Brooks v. Brooks

Brooks v. Brooks Collection Decisions of the Court of Appeal Date 1998-08-07 Docket numbers C29247 Judges Krever, Horace; Carthy, James Joseph; Osborne, Coulter Arthur Anthony Subject Family Decision Content DATE: 19980807 DOCKET: C29247 COURT OF APPEAL FOR ONTARIO KREVER, CARTHY and OSBORNE JJ.A. BETWEEN: PHILIP SCOTT BROOKS Appellant And HELENA MARGARET BROOKS Respondent Philip M. Epstein, Q.C. and Melanie Kraft for the appellant Steven R. Baldwin for the respondent Heard: June 25 and 26, 1998 OSBORNE J.A.: [1] This appeal is about the jurisdiction of the Manitoba and Ontario courts to deal with issues of custody, access and child support in respect of the two children of the appellant, Mr. Brooks, and the respondent, Mrs. Brooks. The courts in both provinces have assumed jurisdiction over those issues: in Manitoba in an action commenced by Mr. Brooks under the Divorce Act, R.S.C. 1985, c. D.3.4, and in Ontario in an action commenced by Mrs. Brooks under provincial legislation (The Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) and The Family Law Act, R.S.O. 1990, c. F.3). [2] For reasons that will follow, I have concluded that there was no proper basis for the Ontario Court (General Division) to assume jurisdiction. In my view, the Manitoba Queen's Bench (Family Division) has jurisdiction under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, to deal with custody, access and child support in the divorce action commenced by Mr. Brooks in December 1996. [3] This appeal is from the decision of the Honourable Mr. Justice Hurley dated February 25, 1998. On that date Hurley J. dismissed a number of motions, including motions by both parties in which the issue was whether Manitoba or Ontario courts had jurisdiction to determine which parent should have custody. The motions heard by Hurley J. were: * a motion by Mrs. Brooks in her Ontario CLRA action for a declaration that orders made in that action remain in full force and effect and that Ontario orders in her CLRA action were not superseded or replaced in any respect by orders of the Queen's Bench (Family Division) in Manitoba in Mr. Brook's divorce action; * a motion by Mrs. Brooks to vary the Manitoba divorce judgment granted on December 11, 1997, or for other relief under the Divorce Act; * a motion by Mrs. Brooks in which she sought leave to amend her Ontario statement of claim, to expedite the trial of her Ontario action and an order staying the enforcement of the divorce judgment issued in Mr. Brooks' Manitoba divorce proceedings; * Mr. Brooks' motion for a declaration that his Manitoba judgment is a valid and subsisting judgment which supersedes all orders made in the Ontario Court (General Division). In addition, Mr. Brooks sought an order declaring that the Ontario Court (General Division) has no jurisdiction to vary the Manitoba Divorce Act judgment, or to grant relief to Mrs. Brooks under the Divorce Act. [4] After reviewing the somewhat extended history of the legal proceedings commenced by Mr. Brooks in Manitoba and by Mrs. Brooks in Ontario, Hurley J. concluded that he could not deal with the correctness of any of the orders made in the Ontario Court (General Division) or make an order that would have the effect of varying or revoking any of those orders. He also held that Goodman J. in Manitoba had jurisdiction to issue the judgment that he did in Mr. Brook's Divorce Act proceeding. He concluded that there was no basis in the evidence that would permit him to vary or stay Goodman J.'s judgment. He noted that any jurisdiction he had to vary or stay that judgment was "extremely limited." He therefore dismissed all motions without costs. [5] Mr. Brooks appeals from Hurley J.'s order as it relates to his motion. Mrs. Brooks cross-appeals from Hurley J.'s order dismissing her motions. Stripped of non-essentials, Mr. Brooks submits that the motions judge was wrong in not holding that the Manitoba Queen's Bench (Family Division) has jurisdiction under the Divorce Act, and Mrs. Brooks submits that he was wrong in not holding that the Ontario Court (General Division) has jurisdiction under the CLRA to deal with custody, access and child support. [6] Both parties recognize that the existing stalemate is not acceptable. Thus, both Mr. and Mrs. Brooks, from quite different perspectives, contend that Hurley J. erred in failing to adjudicate on the matters before him. [7] To address the issue of jurisdiction, it is necessary to refer to some of the underlying facts and the history of the Manitoba and Ontario proceedings. THE FACTS [8] Mr. and Mrs. Brooks were married on August 31, 1984. They have two children, a boy Joshua, age 10, and a girl Neishe, age 8. [9] After their marriage in August 1984, Mr. and Mrs. Brooks lived in London, Ontario until January 1, 1988, when they moved to Winnipeg, Manitoba. They lived in Winnipeg until April 1989, when they returned to Ontario. In May 1992 they moved back to Winnipeg where they lived with their two children until December 1996. [10] On December 10, 1996, Mr. and Mrs. Brooks separated. From Mrs. Brooks' standpoint, the reasons for the separation are set out in her affidavits filed in Ontario in her CLRA action. In brief, Mrs. Brooks stated that she regarded her marriage as difficult because of Mr. Brooks' temper. She described being assaulted and locked out of her home by Mr. Brooks. She stated that Mr. Brooks' abusive behaviour escalated in the latter part of 1996 and that on December 10, 1996, he became annoyed because she and