“Under the CLRA, an Ontario court can assume jurisdiction to make an order for custody of or access to a child on any one of four bases:
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- Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
- Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
- Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
- Under thecourt’s parens patriae jurisdiction to protect children, preserved by s. 69.
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All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III. In substance, there are five purposes:
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- To ensure that custody and access applications will be determined on the basis of the best interests of the children;
- To avoid the concurrent exercise of jurisdiction by tribunals in different places;
- To provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
- To discourage the abduction of children as an alternative to the determination of custody rights by due process; and
- To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.
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These general purposes set out in s. 19 must guide the interpretation and application of ss. 22 and 23, the provisions in issue on this appeal.
The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1) and the catalogue of best interests considerations listed in s. 24 (2).
But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.
Sections 23 and 69 also reflect the Legislature’s overriding concern with children’s best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child’s habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.
No party argued that the court should act under s. 69 of the CLRA, and I see no grounds for doing so. The motion judge decided the motion under s. 22 and I see no error in his application of that section. However, s. 23 allows for an Ontario court to assume jurisdiction even if the requirements of s. 22 are not met, and it is under that provision that I have determined the appeal should be allowed.”