C.O. v. R.F., 2021 BCPC 114

Citation: C.O. v. R.F. 2021 BCPC 114 Date: 20210222 File No: [Omitted for publication] Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.O. APPLICANT AND: R.F. RESPONDENT RULING OF THE HONOURABLE JUDGE J. E. SAUNDERS Counsel for the Applicant: K. Marks Counsel for the Respondent: R. McQueen Appearing by phone: R.F. Place of Hearing: Nanaimo , B.C. Date of Hearing: February 17, 2021

Date of Judgment: February 22, 2021 THE APPLICATION [ 1 ] The applicant, on Nanaimo file [omitted for publication], C.O. (“Ms. O.), filed July 23, 2020, for sole guardianship, sole parental responsibilities, sole parenting time and an ex parte protection order against the respondent, R.F. (“Mr. F.”), who filed a reply and counterclaim on November 6, 2020. [ 2 ] Ms. O. obtained a restraining order in July 2020, which has been extended and expires in July 2021. [ 3 ] Mr. F. also filed a counterclaim requesting an order for the immediate return of the child to Toronto, Ontario.

There was an application filed in the Superior Court of Justice in Toronto on January 7, 2021, by Mr. F. seeking to have the child returned and for custody, access and the return of the child to Toronto forthwith. [ 4 ] Mr.

F., in his reply of November 6, 2020, seeks an order for the immediate return of the child to Ontario on the basis that the child was wrongfully removed by his mother, and that the child’s habitual residence is Ontario and the father does not attorn to the jurisdiction of the British Columbia courts. [ 5 ] This is a jurisdictional hearing relating to O.F.O. and whether he should be returned to his father, and the issues between the parties be resolved in the Toronto court where Mr. F. has filed his application for relief as it concerns the child.

THE BACKGROUND [ 6 ] The parties have known each other since August 2015, when they met online. [ 7 ] Ms. O. has a child by another relationship, A.O. (“A.O.”), (born [omitted for publication]) and O.F.O. (“O.F.O.”) is the biological child of Mr. F., and by Ms. O.’s admission to the Court when she applied for the protection order, he is the step-father of A.O. The relationship became more serious after the birth of O.F.O. and they spent the majority of their time together with the two children and parented them together.

There is no evidence before the court regarding A.O.’s father and whether he has any relationship with her or any parental rights. [ 8 ] Ms. O. was employed in the field of Native Child and Family Services in Toronto and Mr. F. has worked as a track mechanic with the Toronto Transit commission for many years. [ 9 ] He has numerous family members in Toronto; grandmother, uncles, aunts, cousins, uncles and aunts, and his mother provided daycare for O.F.O. on many occasions. O.F.O. has never met Ms. O.’s family in Nanaimo other than online. [ 10 ] Ms. O. initially told Mr.

F. that she was visiting her mother and brothers in Nanaimo, on Vancouver Island, and attending a family wedding in June 2020. He did not object as he was expecting her to come back with the two children after a vacation on Vancouver Island and the wedding. [ 11 ] They communicated every day regularly by chat up from June 12, and she asked him to come to Victoria where he could find work and he declined due to his long standing employment in Toronto. They continued to communicate until July 17, 2020, when she cut off all contact with him as she had obtained an ex parte restraining order against him. [ 12 ] Mr.

F. contacted the Toronto Police Service on July 21, but unbeknown to him, she spoke to the police on July 22, and as he says “made false reports against him resulting in charges”. [ 13 ] Mr. F. did not know that Ms. O. moved from Nanaimo to Victoria with the two children, and obtained employment and an apartment in early August 2020. [ 14 ] He denies the allegations of violence and is seeking an order that the protection order be set aside, and that O.F.O. be returned to Toronto and placed in his care. He does not have a criminal record.

He is currently residing with his mother who, together with extended family, have known O.F.O. since birth and have regularly spent time with him. THE EVIDENCE ON THE APPLICATION [ 15 ] Mr. F. appeared by telephone for the jurisdictional hearing. He filed affidavit material which I have referenced as to the pertinent facts for this hearing. His evidence was in the affidavits filed by on November 6 and 10, 2020. [ 16 ] Ms. O. appeared in person and testified. She is now living in Victoria and has been there since August 2020.

She has permanent full-time employment and her own apartment where she lives with the two children. [ 17 ] The family wedding, which she had come out to British Columbia to attend, did not occur. [ 18 ] She does not want O.F.O. to be returned as she believes Mr. F. will do serious harm to the child, who is now three years of age. She confirmed they began dating in 2016 and that they lived together with the two children since 2019. She has lived in Ontario for most of her life herself. [ 19 ] She stated that she and Mr.

