Winsa v Henderson, 2016 CarswellOnt 12542 (Ont. Div. Ct)

In this case, the Court heard a jurisdictional dispute with respect to custody between Ontario and Hawaii. In this case, it was found that the habitual residence of the child was in fact Hawaii. Therefore, Ontario did not have jurisdiction.

Background

The parties in this case were Canadian citizens and resided primarily in Ontario until the family moved to Hawaii and the children attended school in Hawaii.

The parties separated approximately four years after moving to Hawaii and entered into an interim Separation Agreement which provided that the children were to return to Hawaii and the father would remain in Toronto. Following this, the mother and the children returned to Hawaii.

Pursuant to the Agreement, the mother had interim sole custody while the father had access. The mother then obtained a restraining order against the father from court in Hawaii and commenced an application for permanent sole custody, access, and support in Hawaii. The Hawaiian court granted the mother temporary physical custody.

The mother then returned to Ontario for the summer. One of the parties’ children returned to Hawaii but the father obtained an order that provided that the other child could not be removed from Ontario pending further order of the court, or unless the father consented in writing. A second order extended the first order and provided that the child was to live in Toronto with access to the mother.

The Motion judge determined that Ontario had jurisdiction to deal with the matter. The mother appealed.

Analysis

In considering the views and preferences of the child, a therapist was retained to prepare a Report. The Report noted that the child was caught in the middle of his parents’ conflict. The therapist concluded that after interviewing the child, his views and preferences were clear, in fact, the child indicated that he would be extremely upset if he was ordered to return to Hawaii.

The Divisional Court reviewed section 22 of the CLRA. The Court noted that the motions judge erred by taking into account the child’s views as the test for habitual residency does not involve the wishes of the child.

The Motions judge held that there would be serious harm under section 23 of the Children’s Law Reform Act (CLRA) if the child were ordered returned to Hawaii. However, the Divisional Court held this to be palpable and overriding error and that there was in fact no evidence of substantial risk to establish serious harm. In any event, the therapist concluded that there were no serious concerns if a decision was made that was contrary to the child’s views and preferences. In the end, the child was ordered returned to Hawaii.