ONTARIO COURT OF JUSTICE

Date: November 14, 2019

Court File No.: D21358/18

Between:

J.K.

Applicant

— AND —

L.R.

Respondent

Before: Justice Melanie Sager

Heard on: October 21, 22, 23, 24 and 25, 2019

Reasons for Judgment released on: November 14, 2019

Counsel:

• Ruth D. Richards, for the applicant
• Glenda Perry, for the respondent

SAGER J.:

Introduction

1In the summer of 2017, the applicant (mother) moved from Toronto, Ontario to Buffalo, New York with the parties' three children then 5, 2 and almost 1 years of age to live with the respondent (father).

2On July 16, 2018, the mother ended the relationship and left the family home and went to Toronto with the children. She returned to Buffalo on July 31, 2018 out of fear that she would be accused of abducting the children. Both parents commenced proceedings in the family court in Erie County, New York before the months end.

3On September 10, 2018, the mother travelled from Buffalo to Toronto to commence an Application in this court seeking custody of the parties' three children. On that same day she brought an urgent motion without notice to the father, in which she requested custody of the children, an order that the children's primary residence is to be with her, a restraining order against the father and an order that the father have no access to the children.

4The relief requested on the urgent motion without notice to the father was granted on a temporary without prejudice basis and the motion was adjourned to September 24, 2018, to allow for service of the court documents and the order on the father.

5On September 11, 2018, the mother returned to Buffalo with her order from this court and without notice to the father removed the children from their home in Buffalo and brought them to Toronto where they have lived continuously up to the date of this trial.

6What has taken place both in this court and the Family Court of New York State in Erie County since the summer of 2018 led to the father bringing an Application under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) for an order compelling the return of the children to Buffalo, New York. All of this culminated in a five day hearing of the father's Application.

7The father claims the children were wrongfully removed to Ontario by the mother after being habitually resident in Buffalo since June 2017. He further argues that she has not established a defense under the Hague Convention that would justify a court order permitting the children to stay in Ontario.

8The mother asks the court to dismiss the father's Application on the basis that the children's habitual residence as of the date of her move from Buffalo was in fact Toronto, Ontario. Should the court not agree with the mother's submission and instead find that the children's habitual residence as of the date of removal was Buffalo, she asks the court to find that returning the children to Buffalo would put them at grave risk of physical or psychological harm such that this court must decline to make an order requiring them to be returned to New York State and find that Ontario is the appropriate jurisdiction to make orders affecting the children.

9The issues that require adjudication are as follows:

(a) Where was the children's habitual residence as of the date of the alleged wrongful removal?

(b) Does the mother's removal of the children from Buffalo to Toronto amount to a wrongful removal within the meaning of Article 3 of the Hague Convention?

(c) If the answer to (b) above is yes, would an order requiring the children to be returned to Buffalo, New York put them at grave risk of physical or psychological harm or otherwise place them in an intolerable position within the meaning of Article 13(b) of the Hague Convention?

Brief History of the Parties

10The parties met in approximately 2001 when the mother was 17 years old and the father was 28 years old. The father is an American citizen who was born and raised in Buffalo, New York and the mother, who has lived in Toronto since the age of 3, is a Canadian citizen.

11The parties were involved in a long distance relationship and have three children, namely J.R. born April 22, 2012, R.R. born June 18, 2015 and V.R. born August 3, 2016. The children were all born in Toronto and enjoy dual Canadian and American citizenship.

12The parties maintained their relationship by travelling between the two cities but did not share a residence full time until the summer of 2017.

13At some point in 2017 the mother agreed to move to Buffalo with the three children to reside with the father and the move occurred in the summer of 2017. The mother claims the move was never intended to be permanent and that the children spent each week from Sunday night until Friday morning in Buffalo and Friday to Sunday in Toronto. The mother's evidence is that she maintained her apartment in Toronto as well as all service providers for the children in Toronto such as doctors and a dentist in the event the move did not work out.

14The father claims that the parties had considered living together for quite some time and finally took the step to do so in June 2017 after agreeing that R.R., who has significant medical needs, would receive better care in the United States. He understood that the move was intended to be permanent.

15The mother claims that she was the victim of domestic violence throughout the relationship while the father's evidence is that while the parties sometimes argued, they otherwise had a healthy and happy relationship.

16Prior to the commencement of this litigation, the parties were involved in litigation in the Family Court in the County of Erie, State of New York. Claims were made by both parties by way of Petitions. The following is a chronological list of the Petitions brought by the parties in Erie County:

(a) On July 27, 2018 the father filed a Petition for custody of the children;

(b) On July 31, 2018 the mother filed an ex parte (without notice) Family Offense Petition for a protection order against the father;

(c) On August 6, 2018 the mother filed a Petition for custody of the children;

(d) On August 10, 2018 the mother filed a Petition for modification of the protection order made on July 31, 2018 requesting a stay away order against the father;

(e) On August 17, 2018, the father filed a Family Offense Petition;

(f) On September 19, 2018 the father filed a Petition for Violation of a Court Order made on August 28, 2018, prohibiting the removal of the children from Erie County; and,

(g) On September 20, 2018, the mother filed an Amended Custody and Visitation Petition in which she requested permission to relocate to Toronto, Ontario.

17The following is a chronological list of the orders made by the court in Erie County:

(a) July 31, 2019 – Temporary Order of Protection made without notice to the father in which the father was prohibited from engaging in any criminal act against the mother including assaulting, harassing, menacing, reckless endangerment, intimidation and threats;

(b) August 28, 2018 – the court ordered the father to have telephone access to the children at 7:00 p.m. and the children are not to be removed from Erie County until further order of the court;

(c) September 20, 2018 – the court ordered that if the children have been removed from Erie County they are to be returned and are to attend school as required by the State of New York until further order of the court;

(d) September 28, 2018 – the mother's Petition for custody of the children was dismissed without prejudice;

(e) September 28, 2018 – all protection orders issued by the Erie County court were vacated and the Petition brought by the mother seeking the protection order was withdrawn;

(f) September 28, 2018 – the order made pursuant to the mother's Petition for a modification to the protection order was vacated and the Petition for Modification was withdrawn;

(g) October 3, 2018 – father's Petition for custody and visitation is dismissed without prejudice; and,

(h) January 22, 2019 – order of dismissal of Petition for Custody and Visitation for lack of jurisdiction as Canada has taken jurisdiction over the children and the children are residing in Canada.

18On September 10, 2018, the mother issued an Application in this court and brought an urgent motion without notice to the father. The motion was heard by Justice Debra Paulseth who granted the following orders on a temporary without prejudice basis:

(a) Custody of the children to the mother;

(b) An order that the father shall have no access to the children;

(c) An order directing the police to assist with enforcement of the order;

(d) The father was prohibited from contacting or communicating directly with the mother or the children except through counsel to arrange access; and,

(e) The father was prohibited from coming within 100 metres of the mother or the children.

19The urgent ex parte motion was adjourned to September 24, 2019, before the case management Judge, Justice Roslyn Zisman.

20The parties attended before Justice Zisman on September 24, 2019. The father came prepared to argue that this court does not have jurisdiction to make the orders requested by the mother as the children are habitually resident in Buffalo, New York and the mother ought to be ordered to return the children to Buffalo. At this point, the father had not made a claim under the Hague Convention.

21The mother's position on the return of the urgent motion was that this court has jurisdiction to make the orders requested by the mother either as a result of their being habitually resident in Ontario or pursuant to section 23 of the Children's Law Reform Act (CLRA).

22Justice Zisman urged the parties to adjourn the motion to allow for a more complete evidentiary record but the father insisted on proceeding. Justice Zisman heard submissions and reserved her decision. The endorsement record contains the following entries by Justice Zisman on September 24, 2019:

(a) Mother advises assisted by domestic advocate on August 6 th petition signed and left court. Not aware served or filed.

(b) Aug16 th mother retained counsel.

(c) Btw Aug 16 th -28 th counsel working on it – mother states she was not aware.

(d) Aug 28 th mother's counsel advised further affidavit for a hearing for a determination in this court despite omission should continue to retain jurisdiction.

23On September 27, 2018, Justice Zisman released her ruling on the motion and based on the following facts, made the finding that the children have two habitual residences, Buffalo and Toronto:

(a) The children were not physically present in Ontario when the mother commenced the Application in this court;

(b) The children were not physically present in Ontario when the mother brought the urgent motion without notice to the father;

(c) During the year the mother lived in Buffalo she maintained her residence in Toronto and only has visitor's status in the United States;

(d) The mother has maintained all of her benefits in Ontario including publicly funded health care coverage (OHIP);

(e) The children have continued to have their medical and dental needs met in Ontario;

(f) The mother and children spent a significant amount of time in Toronto since moving to Buffalo; and,

(g) The mother did not have a settled intention to live either temporarily or permanently in Buffalo. She was keeping her options open and never fully cut her ties with Ontario.

