The parties in this matter were habitually resident in Quebec until October 2022, when the mother left the province with the child to her parents’ home in Ontario. The mother did not provide notice to the father. She submitted that she had to leave due to family violence, namely the father’s coercive control over the mother and child. According to the mother, the father was irrationally concerned about COVID and had essentially held her and the child hostage since the start of the pandemic, for over two years. The child had not seen a health care professional during this time and the family never left the home.
On the other hand, the father alleged that the family’s precautions surrounding the pandemic were a joint decision. Furthermore, he stated the mother was to blame for the child not having been vaccinated and for not having received medical attention. He claimed that he would have been fine with easing the mutually-agreed-upon restrictions, had it been suggested.
Should the Court take jurisdiction over the parenting issues in this matter, as requested by the mother?
The mother relied on the ‘exceptional circumstances’ in this this case in asking that the court assume jurisdiction. She also relied upon section 23 of the Children’s Law Reform Act (CLRA):
s. 23 - Serious harm to child
Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, 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.
The Court stated that the test under this section required a less onerous finding of “serious harm”, compared to the threshold for “intolerability” that must be established if a party seeks to rely upon the Hague Convention. Nonetheless, s. 23 of the CLRA was historically used in situations where children were abducted from countries that were not signatories to the Hague Convention. As such, s. 23 could not be relied upon in domestic inter-provincial child abduction cases.
The Court highlighted that the “best interests of the child” principle is a core principle in section 16 of the Divorce Act, and that it was confident that the Quebec Superior Court would comply with its statutory obligation to consider the best interests of the child when making the parenting order in this matter.
The Court declined to take jurisdiction for the time being. It found that it would assume jurisdiction if there was an order from the Quebec Superior Court declining its jurisdiction, as the mother had requested in Quebec. Consequently, the mother’s application in Ontario was stayed.