A.Q. v. F.H., (2013) 342 Nfld. & P.E.I.R. 60 (NLTD(F))

• Judge: McGrath, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 16, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 342 Nfld. & P.E.I.R. 60 (NLTD(F))

A.Q. v. F.H. (2013), 342 Nfld. & P.E.I.R. 60 (NLTD(F));

    1064 A.P.R. 60

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. OC.030

A.Q. (applicant) v. F.H.(respondent)

(201302F0834; 2013 NLTD(F) 35)

Indexed As: A.Q. v. F.H.

Newfoundland and Labrador Supreme Court

Trial Division (Family)

McGrath, J.

October 16, 2013.

Summary:

MA was born in Ontario in 2003. Her biological parents were MK and SA. SA played a limited role in MA's life. MK began a relationship with FH in 2006 and they lived together as a family with MA in British Columbia, Alberta and most recently Saskatchewan. MK had two older daughters who did not live with her, in particular AQ. In April 2013, MK was diagnosed with terminal cancer. In mid-June 2013, MK, FH and MA moved to Newfoundland so that MK could spend her last days with her family. MK died in September 2013. What followed was a series of applications by AQ, FH and others to determine custody of MA. At issue was (1) whether the Newfoundland court had jurisdiction to determine custody and access respecting MA; (2) even if the court did not have jurisdiction to make a final determination of custody and access, should it make an interim order; (3) who had standing to apply for custody of MA; and (4) if the answers to questions 1 and 3 were in the affirmative, should CF (AQ's cousin) be added as an applicant to these proceedings.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that it lacked jurisdiction to hear the applications. It refused to make an interim order and declined to hear and make rulings on questions 3 and 4.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - MA was born in Ontario in 2003 - Her biological parents were MK and SA - MK began a relationship with FH in 2006 and they lived together as a family with MA in British Columbia, Alberta and most recently Saskatchewan - MK had two older daughters who did not live with her, in particular AQ - In April 2013, MK was diagnosed with terminal cancer - In mid-June 2013, MK, FH and MA moved to Newfoundland so that MK could spend her last days with her family - MK died in September 2013 - What followed was a series of applications by AQ, FH and others to determine custody of MA - At issue was, inter alia, whether the Newfoundland court had jurisdiction to determine custody and access respecting MA - AQ asserted that the court could exercise jurisdiction by determining that MA was habitually resident in Newfoundland at the time of filing of the applications under s. 28(1)(a) of the Children's Law Act - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that it lacked jurisdiction to hear the applications - These facts did not establish "habitual residence" - The unfortunate circumstances surrounding this family's presence in Newfoundland indicated that there was nothing "ordinary" about their residence here - They did not move here with the intention of settling in and participating in everyday family life - When they traveled here, they knew it would be for an indefinite, but short, period of time - FH took compassionate leave from his employment in Saskatchewan and all three family members lived in the homes of others until MK and FH had to rent accommodations close to hospitals - While MA was enrolled in school and other activities, the court noted that children were obligated to attend school - The evidence revealed an attempt to shield MA from her mother's impending death and provide her with as much of a sense of normalcy as possible during her mother's last days - Saskatchewan was the appropriate forum - See paragraphs 25 to 40.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - MA was born in Ontario in 2003 - Her biological parents were MK and SA - MK began a relationship with FH in 2006 and they lived together as a family with MA in British Columbia, Alberta and most recently Saskatchewan - MK had two older daughters who did not live with her, in particular AQ - In April 2013, MK was diagnosed with terminal cancer - In mid-June 2013, MK, FH and MA moved to Newfoundland so that MK could spend her last days with her family - MK died in September 2013 - What followed was a series of applications by AQ, FH and others to determine custody of MA - At issue was, inter alia, whether the Newfoundland court had jurisdiction to determine custody and access respecting MA - AQ asserted that the court could exercise jurisdiction under s. 28(1)(b) of the Children's Law Act - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that it lacked jurisdiction to hear the applications - It was not appropriate to exercise jurisdiction under s. 28(1)(b) - There was a real and substantial connection between MA and Saskatchewan, and the majority of evidence relevant to a best interests analysis would be present in western Canada - Saskatchewan was the more appropriate province to exercise jurisdiction - See paragraphs 52 to 64.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - [See both Conflict of Laws - Topic 2302 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - MA was born in Ontario in 2003 - Her biological parents were MK and SA - MK began a relationship with FH in 2006 and they lived together as a family with MA in British Columbia, Alberta and most recently Saskatchewan - MK had two older daughters who did not live with her, in particular AQ - In April 2013, MK was diagnosed with terminal cancer - In mid-June 2013, MK, FH and MA moved to Newfoundland so that MK could spend her last days with her family - MK died in September 2013 - What followed was a series of applications by AQ, FH and others to determine custody of MA - At issue was, inter alia, whether the Newfoundland court had jurisdiction to determine custody and access respecting MA - AQ asserted that the court could exercise its inherent parens patriae jurisdiction - The Newfoundland and Labrador Supreme Court, Trial Division (Family), rejected the assertion - The provisions of the Children's Law Act governed the application and this was not an uncontemplated situation where the court should intervene and exercise its parens patriae jurisdiction - See paragraphs 65 to 68.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - MA was born in Ontario in 2003 - Her biological parents were MK and SA - MK began a relationship with FH in 2006 and they lived together as a family with MA in British Columbia, Alberta and most recently Saskatchewan - MK had two older daughters who did not live with her, in particular AQ - In April 2013, MK was diagnosed with terminal cancer - In mid-June 2013, MK, FH and MA moved to Newfoundland so that MK could spend her last days with her family - MK died in September 2013 - What followed was a series of applications by AQ, FH and others to determine custody of MA - At issue was, inter alia, whether the Newfoundland court had jurisdiction to determine custody and access respecting MA - AQ asserted that the court should have the benefit of evidence regarding MA's views and preferences in considering both the issue of jurisdiction and any interim order the court might make - The Newfoundland and Labrador Supreme Court, Trial Division (Family), found that it was not appropriate to order an assessment or interview of MA at this time - The court considered that MA's mother had just recently passed away and the child had had little stability in an emotionally trying time, having moved from home to home, despite the family's efforts - The court also considered her young age - That was not to say that there might not be cases where it was appropriate to have an interview of a 10 year old child, but not in these circumstances - See paragraphs 41 to 51.