24Justice Zisman also found that in the event she is wrong in finding that the children were habitually resident in both Buffalo and Toronto, she would make an order pursuant to section 23 of the CLRA and exercise this court's jurisdiction to make an order in respect of custody of the children on the basis that:

(a) At the date of the motion the children were physically present in Ontario; and,

(b) The court was satisfied that the children would suffer serious harm if removed from Ontario.

25Justice Zisman found that the children would be at serious risk of harm if returned to Buffalo for the following reasons:

(a) As the mother has always been the children's primary caregiver, they would suffer intolerable harm if returned to Buffalo and placed in the father's care, as he requested, considering he has never cared for the children for any significant period of time;

(b) The mother has no permanent residence in the United States and there is a risk that if she overstayed her time in Buffalo as a visitor she could be deported or not permitted to re-enter the United States;

(c) The father has threated to initiate criminal proceedings against the mother which would subject her to criminal charges if she returns to the United States;

(d) The mother does not have accommodations in Buffalo;

(e) The mother is unable to work in the United States and would not have means to support the children as she relied on the father's disability income to support her and the children when they lived together;

(f) The mother has a very strong prima facie case for custody of the children;

(g) The mother alleges that she was the victim of domestic violence and as a result of incidents between the parents on July 15 th and September 5 th , 2018, the mother fears for her safety and the safety of the children; and,

(h) The parties' oldest child who was present during the incidents of July 15 th and September 5 th , 2018 has had anxiety attacks, thrown up and cried in her sleep.

26In making this finding Justice Zisman specifically considered the following:

(a) Serious credibility issues with respect to the mother and the duplicate court proceedings she commenced simultaneously in Buffalo and Toronto;

(b) Whether the mother was "forum shopping" for her court case and whether or not she abducted the children;

(c) The mother failed to advise this court that she was told by the Judge she appeared before in Erie County on August 16, 2018, that she was not to remove the children from Erie County;

(d) The mother failed to advise this court that on August 28, 2018, a referee made an order prohibiting the removal of the children from Erie County;

(e) The court was very concerned with the fact that the mother removed the children from Erie County in the face of an order prohibiting her from doing so and was not transparent with this court with respect to the proceedings in Erie County; and,

(f) Despite the court's concerns regarding the mother's credibility, the best interests of the children require this court to assume jurisdiction.

The Evidence

The Mother's Evidence

27After having known each other for quite some time, the parties agreed to commit to an exclusive relationship in 2011. The father lived in Buffalo and the mother lived in Toronto where she worked at Toronto Eastern General Hospital.

28The parties' relationship resulted in the birth of the parties three children. They were all born and raised full time in Toronto until the move to Buffalo in August 2017. From birth the children's lives were focused in Toronto where the mother and her extended family all reside. They received their medical and dental care in Toronto, the oldest child went to school and attended extracurricular activities in Toronto and the middle child who has muscular dystrophy, received his medical care in Toronto.

29The mother's evidence is that only after immense pressure from the father did she agree to alter the children's living arrangements in August 2017. The mother's evidence is that from August 2017 until July 2018 they children "stayed in Buffalo from Sunday night until Friday morning, after which we would return to Ontario."

30The mother was willing to try living in Buffalo as "[R.R.] was receiving services in Canada and I felt that he would benefit from having added supports in Buffalo in addition to the services he was already receiving in Canada."

31The mother says she had no settled intention to relocate to Buffalo with the children. Her evidence is that she made the decision to "do a test run, to see how the Children would adjust. I did not intend to leave my job or my life in Canada. I kept my home, I kept all my service providers and the Children's service providers."

32The mother provided her bank statements and a letter from her landlord to confirm she has maintained an apartment in Toronto.

33The mother says her eight year relationship with the father was plagued with verbal and physical violence which culminated in the events of July 15, 2018. After the father assaulted her in front of their 6 year old daughter she decided to end the relationship. She describes earlier incidents of verbal and physical abuse on December 21, 2017, February 4, 2018, March 3 and 4, 2018, around April 22, 2018 and June 15, 2018.

34In her description of the alleged abuse the mother claims the father loses control and yells at her calling her names such as "whore", "slut" and "piece of shit" in front of the children. She alleges that on December 21, 2017, the father "shoved me up against the wall and started to scream at me."

35The mother says that living with the father was "like walking on eggshells, if I did not fold his clothes, plate his dinner as soon as he got home from work, he would start screaming and creating a hostile environment."

36On February 4, 2018, the mother alleges that the parties got into an argument when the father became angry that she would not give him the social security funds she receives for the children. She says the father called her a "fucking scumbag" in front of the children. The mother acknowledges that she engaged with the father as well and told him if she leaves, she would take the children with her.

37On March 3, 2018, the mother says she told the father that the relationship was over. He became enraged and grabbed the mother screaming at her for being unable to acknowledge when she is wrong. The mother provided an audio recording of this incident in which she can be heard telling the father to let go of her and his response telling her to "stand right there".

38In April 2018, the mother alleges that the father came home one night drunk. She was sleeping on the couch and awoke to the father fondling her breasts. When she told him to stop, she claims he shoved her back down and held her by her wrists saying, "your body is mine". She says he let go of her when she threatened to call the police.

39On June 15, 2018, the mother alleges that the father shoved her so hard she flew back against a wall and lost her breath. The mother says the father was moving into a new home (41 Vernon Place) and that this assault occurred after she had only packed her items and those of the children in advance of the move.

40With respect to this move, the mother explains that the relationship had ended and she had no intention of moving with the father to 41 Vernon place despite contributing $5400.00 USD to the acquisition of the house. She says that he had very poor credit and would not have been able to secure accommodations without her help. She says this money was a loan he agreed to pay back.

41The father provided text message exchanges in which it appears that the mother was actively seeking out new housing for the family and was very excited about acquiring 41 Vernon Place. The mother's evidence is that the text messages the father provided were edited and do not reflect the full conversation. She says when she texted the father, "I would rent this in a heartbeat" referring to 41 Vernon Place, she was simply encouraging the father to rent the house and that she was not "actually wanting to rent the apartment". She also says that as she was leaving the relationship with the father, she did not want her name on the lease and "[L.R.] wrote my name on the lease after he signed it." The mother provided no evidence to support her claim that the father altered the text messages or the lease.

42The mother's evidence as to the events that took place on July 15, 2018, causing her to flee with the children is set out at paragraphs 122-125 of her affidavit evidence in chief sworn October 15, 2019 as follows:

122. On July 15 th , 2018 at mid-night, [L.R.] entered the Children's bedroom, where I was sleeping; he woke me up and asked me to cut his cuticles, which I did. After I was done cutting [L.R.] cuticles, I returned to the Children's room to sleep.

123. [L.R.] followed me into the Children's bedroom and carried me out of the room and into his bedroom. He began to fondle me and when I asked him to stop, he continued. I was able to fight [L.R.] off and as I tried to leave the room, he tripped me and began to accuse me of cheating on him, before he began to strangle me.

124. I tried to fight [L.R.] off, however he continued to strangle me; I continued to fight against [L.R.] until I was able to scream at him. My oldest daughter, [J.R.] who at the time was 6-years old, was awakened by the noise and entered the room. She began to hit [L.R.] and yell at him to move. This was when [L.R.] let me go, but blocked the exit, forcing me to remain in the room.

125. I pleaded with him, [J.R.] begged him to move, however he did not. Eventually I was able to push [L.R.] and squeeze by him. Fleeing to the Children's room with [J.R.] to safety.

43The mother provided the court with various recordings on which one or both of the parties can be heard yelling and using inappropriate language in front of the children. The mother also provided a recording from an appearance before Justice Zisman in which the father can be heard arguing with Justice Zisman, slamming his hand or fist on the table and then sobbing uncontrollably after Justice Zisman left the courtroom.

44The mother left Buffalo and returned to Canada on July 16, 2018. Out of fear of being charged with abduction, she returned to Buffalo on July 31, 2018. She commenced court proceedings in Erie County that same day without notice to the father, and requested a protective order based on the alleged incident of July 15, 2018.

45After receiving the protective order, the mother's evidence is that the father was following her. He showed up at [J.R.]'s school when she was there. He was outside a friend's home where she was having dinner one evening and followed her from her friend's building driving dangerously close to her. When stopped at a red light, the father got out of his car at approached the drivers' side of the mother's car and began yelling at her upsetting [J.R.]. The mother says when the light changed, she drove off and the father yelled that she drove over his foot.

46The mother pulled over and called the police which resulted in the father being charged with breaching the July 31, 2018 protective order. As a result of this charge, the mother obtained a restraining order against the father. The father was convicted of "harassment -2 nd : physical contact" and received a conditional discharge.

47The mother acknowledges that Judge Deanne M. Tripi of the Erie County Court told her on July 31, 2018 that she could not remove the children from Erie County without the father's consent or court order. Her evidence is that Judge Tripi did not specify which court she was required to obtain the order from and as she has always maintained Ontario as the children's habitual residence, she concluded that it was appropriate to seek the required order from the Ontario Court of Justice.

