2019 ONCJ 869, 2019 ONCJ 869

CITATION: Dhillon v. Gill , 2019 ONCJ 869 DATE: December 2, 2019 Court File Number: 976/18 ONTARIO COURT OF JUSTICE 7755 Hurontario Street, Brampton, Ontario Endorsement: Justice L.S. Parent Applicant: Rajveer Kaur Dhillon Counsel: Deepa Singh Respondent: Sukhdeep Singh Gill Counsel: Supriya Joshi Nature of the proceedings [ 1 ] On October 21, 2019, I heard a motion, brought on behalf of the Respondent, Mr. Gill, seeking an order dismissing the Applicant, Ms.

Dhillon’s, Application filed in this court on September 20, 2018. [ 2 ] The parties are the parents of one child, namely Harjap Singh Gill, born […], 2017. [ 3 ] On September 20, 2018, Ms. Dhillon filed her Application seeking this court to determine the issues of custody, access, child support and other claims. Mr. Gill has not filed an Answer to the Application as since the initial appearance in this court, he has disputed the court’s authority to make decisions regarding his child. [ 4 ] The history of this litigation, as confirmed in the court record, is as follows:

a) Application filed September 20, 2018;

b) First Appearance Court on November 22, 2018;

c) Initial case conference on February 25, 2019;

d) Matter adjourned on consent to April 18, 2019 to allow time for discussions between the parties and their counsel;

e) Case conference held on April 18, 2019. A motion on the issue of jurisdiction scheduled for June 5, 2019. Filing deadlines ordered on consent;

f) Motion adjourned on consent on June 5, 2019 on the basis that the parties were nearing a resolution. Matter adjourned to a case conference on July 11, 2019;

g) Case conference held on July 11, 2019. A motion on the issue of jurisdiction scheduled to proceed on September 9, 2019. Filing dead​lines ordered on consent; and

h) Contested adjournment of the motion heard on September 9, 2019. Adjournment granted on terms. Motion scheduled to proceed on October 21, 2019. Position of the parties [ 5 ] Mr. Gill’s Notice of Motion located at Tab 1 of Volume 2 of the Continuing Record seeks an order dismissing the Application filed September 20, 2018. In support of his position, Mr. Gill has filed an affidavit sworn July 20, 2019, located at Tab 3 of Volume 2 of the Continuing Record. [ 6 ] Counsel for Mr. Gill summarizes her client’s position by submitting that this court does not have jurisdiction to make an order

regarding Harjap as the child has never and is not habitually resident in Ontario. [ 7 ] In addition to the motion materials, counsel for Mr. Gill has filed a Factum and Book of Authorities to support her client’s position. [ 8 ] Ms. Dhillon’s position is that this court does have jurisdiction to make orders regarding Harjap. In support of her position, Ms. Dhillon has filed two affidavits, sworn August 21, 2019 and September 20, 2019. [ 9 ] In addition to her affidavits, counsel for Ms. Dhillon has filed a Factum and Book of Authorities. Facts not in dispute [ 10 ] A review of the evidence indicates the following facts are not in dispute between the parties:

a) The parties were married on February 4, 2017 in Bhaini Para, District Ludhiana, India;

b) The parties have one child born of their relationship, namely Harjap Singh Gill, born […], 2017;

c) At the time of marriage, Mr. Gill was a resident of Canada, living and working in Abbotsford, British Columbia;

d) Mr. Gill had resided in British Columbia since 2014;

e) At the time of marriage, Ms. Dhillon was a resident of India;

f) One week following the parties’ marriage, Mr. Gill returned to Abbotsford, British Columbia while Ms. Dhillon remained in India;

g) Mr. Gill sponsored Ms. Dhillon’s application to come to Canada;

h) Upon approval of Ms. Dhillon’s sponsorship application, the parties agreed that Ms. Dhillon and Harjap would come join Mr. Gill in British Columbia;

i) Ms. Dhillon and Harjap arrived in British Columbia on July 4, 2018;

j) Ms. Dhillon and Harjap left British Columbia for Ontario on July 18, 2018;

k) The parties and Harjap never resided together for the fourteen (14) days Ms. Dhillon and Harjap were in British Columbia;

l) On August 31, 2018, Mr. Gill commenced, in the Supreme Court of British Columbia, his Application;

m) On September 20, 2018, Ms. Dhillon commenced, in the Ontario Court of Justice, her Application;

n) There exists no legal document between the parties regarding Harjap’s care; and

