T.G.P. APPELLANT AND: M.G.J . RESPONDENT, 2016 NLCA 12

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : T.G.P. v. M.G.J. , 2016 NLCA 12 Date : March 23, 2016 Docket : 201601H0031 BETWEEN: T.G.P. APPELLANT AND: M.G.J . RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division 201604F0044 Appeal Heard: March 23, 2016 Decision Rendered: March 23, 2016 (Orally) Reasons for Oral Decision filed: March 24, 2016 Reasons for Oral Decision by Welsh J.A. Concurred in by White and Hoegg JJ.A.

Counsel for the Appellant: James Bennett Counsel for the Respondent: Self Represented (Teleconference) Welsh J.A.: [ 1 ] This is an appeal of an order of the Newfoundland and Labrador Supreme Court, Family Division, dated March 17, 2016, requiring the father to return his six-year-old son to the care of the child’s mother in Edmonton, Alberta. The father refused to return the child at the conclusion of his Christmas visit in December 2015.

He alleged that the child had been sexually abused by a male acquaintance of the mother and that it would be unsafe to return the child given the possibility of further abuse. [ 2 ] Relying on an order from the Alberta provincial court, dated June 1, 2015, granting “day to day parenting of the child” to the mother, with specified periods of parenting time (access) to the father, the mother applied to the family court in this Province to enforce an order requiring the father to return the child to the mother’s care in Alberta.

When the question was raised by the father, the applications judge declined jurisdiction to consider the custody and access issues in this Province, having found Alberta, in the circumstances, to be the appropriate forum. She granted an order, with conditions, for return of the child to Alberta. [ 3 ] Because the appeal involves a child, in order to proceed without delay, transcripts were obtained on an expedited basis.

In the meantime, on March 21, 2016, this Court granted a temporary stay of enforcement of the applications judge’s order to allow for the relevant documentation to be filed and served, and the appeal heard. The Law [ 4 ] The Children’s Law Act , RSNL 1990, c. C-13, governs this proceeding.

Section 25 of that Act sets out the purposes of the Part dealing with custody and access: The purposes of this Part are:

(

a) to ensure that application to the courts in respect of custody of, incidents of custody of and access to, children will be determined onthe basis of the best interests of the children; (

b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than 1 province, territory or state in respect ofthe custody of the same child ought to be avoided, and to make provision so that the courts of the province will, unless there areexceptional circumstances, refrain from exercising or declining jurisdiction in cases where it is more appropriate for the matter to bedetermined by a tribunal having jurisdiction in another place with which the child has a closer connection; (

c) to discourage the abduction of children as an alternative to the determination of custody rights by the judicial process; and (

d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody andaccess orders made outside the province. [5] In discussing a similar provision in Brooks v. Brooks (1998), (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.),Osborne J.A., for the Court, explained: [21] …

Part III of the Children’s Law Reform Act, and similar legislation in other provinces, is intended to avoid forum shopping andthe inappropriate removal of children from one jurisdiction to another. [22]

Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures forthe resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure thebest information relevant to the children’s best interests, it is also important that jurisdiction over custody/access disputes not be undulyfragmented and prolonged, as has occurred here. [6]

Section 49 of the Act is directed to preventing inconsistent custody and access orders being made in different jurisdictions. Subsection (1) provides: Upon application by a person in whose favour an order for custody of or access to a child has been made by an extra-provincial tribunal,a court shall recognize the order unless the court is satisfied … (

e) that, in accordance with

section 28, the extra-provincial tribunal would not have jurisdiction if it were a court in the province. [7] In this case, counsel advised that the family court registry refused to accept the father’s application for custody which heattempted to file in response to the mother’s application for return of the child to her care. In fact, the registry should have accepted theapplication which would, then, be dealt with by the judge in accordance with

section 28. [8] As it turned out, the submissions of the father regarding custody were considered by the applications judge who ultimatelydeclined jurisdiction regarding that issue. In order to apply

section 49 of the Act, the applications judge canvassed sections 28 and 29 ofthe Act. [9] Section 28(1) of the Act sets out criteria to be applied in determining whether a court will exercise jurisdiction over matters ofcustody of and access to a child. The following are relevant in this case: 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 the province, the court is satisfied (

