Court File and Parties

Court File No.: Toronto D57039/12 Date: 2012 September 07 Ontario Court of Justice

Between: Thomas Czub, Applicant

— And —

Ekaete Comfortmary Czub, Respondent

Before: Justice E.B. Murray

Heard on: September 6, 2012

Reasons for Judgment released on: September 7, 2012

Counsel:

• Peter J. Smith, for the applicant(s)
• Robert Shawyer, for the respondent(s)

MURRAY J.:

[1] Application Under the Hague Convention

[1] This is my decision on an application brought under the Hague Convention by the Applicant seeking an order that his 5-year-old son Ethan be returned to Germany. He has commenced an action in the German court seeking custody of the child. No orders have been made in Germany, as the German court awaits the decision of this court with respect to the child's return.

The Facts

[2] The Applicant and the Respondent married in 2005, and began cohabiting in 2006, when the Respondent emigrated from Nigeria to Germany where the Applicant lived. From the beginning of their marriage, they planned to immigrate to Canada. Their son Ethan was born in Germany on […], 2007.

[3] In 2009 the parties and Ethan obtained approval from Canada as permanent residents. Their visa required them to live in Canada for 3 out of the 5 years following the granting of the visa. The Applicant ("Father") made extensive efforts, but was unable to obtain work in Canada. The Respondent ("Mother") wanted them to move despite the lack of work. Father did not agree. This was a great source of tension in their marriage. The time remaining on their permanent resident visas was running out; Canadian residence had to be established by early 2012, if the visas were to remain valid.

[4] Ethan lived in Germany all his life, until May 4, 2011, when Mother took him on what was to be a visit to Nigeria to attend the wedding of Mother's sister. Mother was at the time pregnant with their second child. Mother and Ethan traveled with Father's consent, and had return tickets for July 22, 2011.

[5] On July 5, 2011, Father was surprised to get an email from Mother which said:

"Hi Honey,

"I am in Canada. I came to sort out my residency. I will travel back to Nigeria on the 22nd of July. Will give you a contact number later. For now, send me an email."

[6] Father replied:

"Dear Suggy,

"Sorry that I didn't write you a message yesterday but I was still speechless about your trip to Canada. I hope both of you are well and you will really take care of you both. Don't risk anything. I am really worried about your and the boy's health. Greetings from everybody here especially the kindergarten team. Mona will leave the team these days and it would be nice if you can write some nice things for her. They will make a book for her.

"Be careful and take care I love you both.

"Suggy, why are you taking such a high risk when you are pregnant? Where is Ethan?

"Take care."

[7] According to Mother's evidence, in a telephone conversation soon after this email exchange, she "instructed the Applicant to relocate to Canada since this was the plan we agreed to prior to us getting married." Father did not agree, and Mother then told him that she intended to remain in Canada with Ethan.

[8] The parties' second child, Michelle, was born in Canada on […], 2011.

[9] Father attempted to begin proceedings under the Convention to secure Ethan and Michelle's return. His counsel in Germany was not effective. He then secured counsel in Canada. The case was delayed because Mother concealed her address from Father, and could not be served, and later, after she was served, because of an adjournment requested by her and delays occasioned by court scheduling.

[10] Mother and the children are supported here by social assistance payments. Mother and Ethan initially lived in a homeless shelter.

[11] Father remains in the family's apartment in Leck, Germany. He works as an engineer.

The Convention

[12] Father has applied under the Hague Convention, the treaty governing international child abduction, for an order that Mother return Ethan to Germany, or, if she declines, an order allowing him to return Ethan to Germany. Although he wanted to include Michelle in his application, it is agreed that the Convention does not apply to her, as she was born in Canada. Mother opposes the application.

[13] Article 3 of the Convention provides:

"The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Article 12 of the Convention provides:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child."

[14] It is not contested that Father began his application within the one-year period.

