Court File and Parties
Court File No.: FS-21-00014334-0000 Date: 2022-01-31 Superior Court of Justice - Ontario
Re: Denise Adom, Applicant And: Joseph Kofi Adom, Respondent
Before: Justice K.E. Cullin
Counsel: Self-Represented, for the Applicant Jeremiah Kalyniak, for the Respondent
Heard: July 9, 2021
Endorsement
[1] This matter appeared before me for an emergency Motion. The Respondent sought an Order recognizing and enforcing the Orders of Justice R.S. Tindale of the Supreme Court of British Columbia, dated June 14, 2021 and June 29, 2021. Those orders addressed the Respondent’s summer parenting time with his children.
[2] I rendered an oral decision on July 9, 2021 following the motion. This endorsement represents my full written reasons for that decision.
Background
[3] The Applicant, Denise Adom (the “Applicant”), and the Respondent, Joseph Kofi Adom (the “Respondent”) were married on July 26, 2014, separated on June 8, 2019, and were divorced on June 8, 2020. They are the parents of two children, Neriah Adom, born February 16, 2015, and Joseph Jr. Adom, born February 16, 2017 (the “children”).
[4] On February 7, 2020, the Supreme Court of British Columbia issued a Final Order addressing the parties’ parenting arrangements (among other things). Prior to the order, the parties and the children had been residing in Prince George, British Columbia. The order provided that the Applicant was permitted to move with the children to Edmonton, Alberta on or after December 6, 2019 and to Sudbury, Ontario on or after June 1, 2020. The purpose of the move was to permit the Applicant to pursue career opportunities.
[5] The order addressed the jurisdiction of the court to address future variations of the order as they pertained to the children. Pursuant to paras. (52) and (53) of the order, the Supreme Court of British Columbia (Prince George Registry) was to retain jurisdiction of the matter until December 13, 2024, after which the parties were at liberty to apply to have it addressed in another court of competent jurisdiction. The only exception to this was the Respondent’s ability to commence a proceeding either in Alberta or Ontario to enforce any order or agreement arising from the proceeding in British Columbia.
[6] The Final Order of February 7, 2020 was made on the consent of the parties, through their respective counsel.
[7] Since the Final Order of February 7, 2020, the Respondent has experienced challenges in exercising his parenting time. During the summer of 2020, the Applicant refused to co-operate with the Respondent’s summer parenting time; the Respondent was required to commence an application and an Order was issued, dated July 6, 2020, providing pick-up and drop-off dates. In December 2020, the Applicant refused to co-operate with the Respondent’s Christmas parenting time; the Respondent was required to commence an application and an Order was issued, dated February 8, 2021, granting the Respondent make-up parenting time during Christmas 2021. Both proceedings were commenced in the Supreme Court of British Columbia (Prince George Registry).
[8] In January 2021, the Applicant commenced proceedings in the Ontario Superior Court of Justice in Sudbury, Ontario, seeking to address the parties’ parenting arrangements and child support. A case conference was conducted before Justice Cornell on May 18, 2021; he granted leave to the parties to bring a motion to address the issue of jurisdiction.
[9] On May 21, 2021, the Respondent commenced an application in British Columbia seeking to address the challenges in exercising his parenting time and to stay the proceedings in Ontario. The Applicant was given notice of the proceedings and had an opportunity to file evidence and make submissions. On June 14, 2021, Justice Tindale of the Supreme Court of British Columbia made an Order specifying the Respondent’s summer parenting time.
[10] On June 25, 2021, the Respondent travelled to Ontario to pick up the children in accordance with the June 14 Order. The Applicant refused to release the children to him. On June 29, 2021, Justice Tindale made an Order authorizing a peace officer to apprehend the children and deliver them to the Respondent for the purpose of exercising his summer parenting time; the Applicant filed evidence and made submissions before this order was made.
[11] The Respondent contacted the Greater Sudbury Police Service asking them to assist with the enforcement of his parenting time as authorized by the Order of June 29, 2021. They advised the Respondent that an order was required from an Ontario Court.
[12] The Respondent now appears before this Court seeking an order recognizing and enforcing the orders of Justice Tindale.
