Court File and Parties

CITATION: Schroeder v. McCormack, 2016 ONSC 5775 COURT FILE NO.: 16/972 DATE: 2016-09-15

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Marie Allen Schroeder, Applicant (Respondent in Appeal) AND: George Harold Jeremy McCormack, Respondent (Appellant)

BEFORE: MOLLOY, C. HORKINS and HOWARD JJ.

COUNSEL: M. Stangarone and K. Maurina, for the Appellant P. Ng, for the Respondent

HEARD: September 12, 2016 in Oshawa

Endorsement

MOLLOY J.:

Introduction

[1] Jeremy McCormack appeals from the final order of McDermot J. dated June 28, 2016, requiring him to return his child, Flynn McCormack, to Denmark pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Mr. McCormack (“the father”) seeks:

• an order dismissing the Family Court application of Marie Schroeder (“the mother”) pursuant to the Hague Convention;

• a declaratory order that Flynn McCormack is habitually resident in Ontario and that Ontario has jurisdiction to determine custody and access issues relating to him; and

• costs on a full indemnity basis for this appeal and the lower court application.

[2] At the conclusion of the argument by counsel for the appellant, we advised the parties that the appeal was dismissed, with written reasons to follow. Those reasons are set out below.

Factual Background

[3] The parties began cohabiting in November 2012, and their son, Flynn, was born in Ontario on February 1, 2014. Flynn spent much of his young life outside the province. When he was five months old, he moved with his parents to Singapore for 10 months. After returning to Canada in May 2015, the family spent three months travelling to destinations in the United States and Europe. They returned to Canada in August 2015 and spent most of the next five months living in Ontario. In early 2016, the mother accepted an employment position in Denmark, and the family flew there on January 30, 2016.

[4] The day before leaving for Denmark, the parties signed a “parenting plan” agreement. The agreement stated that Flynn was only visiting Denmark and is a resident of Ontario. It also stated that Flynn was “free to leave Denmark with [the father] at any time.” The agreement purported to give Ontario jurisdiction over custody and access issues relating to Flynn.

[5] On March 30, 2016, while the mother was on a business trip to the United States, the father brought Flynn from Denmark to Ontario without informing the mother. The mother applied for a Hague Convention order requiring Flynn’s return to Denmark. McDermot J. of the Family Court granted the order, which the father now appeals.

The Hague Convention

[6] The relevant provisions of the Hague Convention provide as follows:

Article 3

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or…

The Decision Under Appeal

[7] The application judge identified two central issues: (1) whether the “parenting plan” agreement was a bar to the mother’s application; and (2) whether Flynn was habitually resident in Denmark at the time of his removal.

[8] The application judge held that:

(i) Because the parties were not separated at the time of the “parenting plan” agreement, its provisions with respect to custody and access were not enforceable, by virtue of s. 53(1)(c) of the Family Law Act.[^1]

(ii) Even if the agreement was made during separation, he would have set it aside because of the enormous pressure put on the mother, the power imbalance between the parties, and the fact that the agreement did not necessarily address the best interests of the child.

(iii) In any event, the agreement could not operate to defeat the provisions of the Hague Convention.

(iv) The child was habitually resident in Denmark and was removed from Denmark without the mother’s consent and in breach of her custodial rights.

Issues on Appeal

[9] On the appeal in this Court, counsel for the father (not the same counsel as appeared on the application) focused primarily on the application judge’s finding that the child’s habitual residence was in Denmark. He did not challenge the finding that the parties were not separated at the time the “parenting plan” was executed, and acknowledged that the custody and access terms were not enforceable under the Family Law Act.

[10] Even though the parenting plan may not have been enforceable, counsel for the father argued that it was strong evidence that there was no shared intention by the parties to change Flynn’s habitual domicile from Ontario to Denmark. He submitted that it was an error of law by the application judge to fail to take the parenting agreement into account in determining whether Denmark was the child’s habitual residence.

[11] Further, he submitted that the findings of fact by the application judge on this issue fell within the test of “palpable and overriding error” and should be set aside.

