U.K. v. N.A., 2021 ONCJ 73

ONTARIO COURT OF JUSTICE

DATE: 2021 02 09 COURT FILE No.: Toronto DFO-20-15543 & 19-15644

BETWEEN:

U.K. Applicant Father (in # 20-15543 (Respondent in # 19-15644)

— AND —

N.A. Respondent Mother (in # 20-15543 (Applicant # 19-15644)

Before: Justice Alex Finlayson

Heard on: December 9, 10 & 11, 2020, and January 12 and 14, 2021 Reasons for Judgment released on: February 9, 2021

Counsel: Zakiya Bhayat and Barry Nussbaum........................................................ counsel for U.K. James Herbert................................................................................................. counsel for N.A.

ALEX FINLAYSON J.:

PART I: NATURE OF THIS JUDGMENT

[1] The Court heard a trial about jurisdiction over the parties’ child, A.K., who is just over 2 ½ years old. Issues about jurisdiction have been raised in two separate proceedings before this Court. At a Trial Management Conference on November 18, 2020, I consolidated the proceedings and directed that there would be a trial of all of the jurisdictional issues, together. This is my Judgment following that trial.

[2] In her initial Application, the mother claims custody of A.K., and other related relief. She says this Court has jurisdiction over A.K. based on either section 22 or 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended. The father disagrees that sections 22 or 23 of the Children’s Law Reform Act apply. Alternatively, he asks this Court to decline jurisdiction under section 25. He seeks an order that the child return to Sugar Land, Texas, a suburb of Houston, where he lives, and from where he says the child was wrongfully removed by the mother. He gives an undertaking to the Court, that if the Court orders the child’s return, A.K. may live with the mother there, pending proceeding with family law litigation before a state court in Texas.

[3] In his separate Application, subsequently filed over 13 months after the mother’s initial Application, the father now seeks an order for A.K.’s return under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). The mother disagrees. In a nutshell, she says that either the Hague Convention does not apply, or she raises various exceptions to A.K.’s return under Articles 12 and 13. She asks that the Court dismiss the father’s Hague Convention Application.

[4] Broadly speaking, there are 4 core issues for trial. They are:

(a) whether A.K.’s habitual residence, within the meaning of Article 3 of the Hague Convention, was Texas or Ontario, at the time of the alleged wrongful removal or retention;

(b) whether the mother did in fact wrongfully remove A.K. from Texas, or wrongfully retain him in Ontario;

(c) whether the mother has made out one of several exceptions to the child’s return under Articles 12, 13(a) or 13(b) of the Hague Convention; or

(d) if the Hague Convention does not apply, whether this Court has, or should exercise jurisdiction over A.K. under one or more of the aforementioned sections of the Children’s Law Reform Act, or whether it should decline jurisdiction under section 25.

[5] In addition, there are several, significant credibility issues that this Court must resolve. Their resolution is necessary to the determination of these issues.

PART II: BACKGROUND

[6] I will first set out some additional background, for context. The parents are both in their mid to late 30’s. The father is employed as a financial analyst for the City of Houston. He resides with his parents in Sugar Land, Texas, in a home owned by the paternal grandfather.

[7] The mother is a pharmacist. She now lives with A.K. and her parents, in her apartment in Toronto.

[8] The parties initially met one another in 2016, through a matchmaking website. At the time, they were each living in Sugar Land and Toronto, respectively.

[9] In early 2017, the father and the paternal grandparents travelled to Toronto to meet the mother and her parents for the first time, in person. The father says he already had rings with him when he came. The two families agreed to the marriage. Then pending their marriage, the parties got to know each other a bit more, in a form of a long-distance courting relationship.

[10] The parents married on August 12, 2017, in Sugar Land. Each parent has a different account about how blissful the marriage was, or was not, after the wedding. The father referred to the marriage as “blissful”, whereas the mother characterized it as a “disaster” from the outset.

[11] The mother lived in Sugar Land with the father and his parents after the wedding, but only for two months. By October 2017, the mother learned she was pregnant. At that point, she returned to Toronto and resumed living with her parents for the balance of her pregnancy. The parents disagree whether this was a joint decision, or a unilateral one of the mother’s.

[12] A.K. was born on June 24, 2018, in Toronto, via caesarian section. The father and the paternal grandmother travelled to Toronto for the birth, for no more than 4 days. The mother and A.K. remained in Toronto for a further two months after that.

[13] The mother went back to Texas, with A.K., on August 17, 2018. When she left Canada, she had a return plane ticket for August 31, 2018, in hand. The parties disagree about whether the mother’s August 2018 trip was intended to be a permanent move, or not.

[14] In any event, once she was back in Texas, the mother did not return to Toronto on August 31, 2018. Still, she describes her decision to remain in Texas as a “trial”, given the poor state of the parties’ marriage. Ten months later, the marriage had broken down, and on June 11, 2019 the mother and A.K. left Texas for Toronto once more.

[15] A significant area of conflict between the parents centered around the father’s failure to apply promptly for a green card for the mother following the marriage. In fact, he did not do so until 15 ½ months into the marriage, despite much intervention from the mother and her family on the topic. The father eventually submitted the application on November 30, 2018. But a little more than 7 months later, within days of the father learning that the mother and A.K. had returned to Toronto, the father withdrew the green card application.

[16] The parents had a significant argument on the evening of June 10, 2019, over whether the father could take A.K. to his mosque. According to the mother, the argument culminated in the father pushing the mother into the wall, while she was holding the child. The father denies that there was any physical violence at all.

[17] The mother telephoned the local police, who attended at the home. This was the 3rd time that the police had been called during this marriage. Because the police did not observe any “physical injuries”, the father was not charged. The mother was escorted from the home with A.K. They were sent to a “family friend’s” home.

[18] At that point, the mother and A.K. had a pre-planned trip to Toronto for the entire month of July, 2019. Rather than staying at the family friend’s home, the mother moved her and A.K.’s plane tickets forward returned to Toronto the next day, on June 11, 2019.

[19] The maternal grandmother tried to telephone the father, to let him know that the mother and A.K. were in Toronto, but he would not take her call. This began a pattern of the father refusing to speak to the mother or her parents, which persisted for several weeks. The maternal grandmother then told the paternal grandmother on June 13, 2019. The father apparently then learned of this from his mother by June 14, 2019.

[20] Four days later, the father authored a letter to the United States Customs and Immigration Service (“USCIS”) asking that the mother’s green card application be withdrawn. He mailed the letter a few days later, after obtaining legal advice.

[21] By mid-August, 2019, the mother commenced her initial proceeding under the Children’s Law Reform Act. Although on October 21, 2019, the father filed his Answer dated October 16, 2019 seeking the child’s return to Texas under the jurisdiction sections of the Children’s Law Reform Act, he did not make claims under the Hague Convention. The father then delayed the proceeding for many months. He sought multiple adjournments of case conferences. Then, on August 19, 2020, about one year after the mother commenced her proceeding, the father filed a 14B Motion asking for leave to commence a proceeding under the Hague Convention.

[22] On October 1, 2020, the father filed his Hague Convention application. Whether or not he commenced a proceeding within one year of a wrongful removal or retention, within the meaning of Article 12 of the Convention, is now an issue in this trial. To convince the Court he did, the father makes various arguments about the Court’s reduced operations on account of Covid-19, he says that he had effectively raised the Hague Convention in other court documents, and he says that his 14B Motion should count as him having commenced a proceeding under the Hague Convention.

[23] Once the father filed his Hague Convention application on October 1, 2020, this matter came on before me for a hearing very quickly. The father initially sought to proceed with that Hague Convention application by way of motion, based on affidavit evidence alone. However, on November 16, 2020, the case management judge determined that there were significant credibility issues. So instead, he set the matter down for a Trial Management Conference before me on November 18, 2020, at which point I gave the parties fixed trial dates on the December trial sittings.

[24] At the Trial Management Conference on November 18, 2020, with the consent of the parties, I directed that the two court files be consolidated. The parties agreed that their, and their witnesses’ evidence, would be presented by way of affidavits (many of which had already been filed for the November 16, 2020 motion). They agreed that it could be supplemented by way of additional viva voce examinations in chief, followed by cross-examination. Additionally, the parties each filed supplementary affidavits before the trial began.

[25] The case management judge’s early conclusion that there were significant credibility issues in this case, was prescient.

PART III: THE PARTIES’ POSITIONS AND A SUMMARY OF THIS RULING

[26] The father’s principal position is that the mother wrongfully removed A.K. from Texas, when she took him to Toronto on June 11, 2019. In the written record and during the trial, the father was inconsistent about whether he says that it was A.K.’s removal that was wrongful, or whether the mother is wrongfully retaining him in Toronto instead. So he raises an alternative argument of wrongful retention, which is in part directed at the timing requirements of Article 12, to defeat the mother’s claim that A.K. has “settled in”.

[27] According to his alternative argument, the father says the date of the wrongful retention is September 7, 2019, because that is the date he was served with the mother’s initial Application for custody, and thus the date upon which he knew she would not be returning to Texas with A.K. By pushing this date back to September 7, 2019, the father says that more than 12 months have not passed between the time of the wrongful retention and the time he raised the Hague Convention in his 14B Motion of August 19, 2020. Therefore, the mother may not raise the “settled in” exception under Article 12 at all.

[28] In the further alternative, the father says the mother’s Article 12 exception must fail on its merits, as would the mother’s other two Article 13 exceptions, for various reasons.

[29] The mother advances a number of primary and alternative arguments. Several are directed at challenging the applicability of the Hague Convention, at all. The balance of her arguments under the Hague Convention are exceptions. Lastly, she makes submissions about why the Court has jurisdiction under sections 22 or 23 of the Children’s Law Reform Act, if this Court finds the Hague Convention does not apply.

[30] First, the mother asserts that the child was in fact habitually resident in Toronto at the time the father alleges there was a wrongful removal. Thus, the Hague Convention does not apply.

[31] Second, the mother submits that the father cannot now argue that this case is one of wrongful retention. She says he advanced his case throughout as one of a wrongful removal. His attempt now to recast it as a wrongful retention case, to reduce the amount of time that has passed in between the so-called wrongful retention and him commencing a proceeding under the Hague Convention, to disentitle the mother from mounting an Article 12 exception, is inappropriate.

[32] Third, the mother also argued alternatively, that this may be a case of the child having no habitual residence, such that the Hague Convention would not apply. However, during submissions, the mother’s counsel abandoned that position, conceding that the precedent upon which he relied to make that argument is distinguishable from the facts of this case.

[33] Fourth and likewise, the mother initially took the position that the father had failed to prove that he had rights of custody in Texas. Therefore similarly, the Hague Convention would not apply. However, counsel abandoned this position during submissions after the mother’s own expert said otherwise during her testimony. Had that not occurred, then the Court might have had to consider whether to apply Article 14 of the Hague Convention, as opposed to dismissing the application outright.

