COURT FILE NO.: FS-19-12026-00 DATE: 20200515 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Agnieszka Magda Stefanska Applicant – and – Krzysztof Pawel Chyzynski Respondent

Eryk Rybicki, for the Applicant Krzysztof Pawel Chyzynski, for the Respondent

HEARD at Toronto: April 21, 2020

Reasons for judgment

C. HORKINS J.

Introduction

[1] The respondent, Krzysztof Pawel Chyzynski (“father”) brings an application for an order directing the return of his children 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").

[2] On June 29, 2019, the applicant, Agnieszka Stefanska (“mother”) and children came to Toronto, ostensibly on a vacation. When the mother refused to return to Poland with the children, the father commenced this Hague application.

[3] The mother admits that the children were “habitually resident” in Poland when they left Poland. The children had lived and attended school in Poland since 2015. The mother admits that based on these undisputed facts her removal of the children from Poland was “wrongful” pursuant to Article 3 of the Hague Convention.

[4] It is the mother’s position that the children should not be returned to Poland for two reasons. First, she relies on Article 13(b) of the Hague Convention and states that the children should not be returned to Poland because “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”. Second, she states that the children object to being returned to Poland and asks the court to consider their views.

Brief Review of the facts

[5] The following is a brief review of the facts that are not in dispute.

[6] The parties were born in Poland and married in May 2008. At the time of their marriage, the mother lived in Toronto and the father lived in Poland.

[7] The parties have two children: JC is 11 years old and SC is 10 years old. The children were born in Canada, and like the mother, have citizenship in both Canada and Poland. After their birth, the children lived with the mother in Toronto. During this time, the father remained in Poland and travelled to Toronto to visit his family.

[8] Around 2014, the mother and children moved to Poland for a short period of time to be with the father and then returned to Toronto. In 2015, the mother and children returned to Poland, where they lived until June 29, 2019.

[9] At some point in 2017, the parties separated. In November 2018, the father commenced a Petition for Divorce in the Regional Court in Warsaw, 6th Civil Family Appeal Division (“Warsaw Family Court”). In his Petition, the father sought relief regarding the children, specifically that their residence be with him and that mother have access. Translated records from the Warsaw Family Court explain what took place in this Court proceeding after the Petition was issued.

[10] On December 17, 2018, an order was made to obtain the opinion of a team of Court experts. The team’s task was to assess the emotional relationship of the children with their parents, the role of each parent, and the optimal contact the children should have with each parent. The team included, Krystain Kryzba, a family social worker and Katarzyna Wojda, the “Professional Court Appointed Guardian”. They were required to submit monthly reports to the Warsaw Family Court.

[11] On January 31, 2019, a “Blue Card” procedure was initiated concerning suspected violence that the mother and children were exposed to. The father was suspected of using violence.

[12] The court file documents a Warsaw Family Court hearing on May 15, 2019 and a report from the “Interdisciplinary Team for the Prevention of Domestic Violence”. The Court record of this hearing states that the “Interdisciplinary Team for the Prevention of Domestic Violence in connection with the ongoing Blue Card police procedure” asked the Court to make an “urgent decision” concerning the guardianship of the children. The record describes the steps taken leading up to this hearing. A working group was established that included the social worker, a police officer, a counsellor from the children’s school and the court appointed Guardian for the children. This group held meetings with the parents and others. At this point, the father was not living with the family. The report states that the parents could not agree on “regular care issues” and the children did not have regular contact with their father. The report states that “prolongation of this situation may destabilize the emotional and developmental situation of the minors”.

[13] The court record goes on to state that in the opinion of the working group, “including the court-appointed guardian who regularly monitors the children’s situation”, the team found that it was “reasonable and necessary” that the court issue an interim order determining the children’s place of residence with their mother, awarding support to the mother, and establishing the father’s contact with the children. The working group also reported that interim orders were necessary to “stabilize the situation of the children and provide them with a minimum of security, taking into account the relations that exist between their parents” and that such orders would “reduce the risk of loyalty conflict” and other “emotional difficulties".