the children were disrupting his sleep. According to Mrs. Brooks: * Mr. Brooks got out of bed and knocked some of Mrs. Brooks' personal possessions off the top of her vanity, breaking them. He yelled and spit at her and threw her on their bed; * Mr. Brooks attempted to fold the mattress with Mrs. Brooks inside and push the mattress against the wall; * Mr. Brooks flipped the mattress over and knocked Mrs. Brooks onto a side table. The impact resulted in the side table lamp falling to the floor and breaking. During this altercation Mr. Brooks told his son Joshua to be quiet or he would be spanked. At this time Neishe was crying; * after the incident Mr. Brooks told Mrs. Brooks to stay at home while he took the children to school. He said that he would be back to settle matters that day. [11] Before Mr. Brooks returned Mrs. Brooks left the matrimonial home to speak to her minister. She decided that she had to separate. She said, in her affidavit, "I determined that I would come to Ontario for the safety and security of myself and the children." She also said that "[t]he overriding reason for my coming to Ontario is that, let alone financial support, there was no emotional or family support for me in Winnipeg. I needed the support of my family at this time." [12] Mrs. Brooks arranged for air transportation from Winnipeg to Toronto on December 10, 1996. Later in the morning of December 10, 1996, she said that Mr. Brooks helped her with the suitcases that she needed for the trip and acknowledged to Reverend Malavsky, who had come to the Brooks home, that the house was not safe for Mrs. Brooks and the children. Mrs. Brooks said that Mr. Brooks explained that he was under considerable stress. In her affidavit sworn on December 17, 1996, Reverend Malavsky confirmed that Mr. Brooks said that he was under considerable stress because he was writing examinations1 and that he acknowledged that, "it can't go on as it is." Both Mrs. Brooks and Reverend Malavsky stated in their respective affidavits that Mrs. Brooks gave a note to her husband as she departed that set out where she and the children were going. Their destination in Ontario was Belleville where Mrs. Brooks' parents lived. [13] Mr. Brooks acknowledged in his affidavit that there were problems in the marriage. He said that when he returned home from his night shift on Dercember 10, 1996, Mrs. Brooks left to do some wall papering at a rental home owned by the Brooks. This left him with the children. When Mrs. Brooks returned home Mr. Brooks stated that he was frustrated and irritable and that he and Mrs. Brooks had an argument. Mr. Brooks admitted that in the December 10th altercation he yelled and threw some of Mrs. Brooks' possessions to the floor. He said he did not break anything, or hit, or threaten Mrs. Brooks or the children. He also admitted that he heard the children crying and that he opened the door and told them their mother and he were having an argument. He told the children that the "busy stuff" [his examinations] would be over in a few days. He expressed the opinion in his affidavit sworn on December 16, 1996 that, "I believe that both of our behaviour at times has been immature and a poor example, which re-inforces the fact that we needed some time together and needed some marriage counselling." [14] Mr. Brooks quite clearly did not pursue marriage counselling that he referred to in his affidavit as being needed. On December 11, 1996, one day after Mrs. Brooks left Winnipeg for Belleville with Joshua and Neishe, he retained the services of a lawyer in Winnipeg. He started divorce proceedings on that day. He sought the dissolution of his marriage based on separation which began on December 10, 1996. In his divorce petition he claimed custody of Joshua and Neishe and child support. The divorce petition issued in Manitoba was, needless to say, the first proceeding commenced. [15] There followed 23 attendances in the Manitoba Queen's Bench (Family Division) and the Ontario Court (General Division). The significant court-related events were: Dec. 11, 1996 - Manitoba Mr. Brooks issued a divorce petition in Manitoba. He applied for and obtained an ex parte order under the Divorce Act, giving him interim custody of Joshua and Neishe. The order required that Mrs. Brooks return the children to Manitoba forthwith. Dec. 12, 1996 - Ontario Mrs. Brooks applied in the Ontario Court (General Division), without notice, for interim custody. Her affidavit stated that there were no proceedings pending elsewhere. One assumes that she was unaware of the fact that Mr. Brooks had commenced proceedings under the Divorce Act on December 11, 1996. In any case, Byers J. granted interim custody of Joshua and Neishe to Mrs. Brooks, until further order of the court. Byers J. provided that either party could bring the motion back on for hearing on two days notice. Dec. 13, 1996 - Ontario Mr. Brooks moved to have the Manitoba ex parte order enforced in Ontario. Byers J. adjourned the motion to December 18, 1996. Dec. 17, 1996 - Ontario Mrs. Brooks commenced an action in Ontario for custody and child support under the Children's Law Reform Act. In her statement of claim she sought an order under s. 272 of the Children's Law Reform Act that her Ontario custody and access proceedings not be stayed because of the Manitoba Divorce Act proceedings, an order under s. 17 of the Divorce Act varying the Manitoba interim order and an order declaring that the Ontario Court's jurisdiction under ss. 42 and 43 of the Children's Law