(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw conclusions about credibility, appeal court should not interfere in those factual findings, especially in child custody case, unless reasons show manifest error or significant misapprehension of evidence, or judge’s drawing erroneous conclusions from evidence or judge’s ignoring any evidence – In this case, however, trial judge disposed of case by way of affidavit evidence rather than viva voce testimony – Under those circumstances, appellate court might be sorely tempted to substitute its views for those of trial judge, but that temptation should be resisted – Arguably, threshold for appellate interference would not be as high as in case where oral testimony was given, but measure of deference should still be shown to trial judge’s findings.
CUSTODY OF CHILD – Jurisdiction – Habitual residence of child – Residing with one parent – With ‘consent, implied consent or acquiescence’ of other parent – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, mother purported to move to Ontario with children, although father’s notarized letter (for immigration purposes) gave her permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge concluded that father’s time-limited consent constituted acquiescence to relocation by mother and children and that Ontario court therefore had jurisdiction to hear mother’s application – Father appealed – In face of this limited consent, appeal court could not understand how trial judge could have concluded that father had consented or acquiesced – Trial judge had misapprehended evidence – Children were not habitually resident in Ontario and Ontario court could not assume jurisdiction under clause 22(1)(a) of Children’s Law Reform Act – Father’s appeal succeeded under clause 22(1)(a) but failed under clause 22(1)(b).
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Availability in Ontario of substantial evidence about child’s best interests – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s had lived in stable Ontario residence for 4 months and he accepted mother’s evidence about persons in Ontario who could testify about her parenting ability and about children’s welfare – Judge agreed that test under subclause 22(1)(b)(ii) was whether such evidence were available in Ontario, not comparison of whether more substantial evidence were available in Ontario or in New York state – Appeal court found that trial judge was entitled to come to this conclusion on evidence before him and that there was no significant misapprehension of evidence or that any evidence has been ignored or that erroneous conclusion had been drawn from it.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Balance of convenience to exercise jurisdiction in Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge was impressed by mother’s filing of affidavit that listed witnesses whom she would call, whereas father, for whatever reason, did not do so – Appeal court ruled that, on this basis, trial judge was entitled to find that it was appropriate for jurisdiction to be exercised in Ontario under subclause 22(1)(b)(v) – There was no manifest error, misapprehension of evidence or any erroneous conclusions drawn from evidence in this finding – No reason to disturb trial judge’s decision to assume jurisdiction under clause 22(1)(b) of Act.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Child’s real and substantial connection with Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s connection with maternal grandparents and uncle was based not just on past 4 months spent with them but on several trips to Ontario before parents separated – Because of their relatively young age, they were less likely to have independent connection with New York and were more dependent on mother who had real and substantial connection with Ontario – Appeal court thus concluded that, on basis of evidence before him, trial judge was entitled to find that children had real and substantial connection with Ontario, thus meeting requirements of subclause 22(1)(b)(v).
Justice James D. Carnwath
1996 CanLII 11326 (ON SC)
Canlii
Canada
Cited by:
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Lists of cited by and citing cases may be incomplete.
Children, International, Jurisdiction
Updated: 27 December 2021; Ref: scu.654501