[14] After the May 15, 2019 hearing, the Warsaw Family Court released a decision on May 28, 2019. The court ordered that the children would reside with their mother “for the duration of the trial” and the father was granted access every other weekend, from Friday after school to Sunday evening and two weeks of vacation time in August 2019 (August 1 to 14) This access was unsupervised. The parents were ordered to “undergo workshops for parents in a divorce situation” and provide proof of completion by October 31, 2019.

[15] After the May 28, 2019 order, the court appointed Guardian and social worker continued to file reports with the Court. These reports reveal the mother’s refusal to cooperate and abide by the Warsaw Family Court order that gave the father weekend access. The mother continued to advance her belief that the children should not be left with their father, despite the court order. She told the Guardian that the father was addicted to pornography and she was worried that the children would have unlimited access to it while in his care.

[16] The father’s first weekend visit with the children following the court order was scheduled for June 7 to 9, 2019. The mother told the social worker that she had plans for the children that weekend. The social worker told the mother that “the Court’s decision should be respected and complied with”.

[17] The Guardian and social worker filed a lengthy report with the court concerning the father’s failed attempt to exercise his first weekend access. Their report included a report from Anna Kopaniak, the counsellor at the children’s school. The report describes what happened on June 7, when the father attended at the school to pick up the children for his first court-ordered weekend.

[18] The mother emailed the counsellor on June 7 and stated that the … children will not go anywhere with him and want to come home … I talked to the children about it, they are very stressed about how their father will behave. I think they are afraid of an argument and shame. Please support them with your presence and, if possible, try to avoid a situation happening in front of the whole school.

[19] The counsellor called the mother after receipt of her email. The mother told the counsellor that she would bring the children’s “things and will support them in contact with their father”. The counsellor told the mother to remember that “children cannot take responsibility for deciding if they want to see their dad, because their fears after four months of not seeing him are natural”.

[20] The counsellor then invited the children into her office to talk. The children said that they had not seen their father in a long time and that their parents could not get along. The children knew that their father was coming to pick them up for the weekend. They told the counsellor that they did not want to “be picked up by their dad” for the following reasons: they were afraid, he would be “shouting” and “recording them”, they would not be able to “call their mother”, their father would keep them for “longer” than the weekend, and their parents would argue and shout in front of them in the school and then they would be “stressed”.

[21] The counsellor reported that the children “would prefer seeing their father … when mum and dad will divorce and will be more reconciled”.

[22] After meeting with the children, the counsellor called the father to tell him about the children’s fears and the possibility that they would be reluctant to go with him for the weekend. The father told the counsellor that he was stressed and had been consulting a psychologist on how to talk to his children.

[23] The mother arrived at the school an hour before the father’s pickup time. She waited and talked to the younger child, SC. When the father arrived, JC was still in class. The father asked the mother what she was doing at the school and why she didn’t simply leave the children’s belongings and go home. The mother announced that the children did not want to go with him. At this point, the counsellor moved the parents and SC into an empty classroom and then asked SC if it was true that she did not want to go with her father. The counsellor observed the child looking at the mother and then saying she did not want to go with her father. The parties started to argue.

[24] The father tried to speak to SC. He followed SC into the empty classroom where he’d just been and held the door with his body so it could not be opened from the other side. The mother told the counsellor that this was “aggression”. The counsellor knocked on the door and after a few seconds the father opened the door. The mother took the child’s backpack and announced she was taking the children home.

[25] The father then saw JC, the older child walking down the hallway. He approached JC and “hugged him”; they then “sat on a couch embracing” and “talked for awhile” while the mother and SC stood off to the side. The counsellor reported that JC “smiled shyly, he seemed to be stressed by the whole situation” and that he did not want to go with his father because they already had plans for the weekend with their mother.

[26] The mother and children left. The father told the counsellor that he “would not struggle with [the mother].” The father was upset and crying and returned home alone.

[27] The following week the mother refused to allow the children to attend school. It is her evidence that she did this out of fear that the father would abduct the children. The mother told the school counsellor that on June 11, 2019, the father jumped out of the bushes and tried to drag the younger child into his car. The mother did not observe this happen. The father confirmed to the school counsellor that he tried to speak to his child that day but “presented a completely different picture of the situation”.

[28] The school counsellor suggested that the parties attend mediation with a specialist. This did not occur.