[34] Fifth, if this Court finds that A.K. was either wrongfully removed to, or retained in Ontario within the meaning of Article 3 of the Hague Convention, then the mother says that the Court should nevertheless dismiss the father’s application based on several Article 12 and 13 exceptions. Specifically, she says that:

(a) the father consented to or subsequently acquiesced in the removal or retention within the meaning of Article 13(a);

(b) there is a grave risk that A.K.’s return to Texas would expose him to psychological harm, or otherwise place him in an intolerable situation, within the meaning of Article 13(b); and

(c) more than one year has passed since the wrongful removal or retention and the child has now “settled in its new environment” within the meaning of Article 12.

[35] Finally, in regards to the mother’s alternative arguments under sections 22 and 23 of the Children’s Law Reform Act, which require a different legal analysis, the father’s position is that because he raised the Hague Convention, these jurisdictional provisions of the Children’s Law Reform Act can have no role in the analysis. Late on, I will explain that I disagree about this, although it does not change the outcome.

[36] For the reasons that follow, I find that the Hague Convention does apply. However, the mother has satisfied the Court that A.K. should not be returned to Texas based on Article 12, 13(a) and 13(b) exceptions. This Court shall proceed to decide the substantive issues raised in the mother’s initial Application and the father’s Answer. The father’s Hague Convention Application dated October 1, 2020 is dismissed.

PART IV: CREDIBILITY

[37] The main legal principles which I must apply are settled. However, earlier I flagged that it would be necessary for the Court to make certain findings of credibility, in order to determine the core issues before it.

[38] It appears to the Court that each side tailored their evidence in different respects, to fit within his and her respective theories of the case and narratives. Therefore, I have concerns about both parents’ (and some of their witnesses’) credibility, albeit to different degrees.

[39] The Court finds that the father’s credibility to be more problematic than the mother’s. This is in part a function of the greater number of times that I found him not to be credible on areas of significance to the analysis, compared to the mother. I intend to make credibility findings on a topic by topic basis in this Judgment. I also intend to explain, in the process of doing that, why such findings are important to the Court’s resolution of the core issues.

PART V: APPLICABLE LEGAL PRINCIPLES CONCERNING THE CHILD’S HABITUAL RESIDENCE

[40] The Hague Convention is an international treaty, signed to date by numerous contracting states, including both Canada and the United States. Article 1 of the Convention sets out its purposes, which are:

(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.

[41] The harms which the Hague Convention seeks to remedy, and the aims of the Convention, are well-known. Recently, at ¶ 23-27 of Office of the Children’s Lawyer v. Balev, 2018 SCC 16, McLachlin C.J.C. described the harms as “evident”; as having serious consequences for the child abducted and the parent left behind; as causing children to be removed from their home environment; that children may be transplanted into a new culture with which they have no ties as a result; and that dueling custody battles waged in different countries may follow.

[42] The aims of the Hague Convention are to “[enforce] custody rights and [secure] the prompt return of wrongfully removed or retained children to their country of habitual residence”. The return order is not a custody determination, but is rather a restoration of the status quo which existed before the wrongful removal or retention. Prompt return, “protects against the harmful effects of a wrongful removal or retention”; “it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody”; and it is “aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues”. See Office of the Children’s Lawyer v. Balev ¶ 23-27.

[43] At ¶ 28 of Office of the Children’s Lawyer v. Balev, McLachlin C.J.C. described Article 3 as the “heart of the Hague Convention’s prompt return mechanism.” Article 3 reads:

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.

[44] Rights of custody are defined in Article 5 of the Hague Convention. Although a question about whether the father enjoyed rights of custody was once an issue in this case, that is no longer so, given mother’s counsel’s concession. Nor was there any serious argument that the father was not actually exercising those rights.

[45] The meaning of habitual residence is nowhere defined in the Hague Convention. The central question, which the Supreme Court answered in Office of the Children’s Lawyer v. Balev, is how an application judge should approach the determination of “habitual residence” under Article 3. The Supreme Court considered whether to adopt the “parental intention approach”, the “child-centered approach” or the “hybrid approach” to decide this question. Ultimately, it adopted the hybrid approach. See Office of the Children’s Lawyer v. Balev ¶48-71.

[46] Under the hybrid approach, the Court must look to all relevant considerations arising from the facts. The Court determines, “…the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention”. The Court considers the links and circumstances in country A, the circumstances of the move from country A to country B, and the links in circumstances to country B. Considerations include, “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality”. No single factor dominates the analysis. Relevant considerations may vary according to the age of the child. Whereas here, the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”. See Office of the Children’s Lawyer v. Balev ¶ 42-44.

[47] The Supreme Court rejected the “parental intention” approach [1] in Office of the Children’s Lawyer v. Balev. That approach determines a child’s habitual residence by the intention of the parents with the right to determine where the child lives. As the Supreme Court held, this approach used to dominate the Canadian jurisprudence. See Office of the Children’s Lawyer v. Balev ¶ 40. However, the Supreme Court also held that the circumstances of the parents, including their intentions, may still be important, particularly in cases involving infants or young children. Courts should still be cautious about over-reliance on parental intention, though. The Court also did not foreclose the possibility that one parent’s actions could unilaterally change the child’s habitual residence. See Office of the Children’s Lawyer v. Balev ¶ 45, 46.

[48] The mother relies on a decision of the United States Court of Appeals for the 6th Circuit, Ahmed v. Ahmed, No. 16-6486, and argues that the Court may and should place weight on the parents’ intentions in this case, and that will not run afoul of Office of the Children’s Lawyer v. Balev. I agree with Mr. Herbert that the parents’ intentions are still relevant post- Office of the Children’s Lawyer v. Balev. Therefore, I will address the evidence about the parents’ intentions first.

PART VI: ANALYSIS CONCERNING THE CHILD’S HABITUAL RESIDENCE

[49] In a nutshell, the mother argues that the marriage was fraught with conflict from the get go. She says that she and the father only intended that she would make Texas her (and therefore A.K.’s) permanent home, if the conditions in the marriage improved. The mother says that her stay in Texas, after the end of August 2018, was a “trial”. As the marriage did not work out and the child’s habitual residence is intricately tied with hers as the child’s primary parent, the child’s habitual residence therefore remained Toronto. As such, she was free to return here, without engaging the Hague Convention.

[50] The father disagrees with this approach. He says there was no such agreement to a trial marriage, ever. And moreover, he characterizes the marriage very differently.

[51] While I specifically reject the father’s characterization of the marriage as more blissful than the mother describes it, I still find the mother’s position on the ultimate point, that her stay in Texas was temporary and therefore A.K.’s habitual residence was Toronto, to be untenable.

[52] Nor would I find that, just because she maintained ties to Toronto after returning to Texas at the end of August 2018 (such as keeping the apartment that her parents lived in, or keeping her Ontario license to practice pharmacy in good standing), that meant her move to Texas was a temporary one. As Trousdale J. said at ¶ 45 of Juma v. Juma, 2012 ONSC 4135 (S.C.J., “ [t]here is no necessity to find that the mother intended to reside in Florida permanently”. The mother’s settled intention in that case, to reside in Florida for a certain period of time, was sufficient enough. [2]

[53] Regardless, parental intentions are only part of the equation. The Court must consider the child’s other circumstances as of the date of the removal or retention. To do so, I must determine what the date of the removal or the retention was. Because of the alternative arguments being made by the father about whether this is a wrongful removal or a retention case, I wish to state at the outset of this Judgment, that I am finding this case to be a case of wrongful removal, and I am finding the date of the wrongful removal was June 11, 2019. Alternatively, if I am wrong and this is in fact a wrongful retention case, I would find the date of the wrongful retention to be no than July 31, 2019. I do not find September 7, 2019 to be the date, as the father maintains in the alternative.

[54] I will next make findings of credibility and fact, to explain why I have reached these conclusions. I begin with the parents’ different accounts of the marriage.

A. Findings Regarding the Parental Conflict During the Marriage

[55] The parents’, and their witnesses’ accounts, about the nature of this marriage could not be more divergent. I summarize this evidence in four distinct periods.

(1) The Period between the Marriage on August 12, 2017 until the Mother’s Pregnancy in October 2017

[56] According to the mother, this marriage was a “disaster”, right from the outset. The mother says that during this first period they lived together, the father and his mother began to act aggressively and in a controlling manner towards her. She says she was told to follow orders and could not leave the house without permission.

[57] In stark contrast, the father described this early period of the marriage as blissful. He says that he was respectful of the mother. He denies any financial, emotional or physical abuse not only during this period, but throughout the marriage. For example, the father says that the mother had online access to his bank accounts, access to the safety deposit box at the bank, and she had a dedicated credit card to use.

[58] The father also says that the mother would write him poems and love letters. During the trial, he showed to the Court three such notes dated September 12, 2017, January 19, 2019 and one which is not dated.

[59] While the mother’s characterization of the marriage as a “disaster” from the outset was perhaps an overstatement, there is no question that this marriage was troubled, and the father tried to paint it in too positive of a light.

[60] One early example is what happened during a two-week, return trip that the mother and the maternal grandmother took to Texas in November 2017. The trip occurred a mere few weeks after the mother returned to Toronto for her pregnancy, in the first place. It is not entirely clear to the Court why the mother and her mother travelled back down to Texas so soon after the mother had just returned home. I surmise, but do not know for certain, that it had something to do with the mother’s green card, for which the father had yet to apply, and which was a constant source of conflict between the parents and their parents. During this November 2017 trip, the parents got into such a heated argument that a neighbour called the police on them, after hearing the loud commotion in the home.

[61] Neither side really explained what triggered this argument in an understandable way. According to the father, he was just resting after a long day of studying [3]. He says the mother barged into their bedroom and confronted him about “money” and about “the green card”. But according to the maternal grandmother, their argument was so loud, that she became concerned. She went into their bedroom to check in on them. She observed the father to be yelling at the mother and throwing clothes from the cupboard. She says she saw the father come towards the mother, as if he was going to hit her.

[62] Another example of a less than blissful marriage, is that the mother alleges that the father was unfaithful, starting soon after they married. The mother says that the father would stay out until late at night, sometimes coming home at 2 am the next day. The mother says that she confronted the father about what she suspected was going on. According to her, the father admitted having affairs to her.

[63] The father denies the affairs. However, the mother has access to his bank account, and did indeed point the Court to a number of charges incurred at hourly rate motels. The father’s explanation of this is suspect. He claims that he was going to these motels, not to have affairs, but because he had been diagnosed with folliculitis. He claims to have been using medication to treat his folliculitis cysts. He says the medication that he had to use, would leave a strong odour and make a mess. So he would go to the motels to apply the medication and to soak in the bathtub there, rather than making a mess at home.

