W.D.N. v. O.A., 2019 ONCJ 926

W.D.N. v. O.A.

Court File No.: Toronto CFO-19-15620

Date: December 20, 2019

Ontario Court of Justice

Parties

Between:

W.D.N., Applicant

— AND —

O.A., Respondent

Before the Court

Justice: Sheilagh O'Connell

Heard on: June 12, 13, 17, 18, August 13, 26, September 20, 2019

Reasons for Judgment released: December 20, 2019

Counsel

Stephen Eaton — counsel for the applicant

Trisha Simon — counsel for the respondent

O'CONNELL J.:

1. Introduction

2On August 22, 2018, the Respondent mother ("the mother") left Flint, Michigan with her three children and travelled to Canada, where she made a refugee claim on behalf of herself and her children.

3On February 15, 2019, the Applicant father ("the father"), who resides in Flint, Michigan, commenced this application under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") for the return of the parties' children to Michigan. He states that the children were wrongfully removed from their place of habitual residence and that such removal constitutes a wrongful removal within the meaning of Article 3 of the Convention.

4In the alternative, the father seeks an order, pursuant to sections 40 and 41 of the Children's Law Reform Act, that the court recognize and enforce a court order made on September 19, 2018 in the Judicial Circuit Court for the County of Genesee, Flint, Michigan that awarded temporary custody of the children to the father and required the mother to return the children to Michigan forthwith.

5The mother concedes that the children's habitual residence was Flint, Michigan at the time that she removed the children and came to Ontario. However, the mother seeks a dismissal of the father's application and has raised two defences under Articles 3 and 13 of the Convention.

6The mother states that at the time the children were removed from Michigan, the father was not exercising rights of custody under Michigan law, pursuant to Articles 3 and Article 5 of the Convention.

7In the alternative, the mother also states that if the Hague Convention applies in this case, then returning the children to Michigan would expose them to a grave risk of psychological or physical harm or otherwise place them in an intolerable situation, and therefore they should be exempted from return pursuant to Article 13(b) of the Convention.

8There were serious credibility issues between the parties regarding these issues, thus requiring viva voce evidence, in accordance with the Court of Appeal's direction in Cannock v Fluegel. The mother presented her case first, as the person raising an Article 13(b) defence to a Hague application bears the onus.

9The court heard six days of evidence from both parties, two expert witnesses (following voir dires) and two civilian witnesses, as well as information received on consent from the Central Authority for Ontario.

10The parties also filed two Agreed Statement of Facts, although the court heard a mid-trial motion brought by the mother seeking to withdraw some of the facts previously admitted.

2. The Issues

11These are the issues that the court must decide in this application:

1. Was the removal of the children by the mother in breach of rights of custody attributed to the father, an institution or any other body, either jointly or alone?

2. Was the father or any other institution or body exercising rights of custody at the time that the children were removed from Michigan?

3. If so, were the children wrongfully removed from Michigan by the mother under the Hague Convention or do any of the exceptions to the return of the children apply, in particular, Article 13(b) of the Convention:

   • a. Is there a grave risk that returning the children to Michigan would expose the children to physical or psychological harm or otherwise place them in an intolerable situation?

4. If the Hague Convention does not apply, should this court exercise its powers under sections 40 and 41 of Children's Law Reform Act, R.S.O. 1990, c. C.12 and recognize and enforce the terms of the Michigan Court Order or should this court supersede the Michigan Court order?

5. Alternatively, should the court assume jurisdiction under section 23 of the Children's Law Reform Act based on a finding that the children would suffer serious harm if returned to the father or removed from Ontario?

3. Background Facts

12The father is 48 years old and is a dual citizen of the United States and Burkina Faso. The father was born in Burkina Faso and immigrated to the United States in 2001.

13The mother is 31 years old and is a Nigerian citizen. The mother immigrated to the United States in 2007.

14The father is a self-employed mechanic and owns a business in Flint, Michigan repairing, buying and selling cars. He owns two properties in Michigan, the family home which is mortgage-free and another property. The father also owns property in Burkina Faso. The father's mechanic's garage is attached to the family home.

15The mother and the children are currently living in Ontario. The mother is now training to be a personal support worker and receives social assistance and part-time income delivering food.

16The parties met in Michigan in 2012 while the mother was a nursing student. She was living in the United States on a student visa. At the time they met, the father was a permanent resident, waiting for his American citizenship.

17The parties commenced a relationship in 2013. They began cohabiting in 2014 after the mother became pregnant with their first child. The mother gave up her apartment and moved into the father's home.

18The parties have three children together, namely R.E.N, born [….2014]; R.D.N. born […2016]; R.N.N., born […2018] ("the children"). All three children were born in Michigan and are American citizens. Neither party has any other children.

19The parties lived together with the children in the father's home in Flint until their separation. At the time of the separation, the children were 3 years, 2 years, and seven months old.

20Prior to moving to Ontario, it is not disputed that the mother was the primary caregiver of the children. The father worked outside of the home and was the family's main income earner. He worked in his garage as well as on the road buying and selling cars. The mother had some part-time income braiding hair at a hair salon, but the children went with her when she did this.

21After the birth of the first child, the mother was no longer able to attend school and lost her student visa immigration status in the United States. The mother did not have legal immigration status in the United States at the time she left with the children.

22The parties never married. They have conflicting accounts for why this is so and why the father never sponsored the mother to become a legal resident of the United States.

23The parties separated on August 21, 2018. On that day, the mother left the family home with the children and entered Canada. Upon arrival in Canada, the mother made a refugee claim on behalf of herself and her children. The mother informed the father through text messages that she had left with the children.

24On August 23, 2018, the father filed a police complaint with the Flint Township Police Department.

25On August 24, 2018, the mother informed the father that she and the children were in Canada.

26The father retained counsel in Michigan and in Ontario. On September 19, 2018, the Honourable Judge John A. Gadola of the 7th Judicial Circuit Court for the County of Genesee, Family Division in the State of Michigan, granted the father custody of the three children on an ex parte basis.

27The Michigan Court also ordered that the children be returned to Michigan forthwith and that the mother be granted "reasonable parenting time if she is allowed to return to the United States." (The "chasing order").

28The father hired a private detective and located the mother and children in Toronto, Ontario. They were living at a shelter for women and children.

29The father commenced his Hague application in this Court in February of 2019. The mother was served and retained counsel in March of 2019.

30It is not disputed that the children's habitual residence was Flint, Michigan at the time that the mother removed them from the United States.

31It is further not disputed that the mother and the children were already living in Ontario at the time that the father obtained the 'chasing order' from the Michigan Court.

4. The Position of the Parties

The Mother's Position

32The mother submits that because the parties were unmarried, the father did not have rights of custody and that he was not exercising rights of custody under Michigan law, nor was any other institution or body at the time that she removed the children from Michigan, as required by the Hague Convention. Thus, there was no wrongful removal pursuant to Articles 1 and 3 of the Convention.

33In the alternative, she submits that if the removal was wrongful, there is a grave risk that the children's return to Michigan would expose them to physical or psychological harm or otherwise place them in an intolerable situation for the following reasons:

1. The mother fled a situation of serious domestic violence in Michigan. The children witnessed the domestic violence in the home and were also treated harshly by the father and subjected to physical discipline which harmed them.

2. The mother could not report the violence and seek state protection due to her illegal immigration status in the United States and her fear of being detained and the children being separated from her and placed in foster care or remaining with an abusive parent. The father chose not to sponsor her, even though he had the ability to do so in order to exert continued control over her.

3. Shortly before the mother left with the children, the father also threatened to permanently relocate the children to his country of origin, Burkina Faso, without the mother. Given the mother's illegal status, the mother would not be able to leave the United States and travel to Burkina Faso with the father and the children. The children would be permanently separated from their primary caregiver and relocated to a dangerous living environment without education.

34In the further alternative, the mother submits that if the Hague Convention does not apply, this court should decline to recognize and enforce the Michigan Order pursuant to sections 40 and 41 of the Children's Law Reform Act ("CLRA") and should assume jurisdiction under section 23 of the as CLRA on the basis that the children will suffer serious harm if removed from Ontario.

The Father's Position

35The father submits that he was exercising custody rights at the time the mother wrongfully removed the children from Michigan. He adamantly denies all acts of violence and threats alleged by the mother towards her and the children.

36It is the father's position that the mother was solely motivated by financial opportunity, a chance to escape her mounting debts and the belief that Canada's "strong social safety net could work to her advantage."

37The father further denies refusing to marry the mother or failing to assist her in regularizing her immigration status in the United States. It is also his position that the mother may be able to return to the United States and obtain immigration status should the children be returned there.

38The father submits in the alternative that if this court decides that the Hague Convention does not apply in this case, then this court should still recognize and enforce the Michigan court order and return the children immediately.

5. The Law: The Hague Convention

39The Hague Convention is an international treaty, signed to date by more than 90 contracting States, including both Canada and the United States, to deal with the pressing issue of parental child abduction. The Convention has been adopted into Ontario law under subsection 46 (2) of the Children's Law Reform Act, R.S.O, 1990, c. C.12.

40Article 1 sets out the purposes of the Convention as follows:

a. "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b. to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States."

41The Convention's underlying rationale is that disputes over custody of a child should be resolved by the court in the jurisdiction where the child is habitually resident. The question in a Hague Convention proceeding is not which parent should have custody but rather in which jurisdiction should the question of custody be decided. The Convention presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately returning them to the place of their habitual residence where the question of their custody should have been determined before their removal. See Office of the Children's Lawyer v. Balev, 2018 SCC 16 at paragraph 37; V.W. v. D.S., 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108; Ludwig v. Ludwig, 2019 ONCA 680 at paragraphs 19 and 20.

42The test for when the Convention applies is set out in Article 3, which addresses habitual residence and rights of custody.

43Article 3 of the Convention provides that:

"The removal or retention of a child is considered to be 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."

44Article 5 of the Convention defines "rights of custody" as follows:

"For the purposes of this Convention

"rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

"rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

45Although the Convention adopts an original definition of the rights of custody, the question of who holds the "rights relating to the care of the child" and the "right to determine the child's place of residence" within the meaning of the Convention is in principle determined in accordance with the law of the state of the child's habitual residence. See W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108; at paragraphs 22 to 23.

46The onus is on the person applying for the return of the child to establish, on a balance of probabilities that prior to the removal:

a. The state that which he asks the child to be returned is the child's habitual residence;

b. That he had a right of custody and he was exercising that right of custody at the time of the unlawful removal or retention; and

c. That the removal was wrongful and done without his consent or acquiescence.

47Once it has been determined that a removal of a child is "wrongful" within the meaning of the Convention, Article 12 provides that a contracting state shall order the return of a child to the state of his habitual residence if an application for an order of return is made within one year of the removal:

"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 Article 13 Defences

48While the direction for the return of a child under Article 12 is mandatory, it is not automatic. Article 13 sets out certain defences or exceptions to the direction for the mandatory return as follows:

"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

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

49In Thomson v. Thomson (1994), 1994 CanLII 26 (SCC), 6 R.F.L. (4th) 290, one of the leading Canadian cases on the Hague Convention, the Supreme Court of Canada set out the general principles governing its interpretation by Canadian courts. With respect to Article 13(b), Justice Gérard La Forest stated, at pages 596-97 [S.C.R.]:

"It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. . . . In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

. . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words "or otherwise place the child in an intolerable situation"."

50In G.B. v. V.M., 2012 ONCJ 745, Justice Ellen Murray succinctly summarizes the correct legal interpretation under Canadian law of Article 13 of the Convention, at paragraphs 40 to 44 of her decision:

Canadian courts have held that in order to preserve the effectiveness of the Convention, the provisions for exceptions to an order of return should be narrowly construed. As Justice Jacques Chamberland observed in R.F. v. M.G., 2002 CanLII 41087 (Que. C.A.):

"The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also, in my view, a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would compromise its efficacy."

