Korenic v. DePotter, 2022 ONSC 3954

Court File and Parties

COURT FILE NO.: FS-22-22612 DATE: 20220704

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

David Korenic Applicant

– and –

Melissa DePotter Respondent

COUNSEL: Jerrod Patterson, for the Applicant Thomas McKay, for the Respondent

HEARD: June 2, 2022

RULING ON JURISDICTION

DUBÉ J.

INTRODUCTION

1The applicant, David Korenic, seeks an order in accordance with s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), acknowledging that the habitual residence of the two children of the relationship between the applicant and the respondent is Ontario and that this court has jurisdiction over the matter and should exercise that jurisdiction to make orders related to the subject children and parties.

A. Background

2The applicant and respondent dated on and off from January 14, 2014, to February 24, 2022. They never married.

3The applicant is a Canadian citizen who currently resides in Windsor, Ontario. He is employed at the Windsor-Essex Community Housing Corporation and has worked remotely since March 2020.

4The respondent is a United States citizen who currently resides in Shelby Township, Michigan. She is self-employed as a cosmetologist in Rochester, Michigan.

5They have two children from this relationship: Keaton Zora Korenic (“Keaton”), born October 11, 2016, and Davison Kane Korenic (“Davison”), born March 31, 2019. Keaton is currently five years of age and Davison is currently three years of age.

6The children were born in Michigan but have dual citizenship in the United States and Canada, although they have yet to receive their Canadian citizenship documents.

7Both the applicant and respondent appear to be good and fit parents.

B. Legal Proceedings

8This was the second return of the applicant’s urgent motion requesting an Order that this court exercise jurisdiction in this matter. The first motion hearing was on April 1, 2022, before Howard J. On that date, the motion was adjourned before me on June 2, 2022, subject to the following terms:

1. the children shall reside with the applicant in Windsor, Ontario;
2. the children shall under no circumstances be removed from the County of Essex unless by order of the court or written agreement between the parties;
3. the respondent to sign an undertaking confirming she will not remove the children from Ontario;
4. the parties to deposit the children’s identification to the Superior Court Justice pending further court order; and
5. the respondent to have parenting time with the children once the order is received by the American Border Service (that parenting time has been roughly equal).

9The respondent made submissions on both motions but only with respect to the issue of jurisdiction.

10The respondent also commenced family court proceedings in Michigan. On April 4, 2022, the respondent obtained a Friend of the Court Recommendation for an order in the Macomb County District Court. On an interim basis, Referee Jaqueline Wright found that Michigan had initial jurisdiction over the matter, granted the respondent sole legal and physical custody, and ordered that the children be returned to Michigan: see respondent’s affidavit, Tab E, May 16, 2022.

11A Motion Objecting to the Recommendation was filed by the applicant in the Macomb County District Court. On June 6, 2022, this motion was before Judge Rachel Rancilio, who took the matter under advisement pending an opportunity to have a “Jurisdictional Conference” with me before she issued a ruling.

12Attempts were made to schedule the Jurisdictional Conference, but due to scheduling and other difficulties, no conference was held. Judge Rancilio rendered her “Opinion and Order” on June 15, 2022, and adopted the referee’s recommended order. I have included Judge Rancilio’s ruling in Appendix “A”.

C. Relationship of the Parties and Living Arrangements

13The children have resided with their mother in Shelby Township, Michigan; their father in Windsor, Ontario; and, for a relatively brief period, with both parents in Windsor.

14According to the applicant’s affidavit, dated March 22, 2022, he bought a house located at 4561 Hunt Club Crescent (“Hunt Club residence”) in Windsor in May 2021. For the first time, the applicant and respondent intended to reside together with the children as a family unit. The respondent contributed $40,000 USD towards the purchase and renovation of the residence, although the applicant intended to pay the respondent back. The residence is located within the catchment area for Our Lady of Mount Carmel Catholic Elementary School (“OLMC”), a school that Keaton has attended since January 6, 2022.

15Once the house was purchased, the parties were, according to the applicant’s affidavit, “on-and-off every few weeks”. After one of their break-ups, the applicant decided to list the residence for sale. The applicant subsequently accepted an offer on the home on September 19, 2021, with a sale closing on December 17, 2021.