(2) The Period During Mother’s Pregnancy Commencing in October 2017, and Surrounding A.K.’s Birth, Until August 2018

[64] It is hard for this Court to comprehend why, if this marriage was as blissful as the father maintains, the parents would have spent the entire period of the mother’s pregnancy apart. The father claims that he objected to the mother’s return to Toronto for her pregnancy, but I do not accept the father’s assertion that he objected to this for several reasons.

[65] First, on his own admission at paragraph 16 of his affidavit sworn November 9, 2020, he contradicted himself somewhat, saying that he “did not prevent” the mother from visiting her family. Second, and although the parents communicated regularly using Whatsapp, the father was unable to produce a single written communication whereby he expressed his opposition to the mother’s return to Toronto for the pregnancy. In cross-examination, the father attempted to explain this away, claiming he changed cell phones, and that he did not have the “backup” from Whatsapp to produce. And third, later in his cross-examination, the father actually admitted that he was agreeable to the mother going to Toronto for the pregnancy. However, he then qualified his earlier position, saying that he did not agree to A.K. being born here.

[66] The parties disagreed about whether the father was largely absent and disengaged during the pregnancy once the mother was back here. I prefer the mother’s account on this point too. The father did not visit the mother even once during the pregnancy, until just before A.K.’s birth. It is disputed whether that trip for A.K.’s birth lasted two days or four days. Given its brevity, I need not decide whether he came for 2, of for 4 days. The point is that his visit was brief.

[67] The mother gave birth by way of a caesarean section. The mother says the father did not bring clothes, toys or any other essentials for the baby. She says she was “shocked” and “hurt” by his behaviour. And he did not stay behind while she recovered.

[68] Meanwhile, the mother says that the father was travelling elsewhere for fun, with his friends and family. For example, the father took a day trip to Louisiana with a colleague from his MBA program. In March 2018, towards the end of the mother’s pregnancy, the father took a multi-day trip to a destination near Austin, Texas. In cross-examination, the father admitted he went on this trip with his brother, his brother’s family, and with 11 other families.

[69] The father decided to go on another trip right around the time when the mother and A.K. came to Texas in August of 2018, and he did so without the mother once again. Just as the mother was arriving in Texas, the father left on a trip to Mexico with his friends. The father only told the mother about this, the day before his flight.

[70] The father’s explanation for this behaviour during the pregnancy was that he had to work, and that he was also busy completing his MBA. He was defensive during his cross-examination about his trips and showed little insight into whether it might have been more appropriate to see his wife during her pregnancy, or his wife and child upon their arrival in Texas. His explanation for the brevity of the trip to Toronto surrounding A.K.’s birth revealed a similar lack of insight, saying he “did not have the luxury of staying longer.”

(3) The Period Between the Mother’s Return to Texas on August 17, 2018 Until their Argument on June 10, 2019

[71] While in the very short term, the relationship seemed to improve after the mother returned to Texas in August 2018, the mother says this lasted only a few weeks. The mother says that the father’s behaviour deteriorated after that. She says he repeatedly told her to “go back to Canada”. The mother also says that once the father finally applied for the green card on November 30, 2018, he would repeatedly threaten to cancel it when they fought.

[72] There were two other arguments during this time frame that resulted in the police being called two more times. Both times the mother initiated the phone calls to the police.

[73] The first one occurred on December 20, 2018. The mother says the argument ensued after she learned that the father’s brother had been physically abusive towards his mother-in-law. She found this to be abhorrent, and she said so to the father.

[74] The mother says that the paternal grandmother got involved in the argument. The mother says that at about 2 am, the father and the paternal grandmother began to yell at her, called her names and told her to leave the home. The mother says the father also threatened to cancel her green card application on this occasion.

[75] The mother telephoned 911, but she says the father grabbed the phone from her hand as she dialed. The 911 operator dispatched the police in any event, having heard the yelling in the background. The police attended at the home.

[76] The police report of this incident indicates that the argument was about “the father’s job”, but also that the mother and the paternal grandmother were “arguing”. It is hard to know where the truth lies as to the subject matter of this argument, but that does not really matter. When the police attended at the home, a “family friend” was contacted, and the mother was sent away for the night, to allow the parties to “cool down”.

[77] According to the maternal grandmother, the father then threatened to send the mother back to Canada, and he threatened to cancel the mother’s green card application. In her affidavit sworn October 23, 2020, the maternal grandmother deposes that the father and the paternal grandmother phoned her at about 3 am that evening, to say this.

[78] The mother says the situation in the home became unbearable after the December 20, 2018 fight. In her affidavit of October 23, 2020, she lists 12 examples of how that was so (which the father denies). Overall, she says the father and his mother treated her with hostility. The mother says she felt suffocated.

[79] In general, the father denies the mother’s account of the relationship during this time frame, too. He continues to assert that they were “happy”. The paternal grandmother made a similar statement, minimizing the conflict, and saying that while the mother telephoned the police, it was only over “small things”.

(4) The Argument on June 10, 2019, and the Mother’s Return to Toronto on June 11, 2019

[80] June 10, 2019 was the last day that the parties were together in Texas. Both parents agree that they argued over whether the father could take A.K. to their mosque that evening. The mother says that during the argument, the father “came towards [her], grabbed [her] arm and pushed [her] against the wall while [she] was holding the baby”. She says he was swearing and yelling, and that he told the mother that this was her “last day”, a reference to cancelling her immigration papers. The mother was frightened. She telephoned the police.

[81] The father says the mother wrongfully accused him of assault when she telephoned the police that night. He relies on the wording of the police report, which he says is exculpatory of the assault.

[82] The police report from that evening does reveal that the officer “checked [the mother] for any injuries on her wrist and back but did not observe any. [The mother] just showed sings of distress.” It reveals that the father admitted to yelling at the mother, but that he denied touching her.

[83] The report reveals that once again, the mother was made to leave the home and she was sent to the “family friend’s”. The mother was advised by the police that “since there is no physical evidence that [the father] hurt her or touched her we could not file charges” and to “take [the matter] to civil court.”

[84] The next day, June 11, 2019, the mother and A.K. flew back to Toronto. The father says that he was shocked and betrayed that the mother went to Toronto, that this felt like a “stab in the heart”, and that she did not even have the decency to text him.

[85] The mother has not framed her request for an Article 13(b) exception based on domestic violence. Mr. Herbert submits that it is not necessary for the Court to make a finding of fact that domestic violence occurred that night. Given counsel’s submission, I will not consider the issue further. Needless to say, I do not find that the marriage was blissful, as the father alleged.

[86] But I also do not find that the marriage was a “trial”, or that the mother’s stay in Texas after August 2018 was only temporary. I address that next, with reference to the green card.

B. The Mother’s Green Card Application

[87] What is undisputed is that the mother’s green card application was not submitted until November 30, 2018, some 15 ½ months into the marriage. What is also undisputed is that by late June, 2019, the father sent a letter to USCIS, ultimately causing the withdrawal of the application.

[88] However, what is in dispute, is why the parties pursued the green card application in the way that they did, the reasons for the 15 ½ months of delay, and where this Court’s findings of fact on this topic fall within the legal analysis.

[89] The mother initially travelled to Texas as a tourist, to marry the father in August 2017. She had a return ticket in hand when she went there, and claims it was her intention to return to Toronto after the wedding, but for the father’s request that she stay longer. Regardless, the mother ended up staying longer, until October 2017, when she learned she was pregnant.

[90] According to the mother, the father delayed the green card application because he was not committed to the relationship. She says that he himself viewed this marriage as a “trial” too, and he wanted to “test” her in it. As more time passed until the green card application was finally submitted, the mother saw the father’s delay as illustrating his desire to keep her subservient, to prevent her from working in the United States, and to control her independence.

[91] On April 23, 2018, at a time when the mother had already been back in Toronto for several months (she was about 7 months pregnant), the maternal grandfather wrote a letter to the paternal grandfather, imploring him to get the father to submit the green card application. The letter speaks of an agreement that the mother “should be sent to America and the process should be started there”, but complains that process had been delayed. According to the mother, the father did not speak to her for one month after her father sent this letter.

[92] The father blames the mother for the delay regarding the green card application. The father claims that there are two methods of applying for a green card, namely the “consular method” and the “adjustment of status” method. According to the father, the former entails applying from abroad at a consulate, whereas the latter involves a tourist applying from within the United States to adjust his or her status, once there.

[93] The father says that he did take some steps to start the process while the mother was initially in Texas between August and October, 2017. He says they contacted 6 or 7 lawyers and he spent about $3,000 in fees. By contrast, the mother says that the father made excuses during those first few months of the marriage, including that he lacked the time and the money to apply. In any event, the father testified that it was the mother who insisted on applying via the “adjustment of status” method. And the father claims that to follow that method, the mother had to have been living in Texas for 3 months first, in part to avoid the appearance of immigration fraud. Therefore, the green card application could not initially be submitted, because by October of 2017, the mother returned to Toronto for her pregnancy.

[94] As I will later explain when discussing the expert evidence that this Court heard about the immigration issues, the father’s account was directly contradicted. Based on the expert evidence, I find there is no such 3 months’ rule, as the father claims.

[95] Despite the parties’ different accounts about it, what did emerge from the evidence about the green card is the following:

(a) the green card was a topic of much conflict between the parents (and between the grandparents’ too);

(b) it was very clearly an expectation of the mother (and her parents) that one would be applied for;

(c) the mother went to Texas initially, on a visitor visa, for the wedding. When she came back to Toronto for her pregnancy, she did so without the father yet having submitted an application for it;

(d) the green card formed part of the subject matter of the November 2017 argument, during which the neighbour called the police;

(e) the maternal grandfather wrote a letter to the paternal grandfather in April of 2018, about the importance of the green card application;

(f) after the mother returned in August 2018, the father did eventually file the application; and

(g) the mother stayed in Texas for almost a year after her August 2018 return.

[96] It is for those reasons that were I to find that any conditions were attached to the mother staying in Texas permanently, they would be connected to the father applying for the green card. That said, I do not so find. It is my view that the mother’s return to Texas became permanent at the end of August 2018 regardless. But if I am wrong and the continued marriage was conditional, any “trial” ended by the end of November, 2018.

C. Conclusions Respecting the Child’s Habitual Residence

[97] For the purpose Article 3 of the Hague Convention, I find the child’s habitual residence was Texas. I find that the child was wrongfully removed from Texas on June 11, 2019. I would not change my assessment of the child’s habitual residence, were this instead a wrongful retention case and the relevant date for the assessment of all of the circumstances becomes the end of July, 2019, rather than June 11, 2019.

