Knight v. Gottesman
Ontario Reports
Ontario Superior Court of Justice
Shore J.
July 19, 2019
147 O.R. (3d) 121 | 2019 ONSC 4341
Case Summary
Family law — Children — Abduction — Parties and their two young children moving from Ontario to Massachusetts in December 2018 — Father consenting to mother returning to Ontario with children for visit in March 2019 — Mother advising father that she and children would be staying in Ontario — Children's last place of habitual residence before retention being Massachusetts — Father having custody rights when children were retained despite absence of court order — Retention being wrongful — Children not facing grave risk of being exposed to physical or psychological harm or being placed in intolerable situation if returned to Massachusetts — Children being ordered returned.
The parties and their two young children, aged two and almost one, moved from Ontario to Massachusetts in December 2018 to be near the father's work. The mother was a Canadian citizen, the father was a U.S. citizen, and the children held dual citizenship. The father consented to the mother returning to Ontario in March 2019 for a visit. After arriving in Ontario, the mother advised the father that she and the children would not be returning to Massachusetts. She admitted that she intended to retain the children in Ontario when she obtained the father's consent to a visit. The mother commenced court proceedings in Ontario. The father brought an application for the return of the children to Massachusetts under the Convention on the Civil Aspects of International Child Abduction, 23 October 1980, 1343 U.N.T.S. 80, Can. T.S. 1983 No. 35 (the "Hague Convention").
Held, the application should be allowed.
The children habitually resided in Massachusetts immediately before their retention. In determining the children's place of habitual residence, their connections to Ontario created after their retention could not be taken into account. Only the relevant factors in place before their retention could be considered. The parties clearly gave up their residence in Ontario and established a family home in Massachusetts. The father had custodial rights at the time of the retention despite the absence of a court order. Under both Ontario and Massachusetts law, married parents have shared legal custody of their children until a court order to the contrary is made. The father was exercising his custody rights when the mother left for Ontario with the children. The mother's retention of the children was wrongful. The father's consent to the children leaving Massachusetts was conditional on the children being returned. Even if the father provided unconditional consent, which he did not, the consent would be vitiated by the mother's dishonest representations that she would bring the children back. While the mother adduced some evidence that the father was physically abusive to her on several occasions before 2016, that evidence fell far short of establishing that there was a grave risk that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The father provided the court with an undertaking that if the children were returned to Massachusetts, the mother and children could reside in their home and he would reside in alternate accommodation.
Andegiorgis v. Giorgis, [2018] O.J. No. 7075, 2018 ONCJ 965, 19 R.F.L. (8th) 490; Office of the Children's Lawyer v. Balev, [2018] 1 S.C.R. 398, [2018] S.C.J. No. 16, 2018 SCC 16, 5 R.F.L. (8th) 1, 424 D.L.R. (4th) 391, consd
Beairsto v. Cook, [2018] N.S.J. No. 489, 2018 NSCA 90, 17 R.F.L. (8th) 1, 430 D.L.R. (4th) 261; Malik v. Haq, [2018] O.J. No. 5321, 2018 ONSC 6047 (S.C.J.), distd
Other cases referred to
A. v. A. and Another (Children) (Children: Habitual Residence), [2014] 1 All E.R. 827, [2014] A.C. 1, [2013] UKSC 60, [2013] W.L.R. (D.) 345, [2013] 3 F.C.R. 559, [2013] 3 W.L.R. 761, [2013] Fam. Law 1528, [2014] 1 F.L.R. 111, UKSC 2013 /0106; De Martinez v. Rios, [2008] O.J. No. 3098, 50 R.F.L. (6th) 293 (S.C.J.); Ellis v. Wentzell-Ellis (2010), 102 O.R. (3d) 298, [2010] O.J. No. 1987, 2010 ONCA 347, 78 R.F.L. (6th) 245, 262 O.A.C. 136, 320 D.L.R. (4th) 370; Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226, [1999] O.J. No. 3579, 1999 ONCA 1722, 179 D.L.R. (4th) 15, 124 O.A.C. 308, 1 R.F.L. (5th) 222; Friedrich v. Friedrich, 78 F.3d 1060 (U.S. C.A. 6th Circ. 1996); Gavriel v. Tal-Gavriel, [2015] O.J. No. 3502, 2015 ONSC 4181, 65 R.F.L. (7th) 452 (S.C.J.); Habimana v. Mukundwa, [2019] O.J. No. 1385, 2019 ONSC 1781 (S.C.J.); Hassan v. Garib, [2017] O.J. No. 6333, 2017 ONSC 7227 (S.C.J.); Jabbaz v. Mouammar, [2003] O.J. No. 1616, 38 R.F.L. (5th) 103, 226 D.L.R. (4th) 494, 171 O.A.C. 102 (C.A.); Pollastro v. Pollastro (1999), 43 O.R. (3d) 485, 43 O.R. (3d) 497 (Fr.), [1999] O.J. No. 911, 171 D.L.R. (4th) 32, 118 O.A.C. 169, 45 R.F.L. (4th) 404 (C.A.); Schroeder v. McCormack, [2016] O.J. No. 4755, 2016 ONSC 5775, 82 R.F.L. (7th) 58 (Div. Ct.), affg Schroeder v. McCormack, [2016] O.J. No. 3464, 2016 ONSC 4219 (S.C.J.); Thomson v. Thomson, [1994] 3 S.C.R. 551, [1994] S.C.J. No. 6, 119 D.L.R. (4th) 253, 163 N.R. 69, 173 N.R. 83, [1994] 5 W.W.R. 153, [1994] 10 W.W.R. 513, 92 Man. R. (2d) 161, 6 R.F.L. (4th) 290; W. (V.) v. S. (D.), [1996] 2 S.C.R. 108, [1996] S.C.J. No. 53, 134 D.L.R. (4th) 481, 196 N.R. 241, 19 R.F.L. (4th) 341; Wedig v. Gaukel, [2007] O.J. No. 1547, 38 R.F.L. (6th) 60 (S.C.J.), affd 2007 ONCA 521, 38 R.F.L. (6th) 91
Statutes referred to
Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 46(2) Family Law Act, R.S.O. 1990, c. F.3, s. 53 [as am.], (1) [as am.]
