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Old 05-04-2012, 02:56 PM
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Default Habitual Residence - Jurisdiction - Forum Shoping

Hi All,

A recent decision has popped up recently on CanLII that many people may be interested in:

Date: 2012-04-04
Docket: D55674/11
URL: CanLII - 2012 ONCJ 187 (CanLII)
Citation: Pearson v. Whittingham, 2012 ONCJ 187 (CanLII)

CanLII - 2012 ONCJ 187 (CanLII)

It is a well written decision form Justice Ellen B. Murray regarding "habitual residence" and the "court of competent jurisdiction" for hearing matters.

The case involves a parent (Respondent/Mother) who left the child's "habitual residence" and tried to establish "defacto custody" by doing so by moving to another jurisdiction without notifying the other parent (Applicant/Father).

The left behind parent (Applicant/Father) in Ontario brought forward a motion and it was established that the other parent's (Respondent/Mother's) decision to leave the jurisdiction does not establish "habitual residence" or "defacto custody".

The key element to this decision is the time frame in which the Applicant brought forward the motion. It was several months after the other parent had left the jurisdiction.

This is important for *all* parents who have had the other parent move to another jurisdiction be it in another province, country or even another court jurisdiction without consent of the other parent or a court order.

This is known generally in the legal community as "forum shopping". It could be as simple as a parent who wants to "move to the city" from a suburban environment and often happens.

Many parents do this in the "Greater Toronto Area" by moving with children (without consent) from surrounding jurisdictions (Hamilton, Peel, Durham, York, etc...) and attempt to file motions in the Superior Court of Toronto even. Many litigants and their solicitors believe that the "Greater Toronto Area" is a legal term and that it applies legally to surrounding cities many times. The last time I checked Hamilton, Durham, Peel, et all... have Superior Courts (Family Law) as well and these courts are now returning matters (as they should be) to the competent court of jurisdiction for which children were "habitually resident" prior to the hearing of the matter.

In many cases, a parent, especially if they do this with the assistance of a solicitor, should be charged with child endangerment/abuse/neglect under section 283.(1) Abduction of the Criminal Code of Canada. The attempts to "forum shop" are transparent and most, if not all judges are well versed in the requirements under the Children's Law Reform Act. (Footnoted in the decision by the judge as moving to a new jurisdiction "absent a provision allowing the custodial parent this authority in an agreement or order" to do so...)

What differentiates this case from others I have seen is that it is specifically centred around "forum shopping", removing children from the jurisdiction they "habitually resided" in and the attempt to create "defacto custody".

Justice Ellen B. Murray was very clear in the analysis of the situation and the factors when considering a child's "habitual residence".

Key quotes:
“Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children.”
[18] I dismiss the Respondent’s motion.

[19] Although not necessary to resolve the motion, I wish to comment upon another submission made by the Respondent: that absent a court order or separation agreement providing for specified access, or prohibiting a change of a child’s residence, a custodial parent is entitled to determine the place of a child’s residence and to change that place, and thus to determine the jurisdiction for any future litigation concerning the child. Respondent’s counsel cites two cases in support of this proposition, Wright v. Wright, 1973 CarswellOnt 148 (C.A.) and Wickham v. Wickham, 1983 CarswellOnt 313 (C.A.).

[20] I question whether these cases accurately represent the current state of the law in Canada, in the light of the decision of the Supreme Court of Canada in Gordon v. Goertz, (1996) S.C.J. 52.[1] The court in that case rejected the use of “mechanical propositions” (such as that proposed by the Respondent) to determine issues of mobility of children:
“Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining."

[21] The court held that the best interests of the child is the only test in such cases.

[22] Gordon v. Goertz was a variation case heard under the Divorce Act. Its principles, however, have been applied to mobility cases of first instance and cases under provincial statutes.[2]
Key point: the Respondent's (Mother's) attempt to establish jurisdiction in Alberta by moving without consent or a court order to Alberta was dismissed. The matter is now being heard in the competent court of jurisdiction in Ontario.

Parents need to realize that when they take the law into their own hands and try to establish new habitual residency for children in manners like this the court will correct the problem.