[15] Father argues that:

1. Ethan was habitually resident in Germany at the time of his wrongful retention in Canada by Mother (July 5, 2011);
2. Father had rights of custody pursuant to German law at that time; and
3. Although Ethan was removed from Germany with Father's consent for a temporary trip on May 4, 2011, Father did not consent to a permanent removal. Father submits that the child was unlawfully retained pursuant to Article 3 when Mother took the child to Canada on July 5, 2011.

[16] Although Mother's counsel had no instructions on these issues, he did not argue to the contrary. I address these issues below.

1. Was Ethan Habitually Resident in Germany Prior to July 5, 2011?

[17] The Convention itself does not define "habitual residence", but is incorporated in Ontario into the Children's Law Reform Act, which provides as follows in s. 22:

(2) A child is habitually resident in the place where he or she resided,

• (a) with both parents; • (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or • (c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

[18] Ethan lived with both his parents in Germany until May 4, 2011. He went to Nigeria on that date for a visit, and his parents agreed that he would return on July 22, 2011. His parents were not separated at that time. I find that Ethan was habitually resident in Germany on July 5, 2011.

2. Was Father Exercising Rights of Custody at the Time of the Removal or Retention?

[19] Pursuant to section 1626 of the German Civil Code, if the parents of a child are married, they both have rights of custody to that child, unless an agreement or court order provides otherwise.

[20] The parties are married and were not separated on the date in question. I find that Father was exercising rights of custody on July 5, 2011, the date of the alleged wrongful retention.

3. Was Ethan Wrongfully Retained by Mother?

[21] Mother did not have Father's consent to take Ethan to Canada, or to retain him after July 22, 2011, the agreed-upon date for the child's return to Germany. I find that the child was wrongfully retained by Mother.

Mother's Claim Under Article 13(b)

[22] Mother resists an order of return, submitting pursuant to Article 13(b) of the Convention that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". The court has a discretion to refuse a return order if under this article. The onus is on Mother to prove that such risk exists.

[23] Mother alleges that a return order would pose a grave risk of harm to Ethan because:

• Father has been violent to Mother, and Ethan has been exposed to this violence. • Ethan would be separated from his primary caregiver, who is Mother. • Father has been an "unreliable, neglectful and careless" parent. • Ethan has special needs that are being met in Canada, and those needs cannot be met in Germany. • Mother is not fluent in German, has no employment in Germany, and no means of supporting herself and the two children if she returns.

[24] I have concluded that Mother's evidence falls far short of establishing that Ethan would be subject to a grave risk of harm or otherwise placed in an intolerable situation if a return order is made, for the reasons set out below.

[25] I start with some principles established in caselaw, and some further facts.

Legal Principles

[26] Applications under the Hague Convention are not custody cases. In interpreting the Convention in Thomson v. Thomson, (1994) 3 S.C.R. 551, the Supreme Court of Canada observed:

Although the preamble of the Convention states that "the interests of children are of paramount importance in matters relating to their custody", an application under the Convention for return of a child is not a custody hearing. The court should not consider the best interests of the child in the same manner that it would in a custody hearing. (Paragraph [42])

[27] An application under the Hague Convention is a claim for return of a child to allow issues about custody and access to be decided in the court of that child's habitual residence. The Ontario Court of Appeal has held that: "Implicit in the language of the Convention is that each contracting state acknowledges that it is the courts of the country in which the child was habitually resident before his or her wrongful removal or retention that are, in principal, the best place to decide questions of custody and access" (Ellis v. Wentzell-Ellis, 2010 ONCA 347). The Convention presumes that all contracting states "are equipped to make, and will make, suitable arrangements for a child's welfare" (Finizio v. Scoppio-Finizio, 1999 ONCA 1722).

[28] The threshold with respect to the exceptions to an order of return set out in the Convention is high. The harm contemplated must be "substantial, not trivial".

