Pengelly v. Lynas, 2024 ONSC 6269

COURT FILE NO.: FC-24-449-00 DATE: 20241112

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Daniel William Pengelly Applicant Father – and – Ainsley Helena Lynas Respondent Mother

Counsel: Susan Duggan, for the Applicant Father Tori L. Aribido, for the Respondent Mother

HEARD: October 29, 2024 Justice Alex Finlayson

PART I: NATURE OF THIS MOTION

[1] The parties have two children, a girl named P., age 3, and a boy named B., age 2. On January 1, 2024, the father removed the two children from their habitual residence in Fort McMurry, Alberta, and took them to Ontario. The father left the mother a note saying he was leaving for a “vacation”. The father is now living with the children at his parents’ house in Sutton, Ontario. The mother remains in Fort McMurry.

[2] There are competing motions before the Court concerning this Court’s jurisdiction to make temporary parenting Orders under the Children’s Law Reform Act. There is also a proceeding pending before the Alberta Court of Justice. The father commenced his Ontario application on March 8, 2024. He then delayed trying to serve it for almost six weeks. The mother commenced her proceeding in Alberta on June 19, 2024, with a first Court date of July 30, 2024, after a number of other things, procedural in nature, had transpired. I understand the Alberta proceeding has been adjourned more than once, awaiting the outcome of this motion. In broad strokes, if this Court declines jurisdiction, then I am asked to make Orders for the children’s return to Alberta pursuant to section 40 of the Children’s Law Reform Act, and perhaps some more substantive temporary Orders pending next steps in Alberta. Alternatively, if the Court finds it has jurisdiction, then I am to decide what temporary parenting Orders and child support should be put into place.

[3] In his Notice of Motion dated October 8, 2024, the father asks the Court to find that it has jurisdiction. He would then have the Court order that the mother can have supervised parenting time only, here in Ontario, based largely on an event that the father says amounted to the mother’s attempted “abduction” of the children from his care, in early September. Although the father in his Notice of Motion seeks an order for child support, in response to questions from the Court during oral argument, the father changed his position. He argued that the Court might choose not to order that, in lieu of the travel costs that the mother will incur to visit the children in Ontario.

[4] Alternatively, if the Court declines jurisdiction, then the father asks the Court to make orders that he have various holiday time with the children in Ontario, and at other times in Alberta on 30 days’ notice, if he can afford it. The father did not have a realistic plan about how the children’s travel would occur in either scenario, either logistically or financially. In the end, I understood his position, in the scenario where the children are returned to Alberta, to be that the mother should fund the cost of the children’s travel to see him Ontario, or at least part of it. He would also have the Court make no order for child support from him.

[5] In her Notice of Cross Motion dated October 18, 2024, the mother asks the Court to recognize that Fort McMurry, Alberta is the children’s habitual residence, and consequently to find that Alberta is the proper jurisdiction for there to be family court proceedings. She seeks an order for the children’s immediate return to Alberta. Either way, even if this Court takes jurisdiction, the mother would still have the Court order the children’s relocation to Alberta, on an interim basis. She too seeks an order that the father have supervised parenting time, or “otherwise as the Court may direct”, although her position softened during argument. And she asks that the Court order the father pay child support and section 7 expenses.

[6] The mother offered a second alternative, should the Court take jurisdiction and not order the children’s return. In that second, alternative scenario, she seeks parenting time with the children in Alberta in the summer, Christmas and March Breaks, plus additional parenting time in either Alberta or Ontario on 30 days’ notice, with the costs of travel deducted from her child support that would be owing to the father.

[7] As I see it, the real issues on this motion are whether the mother has acquiesced to the father’s removal of the children from Alberta to Ontario, and whether the mother unduly delayed “commencing due process”. I find that she has neither acquiesced or unduly delayed. In my view, the children’s habitual residence is Alberta. The father acted inappropriately by taking the children to Ontario, with no notice to the mother. He did so without regard for the reality, that the parties’ finances are limited, making an interjurisdictional parenting plan difficult if not possible to implement. For these and a number of other reasons that follow, I find that the children should be returned to Alberta. I decline to make any further Orders under section 40 of the Children’s Law Reform Act, other than in aid of the children’s return. What parenting plan should be implemented, and child support, can be dealt with in Alberta, where there is a pending proceeding.

PART II: APPLICABLE LEGAL PRINCIPLES

A. Preliminary Procedural and Evidentiary Issues

[8] In his Reply affidavit sworn October 22, 2024, the father raised certain issues about the mother’s housing, her employment, and the availability of day care spots for the children in Alberta, to which the mother did not have an opportunity to respond. Although the mother has a cross-motion before the Court, my scheduling Order of September 24, 2024 (discussed below) did not make provision for the mother’s right of reply on her cross-motion, in error. Consequently, I permitted the mother to give some oral evidence, and she was cross-examined, on these limited matters. The record before the Court otherwise consists principally of the parties’ competing affidavits.

[9] Sometimes, where the record consists of untested, conflicting affidavits, that raise questions of credibility, a tension will arise. On the one hand, this dispute about jurisdiction needs to be resolved in a timely fashion. Yet that need for timeliness will not always dictate that the process should be a motion, without oral testimony and cross-examination. This is particularly so, when there are credibility issues that need to be resolved: see Zafar v. Azeem, 2024 ONCA 15 ¶ 42 , 60 .

[10] But here, no one asked for an oral hearing or cross-examinations on the entirety of the record, or even for an adjournment to obtain additional evidence (until the father made a late request during submissions, to make further written submissions, to better the workability of his proposed plan – discussed later). While that absence of a request is not necessarily determinative, nevertheless having regard to the caution in Zafar v. Azeem , I carefully reviewed the affidavit evidence (and the limited oral evidence). I find that any conflicts, gaps or credibility issues that arise out of the affidavit evidence, are not of the kind that the Court is unable to make findings and decide the questions raised about the Court’s jurisdiction: see also Onuoha v. Onuoha, 2021 ONSC 2228 (Div. Ct.) ¶ 46 , 47.

[11] As these Reasons for Decision continue, I indicate deliberately where there is common ground as to both parties’ evidence, to explain why I find that the jurisdiction issues and the question of the children’s return to Alberta can be determined on this record. To the extent that any gaps in the evidence need to be filled, or credibility issues need to be resolved, I find they largely pertain to the merits of the parties’ plans. There is a process available to the parties to resolve those disputes pending in Alberta.

B. The Four Jurisdictional Bases Upon Which this Court May Make A Parenting Order

[12] There are four circumstances in which a court in Ontario has jurisdiction to make a parenting order under the Children’s Law Reform Act . They are:

(a) First, under section 22(1)(a), an Ontario court may make a parenting order where the child is “habitually resident” in Ontario;

(b) Second, under section 22(1)(b), where the child is not habitually resident in Ontario, the Court may nevertheless exercise jurisdiction if the child is physically present in Ontario, and other requirements are met;

(c) Third, a court has jurisdiction to make a parenting order where the child is physically present in Ontario and the Court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in section 23 of the Children’s Law Reform Act; and

(d) Finally, the Court may exercise its parens patriae jurisdiction, which is specifically preserved by section 69.

See Los v. Ross, 2024 ONCA 122 ¶ 29 .

[13] It is the father’s onus to demonstrate that a parenting Order should be made on one of these bases. If not, the Court should decline to exercise jurisdiction: see F v. N., 2022 SCC 51 ¶ 59 .

C. The Purposes of Part III of the Children’s Law Reform Act

[14] These various jurisdictional provisions are set out in Part III of the Children’s Law Reform Act. Section 19 provides that there are four purposes of Part III. The purposes guide how the above provisions are to be interpreted. The four purposes of Part III, set out in section 19, 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.

[15] In regard to the first purpose, there was no suggestion raised in argument, that Alberta employs anything other than a best interests standard (as does Ontario), when dealing with parenting issues on their merits. I have no concern whatsoever that the proceeding, if heard in Alberta, would not be dealt with on a best interests’ basis: see F v. N. ¶ 52. Therefore, it is the other three purposes in section 19 of the Children’s Law Reform Act that have far more relevance and application to the issues that confront this Court.

[16] In regard to the other purposes set out in section 19 of the Children’s Law Reform Act, at ¶ 3 of F. v. N. , Kasirer J., writing for the majority of the Supreme Court, held that “where a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Hague Convention [or adapted to this case, in another province], Ontario law provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection”. At ¶ 9, he further wrote that the “return order procedure in s. 40 of the CLRA”, (which has been invoked in this case before me) “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests”. And at ¶49, Kasirer J. wrote “[t]his reflects a legislative policy expressed in s. 19 for the whole of Part III of the CLRA. Through this policy, the legislature seeks to discourage child abductions and the wrongful removal and retention of children to Ontario as well as to ensure that parenting matters are determined by the jurisdiction to which the child has a closer connection.”

D. The Meaning of “Habitually Resident”

[17] Section 22(1)(a) of the Children’s Law Reform Act provides that this Court shall only exercise its jurisdiction to make a parenting order with respect to a child if the child is habitually resident in Ontario at the commencement of the application or the order . Notably, the time to consider habitual residence is at the commencement of the application for the order. Implicitly, this means that conduct following the beginning of the Ontario application is presumptively not relevant to the determination of habitual residence: see section 22(1) of the Children’s Law Reform Act; see also Los v. Ross ¶ 38 .

[18] Section 22(2) defines the term “habitually resident” as 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.

[19] Although neither side’s facta nor his or her oral arguments particularly averred to this, the law respecting how the meaning of “habitually resident” in section 22(1)(a) of the Children’s Law Reform Act has been statutorily interpreted, may be currently unsettled.

[20] For example, at ¶ 74-76 of Zafar v. Azeem , Fairburn A.C.J.O. cited the Supreme Court’s decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 in interpreting the meaning of habitual residence, even though Zafar v. Azeem was not decided under the Hague Convention on the Civil Aspects of International Child Abduction (the “ Hague Convention” ), but rather under other parts of the Children’s Law Reform Act . There, she wrote that the question is not simply about asking and answering where the child last lived during what period of time. While important, so too are a number of other factors, that McLachlin C.J. described in Office of the Children’s Lawyer v. Balev as “all relevant links and circumstances”, including parental intention.