Reform Act, superseded the jurisdiction exercised by the Manitoba Queen's Bench (Family Division) under the Divorce Act. Dec. 18, 1996 - Ontario Cunningham J. heard the motions made by both Mr. and Mrs. Brooks. He gave Mrs. Brooks interim custody and declared that his interim custody order, made under ss. 42 and 43 of the Children's Law Reform Act, superseded the Manitoba order of December 11, 1996. In an alternative ruling, Cunningham J. varied the December 11, 1996 Manitoba interim order, under s. 17 of the Divorce Act, to provide that Mrs. Brooks have interim custody of the two children. Finally, Cunningham J. made provision for interim access to Mr. Brooks over the Christmas holiday season. Dec. 20, 1996 - Manitoba On Mr. Brooks' motion, Mercier A.C.J. confirmed his December 11, 1996 order which granted interim custody to Mr. Brooks and ordered Mrs. Brooks to return the children to Manitoba. He also provided that once the children were returned to Winnipeg, neither Mr. nor Mrs. Brooks was to remove them from the City of Winnipeg, without court order. Under the Manitoba Family Maintenance Act he granted exclusive possession of the matrimonial home to Mr. Brooks and prohibited Mrs. Brooks from entering any premises, including the matrimonial home, where Mr. Brooks was living. Dec. 23, 1996 - Ontario On Mrs. Brooks' motion, Byers J. granted interim, supervised access to Mr. Brooks during the Christmas holidays. This was further to Cunningham J.'s December 18, 1996 access order. Jan. 15, 1997 - Ontario Mr. Brooks applied for leave to appeal Cunningham J.'s December 18, 1996 interim custody order. Lally J. dismissed the motion. He concluded that there was ample evidence that at least s. 42 of the Children's Law Reform Act gave the Ontario Court (General Division) jurisdiction to deal with custody and access. In his reasons, he endorsed Cunningham J.'s use of s. 17 of the Divorce Act to vary the Manitoba interim custody order in Mr. Brooks' divorce action. Jan. 24, 1997 - Manitoba Mrs. Brooks filed an answer to Mr. Brooks' Manitoba divorce petition. In it she contested: * custody, access and child support * police enforcement of the Manitoba court's earlier order * the prohibition against removal of the children from the City of Winnipeg * the Manitoba court's jurisdiction Mar. 21, 1997 - Manitoba A case conference in Mr. Brooks' Manitoba divorce action was held before Diamond J. Mrs. Brooks participated in the case conference. During the case conference, and in the case conference Memorandum, Mrs. Brooks was advised to retain counsel in Manitoba and that Mr. Brooks would be bringing a further motion before Mercier A.C.J. on April 4, 1997. Mar. 31, 1997 - Manitoba Mrs. Brooks wrote to the case management coordinator of the Court of Queen's Bench in Winnipeg. In her letter she explained that her position with respect to the issue of jurisdiction. She advised the case management coordinator that she did not have funds to retain counsel in Manitoba. Apr. 4, 1997 - Manitoba Mr. Brooks moved to confirm Mercier A.C.J.'s December 11, 1996 order. Mercier A.C.J. referred to Mr. Brooks affidavit sworn on March 24, 1997, and to Mrs. Brooks' letter to the case management coordinator of March 31, 1997. He stated that he had read all of the material filed in Ontario. He confirmed his interim custody order of December 20, 1996, and he again directed Mrs. Brooks to return the children to the City of Winnipeg. He ordered Mrs. Brooks to pay costs of the motion to Mr. Brooks. May 6, 1997 - Manitoba Mr. Brooks moved to amend his divorce petition to allege cruelty. The allegations of cruelty related to Mrs. Brooks' conduct after separation. The Master, who dealt with the motion, ordered Mrs. Brooks to pay $300 to Mr. Brooks as costs of the motion. Why that order was made is not clear to me. May 28, 1997 - Manitoba Mrs. Brooks participated in a second Case Conference in Winnipeg by conference call. She was again advised to retain counsel. She was also told that if she wanted to transfer the divorce proceedings from Manitoba to Ontario, she should bring a motion as soon as possible since a trial date for September 2 to 9, 1997 in Winnipeg had been fixed. June 19, 1997 - Manitoba Mr. Brooks moved in Manitoba for an order permitting him to use a 1996 Dodge Caravan motor vehicle pending the trial. This vehicle was registered in Mrs. Brooks' name. Guertin-Riley J. made the order requested with respect to the use of the Dodge Caravan and directed Mrs. Brooks to execute whatever documents were necessary to have the motor vehicle properly registered with Manitoba Public Insurance. She also ordered Mrs. Brooks to pay Mr. Brooks' costs in the amount of $1,000. June 24, 1997 - Manitoba Mrs. Brooks participated in a third Case Conference, by conference call. During the Case Conference, she was told that the trial would proceed in Winnipeg on the issues of custody and support, but not on the issue of property division. Mrs. Brooks was told that she should be present at the trial. She was ordered to pay costs of $350 as a result of her failure to retain counsel. An order issued on consent for a reference to the Master for an accounting to determine relevant property values. It was stipulated that the valuation date for purposes of the reference was December 10, 1996, the date of separation. June 25, 1997 - Ontario Mr. Brooks moved in the Ontario Court for an order that the children be returned to Manitoba and for a stay in Mrs. Brooks' Ontario CLRA action. He also sought to set aside the