[29] Courts have sometimes refused to order the return of a child in cases where there is violence directed by the "left behind" parent towards a child's primary parent. In these cases, the violence has involved a prolonged course of conduct, involving severe assaults, in circumstances in which the legal protections available in the home state have not been sufficient (Pollastro v. Pollastro, 1999 CarswellOnt 848 (C.A.); Achakzad v. Zemaryalai, 2010 ONCJ 318; Landman v. Daviau, 2012 CarswellOnt 1107 (Sup. Ct)). Usually, however, the court does not find the existence of domestic violence a sufficient reason to refuse a return order, because of the presumption that the courts of a contracting state can and will provide sufficient protection to the parent. (Finizio v. Scoppio-Finizio, supra). Claims under 13(b) have been rejected when the assaults have been minor or a one-time occurrence (Finizio v. Scoppio-Finizio, supra; Suarez v. Carranza, (2008) B.C.J. 1657), or when the court finds that, although some violence may have occurred, that the claimant has no fear of other parent and is resistant to a return order for other reasons (Cannock v. Fleugel, 2008 ONCA 758).

Additional Facts and Analysis

[30] It is important to acknowledge that a return order will not mean that Ethan is placed in Father's care. Because of that fact, the questions raised by Mother about Father's competence as a caregiver are not relevant to the application.

[31] Father asks only that the child be returned to Germany, so that the German courts can decide his future. The German court may grant custody to Mother, and allow her to remove the child from Germany, or grant custody to Father. Father is content now that the child remain in Mother's care until that decision is made, and is willing to agree to a safe harbour order for that purpose. A return order by this court would only place Ethan in Father's care (for the purpose of the trip home) if Mother refused to return with the child.

[32] Mother had permanent resident status in Germany, but lost that status because she was out of the country for more than three months. Her status can easily be restored, either by an application by Father – which he is willing to make – or by an application from Mother, which is available because she is the mother of a child who is a German citizen (Ethan).

[33] Mother does not assert that the German courts are unable to properly decide the issues of Ethan's custody, or give her protection from the violence which she alleges was perpetrated by Father. (She has never attempted to access the courts in Germany.) Mother objects that she cannot return Ethan to Germany for financial reasons. Despite her degrees in electrical and electronic engineering and graduate work in database management, she did not work outside the home in Germany, at least in part because she was not fluent in the German language.

[34] Father acknowledges that Mother, if she returns to Germany, will require spousal support for some time, as well as child support. He is willing to pay airfare for her and both children, and to pay three months of child and spousal support, to allow time for the case to be considered in the German courts. The amount he proposes to pay (2,000 Euros monthly) is one which he says is consistent with guidelines used in German courts. Mother's counsel does not dispute that assertion.

[35] Mother also objects that a return order would be harmful to Ethan, in that it would disrupt his connection to services in Toronto that help deal with his developmental delay. She provided a letter from Dr. Podniek, the child's family doctor in Toronto, stating that he has been seen at the Child Development and Speech and Language department at St. Michael's Hospital, and is improving in his development, and will be reassessed soon. Dr. Podniek says that it "will be a setback" if Ethan has to move to new services.

[36] Father's uncontradicted evidence is that Ethan's school in Germany detected a possible developmental problem with the child; that Ethan was assessed as possibly having a disorder on the autism spectrum; and that services were in place and being received by Ethan prior to his removal by Mother. Those services are still available if Ethan returns. Father says that Mother cannot complain of instability in Ethan's life, when it is she who has caused this instability.

[37] Mother offers many reasons why she was unhappy living in Germany and discontented in her marriage, e.g., Father's failure to take her out to dinner often enough or arrange vacations; his family's interference in their marriage; his failure to initiate sexual intercourse with her. Her main complaint is that Father did not move to Canada. While these reasons explain her unhappiness, the reasons do not provide support a 13(b) claim.

Domestic Violence Claim

[38] With respect to her claims of domestic violence, they are few and supported by any other evidence.

