G.M. Applicant v. J.G., 2023 NBKB 57

2023 NBKB 057 COURT FILE: FDSJ 6-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: G.M. Applicant and J.G. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: March 13, 2023 Date of Decision: April 12, 2023 Appearances: Charles M. Bryant - for the Applicant Stéphanie M. Cormier - for the Respondent

Summary: Jurisdiction, including dual habitual residence, pursuant to s. 68 of the Family Law Act and whether to decline to exercise jurisdiction under s. 70 of the Family Law Act DECISION DELAQUIS, J.:

[ 1 ] The parties are the biological parents of one child, M.M. [D.O.B. (…) 2018]. The child was born in New York, U.S.A. The Applicant is a Canadian citizen and resides in Saint John, New Brunswick. The Respondent is an American citizen and currently resides in New York. The child enjoys dual citizenship and is currently five years old. [ 2 ] The parties met in November 2016 in New Brunswick and although they were engaged sometime in 2017, they were never married. They lived in New York until October 25, 2018, at which time they moved, as a family, to Saint John.

They eventually separated in June 2019 after which the Respondent worked as a nurse on a contract basis in different states in the United States. [ 3 ] On July 11, 2020, the parties signed a Custody and Support Agreement (the “Custody Agreement”). At that time, the child was two years old. Clause 1 of the Custody Agreement provided for joint custody, with the child “(…) spending half of each year in the care of each parent, alternating monthly (…)” as well as the Respondent making up for missed parenting time due to Covid-19.

However, Clause 6 of the Custody Agreement stated that: “Anticipating that this agreement will need to be revisited for [the child’s] schooling, this agreement will expire on December 21, 2022”. [ 4 ] The Applicant agreed to provide the Respondent with extra parenting time over the Christmas break in December 2022 and to therefore begin his parenting time on or about December 26, 2022. However, on December 5, 2022, the Respondent filed a petition seeking custody of the child in the Family Court of the State of New York, County of Queen’s.

Then, on December 14, 2022, the Respondent sent an email to the Applicant advising him that she had retained counsel in New York who “told me I needed to file a petition in Family Court since [the child] is going to be starting school in the fall.” [ 5 ] The Applicant retained counsel in New Brunswick. The Applicant travelled to Portland, Maine on December 26, 2022, expecting to have parenting time, but the child was withheld from him by the Respondent based on advice from counsel from New York.

Lawyers for both parties communicated thereafter but were unsuccessful in coming to an agreement as to the Applicant’s parenting time and in respect of which Court had jurisdiction to make or vary a parenting Order.

The Applicant therefore returned to New Brunswick and filed the within Application on December 30, 2022, as well as a Petition in New York January 23, 2023. [ 6 ] The question to be determined at this stage is whether this Court has jurisdiction to make a parenting Order and if so, whether the Court should decline to exercise its jurisdiction pursuant to the applicable provisions of the Family Law Act , S.N.B. 2020, c.23 (the FLA ).

PROCEDURAL HISTORY [ 7 ] As a result of ongoing custody proceedings in New York, I will canvass the procedural history in some detail. [ 8 ] On December 5, 2022, the Respondent signed and filed a Petition for Custody in the Family Court of the State of New York, County of Queen’s (Docket No. V-19609-22) seeking custody of the child (the “New York Custody Proceedings”).

The Respondent sent the Applicant a copy of the Petition by email on December 13, 2022. [ 9 ] On December 21, 2022, the Court in New York issued a General Summons to the Applicant with respect to a first court appearance on April 18, 2023. [ 10 ] On December 30, 2022, the Applicant filed an Application in this Court seeking a determination of jurisdiction as well as decision-making responsibility and parenting time in relation to the child pursuant to the FLA .

The Applicant also filed a Notice of Motion seeking ex parte relief on an emergency basis. [ 11 ] This Court directed that a Case Management Conference be held on January 11, 2023. The Respondent did not appear because of the ex parte relief being sought. The Court directed that the Respondent be served with all pleadings, that the Applicant request a complete copy of the New York Custody Proceedings file and for the parties to appear at a further Case Management Conference.

[ 12 ] On January 23, 2023, the Applicant filed a Petition for Custody and Affidavit in New York seeking a writ of habeas corpus for an “Emergency ex parte Order to Show Cause”. The Applicant also asked for a declaration that the New York Court does not have jurisdiction over the matter, as well as the return of the child. [ 13 ] The Parties appeared again in this Court on January 24, 2023. The Respondent had at that time recently retained counsel in New Brunswick but had not filed responding pleadings or evidence.

This Court therefore directed that the Respondent file an Answer and evidence on or before February 3, 2023, that Pre-Hearing Briefs be filed on or before February 21, 2023, and that a hearing take place to determine the issue of jurisdiction on February 24, 2023. [ 14 ] Pursuant to an Order of Justice Connie Gonzalez, the child was produced virtually on January 27, 2023.

Justice Gonzalez then issued the following Order on that same day: ORDERED that pending further order of the court the child is to have parenting time with the Father [the Applicant] commencing Saturday 1/28/2023 4pm until a determination is made in either New York or Canada regarding jurisdiction or until further order of the court. Parents are permitted to have reasonable telephone/video contact with the child. Child is only permitted in the country of United States and Canada. [ 15 ] On January 27, 2023, Justice Cheryl E.

Chambers of the Appellate Division of New York issued an Order staying the Order of Justice Gonzalez pending the determination of the appeal. [ 16 ] On January 31, 2023, the Respondent requested leave of the Court in New York “to file papers in Reply to the Petitioner- Respondent and Attorney for the Child’s responsive papers”.

On February 3, 2023, the Respondent filed her Responding Document as well as an Affidavit in the within matter. [ 17 ] Also on February 3, 2023, the Appellate Division of the Supreme Court of the State of New York rendered a decision dismissing the Respondent’s motion to stay Justice Gonzalez’ Order and ordered that the Applicant was entitled to parenting time with the child commencing no later than February 4, 2023.

For clarity, the Order states as follows: ORDERED that the motion is denied, the respondent shall have parenting time with the subject child in accordance with the order of the Family Court, Queens County, dated January 27, 2023, commencing no later than Saturday, February 4th, 2023, at 4:00 p.m., pending hearing and determination of the appeal, pending a determination in either New York or Canada regarding jurisdiction, or pending further order of the Family Court, Queens County, whichever occurs first. [ 18 ] On February 17, 2023, the Respondent informed the Appellate Division in New York that she decided to withdraw her pending Appeal. [ 19 ] On February 22, 2023, the Applicant filed a lengthy Supplementary Affidavit in the within matter.

In the morning of February 23, 2023, counsel for the Respondent sent correspondence to the Court requesting an adjournment on various grounds. Counsel for the Applicant responded via correspondence opposing the request. [ 20 ] I directed that the parties appear by telephone conference in the late afternoon of February 23, 2023, to address the Respondent’s request for an adjournment and for leave to cross-examine the Applicant.

After hearing submissions from counsel, it was decided on consent that the jurisdiction hearing would be adjourned until March 13, 2023, for a full day with leave to cross-examine the affiants. FACTS

[ 21 ] The facts leading up to the filing of the Application help contextualize the child’s habitual residence. [ 22 ] The Applicant resides in Saint John and confirms in his evidence that he has a support system in place which includes his spouse, mother, father and stepmother, in addition to the child’s grandparents. The Applicant and his spouse are expecting a child as well. [ 23 ] Conversely, the Respondent has re-partnered and bought a property in Nanuet, New York. In addition, their daughter, B.C., was born on […], 2022.

