Court File and Parties

TORONTO COURT FILE NO.: FC-16-20742 DATE: 20160627 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JEREMY DAVID UNGER Applicant – and – VICTORIA AMBRE UNGER Respondent

Counsel: M. Stangarone & K. Maurina, for the Applicant A. Feldstein, for the Respondent

HEARD: June 2, 2016

Decision

L.E. FRYER, J

I. INTRODUCTION

[1] This is an Application by the Applicant Father, Jeremy David Unger, brought under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (entered into force 1 December 1983), (“Hague Convention” or “Convention”) seeking the return of his daughter Naomi Rachelle Unger (born June 13, 2012) to Tiveria, Israel.

[2] The family travelled from Israel to Toronto in August 2015 on a planned vacation. At the end of the vacation the Mother, Victoria Ambre Unger and Naomi remained in Toronto.

[3] The Father’s position is that Israel remains Naomi’s habitual residence. He consented to the Mother and Naomi extending their holiday and remaining in Toronto for a further fixed period of time. At the end of the temporary stay the Mother refused to return to Israel with Naomi and she is wrongfully retaining the child in Ontario. The Father states that he repeatedly asked the Mother and Naomi to return home. He delayed bringing this Application as he was (a) initially unaware of his rights under the Hague Convention and (b) seeking to placate the Mother and repair their relationship.

[4] The Mother agrees that the family initially intended only a temporary stay in Ontario. However, for various reasons including her health, she and the Father agreed to move to Toronto for the foreseeable future. The parties took a number of concrete steps to start their new life in Toronto and wind-up their life in Israel. The Mother’s position is that the parties mutually agreed to change the child’s habitual residence from Israel to Ontario. Alternatively, even if Israel was found to be Naomi’s habitual residence, the Father consented or acquiesced to her remaining in Ontario with Naomi.

II. BACKGROUND

[5] The Mother is 29 years old and the Father is 28 years old. They met in Israel where the Father was studying. After they returned to their respective homes, the Mother in Toronto and the Father in Dallas, Texas, they carried on a long-distance relationship.

[6] The Mother’s parents and other family live in Toronto. The Father’s parents and other family live in Dallas. The Mother and Father both also have extended family in Israel.

[7] The parties were married on August 22, 2011 in Dallas and they remained living there. Their daughter Naomi was born the following year on June 13, 2012.

[8] The Mother and Father decided that they wished to raise their family in Israel. They were accepted to the Nefesh B’Nefesh (NBN) Go North Program that provides financial grants and supports to families who undertake to permanently relocating in Israel. The parties executed a contract confirming this commitment. The contract required the parties to repay the financial grant should they leave Israel within three years.

[9] The parties moved with Naomi to Tiveria, Israel in or around February 2013.

[10] The Father works from home as a web-developer. He was contracted through an Israeli company to work for EyeCarePro the head office of which is located in North York, Ontario.

[11] The Mother has training as a make-up artist and hair stylist but she has not worked since Naomi was born.

III. ANALYSIS

[12] Canada and Israel are contracting states under the Hague Convention. Section 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), incorporates the Convention into the law of Ontario.

1. General Principles of the Hague Convention

[13] Article 1 sets out the objects of the Convention which are:

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

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

[14] Pursuant to Article 3 of the Convention:

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

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

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

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

[15] Article 4 of the Convention states:

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

[16] The Father relies upon Article 12 of the Convention in seeking to have Naomi returned to Israel; Article 12 states:

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

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

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

[17] A person who applies for an order for the return of the child must establish the following on the balance of probabilities:

(a) that the State to which he/she asks the child to be returned is the child’s habitual residence;

(b) that he/she had a right of custody and was exercising that right at the time of removal or retention; and

(c) that the removal or retention was wrongful, and done without his/her consent or acquiescence: J.T. v. S.L.T., 2016 ONCJ 83, 129 O.R. (3d) 453, at para. 8.

[18] In considering an application under this part, the court is not to consider the subject child’s best interests as would be the case in a custody hearing: Article 16 of the Convention and Thomson v. Thomson, 1994 SCC 26, [1994] 3 S.C.R. 551, at para. 578. The presumptive interests which do apply in deciding whether to return a child promptly are those set out in the preamble to the Convention, namely the interests of children generally in not being wrongfully removed from their habitual residence: Pollastro v. Pollastro, 1999 ONCA 3702, 43 O.R. (3d) 485, at para. 495.