48The mother's evidence is that she was not inside the courtroom on August 28, 2018 and did not know that the referee made an order prohibiting the removal of the children from Erie County. The order did not come to her attention until she received an issued copy a month later. The mother could not obtain a copy of the transcript from the court appearance on August 28, 2018, to demonstrate she was not in the courtroom as the appearance was not recorded by a court reporter.

49When the mother learned of the order made prohibiting the children from being removed from Erie County, the children were already in Ontario and this court had made a finding that it had jurisdiction to make custody orders effecting the children.

50Once Justice Zisman made a finding that this court had jurisdiction to make custody and access orders, the mother withdrew the Petitions she filed in Erie County.

51The mother alleges that the father did not spend much time with the children in Buffalo and when he was home, he created a "very hostile environment". The mother says she cannot describe the father's relationship with the children as "loving". She says that prior to moving to Buffalo the children did not have a relationship with their father as he rarely visited or spent time with them. Justice Zisman noted in her ruling on the jurisdiction motion that the mother alleged that as a result of the domestic violence, she feared for both hers and the children's safety.

52The mother's evidence is that the father was never responsible for the children's care for more than a few hours. The mother says, "I generally did not leave the Children with [L.R.], as I have observed him being unnecessarily aggressive towards them, particularly [J.R.]." She also deposed that "I have witnessed [L.R.] force feed the Children, specifically [J.R.], until she threw up, after which she was spanked." The mother's evidence is that the children rarely want to talk to the father when he calls from Buffalo for his court ordered telephone access.

53The mother facilitated a visit between the father and the children on August 14, 2018. She arranged for a third party to be present during the visit. The mother's evidence is that J.R. returned from the visit very upset with red, puffy eyes and tear stained cheeks. The mother produced an email from the third party who facilitated the visit in which she described behaviour by the father that was far from child focused which left J.R. crying hysterically. The writer of the email also states, "He also discussed an incident where he choked [J.K.] in frustration saying "if I wanted to do more oh I could've"".

54The third party was called as a witness by the father and strenuously denies writing the email provided by the mother. She also denies that the visit between the father and the children on August 14, 2018 was anything other than positive. This witness's evidence will be expanded upon further down in the judgment.

55The mother alleges that the father did not complete his intake form for the involvement of the Office of the Children's Lawyer after Justice Zisman requested their involvement out of fear that they would corroborate her concerns.

56The mother says that after witnessing the assault on July 15, 2018, J.R. had difficulties sleeping and was throwing up. She now appears extremely anxious and nervous whenever phone calls with her father are to take place.

57The mother claims that the children's advocate's support for supervised access by the father in Buffalo early in the proceeding, supports the claims she has made in this court.

58The mother says that the children are doing very well in Toronto. J.R. has returned to the school she attended during the 2016-2017 school year; V.R. has been approved for a daycare subsidy and R.R. has returned to the care of his former pediatrician, Dr. Antonio Barrozzino. R.R. has had a surgery and consistent physiotherapy since his return to the care of the Hospital for Sick Children in Toronto. R.R. also receives weekly physical, occupational, music, aqua, massage and osteopath therapy and in September 2019 began attending the Integrated Education and Therapy Program at Bloorview School Authority. The mother says she applied to this program in January 2018 while living in Buffalo.

59R.R. has also received several new items and equipment he requires since returning to Toronto.

60The mother says that while "staying" in Buffalo, "[R.R.] still attended all of his appointments in Toronto, he never missed a session." She provided a letter from Holland Bloorview dated January 31, 2018 confirming an appointment for R.R. for a "Neuromuscular Follow-up assessment" on February 22, 2018. While the mother provided no evidence that R.R. actually attended this appointment, she did provide a letter from Holland Bloorview dated August 30, 2019 that refers to R.R. being assessed in February 2019, which suggests R.R. did not in fact attend the February 22, 2018 appointment.

61The mother did not provide any other documentary evidence to substantiate her claim that R.R. or any of the children continued to attend appointments in Toronto after the move to Buffalo other than a printout from the Hospital for Sick Children which confirms R.R. attended two appointments at the hospital while living in Buffalo on January 10 th and 11 th , 2018. The mother could have easily clarified this issue by providing evidence of payment for the appointments she says the children had in Toronto while living in Buffalo whether made privately or through OHIP.

The Father's Evidence

62After engaging in a long distance relationship for years that resulted in the birth of three children and many trips for both parties between Toronto and Buffalo, the father says the mother agreed to relocate permanently to Buffalo to live as a family. The father's evidence that the parties' expectation that R.R. would receive exemplary care in Buffalo at no cost to the parties was one of the main reasons for the mother's move with the children. The father's evidence is that the mother's move to Buffalo with the children occurred in June 2017.

63When the mother and children arrived in June 2017, they moved into the father's residence. The children lived in Buffalo until the mother took them to Toronto without his knowledge or consent.

64The father's evidence is that at the date of the alleged wrongful removal, the children's only habitual residence was Buffalo, New York. He relies on the following evidence to support his position:

(a) From June 2017 until June 2018 the family lived in the home the father had resided in since 2012;

(b) In June 2018 the parties leased a new home for the family. The lease lists the father as the lessee and both parties and the children are noted on the lease as the expected tenants of the home. The father's evidence is that the mother located the home, inspected it and convinced the father they should lease it. The mother contributed a significant amount of money (he says $4300.00 she says $5400.00) towards the deposit to secure the home for the family;

(c) The parties' oldest child, J.R. attended a private school in Buffalo for the 2017-2018 school year at a cost of $5000.00 per year. The parties applied for and received a grant for J.R. resulting in a cost to the parties of only $1900.00 per year. This is a very high quality, high ranked school in the Buffalo area. She was enrolled in the same school for the 2018-2019 school year but only attended until September 10, 2018 when the mother removed the children to Toronto. The parties had also once again secured a grant to be applied to the 2018-2019 school year tuition;

(d) J.R. was enrolled in summer camp in 2018 but only attended a few days before the mother removed the children to Toronto for two weeks on July 16, 2018;

(e) The family had a membership to the Buffalo Zoo;

(f) The parties second child, R.R. who has muscular dystrophy was registered in Aspire Centre for Learning Early Intervention Program where he only attended for three days before the mother removed the children to Toronto. The parties researched schools and programs before enrolling R.R. in this program to ensure that it met his complicated and significant medical needs. R.R. had a comprehensive Individualized Education Program done by the Preschool Committee to ensure that R.R. would receive the services he needed at Aspire including special education programs, speech/language therapy, occupational therapy, and physical therapy;

(g) While in Buffalo R.R. had a custom built wheelchair, custom built therapy equipment, custom built bike and push cart all covered by Aspire Centre and the father's insurance;

(h) The parties completed the paperwork to obtain health insurance for the children which was in place upon their arrival in June 2017. First the children were covered by WellCare Health from February 1, 2017 until July 31, 2017. Then the parties switched coverage to Independent Health;

(i) After the move to Buffalo, the children obtained all of their medical and dental care from professionals in Buffalo. The only exception was that R.R. was seen at the Hospital for Sick Children on January 10 and 11 th , 2018. Other than those two appointments, all three children had their medical and dental needs met in Buffalo;

(j) In 2018, the parties applied for and ultimately received social security disability benefits for R.R. that he was entitled to receive as a result of his medical needs and was only available to him if he lived in the United States. The father's evidence is that both parties signed a letter confirming R.R. lived in Buffalo, New York in order to receive the benefits. The mother claims the father made her sign the letter;

(k) While living in Buffalo R.R. had a significant number of medical professionals working with him and providing services including:

1. Dr. Daryl Ehlenfield, a family doctor;

2. Dr. Farooq, a neurologist;

3. Dr. Renee Renolds, a neuro surgeon;

4. Dr. Alana Rosewell, a chiropractor;

5. Dr. Joanna Garvey D'Orsaneo, a neuro chiropractor;

6. Dr. Melissa Azaula, a doctor at the motor clinic at Conventus Centre;

7. Dr. Nagy, an Ear, Nose and Throat specialist;

8. Dr. Steven Awner, an opthamologist;

9. As a patient at Oishei Children's Hospital, R.R. received gait training therapy, therapeutic exercises, neuromuscular re-education;

10. R.R. was fitted for prosthetics and orthotics in Buffalo; and,

11. R.R. received physical therapy, occupational therapy, speech therapy, muscular massage and aqua therapy.

(l) All treatment, services and equipment listed above was covered by the parties' insurance;

(m) The mother and children travelled to Toronto to see the mother's family on a monthly basis. The father's evidence is that some months the mother travelled with the children to Toronto for two or three weekends and other months they may not go to Toronto at all. On some occasions the mother would travel to Toronto on her own and leave the children in the father's care in Buffalo. The father provided text messages from the mother which demonstrate that the mother was willing to leave the children with the father for the weekend while she is in Toronto and contrary to her evidence, did in fact do so;

(n) The mother and the children celebrated the holidays in Buffalo but would, on some holidays such as Christmas, also travel to Toronto to celebrate with the mother's family;

(o) The father's evidence is that the mother's parents and sister were living in the apartment she rented at the time she moved to Buffalo and claims to have maintained. His evidence is that he was never told that they vacated the apartment when the mother and children moved to Buffalo; and,

(p) The mother was taking the necessary steps to legally live and work in the United States and attended immigration offices to obtain information.

