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Family - Parenting - Geographical Jurisdiction. Los v. Ross
In Los v. Ross (Ont CA, 2024) the Court of Appeal considers a family law parenting dispute, here over jurisdiction between Ontario and Quebec:[1] The issue on this appeal is whether Ontario, rather than Quebec, has jurisdiction to decide the parties’ family law dispute. The appellant father, Guillaume-Alexandre Ross, appeals an order that the Ontario court has jurisdiction to make parenting time, decision-making responsibility, and child support orders.
[2] The motion judge concluded the court has jurisdiction because the parties’ child was habitually a resident of Ontario. She found that the father tacitly consented or acquiesced to the respondent mother, Nikkie Los, moving the child from Montreal to Ottawa after the couple separated.
[3] The father submits that the motion judge erred in considering matters that occurred after the mother commenced her application in Ontario and that the evidence did not support a finding that he tacitly consented or acquiesced to the child’s move to Ontario between the time of the separation and the commencement of the application.
[4] I disagree that the motion judge erred in finding that the father tacitly consented or acquiesced to the child’s move to Ontario. This inquiry is contextual and fact specific. While the motion judge did err in viewing the father’s consent to an interim order made in the context of the Ontario proceedings as evidence of his acquiescence, her other findings on the evidence as a whole support her conclusion that the father tacitly consented or acquiesced to the child habitually residing in Ontario. In this case, while the time between the separation and the beginning of the proceedings in Ontario was relatively brief, the father’s actions during that time supported the motion judge’s conclusion.
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C. STATUTORY FRAMEWORK
[24] Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), governs the issues of parenting time and decision-making responsibility.
[25] Section 22 of the CLRA sets out the circumstances under which a court in Ontario has jurisdiction over parenting and contact orders. Section 22(1)(a) specifies that the “court shall only exercise its jurisdiction” over such orders where “the child is habitually resident in Ontario at the commencement of the application for the order”. Section 22(2) defines a child’s habitual residence as including where a child resides in Ontario with one parent with the other parent’s “consent, implied consent or acquiescence”:(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
1. With both parents.
2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
3. With a person other than a parent on a permanent basis for a significant period of time. [Emphasis added.] [26] Section 22(1)(b) also provides that a court in Ontario can exercise jurisdiction where a child is not habitually resident in Ontario but the court is satisfied that the following circumstances exist:(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [27] Section 22(3) specifies that a child’s habitual residence is not Ontario where the child has been taken to Ontario in the following circumstances:The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. [28] Finally, s. 23 of the CLRA provides that, despite s. 22, the court in Ontario can exercise its jurisdiction over a parenting or contact order where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm if:(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario. [29] As noted by the motion judge, in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal refused, [2012] S.C.C.A. No. 348, at paras. 9 to 13, this court specified that there are four different circumstances in which a court in Ontario has jurisdiction to make an order respecting child custody (now referred to as parenting time and decision-making responsibility) under the CLRA:The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.
Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
Third, under s. 23, a court has jurisdiction to make an order for custody 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 the Act.
Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA. [30] In this case, it is the first circumstance that is relevant. Specifically, whether the motion judge erred in finding, pursuant to ss. 22(1)(a) and 22(2)2 of the CLRA, that the child was habitually resident in Ontario with the implied consent or acquiescence of the father.
[31] In Zafar v. Azeem, 2024 ONCA 15, at para. 74, this court recently stated that the test for determining a child’s habitual residence under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, applies equally to determining a child’s habitual residence under the CLRA. In Balev, the Supreme Court held that, in determining a child’s habitual residence under Article 3 of the Hague Convention, courts should adopt a “hybrid approach” that looks to “all relevant considerations arising from the facts of the case at hand”, including the child’s situation and the parents’ intentions, especially where the child is an infant: at paras. 42-47. The court emphasized that “there is no legal test for habitual residence and the list of potentially relevant factors is not closed”: at para. 47. In other words, each case must be decided on its own facts and circumstances.
[32] While this case focuses specifically on whether the motion judge erred in finding that the father tacitly consented or acquiesced to the child’s habitual residence being in Ontario, this inquiry also requires an examination of the context and circumstances of the child’s move to Ottawa, including evidence of the father’s intentions based on his words and actions.
[33] Given that this is a factual inquiry, absent a legal error, this court owes deference to the motion judge’s decision, and will only interfere if she made palpable and overriding errors.
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[38] Section 22(1)(a) of the CLRA explicitly provides that the Ontario court has jurisdiction if “the child is habitually resident in Ontario at the commencement of the application for the order”. Implicitly, this means that the father’s conduct following the beginning of the application is presumptively not relevant to this determination. This makes sense given that a parent who has consented to a child’s move prior to the beginning of an application should not be able to affect the applicable analysis by withdrawing consent after the commencement of an application. Conversely, as in this case, consent to an interim parenting order should not prejudice a parent contesting jurisdiction as this could have significant consequences on that parent’s parenting time pending the determination of a jurisdiction motion.
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[44] Finally, the father suggests that the motion judge erred in failing to apply s. 22(3) of the CLRA. Specifically, he argues that the mother unlawfully took the child to Ontario without his consent, thereby wrongfully removing her, and that, in accordance with s. 22(3) of the CLRA, the child’s removal to Ontario should not affect the fact that her habitual residence is Quebec. In making this argument, the father relies on the Supreme Court of Canada’s decision in F. v. N., 2022 SCC 51. In my view, s. 22(3) of the CLRA has no application in this case. The core of the dispute between the parties on the issue of jurisdiction was whether the father tacitly consented or acquiesced to the child’s move. I see no error in the conclusion that he did. In any event, there is no evidence that the mother surreptitiously took the child to Ottawa with the intention of preventing the father from seeing her. The father was aware that the mother moved to Ottawa with the child. He visited her while she was there, and the mother returned to Montreal regularly so that the father could spend time with the child. It is evident that the father consented to the child going to Ottawa with the mother. The issue was whether he tacitly consented or acquiesced to Ottawa becoming the child’s habitual residence. Section 22(3) is irrelevant to this case.
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