Is it possible for a court, which has jurisdiction to deal with a matter, to subsequently lose jurisdiction? In a recent decision, an Ontario court found that, indeed, it could not maintain jurisdiction over the parties’ custody dispute since they had both returned to live in Japan.
The Parties’ Story
In 2011, the parties met in Canada. Later that year, they began to live as a couple in Japan, which was where the mother was born.
The parties were married the following year and had a child in 2014.
In 2016, the father returned to Canada. The mother and child came to Canada for a visit. It was then that the parties’ relationship began to deteriorate.
The father, worried that the mother would leave the county with their son, commenced proceedings on an ex-parte (urgent) basis. A temporary order was made, which provided that the child’s residence would not change without a further order.
In 2017, the mother brought a mobility motion so she could return to Japan with the child. The court granted the mother custody and gave her permission to relocate with the child to Japan.
The father moved to Japan approximately one month after the mobility order was granted.
By the end of May 2018, this matter had returned to the Ontario court approximately 12 times with no significant progress or change in the situation. The court began questioning if it still had jurisdiction to continue dealing with this matter.
A hearing was held on the issue of jurisdiction.
The Applicable Legal Principles
Section 22 of the Children’s Law Reform Act (CLRA) states that a court will only exercise its jurisdiction to make an order for custody of or access to a child where (a) the child is habitually resident in Ontario at the commencement of the application for the order, or (b) where the child is not habitually resident in Ontario, but the court is satisfied that:
- the child is physically present in Ontario at the commencement of the application for the order;
- substantial evidence concerning the best interests of the child is available in Ontario;
- no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident;
- no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario;
- the child has a real and substantial connection with Ontario; and
- on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
The Ontario Court of Appeal decision, Turner v. Viau, confirms that a court may exercise jurisdiction over a child not habitually resident in Ontario at the time of the commencement of the application only if all of the six criteria above have been satisfied.
The Court’s Decision on Jurisdiction
In finding that it could not continue to assume jurisdiction over this matter, the court concluded that the child’s habitual residence was in Japan and not Ontario. It explained that all six criteria listed in s. 22(1)(b) of the CLRA were satisfied when the proceedings commenced in the fall of 2016 and until the departure following the mobility motion in 2017, as the child and both parties were physically present in Ontario. However, neither party nor the child were presently residing in Ontario (and had not been since October 2017). As a result, the court had to determine whether or not the matter met the six criteria set out in s. 22(1)(b) of the CLRA.
The court explained that, practically, any medical evidence, educational evidence or information concerning daycare or the child’s extracurricular activities were in Japan. That is, the child had no real or substantial connection to Ontario.
Furthermore, the court remarked that if this matter did proceed to trial, there was no assurance that the mother or any of her witnesses would even be allowed to enter Canada as a result of some uncertainties concerning her immigration status. It would therefore be unfair to force the mother to proceed in an Ontario court when it was not even clear if she was allowed to return to Canada.
Ultimately, the court concluded that the second, fifth and sixth criteria listed in s. 22(1)(b) could not be satisfied. As a result, the court found that it no longer had jurisdiction to deal with this matter.
The court will only assume, and maintain, jurisdiction over a custody matter where certain criteria in the CLRA are met.
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