute regarding their connections to Ontario and Quebec and the existence of a foreign court order: Cook, paras. 96, 97, 100, 109.

[51] Although the Respondent has commenced a proceeding in Quebec for a parenting order, the parties advised that no such order has been made by that court pending the determination of this motion.

[52] While there are witnesses in both provinces that would likely be called to support each party’s position regarding an appropriate parenting order, I find that with the greater use of videoconferencing for the delivery of evidence, the location of witnesses is a less significant concern that it was only a few years ago.

[53] The Children’s connection to Ontario and Quebec was disputed by the parties.

[54] In respect of the Children’s connection to Ontario, school records show that they were registered in the Toronto Catholic District School Board since 2018:

• An Index Card produced by the School Board shows that Diego was registered on April 9, 2018 and that Mia was registered on September 4, 2018;
• It also shows that he was in a virtual school from September 14, 2020 to February 12, 2021. It shows the address of the Children and their parents as the same address as the Toronto Apartment;
• Diego’s Attendance Profile shows that he was absent:
  • While in Senior Kindergarten in the 2018/2019 school year, due to illness on September 20, 2018 and January 25, 2019, for an appointment on June 14, 2019 and for “other” reasons on June 11 and 13, 2019;
  • While in Grade 1 in the 2019/2020 school year, due to illness over about ten days from October 7, 2019 to December 20, 2019 and again from February 10, 2020 to February 12, 2020 and on March 11, 2020. The records show that the school was closed from about March 23, 2020 until June 26, 2020;
  • While in Grade 2 in the 2020/2021 school year, due to illness on October 5 and 6, 2020; on October 30, 2020 and November 12, 2020, and on November 16-19, 2020 (picked up by the Respondent on October 30, 2020, November 12, 2020 and on November 16, 2020), and on January 6, 2021. The records show that Diego was absent for “family matters” from January 19-25, 2021
• Mia’s Attendance Profile shows that she was absent:
  • While in Junior Kindergarten in the 2018/2019 school year as a result of illness on November 13, 2018, January 25, 2019 and on June 13, 2019, due to school closure on February 12, 2019 and due to “other” reasons on April 2, 2019 and June 11, 2019;
  • While in Senior Kindergarten in the 2019/2020 school year as a result of the school being closed due to COVID-19 from about March 23, 2020 to June 26, 2020;
  • While in Grade 1 in the 2020/2021 school year, on October 5 and 6, 2020 due to illness, on October 30, 2020 and November 12 and 13, 2020 due to “other” reasons for which the Respondent picked her up; on November 16-19, 2020 due to illness; on January 4-6, 2021, January 11-4, 2021 and January 19-22, 2021 due to “family matters”, on January 25-27, 2021 as well as on January 29, 2021 due to an appointment;
• Diego’s Report Card for Grade 2 shows that he was absent 15.5 days for the 2020-2021 school year;
• An Index Card produced by the School Board shows that Mia was registered on September 4, 2018. It also shows that she was in a virtual school from September 14, 2020 to February 12, 2021. It shows the address of the Children and their parents as the same address as the Toronto Apartment;
• Mia’s Report Card for Grade 2 shows that she was absent 16 days for the 2020-2021 school year;

[55] The Applicant states that the Children’s doctor and dentist are located in Toronto. A letter from Dr. Joseph DeCaria confirms that the Children have been his patients since January 2019. He has seen Diego on January 4 and January 25, 2019 as well as February 13, 2020. He saw Mia on January 25, 2019 and April 2, 2019. An email from Dr. Mario Vertullo states that the Children have been treated at his dental office in February 2020 and July 2021. In addition, The Respondent states that the Children participated in activities, such as capoeira classes, in Ontario in or about 2019.

[56] Cogent evidence of the Children’s links within Quebec (for instance, whether school report cards, extracurricular or social activities and a description of their friends and relatives within that community, and the strength of their connection to them) has not been adduced.

[57] I am not of the opinion that it would be more appropriate for a court outside of Ontario to assume jurisdiction of this matter particularly given that the Children have lived in Ontario and attended school in Ontario for about three years prior to their recent removal to Quebec.

