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.
Ontario Divorce Lawyers for Highly Complex Cases
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divorce or
family law dispute? Come to Feldstein Family Law Group P.C. for all of the compassionate
and insightful legal guidance you need. Backed by 25+ years of legal experience,
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best interests of yourself and your children.
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(905) 581-7222 today to learn more about our services.