65The father acknowledged striking the mother once in 2010. He was ashamed of what he did and assured the mother it would never happen again. His evidence is that he has never been violent with the mother since and even though the parties argued he was not abusive. He described the parties' relationship as being "a sweet, kind, fun, amicable relationship". He said the parties' disagreements were "few and far between all the good times we had. We had a great relationship."

66The father acknowledged arguing with the mother in front of the children which he knows can be very harmful for the children and which he regrets.

67The father says that the mother has taken the children from him before when they had disagreements and threatened the father many times to leave with the children. In February 2018 the mother took the children for two weeks following an argument and in July 2018 she did the same. In January 2018 she sent him a text message telling him she was moving back to Toronto.

68The father says he has a close and loving relationship with his children and that he was actively involved in their care after the move to Buffalo. He denies the mother's allegations that the children are afraid of him and provided video evidence which he says demonstrates that the children are not scared of him. He has maintained contact with the children since they came to Toronto via telephone Skype three times per week but has not had physical access since August 14, 2018.

69The father denies the mother's allegations that he in any way isolated her from her family or anyone for that matter. The mother had a car and came and went as she pleased including travelling between Buffalo and Toronto.

The Alleged Incident on July 15, 2018

70The father denies the mother's allegations that he assaulted her on July 15, 2018. He describes playful interaction between the parties that resulted in his "hand and two fingers brushed her collar bone as I was trying to break my fall." The father says the mother raised her voice saying, "leave me alone". He says that he tried to calm her down so she would not wake the children, but J.R. woke up and came in their room. He says he was standing in the doorway and when the mother "started to hit me on my back" J.R. said, "stop hitting daddy".

71The father says when he returned from work the next day, July 16, 2018, the mother and children were not home and he did not know where they were until early the next morning when he learned they were in Toronto. He filed a domestic incident report with the court that day.

72The father later learned that the mother had filed a family offense Petition stating that he had chocked her and sexually assaulted her in the presence of their daughter J.R., all of which he strenuously denies.

73On April 24, 2019, a trial was held in Erie County on the criminal charges following the July 15, 2018 events, during which the mother gave evidence and the father was found not guilty. The father was convicted of "non criminal offense violation" for violating the terms of his release and given a conditional discharge. He is appealing that conviction.

74The father also denies the allegations of verbal and physical abuse set out in the mother's evidence in chief. He denies ever striking the mother after the 2010 incident. He notes that the mother only raised these allegations for the first time in her evidence in chief at the trial. The following is a summary of the father's evidence in relation to the mother's allegation that she was the victim of domestic violence throughout their relationship:

(a) The father does not agree with the mother's assessment of their relationship as being one plagued by violence or that he was abusive;

(b) The father acknowledged that the parties had "spats" and arguments that they both started. He said while the mother could be angry for up to three weeks after an argument, he was not a believer in going to bed angry;

(c) The father spoke with regret about three incidents he wished he had handled better. His evidence is that he regrets the manner in which he spoke to the mother especially in front of the children and acknowledged that he was not behaving as a mature adult and setting a good example for his children;

(d) The father said he is ashamed of the way he behaved in the conversations that the mother recorded and regrets raising his voice in front of his children;

(e) The father said that he took responsibility for being physical with the mother almost a decade ago. He said he apologized to the mother and told her it would never happen again, and it has not.

75The mother filed a criminal complaint in Buffalo on September 4, 2018 alleging that the father violated a protective order when he stalked and harassed her.

76The father's evidence is that on August 3, 2018, the mother made allegations to the child welfare agency in New York which resulted in an investigation. The mother claimed that the father was responsible for "causing or allowing to be inflicted injury, abuse or maltreatment" on the children. The father cooperated with the investigation between August 3, 2018 and September 7, 2019. On September 21, 2018, the child welfare agency released a letter to the parties advising that the file was closed as the reported mistreatment "was determined to be "unfounded". This means that CPS [child protective services] did not find believable proof (credible evidence) that a child was abused or maltreated."

Credibility of the Parties

The Father's Credibility

77The court is faced with the task of determining the children's habitual residence at the time of removal from Buffalo by the mother. Whether the children were wrongfully removed by the mother from their habitual residence in Buffalo as alleged by the father is an issue of fact. The exercise of fact finding is significantly impacted by the credibility of the witnesses. The court had difficulty with the credibility of the parties in this case, but especially the mother, making fact finding challenging.

78While the father admits to striking the mother in 2010 and having heated arguments in front of the children that included denigrating the mother which he acknowledges should never occur in front of the children, he does not appreciate how threatening and out of control he sounds in the recordings taken in the parties home, their car and the courtroom. The recordings were very clear and frightening. The father could be heard yelling out of control and at some points he was shrieking. In the courtroom he banged his hand on the desk. Rather than accepting that this behaviour is wholly unacceptable he attempts to explain and justify his conduct. That is concerning to the court. The court can understand why the mother would feel threatened by the father when he becomes angry.

79The recording in which the parties are arguing, and the mother tells the father to let go of her and he responds by saying, "you stand right there" is also very concerning for the court. Clearly the father was physically restraining the mother during one of their heated arguments. In his evidence he did not address this incident or how frightening it might have been for the mother.

80The father did not adequately explain his conduct towards the mother after she obtained the protective order from the Erie County court on July 31, 2018. Once again, he has absolutely no insight into how frightening it must have been for the mother and his children when he drove dangerously by her car and then got out of his car at a stop light and approached the drivers' side of the car and began yelling at the mother. He was more focused on the conduct of the police and their decision to charge him with violating a restraining order that did not exist then his completely out of control behaviour. In fact, he blamed the mother for the police action against him, alleging she incorrectly advised the police that she had a stay away order as opposed to a protective order. The father's evidence seems to indicate that in his opinion chasing the mother down with his car and yelling at her through her car window was not a violation of a protective order which provides that he shall refrain from behaviours including stalking, harassment, reckless endangerment, intimidation and threats.

81The father demonstrated absolutely no remorse or insight into his behaviour in Buffalo after the protective order was made and took no responsibility for how such behaviour affected the mother, escalated the conflict between the parties and negatively impacted his request for access to his children.

82Once court proceedings were commenced in Toronto several decisions made by the father inform this court's credibility findings. Some examples are as follows:

(a) The court requested the involvement of the Office of Children's Lawyer (OCL) on two occasions (September 27, 2018 and December 11, 2018) and on both, the father failed to complete the intake form resulting in the OCL's rejection of the case. The father's explanation that his counsel in Buffalo advised him not to fill in any forms in the case in Ontario was not persuasive. At some point it should have been clear to him that the Ontario court was prepared to make orders regarding custody and access of his children and that his participation was important and would assist the court in determining the children's best interests. The court does not accept the father's explanation for his lack of compliance with the court's direction.

(b) On December 11, 2018, Justice Zisman made an order that the father shall have supervised access to the children at Access for Parents and Children (APCO) alternate Sundays for two hours. Much like the OCL intake form, the father failed to complete the intake process with APCO and as a result, has not had physical contact with his children for over a year. The court without hesitation fully rejects the father's explanation that cooperating to see his children at APCO would somehow negatively effect his claim under the Hague Convention that the children must be returned to Buffalo, their habitual residence at the date of wrongful removal by the mother. It reveals for the court the father's misguided priorities. The father's decision not to have physical access with his children in a year seriously undermines his credibility with the court.

(c) As a result of his failure to attend in court on two consecutive occasions, the father's Answer and Claim was struck out and he missed an opportunity for an earlier trial date. The father was forced to bring a motion to set aside the order in order to continue to participate in this case. Once again, the father took no responsibility for his actions, rather he blamed the mother and the court for what occurred.

(d) On October 12, 2018, Justice Zisman ordered the father to pay child support to the mother for their three children in the amount of $194.00 per month commencing November 1, 2018, based on his stated income of $15,300.00. The father's evidence is that he has not paid child support since "the winter" as he could not afford to do so considering the cost of this litigation, specifically obtaining a number of transcripts from the Erie County court proceedings. Once again, the court is struck by the father's inability to appreciate how his actions affect his credibility in these proceedings. For example, the father gave evidence that if the children are required to return to Buffalo, he will move out of his current apartment to allow the mother to live there with the children and will pay the costs of doing so for as long as is necessary. It was clearly lost on the father how difficult it would be for the court to accept his evidence that he would pay the costs of an apartment for the mother and their children if they return to Buffalo when he has failed to comply with an order requiring him to pay $194.00 in monthly child support; a meagre amount for three children.

