Introduction
The recent decision of Latreille v. Puyuttaq, 2023 ONSC 6172 addresses critical issues regarding jurisdiction and habitual residence that family lawyers should be aware of when representing clients in custody and access matters. This case serves as an important reminder that unilateral action to change the status quo will not be condoned by the Court.
In Latreille v. Puyuttaq, the Court determined that the proper forum to decide parenting issues was the Nunavut Court of Justice, not the Ontario Superior Court. The analysis turned on findings regarding the child’s habitual residence and the unilateral actions of the Applicant father in refusing to return the child to the Respondent mother. The following discusses key takeaways for family law lawyers in Ontario.
Key Takeaways
Status Quo Ante
A critical issue in the case was determining the primary status quo that existed before the Applicant father unilaterally kept the child after agreeing to care for her temporarily. Justice Abrams found that the mother was the child Alessa’s primary caregiver and sole provider since birth in Nunavut. The visit to Ontario was temporary to explore reconciliation with the father. In the Court’s view, this temporary visit did not change the child’s habitual residence from Nunavut.
This case reinforces that when examining the status quo, Courts will look to the primary status quo rather than a new status quo created unilaterally to gain a tactical advantage in custody.
Habitual Residence of the Child Controls
Under the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”) a child’s habitual residence depends on where they resided with both parents, only one parent under an agreement or court order, or in a permanent living arrangement other than with a parent.
The Court found that Alessa was habitually resident in Nunavut with only her mother under the acquiescence of the father. The unilateral refusal to return Alessa could not change her habitual residence without consent or undue delay by the Respondent mother. Therefore, the Court determined parenting issues should be decided in Nunavut.
This case illustrates that jurisdiction turns on properly determining a child’s habitual residence based on statutory rules.
Unilateral Action Will Not Change Habitual Residence
The Court refused to accept the new status quo created by the Applicant father in unilaterally keeping Alessa in Ontario without the mother’s consent. The CLRA provides that taking a child without consent does not change habitual residence without acquiescence or undue delay.
Justice Abrams held there was no acquiescence by the mother to the father keeping Alessa in Ontario based on her immediate efforts to have Alessa returned.
The case affirms that Courts will not condone unilateral self-help remedies to gain a tactical advantage and forum shop.
Delay in Bringing Motion Explained
Despite months passing before the Respondent mother brought her motion contesting jurisdiction, the Court found no undue delay. The mother had immediately sought assistance from police, legal aid, and counsel. Justice Abrams reasoned that left alone in a province not her home, with limited resources, she acted properly in moving quickly once able to obtain representation.
This case demonstrates that context matters. When examining delay, Courts will account for reasonable explanations including limited financial means and being new to a jurisdiction.
Police Assistance to Enforce Order
Notably, the Court ordered police assistance to locate, apprehend and deliver the child to the mother if the father failed to comply with the order to return the child by a fixed date.
This case shows that Courts will make all reasonable efforts to return children to their habitual residence after unilateral overholding.
Final Thoughts
Latreille v. Puyuttaq provides important guidance for family lawyers in Ontario on determining habitual residence, responding to unilateral actions disrupting the status quo, jurisdictional disputes, enforcing orders, and building a record with key evidence.
Counsel should be mindful of these lessons when developing case strategies and advancing arguments before the Court. Most importantly, this case reinforces that Courts will act decisively to remedy improper unilateral self-help remedies in family law matters impacting children.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Family Law Experience: Cheryl has nearly 40 years of specialized experience in family law.
- Masters Degree in Counselling: Her educational background uniquely equips her with empathy and understanding.
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- Mediator with OAFM Accreditation: Cheryl is recognized by the Ontario Association for Family Mediation as an accredited mediator.
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- Numerous Accolades and Awards: Cheryl’s is the recipient of many accolades and awards over the course of her career, including the prestigious Ontario Bar Association’s Award for Excellence in Family Law.
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