The Respondent also has family in New York. [ 24 ] The Applicant testified that they were engaged and that he intended to marry the Respondent, however she disagrees. [ 25 ] In cross-examination, the Applicant denies ever obtaining a “K-1 Visa”. He says he never advised the Respondent he had one. He says that such a Visa is required when a person works seven consecutive months in the U.S.A. Instead, he traveled back and forth to New Brunswick to break up the time spent in the U.S.A.

He was exploring an employment opportunity in New Brunswick that offered more money, and he eventually accepted it. [ 26 ] In October 2018, they relocated as a family to New Brunswick. When cross-examined on this point, the Applicant insisted that the Respondent did want to move to New Brunswick and that there was no agreement that such a move would be temporary. He says that he was helping her with the process of obtaining a “Skilled Worker’s Visa” so she could find employment as a nurse in New Brunswick. [ 27 ] In July 2019, the parties separated.

The Respondent relocated to Bangor, Maine and worked there as a nurse. In April 2020, the Respondent accepted a nursing position in New York City, where she worked until July 2020. [ 28 ] In any event, a Custody Agreement was drafted by counsel for the Applicant in New Brunswick and executed by the parties on July 12, 2020. The Applicant explained that it was drafted at the request of the Respondent to facilitate their shared parenting time, as well as border crossings during the Covid-19 Pandemic. [ 29 ] The Respondent accepted a nursing position in California from July 2020 until approximately October 2020.

She then worked in New Jersey and subsequently returned to New York. [ 30 ] The Applicant states that the child is enrolled at the pre-school program at Origins Learning Centre in Saint John and “is presently registered to attend kindergarten at Princess Elizabeth School in Saint John.” [Page 186 of Record on Motion]. [ 31 ] The Applicant states that the child has a New Brunswick Medicare card/number, a Social Insurance Number [Exhibit N, page 316 of Record on Motion] and is a registered patient with a family physician, Dr. Katelynn Comeau, in Saint John.

He swears in his Affidavit at page 186 of the Record on Motion, that: “[The child], of course, is a patient of my family physician, Dr. Katelynn Comeau, located at 199 Chelsea Drive, suite 103 in Saint John”. A letter from Dr. Comeau dated January 19, 2022, is situated at page 318 of Record on Motion. He further states that he made an appointment for the child to see Dr. Paul Chase, a dentist, before she underwent dental surgery as the cost would have been covered. He says the Respondent was upset about this and refused to proceed with the surgery in New Brunswick.

The Applicant was allegedly advised about the dental surgery for the child, the day before it was scheduled to happen. [ 32 ] The Respondent counters by saying that the child has a pediatrician, Dr. Julia Oster in Queen’s New York and swears that “[the child] has no family doctor in New Brunswick.” [Page 163 of Record on Motion]. She further states that the child has a dentist, Dr. Elizabeth Kitsos, in Garden City, New York.

The Respondent also confirms that the child attended pre-kindergarten in Queen’s, New York, and is registered to start kindergarten in Nanuet, New York, in August 2023. [ 33 ] The breakdown of parenting time with the child is provided in paragraph 23 of the Applicant’s Affidavit sworn to on December 30, 2022: [The child] spends a majority of her time in my care in New Brunswick. Since our relationship ended, the Respondent has had parenting time with [the child] as follows:

July 2019 until March 2020, we alternated care every two weeks - the Respondent's parenting time occurred in Maine; From 12 July 2020 to mid-October 2020, the Respondent's parenting time occurred in California; From Mid-November 2020 to early December 2020, the Respondent's parenting time occurred in New Jersey; From late February 2021 to 15 May 2021, the Respondent's parenting time occurred in New Jersey; From early September 2021 to 8 December 2021, the Respondent's parenting time occurred in New Jersey; From mid-March 2022 to 12 June 2022, the Respondent's parenting time occurred in New York; and From 13 September 2022 to present, the Respondent's parenting time occurred in New York. [ 34 ] The

schedule was clarified on cross-examination. Precise dates reflecting parenting time with each parent were not provided. As a result, the evidence on this point is only an approximation that I will attempt to set out. [ 35 ] The child resided in the United States from January to October 2018 with both parents. The family moved to Saint John, New Brunswick, and stayed there from October 2018 to July 2019. The Respondent started working in Bangor Maine in July 2019 and from that time until March 2020 (when the Covid-19 Pandemic started), the parents agreed to a 2-week parenting exchange.

The child was in New Brunswick when the pandemic started and the border was closed, so she resided with the Applicant until it reopened in July 2020. [ 36 ] The parties then tried a longer, three-month shared parenting time arrangement. From July 2020 to mid-October 2020, the child resided with the Respondent in California. From mid-October until February 2021, she resided with the Applicant in New Brunswick. From February to May 2021, the child resided with the Respondent. From May to August 2021, the child stayed with the Applicant.

Then, from approximately August to December 2021, the Respondent had parenting time with the child in New Jersey. The Applicant had parenting time from December 2021 to mid-March 2022. The child then resided with the Respondent in New York from March to June 2022. From June 12, 2022, to September 13, 2022, the child was with the Applicant in New Brunswick, then returned for parenting time with the Respondent. The child resided with the Respondent in New York from September 13, 2022, until the Appellate Court in New York ordered the return of the child to the Applicant on February 4, 2023.

At the time of the hearing on March 13, 2023, the child was therefore residing with the Applicant in Saint John. [ 37 ] The Applicant disputes the fact that the Respondent has maintained a “permanent home address” in New York all this time. According to the Applicant, the Respondent’s father lives in Queen’s and she is likely referring to his address. [ 38 ] The Respondent testified that the parties had good communication and cooperation and essentially shared equal parenting with the child up to December 2022.

However, after retaining counsel in New York and filing the Petition on December 5, 2022, the approach changed. The Respondent testified that her New York solicitor required a stipulation that New York was the child’s “home state” – i.e. to agree that New York had jurisdiction – and that the child would attend school in New York before the Applicant could have parenting time with the child.

She stated during her testimony, several times, that she simply followed advice from her New York counsel. [ 39 ] As noted above, both parties retained counsel in December 2022 and as a result, they exchanged correspondence setting out their clients’ respective positions. This correspondence provides some insight into why the Applicant has not had any parenting time with the child between September 13, 2022 and February 4, 2023. [ 40 ] On December 19, 2022, New York counsel for the Respondent sent an email to the Applicant stating the following:

This firm has been retained to represent [the Respondent] in the pending custody matter in New York Family Court, County of Queens. We cannot advise our client to allow [the child] to go to Canada absent a final order of Custody from New York State, with an order from Canada which mirrors the New York State order. To that end, would you consent to New York being [the child’s] home state, our client enrolling [the child] in kindergarten in New York State and you having liberal parenting time in Canada during [the child’s] school breaks and holidays?

If so, please let us know and we can have an agreement drafted as soon as possible so you can have your parenting time with [the child]. [ 41 ] On December 20, 2022, New York counsel for the Respondent sent correspondence to counsel for the Applicant, setting out the Respondent’s position: I am in receipt of your December 19, 2022 e-mail. My client has every intention to cooperate with and coparent with [the Applicant], and intends to continue to foster his relationship with [the child].

My client is prepared to move expeditiously toward a stipulation with [the Applicant] that confirms that New York is [the child’s] home state and habitual residence. [sic] that [the child] will be enrolled in school in New York from September, and that there shall be co- parenting of [the child] with liberal access to [the Applicant]. The stipulation should also provide that a simple New York custody order be issued confirming the stipulation and that a New Brunswick court should then issue a mirror order. Without such orders, we cannot advise our client to permit [the child] to travel to Canada.

