Court File and Parties

COURT FILE NO.: FS-22-00000094-0000

DATE: 2022-09-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jenna Irene Elisa Stoap, Applicant

AND:

Thomas Moore, Respondent

BEFORE: Kurz J.

COUNSEL: Kristen Humphrey, for the Applicant

Thomas Moore, Self-represented

HEARD: Wednesday September 14, 2022 via zoom

Endorsement[^1]

Introduction

[1] There is a right way to deal with parenting disputes and a wrong way. This case illustrates a wrong way; one that can do lasting harm to the child involved. It cries out for immediate action.

[2] The Applicant mother moves for the immediate return to her care of the parties’ 12-year-old child, R.M. She also seeks to stay the Belleville proceedings commenced by the Respondent father. By order of MacLeod RSJ. those proceedings are adjourned pending my decision in this matter.

[3] The father never filed any materials in response to this motion because he never swore his affidavit, dated September 11, 2022. Thus, it was rejected for filing. At the commencement of the argument of this motion, I allowed him to affirm the truth of his unsworn affidavit and have thus treated it as if it were sworn. It should be included in the continuing record as it reflects his evidence, as orally sworn before me.

[4] For the reasons set out below, I find that R.M. has been habitually resident in Halton since birth. Thus, Halton is the appropriate venue for this motion and this proceeding. The Belleville proceeding stall be stayed pursuant to s. 106 of the Courts of Justice Act (“CLRA”) ss. 22(2) and (3) of the Children’s Law Reform Act (“CLRA”) and r. 1(8), 1(8.1) and 5(1)(b) of the Family Law Rules.

[5] I further find that the child has been improperly withheld and relocated to the father’s home in L’Amable, Ontario, just outside of Bancroft and 3 ½ hours from her ordinary home with her mother. Further, I find that barriers have been erected by the father to the mother’s communications with R.M., which are at risk of severing their relationship. R.M. must be immediately returned to the care of the mother and enrolled in her regular school in Oakville, XXXXXXXXXXX.

Background

[6] The parties married on September 21, 2012. They separated in or about August 2017. They have two children, R.M. and her older sister, K.M., born December 24, 2007. K.M. is 14 years old and is in grade 10 at XXXXXXXXXXXX in Oakville Ontario. R.M. is 12 years old and is in Grade 7 at XXXXXXXXXXX in Oakville.

[7] The parties have no separation agreement. However it is my understanding that they engaged in a shared parenting, week-about arrangement from the time of separation until September 2021. At that time, the father and his wife, Brandy Moore, (“Brandy”) chose to move to L’Amable, Ontario, where they continue to reside with Ms. Moore’s two children and her mother. As a result, and with the agreement of the father, the children remained in the de facto primary care of the mother. That has been the status quo for the past year until the father attempted to unilaterally relocate the child.

[8] I have reviewed the text exchange between Brandy, writing on the father’s behalf, and the mother, dated July 19, 2021, discussing post-move arrangements. The basis of the arrangements discussed during the exchange represented an implicit agreement and understanding that the new status quo would be a permanent one; with the father assuming the role of a visiting rather than shared parent. At the time, the mother made it very clear that she was open to any reasonable parenting time arrangements for the father.

[9] The mother states without contradiction that children were in regular touch with their father following his move. She allowed him reasonable time with the children despite the distance between their homes. The children were in his care for a week at Christmas 2021 and over March Break, 2022. She says that she acquiesced to any parenting time request made by the father or Brandy.

[10] On July 11, 2022, the parties agreed that both children would visit their father for four weeks this summer, between July 29 to September 4, 2022. A review of their text exchange of July 11, 2022, where the arrangements were made, shows no hint of rancour nor mention of a desire to change the parenting status quo. It was clearly an extended visit for both children.

[11] All of that good will and harmony changed with a text by the father to the mother of August 21, 2022. He wrote:

We need to have a conversation. I’m sure you knew this would come up, so this shouldn’t come as a surprise. [R.M.] is moving in with me. I know I will provide a “different” type of lifestyle for her. We both know in our hearts that she is an “up-North” kind of girl, and I feel she is more suited being here, and she feels the same. This isn’t something we are taking lightly, their [sic] have been many talks…”

[Emphasis added]

[12] This correspondence raises two concerns. First is the father’s unilateralism. He simply states, as if fait accompli and beyond the pale of discussion, that the child would move in with him. This was information, not suggestion or even a request. The mother was left with no say. Second, the “many talks” between father and daughter obviously took place without the involvement, input or knowledge of the mother.

[13] In other words, the father arrogated the right to make the parenting decision himself. He did so only after his numerous private parenting discussions with their 12-year-old daughter.

