Jurisdiction To Make Parenting Orders In Ontario

Intro

A parent who participates in a family court case in Ontario may wonder if Ontario is the appropriate location for their case. In circumstances where one parent has moved the children to Ontario from another province or country and subsequently commences a court application in Ontario, the Court will have to decide if it can make parenting orders for that family. In the parenting context, an Ontario court can only make parenting orders for children if it has the jurisdiction to do so.

In Ontario, the existence of jurisdiction can be found in both the Divorce Act (federal legislation), and the Children's Law Reform Act (“CLRA”) (provincial legislation). This article will focus on jurisdiction under the CLRA.

Finding Jurisdiction

Our first stop is Section 22(1) of the CLRA, and a 2012 Ontario Court of Appeal (“ONCA”) decision.

The ONCA in Dovigi v Razi, 2012 ONCA 361 held that there are only four ways in which a court can exercise its jurisdiction to make a parenting order (previously known as a “custody” order):

1. First, under Section 22(1)(a) of the CLRA if the child is habitually resident in Ontario at the commencement of the Application;
2. Second, under Section 22(1)(b) of the CLRA if the child is not habitually resident in Ontario but the court is satisfied that:
   1. The child is physically present in Ontario at the commencement of the Application;
   2. Substantial evidence concerning the best interests of the child is available in Ontario;
   3. No application respecting decision-making, parenting, or contact with respect to the child is pending before another tribunal outside of Ontario in another place where the child is habitually resident;
   4. No orders outside of Ontario respecting decision-making, parenting, or contact with respect to the child has been recognized by a court in Ontario;
   5. The child has a real and substantial connection with Ontario; and
   6. On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario;
3. Third, under Section 23 of the CLRA if the child is physically present in Ontario and the court is satisfied that on the balance of probabilities, the child would suffer harm under specific circumstances set out in the Act; or
4. Fourth, the court may exercise its parens patriae jurisdiction.

From this, we can see that the Court will first assess whether the child subject to the proceeding is “habitually resident” in Ontario at the time the Application was started. But what does “habitually resident” mean?

Defining “Habitual Residence”

Section 22(2) of the CLRA gives us the statutory definition of “habitual residence” that is referenced in Section 22(1). Section 22(2) states that a child is habitually resident in the place where they resided:

1. With both parents;
2. 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
3. With a person other than a parent on a permanent basis for a significant period of time

whichever last occurred.

In the past, Ontario courts have taken several approaches to determining “habitual residence”: the statutory definition approach; the common law approach; and the hybrid approach. However, in Markowski v Krochak, 2022 ONSC 2497, the Superior Court of Justice confirmed that the statutory definition approach is the correct approach in CLRA cases, “in marked contrast to cases under the Hague Convention where there is no definition of habitual residence”.

Not Habitually Resident & Section 22(1)(b)

If the Court finds that the child's habitual residence is not Ontario, the Court can move on to Section 22(1)(b) and may still assume jurisdiction if the child was physically present in Ontario at the start of the Application and all the other conditions in Section 22(1)(b) are met.

Risk of Serious Harm

If the Court cannot exercise jurisdiction under Section 22(1)(a) or Section 22(1)(b), it may still do so under Section 23 of the CLRA if the child is physically present in Ontario and the Court finds that the child would suffer serious harm if:

1. The child remains in the custody of the person legally entitled to custody of the child;
2. The child is returned to the custody of the person legally entitled to custody of the child; or
3. The child is removed from Ontario.

As the ONCA held in Ojeikere v Ojeikere 2018 ONCA 372, the exercise of Section 23 is discretionary.

Declining to Exercise Jurisdiction

If an Ontario court finds that it has jurisdiction arising from one of the above, it can still decline to exercise that jurisdiction pursuant to Section 25 of the CLRA “if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario”.

In Cook v Rosenthal 2021 ONSC 1653, Justice Price held that the question to be answered at this point is whether the court is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario and to answer that question requires a consideration of where the balance of convenience lies.

Some factors that a court may consider at this step include (but are not limited to) the location of witnesses; the connection of the children to the provinces in contest; extracurricular and social activities; a description of their friends and relatives with that community; and the strength of their connection to them (Castillo v Reynoso 2021 ONSC 6808).

Public Policy Underpinnings

There are strong public policy reasons for jurisdictional requirements in the parenting context. The ONCA tells us that the specific purposes of Section 22 of the CLRA include deterring parties in a family law matter from forum shopping, and discouraging child abduction. The ONCA further states that the policy behind discouraging child abduction and requiring a summary return to habitual residence reflects the Legislature's overriding concern with a child's best interest (Ojeikere v Ojeikere 2018 ONCA 372). And we know that the best interests of the child are paramount in parenting matters.

Conclusion

It is clear that in the parenting context, the Court must not only determine if it has jurisdiction, but also if it should exercise its jurisdiction. When facing a jurisdictional issue in a parenting matter, it is important to have a clear understanding of the factors a Court must consider in order to make its determination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.