83While some of the father's evidence negatively impacted his credibility, many aspects of his evidence were believable due to his demeanour and forthright manner while giving evidence. He was forthcoming when giving his evidence and answered questions in a straight forward manner. He acknowledged that some of his behaviour was regrettable especially incidents witnessed by the children. He was able to explain why his behaviour was unacceptable. He also readily gave evidence that was not helpful to his case as opposed to trying to manipulate the truth to minimize the negative impact on his claims. He also did not engage in hyperbole making his evidence mostly believable. He stuck to the facts rather than making grand or sweeping statements that are of no assistance to the court.

84In addition, the father's evidence was often logical. His explanation as to why the mother and children finally moved to Buffalo, how they came to obtain benefits for R.R., the process by which they leased a new home in Buffalo just before the mother left with the children and his interaction with the children was all more believable than the mother's versions which often lack basic common sense and logic.

85The father was also protective of the mother when giving evidence. The mother gave evidence that she would have to work "under the table" if forced to return to Buffalo. The father was asked if the mother worked under the table during the year the parties lived together in Buffalo, and he was clearly hesitant to answer out of concern that he would implicate the mother in illegal behaviour. In fact, he said as much when he answered the question.

The Mother's Credibility

86The mother's credibility is a far more significant issue for the court than the father's credibility. The mother's evidence contained a significant number of omissions of important facts. She attempted to manipulate the truth on several issues, and she gave evidence that when challenged was proven to be untruthful. As a result, determining what evidence given by the mother is reliable was an extremely challenging exercise for the court.

87When the mother issued her Application in this court and brought an urgent motion seeking a custody order without notice to the father on September 10, 2018, the mother failed to advise this court that she was involved in ongoing proceedings in Erie County court addressing claims she made for custody of the children; that a Judge of the Erie County court had told her that she cannot remove the children from Erie County without the father's permission or a court order; that the Erie County court had made an order prohibiting the children from being removed from Erie County; and, that the children over whom she asked the court to take jurisdiction were not even in Canada.

88A review of Justice Zisman's written ruling on the motion uncovers the following partial list of untruths or misrepresentations made to Justice Zisman by the mother on the temporary motion:

(a) The mother's evidence was that she maintained the children's doctors, dentists and medical treatment providers in Toronto and that they continued to attend appointments with these individuals after moving to Buffalo. Justice Zisman relied on the mother's evidence writing in her ruling, "During the year they lived in Buffalo the children have still continued to have appointments [with] their family doctor and dentist in Toronto and [R.R.] had appointments at the Hospital for Sick Children." No documentary evidence was provided by the mother at trial to substantiate her claim that the children saw doctors and dentists in Toronto while residing in Buffalo. She was unable to provide an explanation for her failure to obtain an OHIP register of all appointments the children attended in Toronto while living in Buffalo that was requested of her in the course of the litigation and prior to trial. The mother's evidence was that she had a personal calendar on her cell phone that contains the dates of the appointments the children had in Toronto but when asked to open the calendar to obtain the dates, she refused.

(b) The mother's evidence regarding the children's service providers was clearly important to Justice Zisman, who notes in her ruling on more than one occasion that the children's doctor, dentists and other service providers are all located in Toronto. This evidence was patently untrue. None of the children saw their family doctor or dentist in Toronto during the year they lived in Buffalo. In fact, after moving to Buffalo, a family doctor and dentist were put in place for the children in Buffalo and this is where they received treatment during the year they lived in Buffalo.

(c) The mother also grossly misled Justice Zisman about the number of appointments R.R. had in Toronto while living in Buffalo to treat his muscular dystrophy and did not disclose in her affidavit evidence or in the 35.1 Affidavit in Support of Claims for Custody and Access the numerous doctors and service providers that worked with R.R. in Buffalo. At trial the mother produced evidence of only two appointments R.R. attended at the Hospital for Sick Children during the year the children were in Buffalo.

(d) At paragraph 26 of Justice Zisman's ruling, she writes, "The mother also alleges that Justice Tripi [the Erie County Judge] advised the father [that] due to the violence which occurred in the presence of the children [he] was not to be left alone with the children." This is untrue. The court was provided with a certified copy of the transcript of the proceedings from August 16 th , 2018. On that date the mother's lawyer was not present in court which presented some difficulty for Judge Tripi when addressing the issue of the father's access. The father's counsel advised the court that his client would agree to his father supervising access to the children in order to get access in place. When the mother voiced some opposition to what was being suggested, Judge Tripi became more concerned about proceeding without the mother's lawyer present and adjourned the case for 12 days and told the mother, "ma'am, you have to wrap your arms around the fact that I am going to order some visitation next time" and "it will be supervised" but "it may not be who you want". Judge Tripi does not comment on why the access will be supervised as sworn by the mother in her motion materials.

(e) Justice Zisman noted that the mother "had concerns about the father physically disciplining the children" and that she feared for the children's safety around the father yet at trial the court was provided with strong evidence that this concern was fabricated by the mother. On July 31, 2018 when the mother was before Judge Tripi in Erie County Court requesting a protective order against the father, she made no mention of concerns about the father's treatment of the children. In fact, the certified transcript from that proceeding discloses the following relevant exchange between the mother and Judge Tripi:

Judge Tripi: You want to leave Erie County, you need to ask permission.

Mother: Okay.

Judge Tripi: Okay? So he's correct, he has rights. And him calling you and saying, "hey, listen, you can't just take off, I get rights, I get visitation," is not making noise. He's telling you, I have rights. And he's correct. Noise would be threatening to harm, you; that's noise to me.

Mother: Okay.

Judge Tripi: But not him telling you he has rights.

Mother: Well, I'm not opposed to him, like, being – I'm not opposed to him seeing the kids, having the kids [emphasis mine]. But like, basically the reason why I left the house was because I had nowhere to go. He said rather with me and you stay in the house, or if not with me, you have to go. So I have nowhere to go. So at that point what do I do?

There are other instances before this matter came before Justice Zisman where the mother had the opportunity to disclose concerns regarding the father's treatment of the children but did not. On July 31, 2018, the mother completed a Domestic Violence Intake Form with the International Institute of Buffalo. The form was included in evidence at trial. Nowhere in the intake form does the mother disclose any concerns about the father's ill treatment of the children. On August 2, 2018, the mother completed a Danger Assessment for Immigrant Women with the help of her domestic violence counsellor. The mother answered "no" to the question "Does he threaten to harm your children?"

(f) Justice Zisman also did not have the benefit of knowing the outcome of the investigation by Children and Family Services in Buffalo which found no credible evidence of the children being abused or maltreated by the father.

(g) The mother's evidence was that despite the move to Buffalo, the children's primary residence has always been in Toronto and the move was never intended to be permanent. The mother took her position on the issue at trial one step further, deposing that the children "stayed" in Buffalo Monday to Friday and were in Toronto from Friday to Sunday. The mother's position is contradicted by the transcripts from the Erie County court proceeding in which it is made quite clear that the children live in Buffalo, New York. In addition, the intake form the mother completed with her domestic violence counsellor and the documentary evidence contained in the counsellor's file entered as evidence at trial, states repeatedly that the mother's goals are to obtain custody of the children and be able to move back to Canada with the children once custody and visitation are established.

(h) The mother's evidence was that the children and her spent "every holiday" in Toronto with the mother's family while living in Buffalo. The mother failed to advise Justice Zisman that the family also celebrated all holidays and the children's birthdays in Buffalo;

(i) The mother's evidence was that the three bedroom apartment in which the family lived in Buffalo was leased in the father's name alone but she failed to include in her sworn affidavit evidence that her name was included as a tenant on the lease. Justice Zisman's decision does not reference the fact that according to the mother, she "loaned" the father $5400.00 to secure the lease.

(j) The mother's evidence was that she maintained her apartment in Toronto while living in Buffalo but she did not disclose to Justice Zisman that for the period of January to May 2018 her parents and sister were living in the apartment and whether they were contributing towards the rent while the mother was living in Buffalo.

(k) The mother's evidence was that if she is required to return to Buffalo with the children where she is not permitted to work, she will be unable to support herself and the children. This evidence was not true. While living in Buffalo, the mother's bank accounts show deposits of anywhere from approximately $4000.00 to $5000.00 per month. The evidence at trial is that the mother was receiving and continues to receive approximately $2,062.00 per month for the children in Canadian/Ontario government tax credits, $144.00 USD per child for a total of $432.00 USD per month in social security payments for the children; and, $380.00 per month (for part of the time she was in Buffalo) in Ontario Disability Support Payments for R.R.

89Other inconsistencies in the mother's evidence at trial that effects her credibility include:

(a) The mother's evidence at trial is that the father controlled her and attempted to isolate her from her family. It is difficult to accept this evidence in light of her evidence that she travelled to Toronto to visit her family with the children almost every weekend and every holiday. In addition, in the Domestic Violence Risk Assessment the mother replied "no" to the question whether the father "Uses community isolation as a means of control?".

(b) When being questioned about what occurred in the Erie County court on September 20, 2018 when Referee Saturnino asked the mother to advise the court of the children's whereabouts after ordering that they not be removed from Erie County on August 28, 2018, the mother's evidence was that she does not recall being in court on that day despite the official transcript noting that she was present. The mother's domestic violence counsellor's evidence at trial confirmed the mother was present in the courtroom that day.