noting of his default and an order permitting him to file a statement of defence. Kealey J. dismissed Mr. Brooks' motion, apart from his request that he be permitted to file a statement of defence. Mr. Brooks was ordered to pay Mrs. Brooks' costs of $2,000. Aug. 6, 1997 - Ontario Mrs. Brooks' motion in Ontario for spousal and child support was adjourned by Lally J. to September 3, 1997. Lally J. expressed the hope that "by September 3 the father will have paid some money for the children." Sept. 2-4, 1997 - Manitoba The divorce trial in Manitoba began and ended. Mrs. Brooks who had previously advised Mr. Brooks' solicitor in Manitoba that she would not attend the trial in Manitoba. Judgment was reserved. Mr. Brooks called 15 witnesses. Sept. 3, 1997 - Ontario Aitken J. heard Mrs. Brooks' motion for interim spousal and child support. She ordered that Mr. Brooks pay child support of $720 per month and spousal support of $200 per month. Mr. Brooks was ordered to pay costs of $750. The spousal and child support orders were made under s. 20 of the Family Law Act. This motion was heard in Ontario in the middle of the September 2-4 divorce trial in Manitoba. Dec. 11, 1997 - Manitoba Goodman J.'s reasons for judgment in the divorce action were released. He granted Mr. and Mrs. Brooks joint custody of Joshua and Neishe, provided Mrs. Brooks return the children to Manitoba by February 15, 1998, failing which Mr. Brooks was to have sole custody of the children. Mr. Brooks was also held to be entitled to costs of the trial. Jan, 28, 1998 - Ontario Mrs. Brooks moved for a declaration that the interim orders made in her Ontario action superseded Goodman J.'s Manitoba Divorce Act judgment. This motion was returnable on February 4, 1998. It is not clear to me what disposition was made of it. Feb. 5, 1998 - Ontario Mrs. Brooks brought an application under the Divorce Act to vary the Manitoba divorce judgment. The variation sought was to provide that Mrs. Brooks have custody of the two children. On the same day, Mrs. Brooks also moved in her Ontario Children's Law Reform Act proceeding for a leave to amend her statement of claim, for an order expediting the trial of her Children's Law Reform Act action and for an order that her application to vary be consolidated with the trial of her Children's Law Reform Act action. She also sought to stay the enforcement of Goodman J.'s divorce judgment, pending the disposition of her application to vary and her CLRA claim. Feb. 12, 1998 - Ontario By notice of application, Mr. Brooks sought a declaration that the Manitoba Divorce Act judgment of December 11, 1997 was a valid and subsisting judgment which superseded all orders made by the Ontario Court (General Division) in Mrs. Brooks Children's Law Reform Act action or under s. 17 of the Divorce Act. Mrs. Brooks moved for the reverse declaration, consistent with her position that the Ontario orders were not superseded by the final judgment under the Divorce Act in Manitoba. She also sought to expedite the trial of her CLRA action and to stay the enforcement of the December 11, 1997 Divorce Act judgment. Hurley J. dismissed all motions before him on the basis that he was not entitled to deal with the correctness of the Ontario orders or interfere with the Manitoba Divorce Act judgment since it was a final order issued by a court having jurisdiction. [16] When both Mr. and Mrs. Brooks appealed Hurley J.'s orders, there were three ongoing Ontario proceedings and one final order in Manitoba: * Mrs. Brooks' CLRA action commenced on December 17, 1996 in which she claimed custody, child and spousal support; * Application 9655/98, brought by Mr. Brooks in which he sought to have the Manitoba judgment in his divorce action declared "to be valid and subsisting and superseding all orders of the Ontario Court (General Division)"; * Application 9644/98 was Mrs. Brooks' application. The central issue was whether the Ontario or Manitoba courts had jurisdiction; and * Mr. Brooks' Manitoba divorce action which had proceeded to a final judgment in December 1997. [17] Mr. Brooks, the appellant, has appealed the dismissal of his application for a declaration that his Manitoba Divorce Act judgment superseded all Ontario CLRA orders. Mrs. Brooks has cross-appealed from Hurley J.'s order dismissing her application in which, as I have said, the central issue was which province's court had jurisdiction over the issue of custody. In dealing with that issue in the context of the appeal and cross-appeal from Hurley J.'s February 25, 1998 order, Mr. and Mrs. Brooks have at least one thing in common. They both recognize that the issue of jurisdiction must be resolved since a continuation of the existing impasse is clearly not in the best interests of their children. [18] To date, neither the Ontario nor the Manitoba courts have considered the best interests of the children in light of the positions taken by both parents. The Manitoba Queen's Bench (Family Division) had the benefit of evidence from Mr. Brooks, but not Mrs. Brooks. Similarly, for the most part, the Ontario Court (General Division) has had the benefit of evidence from Mrs. Brooks, but not Mr. Brooks. The Attorney General at the time of the introduction at first reading of the Children's Law Reform Amendment Act, 1979, noted that, "the ability of the court to make the best decision on behalf of the child is directly related to the amount of relevant information available to the court." His concerns apply here; no court has had the benefit of the