[29] The mother refused to attend “parental therapy” counselling with a psychologist who had been working with the father since November 2018. She questioned the competence of the psychologist (who is the Chairman of the National Board for the Protection of the Children’s Rights). The psychologist describes the father as having “good knowledge and deep understanding of [the children’s] needs and shows great determination to truly participate in their lives”.

[30] In early July 2019, the father suspected that the mother and children were in Toronto. The social worker contacted the mother and was told that she and the children were in Toronto on holidays and would be back the end of July. In this text exchange, the mother says that the children “spent their winter holidays abroad with their father, and now they are on their summer holidays with me”.

[31] The mother commenced an “interlocutory appeal” of the May 28, 2019 order. In reasons dismissing the appeal, the Appeal Court states that the Warsaw Family Court “extensively and comprehensively assessed and [weighed] the evidence material collected in the case”. This involved considering the father’s need for “access, to maintain, strengthen and develop bonds” with the children. The Appeal court stated that the father’s presence was desirable for the “children’s welfare”. The Appeal Court acknowledged that the lower court considered the “probable parental care shortcomings of the father” which have “not been substantiated in such a qualified form as the [mother] argues, to contradict weekend contacts with staying overnight.” In particular, the Appeal Court states that the accuracy of the lower court decision is confirmed by the mother’s behaviour. While she accused the father of physical abuse and addiction to intoxicants or pornography, she agreed to allow the children to go on a winter vacation with the father to Italy.

[32] The Appeal court stated the “form of custody” would be resolved in further proceedings which would include “an expert opinion”. In the meantime, the Appeal Court stated that “weekend contacts” were “sufficient to maintain a bond between the father and children”. The Appeal Court concluded that the mother’s “cooperation” is “necessary” because her “behaviour may also have a material impact” on the children’s “perception of the father” and their “willingness to meet him” and may “mitigat[e] … the existing loyalty conflict of the parties’ children.”

[33] The proceedings before the Warsaw Family Court have been stayed pending the result of this Hague application.

The Legal Framework

[34] 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.

[35] The Hague Convention “ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law” (Office of the Children’s Lawyer v. Balev, 2018 SCC 16 at para. 22). There are more than 90 contracting states, including Canada and Poland.

[36] The Hague Convention seeks to remedy the serious harms caused by international child abduction. At para. 23, the Court in Balev stated: International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

[37] Article 1 of the Hague Convention explains that the Convention is aimed at “enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”. An order for return of the children is not a custody order. It is “an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access” (Balev at para. 24).

[38] Article 3 of the Hague Convention sets out the circumstances in which the removal or retention of a child is wrongful. First, the removal or retention must breach the “rights of custody” given to a parent (in this case, the father) “under the law of the State” where the children were “habitually resident immediately before removal or retention”. Second, at the time of removal or retention, the father must show that his rights were exercised or would have been but for the removal or retention.

[39] Article 12 provides that if, under Article 3, children have been wrongfully removed or retained, and less than one year has elapsed since the wrongful act, the court shall order the return of the children forthwith, subject to the exceptions in Article 13. In his case the mother relies on Article 13(b) and 13(2).

[40] Article 13(b) provides that the court is not bound to order the return of the children if it is established that “there is grave risk” that return of the children “would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation”.

[41] Article 13(2) gives this court the discretion to refuse to order the return of children of a sufficient age and majority, who object to the return. As stated in Balev, the judge’s “discretion to refuse to return the child to the country of habitual residence” only arises if the party opposing return establishes that:

(1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and (2) the child objects to return.

Analysis

Habitual Residence/Wrongful Removal and Retention

[42] The analytical framework for deciding a Hague application is set out in Balev. The first step is to decide the date of the alleged wrongful removal or retention. The second step is to decide where the children were habitually resident immediately before the date of the wrongful removal or retention.

[43] In this case, the parties agree that the children were wrongfully removed from Poland on June 29, 2019, the date the mother and children left Poland and flew to Toronto. It is also agreed that immediately before this date, the children were habitually resident in Poland.

[44] While the parties have agreed on steps one and two, it is important to review the facts to show that this agreement as to the children’s habitual residence is consistent with the hybrid approach in Balev.