My client is more than happy to produce [the child] for [the Applicant] to have parenting time in New York State, provided she hold both of [the child’s] passports. She is also prepared to offer your client make-up time for any and all parenting time he may miss due to the parties not having a custody order at this time. [ 42 ] On December 21, 2022, counsel for the Applicant sent an email to New York counsel for the Respondent, advising as follows: Thank you for your letter of December 20, 2022; unfortunately, your letter did nothing to clarify your client’s intentions.

Please indicate whether your client intends to withhold [the child] from my client in an attempt to coerce agreement as to [the child’s] habitual residence and [the child’s] enrollment in school in New York. The parties have plans to exchange [the child], and my client is not prepared to accept a further delay to his parenting time with [the child]. As indicated in my e-mail, my client cannot agree to the final order you describe, but he is prepared to agree to a temporary agreement which would extend the present agreement between the parties.

The existing agreement is binding upon your client and there has been no history of my client withholding [the child]. There is no legitimate basis for preventing [the child] from visiting her father and her New Brunswick family. Again, my client will not withhold [the child] from your client, and expects that the parties will proceed in good faith to negotiate and/or litigate the issue of [the child’s] residence for the purpose of enrollment in school according to [the child’s] best interests. [ 43 ] On December 22, 2022, New York counsel advised the Applicant’s counsel that: Thank you for your e-mail.

The parties’ agreement will end in a few days. It needs to be replaced by a new agreement that resolves the issue of where the child will go to school. Your client’s unwillingness to enter into any such agreement leaves our client with no choice but to seek a ruling from the New York court in her pending child custody case. [ 44 ] That same day, counsel from New Brunswick responded in an email as follows: My client is not unwilling to entering into an agreement resolving the issue of [the child’s] school. He had not been given the opportunity to discuss such an agreement.

He was threatened that if he did not facilitate obtaining a final order on exactly your client's terms, he would not be able to see [the child]. My client’s resistance to this abuse of process does not exist in the same universe as “unwillingness to enter into” “a new agreement that resolves the issue of where the child will go to school”. My client is interested in discussing the issue on its merits and agrees that a decision should be reached relatively soon.

It is sensible that we pursue a judicial determination in parallel with any discussion, in the event that an agreement cannot be reached, but [the child] should not be denied parenting time with either parent while the issue is being determined. We can provide the parties with a measure of security by drafting and executing an extension of the present agreement - which is still binding upon the parties - to allow the issue to be determined according to [the child’s] best interests.

The prospect of the agreement expiring while [the child] is in my client's care would never justify your subverting the status quo of shared parenting and withholding [the child] from my client. I am confident that course of action would severely prejudice your client's prospects of succeeding on the issue of where [the child] will attend school. My client expects to meet your client or one of her family members to exchange [the child] at 1pm on December 26 in Portland, Maine.

This has been the plan since my client agreed to allow your client additional time with [the child] so your client could have Christmas with [the child], and you have not indicated your client will depart from that plan. Can you advise whether your client wishes to work toward a new temporary agreement or do you prefer to let the status quo govern? [ 45 ] Having not heard anything to the contrary, the Applicant drove down to Portland, Maine to pick up the child on December 26, 2022. The Applicant sent text messages to the Respondent inquiring about why she was not present to exchange the child.

The Respondent provided no response to those text messages. The child was not made available on December 26, 2022, by the Respondent or her family, contrary to the Custody Agreement and the verbal agreement between the parties. [ 46 ] As a result, counsel for the Applicant sent the following email on December 27, 2022: As you may be aware, your client is withholding [the child] from my client in breach of their agreement and contrary to the status quo. My client arrived at the agreed upon meeting place yesterday and remains there in the hope your client will act in [the child’s] best interests.

Your client refuses to communicate with my client to either make arrangements to exchange [the child] or advise him that she will not do so. You have also refused to indicate what your client's plans are regarding this exchange. If we cannot work out a reasonable arrangement for exchanging [the child] today, we will file an application for enforcement of my client's parenting time. Please advise when and where your client is willing to meet my client and on what reasonable conditions.

[ 47 ] Counsel for New York did respond on December 27, 2022, essentially repeating her prior position: Our position was made clear in our last correspondence. Our client is seeking a ruling from the New York court in her pending child custody case and will maintain her status quo custody of [the child] until such time. Your client is welcome to exercise interim parenting time in NY provided our client holds both passports.

Since your client is declining to enter into an agreement resolving [the child’s] school and to safeguard [the child’s] best interests, our client is unable to consider any other parenting time arrangements outside of the parameters we have outlined in our letter. [ 48 ] The Respondent testified that the December 26, 2022, date for exchanging the child was discussed but not “set in stone”. She nevertheless agreed that in early November 2022, the Applicant did extend her parenting time for the child over the Christmas break.

The Respondent admitted that she assumed that they would follow the previous parenting schedule, but maintains that no specific date was agreed upon. She then admitted that she expected the child to go back to see her father sometime after Christmas. The Respondent did not directly respond to the Applicant’s messages on December 26 and 27, 2022, while he was in Portland, Maine to pick up the child, on the advice of counsel. [ 49 ] The Respondent also confirmed that the Applicant never expressly stated that he would not return the child to her.

Her belief was that the Applicant would not be happy that she filed a Petition seeking custody of the child in New York and that he might withhold the child from her “out of frustration.” [ 50 ] The Applicant filed his Application in Saint John, New Brunswick on December 30, 2022, in addition to a Notice of Motion on January 6, 2023, raising several issues including jurisdiction. ISSUES [ 51 ] Neither party argued the Hague Convention . There is no allegation of wrongful removal of the child. In fact, there was no removal of the child contrary to civil authority.

The child enjoyed shared parenting time with both parties in Canada and the United States since separation. This is not a Hague Convention case. [ 52 ] The parties agree that the applicable statutory framework is sections 68 and 70 of the FLA . The issues are therefore as follows: 1. Does this Court have jurisdiction pursuant to s.68 of the FLA to make or vary a parenting order in respect of the child? 2.

If so, should the Court decline to exercise jurisdiction pursuant to s.70 of the FLA ? [ 53 ] I will therefore first consider the issue of whether the child’s habitual residence is New Brunswick under s.68(1) of the FLA . I will then consider the argument of concurrent jurisdiction or dual habitual residence in the event my determination of the child’s habitual residence is wrong under s.68(1) , but also because it was raised by the parties at the hearing.

The question of dual habitual residence or concurrent jurisdiction appears to be a novel point in law here, as neither party provided the court with any jurisprudence from New Brunswick to support the notion. Lastly, I will decide whether I should decline to exercise jurisdiction. LAW AND ANALYSIS Statutory Framework [ 54 ] Section 68(1) of the FLA reads as follows:

JURISDICTION OF THE COURT Prerequisites for parenting order or contact order 68(1) The Court shall only exercise its jurisdiction to make or vary a parenting order or contact order in respect of a child if (

a) the child is habitually resident in the Province at the commencement of the application for the order, or (

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 commencement 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 a parenting order or contact order with respect 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 with respect 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 jurisdiction to be exercised in the Province. [ 55 ] Section 68(2) of the FLA defines habitually resident: 68(2) A child is habitually resident in the place where the child resided most recently, either (

a) with their parents, (

b) if the parents are living separate and apart, with a parent under a separation agreement or with the implied consent of another parent or under a court order, or (

c) with a person other than a parent on a permanent basis for a significant period of time. [ 56 ] Section 68(3) of the FLA states, inter alia , that a party cannot alter the habitual residence by removing or withholding a child: 68(3) The removal or withholding of a child without the consent of any other person having a parenting order with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process for the return of the child by the person from whom the child is removed or withheld.