[21] The Court in Zafar v. Azeem , was nevertheless influenced by the fact that the child was just three years old, and had spent her entire young life in the mother’s primary care. The child had yet to develop any connection to school, to community or friends. In the result, Fairburn A.C.J.O. found that on these facts, determining “parental intent” was key to determining habitual residence, despite the other aspects of the hybrid test in Office of the Children’s Lawyer v. Balev . See also the approach taken by the Ontario Court of Appeal in Los v. Ross ¶ 31 .

[22] Perhaps, but not necessarily in contrast, in Dunmore v. Mehralian, 2023 ONCA 806 , on appeal to the Ontario Court of Appeal the father argued that the motions judge did not consider the “settled intention” of both parties in determining that the child was habitually resident in Ontario. He argued that the parents did not have a shared intention to move to Toronto when they travelled here. He argued that they were merely visiting Ontario temporarily, and planned to return to the Middle East: see ¶ 35.

[23] Although the motions judge determined that she did not have to decide that precise issue, and while she noted certain credibility concerns respecting the evidence of both parties, she ultimately preferred the mother’s evidence. She found that the parties had in fact decided to move to Toronto. They were not merely temporarily visiting. The Court of Appeal found that this was a finding of fact, that was entitled to deference.

[24] In the result, the Ontario Court of Appeal concluded that there was no reviewable error in the motion judge’s factual finding that the parties were residing in Ontario at the relevant time. The motion judge’s factual finding was sufficient to establish habitual residence for the purposes of section 22(1)(a): see ¶ 37-44.

[25] Leave to appeal to the Supreme Court of Canada was granted in Dunmore v. Mehralian on June 13, 2024. That appeal may very concern the proper interpretation of habitual residence under the Children’s Law Reform Act .

[26] Regardless, section 22(2)(2.) of the Children’s Law Reform Act provides that the determination about where a child is habitually resident does not turn solely on where that child last lived with both parents. Section 22(2)(2.) of the Children’s Law Reform Act contemplates that the children’s habitual residence may have changed to Ontario if, at the commencement of the application, the parents were living separate and apart, and the children were living “with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order”. As acquiescence has been argued, the legal principles that define it must be set out in order to be applied correctly.

[27] While in some instances, the Ontario Court of Appeal has turned to the jurisprudence interpreting the Hague Convention, to aid or guide the interpretation of the statutory language in the Children’s Law Reform Act (see above), that has not been universally done. Examples include when the procedure is different as between the Hague Convention and the Children’s Law Reform Act (see again Zafar v. Azeem ¶ 42 ; see also Geliedan v. Rawdah, 2020 ONCA 254 ), or when the statutory language is notably different: see Ojeikere v. Ojeikere, 2018 ONCA 372 ¶ 51-62 . Still, at ¶ 34 of Geliedan v. Rawdah , when considering the differing processes for return applications under section 40 of the Children’s Law Reform Act distinct from the process under the Hague Convention, the Ontario Court of Appeal nevertheless wrote that considerations taken into account (under the Hague Convention and section 40 of the Children’s Law Reform Act ) may overlap .

[28] In regard to acquiescence specifically, there are some key differences between how it is included in the Children’s Law Reform Act versus in the Hague Convention. One difference is that in the Children’s Law Reform Act, acquiescence is part of the definition of habitual residence; in other words, if there has been acquiescence the habitual residence is changed. Whereas “acquiescence” under Article 13(a) of the Hague Convention is an exception to the child’s return under Article 12. The effect may nevertheless be the same (i.e. if there is acquiescence, the Court takes jurisdiction and/or the child is not summarily returned).

[29] Another difference relates to the time period in which acquiescence is assessed. As part of the statutory definition of habitual residence under the Children’s Law Reform Act, the focus is on time of the commencement of the application (see section 22(1)(a) and section 22(2)(2.)), whereas the Hague Convention’s Article 13(a) refers to “subsequently acquiesced in the wrongful removal or retention”.

[30] Despite those differences, as the Ontario Court of Appeal has already turned to the jurisprudence decided under the Hague Convention to interpret habitual residence, acquiescence is part of the determination of habitual residence in the Children’s Law Reform Act, and the concept of acquiescence appears in both texts, I find there is some “overlap”. It make sense for there to be consistent interpretations. I find it appropriate to consider the jurisprudence decided under the Hague Convention about acquiescence.

[31] A regularly cited definition of acquiescence appears in Katsigiannis v. Kottick-Katsigiannis . There, the Ontario Court of Appeal explained that to “consent” is to agree to something; to “acquiesce” is to agree tacitly, silently or passively to something such as the children remaining in a jurisdiction that is not their habitual residence: see ¶ 48. There may also be active acquiescence, which involves taking a positive step or action that is inconsistent with the “summary return of the child”: see ¶ 36.

[32] The Ontario Court of Appeal went on to hold that the test for acquiescence is subjective on the part of the left behind parent: see ¶ 38. The passage of time in itself is not determinative. Rather the length of time that must pass before acquiescence will be found, will depend on the circumstances of each case: see ¶ 36.

[33] The standard to establish acquiescence is high. There must be some formal indication of it, or actions or statements which unequivocally indicate the subjective intention of the wronged party to permit the child to remain in the location to which he or she was removed: see Raposo v. Raposo, 2023 ONSC 346 ¶ 49 . Acquiescence under Article 13(a) of the Hague Convention, requires “clear and cogent evidence of unequivocal consent or acquiescence”: see Katsigiannis v. Kottick-Katsigiannis ¶ 49 .

[34] These are “contextual and factual” inquiries. This is the case, whether a decision is being made under the Children’s Law Reform Act, or under the Hague Convention: see Los v. Ross ¶ 45 .

E. The Meaning of “Undue Delay in Commencing Due Process”

[35] Section 22(3) of the Children’s Law Reform Act adds to the analysis the concept of “undue delay”. It provides that 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 unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld”.

[36] At ¶ 96-99 of his factum in particular, and during oral argument, the father asserted that the mother both acquiesced and unduly delayed, although this was sometimes done interchangeably without delineating how these may be distinct concepts. While delay can be an indicia of acquiescence and perhaps vice versa , the term “undue delay in commencing due process” is a separate concept in section 22(3), that is tied to the specific act of seeking redress before the Court.

[37] Neither counsel supplied the Court with any decisions that attempt to specifically define when “undue delay in commencing due process” will have occurred. Based on my own review, the cases in which courts have found “undue delay” are fact driven. Usually, as is the case before me too, they accompany related arguments about acquiescence.

[38] For instance, the father relies on Guillemand v. Guerts, 2015 ONSC 4229 . In that case, the mother moved out of the parties shared residence in Alberta, in March of 2013. She left with their child, who was then less than one year old, and moved to Ontario. By April of 2013, the father obtained an Order from the Alberta Court of Queen’s Bench for the child’s return to Alberta, but the Order was not complied with. More than 8 months later, the father brought a proceeding in Ontario for the recognition of the Alberta Order. For various procedural reasons, the Ontario application was not heard until 2015. And the Court’s decision was not rendered until June 30, 2015, over two years after the child’s removal from Alberta.

[39] Notably, the proceeding before the Court in Ontario in Guillemand v. Guerts concerned whether that Alberta Order should be recognized under section 41 of the Children’s Law Reform Act. While those are not the exact circumstances before me in this case (as no extra-provincial order has yet been made to recognize), the decision still has some applicability, as section 41(1)(e) of the Children’s Law Reform Act allows for the Court to consider the child’s habitual residence in section 22, and acquiescence and “undue delay” are part of that.

[40] Although the Court in Guillemand v. Guerts declined to recognize the Alberta Order for a myriad of reasons (most of which do not matter here), it was of the view that after the father obtained the Alberta Order, he should have acted differently, in particular with more haste, to enforce it. There is a specific finding at ¶ 78 of the decision, that the matter could have been dealt with some 12 to 18 months earlier than it was, had the father acted differently.

[41] That is not to say that undue delay cannot be found, even after the passage of a shorter period of time. For example, in Mehta v. Gandhi, 2016 ONSC 2453 , there had been a four-month delay only, but that was nevertheless found to be undue. And at ¶ 58 of Rifai v. Green, 2014 ONSC 1377 , which is another eight-month delay case, Pazaratz J. wrote, “[t]here are consequences to the fact that the Applicant ended up doing nothing – for eight full months. Time moves on. Children move on…”

[42] But the reverse can also hold true; the passage of more time does not make it a foregone conclusion that “undue delay” will be found. Although a case decided under the Hague Convention, at ¶ 113 of Kommineni v. Guggilam, 2022 ONCJ 66 , Zisman J. found that the father did not “unduly delay” in commencing the proceeding after three years , although there, he had spent that time trying to ascertain the child’s whereabouts. Importantly, the child’s connection to the new environment was also lacking. I will come back to this latter point, as I find it, and not the passage of time in itself, to be more key.

[43] The definition of “undue” in Black’s Law Dictionary, 11 th edition, includes “excessive or unwarranted”. Its definition of delay includes “the act of postponing or slowing” and “the period during which something is postponed or slowed’.

[44] Just exactly how much, or when, “delay” will be “undue”, is not specified in the Children’s Law Reform Act, nor is there any hard and fast rule that emerges from the case law (as I have just indicated) . [1] The term “undue delay” does appear in other legislation though, which has been judicially considered. For example, sections 6 and 7 of the Arbitration Act, 1991, provide for limited Court intervention and a stay, when a matter has been properly submitted to arbitration. One of the exceptions to the granting of a stay is found in section 7(2), being if a motion for a stay is brought with “undue delay”.

[45] Although under the Arbitration Act, 1991, delay is considered from the time the proceedings commenced (see Thomson v. Thomson, 2012 ONCJ 141 ¶ 73 ), contrasted with section 22(3) of the Children’s Law Reform Act , which considers the delay in “commencing due process”, there is some helpful guidance in the jurisprudence about how “undue delay” for the purposes of section 7(2) has been considered. On the merits, courts have looked at the totality of the circumstances, and considered more than the mere passage of time in determining whether delay was undue.