The Law
[13] The court’s authority to recognize and enforce an order made by an extra-provincial tribunal regarding the parenting of a child arises pursuant to s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”). That section provides that the court “shall” recognize the order unless it is satisfied:
a. that the responding party was not given reasonable notice of the commencement of the proceeding in which the order was made;
b. that the responding party was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
c. that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
d. that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
e. that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
[14] Pursuant to s. 36 of the CLRA, the court may authorize a party or someone on their behalf to apprehend a child for the purpose of giving effect to a parenting order. Pursuant to s. 36(2), authority may be given to a police force having jurisdiction in any area where it appears to the court that the child may be to locate, apprehend, and deliver the child to the party.
[15] In argument, counsel for the Respondent also brought the court’s attention to the decision of the Ontario Court of Appeal in Kunuthur v. Govindareddigari, [2018] O.J. No. 4615. In that case, the court noted that a party is considered to have attorned to a court’s jurisdiction, “when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits” (para. 18). Counsel raised this case in support of an argument that, as it pertains to parenting orders, the Applicant has attorned to the jurisdiction of the Supreme Court of British Columbia and the Respondent has not attorned to the jurisdiction of the Ontario Superior Court of Justice.
Analysis
[16] For the purpose of this motion, the court is being asked to consider its jurisdiction to recognize and enforce the orders of Justice Tindale of the Supreme Court of British Columbia. The court is not being asked to determine the larger issue of jurisdiction is it applies to the Applicant’s application commenced in Sudbury; that involves a review of different legislative provisions and legal principles and is an issue for another day.
[17] Upon reviewing the materials filed by the Respondent, which included the materials filed by the Applicant in response to the proceedings in the Supreme Court of British Columbia, and upon hearing the submissions of the Applicant, and the Respondent I find that the Applicant has not demonstrated that any of the exceptions set out in s. 41 of the CLRA would preclude the orders of Justice Tindale from being recognized and enforced in Ontario. In making this finding, I have considered the following:
a. The Applicant was given reasonable notice of the proceedings in British Columbia;
b. The Applicant participated in the proceedings giving rise to both Orders which the Court is being asked to enforce in this motion. She filed detailed written pleadings and made oral submissions at both hearings;
c. The Family Law Act [SBC 2011] Chapter 25, requires the Court to consider the best interests of the child in making parenting Orders; and,
d. Neither of the Orders made by the Supreme Court of British Columbia are contrary to public policy in Ontario.
[18] The final factor in s. 41 of the CLRA considers the issue of jurisdiction. Section 22 of the CLRA speaks to the jurisdiction of the court to make a parenting order or contact order, having regard either to the habitual residence of the children or the place where the children are physically present when the order is made.
[19] At the time that this motion was argued, the children were physically present in Ontario and had been residing here for a year. As previously noted, they were residing in Ontario pursuant to a consent order which included a term granting jurisdiction to the Supreme Court of British Columbia until December 13, 2024.
[20] For the purpose of this motion, I find that the Supreme Court of British Columbia had the jurisdiction to make the Orders of June 14, 2021 and June 29, 2021 notwithstanding the children’s residence at the time that the orders were made. While the Applicant is attempting to revisit the issue of jurisdiction by commencing proceedings in Ontario, the issue of jurisdiction is currently governed by the Order of February 7, 2020. That order was made on consent; the Applicant was represented by counsel when the order was made. It is my view that, unless that order is vacated, it continues to be binding.
[21] In the circumstances, this court recognizes the Orders of Justice Tindale, dated June 14, 2021 and June 29, 2021. Pursuant to s. 41(2) of the CLRA, the Orders shall be deemed to be an order of this court and shall be enforceable in Ontario.
[22] Justice Tindale’s Order of June 29, 2021 authorized the apprehension and delivery of the children to the Respondent. Given the Applicant’s persistent non-compliance with the court’s orders, I am exercising my jurisdiction to make a similar order pursuant to s. 36 of the CLRA. As the court has ordered that the Respondent shall have make-up parenting time with the children during the Christmas holidays in 2021 as a result of the denial of his parenting time in December 2020, I extended this order until December 31, 2021 to ensure that the Respondent is not required to return to court this year to seek further assistance with enforcement.
[23] Counsel for the Respondent also sought leave to file his materials for this motion without being deemed to attorn to the jurisdiction of this court with respect to the Applicant’s proceeding.
[24] In the absence of this application, the Respondent would have been required to commence his own application in Ontario seeking to enforce the British Columbia orders. This process was contemplated in the Order of February 7, 2020.
[25] As this application had already been commenced, the Respondent’s request for relief was filed as a motion within this proceeding. Having regard to Rules 1(7) and 8(1.2) of the Family Law Rules, this was the appropriate procedure and does not attorn the Respondent to the jurisdiction of the court with respect to the application itself.