[98] I make these findings about Article 3 of the Hague Convention for the following reasons:

(a) The parties intended the mother to remain in Texas, as of the end of August 2018;

(b) I have no doubt that the mother was the child’s primary parent. The evidence is overwhelming that A.K.’s primary bond was and remains with his mother [4];

(c) Despite that, I would tie A.K.’s habitual residence to that of his parents’ to some degree. But as of June 11, 2019, the parents intended it to be Texas;

(d) I find other aspects of the child’s life, at the time of the removal, to be based in Texas;

(e) For example, the child was a US citizen. (That said, I understand he also has Canadian citizenship). A.K. also had a US passport;

(f) While A.K. had a few doctors’ appointments in Toronto between his birth and the time he moved to Texas in August 2018, the parents then arranged for a doctor and dentist for him in Texas. A.K. underwent at least one medical procedure in Texas before the removal; and

(g) A.K. had health coverage via the father’s employment benefits in Texas.

[99] Moreover, up to the date of the removal, the child had only lived in Toronto for two months. His remaining 10 months were spent in Texas. There were no return trips to Toronto during that period that I am aware of, nor did I hear any evidence that the maternal grandparents visited. And by all accounts, the mother only returned with A.K. to Toronto on June 11, 2019, because of their argument the night before. Even the pre-planned July 2019 trip had a return date on it.

[100] As there is no longer an issue being raised about the father having rights of custody (nor was it argued that they were not being exercised at the time of the removal), I therefore find that the mother’s removal of A.K. from Texas on June 11, 2019 was a wrongful removal one, within the meaning of Article 3 of the Convention. However, I find that soon after her departure with A.K., the father acquiesced in the removal, within the meaning of Article 13(a).

PART VI: APPLICABLE LEGAL PRINCIPLES CONCERNING CONSENT OR SUBSEQUENT ACQUIESENCE

[101] Having found that the father satisfied the requirements of Article 3, Article 12 requires this Court to order A.K.’s return forthwith, unless the mother establishes certain exceptions.

[102] I begin with the Article 13(a) exception. Article 13(a) says the Court is not required to return A.K. if the mother proves that the father “consented to or subsequently acquiesced in the removal or retention”.

[103] In Katsigiannis v. Kottick-Katsigiannis, 2001 ONCA 24075, 2001 CarswellOnt 2909 (C.A.), the Ontario Court of Appeal explained the meaning of “consent” and “acquiescence” as used in Article 13(a) of the Hague Convention. To “consent” is to agree to something. To “acquiesce” is to agree tacitly, silently or passively to something such as the children remaining in a jurisdiction that is not their habitual residence. See Katsigiannis v. Kottick-Katsigiannis ¶ 48. There may also be active acquiescence, which involves taking a positive step or action that is inconsistent with the “summary return of the child”. See Katsigiannis v. Kottick-Katsigiannis ¶ 36.

[104] The test for acquiescence is subjective on the part of the left behind parent. See Katsigiannis v. Kottick-Katsigiannis ¶ 38.

[105] “Summary return” means a return of the child in the relatively immediate future, as opposed to an eventual return. And the length of time that must pass before acquiescence will be found, will depend on the circumstances of each case. See Katsigiannis v. Kottick-Katsigiannis ¶ 36.

[106] Mere delay, in itself without more (and particularly where the left behind parent later moves for the child’s return within the 12 months period after the removal or retention), will likely be insufficient [5]. See Ibrahim v. Girgis, 2008 ONCA 23 ¶ 28.

[107] To trigger an Article 13(a) exception, there must be “clear and cogent evidence of unequivocal consent or acquiescence”. The mother must prove words or conduct on the part of the father, that are inconsistent with the child’s summary return. See Ibrahim v. Girgis ¶ 25. Attempts by the father to effect a reconciliation, will not generally constitute acquiescence for Hague Convention purposes [6]. See Katsigiannis v. Kottick-Katsigiannis ¶ 39.

PART VII: ANALYSIS REGARDING THE FATHER’S SUBSEQUENT ACQUIESCENCE

[108] Each side asserts that there either were, or were not attempts at reconciliation after the mother’s departure. This is another area where I find that each side tailored the evidence to fit within different arguments. The mother says that the father acquiesced. She denied both that he made any reconciliation efforts, but also that so did she. I further note that any attempts at reconciliation on her part might have been argued to be inconsistent with her claim that she was in a trial marriage.

[109] The father says that he did not acquiesce in the removal. And so he alleges that he was trying to reconcile.

[110] For further reasons that I set out below, I disbelieve both parents’ accounts about reconciliation. Ironically, although the father claims he was trying to reconcile, had he actually tried to reconcile, there would have been a reconciliation. That is because the mother was actually trying to reconcile with him, an action that she now denies at this trial.

[111] In any event, despite the evidence and arguments about reconciliation, I am finding that there is overwhelming, clear and cogent evidence of both active and passive acquiescence on the part of the father that is inconsistent with the child’s summary return to Texas. The evidence of the father’s subsequent acquiescence comes in three forms:

(a) his behaviour in cancelling the mother’s green card, which I would find to be sufficient, on its own, for the mother to make out the Article 13(a) exception;

(b) his and his family’s post-separation communications with the mother and her family, which I find to be inconsistent with the child’s summary return; and

(c) his conduct in the litigation. The father could have earlier taken steps to secure the child’s return, but until this trial, he was less than dedicated in doing so.

A. The Father Withdraws the Mother’s Green Card Application

[112] I begin with the green card. While the father eventually submitted the application in November 30, 2018, it was never processed. Four days after he learned of the mother’s departure for Toronto, the father wrote a letter to USCIS, asking that the green card application be withdrawn.

[113] The father’s letter dated June 18, 2019 states that he was withdrawing the mother’s green card application for the following reasons:

Irreconcilable differences, culture variances, lack of stability, understanding and lies, discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

[114] Although he wrote the letter on June 18, 2019, the father’s evidence changed during the trial about when exactly he sent the letter to the USCIS. He claimed that he did not send it right away. At one point during cross-examination, he said he sent it about a week later. Later on, he claimed he sent it just a “few days” after he wrote it. Regardless, by August 1, 2019, the mother learned, via the USCIS online portal, that the application had been cancelled.

[115] The Notice from USCIS on August 1, 2019, indicates, that among other things, the green card application was “denied” because on July 29, 2019, it was “withdrawn”. It states that the decision to deny the application may not be appealed, and that the mother was no longer “authorized to remain in the United States”.

[116] Although she now denies it, until that time, the mother had been reaching out to the father in an attempt to reconcile. Meanwhile, the father, who now claims he was trying to reconcile with her, was in fact ignoring her, and simultaneously sending messages to her, via his parents, that she should not return.

[117] The father says that his withdrawal of the green card application was “reactionary” and designed to “prompt [the mother’s] return”. His latter comment makes absolutely no sense, when considered in light of the expert evidence (below).

[118] Moreover, I do not accept this explanation for another reason that arose directly out of the father’s cross-examination. The father admitted that in the days before he sent his June 18, 2019 letter, he obtained legal advice from “a bunch of attorneys”, and also he spoke to someone at USCIS. I find the father understood full well, that by sending the letter, the green card application would be denied, that it could not be renewed, and what the legal ramifications of this would be.

[119] At the trial, the father alleges that the mother may just return to the United States as a tourist. He says Canadians may travel freely to the United States. He even claims that he could reapply for the green card. Even if that were true, this Court would have no trust that he would do so in a good faith manner, in light of his history with the green card.

[120] I find that his actions were not merely reactionary. Even though he made his decision to withdraw the green card quickly, the father’s actions were quite deliberate, and undertaken with the benefit of legal advice.

B. The Opinion Evidence Regarding the Immigration Issues

[121] The subject matter of much of the father’s evidence about the immigration issues, specifically about whether the mother had to be in the United States for 3 months before he could have applied for the green card in the first place, and more importantly, about the impact of the father’s withdrawal of the green card application on the mother’s ability to return to Texas, was properly that of an expert. Foreign law is a question of fact, that must be proven by expert evidence. See for example Guarantee Co. of North America v. Mercedes-Benz Canada Inc. (2005), 83 O.R. (3d) 316 (S.C.J.), at ¶ 10-11; aff’d on other grounds by Guarantee Co. of North America v. Mercedes-Benz Canada Inc. (2006), 86 O.R. (3d) 479 (C.A.).

[122] While the mother did tender expert evidence about these matters, the father did not. Before turning to the opinion evidence called by the mother, I will deal briefly with the father’s attempt to improperly put opinion evidence before the Court, to support his various statements about these facts.

(1) The Memorandum of Law Filed by the Father

[123] Attached as Exhibit “P” to his affidavit of October 9, 2020, the father included a memorandum of law from a Texas lawyer. Incidentally, the father’s own memorandum of law says nothing about the 3 months’ requirement before applying for a green card by way of the “adjustment of status” method. What the memorandum does say though, is that the mother may still re-enter the United States as a tourist, notwithstanding the withdrawal of the green card application.

[124] The memorandum of law does not comply with rules 20.1 and 20.2 of the Family Law Rules regarding the contents of a litigation expert’s report. Apart from the fact that it is signed, and the lawyer states that he is a member of the Texas Bar, this Court was given no additional information as to the lawyer’s qualifications to give opinion evidence on the questions of foreign law before the Court. There is no acknowledgement of Expert’s Duty Form. The lawyer was not called to testify. There was no voir dire. In fact, at the Trial Management Conference, the father did not even indicate that he intended to call the author of this legal memorandum for that matter.

[125] During his testimony, the father made an excuse for this, and claimed that his lawyer had contracted Covid-19. I was not given any details from the father about when the lawyer might be recovered from Covid-19 and available to testify, or perhaps whether he was healthy enough to testify remotely, despite the Covid-19 diagnosis. Although I did hear submissions about how this memorandum of law might be otherwise admissible, in the end, the father did not seek an adjournment to obtain a proper report, to call the lawyer as a witness, or to allow the mother to respond to this new evidence, via her own expert whom she had already retained and whom had already filed one report.

[126] It is true that Article 14 of the Hague Convention does make some provision for dispensing with the normal method of proof of foreign law, in a case under the Convention. It might have been argued that this memorandum was admissible under Article 14 and its contents were something that the Court could take judicial notice of. However, Article 14 states that this applies “in ascertaining whether there has been a wrongful removal or retention”, an issue that I have already resolved in the father’s favour without the need to resort to anything in the memorandum of law. Article 15 also makes some provision for the Court to get some assistance from the other jurisdiction on that topic to aid it in making its determination. But for similar reasons, I do not need to have resort to Article 15 in this case.

[127] The subject matter of the memorandum of law, upon which the father seeks to rely, really concerns the mother’s immigration issues, not foreign law for the purposes of a determination under Article 3. The immigration issues really go to the mother’s ability to return to Texas, not to whether there has been a wrongful removal or retention in the first place. If I am wrong, and if Article 14 is broader in scope about what may be judicially noticed, I still would not have done so in the face of the actual opinion evidence that I do have. Questions about both the so-called 3 months’ rule, and the idea that the mother might re-enter the United States as a tourist, were put to the mother’s expert, in cross-examination. And she rejected both of the father’s assertions about these facts.