Treaties and conventions referred to
Convention on the Civil Aspects of International Child Abduction, October 25, 1980, 1343 U.N.T.S. 89, Can. T. S. 1983 No. 35, arts. 1, 3, 12, 13(a), (b), (2), 20
APPLICATION for an order for the return of the children to Massachusetts.
Bryan R.G. Smith and Sarah Conlin, for applicant.
Martha McCarthy, Kimberly Muio, James B.C. Edney and Joseph Slavec, for respondent.
SHORE J. : —
[1] This case is about two young children, two-year-old C. and (almost) one-year-old N.
[2] Their parents, Casey Knight and Blake Gottesman, resided in Toronto, Ontario, until December 2018. In December 2018, the family moved to Wellesley, Massachusetts to be near the father's work. In March 2019, the father consented to the mother and children returning to Toronto for a visit. Once in Ontario with the children, the mother advised the father that she would be staying in Toronto with the children and not returning to Massachusetts. The father brought an application under the Hague Convention for the return of the children to Massachusetts.
[3] I must decide whether to order C. and N. returned to Massachusetts 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 (the "Hague Convention").
[4] This court must answer the following questions to decide if the Hague Convention applies to these children and if the children are to be returned to Massachusetts:
Where did the children habitually reside immediately before their removal or retention?
Did the father have custody rights at the time of their removal or retention?
Was the father exercising his custody rights at the time of the children's removal or retention?
Was the removal/retention wrongful or did the father consent?
If there was a removal or retention of the children from their habitual residence that was wrongful under the Convention, do any of the exceptions apply? Specifically, is there a grave risk that the return of the children to Massachusetts would expose them to physical or psychological harm or place the children in an intolerable situation?
[5] For the reasons set out below, I find that:
The children's last place of habitual residence was Wellesley, Massachusetts.
The father had custody rights when the children were retained.
The father had been exercising his custody rights at the time of retention.
The retention was wrongful, and the father did not consent to the retention (or the removal).
The children would not face grave risk of being exposed to physical or psychological harm or placed in an intolerable situation if returned.
[6] Therefore, the children shall be returned to Wellesley, Massachusetts in accordance with the terms set out at the end of these reasons.
Brief Summary of Relevant Facts
[7] The parties were married on August 9, 2013 and separated on February 21, 2019. There is no dispute that the marriage had its problems. The parties were dealing with a number of stressful factors throughout the marriage, including the mother suffering from professional burnout, the father commuting to Boston for work, undergoing IVF treatments, the mother completing a master's program at Harvard, raising two young children, the mother giving up her medical practice, a move to Massachusetts, the purchase of an expensive home and the personalities of the parties, to name just a few. The mother also alleges that the father was abusive. The parties engaged in extensive marriage counselling several times during the relationship.
[8] The parties lived in Toronto for most of their marriage, although they moved to Boston for two brief periods to allow the mother to complete a degree at Harvard. The father worked out of the Boston office of Berkshire Partners Inc. He commuted to work, spending one night (two days) in Boston each week.
[9] The mother is a plastic surgeon. She was the division chief of plastic surgery at Southlake Hospital in Newmarket.
[10] The parties have two children of the marriage, C.G., born October 24, 2016, and N.G., born July 9, 2018. The children were born in Canada.
[11] The mother is a Canadian citizen. The father is a United States citizen. Each has permanent residency status in the other's native country. The children are dual citizens of Canada and the United States.
[12] In June 2017, the father was offered a promotion at work on the condition that he relocate to Boston. After much discussion between the parties, in November 2017, they accepted the offer and agreed to move to Boston. The parties spent almost 13 months preparing for the move, including purchasing and setting up a house in Wellesley, Massachusetts.
[13] The children resided in Ontario, Canada until December 15, 2018, when the family moved to Massachusetts.
[14] However, on February 21, 2019, the mother told the father that their marriage was over, and she went back to Toronto alone for a visit. On her return, she asked if she could take the children to Toronto for a visit. The father was clear that he did not consent to the children staying in Toronto indefinitely, but agreed that they could go for a visit.
[15] With the father's consent, the mother travelled with the children to Ontario on March 4, 2019. The travel consent required their return to Massachusetts by April 8, 2019. On March 25, 2019, the mother advised the father that the children would not be returned to Massachusetts and commenced these court proceedings in Ontario. The mother admits that she lied to the father. She never intended to return the children to Massachusetts. She said she lied because she feared for her safety and the safety of the children if she told him she was moving back to Ontario with the children.
[16] On April 3, 2019, the father filed a complaint for divorce in Massachusetts and an emergency ex parte motion for immediate return of the children to Massachusetts. The Massachusetts court denied the father's motion, advising that pursuant to the Hague Convention, the issue of the return of the children needed to be heard in Ontario because the children were currently in Ontario. The Massachusetts court stayed the child custody proceedings until the Ontario court entered a judgement on jurisdiction pursuant to the Hague Convention or Ontario law.
[17] The father brought this application in Toronto for the return of the children under the Hague Convention.
Hague Convention
[18] Before beginning my analysis, it is important set out the articles from the Hague Convention relevant to this case.
[19] The Hague Convention is law in Ontario, pursuant to s. 46(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The Hague Convention sets out the rules that apply to the parental abduction of children across international borders.
[20] With more than 90 contracting states, including Canada and the U.S., the Hague Convention ranks as one of the most important and successful family law instruments under the auspices of the Hague Conference on Private International Law (Office of the Children's Lawyer v. Balev, [2018] 1 S.C.R. 398, [2018] S.C.J. No. 16, 2018 SCC 16, at para. 22 ("Balev")).
