A.S. v. M.S.

2007 BCSC 1934 A.S. v. M.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.S. v. M.S., 2007 BCSC 1934 Date: 20071224 Docket: E77006 Registry: Kelowna Between: A.S. Plaintiff And: M.S. Defendant Before: Master Young Oral Reasons for Judgment In Chambers December 24, 2007 Counsel for the Plaintiff: S.D. Swail Counsel for the Defendant: C.R. Penty Place of Hearing: Kelowna, B.C. [1] THE COURT: This is an application by the father, Mr. S, who is a resident of Ontario, for an order that he have custody of his 7-year-old son, P, who was born April 16, 1990; or alternatively that the mother, who has moved to British Columbia very recently, return P to the father in Ontario; and for an order that both parties be restrained from removing the children from Canada. What is unusual is that the father, who resides in Ontario, has selected the B.C. court as the proper jurisdiction to hear this case. [2] I will summarize the facts. The S family lived in India until April 2005. Mr. and Ms. S married in 1986 and have three children: B, age 21; S, age 17; and P, age seven. They immigrated to Canada in April 2005, and resided in Mississauga, Ontario, in a five-bedroom house with the children's paternal grandmother, uncle, aunt and cousins. Mr. S described the extended family as a very close family unit with everyone contributing to the family's financial, emotional and caregiving needs, as it is traditional in the

Indian culture. [3] Many people participated in caring for P, including his father, mother, sisters, aunts and grandmother. The aunt and grandmother were both homemakers. The aunt had cared for the children in India as well. The father works a four-day week and the mother worked outside the home as well, but I do not know what her hours were. The mother advised the father in September 2007 that she was leaving and taking P, and they were moving to Kelowna where she had family she could live with. The father did not agree with the move but did call the taxi to drive her to the airport. The other children in the family attended at the airport to see them off. [4] The defendant says that he realized there would be a fight if he tried to stop her so he did not try; he knew the courts would have to deal with it. He said that he did not have time to go to court before she moved. He made no attempt to obtain an order in the Ontario court to have the child returned. He deposed that P was not being given proper care here because the plaintiff was working all the time. The plaintiff disagrees. She says that she works only one job and is home every evening with P. A 14-year-old cousin provides care to P before and after school. [5] The plaintiff father came to B.C. and hired a lawyer in October 2007. Although it had taken two months to have this matter heard because counsel were

exchanging affidavit material, I do not consider that to be an inordinate delay, and I find that the father proceeded as quickly as possible to challenge this move. [6] Section 44 of the Family Relations Act, R.S.B.C. 1996, c. 128, says that I must only accept the jurisdiction if the child is habitually resident in B.C. or if not, then if: 1. The child is physically present in B.C. (which P is) 2. Substantial evidence concerning the best interests of the child is available in B.C. (I find it is not - he has only lived here for four months and he has lived in Ontario for over two years) 3. No application is pending in Ontario (there is none) 4. No extra-provincial order in respect of custody or access to the child has been recognized by a court (none have) 5. The child has a real and substantial connection to B.C. (I find he does not) 6. On the balance of convenience, it is appropriate for jurisdiction to be exercised in B.C. (this requires further discussion below) [7] The father asks me to assume jurisdiction over the child. The balance of convenience favours the child returning to Ontario for a trial because that is where all the evidence lies, but the party who resides there is waiving that convenience test and asking that I take jurisdiction over this child who has only recently moved to B.C. [8] If I do take jurisdiction, I will then have to consider what is in P's best

interests. P is in Grade 1. English is his second language. He is established in Black Mountain School and is doing well there. Grade 1, as all parents of young children will acknowledge, is a very important year when in the first semester the average child will make the transition from non-reader to reader. A move now might disrupt that progress. There is no evidence that P has any particular learning problems so he will likely adapt. I assume, because English is his second language, that creates some additional burden to him as he continues to learn English at the same time he is learning to read. [9] The mother said that she moved because she was being abused, not only by the father but by the father's family. The evidence is conflicting. She makes a passing mention of this abuse and the eldest daughter elaborates on it in her affidavit. What the eldest daughter does say may amount to some mistreatment of the mother and the child, P, but it is denied by the father and by the younger daughter. I cannot find that the abuse occurred on this evidence, but I can find that the mother was not happy living with the extended family and wanted to leave. When the father refused to leave, she went anyway. The father says that she denied him access when he came out to hire a lawyer from B.C. The plaintiff said that she would have happily provided him with access, but she was worried that