[128] Therefore, having reconsidered this issue further, I am still unwilling to consider the memorandum of law attached to the father’s affidavit. I find that it is not properly before the Court.

(2) The Expert Evidence of Anne Kennedy

[129] The mother called Anne Kennedy to testify. Ms. Kennedy is an 18-year lawyer, licensed to practice in Texas. She is also admitted to the Louisiana Bar, and has standing to practice before various federal and state courts in the United States.

[130] Ms. Kennedy practices family law and immigration law in Houston, Texas. Her curriculum vitae reveals that she is a member of the family law and immigration law sections of her local Texas state bar organization, she has presented at continuing legal education programs, and she has received several awards and good ratings. She signed the Acknowledgement of Expert’s Duty form.

[131] I qualified Ms. Kennedy to give opinion evidence about Texas family law and US immigration law. Her qualification to give opinion evidence was not challenged.

[132] Ms. Kennedy explained that aliens seeking entry into the United States are categorized as individuals having either “immigrant” or “non-immigrant intent”. Except in rare instances, an alien cannot have both kinds of intent.

[133] Aliens entering the United States are presumed to have “immigrant” intent. A tourist has the burden of proving to border officials that he or she can be trusted to enter the United States temporarily. Typically, according to Ms. Kennedy, Canadians have an easier time because Canadians enjoy a high quality of life here, akin to that in the United States.

[134] Because of the green card application, the mother has already demonstrated “immigrant intent”. In the future, every time the mother tries to enter the United States, whether by air or by land crossing, a border official will now see her past record. The official will also see that she is now attempting to enter the United States as a visitor, when she had in the past applied as a prospective immigrant. It is Ms. Kennedy’s opinion that it will be almost impossible for her to convince a United States immigration official that she does not now have “immigrant intent”.

[135] If the Court were to order A.K.’s return to Texas and the mother tries to enter the United States, immigration officials will “almost certainly believe” that the mother intends to remain, since her child will be there. In her report Ms. Kennedy writes, “it would be extremely unlikely that she would ever be able to convince US Immigration officials to allow her to enter the US as a “non-immigrant.” US Immigration officials will find it too likely that she would want to remain in the US with her child.”

[136] Nor does any order of this Court for the child’s return to Texas have any effect on how an immigration official will exercise his or her discretion. Ms. Kennedy writes that such officials “do not have to honor that order”. And Texas courts lack jurisdiction to order otherwise, too.

[137] I asked Ms. Kennedy whether the mother, if denied entry to the United States, has any remedy. Her answer was “not really” and that she could “try again”. Ms. Kennedy did say that if the mother argued with the border official, she could be banned from entry.

[138] Regarding the father’s assertion that he may reapply for a green card for the mother, this statement must be considered from the point of view that the parties are separated. Ms. Kennedy testified that the parties would have to (a) have his Texas divorce petition dismissed; and (b) have a plausible explanation for their re-application under the circumstances.

[139] Ms. Kennedy’s evidence on these points was not undermined in cross-examination. There is no other evidence before the Court to contradict it, apart from the father’s own statements, and the memorandum of law, which I am not considering for the reasons addressed above.

[140] I make the following findings of fact based on Ms. Kennedy’s evidence [7]:

(a) By applying for the green card, to USCIS the mother has demonstrated “immigrant intent”;

(b) The mother’s ability to travel freely to the United States as a tourist has now been altered. In the future, her ability to enter the United States is largely restricted, and will be dependant on the discretion of its border officials;

(c) The mother has no realistic remedy, if she is denied entry;

(d) Were this Court to send the child back to Texas, for the mother to somehow get into the United States, the mother would have to lie to the border officials;

(e) If the child were to be sent back to the United States by order of this Court, I find that A.K. is at real risk of being sent there without his mother; and

(f) The father’s assertion that he may re-apply for a green card for the mother is not a realistic proposal.

[141] As I have said, Ms. Kennedy also addressed the father’s claims about the alleged 3 months’ rule. Earlier, I made a finding of fact about the former, but I will set out the evidentiary basis for that finding here.

[142] Ms. Kennedy testified that no such 3 months’ requirement exists, prior to making an “adjustment of status” application from within the United States. Likewise, an application for a green card could have been made from outside the United States too, via the embassy or a consulate here in Canada.

[143] Finally, although the father failed to call any evidence to prove that he has rights of custody under Texas law, Ms. Kennedy ended up confirming that the father did have rights of custody in Texas. As a result, the mother then abandoned the argument that the Hague Convention did not apply, based on such a gap in the evidence. Had Ms. Kennedy not offered this evidence to the Court, then the Court might have had to resort to Article 14 to resolve the issue.

(3) Whether the Father’s Actions Regarding the Green Card Application Amount to Subsequent Acquiescence Within the Meaning of Article 13(a)

[144] The mother relies on Hage v. Bryntwick, 2014 ONSC 4104 in support of her argument that the father’s conduct regarding the green card amounts to subsequent acquiescence. In Hage v. Bryntwick, the father destroyed an immigration application that would have assisted the mother to re-enter the United States. Unlike in this case before me, in Hage v. Bryntwick the immigration papers had not yet been submitted to USCIS at the time the father destroyed them, so no American immigration or border officials ever became aware of “immigrant intent”, in the same way as they have been so made aware in this case before me. However, the mother in Hage v. Bryntwick had previously encountered difficultly at the border when entering the United States and was warned to get her immigration documentation in order. Because of those past difficulties, the father was aware of the importance of submitting the immigration application, and he did not do so.

[145] In those circumstances, at ¶ 58 of Hage v. Bryntwick, Mazza J. found that the father’s actions made it “not possible for the prompt return of the child as required by Article 12”. At ¶ 61, he held that the father’s act of destroying the application, combined with his knowledge that he knew that the mother would not be allowed to return to the United States, was an act of active acquiescence.

[146] It strikes me that Hage v. Bryntwick is on point with this case before me in this regard.

[147] By contrast, the father relies on Brown v. Pulley, 2015 ONCJ 186, and Habimana v. Mukundwa, 2019 ONSC 1781, to distinguish Hage v. Bryntwick. I do not find either of these cases to be sufficiently on point to agree with the distinction for which the father argues. The former case involved a question about whether the child should be returned from Ontario to North Carolina. The evidence in that case was that the mother felt vulnerable, because she lacked immigration status there. However, that was not a case in which any documentation had ever been filed with USCIS thereby signalling immigrant or non-immigrant intent one way or the other. The Court held it was “speculative whether the mother would be unable to return or stay in the United States”. The Court also found that the father was an experienced parent, that he was bonded with the children (ages 8 and 5), and the mother was trying to rely on a status quo she had created by coming here.

[148] Unlike in Brown v. Pulley, in this case before me, there is: (a) expert evidence about the mother’s inability to return to Texas; (b) evidence that the father had not really been in a significant parenting role; and (c) very different circumstances surrounding the mother coming to, and remaining in Ontario. All of which makes Brown v. Pulley not analogous, and insufficient to distinguish the applicability of Hage v. Bryntwick.

[149] Regarding Habimana v. Mukundwa, in that case the Court had expert evidence, but the expert explained the mother would not have immigration difficulties of the kind the mother in this case would experience. Importantly, that case concerned whether the father could still apply for a dependant visa for the mother and the children in spite of the separation. The case was about a visa, not permanent residency. The Court was not satisfied that the separation was fatal to the ability to reapply for the visa. Whereas here, I am persuaded by the expert evidence to the contrary about US permanent residency.

[150] I find that what the father did in relation to the green card, in the days after the mother left, armed with legal advice and information from USCIS, is a clear and cogent act that is inconsistent with the child’s summary return. I find that act to be sufficient on its own to give rise to the mother’s Article 13(a) exception.

[151] My finding does not change, just because A.K., as a US citizen, would be able to return without his mother. In this regard, the mother’s Article 13(a) exception is connected with her Article 13(b) exception.

[152] I am mistaken and the father’s act regarding the green card on its own is insufficient, there is other conduct of subsequent acquiescence. I address that next.

C. The Parties Interactions With One Another Following the Mother’s Return

[153] After her return to Toronto, the mother reached out to the father, multiple times over the next week, without success. She sent him text messages on June 14, June 17 and June 21, 2019, trying to engage him in a conversation. Her June 21, 2019 text message contained an offer to return to Texas, so that the parties could celebrate the child’s birthday together. The father mostly ignored these texts. Again, already by June 18, 2019, three days prior to the birthday text message, the father had authored the letter to USCIS to withdraw the green card application.

[154] On June 19, 2019, the mother’s sister was able to reach and to speak to the father. This telephone call was recorded, and a transcript of it was filed with the Court. [8] During his telephone call with the sister, the father said that it was “fine” that the mother “left a bit early” (referring to her having moved forward her July 2019 trip to Toronto) and that both parents should “cool down a little bit”. But then on June 22, 2019, the father sent the mother a text message of his own denying that he hit her, accusing her of fleeing to Canada without his knowledge or consent, and criticizing her for failing to have advised him she was leaving. His text message is also critical for the maternal grandparents “randomly [calling his] parents”. And his text message ends by telling the mother that she had broken his trust, again.

[155] The maternal grandparents tried to intervene in support of their daughter and to salvage the relationship. The maternal grandmother participated in telephone calls with one or both of the other grandparents on June 13, June 22, July 30, July 31, August 12 and August 13, 2019.

[156] The maternal grandmother’s evidence was that the paternal grandparents did not ask for their daughter to return to Texas, and to the contrary, they instructed otherwise. She testified that both paternal grandparents told her that the father had cancelled the mother’s green card. Apparently, the paternal grandfather told the maternal grandmother that the mother needed to “regret” and write a letter of apology. The father did not call his father to testify, and so he was not able to be cross-examined on this statement.

[157] The conversation between the grandmothers of July 31, 2019 was recorded too, and a transcript of it was placed before the Court. During this conversation, the paternal grandmother said that the father was “absolutely forbidding [the mother] to come” and she told the maternal grandmother to give the parties time. While on the one hand the paternal grandmother suggested that there would not be a separation, elsewhere in the conversation she said “I don’t know what he is planning to do.”

[158] The paternal grandmother denied during the trial that she was actually speaking on her son’s behalf during the July 31, 2019 conversation. In her affidavit sworn November 9, 2020, the paternal grandmother says that her words “did not constitute [the father’s] position” and that she and her husband had telephone calls with the maternal grandparents without the father’s “direct knowledge”. She repeated this orally in her testimony.

[159] The father’s pattern of ignoring the mother continued throughout August. For example, on August 3, 2019, the mother sent the father a text message saying that she had telephoned him, and asked him to call her back. His response was, “[h]ello, you may text, also you know that you can call/my parents or Asad [9] if it is something important”. The mother responded, “You didn’t’ answer my question”.