F. argued and that he was violent during the relationship, but she never called the police or reported these events and only did so after she had moved to Vancouver Island when the Toronto police called her in response to Mr. F. contacting them to find out if they could locate her whereabouts and the whereabouts of the two children. [ 20 ] She says Mr. F. was violent towards their dog but she left the dog with him when she came to Nanaimo in June 2020. Mr. F.

denies that behaviour in his affidavit and states that he is looking after the dog appropriately. In her numerous chats with him, as shown in her affidavit material, she asks him to join her and get work in Victoria working for transit. This communication continued until she obtained the protection order, which he did not know about until sometime afterwards. [ 21 ] Ms. O. states she has health issues and wishes to remain in Victoria with the children, and that if O.F.O. returns to Ontario he will suffer serious harm, but she could not be more specific. She says she is the parent better able to take care of O.F.O. [ 22 ] Counsel on behalf of Mr. F. refers to section 72 (1)(

a) of the Family Law Act of British Columbia (“ FLA ”), that a child is habitually resident in the place where the child most recently resided with his or her parents. Furthermore, section 72(3) provides that the removal of or withholding of a child without the consent of a guardian, unless the guardian from whom the child is removed or withheld, acquiesces or delays in applying for an order in the extraprovincial tribunal, does not affect or change the habitual residence of the child. [ 23 ] Currently neither party falls within the jurisdiction of the Nanaimo registry. [ 24 ]

Section 74 of the FLA also provides that, despite the provision of section 74(1) or other provision of this Part, a court may deal with parenting, guardianship and contact arrangements as set out in (74)(2)(

a) if one of the conditions set out in section 74(2)(a)(

b) and (

c) is met. The court may decline to make such an order if the court considers that the more appropriate jurisdiction is outside British Columbia. [ 25 ] In support of his submissions, counsel refers to two decisions namely Kong v. Song, 2019 BCCA 84 and Office of the Children’s Lawyer v Balev , 2018 SCC 16 that the habitual residence, or settled intention, is where both parents intended that the new jurisdiction to be. If they don’t agree for the move to be permanent, the prior jurisdiction remains the child’s habitual residence.

Furthermore, pursuant to section 72(3): [53] One parent’s unilateral decision to relocate or remove a child without the other parent’s knowledge or consent does not alter the child’s habitual residence: s. 72(3) of the FLA ; S.C. v. H.S. , 2017 BCSC 277 at para. 23 ; C.L.Z. at para. 48. [ 26 ] In relation to the wrongful removal and protection order of Ms. O., the decision of Leroux v.

Leroux , 2019 ABPC 238 has similar facts to the case at bar and is authority for the proposition that she applied for an ex parte protection order on her arrival on Vancouver Island and there was no indication that she had previously raised protection concerns until she arrived in British Columbia. The Court held that the child was habitually resident in Alberta where her parents had lived and worked and the mother, if she had legitimate concerns for her safety, could have applied for a protection order in Alberta.

Removing the child interfered with any appropriate parenting time the father should have had pending the outcome of the legal issues between the parties. [ 27 ] Likewise in ET v. GT , 2018 ABPC 147 , the child was wrongfully removed from Ontario to Alberta and the applicant could have applied for a protection order in Ontario, so there was no evidence that she would not be safe if ordered to return to Ontario with the child. [ 28 ] Counsel for Mr. F. submits that the child is habitually resident in Ontario since he was born on [omitted for publication].

Any witnesses who may be called at a trial would be individuals such as his doctor, other health care providers, extended family of both parents, witnesses who could provide essential evidence regarding the child’s best interests and others whose evidence could assist the trier of fact regarding the litigation between the parties, which Mr. F. has commenced in Toronto. [ 29 ] Counsel further submits that Ms. O. planned the removal of the child and took advantage of the situation when she arrived on Vancouver Island in June 2020.

Furthermore, prior to her filing for a protection order in Nanaimo, she was in daily contact with Mr. F. and, in fact, invited him to join her in Victoria where she moved in early August and he declined on the basis that he enjoyed his long time employment in Toronto. [ 30 ] Ms. O. furthered her plan to remain in Victoria, with or without Mr.