Courts have emphasized that Article 13(b) sets a high standard that must be surmounted if a return order is to be avoided. It is recognized that a return order will often cause a child some distress, and that the upset incidental to any such order cannot automatically meet the required threshold. In Thomson v. Thomson, supra note 3, the Supreme Court of Canada held that "The physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation ... (the harm must be) substantial, and not trivial"…

Courts have made it clear that in assessing what is an "intolerable" situation, that it is important to consider what may be intolerable for "this particular child" who is the subject of the application in her "particular circumstances".

51There is also a presumption that the courts of a 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 at par. 48; Ellis v. Wentzell-Ellis, 2010 ONCA 347 at par. 50; Finizio v. Scoppio-Finizio, 1999 CanLII 1722 (ON CA) at par. 34; Brown v Pulley, supra, per Justice Stanley Sherr, at paragraph 129.

5.1 Domestic Violence

52It is now well-settled law that a child who witnesses or experiences domestic violence by one parent can be at risk of psychological and emotional harm. See the Ontario Court of Appeal's decision in Pollastro v. Pollastro (1999), 43 O.R. (3d) 485; Achakzad v. Zemaryalai, 2010 ONCJ 318, per Justice Ellen B. Murray, paragraphs 13 to 30.

53In Pollastro, the Court of Appeal held that a grave risk of harm to a child's primary caregiver can constitute grave risk of harm to a child in considering the Article 13(b) defence. The court overturned the lower's court's order in which the primary-caregiver mother of a young child had been ordered to return the child to California, despite the father's past assaults on and threats to the mother. Writing for the Court, Justice Rosalie Abella (as she then was) stated the following:

[33] ... it seems to me as a matter of common sense that returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm.

54In determining whether a return would place a child in an intolerable situation, the court held that it is relevant "to take into account the possibility of serious physical or psychological harm coming to the parent on whom the child is totally dependent" (paragraph [34]). The court found that the infant child's "interests are inextricably tied to (the mother's) psychological and physical security," and reversed the return order.

55In considering cases involving domestic violence, courts must be mindful of the presumption that the courts of another Contracting State are equipped to make, and will make, suitable arrangements for the child's welfare, which will implicitly include providing protection for a primary caregiver returning with the child. See: Finizio v. Scoppio-Finizio, supra, paragraph 34.

56The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547, affirmed at Husid v. Daviau, 2012 ONCA 469; Brown v. Pulley, supra at paragraph 163.

57The court should also consider whether undertakings given by the left-behind parent would be effective in remedying the risk of harm, when determining the Article 13(b) exception. See: Cannock v. Fluegel, 2008 ONCA 758.

6. The Evidence

6.1: The Mother's Evidence

58The mother testified with the assistance of a Yoruba (Nigerian) interpreter, however, on one occasion, the interpreter arrived late so the mother testified in English. The mother was able to testify in English but was more comfortable with the assistance of an interpreter.

59The mother gave evidence that she left Michigan with the children for several reasons, including the father's physical, sexual, and verbal abuse of her during the relationship, his physical discipline of the children, his financial control, and her vulnerable immigration status, making her very afraid to report to any authority. The events that led to the separation culminated in August of 2018 when the father threatened to permanently relocate with the children to Burkina Faso, the father's country of origin, without the mother.

60The mother met the father while she was attending school in Michigan. She arrived in the U.S. as a visitor and changed her status to student visa in 2007 when she was granted a study permit. After attending language school to upgrade her English, she attended O[…] Community College and obtained a two-year Liberal Arts and Science diploma followed by a Certificate as a Pharmacy Technician in May of 2011.

61When the mother met the father, she was enrolled in Bachelor of Nursing program at S[…] University while working part-time as a nanny. The mother had been referred to the father by a friend to purchase a used car. The father was well known in the Nigerian and other 'ex pat' communities as someone who can repair and provide reliable used cars at reasonable cost.

62The parties began an intimate relationship in 2013. In 2014, the mother became pregnant. There were complications with her pregnancy, which was high risk. As a result, she was unable to work and eventually had to stop attending school. The father persuaded her to move in with him. In September of 2014, the mother moved into the father's home and gave up her apartment. The parties first child was born in […] of 2014.

63Shortly after the birth of their first child, the mother described a very controlling and abusive environment in which the mother was responsible for virtually all aspects of child care and housework while the father worked long hours, usually in his garage attached to the house, or on the road.

64The father's mother arrived from Burkina Faso after the first baby's birth, allegedly to help the mother. The mother testified that rather than helping, the situation became worse. The father and the paternal grandmother were not supportive of her approach to parenting. The mother described on several occasions that the father refused to let her pick up the baby and comfort him when he cried. The father would lock the baby inside the bedroom and let him cry for hours. The mother was not allowed to enter the room. When the mother attempted to enter the room, the father would push her away, hit and yell at her. The mother described sitting outside the bedroom door crying while listening to her baby cry on the other side.

65The paternal grandmother did not intervene or protect the mother. When the mother continued to attempt to resist this as well as other cultural practices that she disagreed with, the father would become very angry and slap, hit or punch her in the grandmother's presence.

66The mother was also required to cook, clean and do all of the housework and laundry for the father and grandmother while caring for a newborn. She described being treated like "a slave". On one occasion, she was yelled at and hit by the father because she had not ironed his mother's clothes after laundering them.

67When the paternal grandmother returned to Burkina Faso, the situation in the home deteriorated further. After working long hours, the father would come home and demand food and sex. The mother described being slapped and hit and having food thrown in her face if the father did not like her cooking. The mother also described a number of incidents of sexual abuse.

68The mother testified that before she became pregnant with her second child, the father became very angry one day while they were talking. She described the father grabbing her neck, punching her and throwing her on the bed. The mother was very upset and after the father left, she called her cousin in Nigeria and told her what happened. Her cousin (a witness in this trial) then called the father and told him to stop this. It is the mother's evidence that when the father came home from work that evening, he was very angry and said, "Bitch, you want to report me to people" and then tore off her clothes and sexually assaulted her. The mother described the father bruising her legs, holding her neck and forcing himself on her. According to the mother, the father later told her, "that's the punishment you get for telling people."

69The mother testified that her next two pregnancies were the result of forced sexual relations with the father. She describes that while still healing from her first pregnancy, the father forced her to have sex with her against her will. The father would hold her down and hit her when she resisted. The mother became pregnant with her second son while still breastfeeding her first child. The mother obtained an IUD after her third pregnancy.

70The mother described some other incidents of the father's abuse:

b. When she was pregnant with her third child, the father returned home from work on one occasion and the mother had not yet cooked dinner. She testified that she was very tired taking care of two small children while pregnant and having a busy day. She apologised and asked the father to help himself to left-overs in the fridge from the night before. The father became very angry, called her a "bitch" then grabbed her around the neck and pushed her, causing her to land on the bed. She was six months pregnant at the time. The mother and the two younger children were crying and very frightened;

c. Whenever she served the father food, if he did not like it, he would throw it in her face and tell her to "go make another one". The mother descried making breakfast for the father on many occasions that would be thrown back at her and she would just go back to the kitchen and make him another breakfast and serve it to him;

d. The mother testified that the last incident of sexual abuse occurred a few days before she left with the children. She described being in the bedroom folding clothes when the father grabbed her by the hair and dragged her from the bedroom while saying, "Hey bitch come here." He ripped off her clothes and raised up her legs forced himself on her;

e. When she was pregnant with her third child, the mother testified that the father told her to go buy him some beer. The mother refused because she was too tired and heavy in her pregnancy. The mother described being slapped on the cheek and dragged into the living room by her hair braids while being called a "bitch" and a "whore". The two children were very upset, and the older child tried to intervene, but the father kicked him away;

71The mother testified that the children, in particular the two older children were present for the abuse she experienced and the older child in particular witnessed the abuse. The children would cry and become upset. When her older child ran towards her, the father would push him away.

72The mother testified that the children's relationship with the father was not "a pleasant one." Her oldest son was always afraid of him because on multiple occasions the father would yell at him or give him "a knock on the head" as a form of discipline. She testified that the father would often get impatient and become angry. For example, if the older child did not clean up his toys quickly enough, he would get a "knock" on the head. The mother described the older child in particular as being frightened and upset by the father's anger.

73The mother and father would argue over this kind of discipline and the father would tell her to be quiet, that is how he was raised and that their son should not be treated "like a girl." The mother eventually just kept quiet to keep the peace.

74The mother also described the father's financial abuse and control. Although the father was always working and earned a good income, he would not give her money for the children's needs, such as clothing and baby items and he was controlled what she purchased. For example, the did not want her to purchase a crib or double stroller and ordered her to return both. She acknowledged in cross-examination that she was permitted to purchase a bassinette, but she testified that the children would grow out of that quickly.

75The father also became very angry when she brushed the two older children's teeth because he did not want her to do this. He told her that it was his house and she had to follow his rules. The mother testified that she had to "literally hide, wait until the father [was] out of the house" before brushing the children's teeth so she didn't get "caught in the act".

76The mother testified that she wanted to enrol her older son in school and the children in daycare so that she could complete her schooling and get her student visa reinstated. The father refused to allow her to do this and said that he would not help her financially with school or day-care, that this was 'her problem".

77The mother started part-time work at an African hair braiding salon after she had her first child and was pregnant with her second.

78The mother would have to take all three children to the shop with her when she braided. After the birth of her third child, she returned to the hair shop when he was two weeks old. She took breaks to breast-feed the youngest, feed the other two, change diapers and then resume braiding. She would put him on her back and oversaw the other two children while braiding as the father would not agree to put them in school or day-care or to help her financially pay these expenses.

79The mother testified that it was very hard to braid at the shop with all three children with her. She was able to make enough money to pay the household bills that she was responsible for and purchase some clothing and essentials for the children, but it was not enough to pay to go back to school or for day-care. The mother also testified that she had two credit cards that she obtained prior to meeting the father, as well as a loan which she used for school fees, and she used these to help her purchase clothing and other items for the children as the father would not give her money for these expenses.

80In response to the father's allegations that the mother fled the Unites States to avoid her debts, the mother testified that she was managing the debts and making monthly payments towards them without falling into difficulties.

The Mother's Immigration Status in the United States

81The mother testified that she could not report the father's abuse to the police or child protection authorities because she had no immigration status in the United States. She had lost her student visa status in in 2014 when she became pregnant with the first child and had to stop attending school. At the time she arrived in Canada with the children, she had over-stayed her U.S. student visa and was without legal status for approximately four years.

82The mother was very afraid that if she called the police or spoke to child protection or shelter workers, her immigration status would come to their attention, which would lead to her detention and separation from her children. She was very afraid that her children would end up in foster care while she was in detention or with the father who had repeatedly threatened to permanently remove them to Burkina Faso.

83The mother gave evidence of her increased fear of detention and separation from her children under the current U.S. administration. She also explained that if the father did take the children to Burkina Faso she could not leave or re-enter the United States without valid immigration status, nor could she remain in Burkina Faso without status. She was very afraid that the children would be permanently separated from her, based on the father's refusal to sponsor her.

84According to the mother, the father was aware that she had lost her immigration status in 2014 once she stopped attending school. It is not contentious that the parties had a number of discussions about this and about getting married so that the father could sponsor her. It is the mother's evidence that the father promised her that he was going to "file" for her and get her a "green card" (permanent residency in the U.S.) at the time of her first pregnancy. He also promised to marry her and that they had a number of discussions about this.

85The father later told her that although he is a permanent resident, he would not be able to sponsor her until he got his American citizenship. The father advised her that it would delay his citizenship. He explained to her that that they had to wait until then when it would be much faster.

86The mother testified that in 2017, she and the father did go to a marriage office to get a marriage licence, but they were unable to do so because she did not have her birth certificate. The mother arranged for her birth certificate to be mailed to her from Nigeria and provided it to the father. The father then promised her that they were going to get married on […] of that year (2017), which was her birthday.