i) that the child is physically present in the province at the start of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in the province, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where thechild is habitully resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in the province, (

v) that the child has a real and substantial connection with the province, and (vi) that, on the balance of convenience, it is appropriate for the jurisdiction to be exercised in the province. On the clear language of the provision, all of the factors in paragraph (

b) must be satisfied where the child is not habitually resident inthe Province. [10] Section 28(3) deals with habitual residence of a child: The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residenceof the child unless there has been acquiescence or undue delay in starting judicial proceedings by the person from whom the child isremoved or withheld. [11] In this case, the applications judge correctly determined that the child is not habitually resident in this Province. As discussedbelow, she was not satisfied that the factors in section 28(1)(

b) were satisfied.

[12]

Section 29 of the Act provides an exception to

section 28 where there is a risk of serious harm to a child: Notwithstanding sections 28 and 49, a court may exercise its jurisdiction to make, vary or rescind an order in respect of the custody of oraccess to a child where (

a) the child is physically present in the province; and (

b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if ... (ii) the child is returned to the custody of the person entitled to custody of the child, … [13]

Section 30 deals with the judge’s discretion to decline to exercise jurisdiction: A court having jurisdiction under this

Part in respect of custody or access may decline to exercise its jurisdiction where it is of theopinion that it is more appropriate for jurisdiction to be exercised outside the province. [14] In P.Y. v.

L.C. (2003), (NL SC), 222 Nfld. & P.E.I.R. 115 (NLTD(F)), LeBlanc J. discussed the situationwhere, as in this case, an allegation of abuse is made by the non-custodial parent residing in a different jurisdiction from the custodialparent: [21] [Section 29 of the Act] permits the court to exercise its discretion in deciding on the question of jurisdiction where there is afinding of potential serious harm to a child if jurisdiction is declined. It should be noted that even when such a potential is found, it isnot mandatory that the court accept jurisdiction.

The court must obviously consider the evidence before it and balance this evidence withthe other circumstances of the case which tend to suggest that another court should have jurisdiction. Obviously the potential of harm tothe child has predominant standing in any such situation but where the risk of serious harm can be managed or eradicated, wherejurisdiction definitely belongs with another court, that court should proceed to hear the case.

In such a situation, the best interests of thechild are more likely to be properly determined giving each parent a proper opportunity to place the relevant evidence concerning thedispute before the court. In other words, the best interests of the child may not necessarily be met by an acceptance of jurisdiction in allcases where the potential for serious harm is identified. … [32] This is not a case about technicality. Jurisdiction is extremely relevant to any hearing of a dispute.

In this case while the motherhas applied to this court for custody, that matter is more properly determined in the courts of the province where J. has spent practicallyall of her life. For me to accept jurisdiction in this case would amount to a situation where the court may not hear all of the relevantevidence on the issue and to act contrary to the legislated purposes of

Part III of the Children’s Law Act. … [15] I note that the father relies on the decision in Wilson v. Perry (2000), 2000 NFCA 4 , 184 Nfld. & P.E.I.R. 1 (Nfld.C.A), in support of his submissions. However, that case must be distinguished on the basis that the point in issue was a determinationregarding the habitual residence of the child. In this case, there is no basis on which to interfere with the judge’s decision that the childis habitually resident in Alberta, and that

section 29 of the Act is engaged. [16] The father also relies on Johnson v. Lennert (1998), (NL CA), 167 Nfld. & P.E.I.R. 167 (Nfld. C.A.). However, that decision deals with a provision of the Divorce Act which is different from the provisions of the Children’s Law Act, theapplicable legislation in this case. Application of the Law [17] In this case, the applications judge, having considered the evidence and the relevant legislation, declined jurisdiction to considerthe custody and access issues.

