



COURT OF APPEAL FOR ONTARIO

CITATION:
Dovigi v. Razi, 2012 ONCA 361

DATE : 20120531

DOCKET: C55136/M41347

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Patrick Dovigi

Applicant (Respondent in Appeal)

and

Mojdeh Razi

Respondent (Appellant in Appeal)

E. Lenkinski and M. Mehra, for the appellant

H. Niman, A. Volikis and J. Wilson, for the respondent

Heard: May 11, 2012

On appeal from the order of Justice Frances P. Kiteley of
    the Superior Court of Justice dated February 21, 2012.

Juriansz J.A.:

[1]

This is an appeal from the order of Kiteley J. dated February 21, 2012
    assuming jurisdiction over a fathers application for temporary and permanent
    shared custody of his child.

[2]

The mother appeals, submitting that Ontario lacks jurisdiction over the
    custody of and access to the child and, in the alternative, that Ontario should
    decline to exercise jurisdiction and defer to California as the
forum
    conveniens
.

[3]

The mother and father, who are the biological parents of the child, both
    resided in Ontario during the course of their relationship. By November 2011,
    the parents were no longer romantically involved. On November 26, 2011 the
    mother, then some seven months pregnant, left Ontario for what the father
    understood was a visit to California. The child was born on January 14, 2012 in
    California and the mother is now living there and intends to become a permanent
    resident. The child has never been physically present in Ontario. The motion
    judge found as a fact that the mother did not form the intention to live in
    California until after the child was born, a finding the mother attacks on this
    appeal.

[4]

The motion judge assumed jurisdiction by exercising the courts
parens
    patriae
power to protect the child. For the reasons that follow, I would
    allow the appeal.

A.

The motion judges decision

[5]

The motion judge, citing James G. McLeod,
Child Custody Law and
    Practice
, looseleaf (Toronto, Ont.: Carswell, 2007) 3(3), observed that
    the two purposes of jurisdictional requirements are to avoid concurrent
    jurisdiction and to discourage the abduction of children. The first
    consideration does not apply in this case, she said, because the issue of
    concurrent jurisdiction arose only when the appellant commenced proceedings in
    California after being served with the respondents application in Ontario. The
    second consideration does apply, she said, because to decline to take
    jurisdiction in these circumstances would be to encourage a pregnant mother to
    depart from the original jurisdiction in circumstances that are analogous to
    abduction (at para. 21).

[6]

The motion judge recognized that she did not have jurisdiction under the
Childrens Law Reform Act
, R.S.O. 1990, c. C. 12 (
CLRA
).
    Section 22 of the
CLRA
defines when Ontario courts can exercise their
    jurisdiction to make an order for custody of or access to a child. The motion
    judge held that s. 22(1)(b) did not apply because the child was not physically
    present in Ontario at the commencement of the application. Section 22(1)(a)
    requires that the child be habitually resident in Ontario at the time of the
    application. The circumstances of the child did not fall within the ambit of
    the definition of habitually resident under s. 22 but, in her view, this constituted
    a gap in the statute, since the child appeared to have no habitual residence
    under the statute. Given the statutory gap, the fact that both parties had a
    real and substantial connection with Ontario, and the fact that the mothers
    proceedings in California were commenced only after the fathers application
    was filed and served in Ontario, the motion judge concluded, at para. 24:

This is a situation in which it is necessary to invoke the
parens
    patriae
jurisdiction to deal with the uncontemplated situation where it is
    necessary to do so for the protection of the child who falls within that ambit.
    I am mindful that Californias laws and procedures are similar to those of
    Ontario in that there are jurisdictional requirements, parents have equal
    rights, and the best interests of the child is the principle upon which
    judgments are made. However, until the [appellant] allegedly changed her mind,
    the expectation was that [the child] would be parented in Ontario. There is
    evidence as to their respective parenting abilities in Ontario. To protect the
    expectation that [the child] would be parented in Ontario, this court must take
    jurisdiction. There is no basis to refrain from exercising jurisdiction either
    under s. 19(b) or s. 25 of the
CLRA
.

B.