[ 57 ] Even if the Court decides that it has jurisdiction to make or vary a parenting order, it may still decline to exercise jurisdiction pursuant to s.70 of the FLA , which reads as follows: Refusal to exercise jurisdiction 70 When the Court has jurisdiction to make or vary a parenting order or contact order in respect of a child, it may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the Province. [ 58 ] I also refer to s. 78 of the FLA , which reads as follows: Judicial notice 78 For the purposes of an application under this Act, the Court may take notice, without requiring formal proof, of the law of a jurisdiction outside the Province and of a decision of an extra-provincial tribunal.

Position of the Parties [ 59 ] In his pleadings, the Applicant argues that this Court, rather than the Court in New York, has jurisdiction to hear the matter and to make a Parenting Order. The Respondent says that the Court in New York has jurisdiction. [ 60 ] However, the positions of the parties evolved with the evidence and in reference to jurisprudence from other jurisdictions, especially Ontario. Initially, the Applicant took the position that New Brunswick was the child’s habitual residence under s. 68(1) of the FLA .

Conversely, the Respondent argued that New York had jurisdiction to determine the issues between the parties. In her Pre-Hearing Brief, the Respondent argued that the child did not have a habitual residence or alternatively, she had dual habitual residences or there was concurrent jurisdiction between New Brunswick and New York. [ 61 ] By the end of the hearing, during closing argument, both parties agreed that I had concurrent jurisdiction or that the child had two habitual residences.

However, the Applicant submitted that I should not decline to exercise my jurisdiction pursuant to s. 70 of the FLA , while the Respondent argued that I should decline because New York was the proper forum to hear the matter. Section 68(1) Analysis [ 62 ] This decision will only determine whether this Court has jurisdiction to make or vary a parenting order. The Court will not determine relocation, residency or parenting issues. As the Court said in A.H. v J.L. , [2022] N.B.J.

No. 306 : 25 First and foremost, I wish to emphasize that the focus of this analysis is to determine the issue of jurisdiction, not any parenting issues. Much information was provided with regard to the child's best interests. However, that is not the test. 26 Similarly, the question of jurisdiction should not be confused with the issue of residence and relocation. Where the child should ultimately reside is not the issue before this Court.

The jurisdictional determination is not intended to pre-judge the outcome of the application and may, therefore, result in a determination of jurisdiction in one forum without prejudice to the child remaining in another location pending the determination of the application. In K.N. v. S.Q. , 2013 BCSC 1433 , a decision which stems from joint applications which were concurrently heard in both the British Columbia and Alberta Supreme Courts, it was determined that the proper jurisdiction to hear the trial was B.C. but that mother and child could remain in Alberta pending a final hearing.

[63] Under s. 68(1)(

a) of the FLA, if the child is a habitual resident of the Province at the commencement of the Application,the Court has jurisdiction to make or vary a parenting order. The determination of whether a child is habitually resident of the Province isa fact-specific, contextual inquiry. As the Court of Appeal explained in T.M.A.H. v J.J.G., [2010] N.B.J. No. 149, 2010 NBCA 4 atparagraph 21: 21 Judges of the Court of Queen's Bench in this Province have concluded, and I would agree, that "the determination of [a child's]'habitual residence' is largely a fact driven process": Tucker v.

Savoy (2009), 346 N.B.R. (2d) 390, [2009] N.B.J. No. 256 (QL), 2009NBQB 210, at para. 20; Richard v. Karibian, [2003] N.B.R. (2d) (Supp.) No. 37, [2003] N.B.J. No. 187 (QL), 2003 NBQB 198, at para.9. In the case of parents who are not residing together, an examination of the facts is required to determine whether the child was broughtto another jurisdiction without the express or implied consent of the parent that had custody.

If no consent was given, the child's habitualresidence cannot be altered, absent acquiescence by the custodial parent or undue delay in commencing the process to have the childreturned. [64] In Tucker v. Savoy, 2009 NBQB 210 , [2009] N.B.J. No. 256, Ferguson, J. said at paragraph 20: 20 The Applicant maintains that the Province of New Brunswick is the "habitual residence" of the child. That is so, Mr. Silliker posits,because the child has spent 80% of his life here. Only 19 months of his total life of 92 months has been spent living in Alberta.

Thedetermination of "habitual residence" is largely a fact driven process. Richard v. Karibian [2003] N.B.J. No. 187 (N.B.Q.B.) perClendening J. at paragraph 9. [65] In Avina v Szubbocsev, [2021] N.B.J. No. 136, 2021 NBQB 92, the Court adopted a holistic

interpretation of habituallyresident in the FLA, with reference to the definition of those terms contained in s. 68(2): 49 In other words, the Court shall only exercise its jurisdiction to make or change a parenting order if the child is habitually resident ofthe province of New Brunswick. In the event that the child is not habitually resident in the province, the Court shall only exercise itsjurisdiction if it is satisfied that the six criteria set out in paragraph 68(1)(

b) of the Act are satisfied. 50 The term "habitually resident" is defined in subsection 68(2) of the Act. 51 Paragraph 68(2)(

b) of the Act provides that a child is habitually resident in the place where the child resided most recently, if theparents are living separate and apart, with a parent under a separation agreement or with the implied consent of another parent or under acourt order. 52 In the within matter, Mr. Avina consents to the children living with their mother in Dieppe, New Brunswick. On the other hand, itis Ms. Szubbocsev who argues that the children are not habitually resident in New Brunswick. However, it is she and the children whomoved here in April of 2020.

She does state that were it not for the travel restrictions as a result of the pandemic, she would have left theprovince. Despite the situation, she and the girls have continued to reside here for over a year. Ms. Szubbocsev has employment here andthe children have attended school in this province as much as possible given the ever-changing provincial regulations during thepandemic. 53 Taking a holistic view of the situation, I am of the view that the children are habitually resident in New Brunswick as they areresiding here with their mother and the implied consent of their father.

Consequently, this Court has jurisdiction in this matter. [66] The Applicant argues that the child was withheld from him in late December 2022. His position is that the Court shouldtake this factor into account in determining the issue of jurisdiction and whether to decline exercising jurisdiction in this case. TheRespondent disagrees with the characterization and relied on counsel’s advice at all times. I will therefore address this point at this stage. [67] The legislative predecessor of s. 68(3) of the FLA was s. 130(3) of the Family Services Act, S.N.B. 1980, c. F-2.2 asamended, which reads as follows:

130(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. [ 68 ] The intent of s. 130(3) was discussed in several cases. For example, in P.C.W. and M.J.W. v G.A.W. , [1984] N.B.J.

No. 363 , the Court said this: 21 As I mentioned previously, L. has resided with her father in Ontario from June of 1982 until June of 1984 and has been in custody of her grandparents since June of 1984. 22 In my opinion, she has been living with one parent with the implied consent of the natural mother for a period of two years and has not been residing with a person other than the parent on a permanent basis for a significant period of time.

The last event which occurred is her residing with her father in Ontario for a period of two years, from June 1982 until June 1984, and, accordingly, Ontario should be held to be the place of her habitual residence.

In addition, s. 130(3) of our Act provides as follows: (…) 23 These provisions, in my view, are clearly intended to removing the advantage which a person may gain by removing or withholding a child without the consent of the person having custody of the child, unless that person (that is the person who had custody) acquiesced in the removal or withholding or was responsible for undue delay in commencing due process for the return of the child.