F., according to his counsel, by getting a residence and employment there and cut off contact with him, and then notified the police in Toronto that she had obtained a protection order in British Columbia, which resulted in contact with her and the children being cut off by virtue of the protection order. [ 31 ] In support of her submissions that British Columbia is the appropriate jurisdiction to deal with the matter, counsel for Ms. O. submits that the child should remain in British Columbia due to serious harm which will befall him and Ms. O., should they return to Toronto. [ 32 ] Ms.

O. testified that she is Indigenous and had lived in Ontario for many years as she had family there, and her mother and two brothers live in Nanaimo. [ 33 ] She states that Mr. F. is on bail and would not be able to have contact with the child in any event. [ 34 ] Counsel asks the Court to accept Ms. O.’s evidence that she had health problems and is now 29 years old. She has an older child, A.O., from another relationship, who is 8 years of age and O.F.O., who is 3 years old, and is the biological child of Mr. F. Her evidence was that she had known Mr. F. since 2016 when they started dating.

He lived with them in Toronto after O.F.O. was born and she said they had relationship issues, but she never called the police. She had good employment in Toronto herself, as did Mr. F. Despite concerns for the safety of their dog with Mr. F., she left her with him when she came to Vancouver Island to visit family and attend a wedding which did not take place. [ 35 ] She moved to Victoria in early August and obtained good employment at $25 an hour and intends to remain there. She confirmed she had invited Mr. F. to join her and find employment with Victoria transit but he declined.

They communicated regularly but that stopped when he refused to come to Victoria and she obtained an ex parte protection order in Nanaimo. [ 36 ] She confirmed that O.F.O.’s doctor and family services files were in Ontario, as were the individuals who could be witnesses from the Family Services or Children’s Aid or social workers who could be witnesses at a trial.

[ 37 ] She says that O.F.O. would be at serious harm if he is returned to Ontario. [ 38 ] In her affidavit filed February 17, 2021, Ms. O. states that as far back as 2017, Mr. F. used violence against her to have an abortion and, after O.F.O. was born, she gave him another chance and they started living together in April 2019 with her older child, A.O., and O.F.O., who was five months old, and lived together until June 2020. She sets out considerable detail about how he behaved towards her, the children and the dog. He broke furniture and did considerable damage in the home.

She stated she was afraid of him all the time. This behaviour continued until the week she left for Vancouver Island. She conceded staying in contact with Mr. F. all the time she was away on a daily basis via texting (as shown in the exhibits in his affidavit) and they were cordial with each other. She invited him to come to live in Victoria with her and the children and get employment with Victoria transit.

He declined and soon after he went to the police in Toronto about her removing O.F.O., and at that point she told the police that he had been violent towards her and he was then investigated and charges laid against him and he was released on conditions. [ 39 ] She sought a restraining order at that time and obtained a one month ex parte order, which was extended from time to time and her protection order was extended again until July 17, 2021. She is seeking to remain in British Columbia with the two children and have all parental responsibilities and time with the children, and that Mr.

F. should not have parenting or contact time with O.F.O. until he has anger management counselling and resolved the charges against him. [ 40 ] Her affidavits (the first filed December 2, 2020, is not signed, and the second filed February 17, 2021, is signed) are identical and have selective exhibits of texts between them in January and February 2020, while they were still together six months prior to her departure. [ 41 ] Of note, and by contrast, Mr.

F.’s affidavits exhibit numerous texts from the time of her departure in June 2020, which are frequent with little to no animosity. [ 42 ] I have considered the case law provided by counsel for Ms. O. In A.G.M. v. R.S.M., 2018 BCSC 1670 , where the applicant went to Kelowna for a vacation with the child and commenced the action prior to returning the child which she had and the respondent had agreed upon. Her action was dismissed on the basis that the child’s habitual residence was Alberta where the family had been living for a number of years. [ 43 ] In relation to serious harm, in J.F.A. v.

P.J.A., 2017 BCPC 369 , the applicant filed an application in Kamloops for guardianship, parenting time and protection order, amongst other relief. The respondent opposed the application on the basis that it ought to have been dealt with in the Yukon jurisdiction. The facts are distinguishable from the case at bar as the Court declined jurisdiction on the basis of the required standard that returning the children to the respondent would result in serious harm to them. [ 44 ] Similarly in Charnock v. Charnock , 2016 BCSC 44 , the issue for the Supreme Court in relation to the petition filed by Mr.

Charnock that the children were not habitually resident in British Columbia when the Provincial Court order was made, denied the petition, allowing them to remain due to the potential for serious harm if they were removed from British Columbia. The evidence of Ms. Charnock, which the Court accepted, was of unreasonable restrictions by Mr. Charnock to her financial and personal autonomy, intimidation, harassment, coercion and threats to her and the children over an extended period. [ 45 ] The British Columbia Supreme Court in Walker v.