2. Expeditious Process & Initial Procedural Orders

[19] Article 2 of the Convention requires that the contracting states adopt expeditious procedures for the disposition of Convention applications for the return of a child or children. The normal practice is to make the necessary order based on a summary application: Korutowska-Wooff v. Wooff, 2004 ONCA 5548, 242 D.L.R. (4th) 385, at para. 19; and Katsigiannis v. Kottick-Katsigiannis, 2001 ONCA 24075, 55 O.R. (3d) 456, at para. 59.

[20] This matter proceeded before me on the basis of affidavit evidence. I also permitted the Father to show a short video clip made by the Mother (touring their new apartment in Tiveria) with respect to what I have found to be a non-contentious issue.

[21] The Mother made preliminary evidentiary objections. For oral reasons already given, I made the following rulings:

• The Mother made a general objection that the Father raised new issues in his Reply Affidavit sworn May 20, 2016 contrary to rule 14(20) of the Family Law Rules, O. Reg. 114/99. I allowed the Father’s reply evidence with the exceptions noted below.
• The Mother objected to the Father seeking to introduce in his Reply Affidavit dated May 20, 2016 a letter from a family lawyer in Israel regarding the law of custody in that state. I allowed the evidence but ruled that I would consider the objection when assessing weight.
• I declined to consider an expert report by one, Alan Kaine put forward by the Father.

3. Determination of Child’s Habitual Residence

[22] The court must first make a finding with respect to ‘habitual residence’ as this is the “sole connecting factor triggering the child’s return”: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183, at para. 27.

[23] There is no definition of ‘habitual residence’ in the Convention. A child’s ‘habitual residence’ is a question of fact to be decided based on all of the circumstances. It is the place where the child resides for an appreciable period of time based on the joint, settled intention of the child’s parents. One parent’s settled intention is not sufficient. Parents need not intend for a place to be their permanent home for it to be deemed to be their habitual residence. See Korutowska-Wooff, at para. 8; Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 22-23; and A.H. v. F.S.H., 2013 ONSC 1308, 28 R.F.L. (7th) 163, aff’d Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, [2013] O.J. No. 1609.

[24] It is not disputed that until the parties travelled to Toronto in August 2015, their habitual residence and that of Naomi was Israel. The family travelled from Israel to Canada on a return ticket and they were scheduled to return two months later on October 14, 2015. The parties left a furnished apartment in Tiveria for which they had paid a full years’ rent. They had prepaid Naomi’s daycare in Israel for the year. The family also left behind their dog.

[25] The Father stressed that the parties had also entered into a binding contract with the Nefesh B’Nefesh Program that tied them to Israel. This contract would require the parties to repay the original grant of $7,500 if they left Israel within three years.

[26] Between August 2015 and October 2015 the family travelled in the U.S. to attend the Mother’s sister’s wedding and to visit some of the Father’s family in Dallas, Texas. At this time, it was still the parties’ intention to return to Israel and habitual residence remained Israel.

[27] After this point each party’s interpretation of the evidence diverges. Where the evidence of the parties conflicted, and in many of the important details it did not, I prefer that of the Mother. The Mother’s affidavit evidence was for the most part carefully stated and presented a more cohesive narrative. The Father’s evidence contained more generalizations that were not supported by the extrinsic evidence. For example, the Father’s allegation of a ‘devious plan’ orchestrated by the Mother to retain Naomi in Ontario was not founded in the evidence.

(i) Settled Intention to Change Habitual Residence

[28] As Justice Kruzik stated in A.H. v. F.S.H., at para. 13, it is “this court’s task to determine the intention of the parents as of the last time that their intentions were shared.”

[29] I find upon a review of all of the evidence that while the parties were in Toronto they mutually agreed to change their habitual residence from Israel to Ontario: this was the last time that they had shared intentions. The Father later changed his mind and decided to remain living in Israel while the Mother and Naomi remained in Ontario. On March 4, 2016 the Father communicated his wish that the Mother and Naomi return to Israel.