[46] For instance, courts have considered whether the moving party chose “willingly and knowingly” not to rely on the requirement to arbitrate, whether he or she “acquiesced or waived” the requirement to arbitrate, whether there is prejudice from the delay, meaning “when it outweighs the benefit of proceeding to arbitration over the court”, whether the moving party had taken steps in the litigation, only to later try to revert to the arbitration process, and whether there had been intervening events: see Bouchan v. Slipacoff ¶ 31-34 ; see Carillion Construction Inc. v. Imara (Wynford Drive) Limited, 2015 ONSC 3658 (S.C.J.) ¶ 51-62 ; see Delamarter v. Desjardins Security Life Assurance Company (Desjardins-Laurentian Life Assurance Company Inc.) (Ont. S.C.J.) ¶ 22-25 ; see MTCC No. 1171 v. Rebeiro, 2022 ONSC 503 ¶ 63 Thomson v. Thomson ¶ 78, 88 .

[47] In some of these cases, the analysis is undertaken through the lens of the legislative policy that applies in the arbitration context, being to encourage parties to submit their differences to a consensual dispute resolution process rather than to the Court, where they had previously agreed to do so: see Bouchan v. Slipacoff ¶ 19 ; see Delamarter v. Desjardins Security Life Assurance Company (Desjardins-Laurentian Life Assurance Company Inc. ) ¶ 25; see also F. W. v. D.B., 2024 ONSC 4823 (S.C.J.) ¶ 111 .

[48] Returning then to the concept of “undue delay” in the context of section 22(3) of the Children’s Law Reform Act, the term must mean something more than the mere passage of time: see for example Ibrahim v. Girgis, 2008 ONCA 23 ¶ 28 . It only makes sense that the Court would also embark upon a “contextual and factual inquiry”, just like it does when considering acquiescence: see again Los v. Ross ¶ 45 .

[49] Kubera v. Kubera, 2010 BCCA 118 was a case decided under the Hague Convention (where the one-year period in Article 12 exists), but I find its discussion about what “settled in” means to be helpful here. The case provides examples of the kinds of “prejudice” or changed circumstances, from a child’s perspective, that may or may not arise from the passage of time, and amount to being “settled in”.

[50] At ¶ 118, the British Columbia Court of Appeal explained that more than a mere adjustment to surroundings is required. Rather, there should be “a physical element, relating to being established in a community, and an emotional element relating to security and stability”. It involves examining “the child’s future prospects as well as his or her current circumstances”.

[51] Notably, courts have considered similar things under the Children’s Law Reform Act, without expressly stating it as such . For example, in Guillemand v. Guerts upon which the father relies , after admonishing the mother for having acted with self-help at ¶ 81, the deciding factor still seemed to be that the disruption that would be caused by returning the matter to Alberta would not serve the child’s interests. Likewise, in Metha v. Gandhi, it was not just the passage of four months that mattered, but that passage of time combined with the fact the mother had arranged health care and the child became connected to the community.

[52] Therefore in conclusion, I find that “undue delay” means more than the mere passage of time. The impact upon the children’s connection to the new setting must be considered. It is appropriate to do so through the lens of the policy in section 19 to “discourage child abductions and the wrongful removal and retention of children to Ontario as well as to ensure that parenting matters are determined by the jurisdiction to which the child has a closer connection” (see again F. v. N. ¶ 49 ) . How much weight one factor or the other, or this policy will get, depends on the overall circumstances of the case.

PART III: FINDINGS OF FACT RELEVANT TO THE CHILDREN’S HABITUAL RESIDENCE, INCLUDING ACQUIESENCE AND UNDUE DELAY

[53] With these principles in mind, I turn to the evidence.

A. The Parents’ Initial Move to Alberta

[54] It is common ground that the parties met in Ontario in June of 2020. They started dating, but did not cohabit initially. It is common ground that the mother became pregnant with P. in around November of 2020. She decided to relocate to Alberta, as she wanted the assistance and support of the maternal grandmother during her pregnancy. [2]

[55] It is common ground that when the mother first moved to Alberta in November of 2020, the father did not immediately come with her. The mother managed P.’s pre-natal care without any support or assistance from the father.

[56] It is common ground that the father came to Alberta around the time of P.’s birth on April 25, 2021. The father admits in his affidavit of October 8, 2024, that he went to Alberta on April 2, 2021 to “live with the Respondent and her mother”. That was the first time the two lived together as a couple.

[57] It is mostly common ground that the father was not present consistently when he first came to Alberta. The father claims in his affidavit of October 8, 2024, that he stayed at the grandmother’s house in Alberta from about April 2, 2021 until July of 2021. But the mother has a different account of the length of time that the father remained at first. Specifically, in her affidavit sworn October 18, 2024, the mother says that the father left soon after P.’s birth, leaving her alone to care for the child. She says he returned in May of 2021. She also says that on her first Mother’s Day in 2021, she woke up to find the father gone. She says he was gone for 1.5 months. And in his reply affidavit of October 22, 2024, the father seems to have refined his evidence, now saying that he was in Alberta from mid-April to mid-May, when P was born. He admits that he returned to Ontario in June, and then he came back.

[58] While the precise periods of time that the father was absent during these early days are in dispute, I find this does not really matter to the analysis. The point is that the mother experienced the father to be unreliable in these early days, and there is some common evidence of that.

B. The Conflictual Circumstances When the Parents Lived in the Maternal Grandmother’s Home

[59] It is common ground that the family would move to Ontario in about July of 2021, due to certain conflict in the maternal grandmother’s household, although the cause of the conflict is not agreed to. The father attributes most of the conflict to the maternal grandmother’s actions. For instance, he says that that during his “three month” stay in Alberta between April and July 2021, the mother and grandmother got into a physical fight which led him to call to the police. In fact, at ¶ 19 of his October 8, 2024 affidavit, the father says that the maternal grandmother assaulted the mother on more than one occasion (without specifying the number of assaults).

[60] By contrast, the mother says that she was hopeful that the father would participate in the family, contribute to the household and help care for newborn P. Instead, she says the father was unreliable and was resentful of the maternal grandmother’s involvement, even though the parents did not have the financial means to seek alternative rental arrangements. According to the mother, the father’s refusal to comply with the general rules of the house, including his “neglectful use of prohibited substances and causing damage to the property by ripping out the smoke alarm from the ceiling”, caused tension. [3]

[61] The mother does not, in her affidavit sworn October 18, 2024, address directly the father’s evidence of that there was a particular physical fight, that the father says led to their departure from Alberta. But she does refute this in general later on, including his claim that there were numerous physical fights between her and her mother at different points. The mother’s position in that she there was only one physical altercation between the two women, which occurred later. These facts are addressed further below, and will be repeated somewhat in my analysis about section 23 of the Children’s Law Reform Act .

[62] For my purposes here, as it pertains to jurisdiction under section 22(1)(a), this too does not matter. The point is that living with the maternal grandmother in Alberta at the beginning was not stable, regardless of the source of the conflict.

C. The Parties’ Move to Ontario in July of 2021

[63] It is common ground that the parents, and P., who was then between 2 and 3 months old, lived in the paternal grandparents’ home after the family moved here to Ontario in the summer of 2021. According to the father, the family remained in Ontario for 9 to 10 months, until April 28, 2022. In her factum , the mother says this period of living in Ontario was shorter. In any event, it is common ground that the mother became pregnant with B. during this time frame in Ontario, in about August of 2021. It is also common ground that the mother and P. were back in Alberta, before B. was born.

[64] It is common ground that there was conflict in the paternal grandparents’ household, too. To the extent that the mother was the cause of it however, that is contested terrain. For instance, the father says that while living there, the parents had an argument in December of 2021, because the mother was drinking while pregnant. To “cool off”, he left and went for a drive. He says he later found out (somehow that is not explained), that the mother told an unnamed family friend, to leave P. alone to cry, while she “vomited and passed out” but that his “sober parents were there to take care of the children. ” [4]

[65] The mother’s account of living in the father’s parents’ household, is different. She says that the paternal grandfather and the father did not have a good relationship and “constantly” got into altercations in front of P. The mother explained that the grandfather was displeased with the father’s lifestyle choices, which included his carelessness, his failure to contribute, his lack of effort and his unwillingness to get a job. She says that once, the situation between the father and the grandfather escalated to the point that the grandfather called the police for help. She found this stressful, as it occurred during her pregnancy with B.

[66] Although in his Reply affidavit of October 22, 2024, the father claimed the state of his relationship with his father was “fine”, I was able to find common ground between the competing affidavits, that the father did in fact have conflict with his father. For instance, the father himself admitted that there were problems. He deposed that “the police” were called after the grandfather found out that the parties were “flushing baby wipes down the toilet”. An argument ensued about fixing it. That should have been no good reason to call the police, yet both father and son called the police apparently. The father elsewhere admitted that the grandfather wanted the father to move out, but the father would not do so, thus also leading to the police being called.

[67] And in addition, there is some common ground that the paternal grandmother did not want the parents and P. living there, nor did she want there to be more children in the household. For instance, the mother says that after she became pregnant for the second time (with B.), the grandmother made it clear that she did not want an additional child added into the mix. She says that the grandmother even pressured her to have an abortion, offering to pay for it.

[68] The father’s Reply affidavit of October 22, 2024 corroborates the mother’s account of the grandmother’s dislike of having them in the house, in some respects. At ¶ 13 of that affidavit, he says that his mother was “not thrilled” that they were all living there “rent free”, but she also understood that the family was “trying to make ends meet”. While he says that it was the mother who did not want to be there and not the other way around, at ¶ 14, he still admitted that the paternal grandmother did tell him and the mother, that they would have to move out if they were having more children. He did not specifically deny the mother’s allegation, that the maternal grandmother suggested that she abort her pregnancy with B.

[69] I find that the situation in Ontario during this time frame, with both parents and P. now living with the paternal grandparents, was no more stable than had been the case when the parents lived together as a couple in the maternal grandmother’s home in Alberta.