o) The Application filed by Mr. Gill on August 31, 2018 was the first legal proceeding addressing the parenting issues regarding their child commenced by either party. Legislative Framework [ 11 ] There is no dispute between the parties that the relevant legislation is the Children’s Law Reform Act , R.S.O. 1990, c. C.12 , as am. (“ the Act ”). [ 12 ] Counsel have jointly submitted that the authority to consider the issue of jurisdiction applicable in this case is limited to sections 22 and 25 of “ the Act ”. Section 22(1)(a) – Jurisdiction if habitually resident in Ontario [ 13 ] Section 22(1)(

a) of “ the Act ” provides as follows: “ A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (

a) The child is habitually resident in Ontario at the commencement of the application for the order; …” [ 14 ] Section 22(2) of “ the Act” states as follows: “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 (

c) with a person other than a parent on a permanent basis for a significant period of time.” Section 22(1)(b) – Jurisdiction if not habitually resident in Ontario

[ 15 ] Section 22(1)(

b) of “ the Act” provides as follows: “A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,… (

b) although the child is not habitually resident in Ontario, the court is satisfied, (

i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) 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, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (

v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.”

Section 25 – Declining jurisdiction [ 16 ]

Section 25 of “ the Act ” provides as follows: “A court having jurisdiction under this

Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside of Ontario.” Analysis Habitual Residence – section 22(1)(

a) and 22(2)(b) [ 17 ] Counsel on behalf of Ms. Dhillon submits that Harjap has been habitually resident in Ontario with the consent, implied consent or acquiescence of Mr. Gill since July 18, 2018. [ 18 ] Ms. Dhillon’s evidence in support of her position is based on her belief that Mr. Gill ended their marriage without any explanation, abandoned her and Harjap, and provided no financial assistance to her upon her arrival in British Columbia. [ 19 ] Ms.

Dhillon’s position is summarized at paragraph 25 of her affidavit, where she states: “ With no money and no other option, I spoke with my parents and my brother who reside in Brampton, Ontario, Canada and they made plans to send me money and made travel arrangements so I could go to Ontario to live with them.” [ 20 ] Mr. Gill denies that he acquiesed to the removal of Harjap from British Columbia to Ontario. His counsel submits that the evidence is clear that on August 31, 2018, Mr.

Gill filed in the Supreme Court of British Columbia a “ Notice of Family Claim ” wherein he seeks an order for divorce, for primary residence of Harjap to be with him, for joint guardianship of Harjap with Ms. Dhillon and for child support. [ 21 ] Counsel submits that the filing of the claim in British Columbia supports Mr. Gill’s position that Ms. Dhillon left British Columbia with Harjap without his knowledge and/or his consent. [ 22 ] In further support of Mr. Gill’s position, counsel also references paragraph 34 of Ms.

Dhillon’s affidavit wherein she states: “ I did not believe I required Sukhdeep’s consent as he had no intention of taking care of me or Harjap.” [ 23 ] After a review of all of the evidence, I find that the criteria of section 22(2)(

b) of “the Act” has not been met. The evidence of both parties does not lead me to accept Ms. Dhillon’s position that Mr. Gill consented that Harjap’s habitual residence would be with his mother in Ontario. [ 24 ] I also find that the evidence does not support Ms. Dhillon’s position that Mr. Gill acquiesced through his actions and/or behaviour to the removal of Harjap to Ontario. [ 25 ] The evidence is not disputed that the parties separated on July 4, 2018, Ms. Dhillon left Brisitsh Columbia with Harjap on July 18, 2019. Mr.

Gill initiated his claim before the Supreme Court of British Columbia on August 31, 2018. [ 26 ] I find that the evidence provided by both parties confirms that for the period between July 18 and August 31, 2018, the parties, with the assistance of their respective family members, were exploring the possibility of reconciliation. I find that the evidence does not support however that an agreement was reached between the parties that should reconciliation not occur, Ms. Dhillon and Harjap would remain in Ontario with Mr. Gill’s consent.