87However, a few days before her birthday, the father got very angry with her when they had an argument over something. He held her neck and pushed her and threatened that if this happened again, he would beat her and push her out. According to the mother, the father said "thank God" that there won't be any marriage. The father never mentioned marriage again and the mother realized that she could not force him to marry her and that she had to leave.

The Father's Threats to take the Children to Burkina Faso

88The mother testified that an issue that finally pushed her to leave with the children was the father's plan to take the children to Burkina Faso without her.

89The parties argued over the father's desire to move back to Burkina Faso. The mother testified that the father said he was tired of the U.S., he had been living there for sixteen years, he missed his family in Burkina Faso and wanted to live close to his mother and sisters. The father had farm property in Burkina Faso, and he wanted the children to live and work on the farm and eventually become farmers.

90The mother did not want to live in Burkina Faso because she was afraid that the children and she would not be safe. His family, including his mother, were not supportive of her. Based on the way that the father treated her in the United States, the mother testified that she was very afraid that she was going to suffer a great deal more in Burkina Faso, also without legal status.

91The mother was also afraid that the children would stop going to school in Burkina Faso and be denied an education. According to the mother, the father did not believe in education and would not enrol the children in school there. The father told her that he wanted the children to work on his farm.

92It is the mother's evidence that shortly before she came to Canada with the children, the parties had an argument over the father's wish to take the children to Burkina Faso in December 2018 without her. He wanted her to jointly apply with him for the children's passports. The mother refused, given her illegal status. She very afraid that the father would take the children to Burkina Faso and she would never see them again.

93According to the mother, the father became very angry and even threatened to poison her. He told her that he was taking the children to Burkina Faso with or without her consent.

The July 2018 Audio Recording

94In July of 2018, the mother made an audio recording of one of the parties' arguments about this issue. She sent a copy of the audio recording to her cousin in Nigeria, and a friend. She explained that she did this because she was very afraid that no one would believe her. She testified that the father "poses himself as a gentleman to people" and she was concerned that people may not believe what was happening in the home. She testified that she had to record "for proof in the future."

95The audio recording was entered on consent of both parties. It is approximately 29 minutes in length (including approximately six minutes of silence). A transcript of the audio recoding was obtained however, there are many "indiscernible" portions as the father is yelling and talking over the mother. As well, both counsel agreed that some of the transcription was inaccurate and contained some errors. The court listened to the audio recording again to correct any errors in the transcript.

96The court is very mindful that this was a surreptitious recording by the mother, that it was not clear what had occurred or what was said immediately prior to the recording, or whether the mother had recorded the parties' entire conversation. However, father's counsel consented to the recording being entered as evidence.

97In the recording, the father can be heard yelling and swearing at the mother and threatening her. He appears to be very angry that the mother is refusing to sign the children's passport application so that he can take them to Burkina Faso. At least one child can be heard in the background. It is not disputed that all of the children were home at the time.

98The father can be heard ordering the mother to come with him to the passport office on Monday to get the children's passports. The father tells the mother that if she does not come with him on Monday, then she must pack up all her stuff and leave without the children. The father is repeatedly heard saying to the mother that he has the right to "put [her] out", that he will serve her with an eviction notice and that she "better fucking move".

99The mother is heard stating repeatedly that she will not leave without her children. The father's response is that the mother can go to court after she leaves to try to get custody. He tells her a number of times that the children are not leaving with her and neither she nor he can take the children out of their home. He repeatedly tells her that she is "out of here" and that she will need a court order to get her children. At one point he tells her to "Go get a court order and come and get your kids."

100The father also tells the mother that if she refuses to leave, then she will owe him rent and she must pay half of the housing expenses. The father is heard saying, "'You have to pay to be here. You want to live here? You gonna pay to be here."

101The recording also confirms that the father wants to travel to Burkina Faso with the older children and that he is going to Burkina Faso without her: "this Christmas -me and these boys" "These two boys, we fly to Burkina Faso." The father also tells the mother that "when [he is] ready to send these kids to Africa [he will] send them" and that "with or without [her], they are going anywhere he tells them to go…." He is heard saying, "These kids-whatever I want them to do in this life, they're gonna do that. You or anybody in this life cannot stop that. Be sure of that. Okay? But right now? I don't need your permission to take them to visit. I don't need your permission at all." The father later tells the mother that, "when it's time, they're gonna go. They're going to go to school in Burkina Faso and they're gonna grow up in Burkina Faso."

102In the recording the father is heard saying that he is "the last person on earth that [the mother] want to fight with" and that she does not want [him] as [her] enemy." He tells her to "declare that war with me. Go ahead. Go ahead…..You don't fucking, you don't want to have me as enemy in your life."

The Mother and Children's Arrival in Canada

103The mother left with the children shortly after this recording was made. The mother made a refugee claim as soon as she and the children arrived in Canada. Her status in Canada is as a refugee claimant.

104The mother called the father two days after they arrived and told him that they were in Canada. The father asked to speak to the oldest son. The mother testified that she gave the phone to her oldest son, but he was not ready to talk to his father.

105The mother testified that she kept in regular contact with the father and sent him pictures and updates of the children over WhatsApp. The father also spoke to the children or sent pictures or videos of himself over WhatsApp. She also told the father that she had made a refugee claim. The mother kept the father apprised of medical and school appointments, school field trips, and other events and sent him several photos of the children.

106Some of the photos and exchanges between the parties were entered into evidence. These exchanges took place between August and December of 2018.

107The mother also admitted that she had "phone sex" during video calls with the father after arriving in Canada. These sexual exchanges occurred in September and October of 2018, before the father commenced his Hague Application. The father kept "screen captures" of the intimate images of the mother and provided them to his lawyer. Rather than introduce these embarrassing images at trial, in response to a Request to Admit, the mother agreed to the following:

1. In September of 2018, on at least one video call, the mother initiated a sexual conversation with the father and took of her clothes for the father to see;

2. In October of 2018, on at least one video call, the mother initiated a sexual conversation with the father and took off her clothes for the father to see.

108The mother testified during the hearing that she felt forced to have these sexual exchanges with the father because he threatened that if she did not do this, he would make sure that she would go to jail for taking the children. She testified that it was possible that she initiated the sexual conversation because the father was always threatening her that he would make sure that she was "cooked", that she should just withdraw her refugee claim and "take a plane back to Nigeria". The father told her that he could take the children, "as justice will catch up with you". He would send the youngest (the baby) to Burkina Faso and that she should not worry about the other two children.

109The mother testified that at the time, she was "really scared. I had not spoken to a lawyer at that time. So, I thought, I thought if I had that with him maybe that will calm him down and he'll stop harassing and threatening me."

6.2 The Mother's Relatives in Nigeria

Ms D. O.

110D. O. ("D.") is the mother's first cousin. S. O. ("the Aunt") is the mother's aunt by marriage (and the mother of D.). Aunt S. is married to the mother's maternal uncle. They both live in Lagos, Nigeria but regularly communicated with the mother over 'WhatsApp' and video calls when she and the children were living in Michigan with the father. They also visited the mother and father in Michigan: D. on one occasion; S. on three occasions.

111Both witnesses testified from Nigeria through the court's live secure video conferencing system. S. testified with the assistance of a Yoruba interpreter in the courtroom.

112D. O. is 32 years old. She previously lived in Toronto before returning to Lagos. D. testified that she and the mother are very close, like sisters. They have known each other since childhood. When the mother and children were living in Michigan with the father, they would speak approximately twice a month through WhatsApp or video calls. She visited the mother and father in Michigan on one occasion in August of 2016 for a period of three days.

113D. testified that when she visited the mother in August of 2016, she did not observe anything unusual and that the mother and father seemed like a "pretty normal couple." She observed that the mother looked tired and that she was "always doing something", constantly taking care of the children, cleaning up, and doing all of the laundry, cooking and child care. The father worked outside of the home and he would be in the garage fixing cars from early morning until evening. He would return home before dinner.

114D. testified that she did not see the father interact too much with the children. The mother would get dinner ready for him, feed him and the children, bathe the children, put them to bed and get them to sleep. The father did not offer any assistance. She did observe the father yelling at the older child to go to bed. She also noticed that when the father wanted his dinner, the mother would drop whatever she's doing to make him dinner.

115At that time, the parties only had two children. During the day, the mother would have the second son tied on her back, Nigerian style, as he was still quite young, while she played with the older son and did housework.

116While in Nigeria, D. confirmed that the mother would call her approximately twice each month and discuss issues that she was having with the father. The mother would tell her about things that had transpired between her and the father, including incidents of the father's physical and sexual abuse of her, as well as inappropriately disciplining the children by "knocking" them on the head.

117D. testified that on one occasion after the mother told her that the father had hit her, she immediately called the father to discuss this and find out what happened. She told the father that there was no excuse to "put his hands on the [mother]". According to D., the father did not deny what had happened, but he did not apologize or seem apologetic.

118D. also testified that the father would not let the mother do certain things with the children, for example, feeding them certain foods or brushing their teeth. She recalls going to the grocery store with the mother in 2016 and the mother would not buy solids or cereal for the older child or formula for the middle child because the father would not allow this, according to what the mother told her.

119When describing the physical and sexual abuse, D. testified that after she returned to Nigeria, the mother told her on one occasion that the father wanted to have sex with the mother, and she did not want to. The father "forcefully grabbed her to the bed and literally spread apart her legs." When D. asked the mother why she had not told her this before, the mother said she was very embarrassed to talk about it.

120D. testified that the mother told her that the father would "slap" her on a number of occasions, "here and there". On one occasion, she described the mother calling her and saying, "You need to see my body. This is bad." On another occasion, D. testified that the mother called S. and her and they put the mother on speaker phone. The mother was pregnant with her third child at the time. The mother was very upset and crying. She told them both that told the father had grabbed her by the neck, pushed her from the living room into the bedroom and threw her onto the bed.

121The mother also told her that the father would yell at the children and call them names and would "knock" them on the head, using his knuckles.

122D. testified that a serious issue between the parties was the father's desire to go back to Burkina Faso with the children. She stated that the father had actually raised this with her when she was visiting in 2016 and told her that she needed "to tell your cousin that we should go back there".

123The mother told her that she was very afraid to move there with her children because of her fear the father and his family would treat her and the children very badly and she in particular would be very unsafe there. She was also concerned that the children would not have an education in Burkina Faso.

124On one occasion the mother called her because she was very afraid and upset that the father would be able to apply for a passport for the children without her consent and then take them to Burkina Faso where she would never see them again. She was afraid that she could not to do anything about this. During this conversation, D. tried to help her by "googling" whether the father could get passports for the children without the mother's consent.

125In cross-examination, when asked, D. testified that she did not advise the mother to call the police or child protection services because she did not have legal status in America. She explained that they discussed this issue and if the mother called the police and told them that her boyfriend was abusive, then they may take her children away and put them in foster care and she might get reported to immigration.

126She also confirmed that the mother had sent her recordings of the parties' arguments and fights about this issue. She could hear the father "yelling at the top of his voice" in some of these recordings and the children in background, "sometimes crying", "sometimes just doing their own thing".

S. O.

127S.O.'s testimony ("the Aunt") was consistent with the testimony of D.O. Her testimony through the Yoruba interpreter was sometime difficult to understand. She spoke to the mother more often than D. and testified that they usually spoke over WhatsApp approximately three or four times per week.

128The Aunt testified that the mother told her everything that she was going through and that they would often cry together when she called. They talked when the father was not at home and the mother described to her the father's physical and sexual abuse of her and his treatment of the children, his yelling, slapping, physical and sexual abuse.

129The Aunt also visited the mother and father on approximately three occasions in 2015, 2016 and 2017. She also described a home environment in which the mother was the primary caregiver who did all of the child care, housework and cooking while the father worked outside the home. He would not help the mother when he was home.