D. The Parties’ Return to Alberta in April of 2022

[70] Having now tried to live together as a couple with both the maternal grandmother in Alberta, and then with the paternal grandparents in Ontario, the parties returned to Alberta. This occurred no later than April of 2022. The mother says that upon the parties’ return to Alberta, they rented their own apartment, hoping that this additional step would improve their family dynamic. And it is common ground that they did get their own apartment at some point after their return, despite some attempt by the father to suggest at ¶ 18 of his affidavit sworn October 8, 2024, that one or the other of these moves to Alberta was temporary in nature.

[71] B. was then born, in May of 2022, after that return to Alberta.

[72] It is also common ground that the father immediately repeated his pattern of not being consistently present, although once again the time that the father was away on this occasion, is likewise not agreed to. The mother says that the father “disappeared again for another few months”, taking money that the maternal grandmother provided for rent, “without word”. The father claimed in his Reply affidavit that he took money from an account that he and the mother shared, but he agrees that he left. In any event, in his own affidavit of October 8, 2022, the father says that he left at the beginning of June of 2022, because he has “another child here and wanted to see her before going back to Alberta.” According to the mother, this caused her to have to return to work sooner than she expected, in order to financially survive.

[73] Incidentally, it is not clear to me why the father did not go to see the other child before leaving for Alberta for the final time. The father offered no other details about his other child, the child’s age, who the mother is, where she lives or what the parenting arrangements are. Consequently, I am left wondering whether the father’s later surreptitious departure from Alberta on January 1, 2024, didn’t have something to do with that other child. For instance, if the father is entitled to parenting time with him or her (which I do not know), certainly living in Ontario, with both P. and B., would make it easier for him to see all three children.

[74] Regardless, what is notable, is that B. was about one month old when the father left the mother again. He engaged in the exact same repeat behaviour of the kind he engaged in after P. was born, leaving the mother to care for a newborn on her own, yet again. And although the father complains that while he was in Ontario, the mother denied him ”any contact with our children, which caused fights between her mother and me”, I find this to be hyperbole, introduced for the purposes of this motion now before the Court, to bolster an argument that if the children are returned to Alberta, the mother will not cooperate respecting his parenting time. It was the father who left; not the mother. And what exactly he expected in terms of any meaningful “contact” while away is unclear, since P. was just a little over one year old , and B. was about one month old at the time, as I have just said.

E. The Father’s Employment and Parenting Responsibilities in Alberta

[75] The father claims to have come back to Alberta in July of 2022. He says that he obtained a job at Canadian Tire until February of 2023, until he broke his foot. He says that the mother then preferred that he stay at home and be a “full-time parent”, as the cost of day care was more expensive than what he could make if he returned to work at Canadian Tire.

[76] In a likely attempt to minimize the impact of the evidence of the parenting role the father took on after February of 2023, the mother says, without details, that the father refused to work and even turned down “6-figure work opportunities” that her mother arranged for him. Therefore, she had to obtain a second job while he was left at home with the children.

[77] The father denies in his Reply affidavit, that any such work opportunities existed. Notably though, the father did not provide any medical evidence to establish that he could not return to work. It is common ground that his not working caused conflict. And to the extent that the father became the children’s primary parent after February of 2023, that was due in part to the fact that the mother was working hard, to support the family.

F. The Single, Admitted Physical Altercation Between the Mother and the Maternal Grandmother

[78] The mother says that the maternal grandmother was concerned that she was being rushed back to work so soon. But the mother defended the father staying at home, to her mother. The mother says that there had not been a history of violence or aggression with her mother before this, but her defense of the father’s laziness led to the “single and unfortunate incident of an altercation” between the mother and the maternal grandmother. The mother says she “deeply regret[s]” this, and it has never repeated.

[79] In view of the father’s statements, mentioned earlier, that there was far more conflict between the mother and the maternal grandmother, I find that the extent of the conflict between the two women is not common ground.

[80] However, despite that, in regard to the father’s own credibility when it comes to casting aspersions on the maternal grandmother, what is notable, is that it was the father who was charged for having “uttered threats” against the grandmother. The father did not otherwise provide the details of the facts underlying this charge in his affidavit sworn October 8, 2024. The mother, however, did provide the details in her affidavit of October 18, 2024. They included that the father had left messages threatening to burn down her mother’s house, with the grandmother in it, while saying that he had made copies of keys to the house.

[81] The father’s sworn statements about the disposition of the criminal charge was also incorrect. The father did not receive an “absolute discharge” as he claimed; he received a conditional discharge and 12 months of probation terms. As the mother pointed out, the probation terms, which were in place until February 8, 2024, restricted the father from having direct or indirect contact with the grandmother. The mother says this now meant, that when she wanted to see her mother, the father could not be there. Nor could the grandmother come to their apartment, where the father usually was, so she had to meet her at her house, or somewhere else in town. These restrictions created additional logistic, if not other problems, including on the evening of December 31, 2023, after which the father left Alberta.

G. The Conflict Between the Parents While they Lived in Alberta After B.’s Birth

[82] It is common ground that there was conflict between the parents when they lived in the apartment in Alberta together.

[83] In addition to having conflict about finances, the mother says that the father did not care for the children well. She says he would spend most of the day playing video games, and left the children unfed and unchanged. She says that she had to do “all the childcare and housework” that he had ignored during the day, when she came home from work.

[84] The mother says that the father became angry when she engaged with other people outside the household, including her mother and friends, regardless of whether the children were present or not. There is some indication from the father himself in the text messages between the parties that have been filed, that he did not enjoy socializing with others, or at least with people that he did not know.

[85] The mother also says that the father called her or her mother repeatedly when she was out, and if he did not get an immediate response, he would call the RCMP. She says this was a regular occurrence. And there is some common ground in the affidavit material before the Court, that the father resorted to calling the police, regularly.

H. The Father’s Improper Departure from Alberta With the Children on January 1, 2024

[86] According to the mother, by October of 2023, the parents’ relationship had deteriorated to the point that they were barely communicating. This background set the stage for the father’s improper departure from Alberta with the children, on January 1, 2024.

[87] According to the father, the mother went to work on December 30, 2023 before children were awake. She came home at night after they had gone to bed.

[88] The father says that on December 31, 2023, the mother sent the father a message, saying that she would be home at 6:30 PM, but that she knew it was New Years’ Eve, that stores were closing early, and that the family needed groceries. By 8:30 PM, the mother was not home, and so he tried to call and message her. He says she did not answer his calls and messages until after midnight, only after he called in a “missing person report to the RCMP”. [5] The father claimed to have been left at home with the children “with little food and no milk”, and that is why he was calling and messaging her.

[89] The father says that the mother was at a party and was “rude to the police and told them she didn’t want to talk to me”. How the father knows this is not identified either, nor is the name of the police officer to whom the mother allegedly spoke. [6]

[90] The father says that because he was “left in the apartment with no milk and no contact from [the mother]”, and given that this “was not the first time this had happened”, he felt he had little choice but “to leave and go to [his] parent’s house in Ontario where [he] could ensure the children would have proper food”. The father left the mother a note telling the mother that he went to Ontario for “a vacation”. Apparently, the father obtained funds from his parents to take the children to Ontario. Notably, the father himself admits that it was not his initial intention to stay in Ontario, but with “the cold winter in Fort McMurray, no car for [him] to get the children and [himself] around, too cold to walk, no money, as the [mother] controlled it all, and really no idea how stable [they] were in [their] current apartment, [he] felt the children needed some stability for a time while [the parents] sorted out [their] future.”

[91] The father says that the mother ignored him until January 2, 2024. He says he then received a call from the RCMP on January 3, 2024, after he was already in Ontario, to make sure that the children were safe. He says the mother called to ask him about the internet, but did not ask to speak to the children until March 9, 2024.

[92] The mother’s account is different. She says that she had time off on December 31, 2023. She says her workplace was closed on January 1. She says she was already scheduled to work late on January 2, 2024, and she says the father was aware of this.

[93] The mother says that December 31, 2023 was the only day where it was possible for her to have some personal time. She says that she was originally supposed to have friends over, but the father was in a confrontational mood, so she decided to go out instead. She also wanted to see her mother, which she could not do at home, in view of the probation terms.

[94] The mother says that the father started to call her in a harassing fashion, as usual, when she went out; this included several calls to the RCMP. She says he called the RCMP repeatedly over the course of several hours, had a wellness check done, and even waited for a new shift of officers to come on duty, to start his chain of calling the police again.

[95] The mother disputes that the father was without food or milk. She says that her mother told the police, that the children had necessities, and that the mother had “stocked the house from a pre-New Year’s grocery run on December 27”. The mother attached a bank record showing about $100.00 in purchases from the “Real Canadian Superstore”. [7]

[96] The mother says that there was constant contact with the father on December 31, 2023, responding to his many inquiries and complaints. She says that the grandmother even dropped of new items, but she had to leave them some distance from the apartment, because of the probation order.

[97] The father then started sending a new series of text messages, first denying that additional supplies had been provided. The mother responded with a photograph showing where the grandmother had placed the items. There is a photograph of a jug of milk in the exhibits before the Court. The father then complained that the milk was not fresh from the store.

[98] Notably, at ¶ 19 of his Reply affidavit of October 22, 2024, despite the fact that the absence of milk was ostensibly one of the main reasons for his departure with the children from Alberta, the father admitted that the grandmother did in fact drop off milk, but he claimed that he only “later found it in a different location”. This would have been before he left.

[99] In addition to the note that he left her about leaving for a vacation only, exhibit “J” to the mother’s affidavit of October 18, 2024 is a text message from the father dramatically telling the mother that she (or her mother) were “getting what [they wanted].”. He went on to warn the mother, that the cheapest flights he could access would be on the following morning, and that she better call or come home (or else he would be gone). He accused the mother of “acting just like [her] mother”, which he said he did not “want to be around”. In the end, when the mother did not respond to a number of the father’s communications containing what appears to be attention seeking behaviour, the father escalated the situation, and took the children out of the province.