[27] I therefore find that Harjap is not habitually resident in Ontario at the commencement of the Ms. Dhillon’s application pursuant tosection 22(2) of “the Act”. Accordingly, I find that I cannot exercise my authority and make an order regarding custody of or access toHarjap pursuant to section 22(1)(

a) of “the Act”. Section 22(1)(b) – Jurisdiction if not “Habitually Resident” [28] Section 22(1)(

b) of “the Act” permits the court to exercise jurisdiction over a child who is not habitually resident in Ontario. [29] The wording of section 22(1)(

b) is clear that all six (6) conditions must be established for the court to have the authority toexercise its discretion in such circumstances. [30] This approach was adopted by the Ontario Court of Appeal in its decision in Murray v. Ceruti, 2014 ONCA 679. The Court statesat paragraph 24 as follows: “As a starting point, the motion judge correctly determined that the only way the Superior Court could exercise jurisdiction was if allthe criteria in s. 22(1)(

b) were met: Turner v. Vian (2002), (ON CA), 26 R.F.L. (5th) 440, at para. 9 (Ont. C.A.)” [31] There is no dispute between the parties that criteria (

i) and (iv) of section 22(1)(

b) are satisfied. There is disagreementbetween the parties regarding whether or not criteria (ii),(iii), (

v) and (vi) are satsified. (2) Section 22(1)(b)(ii) – “substantial evidence” [32] Counsel for Ms. Dhillon submits that the criteria of subsection 22(1)(b)(ii) is satisfied. [33] The court in Nichols v. Nichols, (ON CJ), at paragraph 14 of its decision, states that in considering thecriteria in subsection (ii), the approach is not one which requires a comparative approach between the competing jurisdictions in order toestablish “substantial evidence.” [34] This approach was also adopted by the Ontario Court of Appeal in Murray v.

Ceruti (paras. 25 to 27). [35] Criteria (ii) of “the Act” requires the threshold of “substantial evidence” to be met and that this evidence be directly linked tothe “best interests of the child”. [36] Turnbull, J. in the decision of Solem v. Solem, 2013 ONSC 1097, stated at paragraph 56 “it is not sufficient that Ontario havesome evidence concerning a child’s best interests. The evidence must be substantial”. [37] Counsel for Ms. Dhillon has provided the decision of Mesbur, J in Nordin v. Nordin, (ON SC), [2001] O.J.No. 599 (S.C.J.).

At paragraph 9 of her decision, Mesbur, J states the following: “Although the children now have teachers, instructors and doctors here, they are of little assistance in providing the historical view ofthe children’s interests, and their relationship with both parents, which the court finds most helpful. Truly independent evidence is morereadily available in Japan, as opposed to the very recent evidence the wife is no doubt structuring here in Ontario since her arrivalhere.” [38] At paragraphs 8 and 9, Mesbur, J. further states: “I adopt the court’s reasoning in Gilbert v.

Gilbert (1985), (ON SC), 47 R.F.L. (2d) 199 (Ont. U.F.C.) where it heldat page 208 that the evidence in Ontario must be substantial. It is not sufficient that there be some evidence. Here, there is no questionthere is some evidence about the best interests of the children available in Ontario. The children’s mother is here and will have a greatdeal to say about them. Her family members have observed her parenting in the last few weeks, and over holiday periods.

However,holiday times and vacation periods tend to be times of relaxed routines, different than the day to day parenting that is required for thesechildren.” “As the court stated in Gilbert, "independent witnesses are often the deciding factors in these cases". The court looks for non-alignedwitnesses who can give the court an objective view of the children.” [39] Applying these principles to the evidence presented by the parties, I find that the criteria of section 22(1)(b)(ii) has been met. [40] I accept counsel for Ms. Dhillon’s submissions that there is substantial evidence in Ontario given that Ms.

Dhillon and Harjaphave resided in Ontario since July 18, 2018. Ms. Dhillon’s evidence is not disputed by Mr. Gill nor is it disputed that Harjap was only inBritish Columbia for ten (10) days. (3) Section 22(1)(b)(iii) – “pending application” [41] The evidence is clear that Mr. Gill initiated an application for custody in the province of British Columbia on August 31, 2018.

This is not disputed by Ms. Dhillon. [ 42 ] Criteria (iii) requires that no application for custody or access be “... pending before an extra-provincial tribunal in another place where the child is habitually resident.” [ 43 ] Although not specifically submitted by counsel for Ms. Dhillon, submissions could be presented that the court in British Columbia has not determined Harjap’s habitual residence as it has adjourned its hearing pending the determination of the issue of jurisdiction by this court in Ontario. [ 44 ] Justice Reid in his decision in McMurtrie v.

McMurtrie, 2011 ONSC 4972 , considered this issue when determining jurisdiction between the province of Ontario and the state of New York. [ 45 ] Justice Reid states at paragraph 33: “ I have considered and rejected the husband’s claim that this court can exercise jurisdiction for failure of the New York court to assume jurisdiction in a clear and aggressive manner.