[21] The purpose of the Hague Convention, as set out in art. 1, is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. A prompt return is intended to achieve speedy adjudication of the merits of a custody or access dispute in the forum of a child's habitual residence. The question being asked in a Hague application is not which parent should have custody, but in which jurisdiction should the question of custody be determined.
[22] When hearing a Hague application, the first question to be asked is whether there has been a removal or retention of the child from their habitual residence that is considered wrongful under the Convention. Article 3 directs the court to a two-part test:
(a) is the removal or retention in breach of rights of custody attributed to a person 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 were those rights actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention?
[23] If the requirements under art. 3 are met, art. 12 requires the judge to order the return of the child forthwith, unless certain exceptions apply. These exceptions include
(a) the parent seeking return was not exercising custody rights at the time of the removal or retention or consented or subsequently acquiesced to the removal or retention -- art. 13(a);
(b) there is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation -- art. 13(b);
(c) the child is of sufficient age and maturity and objects to being returned -- art. 13(2);
(d) the return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state -- art. 20; and
(e) the application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment -- art. 12.
[24] The mother submits that art. 13(a) and (b) are relevant and therefore will also be discussed in my analysis below.
Issue #1: Where did the children habitually reside immediately before their removal or retention?
[25] The mother argues that the children were not habitually resident in Massachusetts and therefore the Hague Convention does not apply. It is the mother's position that the children were habitually resident in Ontario. I disagree. For the reasons set out below, I find that the children were habitually resident in Massachusetts when they were wrongfully retained in Ontario.
[26] There is no definition of "habitual residence" in the Hague Convention. It is a question of fact to be determined by the court.
[27] The approach to be taken by courts in determining habitual residence was recently restated by the Supreme Court of Canada in Balev. The court considered the two approaches being used by courts in Ontario to determine habitual residence: the dominant "parental intention approach" and the "child-centered approach", which focused on the child's connections with the state. The Supreme Court of Canada concluded that "habitual residence" should be determined by using a "hybrid approach" and stated, at para. 43:
On the hybrid approach to determining habitual residence, the application judge 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 judge considers all relevant links and circumstances -- the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B.
[28] Under the hybrid approach, instead of focusing primarily on either parental intention or the child's actual acclimatization, the judge determining habitual residence must look at all relevant considerations arising from the facts of the case.
[29] Considerations include but, are not limited to, the duration, regularity, conditions, and reasons for the child's stay in a member state and the child's nationality. No single factor dominates the analysis, rather the application judge should consider the entirety of the circumstances: Balev, at para. 44. The hybrid approach is "fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions": Balev, at para. 47. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.
[30] Although the hybrid approach requires the court to consider all the circumstances, the court emphasizes that it is the habitual residence of the child at the time immediately prior to the wrongful removal or retention that is relevant.
[31] The Supreme Court of Canada concluded [at para. 59] that the hybrid approach fulfils the goals of prompt return by
(a) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody;
(b) encouraging the speedy adjudication of custody or access
disputes in the forum of the child's habitual residence; and
(c) protecting the child from harmful effects of wrongful removal or retention.
[32] In Balev, the parties married in Ontario and moved to Germany, where their two children were born. The children were struggling at school, so the father consented to the children moving to Canada with their mother for the school year. After the consent period lapsed (i.e., the school year was over), the children remained in Ontario with their mother and the father requested their return under the Hague Convention. The court had to determine if the children were habitually resident in Germany or Canada at the time of the wrongful retention. The question before the court in Balev was whether a child's habitual residence can change while he or she is staying with one parent in another country under the time-limited consent of the other. Using the hybrid approach, a judge may consider that the intention of the parents was that the move would be temporary and the reasons for that agreement but should also considers all other evidence relevant to the children's habitual residence. In Balev, the consideration was that the children had lived in Ontario, with their father's consent, for the school year, which may have changed their habitual place of residence from Germany. The facts in Balev are quite distinguishable from the case before this court.
[33] The mother in the case before me relied heavily on Balev for the proposition that I must consider the children's close ties to Ontario and find that their place of habitual residence was Ontario. Balev does not stand for the proposition that the children's circumstances following the improper retention must be considered. Balev stands for the proposition that if the children had time-limited consent to move to country B, the court can consider their circumstances in country B. It does not stand for the proposition that the court must also consider the circumstances after the alleged wrongful removal or retention (which is expressly addressed in the Hague Convention itself).
[34] The first case in Ontario to consider the effect of Balev on Hague decisions was Pawagi J.'s decision in Andegiorgis v. Giorgis, [2018] O.J. No. 7075, 2018 ONCJ 965. In that case, the children had moved between Canada and Norway, but last lived in Norway with their parents. The parties separated, and the mother left Norway for Toronto with the children. The father commenced a Hague application for the return of the children to Norway. The mother took the position that as a result of Balev, the court must consider the circumstances of the children after the alleged wrongful removal and gave significant evidence that the children were now more connected to Canada and therefore Canada was their place of habitual residence. Justice Pawagi stated, at para. 34:
father's counsel submits, on the other hand, that, contrary to popular belief/fear, a close reading of Balev would demonstrate this is not what Balev has done. I agree with the father's counsel's interpretation that Balev has not actually eviscerated the Hague Convention.
(Emphasis added)
[35] Justice Pawagi clarified the conflicting interpretations of Balev, highlighting that the Supreme Court of Canada decision is clear that when using the hybrid approach, the judge must determine "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". Subsequent links are relevant only to the exception under Article 12.
[36] At paras. 39-40, 42-43, Justice Pawagi offered further clarification:
The Supreme Court is clear that while the child's circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The court is clear that the child's circumstances following the wrongful removal or retention can only be considered when the Hague application is not brought within a year of the wrongful removal or retention.
