A child custody case involving two habitual residences across borders recently caught the attention of family lawyers far and wide. The mother in the case was a Canadian citizen who resides in Toronto, with no status in the United States other than that of a visitor. The father was an American citizen who resides in Buffalo, New York. The parties were engaged in a long distance relationship.
Together, the mother and father share three children, the eldest is six and the youngest is two. One of the children suffers from severe developmental disabilities, and requires long term medical care. Most of this care has been received through SickKids Hospital in Toronto. The children have spent the majority of their life in Toronto with their mother, and traveled to Buffalo for some weekends with their father.
In July of 2017, the parties agreed that the mother and children would move to Buffalo to live with the father, returning to Toronto every weekend and holiday. The relationship broke down a year later when the father assaulted the mother in the presence of the children. The mother obtained an ex-parte restraining order and custody order from the Buffalo court. The father then made a cross-application for custody. The court in Buffalo ordered that the children were not to be removed from Buffalo.
Notwithstanding that order, the mother, while the children were still in Buffalo, applied for an ex-parte order in Ontario to give her temporary custody of the children. She commenced an ex-parte temporary protection order for custody in Toronto immediately after the father breached the restraining order. However, she did not disclose to the Ontario court the fact that she had also begun proceedings in Buffalo. As a result of obtaining the ex-parte order in Ontario, the mother immediately returned to Toronto with the children.
When Two Court Jurisdictions Conflict
Justice Zisman was faced with the task of determining whether Ontario could claim jurisdiction over this matter when there was an existing court process already commenced in Buffalo, and an Order stating that the children were not to be removed from that jurisdiction. She turned to section 22 of the Children’s Law Reform Act to determine whether the children were habitually resident in Ontario. The mother argued that the children had two habitual residences, and the judge cited several precedents where courts have established that children can have consecutive, alternating habitual residences.
Upon review, Justice Zisman found that the Toronto court had jurisdiction in the matter under section 22(1)(a) of the CLRA on the basis of habitual residence. The children’s doctors and dentists were all still located in Toronto, and the mother had maintained her status and residence here. She had not applied for any form of status in the U.S. and had, for all intents and purposes, maintained ties to Toronto.
Her Honour went further to say that even if she was wrong in her application of section 22(1)(a), she maintained jurisdiction of the matter under section 23 of the CLRA, since the children were present in Ontario at the time of this court appearance, and would suffer emotional harm if returned to New York. Given that the mother was a non-resident, she could not work in the U.S. She also had nowhere to stay, and would be couch surfing with friends while trying to care for a sick child, who would not be able to access free health care at SickKids. This truth, in addition to the fact that there was a restraining order in place, and the father was only permitted telephone access to the children, was enough to persuade Justice Zisman that it was in the best interests of the children to remain in Toronto. In this jurisdiction, the children have a home and their maternal family as a support system. She therefore ordered that the children not be removed from Ontario, in direct contradiction to the order currently in place in New York.
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