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:
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
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]
[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
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