The person who removed or withheld the child cannot now argue that the real and substantial connection with the other jurisdiction has been eliminated and a new connection created as a result of the removal or withholding, unless the removal or withholding has been acquiesced to by the person who had custody, or unless the latter was guilty of undue delay in commencing due process for the return of the child. [Emphasis mine] [ 69 ] Also, in C.D. v K.D. , [2010] N.B.J.

No. 451 , the Court mentioned that: 78 Moving on from that, The child is habitually resident in the province at the commencement of the application for the Order.

The child is certainly not on the evidence habitually resident in the Province of New Brunswick at that referenced time and I can certainly note that of course unilateral action by a parent without the consent of a person having custody cannot create a new habitual residence of a child. [ 70 ] In my view, withholding the child contrary to a Custody Agreement and/or a verbal agreement is a factor that the Court may consider in determining habitual residence even though there is no “parenting order” in place.

To find that New York is the child’s habitual residence on December 30, 2022 (the date the Application was filed) when the Respondent withheld the child without the Applicant’s consent would be inconsistent with the legislative purpose of s. 68 of the FLA .

Section 68 of the FLA is designed to discourage forum shopping and such conduct should not be rewarded or sanctioned by the Court. [ 71 ] It is not necessary for the child to be physically present in New Brunswick at the time the Application was filed to be habitually resident. Otherwise, a parent could breach a custody or separation agreement by refusing to exchange the child for parenting time to bolster an argument that the child is not habitually present in New Brunswick when the Application was filed. That is why we must turn to the definition of habitually resident in s. 68(2) (

b) of the FLA .

[72] My

interpretation of s.68(1) of the FLA necessarily incorporates the definition of habitually resident contained in s.68(2)(

b) in this case because, inter alia, the parties had a valid Custody Agreement in place when the within Application was filed.Those sections of the FLA should not be interpreted to the exclusion of one another where the legislature has chosen to define habituallyresident in such a fashion. [73] The parties had, in fact, followed the Custody Agreement up to December 26, 2022, which provided for equal parentingtime. On December 26, 2022, the Custody Agreement was still in force and effect.

The Applicant had, in good faith, agreed to provideextra parenting time to the Respondent over the Christmas break only to subsequently discover - on December 14, 2022 - that a Petitionseeking sole custody had been filed in New York on December 5, 2022. [74] Counsel for the Respondent unsuccessfully attempted to obtain a stipulation from the Applicant that the child’s “homestate” was New York prior to the agreement expiring to bolster her client’s legal position.

The Respondent knew – because her solicitorwas advised in writing on December 19, 2022 at the latest – that the Applicant was going to travel to Portland to exercise his parentingtime pursuant to the Custody Agreement, but she did not show up. She could have easily advised the Applicant before he left NewBrunswick that she was not going to produce the child for parenting time.

Such notice would have inevitably led to the filing fo thewithin Application before December 30, 2022. [75] Even on December 27, 2022, New York counsel for the Respondent maintained her position, and insisted on the samestipulation because apparently without mirror orders from both jurisdictions, “we cannot advise our client to permit [the child] to travelto Canada.” There was no basis to allege that the Applicant would withhold the child from the Respondent even if the CustodyAgreement expired.

In fact, counsel for the Applicant proposed an extension of the Custody Order or some other type of Agreement tomaintain the status quo until the matter could be determined. [76] The Applicant’s proposal was meant to assuage the Respondent’s concerns. The Respondent, through counsel at the time,refused to entertain any proposal other than a stipulation to New York jurisdiction in a Court Order, knowing that the first appearance forthe Respondent’s Custody Petition in New York was only scheduled for April 18, 2023.

This meant that the Applicant would have beendenied parenting time with the child from September 13, 2022, up to at least April 18, 2023, a period exceeding seven months. Such anapproach is inconsistent with the Custody Agreement, past conduct of the parties, as well as the child’s best interests. [77] The Respondent nonetheless initially argued that the child is not habitually resident in New Brunswick because she wasnot in New Brunswick at the commencement of the Application on December 30, 2022. I find that this

interpretation is inconsistent withthe purpose and intent of ss. 68(1) and 68(2)(

b) of the FLA, based on my appreciation of the evidence. If the Respondent’s

interpretationis correct, it would allow a party to bypass the Court’s jurisdiction or to “forum shop” in cases where, like here, the Respondent withheldthe child from the Applicant on December 26, 2022, contrary to the Custody Agreement still in force, and without his express or impliedconsent. [78] I find support for my

interpretation in Tucker v. Savoy, supra where Ferguson, J stated at paragraph 21: 21 The fact that a child is not present in the province at the time that an application is made is not necessarily determinative of whetherthey are or are not "habitually resident" in that place. Pangracs v. Dick 2009 SKCA 14 , [2009] S.J. No. 73 (S.C.A.). [79] In Pangracs v Dick, [2009] S.J. No 73, 2009 SKCA 14, the Saskatchewan Court of Appeal concluded that the ChambersJudge had made several errors in his analysis of whether the children were habitually resident in British Columbia instead ofSaskatchewan. In any event, here is how the Court of Appeal described the errors:

19. First, he incorrectly concluded that the children were not "habitually resident" in Saskatchewan at the time Mr. Pangracs' application was commenced. It is true that, when the application was initiated, i.e. December 19, 2007, the twins were in British Columbia where they had been taken by Ms. Dick. However, the mere fact they were not physically present in this jurisdiction does not mean they were not "habitually resident" here. Section 15(2) of the Act , it will be recalled, reads as follows: (…) 20 In this case, the children lived in Esterhazy with the consent of Ms. Dick beginning in July of 2007.

She and Mr. Pangracs disagree as to whether the children were to remain with him only until November 25, 2007 or for some longer period. However, their lack of consensus on this latter point does nothing to deny the fact that, until at least November 25, the twins were with Mr. Pangracs by agreement. As a result, and in light of s. 15(2), the children should have been found to be habitually resident in Saskatchewan. They resided in Esterhazy with "both parents" from January to July of 2007 as per s. 15(2)(a). Most significantly, they were "last" resident in Esterhazy "with the consent" of Ms.

Dick as per s. 15(2)(b). As a consequence, they were habitually resident in this jurisdiction. 21 The reference in s. 15(1) to the children being resident "at the commencement of the application for the order" does not undermine this conclusion. If a child is physically removed from Saskatchewan, he or she does not, by that fact alone, cease to be habitually resident in this province. An

interpretation of the Act which permitted such a result would create a situation where a parent could summarily defeat the jurisdiction of the Saskatchewan courts over custody and access matters by the simple expedient of moving a child across a provincial boundary. Removal of the child would make s. 15(1)(

a) inapplicable while, at the same time, s. 15(1)(

b) would not confer jurisdiction because, as required by s. 15(1)(b)(i), the child would not be "physically present in Saskatchewan". 22 Section 15(4) speaks directly to this potential difficulty by stating that "[t]he removal or withholding of a child without the consent of the person entitled to custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld".

The same qualification must be read into s. 15(1) in circumstances where, as here, it is not clear which parent is entitled to custody. Any other view of the Act would create a significant, and clearly unintended, gap in the jurisdiction of Saskatchewan courts. [Emphasis mine] [ 80 ] As the Court noted in Troff v Atigikyoak, [2012] S.J.