[12] Counsel for the father conceded that if the child’s habitual residence was Denmark, and if the mother did not consent to the father taking Flynn to Ontario in March 2016, then the father’s actions in doing so would constitute a breach of the Hague Convention. However, the father’s position is that the mother consented to his removing Flynn from Denmark when she signed the parenting plan in January 2016.

Analysis

[13] On the application as it was argued before him, the application judge was required to determine whether the “parenting plan” operated as a bar to the mother’s Hague Convention application. The application judge correctly held that the custody and access terms of the agreement were unenforceable if the parties were not separated at the time of the agreement, as stipulated in s. 52(1) of the Family Law Act. He conducted a thorough and thoughtful analysis of the evidence on that issue and determined that the parties were not separated. His conclusion in that regard is unassailable, and indeed is not challenged on this appeal.

[14] The application judge also considered carefully the circumstances in which the mother signed this “parenting plan.” He reached the conclusion that the agreement was signed by the mother under duress, that the mother was disadvantaged by a power imbalance between her and the father and that the agreement failed to take into account the best interests of the child. These are all findings of fact and subject to review only if there is a palpable and overriding error. I find no such error. Rather, the factual findings are amply supported by the record and are reasonable. The application judge found that this was another basis for finding that the agreement was invalid and unenforceable.

[15] The application judge reviewed the evidence as to whether Flynn was habitually resident in Denmark and concluded that he was. There was considerable evidence supporting that conclusion. There was also evidence that could point to a different conclusion. However, much of that evidence depended on the testimony of the father. The application judge pointed to numerous inconsistencies and omissions in the father’s evidence and stated his concerns about the credibility of the father’s evidence. That is a conclusion that was open to the application judge. It is not the function of this court on appeal to re-weigh the evidence and come to our own conclusion on the facts. The decision of the application judge was well-reasoned and supported by evidence that he accepted. He did not ignore relevant factors. He took into account the “parenting plan” but did not find it to be conclusive. I see no error of law in that analysis. The conclusion of the application judge was largely driven by his findings of fact, which is not surprising in cases of this nature.[^2] There is no palpable or overriding error in those factual findings and no basis to interfere.

[16] I also find no error of law by the application judge. He considered factors that were relevant. He did not ignore relevant factors, such as the parenting agreement. He merely found the agreement to be unpersuasive as a determining factor on shared intention, which is understandable given his findings that the mother was under such pressure when she signed it.

[17] The application judge did not err in law by importing a best interest of the child test into his consideration of whether there had been a breach of the Hague Convention. The application judge’s consideration of the best interests of the child was only in relation to his determination as to the enforceability of the “parenting plan.” That was a relevant factor within that analysis. The application judge did not otherwise apply the best interest test in determining habitual residence or any other aspect of his analysis of the Hague Convention issues. There is no legal error on this point.

[18] The father argues that his agreement to go to Denmark with Flynn and the mother was a “conditional” one and therefore he could not be seen as having a settled intention to abandon Ontario as the habitual residence and to relocate to Denmark. The case authority cited by the father does not support the proposition that where there is marital strife and a move that is “conditional” on the couple working out their differences, the new residence is necessarily ruled out as the habitual residence.[^3]

[19] Rather, the fact that a move is made “conditionally” is merely one of the factors to be taken into account in considering all of the surrounding circumstances and determining whether, in the context of all the facts, the new residence can be considered the “habitual” residence. There are a number of cases in which courts have concluded that the new residence had become the child’s habitual residence, notwithstanding one parent’s stipulation that his or her move was “conditional.”[^4] Each case will turn on its particular facts, as indeed was the case here. The application judge took all of the relevant facts into account, rejected much of the father’s evidence, and concluded that both parents intended to settle in Denmark, even if it was on a temporary basis. He committed no legal error in that analysis. His findings of fact are entitled to deference. I find no basis for this Court to disturb his conclusion that, as of the date the father flew the child to Ontario in March 2016, the child’s habitual residence had been in Denmark.