Thus, in an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the state, but also the children's circumstances, including connections they form, during the agreed-upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention.
Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed-upon temporary stay.
Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year).
[37] In the case before me, I cannot consider the children's connections to Ontario created after their wrongful retention in Ontario. In using the hybrid approach set out in Balev, I can still only consider the relevant factors in place prior to the children's wrongful retention and not those formed since returning to Ontario.
[38] From the time that the father accepted the offer from Berkshire in November 2017, numerous steps were taken by the family to sever their ties in Ontario and set up a new family residence in and move to Massachusetts, including but not limited to,
(a) looking at houses in the Boston area;
(b) retaining a real estate agent for the purpose of assisting them in finding a home in the Boston area;
(c) making offers to purchase houses;
(d) purchasing a home in Wellesley, Massachusetts, in April 2018 for USD$3.75 million;
(e) renovating the new home;
(f) hiring and working with an interior designer;
(g) ensuring the home was decorated for the Christmas holidays prior to the children's arrival;
(h) giving up their lease for their home in Ontario;
(i) giving up their car lease in Ontario and purchasing a car in Massachusetts;
(j) the mother closing her surgical practice in Ontario and selling her equipment;
(k) the mother resigning her position as division chief of plastic surgery at Southlake Hospital;
(l) the mother failing to renew her professional corporation with the College of Physician Surgeons;
(m) hiring movers and organizers to both pack up their belongings in Ontario and unpack their belongings at their home in Massachusetts;
(n) entering into a "postnuptial" agreement just prior to their move to Massachusetts, with Massachusetts lawyers, using Massachusetts law, to provide the mother with financial security in the event of a breakdown of the marriage;
(o) introducing the children to their new home, including asking C. to repeat "this is my new home"; and
(p) choosing a new doctor for the children, signing up the children in a pediatric group and transferring their medical files.
[39] Based on the facts before me, I find that the children were habitually resident in Wellesley, Massachusetts when they were retained in Ontario.
[40] The mother may have realized she was not happy in Massachusetts or being [a] stay-at-home mother, but that does not detract from the fact that the parties established their (and the children's) primary place of residence in Massachusetts. But even if the mother intended to return to Canada in the future or only moved on a "trial basis", it does not detract from establishing the child's habitual residence elsewhere: Gavriel v. Tal-Gavriel, [2015] O.J. No. 3502, 2015 ONSC 4181 (S.C.J.), at paras. 52 and 55.
[41] The question remains whether I can consider the connection the children already had to Ontario, given their residence in Ontario prior to their move to Massachusetts and whether they were habitually resident in both jurisdictions.
[42] In the case before me, it is clear the parties were leaving Ontario and re-establishing a family home in Massachusetts, following months of discussions and preparation. The parties had clearly given up their residence in Ontario and moved as a family to Massachusetts.
[43] The mother relies on a Malik v. Haq, [2018] O.J. No. 5321, 2018 ONSC 6047 (S.C.J.). The parties married and resided in New Jersey following their marriage. When they moved to Ontario for a few months, the mother refused to move back to New Jersey with the father. The father left the mother and child in Ontario. An action was commenced in Ontario and orders were made in that action, including an access schedule. The mother and child remained in Ontario for a few years. In January 2017, the mother obtained a final order for custody. However, in December 2017, the mother and the child flew to New Jersey and the parties remarried in February 2018. The parties separated within a few days. In May 2018, the mother went back to Toronto with the child. The court found the focal point of the child's life was Ontario and not New Jersey. The child had lived in Ontario for over five years. He went to school there. He had close ties to his extended family and a lot of friends. A Voice of the Child Report was prepared through which the child was clear that his own connections (family and social) were in Ontario. The age of the child in that case and that the child had lived in Ontario for five years were relevant and distinguishing factors.
[44] However, the children in the case before me are very young, requiring additional consideration and distinguishing this case from the facts in Malik. At para. 45 of Balev, the court states that the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children. As a general rule, the circumstances of the parents alone are not determinative of habitual residence, but where 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": Balev, at paras. 44-45 [emphasis added].
[45] The Nova Scotia Court of Appeal also raised the unique considerations that arise when determining Hague applications with infant children in Beairsto v. Cook, [2018] N.S.J. No. 489, 2018 NSCA 90 (decided after Balev). In Beairsto, the mother was in Washington on a visitor's visa. After an incident of domestic assault, she flew to her home in Nova Scotia with her six-week-old daughter, Sahara. The father consented to Sahara travelling to Nova Scotia and no return date was set. There was little to no communication between the parties during this time. Within a few months, it was clear that the mother would not be returning, and only then did the father communicate that he no longer consented to the child remaining in Canada. Relying on the decision in Balev, the Court of Appeal considered Sahara's connection to Nova Scotia, during the time that she was there with the father's consent (a period of almost five months) and determined that Nova Scotia was her habitual residence.
[46] In Beairsto, the Court of Appeal referred to A. v. A. and Another (Children) (Children: Habitual Residence), [2014] 1 All E.R. 827, [2013] UKSC 60, where Lady Hale stated [at p. 847 All E.R.] that "[t]he social and family environment of an infant of young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned".
[47] In Beairsto, the mother was the child's only caregiver at the relevant time. Her place of residence dictated the child's place of residence. The Court of Appeal considered that the mother had no family or support network in Washington. It also considered that she was only in Washington on a six-month visitor's visa. There was no permanency to her move to Washington. The parties separated within six weeks of Sahara being born and the mother left almost immediately, with consent, to her home in Nova Scotia. Further, when she left Washington, the parties were not sure where the mother or child would live or if she would return.