No. 113 , 2012 SKQB 43 , at paragraph 18 : The concept of being habitually resident, must be interpreted consistent with the usual sense of "habitual", being the usual, customary, persistent and/or enduring residence and not somewhere you are residing temporarily. [ 81 ] The Court concluded that the child in Troff v Atigikyoak , supra was not habitually resident with Mr. Troff at the commencement of the Application. Although there are of course nuances in the facts of each case, I find the Court’s reasoning at paragraph 19 apposite to this matter: 1.

Throughout the period July 21 to October 15 Sophie was temporarily residing with Mr. Troff as a matter of exercising access. The understanding was that at the end of the agreed access period Sophie would be returned to Ms. Atigikyoak in Norman Wells, which had theretofore undeniably been her habitual residence. Since Mr. Troff was caring for Sophie for an agreed upon period of access, it cannot be said that Sophie was residing with him after that period ended, on the basis of consent, implied consent or acquiescence. Were this

section to be interpreted otherwise, then every period of parental access, where a child is brought into Saskatchewan, could potentially be used as a basis to bring a custody application in Saskatchewan. 2. While the access period did extend from one month, to two months and then to three months, the length of time does not alter the nature of what occurred. Sophie was in Saskatchewan to permit Mr. Troff to exercise access on the basis that she was to be returned to Ms. Atigikyoak at the end of the access period.

3.From and after October 15 until October 22, Sophie was also, in a literal sense, albeit temporarily, residing with her mother, in hermother's hotel room in Edmonton and was no longer residing with Mr. Troff in Hudson Bay, Saskatchewan with the consent, impliedconsent or acquiescence of Ms. Atigikyoak. 4.If residence in s. 15 were permitted to have the temporary connotation, that it must, to conclude that Sophie resided with Mr. Troff forthe purposes of s.15(2)(b), then that same temporary connotation must also be given to residence for the purposes of s.15(2)(a).

Theresulting conclusion would then be that what last occurred, was that Sophie resided with both her parents in Edmonton, Alberta. 5.Whatever consent, implied consent or acquiescence there had been to Sophie residing with Mr. Troff in Hudson Bay ended whenSophie was brought to Edmonton and her mother on October 15 with the intention that she would thereafter be returning to reside withher mother in Norman Wells. Mr. Troff left Edmonton with Sophie on October 22 without any consent, implied consent or acquiescenceon the part of Ms. Atigikyoak.

Therefore there is no basis to say, that Sophie was, in any sense, "residing" with Mr. Troff with Ms.Atigikyoak's consent, implied consent or acquiescence at the commencement of his application. [Emphasis added] [82] In this case, the child was residing in New York with the consent of the Applicant from September 13, 2022, untilDecember 26, 2022. However, the child was withheld from the Applicant despite his express request for parenting time after Christmasand contrary to the verbal agreement reached between the parties.

The Respondent knew that the Applicant had a right to parent the childafter Christmas, whether that right started on December 26 or shortly thereafter.

The evidence demonstrates that whatever consent theApplicant gave to the Respondent to have the child reside in New York was revoked or withdrawn as of December 26, 2022, at the latest.Therefore, at the time the Application was filed on December 30, 2022, the child was not residing in New York with the consent of theApplicant. [83] The fact is that when the Application was commenced, the Custody Agreement was in full force and effect and providedfor joint custody or equal parenting time.

The child would have otherwise been with the Applicant in New Brunswick at the time theagreement expired on December 31, 2022, but for the Respondent’s unilateral decision to withhold the child without the consent of theApplicant. [84] The determination of whether a child is habitually resident is not a pure mathematical calculation of the number of days heor she resided in a certain location. It is a fact-specific and contextual inquiry based upon a reasonable

interpretation of s. 68 the FLA. [85] The child has spent essentially equal parenting time with both parents since separation. However, parenting time was notspent equally between New Brunswick and New York. Parenting time spent with the Applicant was in New Brunswick, while parentingtime with the Respondent was in various states in the United States, including in New York.

The child has resided more in NewBrunswick than New York since her birth in 2018 for that reason, and with the consent of the parties and/or in accordance with theCustody Agreement. [86] The child was habitually resident in New Brunswick because the parents were living separate and apart and she residedwith the Applicant pursuant to a Custody Agreement, with the consent of the Respondent in New Brunswick, for more than 50 percent ofthe time since she was born. [87] In these circumstances, it would be difficult, and indeed contrary, to the intent of s. 68(1)(

a) of the FLA to find that thechild was not habitually resident in New Brunswick. In this case, I therefore find that the child is a habitual resident of New Brunswickpursuant to s. 68(1)(

a) of the FLA. Dual Habitual Residence/Concurrent Jurisdiction [88] Several decisions, particularly from Ontario, have confirmed that is it possible for a child to have two habitual residences.In other words, that a Court may have concurrent jurisdiction. [89] The Respondent relies on Brouillard v. Racine, (ON SC) to argue that it is possible to find that thechild had two habitual residences. In that case, the parties were never married and lived in Quebec until their separation. The fathercommenced a custody action in Quebec resulting in a judgment providing for joint custody of the child with the child’s residencealternating every three months. The Court stated at paragraph 12:

[12] I accept the child is habitually resident in Ontario, as he lives with his mother in Ontario under the provisions of a court orderfor joint custody and with the consent of the father, pursuant to subsection 22(2)(b). At the same time, the child is also habituallyresident in Quebec, under the “equal time” provisions of the custody order. [90] Subsection 22(2)(

b) of Children’s Law Reform Act, R.S.O. 1990, c C.12, (CLRA) is substantively identical to subsection68(2)(

b) of the FLA. The only difference is that Subsection 22(2)(

b) of the CLRA refers to the notion of where the child resided inreference to (a), (

b) or (c) “whichever last occurred”, while subsection 68(2)(

b) of the FLA refers to where the child resided “mostrecently”, in respect of (a), (

b) or (c). [91] The Ontario Court of Appeal in Jerome v. Steeves, (ONCA), recognized that a child could have twoconcurrent habitual residences for the purposes of deciding access issues. That case involved two distant, competing jurisdictions,namely Ontario and Nova Scotia. The child’s paternal grandmother, the Appellant, applied for an order of access to the Ontario court atthe time the child resided in Ontario. In January of 2004, the child and her mother moved to Nova Scotia. Family law proceedings werecommenced in Nova Scotia, and the Court granted joint custody of the child to her parents.

At the time of the Nova Scotia Order, thechild lived with her mother in Nova Scotia. However, while the mother was addressing her substance addiction for three years, the childhad lived with her paternal grandmother in Ontario. The child then returned to Nova Scotia to reside with her mother and near hermother’s family. [92] The Ontario Court of Appeal ruled, based on s. 22(2) (

c) of the CLRA that in February 2004, the child was “habituallyresident in Ontario” because she had resided in Ontario with her grandmother “on a permanent basis for a significant period of time.” The Court of Appeal therefore determined that the Ontario Court had jurisdiction with respect to access to the child. [93] However, because of the current situation of the child, residing in Nova Scotia with her mother for nearly three years,Nova Scotia had jurisdiction over the child at the same time. The Court of Appeal in Jerome v.

Steeves supra therefore concluded thatboth Ontario and Nova Scotia had concurrent jurisdiction over the question of access to the child. [94] The Court of Appeal ultimately concluded that pursuant to s. 25 of the CLRA, the Ontario court ought to decline toexercise the jurisdiction over the access issues. The rationale for declining jurisdiction was that there were so many relevantconsiderations of the decision that could more appropriately be dealt with in Nova Scotia, including information about the child’s school,her maternal extended family, and the child’s caregivers.

