WHICH COURT HAS JURISDICTION REGARDING CUSTODY/ACCESS OF AN UNBORN CHILD?
The Ontario Court of Appeal explored the issue in Murray v. Ceruti, 2014 ONCA 679. You can find it here. Here are the facts of the case:
- Ontario Woman moved to Indiana to be with new Man;
- Woman soon got pregnant and she formally married the Man soon afterward;
- The marriage ended before Woman gave birth. Woman moved back to Ontario;
- Man started court proceedings in Indiana for property issues but not for issues regarding unborn child;
- At the Man’s request, an Indiana judge declared that Indiana had jurisdiction over deciding custody and access issues and that the parents should co-parent the child equally. Mother was unrepresented and was informed by Ontario lawyers that court cannot take jurisdiction over unborn child;
- Child born;
- Woman brought proceeding in Windsor, Ontario. Got temporary Order that child was to stay in Ontario;
- Man brought motion to set aside the Ontario Order.
- Motion court judge held that Ontario, not Indiana, had jurisdiction over the child.
Motion’s court judge’s decision is the one under appeal.
The motion court judge held that the child was NOT an ordinary resident of Ontario. The child, however, satisfied all of the subtests found in s. 22(1) of the Children’s Law Reform Act.
- that the child was physically present in Ontario at the commencement of the application;
- that substantial evidence concerning the best interests of the child was available in Ontario;
- that no application for custody of or access to the child was pending before an extra-provincial tribunal in another place where the child was habitually resident – rather, that was a matter he had under consideration;
- that no extra-provincial order in respect of custody or access to the child had been recognized by a court in Ontario;
- that the child had only resided in Ontario and therefore had a real and substantial connection with Ontario; and
- that as the respondent had resided in Indiana for less than 100 days and was then living in Ontario, and as the child had spent her entire life in Ontario, on the balance of convenience, it was appropriate for jurisdiction to be exercised in Ontario.
The Man argued that because he sought to have custody of the child there was just as much evidence of the child’s best interest in Indiana than Ontario. The Honourable Janet M. Simmons held that there is an equal amount of evidence in both jurisdictions.
The Man argued that the Woman was “forum shopping”. Janet Simmons J.A. held, however, that the Woman’s decision to return to Ontario appeared legitimate.
The Man argued that there was already a proceeding in Indiana. The Indiana proceedings didn’t count because the child the child was unborn when they were made.
Finally, the Man argued that the Woman admitted that Indiana had jurisdiction over the issue when she participated in the Indiana proceedings. Janet Simmons J.A. held, however, that the desire to avoid multiple procedures does not trump the Ordinary Resident Test for jurisdiction in the Children’s Law Reform Act.
In general, the child was never in Indiana. The child has lived in Ontario throughout its admittedly short life.