Court File and Parties
CITATION: Balev v. Baggott, 2016 ONSC 55
DIVISIONAL COURT FILE NO.: DC-15-541
DATE: 20160105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., SACHS & VARPIO JJ.
BETWEEN:
JOHN PAUL BALEV Respondent
– and –
CATHERINE-ROSE BAGGOTT Appellant
Steven M. Bookman and Chris Stankiewicz, for the Respondent
Michael J. Stangarone and Kristy A. Maurina, for the Appellant
-and-
THE OFFICE OF THE CHILDREN’S LAWYER Intervener
James Stengel, for the Intervener
HEARD at Toronto: November 30, 2015
Reasons for Decision
MARROCCO A.C.J.S.C.
[1] The respondent obtained an order on August 27, 2015 declaring that his two children were wrongfully retained in Canada (Ontario) by the appellant, the mother of the children, within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The respondent also obtained an order requiring the appellant to return the children to Germany on or before September 30, 2015.
[2] On September 29, 2015, the appellant obtained a stay of that order pending the disposition of this appeal.
[3] The appellant and the respondent were married in Toronto, Ontario on November 4, 2000. They moved to Germany in 2001 and obtained permission to lawfully remain and work there. While they were in Germany, the two children were born; one in September 2002 and the other in December 2005.
[4] Prior to April 2013, the two children lived in Germany with the following exceptions. First, in 2006, the appellant and the children were in Ontario for an undisclosed period of time during which the older child attended school in St. Catharines, Ontario. Second, in October 2010, the appellant and the children came to Canada for a two-week holiday. However, due to a worsening of the marital relationship, the appellant remained in Canada until January 2011 before returning to Germany to resume living with the respondent. On this occasion, both children attended school in St. Catharines.
[5] The appellant, the respondent and the two children are Canadian citizens.
[6] The appellant and the respondent did not live together for very long after returning to Germany in 2011. In April 2011, the respondent was granted interim custody. However, by the end of September 2012, the parties were living together again and stayed together until April 2013.
[7] The appellant and the respondent separated on April 19, 2013. They agreed that the appellant would take the children to Canada where they would attend school. While there is some disagreement about the circumstances of this separation, it is clear that the move was supposed to be temporary with the children living and attending school in Ontario until August 15, 2014.
[8] The respondent executed a letter confirming his consent dated April 2, 2013, which provided as follows:
Be advised that I, John Balev, a Canadian citizen and permanent resident of Germany, August – Babel – Str. 35, 63303 Dreieich, herewith temporarily transfer physical custody of our minor children… to their mother… until 15 August 2014.
I give permission for the children to travel with their mother to Canada and reside there as stated above. This permission may be subject to extension.
[9] On April 16, 2013, the appellant formally advised the German municipality where they lived and the children’s school that she and the children were going to Canada.
[10] The appellant and the children arrived in Canada on April 19, 2013 and have remained in Ontario ever since.
[11] On April 26, 2013, one week after the appellant and the children had left Germany, the respondent contacted the German Justice Department inquiring about steps to deal with an abduction of his children. Given that the respondent had consented to the children coming to Canada, this communication with the German Justice Department is most curious.
[12] On May 6, 2013, the respondent was advised by the Central Authority for International Parental Custody Disputes in Germany that the children’s removal to Canada was not unlawful and that the appellant’s retention of them in Canada could not be considered as such until the respondent’s consent expired.
[13] On March 17, 2014, the respondent purported to revoke his consent and, despite the advice from the Central Authority, sent the appellant an email warning her that she could be charged with abduction if the children were not returned to Germany by March 31, 2014.
[14] On April 11, 2014, the respondent began a Hague Convention application in Germany.
[15] The respondent’s Hague application was received by the Central Authority in Ontario on May 5, 2014. The respondent filed his Hague application in St. Catharines on June 26, 2014. The hearing of the application was delayed in part due to a failed attempt by both parties to transfer it to Toronto.
[16] On April 21, 2015, the application judge made an order requiring the Office of the Children’s Lawyer to intervene. The Office of the Children’s Lawyer advised the court that, although both children made it clear that they had positive feelings for their father, they did not want to return to Germany.
[17] The application judge released her decision on August 27, 2015.
[18] At paragraph 79, after determining that there were no valid German court orders dealing with the residence of the children, Her Honour concluded that the habitual residence of the children was Germany “for the reasons set out above”. The “reasons set out above” refer fundamentally to paragraph 73 of Her Honour’s reasons, which provides as follows:
The case law is clear that the habitual residence of a child is in the state where both parties lived together with the child, and neither parent can unilaterally change the habitual residence, without the express or implied consent of the other parent. (Cornaz v Cornaz-Nikyuluw, 2005 CarswellOnt 4714 (OnS.C.); Thomson vs. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C.)).