130The Aunt described the father as being a harsh disciplinarian with the children who would yell at them and "knock them on the head". When she visited in 2016, she observed the father "knocking" one of the children on his head when he did not pick up his toys. The child ran to her and was crying, and she comforted him. She observed the father to talk over the mother and that he did not like the mother talking.

131The Aunt also observed during her last visit in 2017 that the mother would hide canned food and baby food when she was visiting. When asked why she was doing this, the mother told her that the father did not want her to feed the children canned food or baby food and would slap her if he caught her doing this.

132When she returned to Nigeria, she and the mother would speak often when the father was not at home. The mother disclosed an environment where the father was often yelling and slapping her. They often cried together during the calls.

133The Aunt also confirmed the occasion when the mother called her very upset after the father had grabbed her by the neck and pushed her onto the bed while she was pregnant with her third child. After that phone call, the Aunt called the father and tried to talk to the father about this and how dangerous this was for the baby and the mother. She described the father as yelling at her and being "very angry" and telling her that "[he] would do it again" when she tried to talk to him about this incident. They have not spoken since that time.

134The mother and Aunt also talked about the father's desire to return to Burkina Faso with the children. She described the mother as being very upset about this and fearful for her life. According to the Aunt the mother was very afraid that the father might end up killing her if she followed him to his home country, as even in the United States, she is being beaten. She was very afraid that she would end up dying.

135In cross-examination, when asked if she was the one who advised the mother to go to Canada, the Aunt testified that when she first visited the parties in 2015, she had discussed this issue with the father because the mother did not have status and she thought that maybe they could come to Canada. The mother had advised her that the father could not help her because he had a problem with his documents. They discussed it and then "buried it". However, when the abuse started, and the father was forcing her to have sex and abusing the children, the Aunt talked to her about coming to Canada.

136When asked to elaborate in re-examination, the Aunt testified that she was advised by the mother that the father wanted to marry her and then changed his mind because it would delay his citizenship.

6.3 The Evidence of Dr. Judith Pilowsky

The Voir Dire

137Counsel for the mother attempted to introduce a psychological report by Dr. Judith Pilowsky, dated March 14, 2019, as evidence in this hearing by attaching her report as an exhibit to an affidavit. The report contained a clinical diagnosis and opinion regarding the mother and the issues in this hearing. No curriculum vitae was attached.

138The father objected given the obvious inadmissibility issues. The report was unsworn evidence and contained opinion, which is inadmissible hearsay unless the writer is properly qualified as an expert to give opinion evidence and available for examination. The report had been prepared for the mother's refugee hearing.

139Dr. Pilowsky was therefore called as a witness for the mother on June 13, 2019. The mother wished to tender her as an expert witness. Dr. Pilowsky's curriculum vitae was provided as well as a signed Form 20.1 Acknowledgement of Expert's Duty, in accordance with the Family Law Rules, both of which were filed as exhibits in this hearing.

140A voir dire was conducted. Dr. Pilowsky is a registered psychologist and a member of the College of Psychologists of Ontario ("the College"). She obtained her certificate of registration from the College in 1994. She obtained a Ph.D. in Applied Psychology from OISE, University of Toronto, in 1992. She practices clinical, counselling and rehabilitation psychology through Pilowsky Psychology Professional Corporation, of which she is the sole owner. She has been in private practice since 1994.

141According to her curriculum vitae, Dr. Pilowsky conducts assessments and psychotherapy and her areas of focus are "Trauma: related to work, illness/disability, torture, depression, post-traumatic stress disorder, anxiety, phobias, stress, chronic pain."

142Dr. Pilowsky testified that she has been qualified as an expert witness in the area of clinical psychology and rehabilitation psychology and that she has vast experience in assessing and treating individuals who have been traumatized or who suffer from major disorders such as post-traumatic stress disorder (PTSD), including victims of domestic violence. She has focused on the area of trauma throughout her career.

143Under cross-examination, Dr. Pilowsky testified that she had not been qualified as an expert in family court, nor in a Hague Convention case, but she believed, although was not certain, that she had been qualified as an expert in intimate partner violence in a criminal court approximately four years ago. However, when questioned, it did not appear that she actually testified.

144Dr. Pilowsky's last publication regarding the issue of domestic violence was in 1992. However, she testified that she has worked extensively in treating and assessing individuals affected by violence, including domestic violence. She testified that approximately thirty percent of her trauma assessments are for legal or court purposes.

145After the completion of examination and cross-examination in the voir dire, when asked by the court whether she was a registered member of the College Psychologists of Ontario in good standing, Dr. Pilowsky testified that she had a complaint about four years ago and that the matter was resolved. The complaint was brought by an insurance company because she "had signed a form requesting an assessment of an individual that [she] know[s]." Dr. Pilowsky testified that she had signed the form and referred the individual to a consulting psychologist who put the report on the letterhead of her company. One of the issues was that if you are a registered psychologist, "the finding is yours."

146Dr. Pilowsky testified that she went to the hearing the previous month (May 2019) and that they suggested that "this is an issue of education, not punishment." She testified that the outcome of the hearing was a 'reprimand' and that she has to go to a course, which she has already attended, and that this outcome was going to be ratified in July 2019 after she has completed her course.

147Following the voir dire and after hearing submissions from counsel, Dr. Pilowsky was qualified as an expert to give opinion evidence in the areas of clinical psychology, and the assessment and treatment of post-traumatic stress disorder and trauma.

148I declined to qualify Dr. Pilowsky as an expert in domestic violence or the 'battered woman syndrome'. The court also reserved its ruling on the ultimate reliability of any opinion evidence given by Dr. Pilowsky after hearing all of the evidence at trial.

Dr. Pilowsky's Evidence

149Dr. Pilowsky's conducted a psychological assessment of the mother for the purpose of her refugee application to Canada. She completed her assessment on March 14, 2019. Her assessment report was admitted as evidence in this hearing subject to examination.

150Dr. Pilowsky's assessment involved a clinical interview and assessment of the mother that took place over a period of 3.5 hours in the English language. She did not use an interpreter. In preparing for the assessment, Dr. Pilowsky reviewed the mother's refugee claim documents, family court documents, Flint Township Police reports filed by the father after the mother left with the children, and the private investigator's report obtained by the father verifying the mother's location in Ontario. Dr. Pilowsky also administered the Beck Depression Inventory, the Beck Anxiety Inventory and the PTSD Checklist for DSM-5 (PCL-5). Dr. Pilowsky testified that she was aware that the mother was accused by the father of kidnapping their children and bringing them to Canada.

151Dr. Pilowsky testified that the mother disclosed a very physically and sexually abusive relationship and that she lived in fear. The fear was so pronounced that the mother seemed convinced that the father was going to poison her as apparently, he had said so. The mother was in a state of anxiety and almost panic sometimes, to the point that she would be afraid of drinking or eating certain things, wondering if she was going to be poisoned. She was terrified that her children would be taken to Africa and that she would never see them again.

152It was Dr. Pilowsky's opinion, based on her assessment findings and diagnostic criteria, that the mother's diagnosis was Post-Traumatic Stress Disorder with depressive symptoms as a result of being exposed to actual domestic violence. According to Dr. Pilowsky's Report:

"Ms A.'s assessment revealed that she was unfortunately involved in a very abusive relationship in the US, such that she came to fear for her life and that of her children's. As time passed on, she feared that her partner would continue to abuse her and ultimately kill her or take their children to Africa [Burkina Faso] where they would be exposed to poverty, lack of education, neglect, and abuse…

For Ms A., her decision to flee to Canada with her children stemmed from years of abuse, which left her traumatized, helpless and afraid. There is no doubt that she considered her life and that of her children's to be at risk; thus, rather than remain in dangerous living conditions, she decided to escape to provide her children with the stability and security that had eluded them in the US…It should be noted that this woman left in a situation in which she was always afraid of being hurt and the struggle to protect herself and stay alive became psychologically exhausting."

153Dr. Pilowsky concluded the following in her Report:

"Although Ms A. continues to require counselling services in support of her psychological recovery, it is my professional opinion that allowing her to remain in Canada with her children is vital to her ability to heal. I strongly submit that her decision to seek refugee status in Canada is indicative of her fear, despair, and overall helplessness. As well, her actions speak to her courage and overall resilience, since her move to Canada was also precipitated by her longing to raise her children in a family home that is free of abuse, violence and danger."

154In cross-examination, Dr. Pilowsky testified that avoidance of thinking about a traumatic event or being placed in a situation of repeating a traumatic event such as sexual assault is consistent with a symptom of PTSD and applicable to the mother, based on her assessment. However, she did not know that the mother had some sexual contact with the father after coming to Canada.

155Dr. Pilowsky explained that the psychometric testing conducted was based on three sets of questionnaires that the mother fills out on her own, unsupervised. They are self-administered tests, so they are not tested for validity or have "validity scales". Dr. Pilowsky could not remember whether the mother completed the questionnaires before or after the clinical interview. She was not present when the mother completed the questionnaires, nor did she give any evidence regarding how long it took for the mother to complete them.

156Dr. Pilowsky could not explain some inconsistencies in the mother's answers in completing the three different inventories, which were each comprised of 21 multiple choice questions.

157When asked if she kept the notes of her clinical interview with the mother, Dr. Pilowsky explained that she types her notes on a computer while conducting the interview and then transforms the notes into her report after the interview. The typed notes become the basis for her report.

158Dr. Pilowsky acknowledged that her assessment was based almost entirely on the mother's self-reporting, but it was her impression that the mother was being honest in discussing her symptoms and that she was able to make detailed disclosures. When asked if she was aware if her expert testimony had ever been rejected by a court or a tribunal because she relied entirely on an individual's own narrative, Dr. Pilowsky testified that it was her understanding that there had been incidents in which she had not been given sufficient information or documentation before formulating her opinion.

Postscript

159Following the completion of Dr. Pilowsky's testimony on June 13, 2019, counsel for the father obtained a copy of the Decision of the Discipline Committee of the College with respect to Dr. Pilowsky, dated July 15, 2019. It was admitted on consent at the next hearing date.

160The Decision sets out an Agreed Statement of Facts submitted into evidence at the Discipline hearing. Based on an Agreed Statement of Facts and Dr. Pilowsky's admission of professional misconduct, the Discipline Panel found her guilty of failing to maintain the standards of her profession and of practicing the profession while in a conflict of interest, contrary to professional standards. In addition to receiving a reprimand, she was suspended from the College for a period of one month on conditions that she attend and successfully complete two courses and provide the results to the Registrar. This penalty was based on a joint submission of counsel for the parties.

6.4 The Evidence of the Father

161The father categorically denies that he ever abused the mother physically, sexually or emotionally. He also denies ever yelling or hitting the children or yelling at the mother. He denies all acts of violence. He states that the children have never been abused, neither by the mother or by him and that he and the mother had a peaceful life together. The father testified that at some point, he asked the mother to leave, as the audio recording indicates, but he never abused, threatened or controlled her.

162The father described himself as a loving and caring husband and father. He acknowledges that the mother was the primary caregiver to the children and that she was a good mother. He describes himself as the "breadwinner" of the family while the mother cared for the children at home, but that he helped with the children and that he was involved as much as he could when he finished work.

163The father arrived in the United States in 2001 on a visitor's visa. He states that he was a school teacher in Burkina Faso. The father worked at various positions in New York before obtaining his social security number in 2003 with the assistance of one of his employers. He obtained stable employment in the restaurant and deli business and then moved to Flint Michigan in 2005 where be became involved in the automotive business. He trained as a mechanic and started buying, fixing and selling used cars for the African newcomer community in Flint. He became well known in the community. The father confirmed that this is how he met the mother, who was referred to him to buy a used car.