ISSUE #3: TEMPORARY PARENTING ORDER

[58] The Applicant seeks the following temporary parenting order:

• An Order that the Children be returned to the care of the Applicant and that the Applicant have sole decision-making responsibility for the Children;
• An Order for the immediate resumption of in-person parenting time for the Applicant with the Children;

[59] A child’s best interests are the sole consideration in making a parenting order.

[60] Section 24 of the CLRA states:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply o communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

[61] The Form 35.1 affidavit submitted by the Applicant father states that he currently resides in Woodbridge, Ontario with his common law partner and her 14-year-old daughter. He states that the Children will live with them and that the Children will attend a nearby local Catholic elementary school.

[62] The Applicant states that he works full-time and that he will have the support of his common law partner, her daughter as well as “… occasionally other trusted family and friends” in caring for the Children. The Applicant states that he will facilitate parenting time with the Respondent on alternate weekends.

[63] In support of this claim, the Applicant states that he was the Children’s primary caregiver until December 2019 and that the Children went to school in Toronto and their medical professionals were in Toronto. I note that the Children will not be returning to their Toronto school under the Applicant’s plan but rather to another school in Woodbridge. The assertion that their teachers and school friends are in Toronto may be true but obviously moving to Woodbridge will result in new teachers and likely the loss of their friends from their Toronto school. Whether the Children will retain their medical professionals is unknown.

[64] The Respondent states that she has been the Children’s primary caregiver since they were born and that she was the parent who was primarily responsible for organizing matters pertaining to their education, extracurricular activities and medical matters.

[65] The Applicant states that the Respondent has raised allegations of family violence in the Quebec proceeding, which he denies, but she has not directly done so in this proceeding.

[66] I find that it is in the Children’s best interests to grant temporary joint decision-making responsibility in respect of the Children to both parties. The Respondent shall not travel outside of Canada with the Children until further order of this court. Further, based on the limited evidence filed, I decline to make a temporary order that requires the Children to primarily reside with the Applicant in Woodbridge, Ontario and to attend another new school. Instead, the Applicant’s motion for temporary order that requires the Children to primarily reside with him is adjourned for ten days so that the parties may adduce better evidence on whether the Children should primarily reside with the Applicant.

[67] The Applicant seeks an order for the return of the Children to Ontario under section 40 of CLRA. This provision states:

Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following:

1. Make such interim parenting order or contact order as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[68] Section 40 is inapplicable in this case. The Children have not been wrongfully removed to Ontario or wrongfully retained in Ontario. Further, the circumstances in s. 40(b), such as a finding that jurisdiction under s. 22 of the CLRA should be declined, do not apply. The Applicant’s motion for an order requiring the return of the Children to Ontario is also adjourned to permit the parties to provide additional submissions on this point.

CONCLUSIONS

[69] I make the following Order: (1) the Children were habitually resident in Ontario at the time of the commencement of this Application and motion within the meaning of section 22 of the CLRA; (2) the parties shall be granted joint decision-making responsibility in respect of the Children; (3) neither party shall travel outside of Canada with the Children without the prior written approval of the other party or this Court; (4) the Applicant’s motion for an order that the Children primarily reside with him in Woodbridge, Ontario with parenting time afforded to the Respondent on alternate weekends is adjourned to October 26, 2021; (5) this matter shall be referred to the Office of the Children’s Lawyer for their consideration pursuant to sections 89 and 112 of the Courts of Justice Act, R.S.O 1990, c. C.43. The parties may file additional affidavits by October 19, 2021, and reply affidavits by October 22, 2021. The Respondent shall deliver a Form 35.1 affidavit. Factums shall be filed by October 25, 2021.

[70] Costs of this motion shall be determined after the adjourned motion is heard.

Mr. Justice M.D. Faieta

Released: October 13, 2021

COURT FILE NO.: FS-21-25283-000

DATE: 20211113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CRISTOBAL SEVERO CASTILLO MERCEDES

Applicant

– and –

PILAR DEL CARMEN REYNOSO SALVADR

Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: October 13, 2021