[19] Article 1 of the Convention provides as follows:
The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
[20] From Article 1, it is clear that the Convention is directed to the prompt return of children “wrongfully” removed to or retained in any Contracting State.
[21] The word “wrongfully” is defined in Article 3 of the Convention as follows:
The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law that State.
[22] From Article 3, it is clear that the retention in Ontario must be in breach of rights of custody attributed to the respondent by the law of the State in which these two children were habitually resident immediately before the appellant retained them in Ontario.
[23] The children were not wrongfully removed from Germany on April 19, 2013. They were removed from Germany at that time with the knowledge and consent of the respondent.
[24] It is the respondent’s submission that the retention of the children in Ontario became wrongful with the expiry of his consent on August 15, 2014. The application judge concluded at paragraph 72 that the respondent could not revoke his consent, and it was not seriously contended before us that a revocation was possible. In any event, we agree with the application judge that the respondent could not revoke his consent as he purported to do on March 17, 2014.
[25] Accordingly, August 15, 2014 is the effective date for determining the habitual residence of these two children.
[26] If the children were habitually resident in Germany immediately prior to August 15, 2014, then there was evidence before the application judge capable of establishing that the respondent had a right to joint custody of the children under German law. Consequently, it was open to the application judge to conclude that the appellant’s retention of the children in Ontario after August 15, 2014 was in breach of that custody right.
[27] If the children were habitually resident in Ontario immediately prior to August 15, 2014, then there was no finding by the application judge that the appellant breached a custody right as it had not been determined whether any such right had been attributed to the respondent under the laws of Ontario.
[28] The phrase “habitually resident” is not defined in the Convention. The Court of Appeal defined the phrase in the context of a Hague application in Korutowska-Wooff v. Wooff (2004), 2004 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8 as follows:
[t]he English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of …. The principles that emerge are:
the question of habitual residence is a question of fact to be decided based on all of the circumstances;
the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
a child’s habitual residence is tied to that of the child’s custodian(s).
[29] In concluding that these two children were habitually resident in Germany, the application judge relied upon paragraph 51 of Cornaz v. Cornaz-Nikyuuw, [2005] O.J. No. 4121 (S.C.) for the proposition that “a wrongful retention does not bring about a change in the habitual residence of the child as it is a unilateral action.” While we agree with that proposition, we do not think it entirely resolves this matter.
[30] There was no wrongful retention of the children in Ontario from April 19, 2013 to August 15, 2014 because the children were in Ontario with the consent of the respondent. The question, which is not resolved by the Cornaz v. Cornaz-Nikyuluw legal principle set out above, is whether during this consensual period the habitual residence of the children changed from Germany to Ontario. The length of the consensual period is obviously important. For example, if the consensual period is a few days then any change in a child’s habitual residence is unlikely; the same could not be said if the consensual period is a few years.
[31] Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551 was also relied upon by the application judge. In that case, after the Scottish courts had awarded interim custody to the mother, interim access to the father and ordered that the child remain in Scotland pending a final custody order, the mother took the child (aged 9 months, approximately) to her family’s farm in Manitoba. The mother then applied for custody in Manitoba. At the same time, the father applied for return of the child pursuant to The Hague Convention. The application judge found that the child had substantial connections with Scotland, rather than Manitoba. In dealing with this issue, the Supreme Court of Canada said, at p. 582: “The second preliminary issue relates to the dispute regarding whether Matthew’s residence was in Scotland or in Manitoba at the relevant time. On the facts of this case, I agree with the courts below that this issue is also without substance.”
[32] In Thomson, the submission that the child was habitually resident in Manitoba was “without substance” because the child was wrongfully removed from Scotland to Manitoba. In claiming that the child’s habitual residence was located in Manitoba, the mother was relying upon her unilateral wrongful removal of the child to change the child’s habitual residence to Manitoba. There was no period of time when the child lived in Manitoba with the consent of both parents. In short, the Thomson decision supports the proposition that the wrongful removal of a child cannot bring about a change in the child’s habitual residence, and it is consistent with the proposition articulated in Cornaz v. Cornaz-Nikyuluw that a wrongful retention cannot bring about a change in the habitual residence.
[33] In this consensual period, the change in habitual residence, if one occurred, resulted from the circumstances created by the appellant and respondent’s joint decision to move the children to Ontario for an extended period of time; it did not occur as a result of one parent’s unilateral action.