164At the time the parties met, the father was married to a woman named J. who had sponsored him to become a permanent resident. They were married in 2011. The father explained that this relationship ended in 2012 because J. had a serious drinking problem and abused drugs. The mother and father started dating at the end of the father's relationship with J. The father obtained his permanent residency in May of 2013.

165The father testified that the police were involved at the end of his relationship with his ex-wife because after she moved out, she tried to get back into his house with her boyfriend and "broke every door in the house." When the father arrived home, she called the police. This incident occurred on December 27, 2012. A police report was filed by the father as evidence in this trial. No charges were laid against the father or his former wife.

166Prior to his marriage with J., the father was involved with a woman named R.C., whom he met in New York. They moved to Flint together and then separated in 2006 when R. moved out. The father testified that sometime in 2017 or 2018 he became aware that R. had obtained a "Police Protection Order" ("P.P.O.") against him, apparently after she left in 2007. He testified that he had no contact with R. after she left, and now understands that she lives in Florida.

167The father did not find out that R. had "put a P.P.O on [him]" until he was returning to the U.S. border after picking up the mother's aunt from Canada for a visit, some time in 2017. He was temporarily detained while this was investigated and advised of the P.P.O. The father testified that he had no idea why R. obtained the P.P.O against him and that he was completely unaware of it until that time.

168The father described a loving and happy home life with the mother until just before the mother left with the children. He provided a very large number of photos to demonstrate this, all entered as evidence in this trial, mostly taken by him. The father testified that the photos show how happy the mother and children were until right up before they left in August of 2018.

169It is the father's evidence that while the parties were living together, he was in the process of obtaining his American citizenship, which he subsequently obtained on August 12, 2019, according to the Certificate of Citizenship filed in this hearing.

170According to the father, the mother had a valid U.S. student visa while they were living together, and that she had never lost her status. However, they planned that he would "petition for her to become a legal resident" once he became a citizen. He did not believe that her status in the United States was illegal and believed that she could re-enter.

The Father's Desire to Re-locate to Burkina Faso

171The father acknowledged that he wanted to relocate to Burkina Faso with the mother and the children. While the parties were still dating, the father visited Burkina Faso for approximately two months and returned to the U.S. in February of 2013. He saw a "different Burkina Faso" with many opportunities for lucrative work. He states that he was offered a position to run a company that makes piping for a gold mining company, with a starting salary at $65 to $70K in US dollars. He testified that while he was there, he was able to purchase a property, build and open storefronts in two months.

172When he returned to the U.S., the father told the mother about the opportunities there and suggested that they visit one day to see if it's feasible to move there. At the time, they were still dating and had no children. After the parties started living together and had children, the father testified that by the end of 2017, he asked the mother several times, when she becomes "legal", to "consider" taking the trip with him to Burkina Faso, "now that we have three children and it's only me working." He testified that his brother's wife was the hiring manager for one of the biggest mining companies there and would offer the mother a job starting at $50K to 60K US dollars a year.

173According to the father, "that was the plan I was hammering all the time." The mother never said yes. She always answered "hmm" anytime he brought up the subject. She left without giving the father a "clear answer".

174The father acknowledged that the mother was reticent about the schooling system there for the children. He testified that he called the U.S embassy in Burkina Faso and was advised that the children could attend an international African school for diplomats' children, which was the only school that the children could attend. He inquired about getting assistance to pay for the tuition.

175When asked by his counsel, the father testified that if the mother remained opposed to the plan, then he was going to marry the mother and "at least file the papers" for her so that she could stay in the U.S. and work, presumably while he went to Burkina Faso with the children.

176The father testified that the pressure to "marry, marry, marry" from the mother was so high that he even took the mother to the court house, even though that "would hurt his immigration application."

177According to the father, he went to obtain a marriage license at least twice, but he went to the wrong county office in Michigan. He produced a "Marriage Application Worksheet' in support of this evidence. The father states that he filled this out around the end of July, beginning of August of 2018, before the mother left.

178The father further testified that they could not get a marriage license because the mother did not have her original Nigerian birth certificate, which was in Nigeria. The mother then asked her father in Nigeria to send her the original birth certificate, but according the father, "I never saw her birth certificate, so we never went back to fill out the application and she left."

179On the last day of the trial, unprompted and apparently without his counsel's knowledge, in response to a question of clarification from the court, the father testified that the mother fled Canada because she was potentially facing criminal prosecution for fraud and debt evasion and that there were many collection agencies chasing her. The father testified that the mother had given her "legal identity" to a friend that was illegal so that she could work for Amazon, which could send the mother to prison. Neither of these alleged facts were raised in the father's pleadings or during his evidence in chief, nor was the mother cross-examined on these issues following her evidence in chief. It was necessary to call the mother in reply to respond to these allegations.

180The father testified that after the mother left, it took him "months and months" to ask himself what he did or say that was wrong. He testified that this hearing has finally given him the answers that there is nothing he could have said or done for her not to leave with the children because "the Canada call was so strong." According to the father, the mother's Aunt S., who testified in this hearing, was the person that persuaded the mother to move to Canada because the mother could get free housing and benefits here.

181The father ended his testimony with a very long speech. He testified that part of why he is here testifying is not to "seek revenge" or to "punish" the mother, but because he does not want the children to grow up one day and look at their father and say, "you are an abuser" and think that they are a "product of rape". He testified that he doesn't "mind her getting a green card, even a passport from Canada, but not like that. Not like making me a villain."

6.5 Michigan Law regarding Custody Rights

182The mother brought a motion at the outset of the hearing seeking to withdraw earlier admissions of fact that she had made in a Request to Admit. Specifically, she sought to withdraw her admission, through counsel, that the father was exercising custody rights at the time of the children's removal from Michigan.

183In support of this motion, counsel for the mother introduced an excerpt from the Michigan Compiled Laws, Chapter 722, 722.1006 as well as an Affidavit of Parentage signed by both parents after the birth of their first child. She also produced an excerpt of what appeared to be an opinion from the Attorney General of the State of Michigan entitled, "Effect of a properly signed acknowledgement of parentage on custody of a minor child."

184Following a contested motion regarding whether the mother was permitted to withdraw her earlier admissions, I made the following order, for oral reasons given:

1. The Respondent mother is entitled to withdraw two admissions of fact made pursuant to a Request to Admit, namely paragraph 10 and 14, which deal with whether the father was exercising custodial rights at the time of the children's removal from Michigan.

2. The Central Authority for the State of Michigan or the United States shall provide a letter to this court or to the Central Authority of Ontario setting out the relevant law in the state of Michigan, with copies attached.

3. A copy of this Endorsement shall be served on Mr. Shane Foulds, Counsel for the Central Authority of Ontario.

185Following my ruling and endorsement, Mr. Shane Foulds, counsel for the Central Authority of Ontario, provided the court and counsel with a letter including information from a Michigan lawyer referred to by the U.S. Central Authority regarding the relevant law in Michigan, references and links to the relevant Michigan statutes, and a legal opinion by Mike Cox, Michigan Attorney General entitled, 'Effect of a properly signed acknowledgement of parentage on custody of the minor child."

186The letter and legal information provided by the Central Authority for Ontario and counsel in Michigan was accepted on consent as evidence in this hearing and will be reviewed later in my analysis.

6.6 The Court Appointed Immigration Expert

187After hearing four days of evidence, a significant issue that emerged was the uncertainty surrounding the mother's immigration status in the United States and the impact, if any, on the mother's Article 13(b) defence.

188The court had been told conflicting information about the mother's immigration status in the United States by the mother and the father, such as:

1. The mother currently has no legal status in the United States, and she would be barred from re-entering the United States; [mother's evidence]

2. The mother does have legal immigration status in the United States and that her student visa is still valid, and that she could return to the United States; [father's evidence]

3. The mother could re-activate her student visa or visitor visa in the United States; [father's evidence]

4. The father was not able to sponsor the mother even though he was a permanent resident of the United States at the time and they were cohabiting together with three children, who were all born in the United States. [father's evidence]

189Expert evidence on the issue of the mother's immigration status in the United States was needed in order to properly adjudicate the issues in this hearing. No expert evidence had been provided by the parties. Neither of the parent's counsel have expertise in U.S. immigration law, nor does the mother's immigration lawyer in Canada.

190In accordance with Rule 20.1 (3) of the Family Law Rules, O. Reg. 114/99, "the court may, on motion or its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case."

191Rule 20.1 (6) provides that "the court will require the parties to pay the fees and expenses of an expert appointed under subrule (3) and shall specify the proportions or amounts of fees and expenses that each party is required to pay."

192With counsel's permission, the court requested that Mr. Lorne Waldman, a leading immigration lawyer and specialist in Canada, who had no involvement or interest in this case, to provide the names of three immigration law experts in the United States. I directed counsel to contact and choose one of the three proposed experts to provide a written legal opinion to the Court regarding the issues raised above.

193As the mother was legally aided in this case, the court further direct Legal Aid Ontario to pay the costs of any expert opinion prepared as a disbursement in this Hague application and that the cost should be shared equally by the parties if they were both legally aided. A copy of the court's endorsement was served on Legal Aid Ontario to provide the agency an opportunity to make submissions on this direction.

194Counsel agreed to retain Mr. Stuart G. Friedman, an immigration lawyer practicing in Michigan. Mr. Friedman is a Michigan lawyer in good standing who specializes in U.S. immigration law, including immigration appeals, removability and admissibility. Counsel provided the court with a copy of Mr. Friedman's curriculum vitae and qualifications.

195I was advised by counsel that Legal Aid Ontario was agreeable to pay for Mr. Friedman's time at the legal aid tariff rate as a standard disbursement. Accordingly, Mr. Friedman was appointed as an independent expert of the court in accordance with Rule 20.1(3) of the Family Law Rules. Counsel was directed to provide all relevant information to Mr. Friedman and to have the mother available to answer any questions if necessary. The court made the following endorsement pursuant to Rule 20.1 (5):

1. Mr. Friedman shall be advised by counsel that he is being appointed as an independent expert of the court pursuant to the Family Law Rules and paid as a disbursement at Legal Aid rates. He is not either counsel's expert.

2. The Court is requesting that Mr. Friedman address the following issues:

a. The mother's current legal status in the United States;

b. Whether the mother will be barred from re-entering the United States;

c. Whether the mother's student visa in the United States is still valid, and whether she could return to the United States;

d. Whether the father could have sponsored the mother as permanent resident of the U.S. (a Green Card holder).

196The court further directed that Mr. Friedman was not required to attend for examination but would be permitted to testify by video through the court's secure live video system for out of country witnesses and arranged through the trial coordinator.

197Mr. Friedman's Curriculum Vitae and Expert Report, dated August 24, 2019, were entered on consent as exhibits in this hearing. Mr. Friedman testified by video link and was examined by both counsel.

198Following a voir dire, Mr. Friedman was qualified as an expert in U.S. immigration law and permitted to provide opinion evidence in answering the questions posed by the court above regarding the mother's U.S. immigration status.

199In order to answer the questions posed, Mr. Friedman was provide with an affidavit of documents from the mother containing her U.S. immigration documents, her educational documents from the U.S. educational institutions that she had attended, and a copy of her application for refugee protection in Canada, which Mr. Friedman relied upon to determine the mother's approximate date of entry and place of entry into Canada.

200Mr. Friedman provided the following responses to the questions posed by the court:

1. The mother has no legal status in the United States as she has overstayed her prior visa. The mother was out of status after the summer of 2014. However, she would not be banned from re-entering because even though she had no legal status since the summer of 2014, she did not begin "accruing unlawful presence" in the U.S. until August 9, 2018. "Unlawful presence" is required to trigger sanctions or bans to re-entry. Prior to August 9, 2018, there were no sanctions for a F-1 Student Visa recipient overstay. After August 9, 2018, the U.S. government introduced a policy in which overstays of student visas of over one year would trigger a ten-year bar to re-entry to the United States. Given that the mother left the United States on August 22, 2018, thirteen days after this new U.S. government policy was implemented, it was Mr. Friedman's opinion that the mother's overstay of her student visa is "counter-intuitively only thirteen days and would trigger no mandatory sanctions" banning re-entry.