[30] The Father submitted that the existence of a ‘settled intention’ is determined by reference to intention immediately prior to the physical move to the new residence. For this position he relied on Fasiang v. Fasiangova, 2008 BCSC 1339, 87 B.C.L.R. (4th) 118, at para. 64, citing deHaan v. Gracia, 2004 ABQB 74, 351 A.R. 354.

[31] In deHaan, the court found that the last time the parties’ intentions were shared was immediately prior to the move, this was the relevant time to determine the parties’ settled intention on the facts of that case. However, I do not interpret that case as standing for the proposition that the only time a court can consider a shared intention of the parties to change habitual residence is immediately prior to the physical move.

[32] The United States Court of Appeals for the Ninth Circuit in Mozes v. Mozes, 293 F. 3d 1067 (9th Cir. 2001), at p. 1075, found that a settled intention need not be determined at the moment of departure from the prior habitual residence; the parties’ actions when abroad may indicate a settled intention to abandon the former habitual residence for a new habitual residence.

[33] Although Mozes is a decision by a U.S. court, it has been followed in a number of Canadian authorities for the determination of habitual residence; include Proia v. Proia 2013 ABQB 576, 340 A.R. 363; Fasiang; J.T. v. S.L.T., and Csoke v. Fustos, 2013 ONSC 2417, [2013] O.J. No. 1927. In Ellis at para. 20 the court held that:

[A]lthough foreign case law is not binding, the court should nevertheless take care to ensure consistency with the interpretations adopted by the courts of other states parties, particularly where a consensus has emerged from among them. To do otherwise would…not only weaken the Convention but also run contrary to the will of the legislature which has chosen to enact it into domestic law.

[34] When the family left Israel for Toronto in August 2015 in addition to attending the wedding, they also wished to seek treatment for the Mother’s medical condition of hypothyroidism with a background of autoimmune thyroiditis. The Mother deposed that upon her arrival, her parents were shocked at the state of her health. She had put on 80 pounds and was depressed. The Father suggested that the state of the Mother’s health was only a secondary reason for the trip as she could have continued to receive treatment from her doctor in Israel. However the evidence, including that of the Father’s employer, suggested that the Mother’s health and the desire to access Canadian health care services was a prime reason for the trip to Toronto.

[35] The Mother returned to her Canadian doctors and her health improved. In or around the middle of October 2015, the parties agreed to remain in Ontario for the foreseeable future and they took steps to implement this plan.

[36] The return flight to Israel was originally booked for October 14, 2015. The Mother’s mother changed the parties’ flights. The Father’s ticket was changed to a departure on or about November 8, 2015. The Mother’s ticket was changed to have no fixed return date. The Father stated that that this was done without his consent but he was aware of these arrangements at the time. However, as further set out below, these flight changes were consistent with the mutual intentions of the Mother and Father.

[37] On October 22, 2015 the parties opened a joint bank account at the Bank of Nova Scotia in North York. On the account application the Mother listed her address as her parents’ home in North York, Ontario. The Father listed his address as 203 Creekside Lane, Coppell, Texas, not Tiveria, Israel. The Mother also attempted to close or freeze her bank accounts in Israel. Her visa through the Bank of Jerusalem had already been cancelled due to fraud activity.

[38] The parties enrolled Naomi in the Prosserman Daycare on a full time basis; the form indicates that registration is for a twelve month period ending June 30, 2016. The enrolment form was signed by the Father on October 26, 2015, and he lists the Mother’s parents’ address in North York as his home address. The Father stated that he agreed to the daycare to allow the Mother time to go to the gym and to doctor’s appointments while she was staying in Canada as this was important for her health. However, the cost of the daycare was $580 bi-weekly and the means of the family did not appear to be such that this would be an affordable expense simply to permit the Mother some time to go to the gym. For example the Father delayed his return trip to see Naomi by over a month in order to save “several hundred dollars” on the cost of his flight.

[39] In his Affidavit sworn March 18, 2016 the Father stated: “Unless documentation was filed without my knowledge or consent, Naomi is not a Canadian citizen and has never resided in Canada”. The Father may not have been aware of documentation being filed but on November 5, 2015 he had signed the Canadian citizenship application form for Naomi.