[48] I find both Malik and Beairsto distinguishable from the case before me. In the case before me, the mother and father moved as a family to Massachusetts. C. was five-months old and N. had just turned two when they moved to Massachusetts. The children's "family environment" was based in Massachusetts, albeit for a short period of time. But length of time is not a determinative factor. It is well established law that there is no requirement that a child should have been resident in the country for a particular period of time. At the time that the children were wrongfully retained in Ontario, there is no question that the family home and family environment was in Wellesley, Massachusetts. My reasons for this finding are set out below. At varying degrees, both parties were involved with the children's day-to-day activities and upbringing. The children are still so young that their environment is mostly dictated by their family environment, which was in Massachusetts at the time of their retention in Ontario. In Beairsto, the child was only six weeks old when the father consented to the mother and child moving to Nova Scotia. From that point on, the mother was the child's primary caregiver and solely responsible for the child. The consent was withdrawn five months later, at which time Nova Scotia had already been established as the mother and child's habitual place of residence. In Malik, the child had also lived for considerable time in Ontario with consent. He was able to communicate, through a Voice of the Child report, his own connections to Ontario, including family, friends, school, etc. The children in the case before me are of such a young age, that their lives still revolve around their parents and their family-centric lives.
[49] Finally, the mother also submitted that her move to Massachusetts was conditional on her right to move back to Ontario at any time. Even if the parties entered into an agreement allowing the mother "veto" rights to move back to Ontario, this is not a determining factor. The fact that a move is "conditional" is only one factor to be taken into account in determining whether, in the context of all the facts, the new residence can be considered the habitual residence: Schroeder v. McCormack, [2016] O.J. No. 4755, 2016 ONSC 5775, 82 R.F.L. (7th) 58 (Div. Ct.), at para. 19. Further, the court must avoid treating a time-limited consent agreement as a contract to be enforced by the court. Parents cannot contract out of the court's duty to determine a child's habitual place of residence under the Hague Convention: Balev, at para. 73.
[50] Having regard to all the facts in this case, I find that the children's habitual place of residence was in Wellesley, Massachusetts when they were wrongfully retained by the mother in Ontario.
Issue #2: Was there a breach of the father's custody rights?
[51] The mother's counsel submits that even if the children's habitual residence is Massachusetts, the Hague Convention does not apply because the father did not have any custodial rights at the time of the retention, specifically because Massachusetts did not have jurisdiction to make any orders with respect to same at the time of the retention. I disagree with her position. For the reasons set out below, I find:
(a) the father had custodial rights at the time of the retention in Ontario;
(b) Massachusetts had jurisdiction to enforce those rights at the time of the retention; and
(c) even if the rights were not enforceable in Massachusetts at the time of the retention in Ontario, the father still had "rights of custody", as contemplated by the Hague Convention.
[52] In most cases, the question of who has rights of custody within the meaning of the Convention is determined in accordance with the law of the state of the child's habitual place of residence. But courts cannot ignore that the Convention favours restoring the status quo as soon as possible after the removal of the child by enabling one party to force the other to submit to the jurisdiction of the court of the child's habitual place of residence for the purpose of arguing the merits of any custody issue.
[53] In the decision of W. (V.) v. S. (D.), [1996] 2 S.C.R. 108, [1996] S.C.J. No. 53, the Supreme Court of Canada specifically considered the concept and definition of "rights of custody" under the Hague Convention. What the Convention means by "rights of custody" must be determined independently of the domestic law of the jurisdiction to which it applies:
States may define the term "custody" in whatever way they choose, but what is custody as including rights relating essential for determining their obligations under the convention is the definition used in the convention. This definition is open-ended in that it specifies rights of to the care of the person of the child and, in particular, the right to determine the child's place of residence (article 5).
As a result:
The key concepts which determine the scope of the convention are not dependent for their meaning on any single legal system. Thus, the expression "rights of custody", for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purpose of the convention.
(At para. 22. Emphasis added)
[54] The Supreme Court of Canada considered the issue of "rights of custody" in Thomson v. Thomson, [1994] 3 S.C.R. 551, [1994] S.C.J. No. 6. It highlighted [at para. 44] that the language in art. 3 includes "it is in breach of rights of custody attributed to a person, an institution or any other body" [emphasis added]. A formal order or other legal document is not always required. At para. 46, the court found that the most obvious case is the situation of parents exercising the ordinary care and control over the child. In furtherance of this point, at para. 47, the court highlighted a survey of conference members in which five examples of situations considered to constitute "child abduction" were described, including:
A. The child was removed by a parent from the country of the child's habitual residence to another country without the consent of the other parent, at a time when no custody decision had yet been handed down but serious problems between the parents already existed.
[55] "Rights" under the Convention are not only acquired by law or by a court but can extend to persons who had de facto joint custody, without the benefit of a court order or official custodial status.
[56] In the case before me, the parties were both still residing with the children under the same roof. There was no custody order in place nor any agreement with respect to custody when the children were retained in Ontario. Both parties had obligations to care for the children and they each had rights relating to their care and their place of residence. The mother was aware of her need to obtain the father's consent to leave the country with the children and that he had the "right to determine the child's place of residence". She acknowledged same to family friends, as well as to the father. It was for this reason that she needed to deceive him into signing the travel consent.
[57] Further, the law in Massachusetts is similar to the law in Ontario. Until a court order is made to vary same, married parents have shared legal custody of their children.
[58] I am satisfied that the respondent did have a right of custody to the children at the time of their retention, as contemplated by art. 3 of the Convention.
[59] In light of the finding above, it is not necessary for me to determine if Massachusetts had jurisdiction over the parties at the time of the retention. In the event that a finding is necessary, I find that Massachusetts did have jurisdiction over the parties.
[60] Both parties relied on expert evidence with respect to Massachusetts' law, and specifically whether Massachusetts law would apply to the parties and/or whether their courts would have jurisdiction to make an order. The experts were subject to cross-examination. There is no doubt with respect to the qualifications of both experts. They are both clearly leaders in their respective family law bars. However, I have difficulty accepting the evidence and opinion of Ms. Dubin, the mother's expert, as a result of the limited and misleading information provided to her by the applicant and on which she relied on to form her opinion. This is not a criticism of Ms. Dubin. She was not given all the information required to provide proper expert evidence relevant to this case.