evidence of both Mr. and Mrs. Brooks. [19] Although jurisdiction is a legitimate issue, and an issue which must be resolved, the commitment of resources to it thus far has tended to relegate the issue of the best interests of the children to the status of a virtual footnote. Even the issue of child support has been compromised by the dispute over jurisdiction. As I noted, Aitken J. made an order of child support in circumstances where Mr. Brooks disputed her jurisdiction to do so. He has, however, not taken issue with his obligation to pay child support so long as the children are being cared for by their mother, as they have been since December 10, 1996. The dispute over jurisdiction resulted in Mr. Brooks paying child support in the amount ordered by Aitken J., not to Mrs. Brooks, but into his solicitor's trust account. We were told during oral argument that the child support credit in the solicitor's trust account is about $13,000. During oral argument, counsel for Mr. Brooks resisted the suggestion that, consistent with the best interests of the children, child support should be paid out of the solicitor's trust account to Mrs. Brooks. The competing argument is that Mrs. Brooks owes Mr. Brooks close to $13,000 as a result of a number of costs orders that have been made against her in some of the Manitoba proceedings. I am confident that these competing concerns (costs versus the children's entitlement to child support) will be resolved expeditiously by the Manitoba courts. I leave that issue by noting that the child support funds may be earning an attractive rate of interest in the solicitor's trust account; however, it is difficult to understand how it can be said that this sterile arrangement is in the best interests of the children. JURISDICTION: ONTARIO OR MANITOBA? (i) Overview [20] It is clear that the Manitoba Queen's Bench (Family Division) Divorce Act proceeding was a proceeding properly commenced by Mr. Brooks in Manitoba. Indeed, only Manitoba had jurisdiction under the Divorce Act in December 1996. (See Divorce Act, s. 3.(1)) Thus, the focus of the analysis must be on the Ontario proceedings. The question to be answered is whether the provisions of the Children's Law Reform Act, or the Divorce Act, provide a proper basis to give the Ontario Court (General Division) jurisdiction to deal with the issues of custody, access and child support. [21] It seems to me that the rhetoric surrounding the actions of both Mr. and Mrs. Brooks serve only to cloud the analysis of the issue of jurisdiction. Simply put, Mr. Brooks did what he was entitled to do, and what he thought he should do, in starting a divorce action when he did, that is within 24 hours of Mrs. Brooks' departure; whether his motivation was to ensure that he would control the custody issue in Manitoba is, at this stage, a non-issue. Similarly, Mrs. Brooks did what she thought she should do following the December 10, 1996 altercation when she returned to Ontario to be with her parents. In my opinion, nothing productive results from an assessment of the availability of friends' residences or shelters for battered women in Winnipeg. Mrs. Brooks never considered these options, as I read her evidence. Instead, she returned to Ontario so that she and her children would be near her parents. In the extensive record put before us on this appeal, I find it very difficult to conclude that Mrs. Brooks left Manitoba for Ontario to avoid the jurisdiction of the Manitoba courts. I do not take the remarks of Mercier A.C.J. in his April 4, 1997 reasons about "people" who abscond with children to avoid the jurisdiction of the court to have direct application to Mrs. Brooks. I do, however, agree with Mercier A.C.J. as a general proposition, for reasons which I set out shortly, that Part III of the Children's Law Reform Act, and similar legislation in other provinces, is intended to avoid forum shopping and the inappropriate removal of children from one jurisdiction to another. [22] Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure the best information relevant to the children's best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, as has occurred here. [23] Section 19(b) of the CLRA reflects the view that concurrent exercise of jurisdiction over custody "... ought to be avoided." 19. (b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child a closer connection. [24] The language of s. 19(b) is general. Other provisions in Part III of the CLRA were clearly intended to provide a specific framework to determine whether another jurisdiction, in the language of s. 19(b), is "more appropriate" to determine matters of custody and access. It is, I note, the connection between the child, not the parent, and another jurisdiction that is referred to in s. 19(b). (ii) Analysis [25] The controlling order made in Ontario is that of Cunningham J. dated December 18, 1996. This order was made in an action commenced by Mrs. Brooks in which she sought relief under the Children's Law Reform Act and the Divorce Act. The relevant sections of those Acts are ss. 22, 42 and 43 of the CLRA and s. 17 of the Divorce Act. I deal with the CLRA first. Childrens' Law Reform Act 22. (1) Jurisdiction. A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (a) the child is habitually resident in Ontario at the commencement of the application for the order; (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra- provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario. (v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. (2) Habitual residence. A child is habitually resident in the place where he or she resided, (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred. (3) Abduction. 