In fact, neither the Children’s Law Reform Act nor the Divorce Act , in the matter of jurisdiction, requires that the other court enter upon its jurisdiction but rather our statutes focus on the commencement or pending status of the prior application.” [ 46 ] It is not disputed between the parties that there is a pending custody application before the court in British Columbia. It is also not disputed that this application was the first application filed. [ 47 ] For these reasons, I find that criteria (iii) of section 22(1)(

b) of “the Act” has not been met by Ms. Dhillon. (4) Section 22(1)(b)(v) – “real and substantial connection with Ontario” [ 48 ] Counsel for Ms. Dhillon submits that this criteria of

section 22 is satisfied, at a minimum, on the undisputed facts between the parties regarding the time Harjap has spent in Ontario, namely over sixteen (16) months compared to ten (10) days in British Columbia. [ 49 ] Counsel submits therefore that the facts support a determination that Harjap has a real and substantial connection with Ontario. [ 50 ] The Nichols decision also addresses the analysis to be adopted in the determination of whether the criteria of section 22(1)(b) (

v) has been met. [ 51 ] Schnall, J in addressing the criteria of “ a real and substantial connection” states: “Subclause 22(1)(b)(

v) refers the child’s having a real and substantial connection with Ontario. Again, as in subclause (ii), the test is not a comparative one, it is not a question of whether the connection with Ontario is greater than that with the jurisdiction where the child was habitually resident. Each case must be considered on its own facts to determine whether or not the child has a real and substantial connection with Ontario.” [ 52 ] The evidence of both parties is clear that Harjap has spent most of his young life in Ontario. I would therefore agree that Harjap does have a real and substantial connection with Ontario and that the criteria in section 22(1)(b)(

v) has been met by Ms. Dhillon. (5) Section 22(1)(b)(vi) – “balance of convenience” [ 53 ] Criteria (iv) requires that “on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario”. [ 54 ] Turnbull , J stated at paragraph 64 in Solem , that the criteria of convenience is met when: “ Where the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction.” [ 55 ] I agree with counsel for Mr. Gill’s submissions that the Ms.

Dhillon’s ability to rely on evidence regarding Harjap’s best interest has been acquired by her own actions and without the consent or acquiescence of Mr. Gill. [ 56 ] The undisputed facts however regarding the time Harjap has been in the provinces of Ontario and British Columbia cannot be ignored. The evidence supports a determination that the independent evidence that will be of greatest assistance to the court in determining Harjap’s best interest will be in Ontario. [ 57 ] For these reasons, I find that criteria (vi) of section 22(1)(

b) of “the Act” has been met. [ 58 ] I have found that all but one, namely

section (iii) of the criteria of section 22(1)(

b) of “the Act”, have been met. Even with these determinations, I cannot exercise any jurisdiction to make an order regarding the custody of or access for Harjap pursuant to section 22(1)(

b) of “the Act”. Declining Jurisdiction and Other Relief [ 59 ] I have found that Ontario has no jurisdiction pursuant to section 22(1)(

a) or (

b) of “the Act” to determine the issues of custody

and access regarding Harjap . Given this determination, it is not necessary for me to consider declining jurisdiction pursuant to sections 25 o f “the Act”. [ 60 ] The motion brought on behalf of Mr. Gill sought an order limited to the dismissal of Ms. Dhillon’s Application for lack of jurisdiction. The motion did not seek any interim orders pursuant to

section 40 of “the Act”. I also note that Ms. Dhillon, neither in her materials or during counsel’s submissions, did not request that the court exercise its authority under

section 23 of “ the Act” . Order [ 61 ] For the reasons stated above, the motion brought on behalf of Mr. Gill is granted. The Application filed September 20, 2018 is therefore dismissed. The initial case conference scheduled for December 18, 2019 at 10:00 a.m. in Courtroom #209 is vacated. Costs [ 62 ] If the parties are unable to come to an agreement, written submissions limited to the issue of costs can be served and submitted, to my assistant, in accordance with the following timelines:

a) By counsel on behalf of Mr. Gill, limited to 3 pages in length excluding offers to settle and a Bill of Cost, by December 16, 2019;

b) By counsel for Ms. Dhillon, limited to 3 pages in length excluding offers to settle and a Bill of Cost by January 10, 2020; and

c) Any submissions in reply by counsel for Mr. Gill, limited to one page in length, can be served and submitted by January 17, 2020. _________________ Justice L.S. Parent