The Parties arguments

[7]

Counsel for the appellant raised a number of arguments. The only one I
    find necessary to deal with is that this is not a case for the exercise of the
    courts
parens patriae
jurisdiction.

[8]

Counsel for the respondent submits that it is not necessary to consider
    whether the motion judge erred by exercising her
parens patriae
power,
    because, in any event, she had jurisdiction under the
CLRA
. He posits
    that a child necessarily must have the same habitual residence as its parents.
    Here, according to the facts as found by the trial judge, both parents were
    habitually resident in Ontario when the application was commenced. He went
    further, arguing that the fathers habitual residence in Ontario, by itself,
    was enough to find the child was habitually resident in Ontario. This
    reasoning, he submits, makes it unnecessary to refer to the statutory
    definition to identify the childs habitual residence.

C.

jurisdiction over custody disputes

[9]

The
CLRA
contemplates only four ways in which an Ontario court
    can exercise its jurisdiction to make an order for custody of a child.

[10]

First,
    under s. 22(1)(a) of the
CLRA
, an Ontario court may make an order for
    custody of a child where the child is

habitually
    resident in Ontario.

[11]

Second,
    under s. 22(1)(b), where the child is not habitually resident in Ontario, the
    court may exercise jurisdiction if the child is physically present in Ontario
    and other requirements are met.

[12]

Third,
    under s. 23, a court has jurisdiction to make an order for custody where the
    child is physically present in Ontario and the court is satisfied that the
    child would, on the balance of probabilities, suffer serious harm under certain
    specified circumstances set out in the Act.

[13]

Fourth,
    the court may exercise its
parens patriae
jurisdiction, which is
    specifically preserved by s. 69 of the
CLRA
.

D.

Analysis

[14]

Of
    the heads of jurisdiction outlined above, the only two argued to be available
    in this case are s. 22(1)(a)  the child is habitually resident in Ontario  and
    the courts
parens patriae
jurisdiction. I do not accept the
    respondents argument that the child is habitually resident in Ontario
    because her parents, or at least one of her parents, are so resident. In
    essence, counsel advocates a common law approach to habitual residence in
    determining the courts jurisdiction. However, it is elementary that a
    statutory definition must be applied when interpreting the very term defined.
    The phrase a court shall only exercise its jurisdiction in s. 22 makes clear
    that the statute has superceded the common law.

[15]

The
    motion judge was correct to find that the circumstances of the child in this
    case do not fall within the ambit of the statutory definition of habitual
    residence. She was wrong, though, to conclude from that fact alone that there
    was a legislative gap.  The fact that circumstances fall outside a definition
    may be a matter of legislative design rather than legislative oversight.
    Discerning the legislative design requires a close consideration of the
    legislation.

[16]

Section
    22(1) limits when the court has jurisdiction to make an order for custody or of
    access to a child on the basis that the child is either habitually resident in
    Ontario at the commencement of the application for the order or, if not
    habitually resident, the child is physically present in Ontario and meets a
    number of other criteria.  Since the child here was not physically present in
    Ontario, the focus becomes the childs place of habitual residence.

[17]

To be habitually resident in Ontario is defined by s. 22(2) of the Act
    as follows:

(2) A child is habitually resident in
    the place where he or she resided,

(a) with both parents;

(b) 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

I with a person other than a parent
    on a permanent basis for a significant period of time,

whichever last occurred.

[18]

As
    can be seen, the definition contemplates three possible situations: where the
    child is living with both parents, with one parent, or with neither parent.
    Where the child is living with one parent, the key provision is s. 22(2)(b),
    which specifies that the statutory meaning of habitually resident differs
    from the common-law meaning. Even a child with a stable and settled life in
    Ontario residing with one parent is not habitually resident here under the
    statute unless the childs residence is in accordance with a separation
    agreement, consent, or a court order.

[19]

The
    possibility that the child is living with one parent outside Ontario as a
    result of abduction is specifically addressed by s. 23(3) of the
CLRA
,
    which provides that abduction does not change the habitual residence of a
    child.