[100] The mother says that when she came home from work on January 2, 2024, the house was “ransacked and trashed, the children were gone and there was a scribbled note from [the father] about taking the children on vacation”. The mother attached photographs of the appalling state in which she says the father had left the house upon his departure. [8]

[101] By January 2, 2024, the mother messaged the father saying “where the fuck are my kids” and “so you took my kids to Ontario?” and “So how am I supposed to get them back”. In other words, her immediate reaction was to object. The father did not answer the mother’s question about the return; he made comments about having no choice and he informed the mother about the amount of money the paternal grandmother had just spent, to get him and the children to Ontario.

[102] At no time during the early days, let alone during the weeks and months that followed, did the father ever say his plan was to remain in Ontario permanently. Not only did the initial note he left say otherwise, but the fact that the father did not intend to remain in Ontario was conceded in both his affidavit evidence and during oral submissions by his counsel.

I. The Mother’s Actions Shortly After the Father Removed the Children from Alberta

[103] In her affidavit sworn October 18, 2024, the mother denies that she acquiesced or that she unduly delayed. In fact, and to the contrary, there is evidence that she began to take steps to secure the children’s return, soon after the father left.

[104] For example, at ¶ 58 of the mother’s October 18, 2024 affidavit, she suggests that she didn’t immediately realize that the father was not coming back to Alberta. She says that as soon as she understood this to be so (unless she agreed to continue the romantic relationship, which she did not wish to do), she started to seek help about how to get the children back to Alberta.

[105] On the one hand, this explanation has some air of reality to it, given the father’s note that he was leaving for vacation. However during argument of this motion, counsel for the mother suggested that this realization by the mother happened as late as April or May of 2024. Yet the mother’s own sworn statements suggest otherwise. I do not find the realization to have occurred that late. For instance, the mother consulted with an Alberta lawyer named Brian Vaughan on January 23, 2024.

[106] In any event, the mother also says that she tried to get help from the RCMP, but the police would not assist, as there was no court order. Notably, the father admitted to having received a call from the RCMP on January 3, 2024, which is some evidence corroborating the mother’s account that she sought assistance from the police. While I cannot make findings about the hearsay of what an unnamed police officer would or would not do, I am prepared to accept the mother’s evidence that she contacted the police for assistance.

[107] The mother also says she went to the court house in Alberta, to seek help. There, she says she obtained some paperwork and tried to fill it out, but she didn’t get far with the process. She says that she had some difficulty getting in touch with a specific point person in the Alberta court house when she tried to follow up. I am prepared to accept this evidence. The father is not in a position to refute it.

J. Whether the Mother Evaded Service of the Father’s Ontario Application

[108] The father places great reliance on an argument that the mother evaded service of his proceeding, after he started it. Although my focus in this decision is in regard to whether the mother acquiesced or unduly delayed, it is notable that the father did not even retain counsel until February 12, 2024, almost 1 ½ months after his departure from Alberta. He then caused to be issued his application in this Court, only on March 15, 2024, another month later. The father did not then notify the mother of this fact, in any prompt manner.

[109] The father only arranged for a process server to try to serve the mother some 6 weeks later. While he says that there had been four attempts to serve her, and she evaded service “over a period of 2 months”, the latter statement is inaccurate. The father’s process server’s first attempt to serve the mother did not occur until the end of April.

[110] According to the affidavit of process server Patrick Noble sworn May 9, 2024, he attended at the mother’s apartment on April 25, 26 and 28, 2024 in the evening, but there was no one home. Mr. Noble says that he then called the mother, but she said she was out of town, and told him that she would call him back when she returned. Mr. Noble says that the mother would not say when she was coming back home, other than that it would be during the week of April 29, 2024.

[111] The evidence before me is that the last day of the parties’ lease on their apartment in Alberta was April 30, 2024. The father says he told the process server through counsel, that perhaps the mother would be going to her mother’s house thereafter. So the process server made a fourth attempt to serve the mother at the apartment on April 30, 2024. It is not clear that any attempts were later made to serve the mother at the grandmother’s home.

[112] The process server spoke on the telephone with the mother on April 30, 2024. He says that the mother said she would come to the apartment within 5 minutes, but she never came and so he was unable to serve her. The mother’s explanation for this, is that the process server had posed as a delivery person during that call, and she hadn’t ordered a package, so she did not wait for him to come back to the house.

[113] As these four attempts to serve the mother over the course of a one week period proved unsuccessful, on May 9, 2024, another 10 days later, the father brought a 14B Motion, on an ex parte basis , asking for alternative service by email and text message. Notably, as indicated already, there is no evidence before me that the father notified the mother that he was doing this, to see if perhaps service might just resolved more consensually. Incidentally although he was asking to approve service by email, there was nothing stopping him from serving that 14B Motion by email in advance of court approval.

[114] Daurio J. made an Order for service by email, text message and by regular mail on May 27, 2024. During argument of this motion, Ms. Duggan submitted to me, that she never received that Endorsement, and that she had to later ask the Court again for another order for substituted service. As I explain below, that too was done on an ex parte basis . In the mean time, service continued not to be effected.

K. The Communications Between Counsel in May of 2024

[115] On May 17, 2024, 10 days before the release of Daurio J.’s Endorsement (that Ms. Duggan says she did not receive), Mr. Vaughan called Ms. Duggan, to discuss this matter “in a manner that [Ms. Duggan] thought was going to be collaborative”. Ms. Duggan apparently asked Mr. Vaughan to accept service, but he did not want to do so.

[116] The mother says that thereafter, Mr. Vaughan tried to file court documents in Ontario, but did not know how to do so, process-wise, and whatever documents that she tried to file did not make it into the Court file.

L. The Mother Commenced the Alberta Proceeding on June 19, 2024

[117] It was on June 19, 2024, around a month after this telephone call between counsel, but still before Ms. Duggan’s email service of the Ontario material, that the mother commenced a proceeding before the Alberta Court of Justice seeking the children’s return to Alberta, and for “parenting of child”.

[118] Incredibly, even though by this point, the father had commenced his Ontario proceeding back in March of 2024, it was the mother who served the father with her Alberta proceeding first. The father says that on June 19, 2024, Mr. Vaughan “improperly emailed” his lawyer court documents for a hearing in Alberta scheduled for July 30, 2024. [9]

M. The Prior Proceedings in this Court

[119] It was only then that the father was prompted to act with some more haste. The father says that the next day, he filed a 14B Motion in this Court, requesting an urgent motion for temporary sole decision-making, primary residence, and for a determination that this Court has “temporary jurisdiction”, whatever that means. This was the second 14B Motion brought on an ex parte basis . Incredibly, even then, the affidavit of service signed by Ms. Duggan reveals that the mother was only first served with the father’s Application by email, on June 27, 2024, after the Court ruled on this new motion.

[120] By way of a series of Endorsements of this Court dated June 26, 2024, August 12, 2024 and September 24, 2024, the Court scheduled an urgent case conference and this motion, and it made temporary without prejudice parenting orders pending this ruling on jurisdiction. This matter would later come on before me for the first time, on September 24, 2024, for the urgent case conference. As I will explain, I set this motion to be argued on October 29, 2024 before me, pursuant to my scheduling Order of September 24, 2024.

N. The September 2024 Incident: the Alleged “Abduction”

[121] According to the father’s affidavit of October 8, 2024, in between a court appearance on August 12, 2024, and the penultimate September 24, 2024 court date in this case (for the urgent case conference), the mother showed up at his parents’ home in Ontario unannounced. He says this occurred on September 12, 2024, whereas the mother says it occurred on September 5, 2024. The date of the mother’s attendance in Ontario does not matter.

[122] The father says that the mother wanted to take the children for a few days. He says he said no to her, but that he would “sort things out”. He says he told her to come back in an hour. The mother would not leave.

[123] Apparently, according to the father, the paternal grandmother then told the mother that she could have a visit with the children, but that the maternal grandmother, who had accompanied the mother on her trip to Ontario, was not welcome. The father says that the mother and the maternal grandmother responded to this by saying that they were calling the police. The paternal grandmother then called the police, too.

[124] Who called the police first, or why matters escalated to the point that either parent felt that was necessary, does not matter. In the end, police officers did come to the home. The father says they came into the backyard where he then was, and asked him if the mother could see the children. The father says that he, his mother and “the police” [10] came up with a solution whereby the mother could visit the children in the backyard for an hour, and have another visit later that afternoon. The maternal grandmother was to stay in her car.

[125] The father says that P. then came out to see the mother, and that the mother and P. began to play on a swing set. B. joined them. The father says that the unnamed police officer allegedly went over to tell the mother what the guidelines were for her to have a visit, but the mother nevertheless tried to take the children out of the backyard to the front to see the maternal grandmother.

[126] While a great deal of this evidence rests on the hearsay of an unidentified police officer or officers, the bottom line is that the father was now accusing the mother of having tried to “abduct” the children. He says the police intervened. According to the father, the mother stood by, while holding P. in her arms, as she argued with the police for “close to 30 minutes”, before “they” told her to leave or they were “charging her with trespassing”. Allegedly, “they” also told her to put P. down or they would “forcibly” take P. from her and arrest her. The father says that “the police” then told “us” that “they” had a feeling that the mother was “going to try to take the children”.

[127] According to the mother, after the paternal grandmother answered the door upon her arrival, and while she waited for the father to come out, she could see P. through the window. She says that P. waved at her “excitedly and frantically”. She says that the father started arguing with her about the relationship, but she tried without success to redirect the conversation to be about the children. She says that the father then decided that she could no longer see the children and shut the door on her. She says this happened when he realized that she was not going to talk about the relationship with him.

[128] It was at this point that the mother says she called the police. She says she felt that the August 12, 2024 Endorsement had given her some in person parenting time, and so that is why she had come to Ontario. In the midst of this, according to the mother, the paternal grandmother apparently ordered the maternal grandmother off of the property.

[129] Like the father does, the mother also references the hearsay of unidentified police officers in her sworn affidavit of October 18, 2024. She says that “the police” told her that they “couldn’t enforce anything” but they would try to suggest to the father, to let her visit the children.

[130] Regardless of whether the police said this or not, it is common ground that a visit did happen in the backyard. But the mother also wanted the children to see the maternal grandmother. She says that because P. had also seen the grandmother through the window and was asking for her, this is why she tried to go to the car. It was not to abduct the children.