Family Law - Topic 2120

Custody and access - Jurisdiction - Founded on residence of child - [See first Conflict of Laws - Topic 2302 ].

Family Law - Topic 2126

Custody and access - Jurisdiction - Declining jurisdiction - [See first Conflict of Laws - Topic 2302 ].

Cases Noticed:

Wilson v. Perry (2000), 184 Nfld. & P.E.I.R. 1; 559 A.P.R. 1; 2000 NFCA 4, refd to. [para. 28].

G.E.P., Re, [1965] Ch. 568; [1965] 2 W.L.R. 1 (Eng. C.A.), refd to. [para. 28].

Kean v. Cripple (2006), 258 Nfld. & P.E.I.R. 140; 779 A.P.R. 140; 2006 NLUFC 35, refd to. [para. 31].

Adderson v. Adderson (1987), 77 A.R. 256; 7 R.F.L.(3d) 185; 36 D.L.R.(4th) 631 (C.A.), refd to. [para. 31].

P.Y. v. I.C. (2003), 222 Nfld. & P.E.I.R. 115; 663 A.P.R. 115 (Nfld. T.D.), refd to. [para. 32].

Wilson v. Huntley, [2005] W.D.F.L. 2824, 13 R.F.L. (6th) 435 (Ont. Sup. Ct.), refd to. [para. 34].

Johnson v. Athimootil, [2007] O.T.C. Uned. K47; 49 R.F.L.(6th) 106; 160 A.C.W.S.(3d) 816 (Sup. Ct.), refd to. [para. 35].

Johnson v. Jessel (2012), 328 B.C.A.C. 54; 558 W.A.C. 54; 24 R.F.L.(7th) 185; 2012 BCCA 393, refd to. [para. 37].

John v. John, [2012] N.S.R.(2d) Uned. 231; 22 R.F.L.(7th) 471; 2012 NSSC 324, refd to. [para. 44].

Creamer v. Creamer (2000), 193 Nfld. & P.E.I.R. 120; 582 A.P.R. 120 (Nfld. T.D.), refd to. [para. 52].

O.E.K. v. V.M., [2008] A.R. Uned. 621; 2008 ABPC 271, refd to. [para. 55].

Naeli v. Ghaeinizadeh, [2013] O.A.C. Uned. 1; 224 A.C.W.S.(3d) 373; 2013 ONCA 2, refd to. [para. 56].

S.O. v. I.O. (2004), 236 Nfld. & P.E.I.R. 14; 700 A.P.R. 14; 2004 NLSCUFC 12, refd to. [para. 62].

Beson et al. v. Director of Child Welfare et al., [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 66].

George v. George (1995), 133 Nfld. & P.E.I.R. 248; 413 A.P.R. 248 (Nfld. T.D.), dist. [para. 78].

Downey v. Sterling, [2007] W.D.F.L. 1936; 2006 ONCJ 490, dist. [para. 79].

Johnston v. Johnston, [2006] W.D.F.L. 3400; 150 A.C.W.S.(3d) 862, dist. [para. 79].

Statutes Noticed:

Children's Law Act, R.S.N.L. 1990, c. C-13, sect. 28 [para. 24].

Counsel:

Daniel Glover, for the applicant;

Timothy O'Brien, for the respondent.

This case was heard at St. John's, NL, on October 4 and 11, 2013, by McGrath, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered her oral decision on October 16, 2013. The following edited transcript of oral reasons for decision were filed on October 22, 2013.