[40] On November 8, 2015 the Father returned to Israel.

[41] The Father suggests that he agreed to the Mother and Naomi having a time-limited visit that he extended to December 2015. He stated in his Affidavit sworn March 18, 2015:

The Respondent assured me that she was returning to Israel, with her mother, in December 2015, during which time I was hoping to speak to her about saving our marriage and remaining in Israel together with Naomi Rachelle. I continued to attempt to convince her to return. However, as December approached, she informed me that she would not be returning to Israel with her mother.

[42] I prefer the evidence of the Mother which is that the Father returned to Israel in order to wind-up their affairs there and that at least initially, he planned to return to join them in Toronto.

[43] On November 10, 2015 the Father sent by courier to the Mother original government documents including birth certificates, a social security card and vaccine records. The Father stated that these documents were required by the daycare. Around the same time as he couriered the documents, the Father sent three or four boxes of clothing, toys and other personal belongings. The Father says that he did this so that the Mother and Naomi would be more comfortable on their time-limited visit.

[44] I query why the Father would go to the expense and trouble of shipping important documents and belongings to Canada when, according to him, the family was expected to return to Israel a few weeks later.

[45] On December 6, 2015, the Father sent an e-mail to the Mother about future employment opportunities for her including links to various organizations in and around Toronto. In his Affidavit evidence for this application, the Father stated that he wanted the Mother to acquire skills that she could bring back to Israel with her. However, in the same e-mail he jokes about her and her father (a child psychologist and professor at York University), among others, forming part of a “wellness dream team”.

[46] The Mother filed an Affidavit sworn by her sister, Carina Rock. The Father was close to Ms. Rock and it was through her that the parties met in Israel. Ms. Rock attaches a text message exchange that was initiated by the Father on November 17, 2015 after his return to Israel the relevant parts of which are set out below:

Carina Rock: How’s it going in Israel? Father: So far so good! Trying to get everything in order, and cope with leaving….all that good stuff. Carina Rock: Enjoy yourself there. Before you head out. Take time to soak eretz Yisroel in Father: Yeah, I will! Carina Rock: Is that the plan. To head to TO?? Father: Yeah. The plan is be in Toronto until further notice…which basically means forever…. Carina Rock: Do you still have your job? Father: Yes I do! Which is good. At least then I won’t have to look for a new one in Toronto! Carina Rock: Yes. At least you have some money coming in Father: That’s true. And hopefully Vicky will get to working soon, too! Carina Rock: I wish you all the clarity and strength. To heal and move forward in a positive manner with forethought and irat Hashem Father: Thanks Carina! We need all of it!

[47] The Father in submissions stressed that undue weight should not be placed on this ‘isolated’ text message exchange and he directed me to Gavriel v. Tal-Gavriel, 2015 ONSC 4181, 65 R.F.L. (7th) 452, at paras. 62-63, in support of this proposition. In Gavriel the family had moved to Guelph so that the mother could study at the university there. The parties separated three months after arrival. The mother commenced a divorce proceeding in Israel but later sought to have the children remain in Ontario. The father sought to have the children returned to Israel and relied on the mother’s divorce proceeding as an ‘admission’ that Israel was the habitual residence. The court found that on review of all of the evidence, the family had a settled intention to reside in Guelph.

[48] In the case at hand the text message exchange supports the Mother’s assertion that the Father had returned to Israel to wind-up their affairs rather than the Father’s position that he was expecting the Mother to return home after her finite stay in Ontario. Rather than being an isolated admission it is consistent with other evidence of steps taken to facilitate a move.

[49] The parties’ relationship during this time was rocky. Just prior to his leaving for Israel in November 2015, the Mother’s father observed what he felt was inappropriate behaviour by the Father toward Naomi. The Mother also disclosed to her parents that she had concerns about the Father’s actions toward Naomi while they were living in Israel.

[50] The Father included in his affidavit evidence, the file from Jewish Family & Child Services (“JF&CS”) which was contacted for the first time on November 5, 2015 by a third party regarding alleged inappropriate behaviour by the Father toward Naomi. JF&CS conducted an investigation including an interview with and physical examination of Naomi the results of which were inconclusive and the file was closed. JF&CS also contacted the police; no charges were laid. I reviewed the JF&CS notes. I make no finding as to whether the Father did anything improper with respect to his child.

