We have blogged a number of times over issues concerning the habitual residence of a child and how courts determine whether they have jurisdiction to rule on issues relating to children whose parents may live in different countries, or who themselves spend time in different countries. A recent case heard before the Ontario Court of Justice highlights the complexities courts can face in attempting to determine whether they have jurisdiction over certain situations and showcases the impact such questions can have in reaching a speedy resolution to a custody matter.

The facts

The father and mother met in British Columbia in the Winter of 2011. In July of that year the mother returned to Japan, where she as from. The father joined her in September after obtaining a one-year working visa. It was at this time they began to live as a couple. They were married in Japan on August 31, 2012. Their son was born on April 4, 2014.

The father returned to Canada in April 2016. The mother and son came to visit him in August 2016. While she had to leave her job in Japan, her employer had told he she would be rehired upon her return, which she planned to do in September or October of that year. The couple’s relationship began to deteriorate once the mother and son arrived in Canada. The mother testified she was worried the father would call the police to alert them she was in Canada illegally and that she might be forced to return to Japan without the child.

On November 8, 2016, the mother discovered that the father had taken all of her credit cards, cash, and her son’s passport. After calling 911 she and her son moved temporarily into a transition home. Following this incident the father commenced the proceedings before the court. He explained he was worried the mother would leave Canada with their child. A temporary order was made, requiring the child to stay in Canada.

In May 2017 the mother made an order of her own, seeking permission to return to Japan. She argued it was in the best interest of the child. She told the courts she was worried her and the father would not be able to come to an agreement and that the attempts to extend her Visa would be denied. While she explored applying for permanent residency status, the process of doing so could take over two years. As a result of this a mobility motion was granted on August 18, 2017. The mother confirmed that she would be leaving the country on August 31, 2017, with the father planning to follow shortly thereafter.

Motions continue to be filed in Canada

Despite both parties living in Japan, courts in Ontario continued to work with the couple. By this time, the court had been involved in the situation a dozen times. This led the court to ask itself on June 21, 2018 whether it had jurisdiction to continue dealing with the matter.

The court looked at Section 22 of the Children Law Reform Act which states,

A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a)  the child is habitually resident in Ontario at the commencement of the application for the order;

(b)  although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.  R.S.O. 1990, c. C.12, s. 22 (1).

The requirement for all six of these conditions to be met in order for a court to have jurisdiction over a child not habitually resident in Ontario was reinforced in a 2002 Court of Appeal for Ontario decision.

The court found that the criteria had been met while the parties were living in Canada. The court wrote,

“The child and both parties were physically present in Ontario and the balance of convenience clearly dictated that the matter proceed in Ontario as the issue of ongoing access, temporary child support and the eventual issue of mobility be decided here.  As the parties and the child were physically in Ontario, the substantial evidence concerning the best interest of the child was also available. The parties were not before any other tribunal or courts in either Canada or Japan and do to their physical presence in Ontario, the child had a substantial connection to Ontario.  Therefore, this court clearly had jurisdiction to deal with the matter on a temporary basis as it did.”

However, since the six criteria were no longer met, the court held it no longer had jurisdiction to deal with the matter.

If you have questions about child custody or support arrangements, including questions around the habitual residence of a child, call Windsor family lawyer Jason P. Howie at 519.973.1500or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.