[45] The hybrid approach requires the court to look at “all relevant circumstances” including parental intention and the circumstances of the children. This approach is used to determine the “focal point” of the children’s lives before the wrongful removal. It considers the links to and circumstances of the children in Poland, the circumstances of their move to Canada and their links and circumstances in Canada. In this case, the facts clearly support the agreement that Poland is the habitual residence.

[46] A consideration of the links and circumstances confirms the following.

Links and Circumstances of the Children in Poland

[47] The children and mother have dual Polish-Canadian citizenship. The children are fluent in the Polish and English languages. The children were born in Canada. They moved to Poland when they were in kindergarten and then returned to Toronto for a short period of time. In 2015, the mother and children returned to Poland where they lived until June 29, 2019. The father has always lived in Poland. On return to Poland in 2015, the family lived in Warsaw where the parents worked. The mother was an office manager for a large real estate brokerage company and the father owned a renovation company. The children were settled in school. They attended a private school in Warsaw from September 2015 until they left Poland in June 2019. They successfully completed their school year in June 2019 and were promoted to the next grade. The child JC was awarded a diploma for his achievements. The children’s maternal and paternal grandparents live in Poland. The children visited their grandparents. Through these family and school associations, the children have established links in their Polish community.

Circumstances of the Children’s move to Toronto in June 2019

[48] The circumstances leading to the move to Toronto show that the mother refused to abide by the order of the Warsaw Family Court that gave the father unsupervised access to the children.

[49] In the father’s February 2018 Petition for Divorce, he sought relief regarding his children and asked that their residence be shared, and each parent have access.

Children’s Links to and Circumstances in Toronto

[50] In contravention of the Warsaw Family Court Order, the mother relocated the children to Toronto and enrolled them in school without the father’s knowledge and consent. He thought they were going to Toronto for a summer vacation. When the father realized that the mother was not returning the children to Poland, he immediately took steps to initiate this Hague application. Unfortunately, through no fault of the parties, the hearing of his application was delayed.

[51] The children have attended school in Toronto since September. Their only relative in Toronto is their maternal aunt.

Article 13(b) - Grave Risk Exception

[52] The mother states “there is grave risk” that return of the children “would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation”. The evidence that the mother relies upon can be summarized as follows:

(i) The father was at one point on the Polish "blue card registry" which, according to her, "alerts the relevant law enforcement authorities to the possibility of domestic violence". (ii) The mother feared that the father had attempted to abduct one of the children immediately before she brought the children to Canada in June 2019 (this refers to the contact between father and SC on June 11 described above). (iii) The father exerted financial control over the mother toward the end of their marriage. (iv) The father was physically and verbally abusive toward the mother throughout the marriage. (v) The father was verbally and physically abusive toward the child JC. (vi) The father "is severely addicted to pornography” and the mother believes that he has exposed the children to pornography. (vii) The father took inappropriate photos of the child SC, in 2017. (viii) The mother believes that the father uses narcotics.

[53] In the mother’s affidavits she states that the father’s abusive behaviour and extreme jealousy towards her started early in their relationship. She says that he has attacked her physically and verbally many times.

[54] Attached to one of the mother’s affidavits is correspondence from her lawyer in Poland, Irena Bulinska, to Mr. Rybicki. In this letter, Ms. Bulinska states that “the mother has not been beaten by her husband on a regular basis - and as far as the law enforcements [in Poland] are concerned, only such [regular] behaviours are considered abuse”. According to Ms. Bulinska, “protection against violence in the family is fictional” in Poland.

[55] In addition to her own affidavits, the mother filed an affidavit from her sister (Katarzyna Stefanska) and affidavits from two friends (Halina Makarewicz and Joanna Najgrodzka). She relies on this evidence to support her claim of “grave risk”. As I will explain, this evidence is general in nature and does not meet the high threshold required to trigger Article 13(b).

[56] The sister lives in Toronto. She says that she witnessed the father’s “violence and aggression” against the mother and children when she visited the parties in their “Warsaw” home from 2009 to 2014 (this contradicts the evidence that during this time frame the mother and children lived in Toronto, not Poland). The sister states that the father always displayed poor anger management in front of his family. She describes one incident without a date. On this occasion, she heard (and did not see) the parties fighting. The fighting resulted in the father cutting his thumb and requiring stitches.