2. Although it was Mr. Friedman's opinion that the mother is not considered inadmissible or "banned" from re-entry to the United States, in fact, she has no valid visa to enter the United States.

3. The mother may be eligible to enter the United States as a temporary visitor on a B-1/B-2 visa, on a new US student visa, or on a U-1 visa as a victim of domestic violence.

4. Mr. Friedman described the mother's eligibility to obtain these visas as "eligibility in the abstract" and that the mother's chances are not very good. It was Mr. Friedman's opinion that the mother's chance of obtaining a visitor's visa to return to the U.S. "are marginal at best". Her chance of obtaining a new student U.S. visa or a U-1 visa for victims of domestic violence is also not a strong or likely possibility. He did not think it likely that the mother could obtain these visas.

5. The father could not have sponsored the mother to live in the United States because they were not married. The father could only have sponsored the mother if he had married her, regardless of children. Michigan does not recognise "common law" marriages unless the relationship was entered into prior to the state's abolishment of common law marriages or it was entered into in a jurisdiction that does recognize common law marriages, which was not the case here.

6. If the parties had legally married then the father, as a permanent resident, could have sponsored the mother. The sponsorship application could have been made inside the United States and the mother would have been permitted to remain until it was adjudicated. As the spouse of a permanent resident, the mother would have been granted an "F2A" preference and people in this category are not subject to any backlog.

7. Analysis and Application of Law

7.1 Credibility and Reliability Assessment

201As noted by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 at paragraphs 48 and 49 of that decision, "[a]ssessing credibility is not a science" and it is sometimes difficult to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events". See also R. v. Gagnon 2006 SCC 17 at paragraph 20.

202In, statements regarding inconsistencies when determining credibility:

[12]. ..[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies [page 540] may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] ..[a] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31.

203In Baker-Warren v. Denault, [2009] N.S.J. 209 (N.S.S.C.), Justice T.M. Forgeron sets out the following factors that a Court should consider when assessing credibility at paragraph 19 of his decision:

1. What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);

2. Did the witness have an interest in the outcome or was he/she personally connected to either party;

3. Did the witness have a motive to deceive;

4. Did the witness have the ability to observe the factual matters about which he/she testified;

5. Did the witness have a sufficient power of recollection to provide the court with an accurate account;

6. Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354;

7. Was there an internal consistency and logical flow to the evidence;

8. Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

9. Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

204There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. See R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.) at paragraph 93.

205In considering the arguments advanced by the parties, I have applied the civil burden of proof. I have reviewed the totality of the evidence with reference to the internal consistencies and inconsistencies, inconsistencies between the witness testimony and documentary evidence, and the testimony of other witnesses. I have also considered whether the witness testified in a candid and straightforward manner without evasion or exaggeration.

The Father's Credibility

206The court did not find the father credible on the material facts. The father's evidence was inconsistent, contradictory, at times illogical, and contradicted by other evidence, including other witnesses and documentary evidence. The father's evidence changed throughout his testimony. At times, he greatly exaggerated his evidence, he was evasive, and he was prone to long speeches. At other times, it appeared that he was making it up as he was going along, unbeknownst to even his own counsel. He completely denied all of the allegations against him, even in the face of contradictory evidence. The father did not take any responsibility for his actions and blamed the mother entirely.

207Where there is a discrepancy between the father's evidence and the mother's evidence and other witnesses, the court preferred the evidence of the mother.

208Although there were several inconsistencies in the father's evidence, some examples are as follows:

1. The father made a blanket denial of all allegations of abuse. He completely denied ever swearing or cursing at the mother or yelling at her or the children. He denied swearing in front of the children and testified that all of the mother's allegations regarding this was "completely untrue." The father described a "peaceful and loving home" and that they had a "peaceful, peaceful life together". The father's testimony is directly contradicted by the audio recording of the parties in the home in July of 2018. The father can clearly be heard yelling and swearing very loudly. The children can be heard in the background. The father later testified that the two older children were asleep in their rooms and could not hear anything. This is not plausible. The children's bedrooms were on the same floor as the living and kitchen area. The could not have slept through the father's yelling which was very loud and indeed could be heard in the background. The father continued to deny that he yelled and swore in front of the children when confronted with this evidence during cross-examination;

2. The court listened to the audio recording very carefully and more than once. Both parties consented to the audio recording being entered into evidence and that there were no alterations. The father is yelling and swearing; he is very verbally abusive and controlling. He is very angry that the mother is refusing to do what he wants. He is also threatening and states, for example, "When I want to send these kids to Africa, I will, with or without you…I don't need your permission to visit…You don't want to have me as an enemy in your life". He is heard ordering the mother to leave, and to "pack up" and leave without the kids. He tells her that he is serving her with "an eviction notice", that it is "his house", and that he has the "right to kick her out" and "evict" her without the children and that he "does not give a fuck about her". He repeatedly tells her that he can "evict her" and that he is the "last person that you want to fight with." Near the end of the audio tape, the father states, "You and me it's over"…"You want to be here. You have to pay to be here.".

3. This recording does not reflect a "peaceful and loving home" as described by the father.

4. The father testified that notwithstanding this recorded incident, afterwards, the mother organized a big birthday celebration for him on July 7, 2018, in their backyard and that they were happy right up until before the mother left with the children in August of 2018. He testified that approximately 150 of their friends and family came from all over the community and that everyone had a good time. According to the father's testimony, after the audio-taped incident, "we were kind of back to normal, now that we both know where we stand, and we even forgot about that tape, and she threw a party for me, July 7 th , we were just back to normal."

5. Later on in his testimony on the same day, when asked if he told the mother to go to court in the audio recording, the father then testified, apparently forgetting his earlier testimony, "That recording, I'm glad that we have that recording..it was getting too much pressure, too much tension among us. Like I said, I knew it was probably the end of us….I knew we wouldn't make it any further…I thought it was the best choice to go to court." This directly contradicted his testimony earlier that morning that they forgot about the tape and "everything was back to normal' and they were happy.

6. The father introduced a series of photos that he testified depicted the birthday party in the backyard on July 7, 2018 to support his testimony that he and the mother was happy up until right before she left with the children. The mother testified that the photos produced depict an event that actually occurred in July of 2017, a year earlier and it was not a birthday party that she planned for him just before leaving with the children. This is supported by the fact that in the photos entered by the father, the parties are only posing with their two older children, as the third child had not yet been born (he was born in […] of 2018).

7. The father's evidence that "[the mother] left with the children to go to Canada because she believed if she moved to Canada she would be provided free housing and monthly social assistance payments" made no sense. It is not disputed that the parties were living in a mortgage-free home owned by the father, with a large backyard. The father had also invested in another property in Flint and had purchased property in Burkina Faso. According to the father, he had provided "a safe and comfortable home for the mother and children." He also had stable employment and a steady income. It defies common sense that the mother would give up a safe and comfortable lifestyle and suddenly flee abruptly with the children to Canada for "monthly social assistance payments".

8. On the last day of the trial, unprompted and apparently without his counsel's knowledge, in response to a question of clarification from the court, the father testified that the mother fled Canada because she was potentially facing criminal prosecution for fraud and debt evasion and that she had been engaging in illicit activities. Neither of these alleged facts were raised in the father's pleadings or during his evidence in chief, nor was the mother cross-examined on these issues following her evidence in chief. It was necessary to call the mother in reply to respond to these very serious allegations. The court found this last-ditch effort by the father to be motivated by an intention to deceive the court.

9. The father's evidence regarding the mother's immigration status was self-serving and strategic and changed several times throughout this hearing, as follows:

a. In his sworn affidavit in support of his application, the father deposes that the mother "was from Nigeria and resided in the United States on a student visa. We had planned that I would petition for her to become a legal resident once I became a citizen…Because [the mother] was in the United States on a student visa, she lost her visa status when she left the United States and would not be allowed to return to the United States." In his Complaint for Custody dated September 19, 2018, filed in the Michigan Court, and entered as an exhibit, the father states: '"The Plaintiff has been informed that because the Defendant left the United States claiming refugee status in Canada and due to her citizen status in the United States, she cannot return to the United States."

b. The father also testified early on in the hearing that when discussing the father's desire to relocate to Burkina Faso with the children, he "asked the [mother] several times, when you become legal will you consider taking the trip with me."

c. Later on, during his cross-examination the father testified that the mother has "never been illegal in the U.S." and that the mother is a legal student "within 50 states"…"It's just that she cannot cross the border." When asked to clarify his position, he told the court that when the mother left the U.S. with the children, she had "legal immigration status…she [was] no different from me or anybody else"

d. The father later testified that this whole case is based on the mother being "a poor immigrant with nobody, no help, and I was abusing of her. Based on the threat of immigration. That's how I understand this whole case. It's never been any threat; it's never been any immigration threat."

e. The father testified that if the mother "had just waited those few months", he would have sponsored her once he got his citizenship. He testified that, now that he is a citizen, "even today, if the mother asked me to marry her, I would marry her and sponsor her." The court did not believe the father.

f. Near the end of his testimony, the court observed the father at one point during a long speech to be looking directly at the mother stating, "Trying to put too much dirt on me here might backfire because if you want legal status and say I raped you, how can I petition for you back in the U.S.?..."

g. The father clearly knew that the mother did not have immigration status after she lost her student visa once she became pregnant and stopped going to school. He also knew that in order to obtain legal status through sponsorship you had to be married to the person. He testified that he got his green card in May of 2013 after marrying his ex-wife. According to the father, "she is the one who applied for me to become a legal resident."

h. The father acknowledged in cross-examination that the question of sponsorship had come up between them more than once and that the "pressure to marry, marry, marry was so high that I even took the mother to the court house even though it would hurt my immigration application." The father then claimed that "several attempts were made" to get married and that the parties completed the marriage license together. When asked to produce the license, the father produced an unsigned, and undated, "Marriage Application Worksheet" partially completed in pencil, only by him. There is no writing or signature from the mother. When later asked why the mother had not signed it, the father then testified that he wanted to do it as a "surprise" for her.

i. When asked why he did not marry the mother after he obtained his divorce from his ex-wife in 2016, the father blamed the mother for this and stated she did not have her original birth certificate from Nigeria and never provided it to him. This directly contradicts the mother's evidence on this issue. The court preferred the mother's evidence.

j. When asked by the court why he did not sponsor the mother as a permanent resident, the father testified that his immigration lawyer advised him that it was better to get his citizenship first before he sponsored the mother and that he could not sponsor her before he became a citizen. This is clearly contradicted by the independent evidence Mr. Friedman, the U.S. immigration expert who testified in this trial. The father had been sponsored himself after marriage and was familiar with the immigration process in the United States. Further there is no back log or delay when a permanent resident sponsors a married spouse according to Mr. Friedman.

10. Regarding his previous relationships before the mother, the father was also quick to blame his ex-wife for the reason for their separation and any conflict between them. He testified that they separated in 2013 because she struggled with drug and alcohol abuse, she was drunk, not coming home and "driving into neighbours' mail boxes". She went into rehab, "had several relapses" and then he just "gave up on her and couldn't take it anymore." However, the father later testified that his ex-wife wanted to move out with her boyfriend. According to the father, "when she wanted to move out, she called and said that she wanted to come by; he told her to wait until he got to the house, but by the time he got there, "her and her boyfriend, they broke every door in the house."

11. According to the police report entered as evidence by the father at trial regarding this incident, the father's ex-wife called the police because the father would not let her in to remove her things from the house and she threatened to "kick the door down and take her stuff". There is no mention of any doors actually broken by the ex-wife or her boyfriend. The father told the police that his "wife moved out with her boyfriend." The father's ex-wife also described the father as "very controlling" to the police officer and that he will not let her into the house when he is not there.