In the final analysis, Nova Scotia was found to be the more appropriate forum. [95] The Respondent also relies on Riley v. Wildhaber, 2011 ONSC 3456, where the Court held that a child can be found tohave two concurrent habitual residences. Before reaching this conclusion, the Court in Riley v. Wildhaber, supra discussed theargument advanced by one of the parties: [20] Mr. Wildhaber argues that only s. 22(2) (

a) can apply to the facts of this case and that, as a result, Quebec is the last placewhere the children resided with both parents. According to Mr. Wildhaber s. 22(2) (

b) cannot apply to the facts of this case as that which“last occurred” because the children have never lived with just “one parent” pursuant to the joint legal custody order from the QuebecSuperior Court based on the parties’ agreement. Rather, they live with both parents on an alternating weekly basis. [21] The last words of the above definition, “whichever last occurred”, are important. It is an overarching modifying phrase to allof the circumstances identified in that

section that would determine the question of whether a child is a “habitual resident” of a place. Bythe operation of that phrase, the Court is clearly directed to consider the last relevant residence of the child with the parents, the parent orother person, this latter one not being relevant to the facts of our case. [22] Mr. Wildhaber’s suggested

interpretation and application of the facts of this case to s. 22 is problematic. It ignores the livingreality and the parenting of his children, which has been in place on consent of both parents, grant it not without conflict, for the last

seven years. His suggested

interpretation artificially directs the court to determine the question of habitual residence to a period in time that no longer exists and has not existed for seven years. Given the length of time elapsed, it is a period in time that may no longer be relevant or current to examining the best interests of the children. On the facts of this case, the place where the children resided with both parents prior to the separation in 2004 cannot be taken to be as “whichever last occurred” within the meaning of that section. That is not to conclude whether that might be the situation in the circumstances of another case. Consequently, we find that s. 22(2) (

a) is not determinative of the children’s “habitual residence” in this case. [ 96 ] The Court Riley v. Wildhaber , supra then concluded at paras 42-44: [42] After examining the above jurisprudence, we are of the opinion that a child, in the appropriate circumstances, can be found to have two concurrent habitual residences pursuant to s. 22(2) (

b) of the CLRA . The decision will ultimately depend on the individual facts of a case. Cognizant of the legislative purposes for which s. 22 was legislated, we are not persuaded that this conclusion will undermine those purposes. This conclusion also recognizes the living reality of those children who are in a truly joint custodial arrangement, whose numbers will be limited. [43] Pursuant to ss. 22(3) , 25 and 42(2) of the CLRA , the Ontario courts have the ability to decline to exercise jurisdiction where another jurisdiction would be the more appropriate forum. The case before us is one such case.

The parents are living separate and apart and have done so since 2004. Based on the parents’ various agreements which they incorporated into consent orders of the Quebec Superior Court, the children have been residing with one of their parents on an alternating weekly basis in two different provinces. This is not a case where one can in any way conclude that the children were residing with one parent and merely visiting with the other parent. This joint parenting arrangement has been in place and has effectively been the children’s reality since 2004.

It has also been made possible because of the short distance between the parents’ respective homes even though the two homes are on different sides of an interprovincial boundary. [44] We therefore conclude that the children on the facts of this case are habitually resident concurrently in the provinces of Ontario and Quebec pursuant to s. 22 (2) (

b) of the CLRA . As a result, the Ontario Superior Court of Justice has jurisdiction to hear Ms. Riley’s application. [Emphasis mine] [ 97 ] In Wilson v. Huntley [2005[ O.J. No. 1664, Justice MacKinnon stated at paragraph 32, although in the context of a Hague Convention hearing, that: In my view, it is possible for a person, including a child, to have consecutive, alternating, habitual residences in two different States, at separate times. It is a question of fact in each individual case. [ 98 ] See also Kotoka v. Russell , [2018] O.J.

No. 5050 at paragraph 58 , where the Court found that the three young children had habitual residences in Buffalo, New York and Toronto. That decision was quoted with approval in McKay v LaBelle [2019] O.J. 1500 , at paragraph 54 . [ 99 ] In making a finding that a child had two habitual residences, Courts typically rely upon either Court Orders and/or an Agreement that demonstrate shared custody arrangements with the child. As a result of such an Order and/or Agreement, the child spends, in some cases, significant periods of time with each parent in different jurisdictions.

In my view, it is possible for a child to have

alternating, consecutive, habitual residences in two different jurisdictions. It is a question of fact in each individual case. [100] My reading of the Custody Agreement in this case supports a finding that the parties clearly intended to share custody of thechild, or parenting time as it is now referred to in New Brunswick, in terms of physical, residential parenting time.

The parties gave effectto their intention by sharing parenting time equally even before the Custody Agreement was executed, but also by virtue of theirsubsequent conduct under it. [101] The Custody Agreement is silent on who is the “custodial” parent, or the parent who has primary care of the child. Instead,the Custody Agreement states that the child shall spend “(…) half of each year in the care of a parent, alternating monthly (…)”. In otherwords, the child was not just “visiting” one parent, but residing with one of them for extended periods of time during their respectiveparenting times.

This is clear to me also because the parties agreed that the Custody Agreement expired on December 31, 2022, for thepurpose of then determining the residence of the child while she attends school. The parties had explicitly turned their minds to thisreality in the Custody Agreement. [102] Therefore, alternatively, if I am wrong about my finding that the child’s habitual residence is New Brunswick pursuant tos.68(1)(

a) of the FLA, I am satisfied that the child was alternatively a dual habitual resident of New Brunswick and New York, and thatconcurrent jurisdiction has been established. My conclusion is based primarily on the undisputed fact that the child was in a true jointcustody arrangement.

Section 70 Analysis [103] However, I will not decline to exercise my jurisdiction pursuant to s.70 of the FLA for the following reasons. [104] I first refer to the comment of LaForest, J. in In Hunt v.

T&N plc (SCC), [1993] 4 S.C.R. 289 at p. 326: ... the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness,not a mechanical counting of contacts or connections. ... [105] The Respondent argues, inter alia, that the Court should consider declining jurisdiction because she filed her Petition inNew York before the Applicant filed his Application in New Brunswick. The decision to decline jurisdiction should not be based on whoraces to the Court to file an Application first.

While there may be circumstances where that factor may be considered among others, thatapproach is fundamentally unfair to the Applicant in this case. The Applicant agreed in good faith to extend the Respondent’s parentingtime without any knowledge of her intent to file an Application for custody in New York and before their Agreement expired. TheRespondent, through New York counsel, then attempted to extract a stipulation from the Applicant to attorn to the New York jurisdictionbefore he could see his daughter again.

It bears noting that the Applicant did not unreasonably delay filing his Application here, or inNew York. [106] Furthermore, the “first to the gate” approach may simply equate to “forum shopping” in some cases. This Court will notcondone this approach by declining to exercise jurisdiction in this case. In M.H. v K.J., [2013] N.B.J. No. 352, 2013 NBQB 314, theCourt refused to decline to exercise jurisdiction for the following reasons: 17 I am not prepared to decline the exercise of jurisdiction. In my view, it is much more appropriate that the issue of the child's custodybe decided here.

The child has lived in New Brunswick for the past five years of his young life. He has attended school through the firstfour grades, the majority of his extended family live either in Saint John or close to Saint John, and, up until only a couple of years ago,so did the mother. It stands to reason that the substantial part of the evidence concerning the best interests of the child is available in theProvince and that the balance of convenience lies with a hearing being held here.