[20] Finally, I reject the father’s argument that the conclusion of the application judge cannot stand based on his assertion that the mother consented to the removal of the child from Denmark. The fact that the mother signed the parenting agreement in January 2016 cannot constitute her consent at the end of March 2016, even if the agreement was enforceable on this point, which it is not. I note that the consent issue was not raised before the application judge. Further, it is unsupported by any evidence and inconsistent with the actions of the father. The father surreptitiously removed the child from Denmark while the mother was out of the country on a business trip and did not tell her anything about it. Indeed, he carried out the entire trip, including the planning of it, covertly. That is not consistent with the mother having “consented” to the removal of the child. Likewise, the reaction of the mother upon discovering that the child was gone was wholly inconsistent with her having consented to his removal.[^5]

Conclusion and Costs

[21] I find no basis in fact or in law to interfere with the decision of the application judge. Accordingly, this appeal is dismissed.

[22] The application judge has yet to decide the issue of costs of the application before him. He is in the best position to determine those costs and the issue is therefore remitted to him for decision.

[23] The father brought a motion to stay execution of the order requiring the child to be returned to Denmark. He was unsuccessful. Costs were reserved to the Panel hearing the appeal. The mother seeks costs of that motion on a full indemnity basis in the amount of approximately $23,000. In support of that submission, counsel for the mother relies on an offer to settle that included an offer to let the father visit the child in Denmark and stay in the mother’s apartment free of charge while he was there. Counsel submits that this offer is the equivalent of the order made by the judge on the stay requiring the mother to pay the father’s airfare for a trip to Denmark. We do not find the offer to be equivalent. Given the tensions between the parties, the father could hardly be expected to cohabit with the mother as a condition of seeing his child.

[24] This was an important issue to both parties. However, we see no basis for costs on an enhanced level. The mother, as the successful party, is entitled to her costs on the usual scale. This was a half-day motion. We consider $5,000 to be an appropriate costs award in light of the issues and the reasonable expectation of the parties.

[25] With respect to the appeal itself, again the mother was successful and is entitled to costs. However, again we see no basis for costs on a full indemnity basis. The costs claimed in the amount of approximately $30,000 are excessive. In our view, a reasonable costs award is $15,000.

[26] Accordingly, the appeal is dismissed with costs to the mother fixed at $20,000 for the appeal and the stay motion, in addition to any costs that may be ordered by McDermot J. in respect of the application itself.

MOLLOY J.

C. HORKINS J.

HOWARD J.

Date: September 15, 2016

[^1]: Family Law Act, R.S.O. 1990, c. F.3.

[^2]: Christodoulou v. Christodoulou, 2009 55723 (ON SC), at paras. 118-19; Wentzell-Ellis v. Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at para. 27; Korutowska-Wooff v. Wooff, 2004 5548 (ON CA); H. (A.) v. H. (F.S.), 2013 ONSC 1308, 28 R.F.L. (7th) 163, at paras. 17, 53; Csoke v. Fustos, 2013 ONSC 2417, 228 A.C.W.S. (3d) 165, at para. 247.

[^3]: Ruiz v. Tenorio, 392 F (3d) 1247 (11th Cir 2004); Gitter v. Gitter, 396 F (3d) 124 (2nd Cir 2005); Director-General of the Department of Community Services v. M.S., No. SY8917 of 1997; Maxwell v. Maxwell, 588 F (3d) 245 (4th Cir 2009); De Martinez v. Rios (2008), 50 R.F.L. (6th) 293 (Ont. S.C.); M. (C.) v. M. (J.), 2015 BCSC 2339; 2015 82623 (BC SC), 74 R.F.L. (7th) 156.

[^4]: Csoke, at paras. 290, 307; Wirta v. Wirta, 2016 ONSC 3835, 267 A.C.W.S. (3d) 386, at para. 52; Gavriel v. Tal-Gavriel, 2015 ONSC 4181, 65 R.F.L. (7th) 452, at paras. 40-41.

[^5]: At the conclusion of the argument on September 12, 2016, we dismissed the appeal with reasons to follow. On September 13, 2016, the Court of Appeal released its decision in Balev v. Baggott, 2016 ONCA 680. It does not affect our decision in this case. Having reviewed Balev v. Baggott, we remain of the view that there is no basis in fact or law to interfere with the decision of the application judge in the case before us.