16In the meantime, the two reconciled yet again, although this time, according to the applicant, it was “on a more permanent” basis. In any event, despite the relationship’s instability, even after having children, the applicant and respondent remained committed to purchasing a house and living together in Windsor. On October 25, 2021, they rescinded the initial sales agreement and stayed at the Hunt Club residence: see applicant’s affidavit, March 22, 2022.

17In late October or early November 2021, the parties started moving in furniture and living at the residence. The applicant stated in his affidavit that the respondent began contributing to paying half of the mortgage and the household expenses. In her affidavit dated May 16, 2022, the respondent indicated that she finally moved her larger furniture into the shared residence on December 5, 2021, but kept her home in Michigan “as she wanted to try living with David and see how it would work out” knowing that she could move back at any time.

18In his affidavit, the applicant stated that between October 2021 and February 24, 2022, the respondent commuted from Windsor to Rochester, Michigan three to four days a week for work. During this time, she usually stayed at her residence in Shelby Township while the applicant took care of the children in Windsor.

19On February 24, 2022, the respondent took the children to Michigan and advised the applicant by text that “[i]t’s not working”. Shortly thereafter, the parties reverted to the status quo parenting arrangement that had been in place during those times when the two were separated. The parties exchanged the children on a regular basis for visitation purposes until this ended on March 12, 2022. By that time, the applicant, who had the children in Windsor, discovered an email inadvertently disclosed by the respondent’s Michigan attorney, which contained privileged solicitor-client communication, and then refused to allow the respondent to take the children back to Michigan.

20The issues before me are twofold: (1) whether Ontario has jurisdiction over this matter; and (2) if so, whether I should decline to exercise that jurisdiction.

ANALYSIS

21Section 22 of the CLRA provides:

Jurisdiction

(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.…

Habitual residence

(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.

[Emphasis added.]

A. Section 22(2)1 of the CLRA

22The respondent argues that paragraph 1 of s. 22(2) requires a settled intention to reside for an appreciable period of time. I do not agree. The plain wording of paragraph 1 of s. 22(2) defines the term “habitually resident”: see Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), 2004 ONCA 5548, 188 O.A.C. 376, at paras. 8-9; Markowski v. Krochak, 2022 ONSC 2497, at paras. 62-66. That definition does not require a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Simply put, habitual residency is deemed under paragraph 1 of s. 22(2) when, as in this case, the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis. Finally, while not specifically mentioned in s. 22(2), this provision is also to be interpreted in a manner that is consistent with the best interest of the children: see Ojeikere v. Ojeikere, 2018 ONCA 372, at paras. 15-16.

23Under paragraph 1 of s. 22(2), I find that at the commencement of the application (either in Michigan or Ontario), what occurred last was that the children resided with both parents for approximately four months at the Hunt Club residence in Windsor, Ontario; and therefore, the children are deemed to be habitually resident in Ontario. As a result, I am satisfied that this court has jurisdiction over the matter and that this finding is also consistent with the best interests of the children.

B. Section 22(2)2 of the CLRA

24If I am wrong with regards to my finding under paragraph 1 of s. 22(2), then I am satisfied that the children are habitually resident in Ontario and Michigan under paragraph 2 of s. 22(2) by virtue of the historic informal shared parenting arrangement between the parties that returned for a brief period after the children stopped living with both parents at the Hunt Club residence.

25Two competing states may have concurrent jurisdiction over a matter: see Jerome v. Steeves, [2006] O.J. No. 4337 (C.A.), at para. 18. Judge Rancilio has already decided that based on Michigan law, Michigan has jurisdiction. Given that finding, for the purpose of deciding whether Ontario has jurisdiction, I am satisfied that this province has concurrent jurisdiction with Michigan.

26In Riley v. Wildhaber, 2011 ONSC 3456 (Ont. Div. Ct.) (“Riley”), a case similar to this one, the court found that the children habitually resided both with the mother in Ottawa, Ontario and the father in Gatineau, Quebec. In doing so, the court concluded that the children were involved in a truly shared parenting schedule for several years even though both parents resided separate and apart a short distance away in different jurisdictions. The court stated the following, at paras. 43-44:

Based on the parents’ various agreements which they incorporated into consent orders of the Quebec Superior Court, the children have been residing with one of their parents on an alternating weekly basis in two different provinces. This is not a case where one can in any way conclude that the children were residing with one parent and merely visiting with the other parent. This joint parenting arrangement has been in place and has effectively been the children's reality since 2004. It has also been made possible because of the short distance between the parents’ respective homes even though the two homes are on different sides of an interprovincial boundary.