[26] The Respondent has not filed an answer in this proceeding. The only other pleading that he has filed is a case conference brief which was filed in preparation for a case conference conducted on May 18, 2021. That brief set out the Respondent’s position that the Ontario Court does not have jurisdiction to hear the application. The Respondent has also commenced an application in British Columbia seeking an order staying this proceeding. Clearly, the Respondent does not intend to attorn to the jurisdiction of this court for the purpose of this application.
[27] I therefore also find that the Respondent has not attorned to the jurisdiction of the Ontario court by filing this motion.
Costs
[28] This is a motion that was wholly unnecessary. This is now the third time that the Respondent has been required to seek the assistance of the court to exercise the parenting time with the children that was Ordered by the Supreme Court of British Columbia on consent on February 7, 2020.
[29] The Applicant has raised concerns about the Respondent using corporal punishment on the children. While the court does not minimize those allegations, I cannot disregard the following:
a. The Order of February 7, 2020 was made on consent. The concerns raised by the Applicant regarding the Respondent’s parenting pre-existed her consent to that order;
b. The Applicant has filed incident reports with the Children’s Aid Society both in Sudbury and in British Columbia regarding alleged abuse. They investigated and closed their files without taking any further action;
c. The Applicant has not addressed the allegations that she has denied telephone calls and videocalls between the Respondent and the children. There is no risk of physical harm to the children during these contacts. As a result, their denial supports the position that the Applicant is simply interfering with the Respondent’s relationship with the children;
d. The Court in British Columbia was aware of the Applicant’s concerns and her reports to the CAS when it made the Orders of June 14, 2021 and June 29, 2021; and,
e. The Respondent travelled to Ontario on June 25, 2021 to pick up the children in accordance with Justice Tindale’s Order of June 14, 2021. He remained in Ontario until July 6, 2021, during which time the Applicant refused to release the children to him, notwithstanding the second Order of Justice Tindale on June 29, 2021. He was required to return to Ontario a second time following this proceeding to pick up the children. He has incurred significant out-of-pocket expenses as a result of this travel, in addition to his legal fees.
[30] If the Applicant is strongly of the view that the Respondent’s parenting time is not in the best interests of the children, she has forums in which to seek relief to address those concerns. Intentionally disobeying court orders is not an option which is available to her. As I explained to her during my oral reasons, if this conduct continues, she may be jeopardizing her primary residence of the children.
[31] I find that this is a situation which begs for an award of costs, not only to compensate the Respondent for his unnecessary expenses but to sanction the Applicant for her persistent disobedience of the orders and directions of the Court. I am therefore awarding costs in favour of the Respondent, which shall be payable forthwith.
Disposition
[32] I hereby make the following orders:
The Respondent Father’s request to late file his motion materials given the urgency of this matter is granted.
Pursuant to s. 41 of the Children's Law Reform Act, The Honourable Justice Tindale's Order of the Supreme Court of British Columbia dated June 14, 2021, granting the Respondent father parenting time until August 15, 2021, is recognized and shall be enforced as an order of the Ontario Superior Court of Justice.
Pursuant to s. 41 of the Children's Law Reform Act, Justice Tindale's Order of the Supreme Court of British Columbia dated June 29, 2021, which orders police enforcement of the June 14, 2021 Order is recognized and shall be enforced as an order of the Ontario Superior Court of Justice.
Pursuant to s. 36 of the Children's Law Reform Act, any police force having jurisdiction in any area where it appears that Neriah Adom (D.O.B. February 16, 2015) and Joseph Adom Jr. (D.O.B. February 21, 2017) may be shall locate, apprehend, and deliver the children to Joseph Adom at 106 Portage Street Prince George, BC V2M 2N4. Pursuant to s. 36(7) of the Children’s Law Reform Act, this paragraph shall expire on December 31, 2021, unless otherwise ordered by this Court.
For the purpose of locating and apprehending Neriah Adom (D.O.B. February 16, 2015) and Joseph Adom Jr. (D.O.B. February 21, 2017), a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that Neriah Adom (D.O.B. February 16, 2015) and Joseph Adom Jr. (D.O.B. February 21, 2017) may be, with such assistance and such force as are reasonable in the circumstances and such entry may be during the following times: 9:00 a.m. to 9:00 p.m.
The Applicant shall pay the Respondent’s costs of this motion on a solicitor and client basis in the amount of $3,500.00, plus HST.
The Honourable Madam Justice K.E. Cullin