[57] The mother lived with her friend Halina in 2006. At the time, she was pregnant with the first child JC. The father arrived for the birth and stayed with Halina. During this visit, Halina states that the father “behaved aggressively and with extreme jealousy toward [his wife]”. During future visits, Halina states that the father was “financially controlling” and the mother never had her own money. On one occasion, Halina says that she saw the father hit the child JC for no apparent reason (no details are provided). Overall, Halina states that the father’s behaviour has become “increasingly aggressive and violent towards the [mother] over the years”.

[58] Halina states that on July 6, 2019, the children told her that they are “afraid of their father” and “have described incidence of the [father’s] aggression and domestic violence”. The affidavit does not include any evidence of the incidents the children described. The children told her that they “do not wish to return to Poland” and want to “remain in Canada with their mother where they feel safe”.

[59] The mother and Joanna Najgrodzka have been friends since 2013. Joanna states that she has witnessed “terrible fights’ between the parties that involved verbal aggression that JC was exposed to. On one occasion, she saw the father humiliate JC and tweak his ears. Most of the affidavit describes what the mother told Joanna about the breakdown of the marriage and why the parties did not get along.

[60] The mother says that she told Joanna that she had seen the father become “touchy” with SC when he was under the influence of alcohol. Joanna does not mention this in her affidavit.

[61] The father denies the mother’s “offensive claims” against him. He believes that the mother has influenced the children against him.

[62] There is a high threshold to prove “grave risk” of physical or psychological harm as confirmed in many appellate authorities. Any interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Convention: Ellis v. Wentzell-Ellis, 2010 ONCA 347 at paras. 38-40; F.(R.) v. G.(M.), [2002] R.D.F. 785 (Q.C.C.A.) at para. 30.

[63] The burden of proof for establishing “grave risk” rests on the mother. The available evidence casts doubt on the mother’s allegations against the father. First, despite her allegations, last winter she allowed the children to travel to Italy with their father on a two-week holiday. Second, as the Appeal Court noted, the Warsaw Family Court extensively and comprehensively assessed her allegations and found that they had not been “substantiated”.

[64] Even if the mother’s evidence is accepted, it does not rise to the level of “grave risk” of physical or psychological harm. The following authorities support this conclusion.

[65] Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (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. Two days later, the husband disabled her car and she was forced to walk to work carrying their baby, frightened because the husband followed her most of the way. The next day she left the family home. When she returned home to retrieve some clothing, her husband started assaulting her and she had to escape through the bedroom window. The family doctor documented the bruises on the wife’s 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 the husband 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. Based on the evidence, there was a “potential for violence to be overwhelming” (para. 36).

[66] The mother’s allegations in this case do not come close to the severity of the risk described in Pollastro.

[67] 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 v. Giorgis, 2018 ONCJ 965 at para. 55; Ojeikere v. Ojeikere, 2018 ONCA 372 at para. 62.

[68] On the question of severity, the court stated in Jabbaz v. Mouamman (2003), 226 D.L.R. (4th) 494 at para. 23 that the circumstances must be exceptional: The circumstances in which a court may refuse to order the return of a child under Article 13 are exceptional. The risk of physical or psychological harm or, as alleged in this case, an intolerable situation must be, as set out in Article 13, "grave". The use of the term "intolerable" speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.

[69] In Habimana v. Mukundwa, 2019 ONSC 1781 at para. 42, the court set out three questions to decide if the threshold has been met:

1. Has the alleged past violence been severe and is it likely to recur?
2. Has it been life-threatening?
3. Does the record show that the offending individual is not amenable to control by the justice system?

[70] In this case the answer to each question is no. The third question refers to a line of reasoning that has been commonly adopted by courts in Ontario and which draws on Friedrich v. Friedrich, 983 F. 2d 1396 (U.S. 6th Cir. 1993) a decision of the U.S. Court of Appeals for the Sixth Circuit. In that case, Boggs J. wrote that 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.