• Mother claims that Father pushed her sometime in 2008. She cannot recall any details of the incident. • Mother says that sometime in 2011 when Father was giving Ethan a bath, she attempted to intervene by pouring cold water into the bathtub. She says that Father objected, and pushed her away. She says that she "felt a sharp pain" in her stomach, but it went away, and she did not seek medical attention. However, a few days later, she began bleeding and was hospitalized for five days.

[39] There is no evidence that the shove which she alleges caused her bleeding and hospitalization. Mother's evidence is that she had ongoing problems with this second pregnancy, and had to be hospitalized after coming to Canada before Michelle was born.

[40] Father denies that he has ever been abusive or violent to Mother. He agrees that there was an argument in 2011 when he was giving Ethan a bath. According to Father, although the temperature of the bathwater was comfortable, Mother tried to intervene in his bathing of the child, as she had done many times before. Father blocked her arm when she attempted to pour cold water in the tub, and told her to leave the bathroom. He finished Ethan's bath.

[41] I note that:

• Mother made no complaints to authorities or third parties of abuse by Father in Germany, even when she was meeting with an English-speaking social worker who was assessing Ethan. • Mother, when she came to Canada in July of 2011, after the incidents of which she complains, wanted Father to join her and the children here in Canada. • In Mother's correspondence with Father since coming to Canada, although she has offered many recriminations about his failings as a provider, she has made no complaints of abuse. There is no indication that she fears or is intimidated by him. As recently as July 2012, when Father was coming to Canada for what was supposed to be the hearing of the application, Mother emailed him with a long list of clothing and other items which she asked him to bring her, and which he did.

[42] I do not find that Mother has established that Father was violent to her. Even if I did accept Mother's allegations, I would not find she could succeed in a 13(b) claim on that basis. Only two incidents of relatively minor physical interference were alleged. There is no evidence that Mother could not receive protection from the German legal system in these circumstances. The evidence supports Father's allegation that Mother's real motive in resisting the return order is that she wants to stay in Canada for economic and social reasons—a desire that she has had for years.

Claim of Negligent Parenting by Father

[43] With respect to Mother's allegations that Father is a neglectful and careless parent, as I said above, these are allegations that are relevant to a decision about custody and access, but not to the issue of whether a return order should be made. In any event, Mother's evidence does not establish neglect or carelessness on Father's part. Some examples of Mother's allegations and his response are set out below.

Mother's Allegation	Father's Response
Father pushed Ethan's head back with his fingers	Denied.
Father bathed Ethan in water that was too hot.	Denied.
Father refused to get medical care for Ethan	Reasonable disagreement between parents. Father opposed giving child medication without a prescription.
Father refused to buy Ethan a winter coat	Denied. Child always had a winter coat.
Father put Ethan's car seat in the front seat of car.	Agreed, but this is a legal option in Germany for parents
Father cut Ethan's finger when attempting to cut his nails	Admitted—the child's finger was nicked once, through inadvertence

Order

[44] I order that Mother return Ethan to Germany. She shall advise Father's counsel by September 14, 2012, that she is prepared to do so. If she does not, then she shall make Ethan available to Father forthwith for a return to Germany.

[45] If Mother affirms by September 14, 2012, that she is willing to return with Ethan to Germany, then Father shall give the following undertakings to the court, and shall obtain and forward to Mother's counsel a safe harbour order from the German court in the same terms:

• Ethan shall remain in Mother's care and Father shall have reasonable access to the child until further order of the German court. • Father shall pay for airfare for Mother and Ethan, and, if Mother wishes, Michelle, to travel to Germany. • Father shall pay interim child and spousal support to Mother for a period of 3 months in an amount of 2,000 Euros monthly.

[46] Father shall also make immediate application to obtain permanent resident status in Germany for Mother, and Mother shall sign any documents required to complete that application.

[47] If further orders are requested to implement this order, counsel may arrange a telephone conference or motion before me with the trial coordinator.

Released: September 7, 2012

Signed: "Justice E.B. Murray"