[51] Sometime after his return to Israel in November 2015, the Father appeared to have second thoughts about whether he would return to live in Toronto. However, even then he did not insist that the family return to Israel but rather suggested that he would stay in Israel and visit Naomi who would remain living in Toronto with the Mother.

[52] The JF&CS notes are helpful to the extent that they were prepared by a neutral third party and corroborate the parties’ intentions with respect to where they intend to reside:

• November 9, 2015 – the Mother told Sabrina Propper, JF&CS Family Service Worker that the Father “left to Israel. Will probably be there are least a few months”.
• November 23, 2015 – the Mother told Sabrina Propper that she had been communicating with the Father and that he “wants to start working on things over Skype while he is in Israel … [the Mother] said that [the Father] will decide if he returns or not based on the outcome of the counselling”.
• December 14, 2015 – the Mother told Sabrina Propper that she thinks that the Father is “going to come back to Toronto and rent a place so they can go to therapy”.

[53] On December 1, 2015 the Mother and Father had the following text message conversation:

Mother: when can I tell her you’re coming home? Father: You can tell her I’m coming to see her as soon as I can! It’ll have to be at the beginning of February. It’s the first time I can afford to come, since prices dip by a few hundred dollars in February. Mother: Are you staying or leaving us? Father: I’ll be asking you to come back home with me.

[54] The Father emphasizes that this statement supports the fact that he always expected the Mother and Naomi to return to Israel. However, two weeks later, on December 13, 2015, the Father sent the Mother a text message asking her to find him a “small affordable place in Toronto to stay at while we fix this [sic] ourselves up.”

[55] The Mother contacted JF&CS again in early January 2016 as further similar concerns regarding Naomi had arisen. Again the JF&CS notes provide insight into the parties’ intentions with respect to their place of residence:

• January 11, 2016 – the Mother advises Sabrina Propper that the Father gave her “conditions if he is to reconcile that she has to go to the shul everyday. He has to be able to take Naomi to the potty, put her to sleep and stay in bed with her all night. For Victoria to go out with friends so he can stay home alone with Naomi.” There is no mention of a return to Israel being a condition of reconciliation. The Mother confirms that the Father is intending to come for a visit between February 6 and March 7 and she does not know with whom he will be staying.
• February 10, 2016 – the Father advises Sabrina Propper that “he will likely stay in Israel and come visit [Naomi] when he can”.

(ii) Temporary Stay does not Change Habitual Residence

[56] Under the Hague Convention, “if the removal of the children from their habitual residence was consented to, there has been no breach of custody rights unless the children’s retention in their non-habitual residence extends beyond the limits of the consent to their removal”: Katsigiannis, at para. 33.

[57] A parent’s consent to a time limited stay does not shift habitual residence: see Cornaz v. Cornaz-Nikyuluw, 2005 ONSC 34802, 20 R.F.L. (6th) 99; Ellis; A.H.; and Katsigiannis.

[58] A “wrongful retention occurs in a situation of a refusal to return a child after a trip abroad, made with the consent of a rightful custodian…. [and] begins from the moment of the expiration of the period of access, where the original removal was with the consent of the rightful custodian of the child”: Cornaz, at paras. 40, 41, citing Thomson, at paras. 73 and 74.

[59] The Father asserts that he only agreed to a time limited stay in Ontario for the Mother to get medical treatment and to spend time with family; it was a good time to do this as Naomi was not yet in full time school. He says that the expected duration of the stay was to be about three months. He relies, in part, upon a letter produced by the Mother from her doctor dated January 21, 2016 that states that the Mother should require “3 months to stabilize”. However, the Father’s assertion appears to have come up after the fact and was designed to tie in the doctor’s letter later produced by the Mother.

[60] The evidence as detailed above does not suggest that the Father made known to the Mother that he expected her to return to Israel within three months or any other fixed time.

