Court File and Parties

COURT FILE NO.: FS-22-0013 (Walkerton) DATE: 20220329 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyle Bridge Applicant

-and-

Holly Bridge Respondent

Counsel: Andrea Clarke, for the applicant Natalie Javed, for the respondent

Heard: February 23, 2022 by video conference with submissions on jurisdiction issue received March 14 and 16, 2024

Justice R. Chown

Endorsement

[1] The parties disagree on the proper place for this proceeding. Is it Bruce County, where the children formerly lived? Or is it Simcoe County, where they now live?

[2] The issue is governed by rule 5(1)(b) of the Family Law Rules, O. Reg. 114/99, which states that a case such as this one, which deals with parenting time, shall be started in the municipality where the child “habitually resides,” except as provided for under s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Until recently, the phrase “ordinarily resides” was used but this was replaced with the phrase “habitually resides” effective March 1, 2021. This was coordinated with a similar change in the Divorce Act which took effect on the same date, replacing the phrases a “ordinarily resides” and “ordinarily resident" to “habitually resides” and “habitually resident” throughout the English version of the act.

[3] The respondent and the parties’ three children moved from the matrimonial home in Bruce County to Simcoe County in late October of 2021. This was done without prior explicit notice to the applicant father and without his explicit consent. However, in my February 23, 2022 endorsement, I concluded that the applicant was aware the respondent would be moving to Simcoe County with the children, and he impliedly consented to this. He effectively told the respondent to leave the matrimonial home right away. One of the applicant’s text messages said, “U can pack ur stuff a leave tmrw!!” [sic] The applicant’s parents own and also reside in the matrimonial home. The applicant knew that the respondent had no family in the Kincardine area and no other accommodations there, but her family lived in the Orillia area, and she had readily available accommodations there. The respondent’s affidavit says that the applicant “knew I had no where to go but Orillia,” and that he did not assist in finding suitable housing nearby in Kincardine. She also states that he was “aware that my grandmother had offered me her farmhouse many times to use for free.” She also says the applicant encouraged her to stay with the children in Orillia during the last months of the relationship when the boys were showing COVID symptoms. None of this is disputed in the applicant’s responding affidavit. The applicant knew at the time that the respondent and the children would have no good options other than to move to Simcoe County where her family resides.

[4] When someone moves, it is fair to say that on the day they move they become “ordinarily resident” in the new place. It is less natural to say that, on the day they move, they become “habitually resident” in the new place. However, although it is less natural to speak in this way, it is the appropriate interpretation in my view. That is, when the children moved to Simcoe County with the implied consent of the applicant, they became habitually resident in Simcoe County.

[5] The phrase “habitual residence” is not defined in the Divorce Act, the Family Law Act, or the Family Law Rules. It is, however, defined in the CLRA at s. 22(2) , which states:

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.

[6] As I have found that the applicant impliedly consented to the children primarily living with the respondent in Simcoe County, clause 2 of s. 22(2) is engaged. Under the CLRA definition, the children’s habitual residence became Simcoe County when they moved there with the respondent and without any intention to return to Bruce County.

[7] In theory, it would be possible to interpret the phrase “habitually resides” differently under the Divorce Act, the Family Law Act, the Family Law Rules and/or the CLRA. However, it would be inappropriate to do so for at least three reasons:

a. Rule 5(1)(b) specifically references s. 22 of the CLRA; b. Provincial and federal governments took pains to coordinate the language used in family law legislation. The effort to promote uniformity should be acknowledged and respected. It would introduce confusion and reduce the predictability of the law if the phrase “habitually resides” is not given a consistent meaning across all family law legislation that uses the phrase. c. The definition in the CLRA is a good one. Interpreting the phrase in accordance with the definition under the CLRA does no violence to its plain, everyday meaning. The plain, everyday meaning of the phrase “habitually resides” does not clearly exclude the possibility that someone has a new “habitual residence” from the day they move to a new place with no intention to return to the old place in the reasonably foreseeable future.

[8] I therefore find that the children habitually reside in Simcoe County within the meaning of rule 5(1)(b). Barrie is therefore the correct courthouse for this proceeding.

[9] No application has been filed in Walkerton in this matter. The applicant obtained leave to bring this motion on an urgent basis prior to the filing of his application. In the circumstances, Petersen J.’s order of February 3, 2022 is varied to delete paragraph 4(f). I will also order that the applicant shall not file his application in Walkerton. I will further order that either party may commence an application in Barrie.

Costs

[10] If the parties cannot resolve the issue of costs for this motion, I will receive submissions in writing. The applicant’s submissions shall be served and filed by April 6, 2022. The respondent’s responding submissions shall be served and filed by April 15, 2022. Any reply shall be filed within three days after the respondent’s responding submissions are served.

[11] Submissions shall be limited to three double-spaced pages, not including bills of costs, dockets, costs outlines, or offers. The reply submissions, if required, shall be limited to one double-spaced page.

Chown J. Released: 2022-Mar-29