(c) The mother was asked to explain why she told Judge Tripi of the Erie County court that she did not have the children's American passports when in fact she did, and she responded that when she said she did not have the passports she meant she did not have them on her at that time.

(d) After giving evidence that the children were uncomfortable around their father, the mother was asked why the video and audio evidence suggest otherwise and she answered that the children were comfortable with the father on those occasions because she was present.

(e) The mother was asked to confirm that she sent the father a text message on August 30, 2018, only a day after she filed a police report in relation to the alleged events of July 15, 2018, inviting him to attend a doctors' appointment for V.R. who was ill. The mother confirmed that this had in fact occurred and that she sat alone with the father and the children in the examination room for over twenty minutes because her lawyer had advised her "to be cordial with him"

(f) The mother's evidence about where the children received medial and dental services during the year they lived in Buffalo was a very clear attempt to avoid answering questions honestly. Even when faced with an overwhelming amount of documentary evidence that demonstrates between August 2017 and July 2018 the children attended all medical and dental appointments (except for two appointments R.R. attended at the Hospital for Sick Children on January 10 th and 11, 2018) in Buffalo, the mother would not admit that she had mislead the court about the level of care the children had received in Toronto after moving to Buffalo. It was agonizing to listen to the mother attempting to maintain her untenable position as counsel for the father went through every doctor, dentist, specialist and therapeutic treatment appointment the children attended in Buffalo.

(g) The mother's evidence explaining her involvement in the father's leasing of a three bedroom home in June 2018, in which she claims she never intended to live with the children was implausible. The father's evidence is that the parties were looking for a new home and the mother spent time locating possible rentals. He produced several text messages which supported his evidence that they were looking for a new home together. One such text message from the mother references an address of a potential rental and says, "I would rent this in a heartbeat". Another text from the mother to the father said, "It's ours I can feel it…that blue house is ours" and the father responds "yes it is". The father said that he wanted to buy a house rather then rent another one but understood why the mother wanted the house they ended up leasing. The father also provided the court with a text message from the mother in which she urges the father to call the landlord to provide him with his social security number and includes the landlord's telephone number. A copy of the lease provided by the father lists the mother as a tenant. The mother's evidence is that she wanted the father to have a nice home and "loaned" him $5400.00 to secure the residence. The mother's evidence that she made it clear to the father that the relationship was over and that she was not moving with him into the new home is not born out by the more reliable documentary evidence. Her claim that the father added her name to the lease after the fact is also unbelievable seeing as the hand writing on the lease is consistent throughout and not the same as the father's handwriting on other documents, including the Petitions he filed in the Erie County court.

(h) The mother's evidence includes broad, sweeping statements including, "[L.R.] did not visit with the Children, he did not see the Children; [L.R.] was never involved with the Children. He missed many milestones and appointments." The evidence provided by the father, including text messages from the mother confirming she left the children in his care when she travelled to Ontario for the weekend, made it very clear that the statements made by the mother regarding the father's involvement with the children are not true.

(i) The mother's evidence is that she suffered financial abuse at the hands of the father, yet her bank statements at noted above show monthly deposits of anywhere between $4000.00 and $5000.00 while she lived in Buffalo. The evidence does not substantiate her claim that she was financially abused by the father.

(j) The mother provided the domestic violence counsellor with a copy of an email from a friend of the father's who agreed to facilitate a visit by the father to the children at a McDonalds in August 2018. The email was entered as evidence as part of the domestic violence counsellor's file and was very critical of the father's behaviour towards the children during the visit and towards the mother in general. The alleged author of the email was called as a witness by the father and denies ever writing the email to the mother. Her evidence was that she recalls writing an email to the mother in which she describes the visit and how the children reacted very positively to their father, but she strenuously denied writing what was contained in the email she was claimed to have authored. The quality of her evidence was not undermined by cross examination.

90The mother presented evidence at the trial of an abusive relationship during which she claims to have been physically, emotionally, verbally and financially abused by the father, sometimes in front of the children. Her evidence is that the last incident which occurred on July 15, 2018 caused her to end the relationship permanently and return to her home in Toronto.

91The father denies the mother's claims and provides an entirely different version of what took place. His version does not include him putting his hands on the mother's throat or any form of sexual violence.

92The father was found not guilty of the offenses after a trial at which the mother gave evidence.

93The mother's evidence at this trial includes other incidents of physical violence as described above which the father also denies.

94The mother's allegations of domestic violence cannot be scrutinized and considered by the court in a vacuum. The veracity of her evidence on this issue cannot be assessed without a consideration of her evidence in its entirety. In other words, the court cannot ignore its findings regarding the mother's credibility on the other issues when evaluating her allegations of domestic violence.

95The allegations of domestic violence perpetrated by the father against the mother on July 15, 2018, are set out in several documents either authored by the mother or by a third party based on what she describes occurred. The court appreciates that it is very difficult for a survivor of domestic violence to withstand intense scrutiny of every description they provide of the abuse as it is extremely difficult for the survivor to recount in detail the violence they have endured. As the mother is relying on the claims of domestic violence to explain her removal of the children to Toronto and in support of her claim that an order requiring the children to return to Buffalo would put them at grave risk of harm, a review of the different accounts given by the mother as to what occurred on July 15, 2018 is necessary in order to assess the quality and quantity of the evidence.

96The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. See: Husid v. Daviau, 2012 ONCA 469. The documents authored by the mother or which contain her account of what occurred on July 15, 2018, show inconsistencies in the mother's recitation of the events as follows:

(a) In her evidence at trial the mother swears that the father carried her into his bedroom and when she tried to leave, he tripped her. In her Petition to the Erie County court supporting a request for a Protective order, the mother provided a sworn statement in which she did not state that the father tripped her, rather she swore under oath that he "shoved" her.

(b) In the statement the mother made to the police on August 29, 2018, that resulted in criminal charges against the father for the incident that occurred on July 15, 2018, the mother alleges that the father picked her up and threw her on the bed where "he held both of her wrists forcibly on the bed" and then wrapped his hands around her neck and applied pressure. The statement to the police does not include an allegation that the father tripped her or shoved her. The mother's evidence at this trial did not include an allegation that he forcibly held her on the bed by her wrists.

(c) In her trial evidence the mother claimed that the father fondled her breasts and did not stop when she asked him to. This evidence was not included in her statement to the police or in her Petition for a Protective order in the Erie County court.

(d) On July 31, 2018, the mother provided her domestic violence counsellor with a description of the events that occurred on July 15, 2018. These notes were entered as evidence at the trial. The notes state that the father attempted to sexually assault her in addition to reporting that he fondled her breasts. The notes also state that the father was naked. The mother's report about the unwanted touching and attempted sexual assault to the domestic violence counsellor differs from the other reports which reference the unwanted touching. In addition, no other report stated that the father was naked during the incident.

97The mother has made very serious allegations of domestic violence during the parties' lengthy relationship. The father's honesty with respect to an incident in 2010 when he struck the mother and the recordings put into evidence by the mother that expose the father's lack of impulse control and confirm that at least on one occasion he grabbed or held the mother, lend some support to the mother's allegations of domestic violence; but, the mother's untruthfulness and manipulative behaviour around many other issues creates a serious conundrum for the court; how much weight can the court give to the allegations of domestic violence in the face of the mother's obvious anemic relationship with the truth?

98The mother's willingness to omit important facts and provide false evidence throughout this proceeding necessitates extremely compelling evidence for the court to prefer the mother's version of what occurred on July 15, 2018 over that of the father. Such high quality, cogent evidence was not provided.

Conclusion Regarding Mother's Credibility

99The mother's evidence before Justice Zisman and at trial contains some outright untruthful statements. It is rife with significant omissions, misrepresentations, manipulations of the truth and inconsistencies. This is not a situation where there is a minor discrepancy in the evidence or an important omission for which a reasonable explanation is provided. The mother's evidence disclosed a pattern of wilful deceit and brazen manipulation and dishonesty. The effect of the totality of her actions has had a disastrous effect on her credibility and makes it extremely difficult for the court to accept her version of any of the contentious evidence.

Material Findings of Fact

100In order to make a finding as to the children's habitual residence at of September 11, 2018, the court makes the following material findings of fact, on a balance of probabilities:

(a) The mother has always been the children's primary caregiver.

(b) The mother and the children lived in Toronto, Ontario until the summer of 2017 when she agreed to relocate to Buffalo, New York to live with the father.

(c) The father was involved in caring for the children and making decisions that effected their care once they moved to Buffalo in the summer of 2017.

(d) The children did not spend every weekend and holiday in Toronto between August 2017 and July 2018, as the mother alleges.

(e) On occasion the mother travelled to Toronto and left the children in the father's care for the weekend.

(f) The father has not been physically abusive to the children and he did not engage in any direct behaviour that put them at risk of harm.

(g) The mother has misrepresented to the court the nature of the children's relationship with the father as of July 2017. His relationship was not non existent as she would have the court believe.