12. When asked in cross-examination about the discrepancy between his evidence and the police report, the father continued to insist that his ex-wife and her boyfriend and now a third person "kicked the first two doors but she couldn't kick the third one, the kitchen one..she broke the first two doors but she couldn't break the third one." There is no mention of any broken doors in the police report and no criminal charges were laid. According to the police report, the father told the police officer, "there was nothing physical and that when he arrived, she came in grabbed a couple of things and then prepared to leave." The father's evidence on this was inconsistent, exaggerated and implausible. It also seems to contradict his earlier testimony that he chose to end the relationship.

13. The father also denied knowing anything about the "Police Protection Order" that a previous girlfriend had obtained against him in 2007. His testified that he really "did not pay any attention to this" when he was detained at the border and questioned about it in 2016 or 2017 and "that he did not know what it was" or make any further inquiries until he was stopped again by the police in 2018 during a traffic stop. He denied any domestic violence between them and testified that he had "no idea why and how she got it and for what reason." This strained credulity.

14. The father had a motive to lie about the sexual and physical abuse that the mother testified about. Based on his long speeches in court, his reputation is very important to him and he vehemently denied all abuse. He testified that he doesn't "mind her getting a green card, even a passport from Canada, but not like that. Not like making me a villain."

15. In his original affidavit in support of his emergency custody application, the father deposed that he "worked from home and was with the children a big portion of the time, even during the day." This was misleading and contradicted his own testimony and other witnesses at the hearing that he worked outside in his mechanic's garage or was on the road buying and selling cars at least 40 hours per week. The mother's aunt and cousin who visited the family and were witnesses in this proceeding testified that they both directly observed that the father left early in the morning and came home late in the evening while at work;

16. The court did not believe the father's denial of threatening and controlling behaviour towards the mother. In an attempt to demonstrate that he was not controlling, the father testified that the mother was the person in charge of the household finances and that she was doing the bookkeeping for his business. He produced a book in which he testified that "all the money I gave her, she wrote in this book and she was using it to take care of the household things." There were only two handwritten pages of entries in the entire book. The notes were written in 2014 and were an accounting of grocery and baby expenses from money received over a twenty-day period. The rest of the book contained entirely blank pages, except for a meal plan the mother had prepared one week.

17. The father denied speaking to the mother's aunt and cousin about his violent and abusive behavior towards to the mother or about his desire to relocate to Burkina Faso. He testified that the statements made by both of these witnesses were untrue. The court did not believe him and preferred the evidence of these two witnesses over the father.

The Father's Photographic Evidence

209The father produced approximately two hundred photos to support his claim that they were a peaceful, loving and happy family. The court reviewed all of the photos carefully. Many of the photos are several photos, often up to ten or twenty, taken of the same moment in time, such as each of the children's birth, a special event such as a birthday celebration, Christmas, or a backyard barbeque. Almost all of the photos were taken by the father.

210Although the court admitted the photographs into evidence, the court attaches little weight to photographic evidence that depicts moments in time in a family history but do not accurately reflect the entire reality of the family or truly represent of the facts.

211The test to be applied in considering the admission of photographic evidence was set out by the Ontario Court, General Division (now the Superior Court of Justice) in Rodger v. Strop, [1992] O.J. No. 2769:

What is the trial judge to consider in exercising his or her discretion? The question is answered in R. v. Careemer and Cormie (1968) 1967 CanLII 711 (NS CA), 1 C.C.C. 14 (N.S.S.C. Alp. Div.) by McKinnon J. as follows:

All cases dealing with the admissibility of photographs go to show that such admissibility depends on (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so. [Emphasis added] This passage was adopted by Le Sage Co. Ct. J. (as he then was) in R. v. Maloney (No. 2) 1976 CanLII 1372 (ON CJ), 29 C.C. C. (2d) 431 at 433. This test was adopted by Spence J. in Draper v. Jacklyn et al., 1969 CanLII 6 (SCC), [1970] S.C.R. 92 at pg 100.

212I have already found that the father was not telling the truth when he testified that the photos regarding his birthday party were taken just before the mother left in 2018, based on the obvious fact that there were only two, not three children in the photos (the youngest not yet born). Further, the fact that the parents were happy after the birth of their children or appeared happy at some family or public events with other persons does not prove that there could not have been physical and sexual violence in the privacy of their home.

213The court did not agree with counsel for the father's submissions that the photos depicted the children looking very comfortable with the father, and "often seen hugging, and cuddling with the father". Almost all of the photos of the children taken with the father were photographs of the children as very small infants. They were almost always asleep, and the father was sometimes close by. On one or two occasions, an infant is seen sleeping on the father. There were far less photos of the children as toddlers. In the toddler photos, the court did not observe any photos of the children hugging their father. There were approximately three or four photos of the two hundred submitted with the children sitting on the father's lap. The children were not "often smiling," although there are certainly some photos of the children smiling.

214The court also did not agree that the photos depicted the mother often "appearing happy," although there are some photos in which the mother is smiling for the camera. There are other photos when the mother is not smiling at all. The photos did not often reflect the mother "surrounded by friends" or at social events. There appeared to be many photos taken of approximately two or three social events, not numerous social events as suggested by the father.

The Mother's Credibility

215Although I had some difficulties with the mother's evidence on some issues, I found the mother's evidence to be generally clear, straightforward and consistent regarding the material facts, and in particular, her detailed and consistent evidence regarding the violence that both she and the children experienced. She was not shaken in cross-examination regarding the material facts in dispute in this hearing.

216The mother's testimony in cross-examination that every sexual act after the birth of their first child was non-consensual may have been exaggerated or may have been her response to an environment in which she gave evidence that she felt like a "slave" or very much controlled by the father. It did contradict her Response to the Request to Admit that there were some consensual acts of sex between herself and the father. It is certainly possible that a victim of sexual violence will engage in voluntary sexual activity with the perpetrator especially in intimate partner violence. The court did not find that this undermined the mother's credibility regarding the domestic violence she experienced.

217Regarding the mother's evidence that the father's refusal to marry her in part motivated her desire to leave, the court does not agree with counsel for the father that this demonstrated that the mother was not credible regarding the allegations of abuse. According to father's counsel, a victim of sexual assault is unlikely going to marry the perpetrator. It was clear from the mother's evidence that early on in the parties' relationship, the mother wanted the father to marry her so that he would sponsor her to become a legal resident, as the mother of his children, and as he promised to do. She testified that once it became clear that the father was not going to marry and sponsor her, she stopped asking him.

218The court also did not agree that the mother's participations in sexual "video" conversations with the father after she fled to Toronto demonstrated a lack of credibility regarding the allegations of physical and sexual violence. The mother's explanation that she felt forced to have these sexual conversations with the father and that she may have initiated some because she was really scared of the father's threats to make sure that she was "cooked" and go to jail sounded very credible to the court. Her efforts to appease the father and "calm him down" by doing this was consistent with the abusive and controlling relationship that she described and which the court heard on the audiotape and in this trial. At the time that these video conversations took place (September and October 2018) the father had not yet commenced his Hague application or court proceedings in Canada, but he had a lawyer and he had obtained an ex parte order in the United States. The father was very much in control.

219The court directly observed the father threatening the mother in court during his testimony when the father raised for the first time at the end of the trial that the mother had been engaging in "illicit or illegal acts" in the U.S. and he stated: "just that would have sent her far away to prison, not an immigration threat by me." For example, after testifying at length that the mother would be "behind bars" in the United States for a "scam" involving Amazon, he looked directly at the mother stated:

"[T]rying to put too much dirt on me, it might backfire.

Because if your beef for the immigration here in Canada do not work, then if you rely on me, I can petition for you back home……..

you want to have a legal status here? Well, you gotta think about what you doing. I cannot — I cannot just let you put dirt on me like that."

220The court does not agree that the mother made "false" statements about her job history in Michigan while living with the father. It was both parties' evidence that the mother's part-time job was her job braiding hair at an African hair salon. "Lola's Kitchen" was a business idea of the father's that was not fully developed. It appeared to be only on very few occasions that the mother would cook food to sell, which she admitted to when reminded. Further, the mother earned some commission income from a friend through Amazon, which she also admitted to upon being asked.

221The court was not persuaded that the mother's application for a Special Diet Allowance for the children undermined her overall credibility on the material facts that I must determine in this trial. Nor do I agree that this is proof of her motive to leave the United States "to enjoy the benefits of Canada's social welfare services."

222On the last day of the hearing, as indicated, the father brought credit card and Amazon pay statements in the mother's name to court as evidence that the mother was motivated to leave the United States with the children to flee her credit card debt and criminal prosecution. It was clear that the father had opened the mother's mail and had not forwarded any of this mail to her through counsel. In reply, the mother answered openly and honestly about owning a Macy's and a Capital One credit card and having debt on both of these cards. She gave detailed evidence regarding these debts and what she used the credit cards for, which was to buy clothing and other items for the children. She had applied for and obtained the cards prior to her relationship with the father based on a good credit rating. She testified that she had been making monthly payments towards the outstanding balances and that she would continue to do so in Canada.

223The mother also testified that she opened an account with Amazon as she wanted to do earn some part-time income doing package delivery. She testified that the father was very aware of her desire to do this, but he did not give her permission because she wanted to take the children along with her, as the father would not agree or assist her to put them in daycare. After the father refused, the mother's friend agreed to do the job and give the mother some commission out of the money that she earned. The mother was forthcoming about this evidence.

The Mother's Witnesses

224Although both of the mother's witnesses were close family relatives in Nigeria, the court was impressed with their evidence and found them to be consistent and credible, in particular D. The evidence was not over-stated or exaggerated and it was not shaken in cross-examination. Their evidence corroborates the mother's distress and fear as well as her experience of domestic violence, in particular when she called them immediately after serious occurrences.

225The court also preferred the evidence of both the cousin and the aunt over the father's when they testified that they both attempted to talk to the father about his abusive behavior. Further, the Aunt directly observed the father "knocking" the children on the head when angry or as a form of discipline, contradicting the father's complete denial that this ever occurred.

The Evidence of Dr. Pilowsky

226In finding that the mother's direct evidence of domestic violence was credible and consistent, the court did not place a great deal of weight on the evidence of Dr. Pilowsky and treated this evidence with considerable caution. The court was concerned that Dr. Pilowsky had not been entirely forthcoming regarding her discipline history during her testimony. Dr. Pilowsky's methodology and in particular, how she conducted her testing was also concerning to the court. Nevertheless, she did corroborate the mother's description of the domestic violence and the fear and trauma that the mother experienced prior to leaving the United States.

The Expert Evidence of Mr. Stuart Friedman

227The court was impressed with the evidence of Stuart Friedman, the U.S. immigration law expert. His evidence was detailed, careful and balanced and of great assistance to the court.

7.2: The Issues

1. Was the Father Exercising Rights of Custody at the Time of the Children's Removal from Michigan

228As previously noted, Article 3 of the Convention provides that 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.

229The 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.

230Article 5 defines "rights of custody" for the purposes of the Convention to "shall include the rights relating to the care of the person of the child and, in particular the right to determine the child's place of residence".

231A person applying for an order of return of a child has the onus to establish, on a balance of probabilities that he or she had a right of custody and that he was exercising that right at the time of the removal. See J.T., Jr. v. S.L.T. [Indexed as T.(J.) v. T. (S.L.)], 2016 ONCJ 83, 129 O.R. (3d) 453 (O.C.J.), per Justice Ellen Murray, at paragraph 8.

232Rights of custody are determined in reference to the law of the state of habitual residence. Those rights can be granted by statute or court order or by agreement between the parties that has legal effect in the state of the habitual residence. See J.T., Jr. v. S.L.T. [Indexed as T.(J.) v. T. (S.L.)], (2016) 2016 ONCJ 83, 129 O.R. (3d) 453, supra, at paragraph 19; Finizio v. Scoppio-Finizio, 1999 CanLII 1722 (ON CA), [1999] O.J. No. 3579; (2016), 46 O.R. (3d) 226 (C.A.), at paragraph 16, citing W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, 134 D.L.R. (4th) 481 at pp. 130-31.

