COURT OF APPEAL FOR ONTARIO
B E T W E E N : )
T. Frederick Baxter, for the appellant
Applicant ) (Appellant in Appeal) )
– and – )
C.S. AND A.D. )
Mary Jane McGinty, for the respondent, C.S.
No one appearing for the respondent, A.D.
Respondents (Respondents in Appeal)
) Heard: August 28, 2006
On appeal from the order of Justice Frank R. Caputo of the Superior Court of Justice, dated October 13, 2005.
The issue on this appeal is whether Ontario or Nova Scotia is the more appropriate jurisdiction to decide the question of access to a six-year old girl, K.R.S..
The appellant, M.A.J., is K.R.S.’s paternal grandmother. Ms. M.A.J. lives in Ontario. She has applied for access to K.R.S.. When she commenced her application for access – originally for custody, which she later abandoned – K.R.S. lived in Ontario. Ms. M.A.J. contends that an Ontario court should exercise jurisdiction because when she brought her application K.R.S. was habitually resident in Ontario.
The respondent, C.S., is K.R.S.’s mother. The respondent, A.D., who took no part in this appeal, is K.R.S.’s father and Ms. M.A.J.’s son. Ms. C.S. and K.R.S. have lived in Nova Scotia since January 2004.
In May 2004, a judge of the Superior Court of Nova Scotia granted joint custody of K.R.S. to her parents. Ms. C.S. contends that a Nova Scotia court should determine Ms. M.A.J.’s application for access because K.R.S.’s ordinary residence is now Nova Scotia. Ms. C.S. acknowledges that Ms. M.A.J. should be given standing to pursue her application in Nova Scotia.
Ms. C.S. moved for summary judgment to dismiss Ms. M.A.J.’s application then pending in the Ontario Superior Court. Justice Caputo granted the motion. He concluded that the question of access should be decided in Nova Scotia. It is this order that Ms. M.A.J. appeals.
The motion judge set out the relevant chronology and court orders in some detail. The following is a brief summary.
Because K.R.S.’s parents were substance abusers, Ms. M.A.J. mainly took care of
K.R.S. during the first three years of her life. However, by the spring of 2003, Ms. C.S. had completed an alcohol treatment program and started exercising regular access to K.R.S.. The Algoma Children’s Aid Society took an active role in K.R.S.’s upbringing. By December 2003, the Society determined that K.R.S. should be returned to her mother’s care.
In January 2004, the Society agreed that Ms. C.S. could have custody of K.R.S. on specified conditions. Later that month, with the Society’s concurrence, Ms. C.S. moved K.R.S. to Nova Scotia, where Ms. C.S.’ parents and relatives live.
In late January 2004, Ms. C.S. started proceedings for custody of K.R.S. in Nova Scotia. About a week later, Ms. M.A.J. brought her application for custody and access in Ontario.
Out of concern that Ms. M.A.J.’s common law spouse might take K.R.S. back to Ontario, Ms. C.S. sought an emergency custody hearing in the Nova Scotia Superior Court, Family Division. Justice Campbell heard the application. He gave his decision on March 9, 2004. He recognized that K.R.S.’s habitual residence, to which she had the most substantial connection, was Ontario. Nonetheless, in thoughtful and concise reasons, he decided to exercise jurisdiction and awarded Ms. C.S. interim custody of K.R.S.. On May 13, 2004, on consent, Campbell J. issued a final order granting joint custody of K.R.S. to her parents.
Meanwhile, in the spring of 2004, two Ontario Superior Court judges made orders affecting K.R.S.. On April 15, 2004, on the application of Ms. M.A.J., Whalen J. ruled that the care and custody of K.R.S. were “proper issues for the exercise of jurisdiction of an Ontario court.” Then, on June 14, 2004, on the application of Ms. C.S., Noble J. ruled that under s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“CLRA”), the Nova Scotia custody order should be recognized in Ontario without prejudice to Ms. M.A.J.’s right to continue her application here.
On October 13, 2005, Caputo J. granted the summary judgment that is under appeal.
Ms. M.A.J. submits that when she commenced her application for access to K.R.S. in February 2004, K.R.S. was “habitually resident” in Ontario and that under s. 22(1)(a) of the CLRA an Ontario court should exercise jurisdiction to make a custody order. Section 22(1)(a) provides:
A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
the child is habitually resident in Ontario at the commencement of the application for the order.
“Habitual residence” is defined in s. 22(2), and Ms. M.A.J. relies on subsection 22(2)(c).