(h) The mother and the children did not "stay" in Buffalo from Sunday to Friday every week for a year; they lived in Buffalo and visited Toronto.

(i) Together the parties leased a three bedroom home and moved into the home in June 2018.

(j) Between August 2017 and August 2018, the children's family doctor, dentist, medical specialists and medical service providers were located in Buffalo New York, not Toronto, Ontario.

(k) On September 10 and 24, 2018, the court heard the mother's urgent motion and granted orders based on findings of fact made on highly defective affidavit evidence from the mother that manipulated the truth, tailored the facts to bolster her case, and, omitted important facts that would harm her case. The court finds that the mother's manipulation of the truth and failure to include extremely important facts was intentional.

(l) The parties' relationship was tumultuous, and they engaged in arguments during which they used extremely inappropriate language towards each other in front of the children.

(m) The father has difficulty controlling his emotions and at times is likely to have grabbed or held the mother while they were arguing.

(n) The father has minimized the level of conflict present in the parties' relationship.

(o) The mother returned with the children to Toronto not because she was frightened of the father or as a result of domestic violence but simply because she preferred to live in Toronto where she had lived since she was three years old, had an apartment and where her immediate family lives.

Is Justice Zisman's Finding That the Children Were Habitually Resident in Toronto and Buffalo Binding on This Court?

101Prior to closing submissions counsel were asked to be prepared to address the issue raised by the court as to whether the finding made by Justice Zisman as to habitual residence and jurisdiction on September 27, 2018 is final especially since it was made before the father requested relief under the Hague Convention.

102Counsel for the father argued that Justice Zisman's finding regarding habitual residence and related jurisdictional order was made pursuant to the Children's Law Reform Act and a different test and therefore did not bind this court. She further argued that the Hague Convention would be of little effect if Justice Zisman's finding supersedes the Convention.

103Counsel for the mother argued that Justice Zisman's finding and order assuming jurisdiction to make custody and access orders effecting these children is a final order that should not be interfered with. She argued that the father ought to have appealed the order or moved to set it aside. As he did not, his application under the Hague Convention is just a backdoor way in which he is attempting to challenge Justice Zisman's finding.

104The court considered whether the father's request for an order compelling the return of the children to Buffalo, New York under the Hague Convention after Justice Zisman made findings regarding the children's habitual residence being Toronto and Buffalo was an abuse of process or whether he is estopped from essentially arguing the same jurisdictional issue under the Hague Convention. The answer to both questions is he is not.

105The doctrine of res judicata provides that a litigant shall not be permitted to either relitigate the same issue already adjudicated on a final basis in a previous judgment between the same parties or attempt to litigate an issue not previously decided but one which should have been raised in the previous litigation. The purpose of the doctrine is to uphold the finality of judicial decision making.

106When a given matter becomes the subject of litigation and is adjudicated, the court requires the parties to bring forward their whole case and will not permit the parties to relitigate the issue that was determined or any other matter which might have been brought forward which they have omitted from their case. See: Upper v. Upper [1933] 1 O.R. at p.7. Res judicata is grounded upon two broad principles of public policy: first, that the state has an interest that there should be an end to litigation and , second, that no individual should be sued more than once for the same cause See: B. v. J., 2001 CanLII 28217 (Ont. SCJ).

107Res judicata has two forms: issue estoppel and cause of action estoppel. Issue estoppel occurs when the issue has already been decided in a prior proceeding. There are three preconditions to apply issue estoppel: (i) the issue must be the same as the one decided in the prior proceeding; (ii) the prior decision must have been final; and (iii) the parties to the proceedings must be the same (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460 at par. 25).

108Cause of action estoppel is a broader doctrine. It covers the situation where the issue was not raised in the prior proceeding but could have been. A related principle to res judicata is abuse of process. Abuse of process is applicable where the proceeding before the court is an attempt to re-litigate a claim that has already been litigated, but the preconditions for applying the doctrine of res judicata have not been met (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77, pars. 37-42).

109Even where the requirements for res judicata are met, the court may exercise its discretion and refuse to apply the principle on the grounds that it would cause unfairness or work an injustice. Minott v. O'Shanter Development Co. 1999 CanLII 3686 (ON C.A.), (1999), 42 O.R. (3d) 321 (Ont. C.A.); B. v. J. 2001 CanlII 28217 (Ont. SCJ). The onus is on the person resisting res judicata to establish that unfairness or injustice would occur if it was applied. Schweneke v. The Queen in Right of Ontario et al 2000 CanLII 5655 (ON CA), [2000] O.J. No. 298 (OCA).

110The case of Raikou v. Kokkinis, [2001] B.C.J. No. 1764 (B.C. S.C.), states that res judicata should be applied less stringently in family law contexts.

111The court should be more flexible in exercising its discretion to disregard res judicata when the interests of children are involved. The court has a residual stake in the manner in which litigation is conducted, founded on the court's inherent power to control its own process. This is particularly so in family law cases, which are governed by the Family Law Rules. The primary rule is rule 2(2) which provides that the fundamental purpose of the rules is to deal with cases justly. Part of this mandate requires the court to oversee and maintain balance and fairness between the parties. Ludmer v. Ludmer (2012), 25 R.F.L. (7 th ) 397 (Ont. S.C.J.).

112Justice Zisman did not have the benefit of cross examination on the motion and was not able to assess the parties' credibility. As described in detail above, Justice Zisman's reasons demonstrate that she was provided with and relied upon evidence on the motion that was incomplete, a misrepresentation of the truth or blatantly false. Her Honour's findings were made on grossly defective evidence.

113If the doctrine of res judicata applies, this court is prepared to exercise its jurisdiction and find that the issue of habitual residence is not res judicata. This case provides a very compelling illustration of when a court should opt to exercise its discretion and refuse to apply the principle of res judicata in order to avoid an injustice.

The Law – The Hague Convention

114The Ontario Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680, set out the objectives of the Hague Convention as follows:

[19] The Hague Convention has two objects: to enforce custody rights and to secure the "prompt return" of children who have been wrongfully removed or retained: Balev, at para. 24; Hague Convention, Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child's habitual residence: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.

[20] The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned.

115The Ontario Court of Appeal articulated the analytic framework for a Hague Convention application in Ludwig v. Ludwig as follows:

Stage One: Habitual Residence

1. On what date was the child allegedly wrongfully removed or retained?

2. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach:

a) The court's task is to determine the focal point of the child's life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention.

b) To determine the focal point of the child's life, the court must consider the following three kinds of links and circumstances:

i) The child's links to and circumstances in country A;

ii) The circumstances of the child's move from country A to country B; and

iii) The child's links to and circumstances in country B.

c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:

i) The child's nationality;

ii) The duration, regularity, conditions and reasons for the child's stay in the country the child is presently in; and

iii) The circumstances of the child's parents, including parental intention.

End of Stage One: Two Outcomes

1. If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.

2. If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.

Stage Two: Exceptions

At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3. The child of sufficient age and maturity objects to being returned (Article 13(2));

a) Has the party opposing return met the threshold to invoke the court's discretion to refuse return?

i) Has the child reached an appropriate age and degree of maturity at which the child's views can be taken into account; and

ii) Does the child object to return?

b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider:

i) The nature and strength of the child's objections;

ii) The extent to which the objections are authentically the child's own or the product of the influence of the abducting parent;

iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child's welfare; and

iv) General Hague Convention considerations.

4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or

5. The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

Analysis

Habitual Residence

116The father argues that pursuant to the Hague Convention, the children must be returned to Buffalo, their habitual residence as of the date they were wrongfully removed by the mother to Toronto, being September 11, 2018. The mother argues that there was no wrongful removal as Toronto was and always has been the children's habitual residence. If Toronto was the children's habitual residence at the time they were removed from Buffalo, the Hague Convention does not apply.

117It is important to note at this stage that a consideration of all the factors is limited to the time period leading up to the alleged wrongful removal and not after that date. See: Andegiorgis v. Giorgis, 2018 ONCJ 965 and Knight v. Gottesman, 2019 ONSC 4341.

The Focal Point of the Children's Lives Immediately Before the Removal From Buffalo

118The children lived in Buffalo, New York for a year. The oldest child, J.R., who was the only school age child attended private school for the 2017-2018 year and was registered to attend the same school for the 2018-2019 school year. The parents applied for and received a grant towards the cost of tuition for both the 2017-2018 and 2018-2019 school years.

119The parties registered R.R. in a specialized daycare, Aspire Centre for Early Learning Intervention. Aspire was equipped to deal with R.R.'s significant medical and educational needs. The parties invested a lot of time making the arrangements for R.R. to attend this program. His first year was to be the 2018-2019 school year but R.R. only attended a few days before being removed to Toronto.

120All of the children had a family doctor and dentist in Buffalo.

121R.R. saw an inordinate number of doctors, specialists and therapists during the year he lived in Buffalo. His only visit to the Hospital for Sick Children in Toronto while living in Buffalo, was on January 10 th and 11 th , 2018.