We therefore conclude that the children on the facts of this case are habitually resident concurrently in the provinces of Ontario and Quebec pursuant to s. 22(2)(b) [now: paragraph 2 of s. 22(2)] of the CLRA. As a result, the Ontario Superior Court of Justice has jurisdiction to hear Ms. Riley’s application.

27Although there is some conflict in the evidence as between the applicant and respondent, I nonetheless find that the children are habitually resident in both jurisdictions based on the following evidence:

1. After the birth of the children in Michigan, both parties signed an “Affidavit of Parentage” which provides the respondent with initial custody of the children, on a without prejudice basis, until otherwise determined by the court or by agreement between the parties and acknowledged by the court: see respondent’s affidavit, May 16, 2022.
2. On January 3, 2019, the respondent acknowledged in a letter to the Canada Revenue Agency, that she and the applicant have a shared 50/50 custody arrangement regarding the children: see applicant’s affidavit, Exh. B, May 22, 2022.
3. While both children were born in Michigan, they are dual citizens of the United States and Canada by virtue of the applicant’s Canadian citizenship, although the children have not yet received their Canadian citizenship documents: see applicant’s affidavit, May 26, 2022.
4. School Enrollment for Keaton is as follows: i. Trinity Early Learning Centre (Michigan) – attended – June 16, 2019 to March 8, 2020: see respondent’s affidavit, May 16, 2022. ii. OLMC (Ontario) – enrolled for the 2021/2022 year – March 12, 2021: see applicant’s affidavit, May 26, 2022. iii. St. John Lutheran School (Michigan) – attended – September 16 to November 5, 2021: see respondent’s affidavit, May 16, 2022. iv. Homeschooling by the applicant (Ontario) – November 6, 2021 to December, 2021: see applicant’s affidavit, March 22, 2022. v. OLMC (Ontario) – attended – January 6, 2022 to February 24, 2022: see respondent’s affidavit, May 16, 2022.
5. Medical Records for Keaton and Davison: i. Medicaid (Michigan) – the children currently have coverage: see respondent’s affidavit, May 16, 2022. ii. OHIP (Ontario) – the children currently do not have coverage: see respondent’s affidavit, May 16, 2022/applicant’s affidavit, May 26, 2022. iii. Dentist (Michigan) – January 3, 2019 to June 1, 2019: see respondent’s affidavit, Exh. R, May 16, 2022. iv. Pediatrician (Michigan) – June 3, 2019 to April 22, 2021: see respondent’s affidavit, Exh. T, May 16, 2022. v. Cardiologist (Michigan) – April 27, 2021: see respondent’s affidavit, May 16, 2022.
6. Parenting Schedule: i. Shared parenting between Michigan and Ontario – Two weeks on and two weeks off – June 2020 to April 2021: see respondent’s affidavit, May 16, 2022. ii. Children primarily in Michigan (the applicant was renovating the residence) – April 2021 to October 2021: see respondent’s affidavit, May 16, 2022. iii. Children in Ontario – October/November 2021 to February 24, 2022: see applicant’s affidavit, March 22, 2022/respondent’s affidavit, May 16, 2022. iv. Shared parenting between Michigan and Ontario – February 24, 2022 to March 12, 2022: see applicant’s affidavit, March 22, 2022.
7. Family Court Proceedings: i. Court proceedings filed but later dismissed on consent (Michigan) – 2018: see respondent’s affidavit, May 16, 2022. ii. Complaint for Custody filed (Michigan) – March 1, 2022: see respondent’s affidavit, May 16, 2022. iii. Motion for Custody (Michigan) – March 15, 2022: see respondent’s affidavit, May 16, 2022. iv. Application filed (Ontario) – March 18, 2022 v. Motion on Jurisdiction filed (Ontario) – March 21, 2022: see respondent’s affidavit, May 16, 2022. vi. Motion adjourned on terms as per Temporary Order (Ontario) – Howard J. – April 1, 2022: see respondent’s affidavit, Exh. C, May 16, 2022. vii. Recommended Order (Michigan) – Referee Jaqueline Wright – April 4, 2022: see respondent’s affidavit, May 16, 2022. viii. Motion on Jurisdiction (Ontario) – Dubé J. – June 2, 2022 ix. Recommended Order Adopted (Michigan) – Judge Rancilio – June 15, 2022