[61] In applying the law of Massachusetts, Ms. Dubin repeatedly relied on information provided to her by the mother, including that the children were only in Massachusetts on a temporary basis for three months and are no longer in Massachusetts. This is not an accurate depiction of the circumstances. Ms. Dubin also relied on the fact that the children are not "physically present in the commonwealth" as required under the jurisdiction test, without considering that the children had been wrongfully removed: see third subsection of paragraph (a) of Section 2 of M.G.L. chapter 209B. Again, Ms. Dubin was advised that the children were in Massachusetts temporarily for three months and have now returned to Ontario. In considering whether Massachusetts would assume jurisdiction, Ms. Dubin also stated "it is my understanding from [the mother's] Canadian counsel that Canada does have child custody jurisdiction of this case under prerequisites substantially in accordance with G.L. c.209B SS 2(a)(4)". I therefore have concerns with respect to the legal test set out by Ms. Dubin, including her application of that law, because she relied on a misleading set of facts.
[62] I prefer the evidence of Mr. Kane, the father's expert, who had full knowledge of the facts of this case. I relied on his evidence with respect to the applicable Massachusetts law in this case.
[63] In Massachusetts, a court may exercise jurisdiction in a custody proceeding only under the provisions of M.G.L. c.209B (MCCJ). The court must first determine the child's "home state" at the commencement of the proceedings. The "home state" requirement includes a six-month residential clause (with a provision for a child less than six months old). Under this test, Massachusetts would not be the children's home state. However, six months prior to the commencement of the action, the children did not reside in any one place for the requisite continuous six-month period. The children would therefore be considered to have no home state. In other words, under Massachusetts law, Ontario is also not the children's home state and a different test is applied, specifically M.G.L. c.209, ss. 2(a)(4), which provides:
Section 2(a): Any court which is competent to decide child custody matters has jurisdiction to make a custody determination by initial or modification judgement if:
(4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3) or another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction.
[64] Mr. Kane concludes "[u]nder the facts of this case, it is my opinion that Massachusetts must have jurisdiction under the MCCJA, M.G.L. c. 209B SS2(a)(4)".
[65] Further, pursuant to M.G.L. c.209, ss28, "if a married person comes from another state or country into this commonwealth, that married person shall have all the rights, powers and obligations given to married persons by this chapter". The law in Massachusetts is similar to the law in Ontario with respect to custody in that until a judgment on the merits is rendered, the parties have shared legal custody of the children.
[66] For all the reasons set out above, I am satisfied that the respondent did have a right of custody to the child at the time of their retention, as contemplated by art. 3 of the Convention.
Issue #3: Was the father exercising his custody rights?
[67] Article 3(b) only applies if the left behind parent was "actually exercising" rights of custody at the time of the retention or removal. The courts have defined "actually exercising" to include "some involvement" with a child.
[68] The question of whether a parent is "exercising" right of custody must be widely construed and attracts a very low threshold. Absent a ruling from a court in the country of the child's habitual residence, courts enquiring whether a parent was exercising custody rights at the time of a wrongful removal or retention should liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child: De Martinez v. Rios, [2008] O.J. No. 3098, 50 R.F.L. (6th) 293 (S.C.J.), at para. 23; and Friedrich v. Friedrich, 78 F.3d 1060 (U.S. C.A. 6th Circ. 1996). Short of acts that constitute clear and unequivocal abandonment of the child, a parent will be found to be exercising custody rights.
[69] Based on the facts of this case, I find that the father was exercising his rights when the mother left for Toronto with the children.
Issue #4: Was the removal/retention wrongful or did the father consent or acquiesce to the removal?
[70] It is the mother's position that the father consented to the children's removal. She submits that she had his consent to remove the children as a result of the "veto right". I disagree with the mother's position that the father consented to the children moving from Massachusetts to Ontario.
[71] With respect to the time-limited travel consent, the father cannot be found to have properly consented to the mother removing the children from Massachusetts to Toronto, even if just for a visit. Where there is evidence of consent, the court must consider whether the consent was a valid and informed consent. Vitiating factors may include deceit, fraud or fundamental misrepresentation. The common element in all of these is dishonesty: De Martinez, at paras. 19-20. Consent obtained through calculated and deliberate fraud on the part of the absconding parent is not true consent.
[72] It is clear from the travel consent that the father did not acquiesce to the children remaining in Ontario. The father's consent was not unconditional. He was clear from the outset that his consent was conditional on the children being returned. The father expressed a concern that the mother would retain the children in Toronto and the mother confirmed, quite emphatically, that she would bring the children back. She was being dishonest and deceitful. Even if the father had provided unconditional consent (which he did not), the consent would be vitiated by the mother's dishonest representations.
[73] I also find that the mother's position and evidence with respect to the "veto right" is not sufficient to prove she had the father's consent or that the father acquiesced to the children moving back to Ontario, as required under art. 13(a) of the Hague Convention. To trigger the application of the art. 13(a) defence, there must be clear and cogent evidence of unequivocal consent or acquiescence. The mother bears the burden of proving she had consent.
[74] Even if the removal of the children from Massachusetts was not wrongful, in that the father signed a consent allowing the children to visit Ontario (albeit obtained under false pretenses), their retention was wrongful. The applicant relies on a "veto right" she alleges was given to her in an exchange of e-mails between the parties, that allowed her to unilaterally move back to Ontario with the children. There are number of reasons her position in this regard cannot succeed.
[75] First, I would have to find that the exchange of e-mails constituted a valid agreement between the parties. Further, I would have to find that this agreement was capable of enforcement. I find it cannot succeed on either basis.