Another revision to the CLRA to clarify what constitutes abduction and penalties for doing so (loss of custody/access) needs to be amended. This is happening too often before the courts these days and better provisions for Judges to act on this kind of conduct needs to be put in place. Furthermore, better provisions for parental abduction should be put in place to further discourage parents from abducting their children in these manners and to make them rationalize their decisions better.

Good Luck!
Tayken

Last edited by Tayken; 05-04-2012 at 03:11 PM.
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Old 05-04-2012, 03:23 PM
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As most active members of the forum have probably guessed... I am not a fan of using children as pawns and when parents attempt to establish "status quo" through methods like this one.

My warning to parents who take children and commitment to the parents who have this happen to them:

I don't know who you are. I don't know what you want. If you're looking for sole custody, I can tell you I don't have money... but what I do have are a very particular set of skills. Skills I have acquired over a very long career. Skills that make me a nightmare for people like you. If you think before you act and don't make children pawns in family law, that will be the end of it - I will not look for you, I will not pursue you... but if you do, I will look for you, I will find you... and I will stop you from doing it!


(Quote "taken" and modified from the movie of the same name: "Taken".)

Good Luck!
Tayken

Last edited by Tayken; 05-04-2012 at 03:26 PM.
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Old 05-04-2012, 03:57 PM
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^ good movie, saw it
These revisions are excellent, forward-thinking steps.
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Old 05-05-2012, 08:21 AM
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Investigating the differences between "habitual residence" and "primary residence":


"Habitual"

Habitual - Definition and More from the Free Merriam-Webster Dictionary

1: having the nature of a habit : customary

2: doing, practicing, or acting in some manner by force of habit

3: resorted to on a regular basis

4: inherent in an individual

— ha·bit·u·al·ly adverb
— ha·bit·u·al·ness noun

"Residence"

Residence - Definition and More from the Free Merriam-Webster Dictionary

1

a : the act or fact of dwelling in a place for some time
b : the act or fact of living or regularly staying at or in some place for the discharge of a duty or the enjoyment of a benefit

2

a (1) : the place where one actually lives as distinguished from one's domicile or a place of temporary sojourn (2) : domicile 2a
b : the place where a corporation is actually or officially established
c : the status of a legal resident

3

a : a building used as a home : dwelling
b : housing or a unit of housing provided for students

4

a : the period or duration of abode in a place
b : a period of active and especially full-time study, research, or teaching at a college or university

— in residence
: engaged to live and work at a particular place often for a specified time

More on "Habitual Residence":

2. What does the term "habitual residence" mean? - The Meaning of Ordinary Residence and Habitual Residence in the Common Law Provinces in a Family Law Context
Habitual residence - Wikipedia, the free encyclopedia
Hague Convention on the Civil Aspects of International Child Abduction - Wikipedia, the free encyclopedia
http://www.riverdalemediation.com/pd...ctionCases.pdf
The Meaning of Ordinary Residence and Habitual Residence in the Common Law Provinces in a Family Law Context
Habitual Residence Definition
Habitual Residence Tied to Child's Custodial Parent | By Toronto Family Lawyer

VERSUS


"Primary"

1: first in order of time or development : primitive

2

a : of first rank, importance, or value : principal
b : basic, fundamental
c : of, relating to, or constituting the principal quills of a bird's wing
d : of or relating to agriculture, forestry, and the extractive industries or their products
e : expressive of present or future time
f : of, relating to, or constituting the strongest of the three or four degrees of stress recognized by most linguists

3

a : direct, firsthand
b : not derivable from other colors, odors, or tastes
c : preparatory to something else in a continuing process
d : of or relating to a primary school
e : of or relating to a primary election
f : belonging to the first group or order in successive divisions, combinations, or ramifications
g : directly derived from ores
h : of, relating to, or being the amino acid sequence in proteins

4: resulting from the substitution of one of two or more atoms or groups in a molecule
; especially : being or characterized by a carbon atom having a bond to only one other carbon atom

5: of, relating to, involving, or derived from primary meristem

6: of, relating to, or involved in the production of organic substances by green plants

7: providing primary care


"Residence"

(See above definition)

More on "Primary Residence":

Primary residence - Wikipedia, the free encyclopedia

"The primary, or principal, residence is one where the child lives. In other words, this is where the child spends most of his/her time. For example, parents may have joint custody of the child but the child may spend the majority of the time with the mother or father, thereby having his/her primary residence with that parent."