D. Claims that They Either Were, or Were Not Trying to Reconcile

[160] I turn to the mother’s and her sister’s evidence about reconciliation. The mother claims that she did not want to reconcile with the father after she returned to Toronto. She now says that she was calling him, just because she wanted an explanation for his behaviour. Likewise, the mother’s sister claims that by calling the father, she just wanted to find out his plans. She too denied that the mother wanted to reconcile.

[161] The mother also claims that her own parents were not calling the paternal grandparents because she wanted to reconcile, but rather because they were concerned that the father had started hitting her. I have no doubt that they were concerned about what their daughter had told them. But I do not accept that was the only, or even the primary reason for their calls.

[162] On the face of the July 31, 2019 transcript itself, a large part of the conversation between the two grandmothers revolved around the fate of the marriage, and whether it might be repaired. And the maternal grandmother herself admitted in cross-examination that she called to try to repair the relationship. She said she stopped trying when the mother received the green card denial notice, and it was clear that the father did not want the marriage to continue (although I note that the grandmother’s understanding was incorrect as to when the mother received the notice, and I note that more calls were exchanged after the mother received the USCIS notice on August 1, 2019).

[163] I find the mother did want to reconcile and she made efforts to pursue that. Her denial of that during the trial undermined her credibility in the Court’s eyes.

[164] The father, by contrast, did the same thing with his evidence, in the reverse. In his case, I find he alleged he was trying to reconcile to explain away his conduct and delay after June 11, 2019, to avoid a finding of subsequent acquiescence. I equally did not find his testimony about reconciliation to be persuasive or credible either.

[165] On the father’s own admission, he did not really communicate directly with the mother in any meaningful way at least until September, 2019. That would have been between 2 ½ and 3 months after she left with A.K. That is not consistent with a desire to reconcile.

[166] When the father did finally re-engage with the mother, it was only after she had commenced a proceeding. Even then, they argued about an old topic, the green card.

[167] But where I found the father’s (and the paternal grandmother’s credibility) to be particularly problematic, pertains to their attempts to explain away the July 31, 2019 telephone call between the grandmothers.

[168] The father and the paternal grandmother now claim that the paternal grandmother acted on her own during the phone conversations with the maternal grandparents. The father claims that his parents did not speak for him, that he never told them what to say on his behalf, that he did not ask them what was said afterwards. He claims that the only information he received from his parents, were that they were trying to reconcile the relationship.

[169] The paternal grandmother claims that she did not talk to her son about the conversations with the maternal grandparents, because the father is 37 years old and makes his own decision. In regards to her statement of July 31, 2019, that the father was “forbidding” the mother to come back, and that the mother should not come back right now, the grandmother claims that this was her “personal suggestion”, that it had “nothing to do” with the father, and that the father was not present when the conversation occurred.

[170] At one point, the paternal grandmother even attempted to claim that the July 31, 2019 transcript was inaccurate. However, counsel for the mother had the actual recording, it was played for the paternal grandmother on a court break, and she then confirmed it was accurate when court resumed. She then changed her story again, and claimed that she had made the above statements about the mother not coming back, because the maternal grandmother was “pressuring her to say [the father’s] name” on the tape.

[171] I find the father’s and the paternal grandmother’s claims, that the paternal grandmother was not in fact communicating the father’s position to the maternal grandmother after the mother’s return to Toronto, to be hard, if not impossible to believe. I find that the grandmother knew full well what her son’s instructions were, and she communicated them. Her words were clear.

[172] I also find that the father’s claim, that what was being said on these calls by his parents was not shared with him, to be very unlikely. Specifically, I reject the father’s claim that the paternal grandmother only told him that she was participating in these calls to effect a reconciliation. I do not understand why the paternal grandmother would allegedly tell the father this, when on the face of the transcript of the July 31, 2019 conversation itself, the paternal grandmother was specifically deflecting the discussion of reconciliation altogether, and she was essentially telling the maternal grandmother to back off.

E. Conclusions About the Parties’ / the Grandparents’ Post-Return Interactions

[173] Apart from her claim that she was not trying to reconcile, I believe the mother’s version of events as to the contents of these discussions. I reject the father’s argument that he did not acquiesce, because he was trying to reconcile.

[174] It could be argued that the father’s words and conduct, including those of the paternal grandmother, are insufficient on their own for the mother to establish the Article 13(a) exception. However, when these are considered in tandem with the compelling evidence of his immediate withdrawal of the mother’s green card application, I find his words and conduct here amounts to subsequent acquiescence also.

F. The Father’s Litigation Conduct

[175] The father then did not pursue this litigation, or a petition that he eventually started in Texas, with any haste. And his attempts to minimize this are yet another area where the father’s credibility is lacking.

[176] The history of this proceeding is the following. The mother commenced her custody application in this court on August 21, 2019. As I already indicated, she squarely placed the jurisdiction of this Court in issue, but under other sections of the Children’s Law Reform Act, not the Hague Convention. The father filed his Answer dated October 16, 2019 on October 21, 2019, arguing jurisdiction under those other, non-Hague Convention provisions of the Children’s Law Reform Act.

[177] On October 17, 2019, the father filed a 14B Motion asking the Court to waive the First Appearance and to schedule a case conference instead, for January 17, 2020. Weagant J. granted the father’s request.

[178] It was not until on January 16, 2020 that the father filed a petition for divorce and for custody of A.K., in Texas. Yet in his Answer dated October 16, 2019 filed in this Court, the father claims that he had already commenced his Texas proceeding by that point. That was not true. And by the time the mother deposed her affidavit of October 23, 2020 for this trial, she had still not even been served with his petition.

[179] Meanwhile back in this proceeding, the father had sought an adjournment of the January 17, 2020 case conference. He had made the request via email between counsel dated January 6, 2020. The reason, he said, was his mother’s health, his inability to travel here for Court, and his need to stay behind to care for her.

[180] The mother refused the father’s adjournment request. So the father abandoned the request for the adjournment, but instead filed a 14B Motion on January 8, 2020 asking to appear by teleconference. The father’s 14B Motion specifically states that the paternal grandmother had been admitted into the hospital due to a heart condition, and that the father was unable to leave his mother, to travel here. Weagant J. granted the request on January 9, 2020.

[181] I take no issue with the father’s request to participate by teleconference, given that he is in Texas. While ultimately the first case conference was not delayed, it is now clear that the father misled both opposing counsel, and this Court, in his 14B Motion.

[182] By that earlier email dated January 6, 2020, someone in the father’s former counsel’s office [10] sent an email to Mr. Herbert claiming that the paternal grandmother was still in the hospital. That person provided Mr. Herbert with a medical document dated December 3, 2019 to prove this. But at this trial, there is now a subsequent medical letter dated October 5, 2020. It reveals that the paternal grandmother was in fact already demitted from the hospital, by December 23, 2020.

[183] Moreover, between two and four days after the January 17, 2020 case conference, the father left for a religious pilgrimage in Saudi Arabi. This was revealed in his bank statements and fleshed out in his cross-examination. Yet his affidavit of October 9, 2020 previously filed, is vague as to when he went on this pilgrimage. It reads as if the trip was actually in March, 2020, a statement the father now characterizes as an “error”.

[184] The next event in this case was supposed to be another case conference on March 4, 2020. The mother’s counsel attended court alone on March 4, 2020. There was a consent adjournment that day, to May 7, 2020. In their respective affidavit materials, both sides agree that the adjournment request was made by the father. The Endorsement of March 4, 2020 is silent as to the reason for the adjournment request. Neither parent explained this to my satisfaction, although the father attempted to suggest that this was due to Covid-19. March 4, 2020 pre-dated this Court’s reduced operations due to Covid-19 by several days.

[185] On March 31, 2020, counsel for the mother filed a 14B Motion on consent, seeking to adjourn the May 7, 2020 conference to July 6, 2020. This adjournment request was due to Covid-19. Scully J. granted the 14B Motion for the adjournment.

[186] While I would not fault either side for cooperating to secure an adjournment, I pause to note that this case would have been heard as a “priority matter” had the father so desired. I have checked the Court’s protocols that have been in time to time since the start of the pandemic, as that and subsequent court dates came and went.

[187] The Court’s first directive was effective on March 16, 2020. I need not summarize everything that is contained in this directive, or in the subsequent directives. Needless to say, from the outset of this pandemic, the Ontario Court of Justice has remained open for business, albeit on differing degrees of reduced operations. While some “non-urgent” cases were at times adjourned for several weeks, “Hague applications and non-Hague abduction matters” have always been considered “priority matters”. And while the Court has adjusted how it would hear priority matters at different points in time depending the pandemic, it was never the case that it would be adjourned for weeks, had either side wished to proceed.

[188] The next event in this Court was supposed to be on July 6, 2020. I was unable to locate in the Endorsements Record a copy of any Endorsement from a July 6, 2020 appearance. However, in the material before the Court for the trial there is an email dated June 30, 2020, by which the father’s former counsel’s office once again asked Mr. Herbert for another adjournment. The stated reason for the adjournment was that the parties still had to exchange disclosure, and briefs. Counsel asked for up to 45 days to do this. Mr. Herbert said no, but said he would consent to late filing of a brief.

[189] During cross-examination, the father suggested that his former counsel was acting without his instructions in seeking this most recent adjournment. However, in his affidavit of November 9, 2020, the father admits that he asked for this particular adjournment, because he was changing counsel.

[190] The father changed counsel at some point after that. On August 19, 2020, the father filed the 14B Motion, asking to raise arguments under the Hague Convention, asking for A.K.’s return to Texas, and asking that the mother’s custody application be stayed. Alternatively, his 14B Motion seeks directions from the Court.

[191] The 14B Motion was dealt with at the next Court date in September. On September 18, 2020, Wegant J. granted the father leave to commence a Hague Convention application, and made a scheduling order for the exchange of material.

[192] The Hague Convention application was issued on October 1, 2020. The matter first came on before Weagant J., and then before me, in the manner and for the reasons already described above. What is clear is that once the father finally took steps to move forward with his Hague Convention application, a trial got underway 2 months later.

[193] It was open to the father to pursue A.K.’s return to Texas in this Court for well over a year at that point. Yet the father sought three adjournments for various reasons, and went on a significant oversees trip during that time frame. I heard no evidence that he made any requests to come to Toronto to see A.K., or to bring a motion earlier on in the proceedings.

[194] Quite apart from the individual reasons that the father offered up for his failure to pursue various steps in the litigation in this Court with more haste as they came and went, there are other credibility issues regarding the father’s explanations for his dilatory conduct in the litigation.

[195] For example, the father says that after he was served with the mother’s custody application, he began consulting with multiple lawyers. He did this in both Texas and Ontario. Apart from his current and former Ontario counsel that he retained, he spoke with one other Ontario, and three Texas family lawyers.

