Background Facts
The parties were married in 2008 and had one child together. After obtaining a divorce by the High Court of Justice in France, the child’s primary residence was ordered to be with the Applicant. In 2016, the High Court of Justice in France permitted the Applicant to relocate from France to Toronto and granted the Respondent parenting time during the child’s school breaks, including for the last 6 weeks of the summer holiday.
After developing concerns regarding the child’s upcoming visit to France, the Applicant brought an urgent motion for interim relief requiring that the Respondent exercise his parenting time in Toronto or in the alternative, an order suspending the Respondent’s parenting time for as long as the Travel Advisory remains in effect.
There are two issues that were addressed during this motion; (1) Whether the Ontario court has jurisdiction over the matter; and (2) Whether the court should varying the Parenting Order on an interim, without prejudice basis.
Legal Analysis
The court began by addressing the issue of urgency. Given the child’s fast approach trip to France and that the Respondent had contacted the police in France regarding the Applicant’s alleged non-compliance with the order, the matter was need sufficiently urgent.
The Court then addressed the jurisdiction issue with reference to the Children’s Law Reform Act (“CLRA”). Pursuant to s. 22(1)(a), a court shall only exercise its jurisdiction in making an order for custody of or access to a child where the child is “habitually residence in Ontario at the commencement of the application for the order”. “Habitually resident” is defined in section 22(2) as “the place where he or she resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time”. The court found that the child was habitually resident in Ontario since 2016.
Section 41(1) of the CLRA states that a court will recognize an order for the custody of or access to a child that has been made by an extra-provincial order unless:
- The respondent was not given reasonable notice of the commencement of the proceedings in which the order was made unless;
- The respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made
- The law of the place in which the order was made did not require the extra-provincial tribunal to have regards for the best interests of the child
- The order is contrary to public policy in Ontario
- The extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
In finding that none of these circumstances applies, the Court held that the Parenting Order was enforceable. The court also noted that courts may still decline to exercise jurisdiction under s. 42(2) of the CLRA if the Ontario court is not the most appropriate forum to hear the matter or is forum non conveniens. The Respondent had the burden of demonstrating this and did not at any point challenge the jurisdiction of the court. As such, the court determined that Ontario was not forum non conveniens.
After determining that the Court did in fact have jurisdiction, the court moved on to the second issue of whether the court should vary the Parenting Order. Section 42(1) of the CLRA permits a court to vary an extra-provincial order “where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interest of the child and… the child is habitually resident in Ontario at the commencement of the application for the order.” The Court held that the COVID-19 pandemic is a material change in circumstances that would satisfy this requirement. The Court relied heavily on the child’s age and the current travel restrictions in finding that it would not be reasonable that a child her age would be able to ensure she was taking all the necessary safety precautions. The court concluded that it was not in the child’s best interest to travel to France in accordance with the Court Order.
The court granted the motion and made an order on an interim without prejudice basis that the Respondent would exercise his parenting time in Toronto, rather than the child travelling to France, so long as the Canadian Government’s Travel Advisory against all non-essential international travel remained in effect.
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