233However, rights of custody are not restricted to what legal custody is according to the internal domestic law of the state of habitual residence. The Supreme Court of Canada held the following on this issue in W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, [1996] S.C.J. No. 53 at paragraphs 22 and 23 of that decision:

22 … the Convention makes a clear distinction between rights of access, which "include the right to take a child for a limited period of time to a place other than the child's habitual residence", and custody rights, which are defined as "includ[ing] rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence". As noted by Eekelaar, supra, at p. 309, what the Convention means by "rights of custody" must by determined independently of the domestic law of the jurisdictions to which it applies:

States may define the term 'custody' in whatever way they choose, but what is essential for determining their obligations under the convention is the definition used in the convention. This definition is open-ended in that it specifies rights of custody as including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence (article 5). Such rights, by whatever name they might be called in a state's domestic legal system, are 'rights of custody' for the purposes of the convention and are protected by it.

As a result:

The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression "rights of custody", for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention...

23 However, although the Convention adopts an original definition of rights of custody, the question of who holds the "rights relating to the care of the person of the child" or the "right to determine the child's place of residence" within the meaning of the Convention is in principle determined in accordance with the law of the state of the child's habitual place of residence (Black and Jones, supra, at p. 331; L. Silberman, "Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis" (1994), 28 Fam. L.Q. 9, at p. 18)."

234The Convention also contemplates that an institution or other body may have rights of custody. In Thompson v. Thompson, (1994) 1994 CanLII 26 (SCC), 6 R.F.L. (4th) 290, the Supreme Court of Canada held that a temporary non-removal order made with notice prior to a child's removal created a right of custody because the purpose of the order was to preserve the court's jurisdiction to make a final order for custody.

235However, a "chasing order" made without notice after a child's removal from his or her habitual residence does not create rights of custody under Article 3 of the Convention. See: J.T., Jr. v. S.L.T. [Indexed as T.(J.) v. T.(S.L.)], 2016 ONCJ 83, 129 O.R. (3d) 453; 2016 ONCJ 83 (O.C.J.), per Justice E.B. Murray, at paragraph 111. In Thompson, the non-removal order was made before the mother unlawfully removed the children from Scotland, the contracting state. It was not a "chasing order" made after the fact.

236Article 14 of the Convention provides as follows:

"In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable."

237In accordance with Article 14 above, the court's requested the assistance of the Central Authority for Ontario in obtaining the relevant law regarding the operation of rights of custody in Michigan from the Central Authority for the United States.

238Mr. Shane Foulds, Lead Counsel for the Central Authority for Ontario provided the court and counsel a letter from a Michigan lawyer referred by the United States Central Authority which contained the Michigan state family law statutes relevant to the "operation of law custody rights" that unmarried parents are granted in Michigan, general legal information regarding the operation of those statutes, and a 2006 legal opinion by the Michigan State Attorney General.

239It is clear from a review of the information and opinion provided that unlike the law of Ontario contained in the Children's Law Reform Act, R.S.O. 1990, c. C.12, Michigan law makes a distinction between the rights of married parents and of unmarried parents, as well as "natural" mothers and fathers, in relation to custody rights of children.

240Under Michigan law, according to the legislation and legal opinion from the Michigan Attorney General, an unwed biological mother of a child has custody of that child, unless a court order grants custody to a father or some other person. An unmarried father has no rights, unless he first establishes his legal relationship to the child as set out in the Parentage Act. Only after the father has legally established that relationship can a father commence an action seeking custody of or access to that child.

241Under Michigan Compiled Laws ("MCL") § 722.1 " Definitions ", a "Minor" child means a person under the age of 18 years. "Parents" are defined as "natural parents, if married prior or subsequent to the minor's birth; adopting parents, if the minor has been legally adopted, or the mother, if the minor is illegitimate." [Emphasis added.]

242Pursuant to MCL § 722.1006 law sub-titled " Grant of Initial Custody ":

"After a mother and father sign an acknowledgement of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself affect the rights of either parent in a proceeding to seek a court order for custody and parenting time." [Emphasis added.]

243MCL § 722.1010 "Consent to court jurisdiction" provides:

"Except as otherwise provided by law, a mother and father who sign an acknowledgement that is filed as prescribed by section 5 are consenting to the general, personal jurisdiction of the courts of record of this state regarding the issues of support, custody and parenting time of the child."

244The Michigan counsel also provided a 2006 legal opinion by Mike Cox, the Michigan State Attorney General at the time, regarding "the effect of a properly signed acknowledgement of parentage on custody of the minor child."

245In his opinion letter, the Attorney General sets out the questions that he has been asked to answer:

1. whether "a properly executed affidavit of parentage legally gives the mother of a child born out of wedlock custody of the child named in the affidavit."

2. "if there is a difference in the legal effect to be accorded a court's custody order and an affidavit of parentage for purposes of police agencies assisting custodial parents in returning children improperly held from them."

246In answering the questions above, the Attorney General states the following, following a more detailed review of the relevant Michigan legislation referred to earlier:

"It is my opinion, therefore, that after a mother and father sign an acknowledgement of parentage concerning a child born out of wedlock, in accordance with the Acknowledgement of Parentage Act, MCL 722.1001, et seq, the mother has custody of that child unless otherwise determined by a court or otherwise agreed upon by the parties, in writing. A police agency may rely on a duly executed acknowledgement of parentage as establishing a mother's custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise." [page 3]

247Michigan counsel noted that the language of MCL § 722.1006 "Grant of Initial Custody" was amended slightly, three weeks after the Attorney General's opinion was issued. At the time the Attorney General provided his opinion, the language of MCL § 722. 1006 read: "After a mother and father sign an acknowledgement of parentage, the mother is presumed to have custody of the minor child unless otherwise determined by the court or agreed upon by the parties in writing."

248The current language provides that "After a mother and father sign an acknowledgement of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court." If anything, the law in its current form strengthens the Attorney General's opinion.

249It is not disputed that the mother and father signed an Acknowledgement of Parentage for each of their three children following their births, according to the Agreed Statement of Facts filed. All three children were born in Michigan and the parties were not married.

250The evidence establishes and it is not disputed that the mother and the children left Michigan and arrived in Canada on August 21, 2018.

251At the time the mother removed the children from Michigan, the father had not commenced an action for custody of/or access to the children, nor had he obtained any custody or access order, nor did the parties have an agreement in writing.

252The father did not apply for or obtain a custody order until approximately four weeks after the mother arrived in Canada with the children. This was an order made without notice to the mother, dated September 19, 2018, from the 7th Judicial Circuit Court for the County of Genesee, Family Division in the State of Michigan. It not in force at the time of the children's removal from Michigan, nor had an application for custody even been commenced. It is a "chasing order" and nothing more. A "chasing order" made without notice after a child's removal from his or her habitual residence does not create rights of custody under Article 3 of the Convention.

253Therefore, even though the father had established his legal relationship to the children, as an unmarried father, by signing the Michigan State's Acknowledgement of Parentage form, only the mother had custody of the children under Michigan law at the time of the children's removal to Ontario. The father did not have, nor was he exercising rights of custody at the time of removal.

254Given these facts, the removal cannot be seen as "wrongful" within the meaning of the Hague Convention. On this basis alone, the father's Hague application for an order returning the children to Michigan is dismissed.

7.3 The Mother's Article 13(b) Defence

255If I am wrong in the above analysis, and the father was exercising rights of custody at the time the mother left Michigan with the children, thereby triggering a wrongful removal, then the question remains whether the mother has established on the evidence that there is a grave risk that returning the children to Michigan would expose the children to physical or psychological harm or otherwise place them in an intolerable situation?

Material Findings of Fact

256I considered very carefully whether I should return the children in this case. International child abduction is a serious problem, a problem that the Convention was crafted to address. However, the Convention recognizes that there are certain limited cases that are exceptions to the rule of return to the jurisdiction of habitual residence. The applicant has established on a balance of probabilities that this is one of those rare cases.

257In my view, there is credible evidence that the father assaulted the mother on multiple occasions and that the children witnessed some of these assaults. There is also credible evidence that the father sexually assaulted the mother and threatened and controlled her as a result of her vulnerable immigration status. This is not a case of a single incident of violence. There was evidence of multiple incidents of serious physical and sexual violence by the father against the mother which the children, at least the older children, witnessed on some occasions.

258There is also credible evidence that the father yelled and cursed at the mother in the children's presence. I also find that the father yelled at the children and hit or knocked the oldest child on the head when he was angry or as a form of discipline. I find that the two older children were afraid of the father on these occasions, based on the evidence of the mother and the aunt.

259I find that the mother did not report these assaults to the police because she was afraid that she would be detained, reported to immigration and ultimately deported and that her children would be removed by child protection authorities, or remain with an abusive father.

260The state of Michigan could not protect the mother or the children in these circumstances given the mother's vulnerable immigration status.

261Further, there are no undertakings that can protect the children from being exposed to further domestic violence or an abusive environment. According to the court appointed Michigan immigration law expert, the mother's ability to return to the United States is "marginal at best." The mother's ability to regularize her immigration status in the United States and to return to the United States is very unlikely.

262I find as a fact that if the children are returned to Michigan without their mother, their primary caregiver, then the children would be placed with an abusive and violent father who has used corporal punishment against them or placed otherwise in foster care. Their mother would not be there to protect them.

263I find as a fact that in these circumstances, there is a grave risk that returning these children to Michigan would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

264I would therefore deny the application that the children be returned to Michigan on both Article 3 and Article 13(b) exceptions under the Convention.

7.4 If the Hague Convention does not apply in this case, should this Court exercise its powers under sections 40 and 41 of the Children's Law Reform Act and recognize and enforce the terms of the Michigan Court Order?

265The answer to the above question is no.

266This Court would not recognize and enforce the Michigan Court Order dated September 19, 2018, under section 41 of the Children's Law Reform Act (the " CLRA " or "the Act"). The order was obtained by the father without notice to the mother after the mother and children left Ontario. The mother was not given an opportunity to be heard before the court order was made, nor was she given any notice that the proceeding had been commenced. The affidavit evidence supporting the father's ex parte application was misleading at best and contained no information regarding the domestic violence experienced by the mother and the children while in Michigan.

267Therefore, the father's request to have the Michigan court order recognized and enforced pursuant to the factors set out under section 41 does not succeed. See Brown v. Pulley, supra, at paragraph 189, per Justice Stanley Sherr.

268Secondly, I decline to make an interim order under section 40 of the CLRA and find that this Court should assume jurisdiction pursuant to sections 23 of the Act, which reads as follows:

Serious harm to child

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

269The legal test to establish "serious harm to a child" under section 23 has been equated with the "grave risk of harm" test under Article 13(b) of the Convention. However, as the Ontario Court of Appeal has recently held in Ojeikere v. Ojeikere, the standard of "serious harm" required by section 23 of the CLRA is less stringent than the standard under Article 13(b) of the Convention. See Ojeikere v. Ojeikere 2018 ONCA 372; [2018] O.J. No. 2041 (C.A.) at paragraph 58 of that decision.

270I am therefore satisfied on a balance of probabilities, based on the same findings of fact that I made in considering the mother's Article 13(b) defence, that these children would suffer serious harm if they are removed from Ontario and returned to Michigan.

9. Conclusion

271For all of the above reasons, the father's Hague application for the return of the children to Michigan is dismissed.

272The Ontario Court of Justice will assume jurisdiction in this case pursuant to section 23 of the Children's Law Reform Act.

273I thank counsel for their very helpful submissions and the case law provided.

Released: December 20, 2019

Signed: Justice Sheilagh O'Connell