[196] The father says that during the consultations he had between June and September, 2019, he did not learn about the Hague Convention, because none of those lawyers told him about it. According to the father, he may not have even told at least one of the lawyers that A.K. had been wrongfully removed from Texas because he was “pursuing reconciliation”.

[197] At some point in 2020, the father consulted with a Texas family lawyer, named Jedidiah Moffett. By this time, he had caused the green card application to be withdrawn, he had been served with the mother’s custody application, he answered it, and he had commenced a Texas divorce petition. It was crystal clear that A.K.’s return to Texas was the core and immediate issue between the parents. Yet the father says that this Texas lawyer never advised him about the Hague Convention, either, and so he continued to be unaware of it.

[198] Frankly, I find the father’s explanation about the legal advice he says he received really hard to believe. While the father maintains that he was either talking to multiple lawyers about reconciling and/or they were giving him bad advice by failing to tell him about the Hague Convention, it bears repeating that in contrast to this, in the days after the mother’s departure from Texas, the father was able to get to get immediate immigration law advice very quickly, and to withdraw the green card application. It is incredible to think, by contrast, that he would not have fully informed himself of his family law rights, following the mother taking A.K. to Toronto. And although he claimed that he did not initially see this as a case of “abduction”, that is directly contradicted by one of the few text messages that he did send to the mother after her departure. On June 22, 2019, he specifically accused her otherwise.

[199] The father put his state of mind in issue, based on legal advice he alleges he received. Arguably, he waived solicitor-client privilege over what he was told by these lawyers. Yet I heard no evidence directly from any of these lawyers. Under these circumstances, and in light of the other issues with the father’s credibility, I would not make such a serious finding that lawyers did not properly advise him, without hearing from them. I therefore make no allowance for the father’s delay in the litigation, based on an assertion of him being ignorant as to the law, due to inadequate legal advice.

[200] I find that the father’s behaviour in the litigation is also evidence of subsequent acquiescence.

G. The Father’s Claims About the Justice System

[201] I have already addressed the father’s suggestion that the Court’s Covid-19 policy somehow contributed to his inability to proceed with the case with more haste. But the father separately made a different claim about how the justice system in Ontario during Covid-19 contributed to his delay in a different way.

[202] The father claims that he tried to pursue a claim under the Hague Convention in Texas, but that he needed the Ministry of the Attorney General to serve his application, and it would not do so due to Covid-19. Inconsistently, he says he tried to do this while also telling the Court that he was unaware of, because he had not been advised of the Hague Convention. In any case, I find this to be an unfair criticism of the Ministry, because it is factually incorrect.

[203] The document, to which the father refers in his affidavits as the “Hague proceeding in Texas” and the “U.S. Hague Application” that he wanted to serve, is actually just his Texas divorce petition. It contains no claims under the Hague Convention. A careful review of the email correspondence between counsel on this point, attached as Exhibits “M” and “N” to the father’s affidavit of October 9, 2020, and Exhibit “N” to his affidavit of November 9, 2020, reveals this. It also reveals that that the Texas lawyer, whom he had eventually retained by early 2020 to commence that Texas proceeding, was trying to serve his Texas divorce petition through the “Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”. And it was several months later, by the summer of 2020, that she encountered difficultly doing that, because of Covid-19 [11]. Regardless, a divorce petition that is served under the different Hague Convention about service, is not the same as a proceeding for the child’s return under the Hague Convention, which the father never brought, either here or in the US, until October 1, 2020.

H. Conclusions Regarding the Father’s Subsequent Acquiescence

[204] In conclusion, I find that it is not just the conduct about the green card, but also all of the evidence of the father’s subsequent acquiescence, considered together, to be overwhelming. I find the mother has made out an Article 13(a) exception. For those reasons alone, I would dismiss the father’s application. However, I will nevertheless consider the other two exceptions that the mother has raised.

PART VIII: APPLICABLE LEGAL PRINCIPLES AND ANALYSIS CONCERNING GRAVE RISK AND INTOLERABILITY

[205] The mother has also raised an Article 13(b) exception. Article 13(b) states that the Court is not required to return A.K., if the mother proves that “there is a grave risk that [A.K.’s return] would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation”.

[206] In Thomson v. Thomson, 1994 SCC 26, [1994] 3 S.C.R. 551, at 596-97, the Supreme Court said the following about Article 13(b) of the Hague Convention:

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”

[207] Some decisions since Thomson v. Thomson have characterized the test under Article 13(b) as “high”; others have called it “extremely high”. These high thresholds are reinforced, when the Article 13(b) exception is considered in context and in light of the Hague Convention’s important object and purpose. See for example Ellis v. Wentzell-Ellis, 2010 ONCA 347 ¶ 38-42; see also Singh v. Ramotar, 2018 ONSC 2964 ¶ 29.

[208] The father has supplied the Court with several authorities that he says are analogous, to demonstrate that the mother has not proven this exception on the high standard that is required. However, this is not a case, like in D.P.M. v. S.-A.D., 2008 ONCJ 798, where the exception was not made out, where it was based on the mother’s unhappiness in the other jurisdiction and unproven allegations of sexual abuse. Nor is it a case like in Brown v. Pulley, where there were two children (older than A.K.) who enjoyed a good relationship with the left behind parent, and where the Court was not persuaded that the mother could not return with them to North Carolina. Nor is it a case of domestic violence, like in Singh v. Ramotar, where there was an unproven assertion that the foreign jurisdiction (Pennsylvania) could not adequately protect against it. In fact, in this case before me, the mother does not even rely on the conflict in the marriage, her account of the June 10, 2019 incident, or the local police force’s response to it, at all in support of her Article 13(b) exception.

[209] Instead, the mother’s claim under Article 13(b) is rather straightforward. She was, and is A.K.’s primary parent. His primary bond is with her. There is a serious risk that she will be unable to return to Texas, or if she gets into the United States, to remain there. Returning the child under these circumstances will run the risk that the mother and A.K. will be separated. This will cause the risk of harm and intolerability of the kind contemplated in Article 13(b).

[210] I agree. I am satisfied that the mother had made out this exception. See also Hage v. Bryntwick ¶ 62, 63.

PART IX: APPLICABLE LEGAL PRINCIPLES CONCERNING THE “SETTLED IN” EXCEPTION

[211] Subject to the Article 13 exceptions, Article 12 requires the Court to order the return of the child where the Court finds a child was wrongfully removed, and the Hague Convention proceeding was commenced within a year of the removal. Where more than one year has passed, the Court is still to order the return, but there is an additional exception where “it is demonstrated that the child is now settled in its new environment”.

[212] Although I have found the mother established the above two Article 13 exceptions, I will still consider the final, Article 12 exception raised by the mother.

[213] This Article 12 exception requires the Court to engage in a factual assessment of the child’s integration in the new environment, and a “purposive and contextual analysis of the policy of the Convention as it relates to the specific circumstances of the child.” The Court must “…carefully balance the various objectives of the Convention weighing in favour of or against return, with the interest of the particular child in not being uprooted”. See Kubera v. Kubera, 2010 BCCA 118 ¶ 43.

[214] The relevant interpretive objectives include general deterrence of international child abduction by parents, prompt return facilitated by precluding a full inquiry into the best interests of the child into the state to which the abductor has fled, restoration of the status quo and entrusting courts of the place of habitual residence the ultimate determination of what the best interests of the child require. See Kubera v. Kubera ¶ 42.

[215] The concept of settlement is a matter of degree. It requires more than a mere “adjustment to surroundings”. It includes “a physical element, relating to being established in a community, and an emotional element, relating to security and stability”. Assessing stability involves examining “the child’s future prospects as well as his or her current circumstances”. See Kubera v. Kubera ¶ 44.

[216] The Court must look at the child’s perspective, to consider the impact on him were he to be moved again. Circumstances, like those where the “abducting parent” conceals the child’s whereabouts or delays the proceedings (which do not apply in this case in any event), are relevant to the deterrent objective of the Hague Convention, but not to the child’s “factual integration”, unless the concealment or delay interfered with the child’s ability to settle in the new environment and community. The factual inquiry is to be “child-centric”, and the policies and objectives of the Convention are then applied to those facts. See Kubera v. Kubera ¶ 46-48.

PART X: ANALYSIS CONCERNING THE “SETTLED IN” EXCEPTION

A. Whether the Article 12 “Settled In” Exception is Available to the Mother

[217] The father asserts that the “settled in” exception is not available to the mother, because within 12 months, he raised ‘Hague Convention type’ arguments, and/or he effectively raised the Hague Convention via his the “Hague proceeding in Texas” / “U.S. Hague Application” and via his 14B Motion.

[218] At the outset of this decision, I mentioned that counsel for the mother took issue with the fact that the father made an alternative, wrongful retention argument, because he said it had not been pleaded or pursued during the trial. With respect to counsel, I find that approach to be overly technical. There was more than enough information in the material before the Court, and adequate notice to both sides, to enable the father to raise both arguments.

[219] I would therefore allow father to mount the alternative argument. However, just because the father may raise the argument, does not mean it is a meritorious one, and in my view, it does not alter the result in this case.

[220] It is in part because of the alternative arguments, and the fact that the mother has raised an Article 12 exception, that I went to some lengths to characterize when the wrongful removal or alternatively the wrongful retention occurred.

[221] I have already found that the 12 months began to run as of the mother’s departure from Texas on June 11, 2019. Alternatively, I would have found that the date of the wrongful retention was no later than the end of July, 2019. Even if the correct time for the clock to start running was as late as September 7, 2019 as the father claims (which I do not find), it does not impact the outcome for the following reasons.

[222] I reject the argument that the father, by responding to the mother’s jurisdiction claim under other provisions of the Children’s Law Reform Act, also using the non-Hague Convention jurisdiction provisions of the Children’s Law Reform Act, commenced a proceeding within the meaning of Article 12 of the Hague Convention. In the context of Article 12, and the Hague Convention as a whole, that argument cannot succeed.

[223] Commencing a proceeding under the Hague Convention must necessarily mean just that. The “commencement of proceedings” under the Hague Convention triggers a different treatment a case. For example, there are different timelines, in some instances different evidentiary rules, sometimes Central Authorities get involved, the Court may request information from foreign judicial officers, and different legal tests apply. None of which is engaged by raising jurisdiction under sections 22, 23 and 25 of the Children’s Law Reform Act. Thus, I do not find that the father’s Answer dated October 16, 2019 (filed October 21, 2019) qualifies as the “commencement of proceedings” within the meaning of Article 12. As such, it does not defeat the mother’s ability to raise an Article 12 exception.