[71] The reasoning in Friedrich reflects one of the basic assumptions of the Hague Convention, that state parties understand that all contracting states “are equipped to make, and will make, suitable arrangements for the child’s welfare” (Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.) at para. 34; Medhurst v. Markle (1995), 26 O.R. (3d) 178 at 182). It would be contrary to this assumption not to recognize the safeguards present in a country of habitual residence when assessing an Article 13(b) argument. In this case, the safeguards of the Family Court in Poland are evident from the court record reviewed above.

[72] Lastly, in Mbuyi v. Ngalula, 2018 MBQB 176 at para. 65 (recently cited with approval by Jarvis J. in Vantriet v. Ogutu, 2019 ONSC 5784 at para. 33), MacPhail J. of the Manitoba Court of Queen’s Bench set out the following circumstances in which the Art. 13(b) exception has been found to apply due to family violence: Cases where the Court has found this to be the situation have generally involved clear evidence of domestic violence, including some or all of the following circumstances: photographs of injuries, third party (including police) evidence of violence, medical evidence of injuries, the granting of, and, in some cases, breaching of civil protection orders or probation orders, criminal charges or convictions for abusive conduct, inability of the efforts of police or other authorities to restrain the abuser’s behaviour, the abuser’s disregard for court orders, abuse of the children.

[73] In summary, the authorities clearly show that the threshold for relying on Article 13(b) is very high. Even if the mother’s evidence is accepted as fact, it does not establish that "there is grave risk" that return of the children "would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation".

Article 13(2) Exception

[74] Article 13(2) of the Hague Convention provides that a court may refuse to order the return of children “if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”. The application judge must determine, “as a matter of fact”, if these elements are established: Balev at para. 78.

[75] Even if this court finds as fact that these elements have been established, this court retains the discretion to order the return of the children. In deciding whether to exercise this discretion, Balev states at para. 81 that the court should consider the factors set out in the House of Lords' decision in M., Re, [2007] UKHL 55, [2008] 1 A.C. 1288 (Eng. H.L.). In that decision, the Lords write that courts assessing a child’s objections should consider the “nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations” (M., Re at para. 46).

[76] As stated in Balev, at para. 76, Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to her country of habitual residence, “and it should not be read so broadly that it erodes the general rule”.

[77] It is the mother’s evidence that the children fear their father and do not wish to return to Poland or to have access with their father. She says they want to stay in Canada in her “sole care”. They have made new friends and are excelling academically.

[78] I conclude that the mother has not established the elements necessary to rely on Article 13(2). My reasons are as follows.

[79] JC does not object to returning to Poland but expresses fear of his father. SC’s objection about going back to Poland is based on fear of her father and not wanting to see him. I have found that there is no grave risk of physical or psychological harm if the children are returned. Given this finding, a child’s objection that is based on fear of the other parent should rarely be relied on to exercise discretion not to return the child. To do so would seriously undermine the purpose of the Hague Convention (Vieira v. Dos Santos Trillo, 2016 ONSC 8050 at para. 83; C.L.M. v. J.E.A., 2002 NSCA 127 at para. 42).

[80] Further, in June 2019, the children told the counsellor at their school that they would prefer to see their father after their parents were divorced and “more reconciled”. This willingness to see their father is at odds with the mother’s position that they do not want to return to Poland.

[81] The child JC is 11 years old and the child SC is 10 years old. Age alone is not determinative of whether a child is of “sufficient age and maturity”. As stated in Balev, age and maturity are in most cases “simply a matter of inference from the child’s demeanour, testimony and circumstances.” However, children rarely testify in a family case.

[82] The mother relies on the Voice of the Child report that she filed. The father objects to this report being admitted as evidence. He says that the author of the report may not be “objective” and does not have “sufficient expertise” to prepare the report. I will address his objection below.

[83] Aside from the Voice of the Child report and what is revealed in the Warsaw Family Court file, there is no evidence to shed light on the maturity of the children. Medical or school records that might shed some light on their maturity were not provided. In some cases, there is evidence from a third party such as a social worker, child psychologist, or clinician from the Office of the Children’s Lawyer. While expert evidence is not required, it can be helpful. The parents, while not independent in any event, do not discuss the maturity of the children in their evidence.