[14] When the mother responded to the father’s pronouncement with less than enthusiasm, requesting that the child be returned as agreed and that they discuss the issue further, the father drove his point further home. There was to be no discussion because he alone would be making the choice. As he wrote in his text of August 25, 2022:

Well, when do you want to have this conversation? Now seems great! I wasn’t asking for your permission, this is what she wants to do and has wanted to do from the start (last year). I’m not sending her come home to another brainwashing session from your boyfriend, your mother and YOU... [Emphasis added]

[15] The father went on to present himself as the advocate for the child; one who had the right to act alone, based on the 12-year-old child’s purportedly expressed views and preferences. He further wrote:

This is happening! She is 12 and in the eyes of the courts old enough to understand consequence! You want to drag her into a judges chambers and have her tell him that with her dad is WHERE SHE WANTS TO BE!!!! Then that’s on you! I want her to be happy! So should you. There is no point in starting a school year and then changing two weeks later! I will be at your house on Wednesday August 31 to drop off [K.M.] and pick up [R.M.’s] personal belongings! Along with her health card if you refuse that’s fine I’ll buy her new clothing and stuff!”

[R.M.], in tears, told me she’s wants to live here, but she can’t deal with you and your mother! So if this seems like I’m taking control and demanding my child, change your view!

I don’t know why you are forcing this! I will force back and take you all the way to court so you can look like a fool when [R.M.] tells them where she really wants to live (with me). SO let’s not let it get to that! Let her be here without issue bc she is going to feel thsis if you keep acting this way and you will lose out on time with her for vacations…

[16] The father also stated that he would monitor the child’s contact with the mother, writing:

While you speak to [R.M.] she has made it clear I will be next to her with you on speakerphone bc she is worried you’ll freak out and so am I!

[17] He warned the mother that he would be their 12-year-old daughter’s warrior against her. He arrived at this position after speaking alone with the child about where she would live, convincing her that he would “fight” for her against her mother. As he wrote to the mother:

But please be aware, the conversation only came up because [R.M.] started dropping hints. So I took her for a drive in the woods, alone. She told me how she felt. I told her that if an argument with mommy is all that’s stopping you, then I’ll take the fight for you. That’s why. [Emphasis added]

[18] On August 31, 2022, the father decided to return K.M. to the mother early. He also decided to bring R.M. with him to pick up her things. The mother states that she did not argue because she did not wish to create a scene in front of the children. She was allowed but ten minutes alone with R.M. before the father proceeded to take the child back to his home. That is the only time alone with her daughter she was allowed since the child came into the father’s home this summer.

[19] When the mother later refused to agree to have the child registered in a school near the father’s home, he threatened that she would “open a can of worms” in a court proceeding that would leave her without “custodial rights”, writing:

Jenna! So help me god! You are gonna open a can of worms you cant handle!! You better get your “legal advice” in a real fucking hurry! If you don’t approve your daughter’s school within the hour, I’m heading to the courthouse in Belleville to set up an emergency hearing! [R.M.] will go before a judge and tell him that she wants to be with me and you will lose custodial rights! Do you understand that?”

[20] The father thereafter commenced a family law proceeding in this court’s Belleville Family Court branch, despite the child’s lifetime habitual residence in Halton. The matter was scheduled for a case conference in Belleville, which took place before MacLeod RSJ. on September 13, 2022. Justice MacLeod’s endorsement stated, regarding the proper venue for the parenting proceedings:

There is a venue question because the Applicant Father started this proceeding in Belleville but in the meantime, the Respondent Mother has received approval from the court in Milton to bring an urgent motion for the return of the child. It was brought in Milton because, according to the mother, the children were residing with the mother in Oakville and that is their habitual residence.

The motion is returnable tomorrow and Mr. Moore has filed responding materials. I have adjourned this case conference pending the outcome of the motion and it can then be determined if the Belleville proceeding or the Milton proceeding should be stayed. The court can also determine whether future proceedings should be in person or may be virtual.

The court orders as follows:

1. This proceeding in Belleville is adjourned pending the result of the urgent motion that is returnable in Milton on September 14th, 2022.

Issues:

[21] This motion raises the following issues:

1. What is the proper venue for the parenting proceedings regarding R.M.?

2. Should R.M. be immediately returned to the care of the mother?

3. What further orders if any, should be made by this court?

Issue No 1: What is the proper venue for the parenting proceedings regarding R.M.?

[22] The rules that govern family law proceedings dealing with parenting of children require them to be heard in the municipality where the child habitually resides. The point is made clear in r. 5(1)(b) of the Family Law Rules (“FLR”), which reads as follows:

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,

(a) in the municipality where a party resides;

(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; …[^2]

[23] The definition of “habitual residence” under Children’s Law Reform Act (“CLRA”) states:

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.