A child is habitually resident in the place where he or she resided,
with both parents;
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
with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
I agree that in February 2004, K.R.S. was habitually resident in Ontario. She had resided in Ontario with her grandmother “on a permanent basis for a significant period of time.” Thus, Ontario does have jurisdiction in respect of access to K.R.S.. The orders of Whalen J. and Noble J. confirmed this jurisdiction. However, this does not end the question of jurisdiction.
K.R.S. is now six years old. She no longer lives in Ontario; she has lived with her mother in Nova Scotia for nearly three years. K.R.S.’s residence in Nova Scotia also gives courts of that province jurisdiction in respect of access.
Nova Scotia family law legislation does not contain a definition of “habitual residence” or “ordinary residence.” Thus, the common law applies. Under the common law, where, as here, parents by agreement are living separate and apart and the child resides with one of them, that home is the child’s ordinary residence. Indeed, the mere physical presence of the child in a province gives the court of that province jurisdiction at common law. See Re P. (G.E.) (An Infant),  Ch. 568 (C.A.); Nielsen v. Nielsen,  O.R. 541 (H.C.).
In this case, therefore, Ontario and Nova Scotia have concurrent jurisdiction over the issue of access to K.R.S.. Justice Campbell in Nova Scotia recognized this concurrent jurisdiction. In his reasons of March 9, 2004, he wrote:
There is jurisdiction in the province where a child was taken because of the presence and existence of the child. There is also jurisdiction in the departing province by virtue of the fact that that province had been the child’s habitual residence.
Justice Campbell also recognized that, as a general rule, the “receiving province” (here Nova Scotia) should accede to the jurisdiction of the province of habitual residence (here Ontario) to discourage the clandestine removal of children. He nonetheless departed from that general rule for sound reasons. These reasons included the following considerations:
K.R.S.’s father had not made a competing application;
The only competing application was by the child’s grandparent, not by a parent;
Ms. C.S. had moved home, where she grew up and where her parents and extended family still live;
Ms. C.S. sought the permission of the Ontario Children’s Aid Society before moving to Nova Scotia and had “fully cooperated” with the Society;
The Ontario Society not only approved the move to Nova Scotia, but promoted it because it seemed the best plan for K.R.S. and her mother; and
Because Ms. C.S. has little money, forcing her to contest what might be a protracted lawsuit in Ontario would be unfair.
We are now at a distance of two and one-half years from the date of Campbell J.’s decision to take jurisdiction. In this time, K.R.S. has continued to live with her mother in Nova Scotia. The case for a Nova Scotia court exercising jurisdiction over all matters affecting custody and access to K.R.S. has strengthened. Although an Ontario court has jurisdiction over Ms. M.A.J.’s application, I think s. 25 of the CLRA affords a statutory basis for refusing to exercise this jurisdiction. The motion judge quoted s. 25 but did not discuss it. I view it as a complete answer to Ms. M.A.J.’s application. Section 25 provides:
A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
In my view, it is more appropriate for jurisdiction in respect of access to K.R.S. to be exercised in Nova Scotia. I rely on the considerations cited by Campbell J. and these additional considerations cited by the motion judge:
K.R.S. goes to school in Halifax;
K.R.S.’s parents, maternal grandparents, aunts, uncles and cousins live in Halifax;
All of K.R.S.’s caregivers live in Halifax;
The only real connection to Ontario is Ms. M.A.J.; and
Ms. C.S. has a final order for custody, made with the consent of K.R.S.’s father.
I would dismiss the appeal. I would award Ms. C.S. her costs of the appeal, which I would fix in the amount of $3,500.00, inclusive of disbursements and G.S.T.
I add this postscript. Ms. M.A.J. has sensibly abandoned her claim for custody of K.R.S.. She seeks only access rights. As Campbell J. wisely observed, grandparents play an important role in a child’s life. Ms. M.A.J. has played a particularly important role in K.R.S.’s life. She virtually raised K.R.S. during her early years when neither of K.R.S.’s parents was capable of doing so. It is undoubtedly in K.R.S.’s best interests that she continue to have contact with and see her paternal grandmother. I hope that all parties – Ms. C.S., Mr. A.D. and Ms. M.A.J. – can agree on a reasonable access schedule for Ms.
M.A.J. without the need for further court proceedings that I expect none of the parties can afford.
RELEASED: OCT 31 2006 “John Laskin J.A.”
“JL” “I agree J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”