Dowhaniuk , 2018 BCSC 2189 held that the parents had a toxic relationship and the mother had moved the child to British Columbia from Alberta wrongfully as the child was not habitually resident in British Columbia when the application was filed, the criteria regarding the forum conveniens were not met, there was no evidence that the child would suffer serious harm if removed and returned to the other jurisdiction, and that the child had no real and substantial connection with British Columbia.

Despite finding that the more appropriate jurisdiction to be exercised was Alberta, not British Columbia, the mother was not ordered to return the child to Alberta at that time, but her application was stayed and she was directed to participate in any action the father commenced in British Columbia. Counsel for Ms. O. submits the Court should consider that course of action as an alternative. FINDING AND ORDER [ 46 ] It is clear on the affidavit material and the evidence of Ms. O. that she removed the child, O.F.O., to British Columbia under false pretences. She did not tell Mr.

F. that she intended to stay permanently with both children, and find an apartment and employment in Victoria. They corresponded daily after she arrived in Nanaimo in June 2020, for a wedding which did not occur. [ 47 ] She invited Mr. F. to come to Victoria to live with her and the children, and encouraged him to apply for work with transit in Victoria. [ 48 ] Once he refused to do so, which is not surprising as his extended family are all in Toronto, she cut off contact with him and obtained an ex parte protection order. After obtaining the order, she advised the police in Toronto. Mr.

F., who does not have a criminal record, found himself in trouble with the law when he asked the police to try to find out where Ms. O. and the children were and is now facing charges. [ 49 ] He is living with his mother, who has a close bond with O.F.O. as she has babysat him on many occasions, and he spends time with her and the extended family members. He continues to look after the dog appropriately. [ 50 ] Ms. O. has not persuaded me that she feared for her safety, or the safety of the children, as her behaviour suggests that she was planning on leaving Ontario and initially asked Mr. F. to join her.

Judging by the texts between them, she was not happy about the fact that Mr. F. may have been communicating with an ex-partner. The texts were heated on both sides and disrespectful, but once she had come to Vancouver Island their communication was far less discordant. [ 51 ] Ms. O. testified that he had been violent with the dog, but she left the dog with him instead of finding someone to look after it while she was away. She testified she had family in the area. [ 52 ] He is now living with his mother and there is no reason why he should not be able to continue living there with O.F.O. for the

foreseeable future. [ 53 ] On the strength of the testimony of Ms. O. and the affidavits of both parties and Mr. F., it is clear on the facts that Ms. O. intended to move to British Columbia permanently before she left and that she was not honest with him about moving, effectively cutting off his parenting time with both children, but principally O.F.O., who is only three years of age and has not seen his father since June 2020, which is certainly not in the child’s best interests. [ 54 ] Ms.

O. was not candid with the Court and there were aspects of her testimony that were not credible, such as her profound fear of Mr.

F. which is not borne out by the tenor of the texts she was sending him after she got to Nanaimo up until he told her he would not come out to live with her in Victoria. [ 55 ] On the basis of the evidence and case law provided and the provisions of the relevant sections of the FLA , I find that O.F.O. was wrongfully removed unilaterally by his mother, that he is not habitually resident in British Columbia, and that there is insufficient evidence to persuade me that he is likely to come to any substantial harm if he is returned to Ontario.

Furthermore, the father has commenced a proceeding in Toronto which is the forum with the best evidence respecting parenting issues and witnesses who would be familiar with the issues to assist the court in determining the child’s best interests. ORDERS Accordingly I make the following orders: [ 56 ] The Court with jurisdiction to hear this matter in all respects is the Ontario Superior Court of Justice, 393 University Avenue, Toronto; [ 57 ] Mr.

F. is to have interim custody of O.F.O. (DOB: [omitted for publication]) until further order; [ 58 ] The child, O.F.O., is to return to Toronto, Ontario on or before 8 p.m. on February 28, 2021 in the interim custody of R.F.; [ 59 ] The protection order made in Nanaimo, BC, made July 16, 2020, and subsequently extended to July 17, 2021, in relation to the child O.F.O. is deleted; [ 60 ] The pleadings in Nanaimo on file [omitted for publication] are stayed for lack of jurisdiction. _____________________________ The Honourable Judge J. E. Saunders Provincial Court of British Columbia