[24] A habitual residence cannot be changed by unilateral conduct or self-help. That point is made clear by CLRA s.22(3), which states:

(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.

[25] In determining the child’s habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis: Ellis v. Wentzell-Ellis, 2010 ONCA 347. Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction: Hibbert v. Escano, 2010 ONSC 1445 at para 21.

[26] The rules setting out the proper venue for parenting proceedings are so firm that under FLR r. 5(3)(b), the clerk of the court “shall refuse to accept an application for filing unless … [a case dealing with parenting] is started in the municipality where the child habitually resides”.

[27] Under r. 1(8.1), “if a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g)”. Under r. 1(8), the broad panoply of remedies available to the court include:

… making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[28] Section 106 of the CJA grants this court the broad jurisdiction to stay proceedings. It states:

106 A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

[29] The wording of FLR r. 1(8) is sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case, and where there has been a willful failure to follow the FLR or obey an order in the case: Wreggbo v. Vinton, 2013 ONCJ 250 , at para. 28, citing Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.), at para. 11.

[30] Here, there is no question that R.M. resided in Halton for all of her life, until the father unilaterally withheld her from returning to the mother. Whether the term is “habitually” or “ordinarily” resides, it applies to R.M.

[31] Clearly, the proper venue for this proceeding is Halton, the place of R.M.’s lifetime habitual residence. Accordingly, I stay the Belleville proceedings.

Issue No 2: Should R.M. be immediately returned to the care of the mother?

[32] R.M.’s primary residence with her mother was clearly agreed upon by the parties, as set out in the texts between the mother and Brandy, speaking for the father.

[33] The agreement followed the decision of the father to move out of Halton at a time that he exercised shared parenting of the child. That move made shared parenting impossible. The father says that he did so with the concurrence of the child. She was 11 at the time of his decision to move. It is not for an 11-year-old to make that adult decision.

[34] Since the child was overheld by the father earlier this month, she has had minimal contact with the mother. Whatever contact occurred has been virtual, stilted and, the mother believes (based in part on the father’s own text), supervised by the father. She has not had ordinary parenting time with the child for about six weeks.

[35] The father’s evidence and argument about why R.M. should remain in his care and be enrolled in a school in his jurisdiction is that:

1. The child has communicated to him in numerous conversations that she wishes to stay with him;

2. The mother acquiesced to his decision to overhold the child;

3. The mother is, in his words “a slob”, and also an itinerant who moved a number of times.

4. It is in R.M.’s best interests to remain with him.

[36] While the father may feel that he is motivated by the best of intentions, he is not acting in the child’s best interests. I say this because:

1. He should not be having adult conversations about parenting decisions with R.M.; particularly to the exclusion of the mother. The discussions should be between the parents. His conduct effectively excludes the mother from those discussions.

2. It also isolates the mother from the child. As the father deposed, to explain his decision to monitor the mother’s calls with the child:

I made Jenna aware in a text that [R.M.] will be talking with her on speakerphone because that's what [R.M.] wanted. Jenna is known to say certain things and then deny or change them later on. [R.M.] wanted a witness. [R.M.] is very upset about all of this, she doesn't feel Jenna will listen to her and will again attempt to make her feel guilty for wanting to live with me.

In his oral argument, the father denies having actually monitored those calls. But his own words as well as the testimony of the mother belie that claim.

3. I cannot feel sanguine that the father is fairly or accurately reflecting R.M.’s independent views and preferences. He has an obvious animus towards the mother. That animus is reflected in his affidavit. It is also demonstrated by the fact that Brandy had to communicate with her in July 2021 when the parenting arrangements were being made for the time after the father’s move. That point is made clear in the father’s own hectoring and bullying tone in his recent correspondence with the mother, set out above. He goes so far in this motion as to blatantly insult her in his affidavit, by referring to her as a “slob”. I have no reason to believe that he withholds his pejorative views from his child.

4. He has clearly given the message to his 12-year-old child that she has the right to decide where she will live. In fact, from his own wording, he convinced her to move, telling her, in his own words set out above, that “if an argument with mommy is all that’s stopping you, then I’ll take the fight for you.” It is obvious here that he was doing more than reflecting the child’s views. He was advocating for her to ignore her mother’s concerns. He presented himself as her ally in opposition to the mother.

