Custody and Access Jurisdiction – When Does the Court Decide?

McLeod v Peppe, 2018 ONSC 2364

This case examined when a court might exercise its jurisdiction to hear and decide on a motion for custody of and access to a child where that child is not ordinarily resident in Ontario.

Background

The applicant, McLeod, and the respondent, Peppe, are the parents of three-year-old Linden, born in 2015. McLeod and Peppe married in Utah in 2010 and moved to California shortly thereafter, where Linden was born. McLeod and Peppe decided to move to Windsor, Ontario in 2017 after McLeod had been offered a job there. Peppe and her mother went to Windsor to search for a house for the family, and Peppe and McLeod put in a successful offer to purchase a house in Windsor with a closing date in January 2018. In the first week of December 2017 McLeod and Peppe travelled from California to Detroit with their son, with the intention of visiting McLeod’s parents in London, Ontario before moving on to Windsor. However, Peppe had packed her passport in a moving box being shipped to their new home in Windsor and was unable to cross the border.

Peppe submitted affidavit evidence that McLeod became abusive while they were in Detroit, which led to her taking their son to her parents’ house in Connecticut. While there, Peppe decided to separate from McLeod. McLeod then travelled with his mother to Peppe’s parents’ house in Connecticut. On December 31, 2017 Peppe and McLeod executed a document there, witnessed by Peppe’s mother, giving consent for McLeod to take the child across the border to visit with family. The document stated that Peppe planned to pick up the child in mid-January 2018 at a date to be determined. McLeod returned to Canada with Linden as planned, and commenced an application in January 2018 for, among other things, custody of the child and child support.

After his initial application, McLeod filed an urgent motion seeking that Linden reside with him pending a further order from the court, that any access to Linden occur in Essex County, and that Linden not be removed from Essex county. Peppe challenged the jurisdiction of the court to hear and determine the motion. Prior to the hearing of the motion, McLeod started his new job, amended the agreement for purchase and sale to the house in Windsor to take sole ownership of it, moved into the house with the child, and enrolled Linden in daycare. Peppe remained in Windsor during the litigation and maintained regular access with Linden.

Analysis

The issue in this case was whether the court could exercise its jurisdiction to hear and determine the motion for custody and access. As neither McLeod nor Peppe were ordinarily resident in Ontario for at least one year, as required by section 3(1) of the Divorce Act, it did not apply. The parties agreed that Linden was not habitually resident in Ontario at the commencement of the application, as required to exercise jurisdiction under section 22(1)(a) of the Children’s Law Reform Act (CLRA). Therefore, the case turned on whether the six criteria in section 22(1)(b) of the CLRA, regarding the exercise of jurisdiction where the child is not habitually resident in Ontario, were made out. Under the CLRA section 22(1)(b), the court must be satisfied:

(1) that the child is physically present in Ontario at the commencement of the application for the order;
(2) that substantial evidence concerning the best interests of the child is available in Ontario;
(3) 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;
(4) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario;
(5) that the child has a real and substantial connection with Ontario; and
(6) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Peppe conceded that the first, third, and fourth conditions were made out, as Linden was in Ontario at the start of the application, and no other applications or orders had been made or recognized. However, Peppe argued that the second, fifth, and sixth conditions had not been made out.

Regarding the second condition, substantial evidence, the court held that due to Linden’s young age, there was substantially less evidence concerning his best interests as compared to a teenage child. The court held that substantially all the evidence concerning Linden’s best interests related to his interactions with his parents, which was available in Ontario. The court held that merely because the evidence was also available in California did not vitiate the second condition, as the CLRA did not establish a competition between evidence in jurisdictions. As such, the second condition was made out.

Regarding the fifth condition, a real and substantial connection, the court held that part of the analysis must contemplate the connection established through the child’s dependence on the parent, and the parent’s connection with Ontario. As McLeod was living, working, and had placed Linden in daycare in Ontario, there was a substantial connection between McLeod and Ontario, and Linden to McLeod. Furthermore, the court held that because Peppe was part of a legitimate decision to buy a house in Windsor, decided to move there as a family, and cut off all ties with California, she had a settled intention to reside in Ontario. The fact that she later decided to end her marriage to McLeod did not vitiate the shared intention that Linden would reside in Ontario. The court also rejected the line of case law Peppe relied on, as it dealt with unilateral decisions by one parent to move to a different jurisdiction with older children having established best interests. Therefore, the fifth condition was made out.

Regarding the sixth condition, the balance of convenience, the court held that Ontario was clearly the appropriate jurisdiction to determine interim residency. The court rejected Peppe’s argument that commencing the litigation in Ontario after bringing the child from Connecticut, and California prior, amounted to forum shopping. The court held that Linden was in Ontario in furtherance of his parents’ settled intention to move there, and that the CLRA was designed to prevent the exact sort of issues forum shopping poses. To drive the point home, the court emphasized that Peppe had listed her address as her parents’ house in Connecticut, not California, thus making Ontario the only practicable jurisdiction to proceed with the litigation. As a result, the court held the sixth condition was made out.

The court held that as all six conditions in section 22(1)(b) of the CLRA were made out, the court had jurisdiction to determine the issues of interim residency, custody, and access. However, the court acknowledge that seeking adjudication was justified due to the unique facts of the case and ordered that each party bear their own costs.