Court File and Parties

COURT FILE NO.: FS-22-103 DATE: 2022-11-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michele Fearon, Applicant AND: Michel Lagueux, Respondent

BEFORE: J.E. Mills J.

COUNSEL: M. Melito, Counsel for the Applicant M. Edwards, Agent for the Respondent

HEARD: November 15, 2022

Endorsement

[1] Ms. Fearon asks this Court to take jurisdiction over the parenting matters related to the parties’ only child, CL, born August 19, 2011. She submits that exceptional circumstances exist in this case to warrant the Ontario Superior Court of Justice taking jurisdiction and that s. 23 of the Children’s Law Reform Act[^1] (“CLRA”) permits this Court to assume jurisdiction as the child is physically present in Ontario and the child is at significant risk to suffer serious physical, emotional and psychological harm if removed and returned to live in Quebec.

[2] It is conceded that prior to October 15, 2022, the parties were habitually resident in Quebec. Ms. Fearon took the child that day and without notice to Mr. Lagueux, travelled to Ontario to reside with her parents in Burlington. She states that she was escaping a situation of family violence whereby Mr. Lagueux exercised coercive control over Ms. Fearon and the child as a result of an extreme and irrational concern about the risks associated with the COVID-19 virus. Ms. Fearon has filed affidavit evidence stating she and the child were essentially held hostage for more than two years, never going outside of the house and having no personal contact with anyone other than online. The child was home schooled and interacted only with virtual friends. Since the start of the pandemic, the child has not seen any health care professional for medical, dental, or therapeutic purposes.

[3] Mr. Lagueux does not attorn to this jurisdiction and therefore relies only on the materials he has filed in an application commenced before the Quebec Superior Court (Family Division). He attests that the extreme Covid precautions were taken as a joint decision between the parties, based on the advice of a personal friend of Ms. Fearon, and implemented because the parties believed that due to their age, they were more vulnerable than the average parents to the risks of Covid. Mr. Lagueux blames Ms. Fearon for the failure to have the child vaccinated and for the lack of medical attention. He now claims that had it been suggested, he would have welcomed the opportunity for the child to be taken outside for a walk or for a visit with her extended family, and he would have agreed to easing the restrictions on which the parties had mutually agreed.

[4] The test under s. 23 of the CLRA requires a less onerous finding of “serious harm”, whereas “intolerability” must be established to take jurisdiction in cases that invoke the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Therefore, Ms. Fearon submits that this Court may take jurisdiction in an inter-provincial child abduction matter where it can be established that a return of the child to the province of habitual residence would, on a balance of probabilities, cause serious harm. Where there is an application under the Hague Convention, there is a requirement to meet the more onerous test of a “grave risk” that a return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.[^2] As there can be no reliance on the Hague Convention in inter-provincial child abductions, this would create a less onerous test for domestic matters than is required for international child abductions. This cannot be what was contemplated by the Legislature. Indeed, counsel was unable to direct me to any caselaw where s. 23 of the CLRA was relied upon in domestic, inter-provincial child abductions. The provision has historically been relied upon in situations where children have been abducted from countries that are not signatories to the Hague Convention.

[5] I am not satisfied that s. 23 of the CLRA is available on domestic inter-provincial child abduction cases. The intention of this provision, as articulated by the Ontario Court of Appeal in MAA v. DEME,[^3] is to ensure the best interests of the child is the basis upon which parenting decisions are made. This is assured for countries that are signatories to the Hague Convention; there is no such assurance to the Ontario Courts that foreign non-signatory countries will adjudicate parenting decisions with the best interests of the child as the paramount consideration. Section 23 provides this Court with the legislative authority to take jurisdiction, where appropriate, to ensure the best interests of the child is the foundation for parenting decisions in circumstances where the Hague Convention is not invoked.

[6] The “best interests of the child” is a core principle in s. 16 of the Divorce Act[^4] with the mandatory language that the Court shall take into consideration only the best interests of the child in making a parenting order. Article 33 of the Civil Code of Quebec[^5] mandates that every decision concerning a child be taken in light of the child’s interests and the respect of the child’s rights. I have every confidence the Quebec Superior Court will adhere to its statutory obligation to give due and proper consideration to the best interests of the child when making a parenting order. There is no basis on which to find that s. 23 of the CLRA should be relied upon by this Court to take jurisdiction from the Quebec Superior Court to ensure the best interests of the child are considered.

[7] In the circumstances, it is appropriate for this Court to decline to take jurisdiction at this time. The parties appeared before the Quebec Superior Court yesterday to address the parenting issues. Ms. Fearon has asked that Court to decline to exercise its jurisdiction in favour of the Ontario Superior Court. The decision is under reserve. Should Ms. Fearon’s request be granted, this Court will assume jurisdiction over the parenting issues. In the absence of an order from the Quebec Superior Court declining jurisdiction, this application cannot proceed and is hereby stayed.

[8] There is no motion by Mr. Lagueux to have the child returned to Quebec. Therefore, no order is made in this regard.

[9] If the parties are unable to agree on costs, written submissions may be made, limited to two pages plus a Costs Outline and any offers to settle. Mr. Lagueux shall have ten days to deliver his submissions and Ms. Fearon shall have five days thereafter to respond. There shall be no right of reply.

Justice Mills

Date: November 15, 2022

[^1]: R.S.O. 1990, c. C-12 [^2]: Ojeikere v. Ojeikere, 2018 ONCA 372 at paras. 57-58. [^3]: 2020 ONCA 486 at para. 43. [^4]: R.S.C. 1985, c. 3 (as am.) [^5]: CQLR c CCQ-1991