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. 42. (1) Superseding order, material change in circumstances. Upon application, a court may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and, (a) the child is habitually resident in Ontario at the commencement of the application for the order; or (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made, (iii) that substantial evidence concerning the best interests of the child is available in Ontario, (iv) that the child has a real and substantial connection with Ontario, and (v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. (2) Declining jurisdiction. A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. 43. Superseding order, serious harm. Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if, (a) the child remains in the custody of the person legally entitled to custody of the child; (b) the child is returned to the custody of the person entitled to custody of the child; or (c) the child is removed from Ontario. [26] Under s. 22(1)(a) of the CLRA, the jurisdiction of the Ontario courts, as defined in the Act, over custody and access is mainly dependent on the child's habitual residence. [27] Section 22(1)(b) provides a basis for the Ontario courts to exercise jurisdiction where the child is not habitually resident in Ontario. Section 25 recognizes that even if an Ontario court has jurisdiction under Part III of the CLRA, the court may decline to exercise that jurisdiction "... where it is of the opinion that it is more appropriate for the jurisdiction to be exercised outside Ontario." [28] Section 40 of the CLRA sets out the interim powers of the court in these terms: 40. Upon application, a court, (a) that is satisified that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or (b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following: 1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child. 2. Stay the application subject to, i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or ii. such other conditions as the court considers appropriate. 3. Order a party to return the child to such place as 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. [29] Section 40 was clearly intended to permit the court to make interim orders even in circumstances where the court has declined jurisdiction under ss. 25 or 42 of the CLRA, or concluded that it does not have jurisdiction in light of the provisions of s. 22. The Ontario Court (General Division) did not act under s. 40 in making interim custody orders. [30] The Brooks children were not habitually resident in Ontario in December 1996. There was, therefore, no basis upon which a court in Ontario could exercise jurisdiction on the issues of custody and access under s. 22(1)(a) of the CLRA. Unless the court was satisfied that all of the requirements of s. 22(1)(b) of the CLRA were met, the Ontario Court (General Division) did not have jurisdiction over custody and access. One of the s. 22(1)(b) requirements is that there is no custody or access proceeding pending in an extra-provincial court (s. 22(1)(b)(iii)). There was a custody/access proceeding pending in the Queen's Bench (Family Division) in Manitoba in December 1996. [31] Section 42(1)(a) gives the Ontario courts the power to supersede an extra-provincial order of custody or access if there has been a material change in circumstances that has affected, or is likely to affect, the best interests of the child if the child is habitually resident in Ontario. If the child is not habitually resident in Ontario, the applicant must satisfy the criteria set out in s. 42(1)(b)(i) to (v). [32] In my view, in December 1996, s. 42(1)(a) did not provide a basis for the Ontario Court to exercise jurisdiction over custody of Joshua and Neishe. There was no material change in circumstances and the children were not habitually resident in Ontario. Section 22 of the CLRA provides that the children were habitually resident where they resided with their parents -- Winnipeg. The children's physical presence in Ontario is not enough for purposes of s. 42(1)(a). [33] Section 42(1)(b) provides a statutory basis for jurisdiction over custody and access where the child is not habitually resident in Ontario. Five jurisdictional requirements must be met. To repeat, they are: 42. (1) Superseding order, material change in circumstances. Upon application, a court may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and, (a) ... (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made, (iii) that substantial evidence concerning the best interests of the child is available in Ontario, (iv) that the child has a real and substantial connection with Ontario, and (v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [34] There is no doubt that at the time of the December 1996 interim custody motions heard by Byers and Cunningham JJ., the children were physically present in Ontario. However, I do not think it can reasonably be said that in December 1996 the children no longer had "a real and substantial connection" with Manitoba, where an ex parte custody order had been made under the Divorce Act on December 11, 1996. Moreover, the "substantial evidence" referred to in s. 42(1)(b)(iii) militated in favour of Manitoba being the appropriate jurisdiction to determine custody and access at that time. [35] I do not think s. 