[76] I question whether the exchange of e-mails between the parties meets the criteria necessary to constitute an agreement. In her affidavit, sworn May 22, 2019, the mother discusses the steps she took to ensure that the "prenuptial agreement" addressing their financial arrangement was valid and states that "[i]t was very important to me that this document be done properly, and be legally binding and fully enforceable given what it represented in terms of safety for the Children and me". The parties spent almost a year finalizing this agreement. However, the mother took no steps to ensure the alleged agreement setting out her "veto right" was valid and enforceable, despite alleging that it was "so important" and a condition for her consent to move to the Boston area. It was mentioned in one e-mail exchange. But I do not need to decide this issue because even if I were to find that the exchange of e-mails had the requisite criteria for an agreement between the parties, the agreement would be invalid under s. 53(1) of the Family Law Act, R.S.O. 1990, c. F.3.
[77] Section 53(1) of the Family Law Act states that:
53(1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children.
(Emphasis added)
[78] Pursuant to s. 53 of the Family Law Act, an agreement to determine the place of residence of the children following the breakup of the marriage is invalid. The parties were still married at the time they allegedly entered into this agreement and were separated when the mother purports to be exercising same. The agreement is therefore incapable of enforcement and did not permit the applicant to move from Massachusetts with the children as she purports: Schroeder v. McCormack, [2016] O.J. No. 3464, 2016 ONSC 4219 (S.C.J.), at para. 32, affd Schroeder (Div. Ct.), supra.
[79] Finally, even if the agreement was valid and enforceable there is authority for the proposition that the agreement cannot, in any event, displace the provisions of the Hague Convention. It is the facts on the ground that determine the habitual residence of a child rather than any agreement of the parties: Schroeder (S.C.J.), at paras. 43-48.
Issue #5: If there was a removal or retention of the child from their habitual residence that was wrongful under the Convention, do any of the exceptions apply? Specifically, is there a grave risk that the return would expose the children to physical or psychological harm or place the children in an intolerable situation?
[80] Under art. 13(b) of the Convention, the requested state is not bound to order the return of the child if the parent who opposes the return establishes that there is a grave risk of harm that the children would be exposed to physical or psychological harm or otherwise placed in an intolerable situation if returned. For the reasons set out below, I find that there is no grave risk that the children would be exposed to harm or placed in an intolerable situation, if returned to Massachusetts.
[81] Pursuant to art. 12, once it has been determined that there has been a removal or retention of the child that is considered wrongful under the Convention, it is mandatory to order the return of the child, unless the application was not commenced within a year or any of the exceptions set out in art. 13 apply.
[82] The exceptions in art. 13 include
(a) the parent was not actually exercising custody rights at the time of removal or retention -- which does not apply in the case before this court;
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation -- which has been asserted by the mother; or
(c) if the child objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of its views -- which does not apply in this case given the very young ages of the children.
[83] The evidence regarding the alleged abuse can be briefly summarized as follows:
(a) The mother submits that she fears for her physical, emotional and psychological safety. When asked for specifics, she highlighted three incidents of physical abuse by the father. She described the following incidents:
(i) 2013: In the spring of 2013, the father physically blocked the mother from leaving the home. He threw her to their bed, and she bounced off the bed onto the floor, hitting her head on the wall.
(ii) 2015: During an argument in 2015, the mother locked herself in the bathroom. After the father picked the lock, the mother tried to keep the door closed by putting her body and arms against the door. The father managed to enter the bathroom and grabbed her by the arms. The mother sustained bruises to her arms.
(iii) 2016: The parties were on holiday in Spain and the parties got into another argument. The mother tried to go into the bathroom and the father threw her against the door. She hit her elbow hard and he drove her to the hospital to get an x-ray. Her elbow was not broken, she had a contusion/bruise. On their way back to the hotel, the mother asked to get out of the car because the father was screaming at her and was driving erratically. The father refused to pull over. She threw his iPad out of the car to get him to stop.
(b) The mother also submits that in 2014, the father was diagnosed with mild adjustment disorder, which she suspects contributes to his instability. The father has been under the care of a psychiatrist, Dr. Chud, since November 2014. Dr. Chud filed an affidavit in these proceedings and was also subject to cross-examination by the other side. He did not share the mother's concerns.
(c) The mother acknowledged that the father had not been physically abusive to her since 2016, but describes incidents where he chased her around the house.
(d) She alleges his behaviour puts the children at risk. She submits that his acts of aggression are harmful and traumatizing to the children.
(e) In her affidavits, the mother describes an unhappy marriage, with both parties exchanging unkind words with each other at various times. The move to Massachusetts was another stress factor added to their already unstable marriage.
(f) In her affidavits, the mother relies heavily on quotes from her e-mails to the father. These cannot be read in isolation. A review of the voluminous e-mail exchanges between the parties provides a more accurate depiction of the relationship between the parties.
(g) The family had two nannies working for them in Toronto. One of the nannies followed the family to Massachusetts. Both nannies swore affidavits and were both subject to questioning/cross-examination. The affidavits and transcripts were helpful.
[84] The Convention sets a high threshold of a "grave risk" of physical or psychological harm or otherwise placing the children in an "intolerable situation". Any interpretation short of a rigorous one, with the few exceptions inserted in the Convention, would rapidly compromise its efficacy: Ellis v. Wentzell-Ellis (2010), 102 O.R. (3d) 298, [2010] O.J. No. 1987, 2010 ONCA 347, at paras. 38-40. An assessment of risk involves not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring: Andegiorgis, at para. 55. A test for severity of harm was set out by the Court of Appeal in Jabbaz v. Mouammar, [2003] O.J. No. 1616, 38 R.F.L. (5th) 103 (C.A.), at para. 23, as "an extreme situation, a situation that is unbearable; a situation too severe to be endured".