[84] In England v. England, 2005 ONCJ 89, the court dealt with a Hague application for the return of children aged 7 and 10 years old. For courts considering a child’s maturity, Glenn J. set out the following "earmarks of maturity" at para. 12:

1. whether this child had made good decisions of a substantial nature for herself in other situations;
2. whether she had the ability and opportunity to, and in fact had reasonably weighed the more important competing benefits and disadvantages in reaching her decision;
3. whether her decision was reached with a reasonable measure of independence;
4. whether her fears relating to returning to the home state appear reasonable, in the circumstances

[85] These earmarks of maturity were applied by the Alberta Court of Appeal in S.(J.) v. M.(R.), 2013 ABCA 441 at para. 25.

[86] I now turn to the Voice of the Child report. I will address the father’s objection to using this report and explain why the report does not assist the mother.

[87] On March 11, 2020, Justice Hood made an order requesting the Office of the Children’s Lawyer to prepare a Voice of the Child report. Unfortunately, the Children’s Lawyer declined the request due to lack of resources. As a result, the mother retained a lawyer, Feven Glaizghi, to prepare a Voice of the Child Report. The mother filed the Report in response to the father’s Hague application.

[88] After Ms. Glaizghi was retained, she offered to meet both parties. However, the father did not respond to this offer. Therefore, “[i]n the interest of fairness”, Ms. Glaizghi states that she declined to conduct an intake with the mother.

[89] Ms. Glaizghi confirms that she is not related to either party and has no connection or relationship with the mother’s counsel. She practices family law in a “limited capacity” and is not an “expert in child psychology”. Her main area of practice is criminal law. According to her resume, she has never previously prepared a Voice of the Child report or received any training to do so.

[90] On this retainer, Ms. Glaizghi hired Joanna Seidel to provide her with three hours of consultation services before meeting the children. Ms. Seidel is a child and family therapist and custody evaluator. Her practice includes preparing Voice of the Child reports.

[91] On its face, the Voice of the Child report is well organized and relays what the children told Ms. Glaizghi. It is a non-evaluative report. The author does not seek to assess the maturity of the children or the reasonableness of their concerns. The report simply sets out what the children reported to Ms. Glaizghi over the course of two meetings.

[92] In Ontario, there are no statutory or other guidelines that state who can prepare a Voice of the Child report. It is always preferable that a trained professional prepare the Voice of the Child report, but in this case the Office of the Children’s Lawyer declined Justice Hood’s request to assume the responsibility. With the hearing date approaching, the mother retained Ms. Glaizghi.

[93] Obviously, it is best that trained professionals prepare Voice of the Child reports. While Ms. Glaizghi does not have such training, she sought guidance from a professional before meeting the children. I take into consideration that this is a non-evaluative report. The report simply acts as a vehicle to present the views of the children to the Court without any evaluation. I find that it is better to have these views than reject the report. I am not prepared to reject the Voice of the Child report because of the writer’s lack of experience. The Voice of the Child report offers the following evidence.

[94] JC wants to “live with his mom” and does not “care where just away from my dad”. If he is returned to Poland, he would “feel fine” with this but does not want to be close to his father. He is afraid that his father will kidnap and hit him. He is also afraid that his father will bully him into doing everything he wants like “scratch and massage him again”.

[95] JC has friends in Toronto and keeps in touch with his friends in Warsaw. In Poland, JC “really liked his private school”, because it was “really nice and really modern”. School in Toronto is “quite easy” for him. He described a “high level of education” in Warsaw with fewer students and found that school was challenging in a positive way. He described Poland as “really nice and modern” with a “lot of things to do”. He lived close to his school and friends. He repeatedly stated that the only thing he did not like about Poland “was Dad”. JC said that practically all of his family lives in Poland and that they enjoy visits and vacations together. He misses his friends and family in Poland but is happy in Toronto because he “can finally get out from my dad and he cannot do anything to me anymore”.

[96] SC is happy in Toronto and does not want to return to Poland. She wants to stay in Toronto and “not have meetings with my Dad”. SC described life in Toronto as “really cool and quiet, and just chill”. She said that they have “more peace” in Toronto because their father is not present. SC described private school in Poland as harder than the Toronto public school. In Poland, she spent time with her grandparents two to three times a month and always saw them during holidays. During her last year in Poland, she liked her home and the neighbourhood where they lived.