42(1)(b) of the CLRA provided a basis for the Ontario courts to exercise jurisdiction over custody and access in December 1996 when the first interim custody order in Ontario was made. [36] Section 43 provides a further basis for an Ontario court to issue a custody or access order which supersedes an extra- provincial custody or access order. The threshold requirement for resort to s. 43 as a basis for jurisdiction is that the court must be satisfied, on the balance of probability, the children would suffer "serious harm", if one, or more, of the three events referred to in s. 43(a), (b) and (c) were to occur. Cunningham J.'s reasons make no reference to "serious harm" as referred to in s. 43. He seems to have determined interim custody by application of a best interests test. Section 43 is concerned with jurisdiction over custody and access. Once jurisdiction is determined, the court having jurisdiction will resolve the issue of custody by taking the children's best interest into account. In any case, the record reveals nothing that would support a serious-harm conclusion within the scope of s. 43. In my view, s. 43 of the CLRA does not give the Ontario Court (General Division) jurisdiction to deal with custody of, and access to, the Brooks children. [37] This brings me to the Divorce Act. As I have said, in an alternative ruling, Cunningham J., on December 18, 1996, relied upon s. 17 of the Divorce Act as a basis for exercising jurisdiction over custody and access. In his alternative finding, by resort to s. 17, he varied the Manitoba court's interim custody order. He said: Alternatively, or as I should say additionally, the order of Mercier A.C.J. is varied pursuant to the Divorce Act s. 17 to provide interim custody to the wife who shall be permitted to reside with the children in the City of Belleville until further order of this court. [38] Custody and access orders are dealt with in s. 16 of the Divorce Act. Section 16(1) gives a court of competent jurisdiction power to make a final custody order and s. 16(2) gives a court of competent jurisdiction power to make an interim custody order: 16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1). [39] The December 1996 custody order of the Manitoba court which Cunningham J. varied was an interim custody order, that is an order made under s. 16(2). Section 17 of the Divorce Act gives a court of competent jurisdiction power to vary a "custody order." The relevant parts of s. 17 are set out below: 17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person. (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. [40] Section 17(1)(b) gives a court of competent jurisdiction power to make an order varying, rescinding or suspending a custody order, on the application of either or both "former spouses." In December 1996, Mr. and Mrs. Brooks were not former spouses. They did not become former spouses until December 11, 1997. Further, s. 17(5) requires a change in "the condition, needs or other circumstances of the child of the marriage occurring since the making of the custody order ...." There were no such changes following the issuance of the interim custody order in the Manitoba divorce proceeding in December 1996. The Ontario "variation" occurred eight days after the Manitoba interim custody order was issued. This is not an issue of jurisdiction but of entitlement to a variation. [41] "Custody order" is defined in s. 2(1) of the Divorce Act to mean an order made under s. 16(1) of the Divorce Act. The power to vary a "custody order" under s. 17(1)(b) of the Divorce Act is limited by that definition to a s. 16(1) order of custody; it does not extend to an interim order for custody made under s. 16(2). In December 1996, the Manitoba Queen's Bench (Family Division) had made an interim custody order under s. 16(2) of the Divorce Act. At that time, the Manitoba court had not made a final (s. 16(1)) custody order. Thus, in my view, the Ontario Court (General Division) was not "a court of competent jurisdiction", as referred to in s. 17(1) of the Divorce Act, to vary Mercier A.C.J.'s December 11, 1996 interim custody order. If that order was to be varied, the motion to do so should have been brought in Manitoba unders its rules for the variation of ex parte interim custody orders. [42] Mr. Baldwin, for Mrs. Brooks, submitted that to recognize, or enforce, the Manitoba final order in Ontario would constitute a collateral attack on Cunningham J.'s order which dealt with both jurisdiction and interim custody. I accept that leave to appeal from Cunningham J.'s order was refused. I have some reservations as to whether Cunningham J.'s disposition of the issue of jurisdiction (as distinct from his interim custody order) was an interlocutory order which could only be appealed with leave. However, I do not think it is necessary to decide that issue. The appeal and cross-appeal before us are from Hurley J.'s orders. As I have said, Hurley J. dismissed cross- applications by Mr. and Mrs. Brooks in which each sought a declaration that either Manitoba (Mr. Brooks), or Ontario (Mrs. Brooks) had jurisdiction to determine the issues of custody and access. Both Mr. and Mrs. Brooks take the position that Hurley J. was wrong in dismissing the application for the declaration that each sought. [43] It seems to me that, in the circumstances, Hurley J. ought to have decided whether Ontario or Manitoba had jurisdiction to determine custody and access. This court is in a position to make the order that ought to have been made