[224] Moreover, the father himself has supplied the Court with a case, Mindermann v. Mandall, 2010 ONCJ 182, in which this Court ruled to the contrary on a very argument. In Mindermann v. Mandall, the mother had filed an actual application with her (the foreign) Central Authority within 10 months of the child’s removal. But Ontario counsel then failed to prepare the necessary Court documents in Ontario in a timely fashion. Even though the documents the mother had initially filed abroad were pursuant to the Hague Convention regime, the proceeding was not commenced in the Ontario Court until after the one-year period. The Court held that the father could still claim the “settled in” exception, although it failed on its merits in that case. See Mindermann v. Mandall ¶ 52.

[225] Therefore, for that additional reason, I also find that the father’s Answer of October 16, 2019 (filed October 21, 2019) does not meet the “commencement of proceedings” requirement under Article 12 of the Hague Convention. Nor for that matter, would be the Texas divorce petition that he issued in Texas in January 2020, which had not yet even been served to the mother by the time of this trial, and which is silent on the Hague Convention (but which the father tried to recast as the “Hague proceeding in Texas” and the “U.S. Hague Application”).

[226] As I have found that the 12 month period started to run as of the date of the removal on June 11, 2019, or even as of the end of July 2019, then the mother can raise an Article 12 “settled in” exception.

[227] To the extent that I am wrong, and even if the clock did not start to run until September 7, 2019 as the father said, I would still not find the father’s 14B Motion of August 19, 2020 to amount to the “commencement of proceedings” within the meaning of Article 12. Even by August 19, 2020 he was only asking for permission to do so within a case in which the pleadings had already closed. The fact that the father’s late request was not addressed until mid-September, 2020 must now rest on the father’s shoulders. Weagant J.’s endorsement of September 18, 2020 was clear; by that date no proceeding under the Hague Convention had yet commenced. For these additional reasons, I find that the father’s objection to the mother raising an Article 12 exception must fail.

B. Whether the Mother has Established an Article 12 “Settled In” Exception

[228] On the merits, the father relies on Mindermann v. Mandall to argue that even where the 12-month period lapsed, but where a Hague Convention proceeding is commenced soon thereafter, the deterrent objective should still weight heavily in favour of ordering a return. See ¶ 63(1.) of Mindermann v. Mandall. However, that comment must be looked at in the context of the facts of that case.

[229] In Mindermann v. Mandall, Mr. Mandall, who was the parent refusing to return the child from Ontario to the United States, did not even have immigration status in Canada. He was financially dependant on his family, and he tendered no evidence about the child’s community connections. Remarkably, as of the date of his affidavit, Mr. Mandall was incarcerated on an arrest warrant awaiting extradition to the United States, the very country to which the mother sought the child’s return.

[230] At ¶ 59 of Mindermann v. Mandall, Nelson J. found that Mr. Mandall failed to provide the necessary, cogent evidence that the child had settled in, to make out the Article 12 exception. Or even that there was any stability to the arrangement that the father had in place for the child.

[231] In this case, both parents assert that the child is more or less connected to Texas or Ontario. In stark contrast to facts in Mindermann v. Mandall, I find make the following findings about A.K.’s circumstances in this case before me:

(a) The child lived in Toronto for the first two months of his life, and then for no more than 10 months in Texas. Between the mother’s return and the commencement of the trial, the child spent another 18 months in Toronto. I find that the child has spent the majority of his life in Toronto;

(b) I have already found the child’s primary bond has been with the mother. Even if I were to fault the mother entirely (which I do not) for causing the father having limited contact with A.K. after her return here, I note that she did not just become the primary parent since June 11, 2019. The mother was also the child’s primary parent while she lived in Texas, too;

(c) I am aware of no efforts by the father to arrange in person access here since the mother’s return. While I accept there are now travel restrictions in place due to Covid-19, that was not so until 9 months after the mother’s return to Toronto. During that time, the father took a significant trip to Saudi Arabia;

(d) The child is a citizen of both countries. The mother, with whom he enjoys his primary bond, is not and will have many challenges re-entering and remaining in the United States;

(e) The parents each have professional degrees, and the ability to work Texas and Toronto, respectively, but not in each other’s jurisdiction. Insofar as the mother is concerned, this is not a situation of instability like in Mindermann v. Mandall. The mother is qualified to work as a pharmacist here. That affords her, and the child, stability;

(f) Although her accommodations here are smaller than the father’s, the mother does have housing here in Toronto for herself and the child;

(g) The mother has maintained the child’s pediatrician here, even while she and A.K. lived in Texas for 10 months. There is evidence before the Court that she took A.K. to several pediatrician appointments here in the first two months of his life, and then these appointments resumed after her return to Ontario with A.K. in June of 2019;

(h) A.K. now goes to pre-school, online, three days per week, commencing September of 2020. The father says that the mother only signed A.K. up, after he brought the 14B Motion to raise the Hague Convention. The implicit, if not express suggestion, is that the mother is trying to create community ties that did not otherwise exist. I decline to make this finding. I do not know that this is true, or whether the timing is just coincidental. But even if what the father says is true, it still amounts to some evidence of A.K.’s ties to the community. I also note that he is taking French classes and music classes too;

(i) The mother’s closest relationships, to whom she will expose the child, are with her parents. Again, they live with her. It is true that the mother has other family elsewhere in Ontario, and in the United States. Other than her sister in British Columbia, those other family members are not her close, familial relationships;

(j) A.K. has his paternal grandparents and the father’s brother and family in Texas. But in contrast to his maternal grandparents, as at the time of the trial, he had not seen them in person in approximately 18 months.

[232] These factors mostly demonstrate the mother has the physical arrangements in place to offer A.K. stability here. But I would not decide the Article 12 exception solely on the basis of A.K. having physically settled in here given his young age.

[233] In this case the Article 12 exception is tied to the other exceptions that I have already dealt with. A.K.’s settling in here is also of the emotional kind referred to in Kubera v. Kubera. His security and stability are also settled, because they are tied to his primary caregiver, his mother, and she may only live here legally.

[234] When I apply the policies and objectives of the Hague Convention to these child-centric findings of fact, I consider that the circumstances of the mother taking A.K. to Canada include that she did not conceal here whereabouts once here, she attempted to return to Texas with the child but she was rebuffed by the father, she had her legal ability to return to Texas interfered with by the very person who now seeks A.K.’s return.

[235] It was even the mother who started the court proceedings here, only for the father to delay them. This is not a situation where the mother concealed herself and the child, created delay and thus obstructed the father’s ability to enforce his rights. Rather, the mother came here after the heated argument with the father, after the police made her go, yet again to a “family friend’s” home, and in circumstances of an unstable marriage.

[236] Although I did find that the removal was wrongful, I must consider that in this context. The objectives of deterrence, prompt return and the restoration of the status quo are deserving of less weight in this context on the totality of the evidence.

PART XI: ANALYSIS RESPECTING JURISDICTION UNDER SECTIONS 22, 23 AND 25 OF THE CHILDREN’S LAW REFORM ACT

[237] I disagree with the father’s submissions about the complete inapplicability of sections 22, 23 and 25 of the Children’s Law Reform Act. Had I found the Hague Convention not to apply, for example, because suppose there had been no breach of Article 3, then it would have been open for the Court to consider jurisdiction under these provisions. And they require a different analysis in certain respects.

[238] However, section 46(8) of the Children’s Law Reform Act also states that where there is a conflict between section 46 (which enacts the Hague Convention) and any other enactment, section 46 prevails.

[239] Because I have found that the Hague Convention does in fact apply, but the mother has made out various exceptions, the Court will decline to return A.K. to Texas and it will assume jurisdiction over the substantive issues in the mother’s Application and the father’s Answer.

PART XII: ORDER

[240] Therefore, I make the following Orders:

(a) The father’s Application dated October 1, 2020 is dismissed;

(b) That includes a dismissal of the father’s request, that the mother’s non-jurisdiction claims in her Application dated August 21, 2019 (and presumably his non-jurisdiction claims in his Answer dated October 16, 2019), be stayed;

(c) I find that this Court has jurisdiction over A.K.’s custody and access;

(d) This matter shall return to the case management judge, Justice Weagant, for a case conference on March 24, 2021 at 3:30 pm by zoom, to address the next steps of the custody, access case, and any other issues properly before this Court raised in the parties’ pleadings. If counsel are unavailable on this date, they should file a 14B for a different date;

(e) If the parties cannot agree on costs, and if the mother claims costs, she may submit costs submissions in writing, limited to no more than 5 pages, 1.5 spacing, plus a Bill of Costs, copies of any Offers to Settle, and case law by Tuesday, February 23, 2021; and

(f) The father may respond by Tuesday, March 9, 2021 with written submissions and attachments that are subject to the same limits.

[241] I wish to thank counsel for their thorough and professional presentation of this case.

Released: February 9, 2021 Signed: Justice Alex Finlayson

[1] Nor did the Court adopt the “child-centred approach”, which looks at the “child’s acclimatization in a given country, rendering the intentions of the parents largely irrelevant”. See Office of the Children’s Lawyer v. Balev ¶ 44.

[2] I appreciate that Juma v. Juma was decided prior to Office of the Children’s Lawyer v. Balev. I am relying on Juma v. Juma to resolve a factual dispute in the evidence about parental intentions, and to make a finding of fact as to what those intentions were. I wish to be clear though, that I am nevertheless applying the hybrid approach to the overall question of the child’s habitual residence, as I am directed to do by the Supreme Court in Office of the Children’s Lawyer v. Balev. Later on, I summarize what evidence I have taken into account, to find that the child’s habitual residence was Texas, as at June 11, 2019.

[3] The father was pursuing a MBA at the time. He obtained the MBA at some point in 2018.

[4] There is some suggestion by the father that when the mother was in Texas between August 2018 and June 2019, the mother spent her time studying and the paternal grandmother took on more of a caregiving role for A.K.. I would not make that finding. And what is very clear is that the father did not take on a significant parenting role. By most accounts, he was busy either finishing up his MBA degree, or he was focused on his work and coming home late. I do accept however, that the paternal grandmother probably assisted the mother, by providing some child care.

[5] In this case, I am not finding the father moved for the child’s return within 12 months.

[6] I am also not finding that he attempted reconciliation after the removal.

[7] The finding of fact in (d) is also based on the mother’s evidence in addition to Ms. Kennedy’s.

[8] A number of calls between the parents and amongst members of the parents’ extended families were recorded and transcribed. Neither side raised any objections to recordings being before the Court.

[9] Asad is the father’s brother.

[10] The father’s former counsel’s office did this, not his current counsel Mr. Nussbaum and Ms. Bhayat.

[11] I am also unclear why service of the Texas petition was not completed at the beginning of 2020, prior to Covid-19. Again, the petition was filed in the Texas Court in January, 2020. Moreover, I am also not certain that the Texas petition couldn’t have been served by regular mail or by other means, without going through the Hague Convention re: Service. See Article 10 of that Convention. See also the email between counsel attached at Exhibit “N” to the father’s affidavit of November 9, 2020 that questions whether service outside the Hague Convention re: Service would suffice for the Texas Court.