[131] In any event, the mother admits that “the officers” told her that she would “be arrested” if she tried to take the children away. She says that the situation was chaotic and that she and the children started to cry. She asked for time to say goodbye to the children, and then she went to join her mother in the car.

[132] This unnecessary incident has seemingly made things worse between the parties. The father’s affidavit of October 8, 2024 now concludes with him saying, at ¶ 68:

Based on this incident I do not see how anything short of police supervision will suffice because even in a supervised access centre, the staff will not stop [the mother] when she takes the children out of the facility – which she most certainly will do.

[133] Although there is no such request in his Notice of Motion dated October 8, 2024, nor is there any notice to the maternal grandmother, the father also says that a restraining order against the maternal grandmother is necessary “to ensure she does not come around my parents’ property”.

O. The Urgent Case Conference on September 24, 2024

[134] The father’s brief for the urgent case conference merely contained a factual summary, and his litigation position. That factual summary included some description of the aforementioned September incident.

[135] Upon reviewing the material put before me, it became apparent that the jurisdiction issue in particular was not amenable to a resolution and that a quick decision needed to be made. I advised the parties that I would schedule a long motion before me on an expedited basis. I declined to give any opinions or engage in settlement discussions.

[136] As I was directed to do in the earlier August 12, 2024 Endorsement, I set out the parameters of the motion. I advised the parties that the motion would concern all issues needed to put some order into place, on an interim basis. In particular, my Endorsement of September 24, 2024, specifically sets out that the issues for the motion would be:

(a) The Court’s jurisdiction, (b) If this Court has jurisdiction, what temporary parenting Orders should be made; (c) If this Court declines jurisdiction, are orders necessary for the children’s return to Alberta; and (d) If Ontario has jurisdiction, temporary child support and/or travel costs.

[137] I also told the parties to file all of the evidence upon which they wished to rely, in one place. In other words, to give both sides a complete opportunity to put whatever information they wanted before the Court, I directed the parties to prepare one set of comprehensive motion materials on all of these issues. I expanded the page limits, but imposed reasonable ones in consultation with counsel. I made a scheduling Order, but as set out earlier, I neglected to make provision for the mother’s right of reply on her cross-motion. Finally, I indicated that I required facta from both sides, and that I needed to know, comprehensively, what was happening in the Court in Alberta.

P. The Current Status of the Alberta Proceedings

[138] It is my understanding that there have already been court dates in the Alberta Court of Justice on July 30, 2024, August 13, 2024 and September 24, 2024. It is my understanding that the Alberta Court of Justice is waiting for a ruling from this Court. I am told that the next date in the Alberta proceeding is on November 19, 2024. At the conclusion of argument of this motion on October 29, 2024, I advised the parties that I would endeavour to render a decision promptly, prior to the upcoming November 19, 2024 date in the Alberta proceeding.

PART IV: ANALYSIS AND CONCLUSIONS

A. Analysis and Conclusions Respecting the Children’s Habitual Residence

[139] If the law in Ontario about habitual residence in section 22 of the Children’s Law Reform Act is in fact unsettled, in this case before me, I find the result would be the same, irrespective of which test applies. And I do not find that the mother acquiesced by the time this proceeding commenced, to alter the habitual residence. Nor do I find the mother engaged in undue delay in commencing due process.

[140] Regarding the children’s habitual residence under sections 22(1)(a) and 22(2)(1.) of the Children’s Law Reform Act, and at the risk of repeating myself, I make these findings because:

(a) It is not disputed that the mother moved to Alberta prior to P.’s birth, without the father, where she was left to manage her pre-natal care on her own. While the father came to Alberta around the time of P.’s birth, he did not consistently remain. The length of the period of his absence does not matter. He was not consistently there at first;

(b) Although the family then went to Ontario soon thereafter due to conflict in the maternal grandmother’s home, it is not disputed the situation in Ontario was no more stable. It did not last. The mother and P. were back in Alberta, before B.’s birth. That means that P. was in Ontario only for a portion of the first year of her life. B. was then born in Alberta;

(c) Even after the father relocated back to Alberta for the second time, he repeated the earlier pattern of not being present consistently, at least not initially;

(d) Although the father has attempted to claim in his motion material that one of these moves was temporary in nature, [11] I do not find this to be so, particularly in respect of the return to Alberta for B.’s birth in 2022. It is not disputed that after that second return, the parties signed a lease, they both obtained employment, and on the father’s evidence, they had a discussion about day care versus the father staying at home. I find this move was permanent; and

(e) The place that the children last lived with both parents, for the purposes of section 22(2)(1.) of the Children’s Law Reform Act, is indisputably Alberta. On the father’s own admission at ¶ 39 of his factum, both children have lived the majority of their lives in Alberta. To the extent that he then seems to say otherwise at ¶ 116 of the same factum, if it turned out that they later lived slightly longer in Ontario, that is a function of his wrongful removal of the children to Ontario, and that extra time mostly post-dates the commencement of the Ontario proceeding.

[141] Regarding whether the mother acquiesced for the purposes of sections 22(1)(a) and 22(2)(2.), such that the habitual residence might now be Ontario, I do not find acquiescence at the time of the commencement of the Ontario proceeding, because:

(a) The father wrongfully removed the children to Ontario on January 1, 2024. I do not find credible, his evidence that he was without milk or food, based on the findings of fact already made. And even if that were so, that is not a justification to take off to Ontario with the children on no notice to the mother. The children have been wrongfully retained in Ontario ever since;

(b) It is not disputed that the father did not tell the mother he was leaving Alberta permanently. Rather, the father told the mother in his note, that he was going to Ontario for “vacation” only, when he left;

(c) After immediately objecting to the removal in a text message, beginning as early as January 3, 2024, the mother began to contact the police for assistance, she consulted with counsel, and she went to the court house for assistance. I am prepared to give her some leeway respecting the latter, and I accept that as a self-represented litigant, she found the process challenging;

(d) Arguments have been made about the mother’s contact, or lack thereof, with the father or the children since he left Alberta with the children. Some of the parties’ communications pre-date the commencement of this proceeding, whereas others do not. Some of the father’s responses are about his own well-being, or the fact that the mother went out on New Years’ Eve, revisiting that history from earlier this year. Those are not responsive to the mother’s attempts to communicate about the children. For instance, in one of his text messages, the father writes to the mother, “[f]uck off then and stop txting (sic.) me. Clearly said you didn’t wanna be with me I took the kids cause you didn’t want me in the house and you didn’t wanna come home drop it fuck off don’t text me again unless it has to do with our kids and if you’re gonna be calling in 15 minutes good bye”;

(e) While opinions and recollections may differ about whether the mother was diligent enough in her efforts to contact the children after the father’s removal, there is some evidence of her efforts to do so. There is also some evidence of the father’s lack of cooperation. This is not the kind of clear and cogent evidence that could tip the scales; and

(f) While I find that the mother did evade service, she did so only for a period of a few days in late April. And I place this in the context of the father having started this proceeding in mid-March, only not to then take steps to serve the mother for close to six weeks. Nor did he notify the mother of his proceeding at any point prior to trying to effect service, and only after he brought two ex parte motions . Meanwhile, relatively proximate in time to the process server’s involvement, the mother had her Alberta counsel contact Ms. Duggan, and she then commenced the Alberta proceeding. She managed to serve hers, before she was even served with the father’s Ontario proceeding.

[142] Regarding whether the mother unduly delayed “commencing due process” for the purposes of section 22(3) of the Children’s Law Reform Act, in addition to her efforts of consulting with counsel, calling the police and going to the Alberta court house, I find that the mother did not unduly delay because:

(a) Again, by mid-May, before the mother was even served with the father’s Ontario proceeding, she had her Alberta counsel reach out to the father’s counsel. By mid-June, before Ms. Duggan had even served the Ontario material by email, the mother commenced a proceeding in Alberta. It was only then that the father brought his second, ex parte 14B Motion, to have his proceeding dealt with on a more urgent basis. The mother has since participated in the Ontario proceeding (seeking the return);

(b) To the extent that the mother did delay, I find the impact on the children to be lacking to give rise to an “undue delay”. More is said about this below; and

(c) Any delay that occurred in this proceeding after that, post-dates the commencement of the Ontario application. It is also attributable to the Court and scheduling. [12] Notably, there have also been court dates in the Alberta proceeding, that have been adjourned pending an outcome here.

[143] Finally, even on the hybrid test to habitual residence to the extent it applies (see Office of the Children’s Laywer v. Balev ¶ 44-47 ), the children’s links to and circumstances in Alberta, the circumstances of the removal, and the links to and circumstances in Ontario, are not such that the habitual residence is now Ontario. As in Zafar v. Azeem , the children have not yet developed any real connection to school, to community or to friends.

[144] In Zafar v. Azeem , the Court found the fact that the mother had been the child’s primary parent throughout, to be significant. While I acknowledge that the father did stay at home between about February 2023 until the end of the year when he left with them, the mother had also been involved in their parenting these two children throughout their lives. There are complaints from the mother, albeit contested ones, about the quality of care that the father provided when he stayed at home, and the role she had to take on to compensate for that nevertheless, during the period of time that the father was supposedly the primary caregiver after February of 2023, until he left. Without needing to resolve the extent to which each parent was responsible for the children’s care during that time frame, the record as a whole reveals that this is not a situation where the children’s only connection is to the father, as their only primary care giver.

[145] There is very little evidence before the Court from the father, about the children’s relationships in Ontario, whether by the time of his Ontario proceeding, or even if it is a relevant consideration, subsequently. For example, the father has said very little about the involvement of the paternal grandparents since coming here. All that he really said specifically, is that his parents are a “great source of support”, as are unidentified extended friends and other family. Yet he is living in his parents’ house, there was conflict there in the past, and the parents, when they had just one child, were not exactly welcomed in that household.

[146] The father does not even have day care in place yet, despite having had the children in his care in Ontario for the past 10 months by default. He has no plan to work and to acquire the financial resources to make an interjurisdictional parenting plan work.