However, in granting the mother’s application for return of the child to Alberta, she made an ordercontaining provisions directed to addressing the father’s concerns regarding possible sexual abuse, in particular:

(3) The [father] shall be permitted to contact any professionals involved with [the child] including teachers, child protection workers,doctors and child care providers; …

(8) The [mother] shall not let Patrick Baretto be present in her residence at any time;

(9) The [mother] shall prohibit any contact or communication between Patrick Baretto and [the child]; …

(11) The [father] shall contact Ms. Heather Bates of Child Protection Services in Edmonton, AB as well as the detective, Jack Nichol, toadvise them of the date of [the child’s] return to Alberta. In addition, the order precludes the mother from removing the child from Edmonton without the written permission of the father or acourt order. [18] The judge heard testimony from the father, the mother and two social workers with Child, Youth and Family Services. On thisbasis, she concluded that:

(1) The mother is an appropriate, capable and protective parent;

(2) If there is a risk to the child, it arises from the alleged conduct of an acquaintance of the mother, a risk which can be managed through child protection services, if necessary, and with an order eliminating any contact between the child and the mother’s acquaintance;

(3) While the child has been in this Province for approximately three months, this was a result of the father’s refusal to return him to Alberta;

(4) The child has a substantial connection to Alberta, and not to this Province;

(5) The majority of the evidence relevant to the child’s best interests is in Alberta; and

(6) It was not established on a balance of probabilities that the child would suffer serious harm if he was returned to his mother’s care. [ 19 ] It is clear from a reading of the transcript that there is no basis on which to challenge these determinations. The judge considered the father’s evidence regarding the conduct of the child that was of concern and the child’s explanations. She reviewed the evidence of the social workers and considered the exchange of information among police officers and social workers in both jurisdictions.

The judge accepted the mother’s evidence that she shared her residence with two others, not Mr. Baretto. In addition, while the mother has been in Canada under a temporary work visa, she is taking steps to become a permanent resident and has had her temporary permit extended to May 2017.

The child has lived in Edmonton all his life and, prior to the Christmas visit in this Province, was attending grade one near his mother’s residence. [ 20 ] I would add one comment regarding the affidavit provided to this Court by the mother in which she states: 10. … I will do everything I can to keep our child away from Patrick, as indicated in the order. As noted above, the order, in fact, sets out specific terms on this issue. Until she obtains a court order to the contrary, the mother will be expected to comply with the requirements that she shall not allow Mr.

Baretto to be present in her residence at any time and that she shall not permit any contact or communication between him and the child. [ 21 ] I also make note of the mother’s statement in her affidavit: 16. I have roots here in Edmonton, I have friends, I volunteer in the community, I am connected with my church and my child is here. I want and plan to keep living here in Canada to be with our child. This is consistent with the evidence heard by the judge. [ 22 ] A question was raised as to clauses 5, 6 and 7 of the applications judge’s order. These state:

(5) Within fourteen (14) days from the date of this Order, the [father] shall file an Application for custody of [the child] with the appropriate Court in Alberta, as well as an Interim Application for access, if necessary;

(6) The parents shall obtain the earliest possible court date in Alberta for the hearing of the custody and access issues between the parties;

(7) The parties shall participate in any mediation; [ 23 ] These clauses have been struck from the order on the basis that they do not relate to the question before the judge, that is, return of the child to the mother’s care. If the father wishes to bring an application for custody to be dealt with by the Alberta courts, he is free to do so. However, there is no basis for ordering him to do so. The remaining clauses of the order are sufficient to ensure that the possibility of harm to the child is managed. [ 24 ] Finally, the mother asks for her costs in this Court and in the Court below.

Such an order is appropriate in the circumstances. There was no allegation that the mother abused the child. There was a custody and access order in place in Alberta. While it may have been inconvenient for the father to deal with the question of possible abuse by Patrick Baretto in Alberta, such inconvenience is an unavoidable consequence of the parties residing in different provinces.

Summary and Disposition [ 25 ] In

summary, the applications judge did not err in declining jurisdiction to consider custody and access issues in this Province, having found Alberta, in the circumstances, to be the appropriate forum, and in granting the mother’s application, with conditions, requiring the return of the child to Alberta. [ 26 ] At the hearing, the appeal was dismissed. The temporary stay of enforcement of the applications judge’s order was set aside.

The applications judge’s order was affirmed with the following exceptions: (1) clause 1 of the order was amended such that the father shall have fourteen days from March 23, 2016 to return the child to his mother’s care; and (2) clauses 5, 6 and 7 of the order were deleted. [ 27 ] It was ordered that the mother shall have her costs under column 3 of the scale of costs in this Court and in the Court below. ____________________________________

B. G. Welsh J.A. I Concur: _____________________________________ C. W. White J.A. I Concur: _____________________________________ L. R. Hoegg J.A.