“In accordance with s. 22(3) of the CLRA, the removal or withholding of a child without the consent of the parent having custody of the child does not alter the habitual residence of the child unless there has been some acquiescence or undue delay in commencing due process by the person from whom the child has been removed or withheld.
Pursuant to Rule 5(1)(b), the wording of that subsection means that the matter should have commenced where the child was ordinarily residing and if the matter was improperly commenced in a particular proceeding, the Court could order a particular proceeding be transferred and does not need to consider a transfer motion pursuant to Rule 5(8) (see Mohr v. Sweeney, 2016 ONSC 2248, paras. 16-17).
Given that the Mother had only moved to her new municipality 6 to 8 days before commencing her motion, it is questionable that the child was ordinarily residing in the Markham area. There is case law that a recent, unilateral move will generally not be accepted as “ordinarily resides” as defined. Those three cases are: A.A.B v. A.P.J., 2012 ONCJ 546 at paras. 59-63; Benson v. Forsyth, 2012 ONCJ 304 at paras 15-29; and Sangha v Sangha, 2014 ONSC 4088 at paras 47-48.
The Court is aware that Rule 5(2)(b) allows a motion to be heard elsewhere where there are allegations of danger to the party; however, it is to be transferred back to the usual venue (i.e.: where the child ordinarily resides) unless the court “others otherwise”. The words “orders otherwise” should be narrowly interpreted, as Rule 5(2) is designed to prevent forum shopping and the parties using self-help to remove the children from the municipality where they ordinarily reside (Van Roon v. Van Roon, 2013 ONCJ 276, at para. 70).”