Child Custody : Canadian Divorce Laws

NBDad:

"Primary Residence is for determination of the school zone, particularly where the parties live in two difference zones.

Residential Care and Control - in cases of joint/shared custody is the person with the final decision making authority unless 1. otherwise stated and 2. short of a court order brought forth by the other party.

If you have "sole" custody, you automatically are designated primary residence."

http://www.ottawadivorce.com/forum/f...esidence-9917/

(Google search brings this one top of the search these days. Looks like a lot of people internationally read this link to determine what "primary residence" is. )

Minor Children - Primary Residence and Contact | Divorce Attorneys | Specialist Divorce Attorneys

From the quick scan through Google there is a lot more information on the definition of what constitutes "habitual residence" but, the information is limited on "primary residence". If anyone has any additional research on "primary residence" and what constitutes a "primary residence" please feel free to share.

Good Luck!
Tayken
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Old 08-04-2014, 02:29 PM
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X wanted me out after breakup. Started looking for new residence. We agreed children would reside with me primarily and a schedule was nearly agreed on.

Disclosed various properties to X that I was considering, most of which X deemed *not good enough* for one reason or another.

Kept looking. X pressured to know all properties I viewed, even those I canvassed online. I stressed that I would disclose serious properties I was considering with offers and keep X updated throughout process as I was obligated. Why was it necessary for X to insist discussion and review of every MLS, Kijiji, or Craigslist property I clicked on?

Finally found one close by (less than 5 minutes away) that met *all of X's requirements* and that I would provide the information within days and definitely prior to moving (legal obligation).

I had found daycare for the children, one on a short waiting list so that I could go back to school and retrain within weeks.

X inquired if that was where I had been with the children that evening. Informed X the children had viewed the property several times and loved it but needed to finish the paperwork.

...............

Weekend passed.

Application for course underway. Had already gathered the education documents required by the school.

Paperwork for property getting addressed to be signed.

Paperwork with lawyer getting drafted.

X behaviour bizarre but tried to ignore.

...............

Then that night I was served. Motion without notice.

Police enforcement. Removal of the children that had been in my sole care that entire weekend and that entire day (SAHM) while X was out (children hadn't seen X in days). Restraining order for *the children's protection.*

Alleged out of province abduction attempt.

I was in shock. Stayed calm in front of the children. Hugged them. Kissed them. Told them to be good and that I would see them soon. Held it together until X and police enforcement cleared out of driveway. I didn't want to scare the kids more than they were.

What was my legal misstep here?

Showed up to court with Lease Agreement. Court not happy with X. Notes to X that correspondence between us about my property search had dated back quite some time.

Then X alleged other *problems with me* (I was successful in much of what was alleged in the Application). More BS. Wasn't prepared to disprove the new allegations.

X got interim custody. Delayed all but one court appearances since. Nothing more has been litigated.

I continue to reside less than 5 minutes away. I'm going back to school like I said.

X's most recent court document changes from *out of province abduction attempt* to *removal of the children to places unknown.*

My legal issue. If X had allowed another day, the information would have been provided through counsel as I had repeatedly stated I was legally obligated to. OCL and CAS investigated this allegation (amongst others). Reports are favourable to me.

What other evidence other than what the Court has already seen (previous correspondence, investigation reports) is needed since X now pushes the *to places unknown*?

Is a case conference the appropriate place to question X's credibility?
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Old 08-04-2014, 05:27 PM
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I find it unusual that you were legally obligated to check with your ex on places to live. How did that happen and what, specifically, is the wording of the order? I was with the understanding that Orders simply directed that children not be moved away from the habitual residential area but I've never heard when a separated couple have to receive endorsement from each other regarding the residence they want to move to.
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Old 08-04-2014, 06:08 PM
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Out of courtesy, I shared what properties I was seriously considering. All of them were within the jurisdiction. The furthest was 15 minutes away.

Children young and not in school or daycare etc. to worry about uprooting from *habitual residential area* and all furniture and toys were my property or my older children's property passed down to the younger children, so familiarity in the sense of *habitual environment* would closest mirror wherever I moved to. X and I discussed this. It became one of the reasons primary residence would be with me and the children have been in my full time care since birth. This was not an issue from the beginning of separation and it was agreed it would disrupt the children the least. Like I said, the schedule we were negotiating was nearly complete as well.