[85] Justice Abella's decision in Pollastro v. Pollastro (1999), 43 O.R. (3d) 485, [1999] O.J. No. 911 (C.A.) is often referred to in Ontario decisions on the issue of grave risk. In Pollastro, there was ongoing physical violence causing the wife to be "bruised front and back". The incidents escalated. When she came home from work one day the husband ripped her T-shirt, banged her head against the floor and later locked her in the bathroom (para. 9). Two days later, he disabled her car and she was forced to walk to work carrying their baby, frightened because the husband followed her most of the way. She decided to leave him that day but when she returned home to retrieve some clothing her husband started assaulting her and she had to escape through the bedroom window. Her doctor documented the extent of the bruises on her neck, arms, back, shoulders and thighs as well as the child's agitated state. Her husband continued to harass her as well as some of her former co-workers. He harassed her mother, her father and her cousin, calling incessantly, threatening his wife and her family. He talked about exacting revenge on his wife, and that if he could not have the child no one would. He made death threats and told her she would never see her son again. He acknowledged drug use and was often drunk. There was overwhelming evidence of him threatening to kill or harm his wife and/or the child. The husband could not control his temper and showed ongoing irresponsible and irrational behaviour. Justice Abella found the "potential for violence [to be] overwhelming" (para. 36).
[86] I need not look at the credibility of the parties to determine this issue. If I were to accept all of the applicant's allegations of the father's abusive behaviour and alleged mental health issues as true, it would not amount to an "extreme situation" and would not meet the applicant's onus of proving that there is a grave risk that the children's return would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. In the case before me, the facts do not come close to the severity described in Pollastro.
[87] In Habimana v. Mukundwa, [2019] O.J. No. 1385, 2019 ONSC 1781 (S.C.J.), at para. 42, De Sousa J. highlights three questions that previous cases have considered in order to determine if the threshold has been met:
(a) Has the alleged past violence been severe and is it likely to recur?
(b) Has it been life-threatening?
(c) Does the record show that the offending individual is not amenable to control by the justice system?
[88] See, also, Hassan v. Garib, [2017] O.J. No. 6333, 2017 ONSC 7227 (S.C.J.). Based on the evidence before me, the answer would be no to all three questions above.
[89] Both parties provided the court with numerous cases where parties were either successful or not successful in relying on art. 13(b) of the Hague Convention. These were all reviewed and helpful in deciding the issue based on the facts set out in this case.
[90] In Friedrich, a U.S. Court of Appeal decision, Boggs J. relied on Thomson, the Supreme Court of Canada decision, when considering art. 13(b) and further stated:
A grave risk of harm for the purposes of the Convention can exist only in two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute --e.g. return the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
(Emphasis added)
[91] This interpretation has been endorsed and adopted by the Ontario Superior Court of Justice and affirmed in the Court of Appeal: De Martinez v. Rios, at para. 32; and Wedig v. Gaukel, [2007] O.J. No. 1547, 38 R.F.L. (6th) 60 (S.C.J.), at para. 89, affd 2007 ONCA 521, 38 R.F.L. (6th) 91.
[92] I find that the allegations of the applicant are insufficient to meet the requirements of art. 13(b) of the Convention.
[93] There is no question that in certain circumstances, a physical or verbal attack on a mother could cause psychological harm to the children. However, the situation in this case is far removed from the cases where courts have found grave risks of harm: Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226, [1999] O.J. No. 3579, 1999 ONCA 1722, at para. 32; and Pollastro.
[94] Further, the applicant has not demonstrated that Massachusetts is not able to protect the children. The basic presumption of the Convention is that all contracting states are equipped to make, and will make, suitable arrangements for a child's welfare. That presumption is rebuttable, but the onus is on the mother to establish an exception. The applicant has not rebutted this presumption. See, by way of example, Andegiorgis, at para. 60; Finizio, at para. 34; and Ellis, at para. 46.
[95] Finally, as set out above, the question before the court is not whether the children should be returned to the respondent's care but whether they should be returned to Massachusetts.
[96] As set out by the Supreme Court of Canada in Thomson, Canadian courts can impose undertakings on parties to deal with the transition period between the time when the Canadian court makes a return order and the time at which the children are placed before the courts in the country of their habitual residence: Thomson, at p. 597 S.C.R. While there have been some cases that have questioned the propriety of including undertakings in orders, as recently as 2019, there is still strong authority to do same: Habimana, at para. 60. The father has already provided an undertaking to this court that if the children are returned to Massachusetts, the mother and children can reside in their home and the father will reside in alternate accommodations.
Order
[97] Order to go as follows:
(a) the children shall be returned to Massachusetts by August 1, 2019, in the care and control of the applicant mother, pending court order in Massachusetts or agreement between the parties. If the applicant chooses not to accompany the children, she shall deliver the children to the respondent father in Toronto, and he shall return with the children to Massachusetts;
(b) police officers in the City of Toronto, O.P.P., R.C.M.P. and officers of any other law enforcement agency having jurisdiction are directed and authorized to enforce this order, if requested, and in doing so may enter any place, including a dwelling place, where they have reasonable and probable grounds to believe the children are located;
(c) the respondent shall buy the airline tickets for the mother and the children;
(d) the parties are ordered not to remove the children from Massachusetts until the Massachusetts court determines the merits of a claim for custody or access under its law, by interim or final parenting orders, or as the parties otherwise agree in writing;
(e) if the mother chooses to accompany the children, the respondent father shall vacate the home, municipally known as [address omitted], Wellesley, Massachusetts, U.S.A., so that the applicant and children can return to the matrimonial home upon their arriving in Massachusetts;
(f) if the parties are unable to reach an agreement with respect to costs, the respondent shall serve and file written cost submissions, no long than four written pages, not including offers to settle and bill of costs, no later than ten business days from the release of these reasons. The applicant shall serve and file any responding material within ten business days of receipt of the respondent's material, subject to the same length restrictions.
Application allowed.
End of Document