28As indicated above, the children’s connection to both Michigan and Ontario is strong and has been roughly equal over the years. While the historic parenting schedule was based on an informal agreement between the parties and not by court order as in Riley, little turns on that difference. The respondent asserts that her time residing with the children in Michigan amounted to something more than a shared parenting arrangement, but I question the reliability of her calculations in this regard: see applicant’s affidavit, Exh. J, May 16, 2022. During submissions, counsel for the respondent advised that the spread sheet used to calculate the time she spent with the children in Michigan over the last several years was not created contemporaneously with the events but later in time and in contemplation of the recent family court proceedings.

29Instead, I am satisfied that despite the inability of the parties to stay together in a relationship for any lengthy period, the two managed to put aside their differences and create a resilient shared parenting schedule that has endured for almost two years, subject to periodic accommodations to fit the circumstances.

C. Section 22(3) of the CLRA

30Section 22(3) expressly stipulates that a parent cannot change a child’s habitual residence by abducting the child:

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.

31I have carefully reviewed the applicant’s text messages to the respondent after he discovered that she had taken the children back to Michigan: see respondent’s affidavit, Exh. A, May 16, 2022. What is clear, between a tirade of expletives, is that his primary concern was not that the children would be kept from him, but that Keaton would miss a basketball practice. His lack of concern as to whether the children would be returned to him was confirmed a few days later when he allowed the respondent to take the children back to Michigan. Importantly, the two, on consent, transitioned seamlessly back to their previous informal shared parenting arrangement until the children were subsequently withheld by the applicant. In any event, neither the conduct of the applicant nor the respondent between February 24, 2022, and March 12, 2022, has altered my analysis with respect to the habitual residence of the children or the creation of a new status quo.

D. Section 19 of the CLRA

32Having found that this court maintains concurrent jurisdiction with the Macomb County District Court in Michigan, I must now determine whether this court ought to exercise its jurisdiction or decline to do so in favour of the matter moving forward in Michigan.

33An important consideration in this analysis is s. 19, which states:

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.

[Emphasis added.]

34This case is a close call. There is little, if any, significant difference between the children’s connection to Ontario or Michigan, although I must find in favour of one. In Riley, the court struggled over this very same issue in circumstances that are remarkably similar to those before this court. In Riley, the court explained, at paras. 45-46:

In order to decline such jurisdiction under either of these two sections, the Court must be of the “opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”

In deciding this question the court should keep in mind the purposes of the legislation as enunciated in s. 19 of the CLRA and referred to earlier. The facts of this case unequivocally show that the children, based on the joint custodial regime of the last seven years, have a substantial connection with both provinces arising out of their parents’ respective residences and place of employment, their schooling and school activities, their summer activities, their child care arrangements, their medical and dental care, their transportation routines, and their social and extended family life. All of this has been possible because Ottawa and Gatineau, although in different jurisdictions, are only a bridge and short drive away from the place in which the children live weekly. In this respect, neither jurisdiction appears to us to be more appropriate than the other.

35As with Riley, where the court ultimately found that Quebec had jurisdiction based on protracted legal proceedings commenced in that province, I also must determine whether there is something in this case that tips the scale in favour of one jurisdiction over the other.

E. Section 25 of the CLRA

36Even though I have jurisdiction over this matter, s. 25 provides a statutory basis for refusing to exercise that jurisdiction “if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario”. The analysis under s. 25 is based on a balance of convenience test: see Cook v. Rosenthal, 2021 ONSC 1653, at para. 94.

37The applicant argues that all other things being equal, since the parties recently purchased and resided in a house in Windsor for approximately four months, and Keaton attended kindergarten at a nearby school for approximately 1.5 months until the respondent pulled her out, the children’s connection to Ontario is closer than Michigan and therefore Ontario is the proper jurisdictional forum.

38Although I agree that the parties took steps to establish a home base in Windsor, their on-again-off-again relationship dictated just how unrealistic that decision was. I find that there was no settled intention to reside in Windsor, only a hope and a prayer that by residing together as a family, the two would, against all odds, somehow make a fatally flawed relationship work. The parties were merely testing the waters, and the permanency of that living arrangement was evident by just how quickly the residence was listed for sale when the two broke up yet again. After reconciliation and a second attempt at cohabitation that predictably failed, they both finally admitted defeat, or at the least the respondent did, when she filed the Complainant for Custody in the Macomb County District Court.