below. I my view, Hurley J. ought to have concluded that the Manitoba courts had jurisdiction and that the interim orders made there superseded the Ontario interim orders. I accept that Hurley J. could have varied Goodman J.'s final order of custody under s. 17 of the Divorce Act. He concluded that the evidence did not justify the variation sought. I am unable to say that he was wrong in reaching that conclusion. [44] The fact that I have concluded that the Manitoba courts have jurisdiction does not mean that all aspects of corollary relief (custody, access and child support) will inevitably be determined in Manitoba. During oral argument, Mr. Epstein for Mr. Brooks, advised the court in clear terms that if the custody access proceedings were to be returned to Manitoba, that is if Manitoba were declared the appropriate jurisdiction to deal with them, Mr. Brooks would consent to an order setting aside the judgment of Goodman J. and permitting Mrs. Brooks to participate in the proceedings for corollary relief under the Divorce Act as they relate to custody, access and child support. I am confident that that commitment made in Ontario will be respected by counsel representing Mr. Brooks in Manitoba. [45] It will be for the Manitoba Queen's Bench (Family Division) to determine whether s. 6(2) of the Divorce Act is engaged and, assuming that an application under that section is made, whether the issues of custody, access and child support ought to be transferred to Ontario. It will, I emphasize, be for the Manitoba Queen's Bench (Family Division) to decide that issue in light of all of the evidence, particularly evidence relevant to the best interests of the Brooks' two children. [46] There is one final matter. Joshua and Nieshe have been with their mother in Belleville, Ontario for over a year and a half. The judgment of Goodman J. in the Manitoba Divorce Act proceeding granted Mr. and Mrs. Brooks joint custody effective February 15, 1998. He provided that if Mrs. Brooks did not deliver the children into the joint custody arrangement in Winnipeg by that date, Mr. Brooks would have sole custody of the children. Goodman J. sensibly deferred the joint custody order for about two months because it meant that Mrs. Brooks and the children had to arrange to return to Winnipeg from Belleville. [47] It seems to me that it would not be in the best interests of the children to expose them to a total dislocation from their home in Belleville, Ontario as would be required if the custody arrangements set out in Goodman J.'s December 11, 1997 judgment were now adhered to. Some time to accommodate the transition is required having regard to the children's best interests. In addition, Mr. Brooks has agreed that Goodman J.'s judgment will be set aside to permit Mrs. Brooks to defend Mr. Brooks' Manitoba custody/access and child support claims. Thus, it seems to me that there is a basis upon which the divorce judgment in Manitoba ought to be varied under s. 17 of the Divorce Act.3 I think that it is in the best interests of the children that Mrs. Brooks be given some time to respond to this judgment and to the reality of having to deal with her claims for custody, access and child support in Manitoba. [48] I would, therefore, vary the Manitoba divorce judgment by providing that the children will remain in Mrs. Brooks custody, with Mr. Brooks having a right of reasonable unsupervised access, until September 1, 1998. As of that date, if the children are in Manitoba, Mr. and Mrs. Brooks will have joint custody. I recognize that if Mrs. Brooks moves to set aside Goodman J.'s judgment as part of a process to permit the Manitoba court to determine, after hearing from both Mr. and Mrs. Brooks, what custody and access arrangements are in the children's best interests, further interim orders may be made. Such orders should be made in Manitoba, unless the Manitoba Queen's Bench (Family Division) on Mrs. Brooks' motion, or on its own motion, sees fit to transfer the corollary relief issues of custody and access to Ontario under s. 6(2) or (3) of the Divorce Act. CONCLUSION [49] For these reasons, I would allow the appeal and set aside the order below as it relates to Mr. Brooks' motion for a declaration that the Manitoba courts have jurisdiction over the issues of custody and access. I would, therefore, set aside the order below in part and issue a declaration in accordance with these reasons. The cross-appeal is dismissed. This is not a case for costs, here or below. Released: August 7, 1998 _______________________________ 1 In December 1996, Mr. Brooks was in third year law at the University of Manitoba. He had to write some Christmas examinations. Mrs. Brooks was employed on a part-time basis (about 20 hours a week) with RBC Dominion Securities in Winnipeg. Her employer knew that she intended to move to Ontario with Mr. Brooks and her children as Mr. Brooks intended to article and take the Bar Admission Course in Ontario. Mr. Brooks had accepted an articling position in Ottawa, Ontario to commence June 1, 1997. He was a captain in the Canadian Air Force. His particular job was duty operations officer at CFB Military Airport. 2 Section 27 of the CLRA provides that where an action for divorce is commenced, absent leave of the court, an application under Part III of the CLRA for custody and access is stayed. Mrs. Brooks sought leave under s. 27 to avoid the stay contemplated by the section. 3 This is an order made under s. 16(1) of the Divorce Act and the Brooks are now former spouses.