[61] The Father in his Factum submitted that he was “attempting to placate the Mother and convince her to return in the face of her refusals because he knew that she would otherwise attempt to terminate his contact with Naomi.” His “communications and actions must be viewed through the lens of a desperate father trying to bring his daughter back home. He was without legal counsel and had no understanding of the Hague Convention.”

[62] I do not agree with the Father’s characterization of the evidence.

[63] Residing in Israel was clearly very important to the Father and he expressed regret that the family would not be living together in Israel for the foreseeable future. The parties attended marriage counselling with Rabbi Kass in October 2015 and the Father advised that he felt betrayed by the Mother’s reluctance to return to Israel (both parties requested and consented to the release of Rabbi Kass’ notes). However, there was scant evidence to support the Father’s position that he repeatedly asked and the Mother repeatedly refused to return to Israel with Naomi.

[64] The Father also submitted that the Mother’s evidence should be viewed critically as part of a devious plan that she “has been orchestrating…to remain in Canada with Naomi and shut [him] out of her life”. This plan apparently related to the Mother making false allegations about the Father’s inappropriate behaviour toward Naomi. I did not find evidence of an orchestrated plan by the Mother devious or otherwise.

[65] The Mother contacted the JF&CS in November 2015 and again in January 2016 regarding statements that she alleges Naomi made. The Father suggests that the timing of the Mother’s contact with JF&CS was strategic and designed to gain an edge in a possible legal battle. On February 2, 2016 the Mother did tell Sabrina Propper that she had seen a lawyer and he had asked if JF&CS would support her position on supervised access. Generally, however, the JF&CS notes reflect that the Mother had reservations about bringing her concerns about the Father forward. In a later conversation on February 10, 2016, the Mother stated that she hoped that her concerns were unfounded and if they were, she would feel terrible for falsely accusing the Father and “destroying his life and their marriage.”

[66] The Father acknowledged to Sabrina Propper that the Mother was a good mother and that she was just doing what she needed to protect Naomi. He also agreed that some of the comments made by Naomi were concerning and he did not know why she was making them. Furthermore, the Mother facilitated regular visits between Naomi and the Father when he returned to Ontario in February 2016. It was Sabrina Propper who cautioned the Mother several times to ensure that she keeps Naomi safe.

[67] Both parties wanted to work on the marriage and both were struggling to deal with the disclosures that Naomi was making. The Father, although willing to participate in counselling was also setting criteria for a continuation of his marriage. On February 10, 2016, just prior to separation the Mother told JF&CS worker Sabrina Propper that “she feels lost, she doesn’t want any of this to be true, but she can’t take risks, especially when [the Father] is willing to talk about it, and go to therapy. [B]esides this, she feels that they could be very compatible.”

[68] In my view the Father’s lack of knowledge of the Convention was not a significant factor. The evidence does not demonstrate that he was repeatedly asking the Mother to return to Israel rather that he had initially agreed to move to Ontario and later consented to the Mother and Naomi living in Ontario when he decided to remain in Israel. While it is possible that the Father might have taken a different position with the benefit of legal advice, this is speculative. Similarly, I saw no evidence that the Mother had orchestrated a plan, devious or otherwise, to remain living in Ontario with Naomi without the Father’s consent.

(iii) Parties must first abandon former Habitual Residence

[69] The Father submitted that the parties did not have a settled intention to move to Ontario as they had not taken steps to abandon Israel as their habitual residence.

[70] The United States Court of Appeals for the Ninth Circuit in Mozes v. Mozes, at p. 1075, following C v. S (minor: abduction: illegitimate child), [1990] 2 All E.R. 961, at p. 965, with respect to the issue of abandoning the prior place of habitual residence held:

[O]ne need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended.

[71] The Alberta Queen’s Bench in Proia set out some indicia of abandonment to be considered on the facts of each case:

• Written documentation of the parties’ joint decision to leave the former habitual residence;
• Execution of the plan to leave, not just an intention to leave;
• Sale of property in the former habitual residence;
• Resignation of employment in former habitual residence;
• Registration of children in day-care or school in new habitual residence; and
• Movement of possessions from former habitual residence to new habitual residence.

[72] The court in Proia also found that factors such as immigration status, location of house or term of tenancy in new habitual residence, and continued ties with former habitual residence, were not necessarily determinative of a failure to abandon the former habitual residence.