5. That kind of rhetoric is contrary to the child’s best interests as well as the present state of the law, where children that age have a voice but not a vote. Mossip J. of this court articulates the court’s concern regarding the parent who empowers a child to decide on their contact with the other parent, in Reeves v. Reeves, 2001 CarswellOnt 277 (Ont. S.C.J.), at para. 38. There, she wrote:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist or doctors. It is the responsibility of good parents to ensure the children go to school, go to doctors, and go to the dentist. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

6. Here, the father has gone further than metaphorically empowering his child to avoid the dentist. He has set up the mother as the opposition, the person who denies the child her wishes. For his part, he presents himself as the child’s white knight and champion; one who will, in his words, will “take the fight [with the mother] for you…” This is the type of rhetoric which leads to children being estranged from a parent.

7. Ironically, rather than supporting the child, the father has placed the child in a no-win situation. If I allow him to overhold the child, she will likely have a significantly diminished relationship with her mother and sister. He will also learn that he can flout the law and the mother’s wishes with impunity. If I order her return, I may anger the child and turn her against the mother as well. Either way, the mother and daughter face a great challenge in re-establishing their relationship. Further, the father has empowered the 12-year-old child to believe that she is entitled to make adult decisions about her residence and relationship to each parent. She has learned that she has one ally – her father, and one opponent – her mother. It will be very hard to disabuse her from these notions.

8. Further the father has dragged the child into a long-standing adult conflict, one she likely lacks the resources to navigate.

9. Finally, the father has raised the self-serving scenarios of bringing the child back to Halton, kicking, screaming and refusing; a refusal he implied that he may be forced to honour. From the evidence, such a display will be the natural result of the concerns that I discuss above. The longer the child remains in the father’s unilateral care, the more likely it is that such a scenario will be played out.

[37] All of this is unacceptable. The father agreed to the mother’s primary care of R.M. when he left this jurisdiction. While all parenting arrangements are necessarily subject to a material change in circumstances, from the evidence, that arrangement was a permanent one. It was not contingent on obtaining the father’s annual acquiescence. He did not retain a deferred veto.

[38] In other words, he had no right to unilaterally withhold the child. He did her no favour by encouraging and empowering her to choose to change her parenting arrangements in his favour, much less to don armour and shield on her ostensible behalf.

[39] At the beginning of this decision, I stated that there is a right way to do things when faced with a parenting dispute. This was not it. If the father felt that there should be a parenting change, he should have raised the issue with the mother and allowed time for her consideration. The issue could perhaps have been resolved through negotiation or mediation. It cannot be resolved by the father asserting that he alone is in charge, which he effectively has done.

[40] This state of affairs cannot continue. The child has been kept out of her regular school and most contact with her mother and sister, with whom she has lived all of her life.

[41] The child must be returned to the mother forthwith; meaning today. The father shall make the arrangements and conduct the travel to return the child to the home of the mother. He will ensure that he tells the child that it is the court’s decision, not that of either parent, and that the issues of her residence will be determined by the adults. He will not present himself as the child’s ally against the mother.

[42] I do not intend to order that the police enforce this term because of the risk of further harm to the child. But if the father fails to comply my order, the parties may contact my judicial secretary to arrange an attendance before me to deal on short notice with any failure to return the child in accord with this order.

Issue no 3: What further steps, if any should be taken by this court?

[43] The child shall be in the temporary primary care of the mother until further order. As an incident of that parenting term she has the final decision-making rights regarding the child. She may sign any consents on behalf of the child.

[44] R.M. shall not be removed from Halton without the mother’s written consent or court order.

[45] If the parties cannot agree on appropriate arrangements for the father’s further parenting time with the child, they may arrange to attend before me on another date.

[46] I believe that this is an appropriate case for the involvement of the Office of the Children’s Lawyer. The child has the right to have her voice heard. However, because I cannot feel comfortable about the independence of the child’s views in light of the father’s conduct, I believe that if any service is to be offered to this family, it should be through a s. 112 clinical investigation. I make that request. The parties shall send their intake forms to the OCL within seven days.

[47] The father shall not derogate the mother to either of the parties’ children. Nor shall he or speak ill of her, her partner or her family to the children. He shall not discuss this proceeding with the children, other than as set out above, or in the presence of a third-party professional agreed upon by both parties or the court.

[48] I note that the mother claims that the father has not paid any support for the children since he moved away from Halton. That may be an issue that can be resolved in these proceedings.

[49] The parties will arrange a case conference in Milton.

[50] I may be spoken to regarding costs.

Marvin Kurz J.”

Date: September 15, 2022

[^1]: Please note that names of children are initialized, and names of schools redacted.

[^2]: The exceptions cited in r. 5(1) above do not apply here. Under s. 21.11(2) of the Courts of Justice Act (“CLRA”), a parenting proceeding brought under the Children’s Law Reform Act in the Family Court of the Superior Court of Justice (like the Belleville Family Court), may be commenced in that part of Ontario in which the child “ordinarily resides”.