[34] In concluding that Germany was the children’s habitual residence the application judge also focused her inquiry on s. 22(2) (c) of the Children’s Law Reform Act ,which provides that a child is habitually resident in the place where he or she resided “with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.”(emphasis added). The application judge then went on to find that the move to Canada was not made with a view to having it be a permanent one on a and therefore the habitual residence of the children remained in Germany.
[35] I would point out that s. 22(2) (b) of the Children’s Law Reform Act, makes it clear that a child can be habitually resident in a place where he or she resides with one parent “with the consent, implied consent or acquiescence of the other”. Since the children in question were residing in Ontario with their mother with the consent of their father their habitual residence could have changed to Ontario.
[36] Further, as the Court of Appeal made clear in Korutowska-Wooff, supra, a person’s habitual residence is the place where a person resides for an appreciable period time with a settled intention to stay there either permanently or temporarily for a particular purpose.
[37] The Office of the Children’s Lawyer brought a motion to introduce two affidavits as fresh evidence at the hearing of this appeal. One affidavit had been submitted to Justice MacPherson and rejected by Her Honour and the other was sworn after Her Honour released Her decision in support of the appellant’s motion to stay Her Honour’s orders. These affidavits fail to meet the test in R v Palmer 1979 8 (SCC), [1980] 1 S.C.R. 759. This motion is dismissed.
[38] Rather than return this matter to the application judge to be reconsidered after having regard to these reasons, I propose to conclude the matter to provide some certainty for the children concerning the place where they will remain while their parents’ custody rights are determined. In describing my conclusion concerning the children’s habitual residence, I am mindful that Her Honour did not view the consensual period in the manner which I have described and therefore did not comment on the evidence from that perspective.
[39] There was cogent evidence to support a conclusion that there was a change in the children’s habitual residence from Germany to Ontario during the consensual period.
[40] Specifically, on August 15, 2014, the last day of the consensual period of residence in Ontario, the children, who are Canadian citizens and speak English, had been living in St. Catharines for an appreciable period of time, namely approximately 16 months in close proximity to their mother and maternal grandparents. The children had attended school in Ontario during this period. In addition, based on the application judge’s findings, I am satisfied that the appellant had the intention to remain in St. Catharines temporarily at the beginning of the consensual period. This intention was a “settled” one and was for two particular purposes- to obtain employment and to allow the children to attend school in Canada. Obviously the appellant’s intention to remain in St. Catharines became permanent at a later point during the consensual period, because the appellant did not return to Germany with children after August 15, 2014. Finally, and significantly, at paragraph 70 Her Honour concluded on the evidence that the children had “become integrated into their community” in Ontario.
[41] Balanced against these facts and the application judge’s conclusion at paragraph 70, are the facts that:
• the respondent, the children’s father, lives in Germany;
• prior to August 15, 2014 the children had lived their entire lives in Germany except for three periods of time, described in these reasons; namely, in 2006 for an undisclosed period of time during which time the older child attended school in St. Catharines, Ontario; from October 2010 until January 2011 when both children attended school in St. Catharines; and finally during the consensual period April 19, 2013 to August 15, 2014 during which time both children attended school in St. Catharines Ontario; and
• the respondent visited the children twice prior to the hearing of this application – once in November 2013 and once in March 2015.
[42] After considering all of the evidence, I come to the conclusion that the children’s habitual residence changed from Germany to Ontario during the consensual period. In coming to this conclusion I note that it is consistent with the conclusions of the German courts who have had the opportunity to consider this matter.
[43] Accordingly, the decision of the application judge is set aside. It is ordered that the respondent’s Hague Application is dismissed. The habitual residence of the children changed from Germany to Ontario during the consensual period of April 19, 2013 to August 15, 2014 with the result that custody rights concerning the two children should be determined by the courts in Ontario.
[44] The appellant and respondent agreed that costs in the amount of $10,000 should be paid to the successful party. The Office of the Children’s Lawyer, consistent with past practice, seeks no costs. We feel that $10,000 including HST is reasonable and order the respondent to pay the appellant $10,000 on account of costs.
MARROCCO A.C.J.S.C.
SACHS J.
VARPIO J.
Released: 20160105
CITATION: Balev v. Baggott, 2016 ONSC 55
DIVISIONAL COURT FILE NO.: DC-15-541
DATE: 20160105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., SACHS & VARPIO JJ.
BETWEEN:
JOHN PAUL BALEV Respondent
– and –
CATHERINE-ROSE BAGGOTT Appellant
-and-
THE OFFICE OF THE CHILDREN’S LAWYER Intervener
REASONS FOR JUDGMENT
Released: 20160105