[97] SC also wants to stay in Canada because she has been told by her mother that “they don’t have anything in Poland anymore” and the universities in Canada are better than the universities in Poland.

[98] SC expressed fear of returning to Poland because of her concerns about her father. She does not want to go back because she thinks her father will “stalk” her and do “weird stuff like try to kidnap me again”. This child described two incidents. On the first occasion, her father picked them up from school and they went to the cottage for the weekend unexpectedly. When her father showed them a text, he had sent to the mother telling her about the weekend trip, SC believed him. She did not enjoy the weekend and said it was “kinda like kidnapping”.

[99] The second incident occurred on June 11, 2019. The child was riding her bike home from school and her father pulled over in his car because he wanted to talk to her. The father began to pull the child over to his car. It was the child’s fear that he would push her into the car and drive away. This did not happen. The child ran back to her bike and rode home.

[100] It is unclear on the evidence why the child chooses to characterize these events as kidnapping. The father is concerned that this is the mother’s influence. Either way, these two events have been unfairly labelled.

[101] In summary, I find that the mother has not proven the two elements necessary to rely on Article 13(2).

Return of the Children to Poland

[102] Pursuant to Article 12, I order that the children shall be returned to Poland.

[103] The mother asks the court to impose numerous conditions on the children’s return to Poland. In particular, she seeks an order directing the father to agree to have his access supervised, that he not conduct any surveillance of the mother and children, that he agree to a non-contact order and that he undergo a risk assessment and treatment for all of the behaviour that the mother alleges against him. She also seeks orders that he agree to pay support and other financial relief.

[104] The mother’s request to impose conditions is denied. Her allegations regarding the father’s conduct have been considered and rejected by two courts in Poland.

[105] The mother left Poland while the Warsaw Family Court was in the process of dealing with the dispute between the parties. That court has made orders (upheld on appeal) that are intended to be followed while the court matter proceeds. It is for the Warsaw Family Court to consider if any additional orders are required as the matter moves ahead in that court.

[106] The Hague Convention requires that the return be “forthwith”. Unfortunately, their immediate return is complicated by the COVID-19 pandemic and the resulting problems with international travel. The parties agree that the children should not travel back to Poland at this time. However, their return must not be unnecessarily delayed.

Conclusion

[107] In summary, I make the following orders:

1. Krzysztof Pawel Chyzynski’s application for an order directing return of the children 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 is granted.
2. The children JC and SC shall be returned to Warsaw, Poland forthwith.
3. The exact date of return shall be decided by this Court on Friday June 5, 2020 at 10:15 am, or later as ordered by this Court on June 5, 2020.
4. The parties shall immediately exercise best efforts to agree on a date for the return of the children. If such agreement is reached, it shall be set out in a written signed consent and filed with the Court along with a draft order.
5. If the parties cannot agree on a return date, they shall serve and file with the Court a brief summary of their position concerning the return date, with a supporting affidavit that explains the basis for the return date proposed.
6. The material in paras. 4 and 5 shall be served and filed by June 3, 2020. It shall be served by email and filed by email at FamilyTrialOffice-SCJ-Toronto@ontario.ca.
7. The hearing on June 5, 2020 shall take place by telephone conference. The Court trial coordinator will provide the parties with the telephone conference information. If the parties have agreed on a date for the return of the children to Poland then the Court will record this agreement and date of return. If there is no agreement, then the court will hear submissions on the return date. Either way, the June 5, 2020 telephone conference call shall take place. The court shall arrange for an interpreter for Krzysztof Pawel Chyzynski.
8. If Krzysztof Pawel Chyzynski is seeking costs of his application, the parties shall attempt to resolve the issue of costs. If there is no agreement, then Mr. Chyzynski shall serve and file written cost submissions, no longer than 4 pages with copies of any offers to settle and his Bill of Costs. This shall be done by June 1, 2020. If no material is filed by this date, the court will record that no costs are requested.
9. If costs are requested on or before June 1, 2020, the mother, Agnieszka Stefanska, shall serve and file any responding material by June 15, 2020 subject to the same length restrictions.

C. Horkins J.

Released: May 15, 2020