CONFLICT OF LAWS
Alberta order for return of child was contrary to public policy
Mother and father had child in Alberta in 2012. In March 2013, mother left with child while father was at work and went to live with her parents in Ontario. Father commenced action in Alberta for return of child and for parenting time. Mother was served substitutionally and never responded. Mother was ordered to return child to Alberta, and parties were to share parenting time. Father brought application in Ontario for recognition and enforcement of Alberta order. Application dismissed on terms. Alberta order was not recognized since it was contrary to public policy, and Ontario court was to exercise jurisdiction to deal with custody of and access to child. Considering that procedural steps taken by father in Ontario had been inappropriate and had caused undue delay, child could be considered to be habitually resident in Ontario pursuant to s. 22(3) of Children’s Law Reform Act. In any event, requirements in s. 22(1)(b) of act had been met. Child had been physically present in Ontario since March 2013. Substantial evidence concerning best interests of child was available in Ontario. There was no evidence of any application for custody of or access to child pending elsewhere in light of fact that Alberta order appeared to be final. Alberta order had not been recognized by court in Ontario. Child had real and substantial connection to Ontario. On balance of convenience, it was appropriate for jurisdiction to be exercised in Ontario. Mother’s conduct in removing child from Alberta was not condoned but disruption from returning matter to Alberta would not have served child’s interests. Those interests should not be sacrificed in order to punish mother.
Guillemaud v. Geurts (Jun. 30, 2015, Ont. S.C.J., J.A.S. Wilcox J., File No. FS-14-5723-00) 256 A.C.W.S. (3d) 312.