39I have searched for evidence that tips the balance in terms of which jurisdiction is the most appropriate forum, and I believe that I have found that in the following: (1) the history of court filings in Michigan, (2) the ruling of Judge Rancilio, and (3) the lack of medical care for the children in Ontario, which gives Michigan the advantage over Ontario in terms of who should exercise jurisdiction.

40On two occasions, the originating jurisdiction for family court proceedings involving the parties was Michigan and not Ontario. In 2018, the family court proceeding involving Keaton commenced in the Macomb County District Court but was then dismissed on consent after the parties reconciled: see applicant’s affidavit, dated May 16, 2022. Later, on March 1, 2022, the current family court proceeding involving both children commenced in the Macomb County District Court, when the respondent filed a Complaint for Custody. In response, the applicant filed an Application in the Superior Court of Justice in Windsor on March 18, 2022. The filing in the Superior Court of Justice represented the first time either party had initiated family court proceedings in Ontario.

41Judge Rancilio was the first to rule on the issue of jurisdiction. While I place little weight on the timing of her decision, Judge Rancilio’s ruling is a factor to consider when deciding whether the concurrent exercise of jurisdiction ought to be avoided and whether I should decline to exercise jurisdiction over this matter: see Dhillon v. Benipal, 2009 CanLII 14386 (ON SC), [2009] O.J. No. 1311 (S.C.), at paras. 95-99.

42I have reviewed Judge Rancilio’s decision and based on the evidence before me, I agree in substance with many of her findings. I am satisfied that the principles applied are not inconsistent with Ontario law. I am also confident that as the matter moves forward through the family court system in Michigan, Judge Rancilio or others will ensure that the applicant is granted maximum contact with Keaton and Davison as is consistent with the best interests of the children. Further, I am satisfied that if this matter proceeds to trial in Macomb County District Court, the short distance from Windsor should not cause the applicant any undue hardship if or when he is called upon to prepare for same: see Riley, at para. 47.

43Finally, I have considered the lack of medical health care for the children in Ontario, particularly in relation to Davison. The evidence is that the children’s physicians, dentists, and medical specialists are all in Michigan and not Ontario. Further, the children only have medical coverage in Michigan, as they are not yet covered under OHIP. This is important because according to the applicant’s affidavit of March 22, 2022, Davison has been tested as positive for the PK2P gene mutation related to a heart condition known as ARVC, a condition which the applicant has lived with for over ten years. The applicant claims that he has “taken the lead for plans and specialist appointments related to ARVC” for Davison yet details are lacking in this regard. In his affidavit of May 26, 2022, the respondent can only say that “I plan to enroll the children with pediatrician…Dr. Mark Awuku…”. In contrast, the respondent has taken positive steps by scheduling appointments for both children to see medical practitioners in Michigan including a genetic cardiologist: see respondent’s affidavit, dated May 16, 2022.

CONCLUSION

44Accordingly, after considering all the above, including the best interests of the children, I find that pursuant to s. 25 of the CLRA, the most appropriate forum regarding this matter is in Michigan, and therefore I decline to exercise my jurisdiction.

45For the foregoing reasons, I make the following order:

1. The Temporary Order of Howard J., dated April 1, 2022, is set aside.
2. The applicant’s Application dated March 18, 2022 shall be dismissed.
3. The children’s identification, deposited to the Superior Court of Justice, shall be returned to the respondent, Melissa DePotter, pending an order, if any, from the Michigan court.

COSTS

46While the respondent, Melissa DePotter, was clearly the more successful party, I have decided that I will not award costs against the applicant, David Korenic. Both motions had merit and the success of the respondent was measured by the slimmest of margins. The applicant’s motion needed to be heard for the purpose of determining whether Michigan or Ontario has jurisdiction. Importantly, there is now finality with respect to this issue, as I have declined to exercise jurisdiction. It is for these reasons that I decline to award costs.

(Electronically Signed and Released by Dubé J.)

Brian D. Dubé Justice

See APPENDIX “A” document

Released: July 4, 2022

COURT FILE NO.: FS-22-22612

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

David Korenic and Melissa DePotter

RULING on jurisdiction

Dubé J.