Furthermore, a Court cannot be seen to becondoning a 'race-notice', 'forum shopping' approach by parents as the most appropriate means to resolve their differences overcustody.

[Emphasis added] [107] I also refer to Troff v. Atigikyoak, supra at paragraph 30, where the Court commented that: 30 While Mr. Troff commenced his application first, success in such matters is not a factor of who commenced proceedings first.Promptly upon learning Sophie had been taken back to Saskatchewan, Ms. Atigikyoak sought counsel and in due course commenced aproceeding in the Territories.

An application is pending in the Territories which I have found to be where Sophie was habitually resident. [108] The Respondent further argues that the Applicant attorned to the jurisdiction when he filed his Petition in New York. Idisagree. The Applicant never consented to New York jurisdiction and specifically contested that jurisdiction in his pleadings.

Hebrought his Petition in New York for the purpose of having parenting time with the child pursuant to the emergency interim jurisdictionof the New York Court, pending the determination of the issue of jurisdiction, as the New York Appellate Court confirmed. [109] As Justice Ferguson said in Tucker v Savoy, supra at paragraph 31: 31 Attorning to the jurisdiction of the court requires that the party voluntarily submit to the court's jurisdiction. See: Dulles v. Vilder[1951] 2 All E.R. 69 (C.A.) per Denning L.J.; Mid-Ohio Imported car Co. v.

Tri-K Investments (1995), (BC CA), 13B.C.L.R. (3d) 41 (B.C.C.A.); Saroukhan v. Daho [2000] B.C.J. No. 1500 (B.C.S.C.) per Master Nikiman. [110] There is no evidence that the Applicant voluntarily submitted or attorned to the jurisdiction of New York. See also VanDamme v. Gelber 2013 ONCA 388 , [2013] O.J. No. 2750 (Ont. C.A.) at paragraph 23 and Kardulowski v.

Kardulowski2014 ONSC 1222 at paras 77 to 82. [111] I will not give any weight to the forum clause contained in the Custody Agreement if for no other reason than the CustodyAgreement is now expired, and it was clearly the intention of the parties to revisit the parenting arrangement “for [the child’s]schooling”, in any event. [112] In Pichler v Fiegehen, [2009] S.J. No. 532, 2009 SKCA 101, the Saskatchewan Court of Appeal canvassed thecommon law factors pertaining to the question of forum non conveniens in some detail, with reference to a number of Appellatedecisions in other provinces.

One of the considerations that was discussed, in reference to s. 16 of the Children’s Law Act (theprovision that is equivalent to s. 70 of the FLA), was forum shopping or otherwise attempting to gain a tactical advantage in thelitigation. In that case, the grandmother had wrongfully retained the child in Quebec. Here is what the Court of Appeal said inPichler v. Fiegehen, supra at paragraphs 26 and 39: 26 Added to these factors is the balance of convenience, fairness to the parties, and in the context of a s. 16 CLA analysis, whether thechild was improperly or unilaterally removed from Saskatchewan.

This last factor addresses the issues of forum shopping or removalof the child to obtain some tactical or other advantage in the litigation. (…) 7. Unilateral or Wrongful Removal of a Child 39 The Chambers judge found that the habitual residence of the child prior to being taken by the grandmother was Saskatchewan. Thathabitual residence was not changed by Hannah being taken to Quebec. The Chambers judge has found as a fact that thegrandmother wrongfully retained the child in Quebec. Pichler's conduct in keeping the child unilaterally should not becondoned.

Such conduct, which results in the forum being other than the child's habitual residence, should be discouraged. [Emphasis added] [113] Likewise, here, and for the reasons discussed above, I found that the child was wrongfully withheld from the Applicant bythe Respondent on December 26, 2022. Whether the Respondent’s decision was based on the advice of counsel does not matter.

[ 114 ] This is a unique case. As the Court discussed with the parties during closing argument, the question of which is the proper or convenient forum to hear the parenting issues is at somewhat of a stalemate. The child has extended family and in fact has, and will have, siblings in both jurisdictions. Both parents have a good support system in place and proper accommodations for the child. Both parents can meet all her educational, medical and dental needs. The evidence is that child is already enrolled to attend kindergarten in 2023, and has a family physician and a dentist, in both jurisdictions.

There is no evidence before the Court to establish that having a trial in New Brunswick would be more or less expensive than having one in New York. Both parties have retained counsel in both jurisdictions and have expended legal fees accordingly. [ 115 ] Although a Petition is pending in New York with respect to the jurisdiction issue, no Order or Decision has yet been rendered on that point. There is no extra-provincial Order from New York that must be recognized in New Brunswick.

I am therefore not treading on any New York jurisdiction or creating a multiplicity of proceedings. [ 116 ] Also, there is no evidence that this jurisdiction cannot hear the matter more, or less, expeditiously than the Court in New York. [ 117 ] Furthermore, as noted above, the Applicant wasted no time in bringing his Application to this jurisdiction. [ 118 ] This jurisdiction has the ability to accommodate viva voce testimony via videoconference (i.e.

Microsoft Teams) from, for example experts, if requested by the parties. [ 119 ] Lastly, the undisputed evidence is that after separation, the Respondent travelled in the United States to work as a nurse in Maine, California, New Jersey as well as New York. Conversely, the child has resided with the Respondent exclusively in New Brunswick during his parenting time. In my view, what helps also tilt the balance in this case is the fact that the child has spent more time in New Brunswick than in New York since her birth.

In essence, and to that extent only, the child has more of a connection with New Brunswick than New York. [ 120 ] I am satisfied that New Brunswick is the proper and more convenient forum to determine parenting issues between the parties. I will therefore not decline to exercise jurisdiction in this case. COSTS [ 121 ] This Application raised a somewhat novel point of law in terms of whether a child could have dual habitual residences under the FLA .

Ultimately, the parties did agree that the child in the within matter was a dual resident and that concurrent jurisdiction existed. [ 122 ] Several appearances were required given the nature of the relief sought initially, but also because of the adjournment that was granted because of the late filing of materials by the Applicant. This adjournment would have resulted in additional legal fees to be incurred by both parties.

While the Applicant ultimately enjoyed success in this initial proceeding on the point of jurisdiction, I have taken into account the sequelae of the adjournment in the circumstances. [ 123 ] As a result, I will award costs to the Applicant in a lesser amount that what I would have awarded but for the adjournment. I award costs of $750.00 inclusive of taxes and disbursements to the Applicant. DISPOSITION [ 124 ] This Court has jurisdiction to make or vary a parenting Order pursuant to s. 68(1) (

a) of the Family Law Act or alternatively, has concurrent jurisdiction with the Court in New York. This Court will not decline to exercise its jurisdiction in this matter pursuant to s. 70 of the Family Law Act .

[ 125 ] The Applicant shall, through his solicitors, file a copy of this decision with the Court in New York forthwith as a matter of interjurisdictional comity, and certainly in advance of the hearing scheduled for April 18, 2023. [ 126 ] The Respondent shall pay the Applicant costs in the all-inclusive amount of $750.00. [ 127 ] The Clerk shall

schedule a 30-minute Case Management Conference as soon as possible to determine how much time the parties require to hear the Application on the issues of decision-making responsibility and parenting time in addition to any other pre-trial concerns, as well as a proper Interim Order for parenting time pending the disposition of the Application. [ 128 ] Lastly, counsel for the Applicant shall draft an Order consistent with these reasons and once issued, file it forthwith with the Court in New York. DATED at Saint John, New Brunswick this ______ day of April 2023. _________________________________ Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division