[73] The Father asserted that he “did not give up his employment in Israel”. However, the Father works from home, remotely for a Canadian company and it appears that even while in Israel he was working on North American business hours. In the text message exchange with Carina Rock, the Father expressed thanks that he did not have to look for work in Canada as he already had a job.

[74] The Father stated that he did not terminate the lease on the parties’ apartment nor cancel the child’s daycare in Israel. However, the parties had prepaid both of these obligations for the year and it was not clear from the documents (which were in Hebrew without an accompanying translation) if a refund would even be available.

[75] The Father stated that the parties’ apartment “remains fully furnished” and they did not sell their furniture. According to the lease agreement that was in English, the apartment that the parties lived in just before they moved in Tiveria came furnished. As their current lease agreement was not translated from Hebrew, I was not able to determine if this was true for this apartment as well.

[76] Furthermore, at some time after the Father returned to Israel, he decided that he would remain living there and would return to Ontario to visit with Naomi. For this reason, it would make sense that he did not terminate the prepaid lease on the apartment in Tiveria.

[77] The Father stated that he has no status in Canada and did not seek to obtain status. There was no evidence that the Father had raised this at any time as a concern before initiating this Application. In his text exchange with Carina Rock, he confirms that he will be working in Toronto. Ultimately this issue was moot as the Father made a decision to remain living in Israel.

(iv) Appreciable Time

[78] In Fasiang, at para. 68, citing Mozes, the court held: “Settled intention alone is not enough, for habitual residence to be established the child actually has to move and an appreciable period of time must pass”. The court in Fasiang went on to confirm that an appreciable period of time is a question of fact and not a fixed period: at paras. 69-70. In Fasiang a period of 23 days was deemed an appreciable period of time.

[79] The period of time necessary to establish habitual residence can be as short as one day: see Gavriel, at para. 55; and Fasiang, at para. 71.

[80] In the middle of October 2015 the parties decided to make Ontario the habitual residence of Naomi. Over the next two months they took steps to implement the decision. Sometime thereafter, the Father changed his mind and he decided that he would remain living in Israel; the Mother and Naomi continued to live in Ontario per the original plan. It was only on March 4, 2016 that the Father communicated his desire to have Naomi returned to Israel. In my view this constitutes an appreciable period of time.

(v) Summary re Change in Habitual Residence

[81] I find that when the parties’ intentions were last shared, their settled intention was to reside indefinitely in Ontario. This finding is supported by the parties’ various statements made to each other and to third parties and also by the steps that they took to affect this shared intention.

[82] The Father later changed his mind and decided to remain living in Israel and to visit with the Mother and Naomi who would remain living in North York. This is again supported by the statements made by both parties to each other and to third parties and also by the steps taken or not taken.

[83] I find that Naomi’s habitual residence changed from Israel to Ontario in or around the middle of October 2015.

[84] As I have found that Naomi was not habitually resident in the contracting state of Israel but rather that her habitual residence is Ontario, the Convention does not apply: Jackson, at para. 39.

4. If Israel is Habitual Residence

[85] If I am not correct in finding that the parties mutually agreed to change the child’s habitual residence to Ontario, then her habitual residence would be Israel as submitted by the Father.

[86] Pursuant to Article 3 of the Convention if Israel is Naomi’s habitual residence then the Mother’s retention of Naomi in Ontario is wrongful if it is in breach of the Father’s rights of custody under the law of Israel immediately before the retention and those rights were actually being exercised or would be exercised but for the wrongful retention.

(i) Was the Father exercising rights of custody?

[87] Article 5 of the Convention states:

For the purposes of this Convention –

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

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

[88] The Court of Appeal for Ontario held in Jackson, at para. 41, that rights of custody under “Article 3(b) ‘must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent’. See Re H., Re S (Minors) (Abduction: Custody Rights), [1991] 2 A.C. 476 at 500 (H.L.).”

[89] According to the letter of lawyer, Edwin Freedman attached to the Father’s Affidavit sworn May 20, 2016 under the law of Israel “both parents share joint decision making authority regarding their children’s place of residence. In the event that both parents cannot agree as to the child’s place of residence, only the court is authorized to make that determination.”