122The children celebrated most holidays and birthdays both in Buffalo and Toronto.

123The children were all born in Toronto and lived there for all their lives except for one year.

124The children share a very close relationship with the mother's family in Toronto.

125The children hold both American and Canadian citizenship.

126The court was not provided with evidence around the children's friends in both countries likely because they are so young.

127J.R. was engaged in extracurricular activities in both Toronto and Buffalo.

128The children were relatively young at the date they moved to Buffalo, being 5, 2 and 1 years of age and had not yet had the opportunity to develop significant ties to schools, friends, extracurricular activities etc., in Toronto.

The Parties' Intentions

129The court finds that it was the joint intention of the parties to live together in Buffalo, New York. The mother agreed to move with the three children to live with the father in his home in Buffalo. The parties then jointly leased a new three bedroom home for the family in June 2018 towards which the mother contributed $5400.00. The mother was actively involved in locating and choosing the home the parties rented.

130The parties obtained health insurance for the children, sourced out doctors, a dentist, a private school for J.R. and a specialized daycare/school for R.R.

131There are many reasons why the mother may have chosen to retain her apartment in Toronto. If one of the reasons was to keep her options open if the relationship with the father did not work out, that does not nullify her decision to move with the children to Buffalo to live with the father.

132The court finds that it was the mother's intention to move to Buffalo with the children, not stay in Buffalo each week from Sunday to Friday.

Conclusion Regarding Habitual Residence

133A consideration of all the relevant evidence results in a finding that as of September 11, 2018 when the mother removed the children from Buffalo and brought them to Toronto their only habitual residence was Buffalo, New York.

Would an Order Requiring the Return of the Children to Buffalo, New York Put Them at Grave Risk of Emotional or Psychological Harm?

134As a result of the finding that the children's habitual residence was in Buffalo, the Hague Convention applies. Stage two of the analysis as set out in Ludwig v. Ludwig, requires the court to return the children to their habitual residence as of the date of the wrongful removal unless the mother has provided sufficient evidence to apply one of the exceptions to the requirement that the children must be returned to their habitual residence. As the mother has only advanced an argument pursuant to article 13(b) of the Hague Convention, the court must now determine whether requiring the return of the children to Buffalo will place them at grave risk of physical or psychological harm or place them in an intolerable situation?

135There is an extensive body of case law that provides guidance in determining what would amount to grave risk of harm in the circumstances of a request for the return of children to a jurisdiction from which they were wrongfully removed. The grave risk of harm that is contemplated is one that would result in an intolerable situation. The risk has to be more than an "ordinary risk" and "one of substantial, and not trivial psychological harm." See: Thomson v. Thomson, 1994 CanLII 26 (SCC), 6 R.F.L. (4 th ) 290 SCC.

136The court in Jabbaz v. Mouamman, 2003 CanLII 37565 (ON CA), 38 R.F.L. (5 th ) 103 (OCA), at paragraph 23, said that an "intolerable situation" is "an extreme situation that is unbearable; a situation too severe to be endured."

137There is no question that in some cases the risk of harm to the primary caregiver resulting from domestic violence creates a grave risk of harm to the children within the meaning of the Hague Convention. See: Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (ONCA).

138Even if the mother's evidence of domestic violence was found to have occurred, the court still could not conclude that returning the children to Buffalo would place them in an unbearable situation that is too severe to be endured. The mother's evidence was mostly of verbal abuse. The incident that she alleges occurred on December 21, 2017 involved the father pushing her into the wall. The March 3 rd and 4 th incident involved the father grabbing and restraining her when she tried to leave the room. The April 5, 2018 incident involves the father shoving the mother and holding her by the wrist during an argument. On June 15, 2018, the mother alleges the father shoved her so hard into the wall she lost her breath.

139The incident that the mother alleged occurred on July 15, 2018 was the most serious and the father was found not guilty after a trial in which the mother gave evidence. While the not guilty verdict does not necessarily exonerate the father in this court, the credibility findings respecting the mother justifies giving considerable weight to the outcome of the criminal proceedings.

140The mother's evidence did not describe any injuries as a result of the alleged physical violence. She did not offer any third party or independent evidence to corroborate her allegations or any photographs of injuries.

141There is a presumption that the courts of the child's home jurisdiction will be able to make arrangements that will protect a child from harm if the child is returned there, but it is open to the parent who wrongfully removed or retained a child to establish that such arrangements will not be effective or cannot be made. See Ireland v. Ireland, 2011 ONCA 623 (CanLII), at par. 48; Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII), at par. 50; Finizio v. Scoppio-Finizio, 1999 CanLII 1722 (ON CA), [1999] O.J. No. 3579 (C.A.), at par. 34.

142In Mbuyi v. Ngalula, 2018 CarswellMan 539 (Man. QB), the court returned the child to Iowa, in the face of contested domestic violence allegations. The judge arranged for judicial communication with Iowa and it was clear that Iowa could grant civil protection orders, expedite hearings and make the necessary temporary orders to protect the mother.

143In Brown v. Pulley, 2015 ONCJ 186, the court found that the domestic violence did not reach the level of grave risk of harm. The court found that the mother was also responsible for a large portion of the domestic violence and left her jurisdiction for tactical reasons, as opposed to a fear for her safety. Undertakings were sufficient to address any risk concerns.

144This court can impose undertakings to facilitate the return of the children to Buffalo during the transitional period before the court of their habitual residence takes over. See: Thomson v. Thomson, supra. Undertakings, by giving specific content to the order for return, are capable of defining the initial situation to which the children will return in the requesting State. See: Cannock v. Fleguel, 2008 ONCA 758 (CanLII), paragraph 26. As part of these undertakings the court can require the parties to obtain a mirror order from the Erie County court on the same terms of the undertakings. See: Czub v. Czub 2012 ONCJ 566.

145The mother's evidence provides the court with confirmation that she will have many protections available to her in Buffalo upon her return. She had a lawyer in Buffalo and she was accompanied to court on each occasion by her domestic violence counsellor. There is no evidence to suggest that New York State cannot adequately protect the mother and children from the domestic violence alleged by the mother. This court is satisfied that New York States will make appropriate efforts to assist the mother upon her return to implement the appropriate protections in the circumstances.

146The purpose of the Hague Convention is to discourage parents from wrongfully removing or retaining children from their habitual residence. In order to achieve this purpose, the threshold requirements to meet the exception set out in article 13(b) cannot be low. Rather, the test must be rigorously applied in order ensure the Hague Convention has the intended effect; to deter parents from engaging in self help measures by wrongfully removing or withholding a child from the other parent.

147Taking into consideration the mother's lack of credibility and the frailty of her evidence of domestic violence, I find that she has not demonstrated that an order requiring the return of the children to their habitual residence in Buffalo from which they were wrongfully removed by her would put them at grave risk of harm of physical or psychological harm or place them in an intolerable situation.

Order

148The children shall be returned to their habitual residence in Buffalo, New York on the following conditions:

(a) Until such time as the issue can be decided on a temporary basis in Erie County court, the mother shall have custody of the children;

(b) Until such time as the issue can be decided on a temporary basis in Erie County court, the father shall continue to have telephone/skype access three times per week and upon the return of the children to Buffalo shall have additional physical access to the children every Tuesday, Thursday and Saturday from 10:00 a.m. until 2:00 p.m. with pick up and drop off at the Tim Hortons on Delaware Avenue in Buffalo. The mother may use a third party of her choice to drop off and pick up the children if she chooses;

(c) Until such time as the issue of access can be decided on a temporary basis in Erie County court, any equipment R.R. requires during visits with his father shall be provided by the mother and returned by the father at the end of the visit;

(d) Until such time as the issue can be decided on a temporary basis in Erie County court, the father shall be entitled to receive information about the children directly from all teachers, doctors, specialists, medical service providers etc., working with the children;

(e) The father shall obtain a temporary without prejudice order from the Erie County court which requests the same terms of subparagraphs 148(a), (b), (c) and (d) above. The mother shall sign any consent required of her to assist the father in obtaining the order. If she does not cooperate to sign a consent required by the father to obtain the temporary without prejudice order, the children will be required to be returned to Buffalo without terms;

(f) The mother shall return the children to Buffalo, New York within 14 days of receiving the issued order required as per subparagraph 148(e) above;

(g) The father shall make arrangements for the children to have health insurance if such insurance is not already in place and will provide proof of such insurance to the mother immediately and before she returns to Buffalo;

(h) No one shall remove the children from the City of Toronto pending their return to Buffalo;

(i) The father shall assist the mother to obtain legal status in the United States. Her obtaining status is not a precondition for the return of the children to Buffalo; and,

(j) All other temporary orders of this court are terminated.

149If the father is seeking costs of the Application, he shall serve and file costs submissions with the trial coordinator within 20 days of the date of this decision. The costs submissions shall be no more than 5 pages not including attachments or the Bill of Costs. The mother shall have 20 days after receipt of the father's costs submissions to serve and file her response. The response to the father's costs submissions shall be no more than 5 pages not including attachments or the Bill of Costs.