[147] Quite frankly, while I have focused my delay and acquiescence analysis on the mother here, it does not go unnoticed by the Court, that after he behaved inappropriately by removing the child from Alberta, the father delayed. One can’t help but wonder whether the father’s delay wasn’t somewhat tactical, on the theory that the passage of time benefitted his position, if the children’s established more ties to Ontario. It is hard to imagine that, had the father separated from the mother on January 1, 2024 and brought the matter before a court promptly in Alberta, that it would have authorized an interim relocation to Ontario on this record.

[148] As such, I find the father’s actions and delay to be interrelated and important context when deciding what weight to place on the objectives in section 19 of the Children’s Law Reform Act: see Kubera v. Kubera ¶ 47 . The policy consideration mentioned earlier, “to discourage child abductions and the wrongful removal and retention of children to Ontario as well as to ensure that parenting matters are determined by the jurisdiction to which the child has a closer connection”, is entitled to great weight in the analysis in this case.

B. Analysis and Conclusions Respecting Section 22(1)(b) of the Children’s Law Reform Act

[149] In regard to section 22(1)(b) of the Children’s Law Reform Act, which is the second basis upon which the Court might exercise jurisdiction over the children (where the Court finds the children are not habitually resident in Ontario), that section contains a list of six conjunctive factors. Only if all of these factors are engaged may this Court take jurisdiction to make a parenting order under section 22(1)(b): see Ojeikere v. Ojeikere ¶ 28 .

[150] In this case, subsection (iii) in particular, is fatal to any argument that the father might mount under section 22(1)(b). It provides that there must be “no application respecting decision-making responsibility, parenting time or contact with respect to the child [that] is pending before an extra-provincial tribunal in another place where the child is habitually resident” for the Court to act under section 22(1)(b). In view of the fact that there is a pending proceeding in Alberta, which the mother commenced second (but which she served first), coupled with my finding under sections 22(1)(a) and 22(2), that the children’s habitual residence is in Alberta, section 22(1)(b) is not available to the Court to take jurisdiction in this case: see Ojeikere v. Ojeikere ¶ 31 .

C. Analysis and Conclusions Respecting Section 23 of the Children’s Law Reform Act

[151] Section 23 of the Children’s Law Reform Act provides that the Court may exercise its jurisdiction to make a parenting order if the children are physically present in Ontario and, the Court is satisfied that the children would, on a balance of probabilities, suffer serious harm if (in the circumstances of this case), the children remain with or are returned to one parent or the other, or the children are removed from Ontario. Like many of the other statutory sections that I have referred to and considered in these Reasons for Decision, section 23 is discretionary: see Ojeikere v. Ojeikere ¶ 40 . The father’s onus to make out a case for “serious harm” is a demanding one: see F. v. N. ¶ 69 .

[152] Although the Ontario Court of Appeal held in Ojeikere v. Ojeikere , that the meaning of “serious harm” in section 23 is a less exacting standard than the standard of “grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation” in Article 13(b) of the Hague Convention, the Ontario Court of Appeal still drew some parallels to it, in its decision . Regardless under section 23 of the Children’s Law Reform Act, the Court must still assess the “possibility or risk of harm if the child is removed from Ontario”. To be clear, this is not assessing harm from a past event; rather it is the prediction of future harm. The Court assesses both the likelihood and severity of future harm: see Ojeikere v. Ojeikere ¶ 51-62 ; see also F. v. N. ¶ 73 .

[153] But that is not to say that past events cannot inform the risk of future harm. For example, the Court in Ojeikere v. Ojeikere went on to consider the future risks to the children arising out of the father’s past physical discipline of the children, among others: see ¶ 69-74.

[154] Interestingly though, in this case before me, the father has not squarely raised section 23. Arguably that should end the analysis. Nonetheless, out of an abundance of caution, because he has deposed some evidence of risk in his affidavits and because the mother has also raised in her factum arguments about section 23 (although perhaps she did so in anticipation of the father making submissions under section 23), I will address section 23 anyway.

[155] In her factum, the mother principally argues that section 23 does not apply. If it does, she says the result actually militates in favour of a return order, in view of the “serious and ongoing nature of the harm to be best interests of the children in perpetuating their continued wrongful retention in Ontario following their wrongful removal from Alberta”. But in view of the father’s sworn statements, it seems to me that a risk assessment under section 23 might more concretely revolve around whether there is a serious risk to the children of physical harm, or of psychological harm, if they are returned to Alberta.

[156] In regards to the former, I return to the aforementioned evidence of the father’s, about a number of past physical altercations between the mother and the maternal grandmother. On the one hand, the harms from a child’s exposure to family violence are well known: see Barendgret v. Grebliunas, 2022 SCC 22 ¶ 142 , 143. If the past is a predictor of the future, there could be a risk of harm since, as I explain below, the mother is now living with the maternal grandmother again.

[157] However the extent of the altercations between the mother and the grandmother is very much contested terrain. While both sides said that there was insufficient time to obtain the police records relating to the alleged abduction issue in Ontario in September of 2024, the father had ample opportunity to obtain police records from Alberta. Those police records could have tipped the scales, but the father did not obtain them. Perhaps the Alberta police records might have corroborated the mother’s account of the father repeatedly calling the RCMP in a nuisance fashion, too.

[158] This is a significant gap in the evidence. Given that the father bears the onus here to mount an argument under section 23 and given that he has not even squarely placed section 23 in issue, I find that any gaps in the evidence fall on his shoulders. In my view, the prospect of the children’s exposure to future family violence between the maternal grandmother and the mother is not a risk assessment that I can or should make findings about, under the circumstances on this record.

[159] In regard to the risk of psychological harm, in F. v. N. , Kasirer J. considered the prospect of separation of the children from their primary caregiver could rise to the level of serious harm required under section 23. However the majority decision in F. v. N. authored by Kasirer J. ultimately decided at ¶ 78, that such a separation, “in and of itself and without regard to the individualized circumstances”, will not always rise to the level required under section 23. Finding otherwise could ultimately defeat the legislative objective of discouraging child abduction of very young children.

[160] So while again, I appreciate that the father stayed home with the children from February 2023 until his January 1, 2024 departure for Ontario, and I appreciate that children have been in the father’s sole care since January 1, 2024, as I have already found, the latter was a “self-engineered” situation that the father created. In view of my other findings, about the mother’s involvement in parenting too before that, coupled again with the father’s failure to squarely place section 23 in issue, I fail to see how the children’s return to Alberta (which entails their removal from the father), rises to the demanding standard that section 23 requires.

D. Parens Patriae Jurisdiction

[161] Finally, the mother’s factum sets out why the Court need not resort to its parens patriae jurisdiction. Given that the father has not asked the Court to exercise it either, I need not say anything further about this.

PART V: ANALYSIS AND CONCLUSIONS RESPECTING THE REMEDY

[162] Section 40 of the Children’s Law Reform Act sets out the interim powers of the Court where the Court (a) is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario or (b) has determined that it may not exercise jurisdiction under section 22. Both of these preconditions are engaged in this case, and as such the Court may exercise its interim powers.

[163] The Court’s interim powers are threefold. The Court may make an interim parenting order in the best interests of the child. It may stay this proceeding on the condition that a party commence a similar proceeding before an extra-provincial tribunal, or on such other conditions as the Court determines appropriate. And, it may order a party to return the child to such place as the Court considers appropriate, which includes the power to order travel costs: see also F. v. N. ¶ 94 .

[164] Although the exercise of the Court’s interim powers under section 40 is discretionary (see Zarar v. Azeem ¶ 42 ), the exercise of that discretion is limited by the “interim nature of the s. 40 powers”: see F. v. N. ¶ 96, 97 . After having determined to decline jurisdiction, the Court cannot for example indefinitely delay the return of a child from Ontario. And while the exercise of the section 40 powers are undertaken on a best interests’ basis, the Court should not embark on a detailed analysis of the best interests factors in section 24(3). An order under section 40 is not a parenting order being decided on its merits: see again F. v. N. ¶ 96, 97 .

[165] In this case, likely due to the fact that the issues for the motion also concerned what temporary parenting arrangement and child support should be put in place in the event that the Court found it had jurisdiction, I have been given more best interests’ type evidence than necessary to decide which power to exercise under section 40. While some of it is conflicting and there are gaps (such as the absence of police records), I do not find that there needs to be common ground on every aspect of this evidence, to decide what interim powers to exercise. I find that the evidence is sufficient for the best interests analysis that section 40 requires. Any conflicts or gaps in this evidence can be resolved by the Alberta Court of Justice in the proceeding before it, in the more fulsome best interests analysis that will follow, when the parenting issues are decided on their merits.

[166] For these reasons, and the additional ones that follow next, I have decided merely to make a return Order, and the Alberta Court of Justice can take it from there.

[167] I do so because, in regard to the mother, the record before me reveals that:

(a) As already alluded to, the mother is now living with the maternal grandmother again. This is recent. The mother testified that after the parents’ lease on their apartment ended at the end of April 2024, she lived elsewhere on a temporary basis, until she returned to her mother’s. She is paying her mother rent;

(b) While the mother also testified that she intends to remain there until she can obtain a better job and afford her own place to live, at this point when that will occur, is not known. Nonetheless, the children have lived with the grandmother in the past, and she was involved in their care. While living with the grandmother was unstable in the past, the evidence was that instability occurred when the father was living in the home, too. That will no longer be the case going forward. The Alberta Court of Justice can address further changes to the mother’s residence in the future, if any and as needed;

(c) The mother’s resources are limited, at the moment. She used to work two jobs to support the family, but she is currently only working at one job. But she deposed, and then testified, that she is also retraining to find higher paid employment. She has an adequate plan in the mean time, which includes the assistance of her mother to parent, for example when she has to go to work. Although more details about the mother’s retraining may need to be explored, when compared to what is set out below about the father’s plan, I find that she has better prospects than he does right now, to be able to fund an interjurisdictional parenting plan in the future, if the father chooses not to return to Alberta. In any event the Alberta Court of Justice can address those details too, in due course;

(d) The mother has applied for day care, although like the father, that is not yet in place. But unlike the father, according to the mother, that cannot be put in place until the children are returned to her care, and the day care is then notified that the children are ready to begin. Now some of the mother’s evidence about this, and about the availability of a subsidy to help her defray the cost of day care, turned on hearsay evidence from unidentified sources. Regardless, it is unnecessary for me, at this point, to resolve the conflicting evidence (to the extent it exists), or any gaps in the evidence (to the extent the mother’s evidence was inadmissible), about how quickly day care will be available and what subsidy if any will be available. I say this because of the mother’s other evidence that her current employment has some flexibility, and she will have the assistance of her mother (who also has job flexibility), when she needs to work. If necessary, this too can be fleshed out further in Alberta; and

(e) Although I have decided that the children should return to Alberta, I am nevertheless mindful that the mother has put in her written material that the father should have supervised parenting time thereafter. On the one hand, this request is perhaps understandable, in view of the father’s unilateral and irresponsible actions of removing the children. But on the other hand, but for the surreptitious removal, it is debatable that supervision is required, and imposing supervision would make it difficult for the father to pursue a relationship with the children. The mother’s position on this nevertheless softened during argument. What the father’s parenting time with the children will in the future look like can also be dealt with in Alberta, now that this debate about jurisdiction is resolved, and the parties know that the children will be returned to Alberta.