[20]

That
    the child is residing with one parent in California without a separation
    agreement, consent, or a court order no more indicates a gap in the statute
    than would a child residing in Ontario with one parent in similar
    circumstances. I conclude that while the motion judge was correct that the
    child does not fall within the ambit of the provisions of the
CLRA
,
    she erred in finding that this results from a legislative gap.

[21]

I
    turn to the motion judges reliance on the courts
parens patriae
jurisdiction.
    The Supreme Court of Canada in
E. (Mrs.) v. Eve
, [1986] 2 S.C.R. 388
    makes it clear, at p. 426, that the courts
parens patriae
jurisdiction is founded on necessity, namely the need to act for the
    protection of those who cannot care for themselves. In the circumstances of
    this case, there was no evidence that it was necessary for the Ontario court to
    act for the protection of this child.

[22]

First,
    the California court has taken jurisdiction over issues relating to the childs
    custody, and as the motion judge noted, Californias laws and procedures are
    similar to those of Ontario, parents have equal rights, and the best interests
    of the child is the principle upon which judgments pertaining to the child are
    made. This is not to say that there could be no circumstances under which a child
    may be in need of this courts protection even where the other state has
    comparable laws. The circumstances of this case, however, simply do not give
    rise to any protection concern.

[23]

Second,
    the motion judge erred by taking jurisdiction [t]o protect the expectation
    that [the child] would be parented in Ontario (at para. 24). In so doing she
    assumed the conclusion of the inquiry into where the best interests of the
    child lay. Where it is in the best interests of the child to be parented must
    be decided by the court with jurisdiction. The outcome of the inquiry into best
    interests does not provide a basis for taking jurisdiction.

[24]

I
    conclude that the motion judge did not have a proper basis for exercising the
    courts
parens patriae
power.

E.

The Motion judges Findings of fact

[25]

This
    courts conclusion that the motion judge erred in law in invoking
parens
    patriae
is sufficient to allow the appeal and overturn the decision below.

[26]

However,
    in case this decision is appealed and as there is ongoing litigation in
    California, I deal with the appellants challenge to certain findings of fact
    made by the motion judge.

[27]

The
    motion judge acknowledged that, in light of this courts decision in
Lerullo
    v. Lerullo
(2006), 32 R.F.L.
(
6th) 246  she could not draw
    conclusions of fact about significant matters in dispute where
the record contained only the competing affidavits of the parties
.
    Yet, citing what she characterized as independent evidence she proceeded to
    find facts. The summary of undisputed facts that preceded her finding that
    the appellant did not form the intention to live in California until after the
    child was born included the fact that the appellant bought a condominium in
    Toronto, the sale of which closed on December 15, 2011. She made no reference,
    however, to para. 116 of the appellants affidavit dated February 7, 2012 which
    states that the condominium was rented to a tenant on December 30, 2011. Nor
    did she make reference to paragraph 55 of the respondents affidavit dated
    January 19, 2012 which states that he recently discovered that between
    November and December 2011, [the appellant] has been purchasing furniture and
    other items for the child and having them shipped to  California.

[28]

In
    my view, this was a case in which the guidance of
Lerullo
should have
    been followed.

F.

Fresh Evidence

[29]

The
    appellant sought to introduce fresh evidence on the appeal, largely related to
    the custody proceedings in California and the processing of her application for
    immigration to the United States.

[30]

The
    respondent does not contest the admission of the evidence of the California
    courts decision to take jurisdiction. This evidence is admitted. The remainder
    of the evidence is not admitted as it was not pertinent to the appeal.

G.

Stay Motion

[31]

By
    order dated May 16, 2012, this court ordered a stay of the motion judges order
    dated May 8, 2012 providing the father with access to the child in Ontario. The
    stay was warranted by the balance of convenience and the courts view that the
    appeal ought to be allowed.

H.

Conclusion

[32]

I
    would allow the appeal, set aside the motion judges order dated February 21,
    2012, and replace it with an order dismissing the fathers application for want
    of jurisdiction.

[33]

In
    accordance with the agreement of counsel, there will be no costs of the appeal,
    the motion to stay and the motion for fresh evidence.

"R.G. Juriansz
    J.A.

I agree E.A. Cronk
    J.A.

I agree G.J. Epstein
    J.A.

Released: May 31, 2012