[90] If I were to reject this opinion evidence as submitted by the Mother, there would be no evidence before me with respect to the law of Israel and the applicable law would be that of the lex fori—Ontario: J.T. v. S.L.T., at para. 88, citing Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222.

[91] In Ontario, the CLRA, s. 20(1) states that “except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.”

[92] If it were found that Israel was the child’s habitual residence, the Mother retaining Naomi in Ontario would be in contravention of the Father’s custody rights including his right to determine the place of residence for Naomi.

[93] Pursuant to Article 12 of the Convention this conclusion would require the court to return Naomi to Israel unless the Mother can demonstrate that one of the exceptions under the Convention applies.

[94] Article 13 of the Convention reads in part as follows:

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

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

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

[95] The courts in Ontario have held that Article 13 should be given a narrow interpretation in order to support the overall purpose of the Hague Convention: Garelli v. Rahma (2006), 2006 ONSC 13555, 28 R.F.L. (6th) 455, 2006 CarswellOnt 2582 (S.C.), at para. 35.

(ii) Grave Risk of Harm

[96] The Mother raised but did not strenuously argue that Naomi would be at grave risk of harm if returned to Israel as she would lose the attachment to her. However, she advised the court that if Naomi was to return to Israel, she would return with her. With respect to the allegations of the Father’s inappropriate behaviour toward Naomi, those allegations would quite properly be put before the court in Israel as part of a determination of custody and access. Lastly, the Father confirmed that he was not necessarily seeking that Naomi be returned to his sole care. For these reasons, the Mother has not demonstrated that Article 13(b) applies.

(iii) Did the Father Consent or Acquiesce

[97] The Mother took the position that pursuant to Article 13(a) the Father had explicitly consented to Naomi being retained by her in Ontario or that he had so acquiesced.

[98] The Court of Appeal in Katsigiannis, at para. 43, citing P. v. P. (Abduction: Consent or Acquiescence), [1997] 3 F.C.R. 550 (H. Ct. Fam. Div.), aff’d March 6, 1998 (C.A.), held that “although consent does not have to be evidenced in writing or expressly stated, it must ‘amount to clear and cogent evidence of an unequivocal consent’” and that acquiescence must meet the same standard.

[99] Under Article 13(a) acquiescence is a question of fact that can be inferred from conduct and statements: Katsigiannis, at para. 38, citing H (Minors), Re, [1996] 2 All E.R. 225 (H.L.). In assessing the issue of acquiescence “more weight should be attached to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of intention”: Katsigiannis, at para 39, citing H (Minors), Re.

[100] The Court of Appeal for Ontario in Katsigiannis, at para. 41, went on to state that “even if a wronged parent has never in fact acquiesced in the child’s removal or retention, if he or she has said or done something which is clearly and unequivocally inconsistent with the summary return of the child, the wronged parent’s actual subjective intention will be disregarded.”

[101] For all the same reasons set out above with respect to my finding on habitual residence, I find that the Father unequivocally consented and/or acquiesced to Naomi remaining in Ontario. Even when he later changed his mind about his residing in Ontario, he did not oppose the Mother and Naomi doing so and confirmed that he would return from time to time for visits with Naomi. His actions as detailed above were consistent with his having consented to Naomi and the Mother remaining in Ontario indefinitely. He later changed his mind and initiated this Application.

[102] For these reasons, even if Israel was found to be Naomi’s place of habitual residence she is not being wrongfully retained in Ontario by the Mother and there has been no contravention of the Father’s rights of custody as he provided his consent and/or he acquiesced to this arrangement.

IV. ORDER

[103] The Application of Jeremy David Unger under the Convention on the Civil Aspects of International Child Abduction is dismissed.

[104] The Respondent shall make written submissions with respect to costs not to exceed 5 pages excluding any offers to settle and Bill of Costs on or before July 15, 2016. The Applicant shall deliver responding submissions also not to exceed 5 pages excluding offers and Bill of Costs on or before July 23, 2016. Any reply submissions shall not exceed 2 pages and shall be delivered on or before July 28, 2016. All submissions to be delivered to my assistant by e-mail.

JUSTICE L.E. FRYER Released: June 27, 2016