Custody and Access Jurisdiction – When Does the Court Decide?

Custody and Access Jurisdiction – When Does the Court Decide?

The court’s jurisdiction to determine custody and access issues for children not habitually resident in Ontario: McLeod v Peppe, 2018 ONSC 2364

In a recent case, McLeod v Peppe, the court assessed when an Ontario court has jurisdiction to decide a child custody and access case where the child is not habitually resident in the province.

Background and Issue:

The Applicant, Bradley Thomas McLeod (the “Applicant Father”) and the Respondent, Louise Ann Peppe (the “Respondent Mother”) have one child of the marriage, namely Linden Laverne Peppe McLeod, born February 26, 2015 (“Linden”). The parties married in the State of Utah on August 16, 2010. They separated on or about December 24, 2017.
The Applicant Father commenced an application dated January 17, 2018 in Ontario seeking various relief, including, custody and primary residence, child support, and access for the Respondent Mother, pursuant to the Family Law Act or the Children’s Law Reform Act (“CLRA”). Notably, the Divorce Act did not apply because neither party had been ordinarily resident in Ontario for at least one year, as required by section 3(1).
Upon filing his Application, the Applicant Father filed an urgent motion seeking, among other relief, primary residence of Linden. The Respondent Mother challenged the jurisdiction of the Ontario court to determine this motion pursuant to section 22(1) of the CLRA.
The issue to be decided is: Has the Applicant Father satisfied the six conditions prescribed in section 22(1)(b) of the CLRA as necessary for the Ontario court to have jurisdiction to hear and determine this matter?

Statutory Considerations:

Section 22(1)(a) of the CLRA provides that an Ontario court has jurisdiction where a child is habitually resident in Ontario at the commencement of the application. The parties agreed that Linden did not meet this test because he had not lived in the province with both parents.
Since Linden did not meet the habitual residence test, the provisions of section 22(1)(b) must be assessed to determine if the Ontario court has jurisdiction. A court has jurisdiction to make an order for custody or access where, although the child is not habitually resident in Ontario, the court is satisfied:

  • That the child is physically present in Ontario at the commencement of the application for the order,
  • That substantial evidence concerning the best interests of the child is available in Ontario,
  • That 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,
  • That no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
  • That the child has a real and substantial connection with Ontario, and
  • That, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

The Facts:

The parties were married in Utah on August 16, 2010. They moved to California in 2012 and lived there for five years. While residing in California, the Respondent Mother gave birth to Linden.
In 2017, the Applicant Father received an offer of employment in Windsor, Ontario. He accepted the offer. Following his acceptance, the Respondent Mother and her mother travelled to Windsor and made an offer to purchase a family residence there. The offer was accepted and scheduled to close on January 31, 2018.
The parties and Linden left their California residence in the first week of December 2017 and flew to Detroit, Michigan. Their plan was to travel to London, Ontario to visit the Applicant Father’s parents before heading to Windsor. Upon arrival in Detroit, the Respondent Mother realized that she did not have her passport and was unable to cross into Canada. She reported that while in Detroit, the Applicant Father became abusive.
The Respondent Mother travelled with Linden to Connecticut where her parents reside. On or about December 24, 2017, she informed the Applicant Father that she intended to separate. On December 31, 2017, the parties executed a document that gave the Applicant Father permission to take Linden to visit his family in London, Ontario and him in Windsor. The document stated that the Respondent Mother intended to pick up Linden in mid-January 2018.
Upon returning to Canada with Linden, the Applicant Father commenced his application. Prior to the motion, the Applicant Father had already commenced employment in Windsor, taken possession and sole ownership of the Windsor property, moved into the house with Linden, and enrolled him into daycare. The Respondent Mother remained in Windsor while the litigation continued and maintained regular access with Linden.

The Court’s Finding:

The Applicant Father has satisfied each of the six conditions prescribed in section 22(1)(b) of the CLRA. The court concluded that it has jurisdiction to hear and decide the motion.

Application of the section 22(1)(b) of the CLRA test and analysis:

The Respondent Mother conceded that subparagraphs (i), (iii) and (iv) had been met. However, she asserted that the remaining conditions had not, and as such, the Ontario court did not have jurisdiction.
The court held that all six conditions had been met. Regarding the conditions in dispute, the court held as follows:
Has the applicant established that substantial evidence concerning the best interests of the child is available in Ontario?
Given Linden’s young age, the court held that substantially all the evidence concerning his best interests correlated to his interactions with his parents. This evidence was in Ontario. The court disagreed with the Respondent Mother’s assertion that more substantial evidence exists in California, noting that an assessment of whether substantial evidence exists in Ontario does not involve a comparison of the evidence that may exist in other jurisdictions.

Does the child have a real and substantial connection with Ontario?

Linden has a real and substantial connection with Ontario. The Applicant Father lives and works in Ontario. Moreover, the Respondent Mother had a “settled intention” to reside in Ontario, based on her decision to relocate to Ontario, her severing of her and Linden’s residential ties to California, by her travelling to Windsor and making an offer on a family home, and by travelling to Detroit with the intention to reside in Ontario.
The court held that the Respondent Mother’s decision to separate did not unilaterally revoke her consent to their shared intention that Linden would reside in Ontario.

On the balance of convenience, is it appropriate for jurisdiction to be exercised in Ontario?

e court held that Ontario is the appropriate jurisdiction. The court rejected the Respondent Mother’s submissions that the Applicant Father’s initiation of proceedings in Ontario amounted to forum shopping. Specifically, it held that section 22(1)(b) of the CLRA is intended to prevent forum shopping by establishing six conditions that must all be met as a precondition to conferring jurisdiction related to a child not habitually resident in Ontario.
The court held that the unique facts in this case justified an adjudication of the jurisdictional issue and that each party shall bear their respective costs.
You can read the full case at:

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