[168] I do so because, in regard to the father, the record before me reveals that:

(a) By contrast, I have significant questions about the stability of the father’s living situation in Ontario. At the risk of repeating myself, when the family lived together with the paternal grandparents before, the situation was unstable. This was not solely due to the mother’s presence. In addition to conflict between the father and his father, some of the tension arose from the maternal grandmother not wanting additional children in the home. Given the father’s own admissions to these effects, I am left questioning whether the father and the children can remain with the paternal grandparents in the longer term, or whether this will break down;

(b) If the situation breaks down, the father lacks resources. The father is not working. He is in receipt of Ontario works. As ¶ 12 of his factum states, the father has no immediate or concrete plan to obtain paid employment. He does not yet have day care in place as I have already indicated, despite the children’s presence in Ontario for a number of months. It seems that the children’s enrolment in day care or school are pre-conditions to his professed plan, to obtain employment. P. is able to start junior kindergarten, but B. is not;

(c) While both parents’ financial circumstances are modest at this time, I find it significant that the father was the one who removed the children from Alberta, without regard to this reality. I did not find the father’s proposal, that the mother’s travel costs be funded by this Court not ordering the mother to pay him child support (in a scenario where the children remained in Ontario) to be a meaningful solution. The amount of child support that the mother would have to pay, would be a fraction of what the travel costs would be;

(d) I also found it incredibly unhelpful, for the father to then suggest that he should be permitted to file further submissions to better his plan. He knew full well from my Endorsement of September 24, 2024, that all of these issues were on the table, and he came to Court without a workable plan;

(e) While the problem of funding travel costs remains in the scenario that I am ordering (i.e., the children’s return to Alberta), I do not see the parents as being on an equal footing on this issue. Again, it was the father, not the mother, who removed the children from Alberta in haste and in an irresponsible fashion, without having thought these things through. Consequently, it was his actions, and not those of the mother, that led to the geographic distance between the parents, and the need for travel costs;

(f) The bottom line is that he did not have a realistic plan for travel, to enable me to make an interim order for that right now, using the interim powers under section 40. In any event, there is a forum for the fleshing out of his undeveloped plan, in Alberta, once he decides after this release of these Reasons in which jurisdiction he will live; and

(g) I do not find on this record, as the father argued, that if the children are ordered back to Alberta, the mother and the maternal grandmother will not allow contact with him, whereas in an Ontario scenario, he will just allow and arrange for the mother to have visits with the children in Ontario. First of all, there is already evidence before the Court, of the mother allowing the father to come back into the household in the past, after he father left her alone in Alberta, first with P. and then with B. More significantly, in regard to his own willingness to foster a relationship between the children and their mother in an Ontario scenario, his own written material reveals otherwise. His principal proposal was that the mother only have supervised parenting time with the children, in Ontario. That is both unwarranted, and not realistic. He was unable to answer questions about when and how the mother would actually have in person parenting time if his position prevailed, having regard to the financial realities and the distance. The reality is that their relationship would likely end. Notably he even took the position in his written material that the mother needed to have “ police supervision ”, which service the police do not provide, and that there should be a restraining Order against the grandmother, following the September 2024 incident.

PART VI: ORDERS

[169] I make the following part final and part temporary Orders:

Final Orders Pursuant to the Children’s Law Reform Act

(a) A copy of these Reasons for Decision are to be supplied to the Alberta Court of Justice by the parties for the next event in that case, which is proceeding on November 19, 2024;

(b) The temporary without prejudice Orders of Jarvis J. dated June 26, 2024, as varied by Shaw J. on August 12, 2024, are vacated;

(c) On a final basis, this Court finds that the children’s habitual residence is Alberta pursuant to section 22 of the Children’s Law Reform Act. Except for the exercise of this Court’s interim powers and to deal with costs, this Court therefore declines jurisdiction over the subject matter of this case;

(d) Subject to further Order of this Court, this proceeding is stayed, but not the Orders being made herein. The stay does not apply either, to the extent that further Orders may be needed to implement the temporary Orders set out below, and the Court still has to deal with costs;

Temporary Orders Pursuant to the Children’s Law Reform Act

(e) On a temporary basis, pursuant to section 40 of the Children’s Law Reform Act, the mother shall make immediate arrangements to travel to Ontario to pick the children up and to transport them back to Alberta;

(f) Within 7 days, counsel for the mother shall communicate to counsel for the father the mother’s travel plans, and counsel are to coordinate a date and time for the children to be handed over to the mother. The father is specifically ordered to make the children available on that date at a reasonable time, when the mother comes to Ontario, and not to interfere with or jeopardize the mother’s travel plans in any way;

(g) The Court cautions the parties not to involve the police unnecessarily. They are to sort out these logistics between counsel. However if there is any non-cooperation from the father, then the mother is authorized to telephone the police for assistance. For that purpose, there shall be an order that any police force, having jurisdiction in any area where it appears that the children may be, shall locate, apprehend and deliver the children to the mother;

(h) The father’s consent to the children’s travel with the mother to Alberta is not required and it is dispensed with;

(i) Pending further Order of the Alberta Court, the children shall reside primarily with the mother, in Fort McMurray, Alberta;

(j) If any further Orders are required to give effect to these terms, for example if there is any non-cooperation, I may be contacted by way of urgent 14B Motion or by way of urgent motion;

(k) For clarity, nothing in this decision ousts the jurisdiction of the Alberta Court of Justice to make temporary or final parenting Orders following the children’s return to Alberta, under the applicable legislation in Alberta;

Directions Respecting Costs Pursuant to the Family Law Rules

(l) The parties should be settling costs, including the mother’s travel costs to come to Ontario to retrieve the children, and to return them to Fort McMurray Alberta;

(m) If despite this direction, the parties cannot agree on costs, then the mother may file costs submissions in writing, limited to no more than 3 pages, double spaced, using 12 point font. She may attach a Bill of Costs and copies of any Offers to Settle, that do not count towards the page limits. Case law need not be provided with the submissions, but any law to which the mother wishes to refer shall be hyperlinked in the written submissions of no more than 3 pages. The mother’s written submissions and attachments shall be served and filed by November 28, 2024; and

(n) The father shall serve and file his written submissions about costs, subject to the same restrictions on length, attachments and case law, by December 13, 2024 .

Justice Alex Finlayson Released: November 12, 2024

COURT FILE NO.: FC-24-449-00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Daniel William Pengelly Applicant Father – and – Ainsley Helena Lynas Respondent Mother

REASONS FOR DECISION Justice Alex Finlayson Released: November 12, 2024

[1] In contrast, Article 12 of the Hague Convention provides better guidance when it comes to the concept of what might constitute an inappropriate delay. It very clearly maps that a year-long period to commence a proceeding. After that, a return may still be ordered, unless the child is now “settled in its new environment” (subject also to the Article 13 exceptions).

[2] According to the mother, the maternal grandmother has lived and worked in Fort McMurray for some time. She says the grandmother has had the same job since 2018, as a Heavy Equipment Operator, which involves driving a haul truck on the oilsands mining sites. The mother says that the grandmother owns a house there, and has stable, well compensated employment.

There is a factual dispute about the location of the maternal grandmother’s employment, although this has greater relevance to the merits of the mother’s parenting plan, not to the jurisdiction issue. For example, the father claimed in his affidavit sworn October 8, 2024, that the grandmother “moves around – from Ontario to Las Vegas to Alberta – as a truck driver”. Again, the mother says that her grandmother works solely in Fort McMurray.

[3] In his Reply affidavit of October 22, 2024, the father denies that he removed the smoke detector or that he used “prohibited substances”, saying that both he and the mother only smoked marijuana.

[4] This hearsay statement does not comply with rule 14(19) of the Family Law Rules . The source of the information is not identified. I am also uncertain which “children” are being referred to, as B. was not yet born.

[5] Incidentally, this is another piece of evidence from the father, that lends some credibility to the mother’s assertion that the father repeatedly called the RCMP.

[6] This is another violation of rule 14(19) .

[7] In his Reply affidavit of October 22, 2024, the father argues that the bank record does not detail what was purchased, and argues that the superstore sells other non-food items.

[8] In his Reply affidavit of October 22, 2024, the father argues that the mother probably made the mess, in reaction to him leaving, and that he did not leave the apartment like that.

[9] While service of an originating proceeding by email needs to be approved under Ontario’s Family Law Rules, I do not know whether this was “improper” service in accordance with the applicable rules of procedure in Alberta.

[10] These are yet more references to hearsay from another unidentified source.

[11] In particular, see ¶ 18 of the father’s affidavit sworn October 8, 2024.

[12] See Volgemut v. Decristoforo , 2021 ONSC 7382 ¶ 143-148 . Although Audet J. was considering another jurisdictional provision under the Children’s Law Reform Act, she nevertheless held that ties developed due to the passage of time required to get the matter adjudicated did not lead to a real and substantial connection to Ontario.