he would take P back to Ontario with him. [10] If the application were brought in Ontario before the mother moved, it is unlikely, based on the criteria set out in Gordon v. Goertz, [1996] S.C.J. No. 52, that the mother would have received leave to move. She had no concrete plan or reason why she had to move so far, other than she had distant cousins here in Kelowna and wanted to get away from the father's extended family. She has an entry-level job here, and I believe she had a similar level of employment in Ontario. Certainly the move was not for employment. The mother did not need to go across the country in order to get out of the father's extended family home. She could have moved to another part of Mississauga or into Toronto. If the father abused her, she could have obtained a restraining order in Ontario. The move has disconnected P from the family members who have raised him and, most importantly, from his father and sisters. This application does not meet the criteria set out in s. 44 of the Family Relations Act, which imposes mandatory restrictions on my taking jurisdiction. I decline to take jurisdiction under s. 44. [11] Section 47 of the Family Relations Act addresses the dilemma that a judge or master faces when jurisdiction is declined. It gives the court jurisdiction to: (c) make any interim order in respect of the custody or access that the court considers is

in the best interests of the child; (d) stay the application subject to (i) the condition that a party to the application promptly commence a similar proceeding before an extraprovincial tribunal, or (ii) any other conditions the court considers appropriate; (e) order a party to return the child to a place the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. [12] I will make an interim order that the mother and father share joint custody. There is no convincing evidence before me that either is not a capable parent. I do not find that it would be in P's best interests, however, to interrupt his Grade 1 year at the school. Another move would likely set his progress back at least a month while he settled into a new class in Mississauga. I am also concerned that this family has limited financial means. If I were to order the immediate return of P to Ontario, it would have been in his mother's care, and I have no evidence of what her income is or whether she has anywhere to go in Mississauga. I assume she earned between $8 and $10 per hour at A&W and that there is nowhere for her to go in Mississauga, otherwise she might have gone there instead of moving to B.C. to a home of a distant cousin. [13] I am therefore

ordering in the interim that P primarily reside with his mother in Kelowna and attend Black Mountain Elementary School until June 30, 2008. This order is without prejudice to the father's application for custody in Ontario. [14] The mother is restrained from moving her current residence or the child's school without further court order or written consent of the parties. [15] If the father intends to challenge custody and residency, which I believe he does, he is ordered to do so immediately within 30 days to commence a proceeding in Ontario so that there can be an Ontario order governing custody and access of P in place after June 30, 2008. I am assuming, without knowing, that the Ontario court will honour this interim regime. They are, of course, not bound to do so, but that is my assumption in setting out this interim residence and access regime. [16] I order that P be returned to Ontario on or about June 30th. If there is no Ontario order in place by that date which deals with P's primary residence, then the father shall have 30 days access to P for the month of July, and the mother shall have 30 days access to P for the month of August. Hopefully, the ongoing primary residence issue will be resolved by an Ontario court before school commences in September 2008. If it has not, then the parties can return before me so that I can make a further order to cover the period after

August 30, 2008. [17] I order that the father will have a minimum of two weeks access to P in March during the March school break which commences March 10th and ends on March 25th. He may exercise that access here or in Mississauga, but P must be returned to his mother's care on or before March 25, 2008. By minimum, I mean that if he can organize additional time off that he could have additional access to P in Kelowna. [18] The father shall have a minimum of weekly telephone access to P, and any gifts or letters or pictures he and his family send to P will be delivered to the child. [19] Under different circumstances, the father would be paying the mother child support. If the father's income is in the range of $15 to $18 per hour or between $29,000 and $34,000 per year, which I am estimating a security guard's income might be, then he ordinarily would be paying approximately $300 to $350 per month in child support. This is just a rough estimate. I am not making an order that he do so. He has not done so, of course, because he is applying for custody and P's immediate return. [20] However, because the father is not financially supporting P and because the mother is, I will order that he will be responsible for the air travel for his own trip to come and visit P and take and return P to and from Ontario, and he shall bear the costs for P and an accompanying adult's airfare to

Ontario in June of 2008. [21] I am ordering that each party bear their own costs of this application. [22] In the event, that the father chooses not to commence an action in Ontario in 30 days regarding custody of P, then either party is at liberty to schedule a judicial case conference before me to discuss long-term custody and access plans for P, and I would give the father liberty to attend that judicial case conference by telephone. [23] I do order that neither party shall remove P from Canada without written consent of the other party or court order. Master Young