X then became agitated and demanding about where I could move (15 minutes was too far away, pets allowed, how many bedrooms, square footage, laundry facilities, backyard, number of other tenants, schools in the area and schools' EQAO standings, daycare availability, amenities). It became very tense.

Concerned parent with rights? Or controlling X?

I had been very forward about the few serious properties I considered. I did not comply or think it reasonable that X demanded to know about all other properties I canvassed in between which were mostly online.

At the same time, X demanded a timeframe for moving out. A lot of pressure, a lot to do with children in my full time care plus nights and weekends X would be out or out of town. There was packing and collecting boxes too.

In the last 4 weeks of cohabitation, X threatened to call the police to have me removed from the home. Not a pleasant experience.

When I finally found one (where I currently reside), I let X know and that I would forward the information after that weekend. That's what I thought I was legally obligated to do. X knew it was nearby and that the children had been to it several times (viewing with tenants, viewing empty, drop off of documents).

Since it was less than 5 minutes away and it met all other *requirements* based on all the other properties we discussed, I thought it wouldn't be an issue. A simple letter from lawyer was pretty much all that was required of me to be legally safe. That's at least what I thought. I should have known better but do not know where I did anything wrong in the legal sense for the outcome.

X launched application with emergency motion without notice immediately following that weekend. Very first allegation addressed (one of many) *out of province child abduction attempt.*

Aside from X launching case a day ahead of when the information would've been disclosed with a full parenting plan (what X had wanted, to keep it out of court), I accommodated pretty much all of X's requirements. How could I have done this differently?

Incidentally, X has complained in court that my selection of residence is *lavish*... The court explained that those are the rents in the area. And TBH it's not like I had much choice considering the list of *requirements* X imposed to secure a home where the children could be close enough to both parents, etc etc etc etc.

I think now that I was doomed no matter where I relocated. Why was I so accommodating?
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Old 08-04-2014, 06:59 PM
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Quote:
Originally Posted by arabian View Post
I find it unusual that you were legally obligated to check with your ex on places to live.
I'm confused. Am I not legally obligated, with or without court order, to inform or propose where I will be moving with the children specially since it was understood and agreed the children would have primary residence with me?

It's senseless X went through the property considerations with me in such detail, confined my choices based on lengthy discussions, if X intended to launch the case. By cooperating to the *requirements* stipulated by X, I thought it would be no issue to relocate.

I'm sorry but that was my understanding to avoid abduction charges.

The fact X beat me by less than a day when the information would fairly be provided, I wonder if all the pressure I experienced about *a time frame* and *let's avoid court and do this ourselves* was on purpose.
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Old 08-04-2014, 07:24 PM
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You likely need a lawyer (definitely needed one when your children were taken away).

Quit bowing to what your ex wants. It stands to reason that you can't up and move out of province with your children without prior approval from the court. It also stands to reason that you would probably like the kids to not have to go through a lengthy time/commute when they visit their father. You have the right of privacy. You don't need prior approval from your ex to rent/buy a place. That's just ludicrous. Your ex sounds like an absolute control freak, unless you did indeed try to leave with the kids at some time. Do you have family who live nearby?

You can always post on this forum and ask people for advice.
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Old 08-04-2014, 07:45 PM
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No, I never tried to leave with the children. X threatened several times that I had no rights to the children and that X could leave with them at any time.

A Jeckyl and Hyde experience. One day there were these types of threats specially during argument, other days we could reach some agreement. I always felt pressured.

I worked hard to avoid conflict as per X's *expectations to avoid court* (what a hypocrite!). As it unfolds in family court its frustrating so much time has passed to create a new *status quo* which was indeed falsely created. Time and again, X has adjourned with claims of unpreparedness. Delay strategy? How long can this go on?

I have a CC coming up. I don't know if I should bring with me any evidence based on X's brief that's riddled with new allegations and claims (some of them conflict with the accusations in X's application). As I mentioned, the application alleged *out of province child abduction attempt* but the brief alters that to *remove the children to places unknown.* Is this enough to point out to the court that questions credibility?
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