Court File and Parties

Court File No.: FS-22-22980 Date: 2023-04-27 Correction Date: 2023-05-29 Ontario Superior Court of Justice

BETWEEN: David John Harley, Applicant – and – Christine Suzana Harley, Respondent

Counsel: Alice H. VanDeven, for the Applicant Sarah A. Weisman, for the Respondent Kimberly Doucett, for the Office of the Children’s Lawyer

Heard: December 6 and 7, 2022 and January 3 and 24, 2023

Correction: The spelling of the surname of Counsel for the respondent, Ms. Weisman, has been corrected. There are no other changes made to the original Ruling released on April 27, 2023. This copy replaces all other copies.

Ruling on Hague Convention Application

KING J.

Introduction

[1] On June 17, 2022, the respondent mother, Christine Suzana Harley, (“mother” or “Ms. Harley”), drove from Newton Falls, Ohio, United States of America, with the parties’ son, David John Harley VI (d.o.b. August 23, 2010) (“child” or “David Jr.”) [1], to Canada, crossing the Ambassador Bridge from Detroit, Michigan into Windsor, Ontario, and then to the adjacent Town of LaSalle, Ontario. Since that time, she and the child have been residing in LaSalle with her parents.

[2] The applicant father, David John Harley V (“father” or “Mr. Harley”), brings this application pursuant to the Convention of the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”), seeking the immediate return of the child to his habitual residence in Newton Falls, Ohio, United States of America.

[3] It is not disputed that the child was habitually resident in Newton Falls, Ohio, immediately prior to travelling to Canada on June 17, 2022.

[4] The applicant father submits that the respondent mother does not meet the considerably high threshold for an exception under any provision of the Hague Convention, and specifically an exception under Article 13(b) or Article 13(2).

[5] While the mother acknowledges that there is a high threshold, it is her position that the child should not be returned to the United States. She relies on Article 13(b) of the Hague Convention and submits that there is a grave risk that the return of the child would expose him to physical or psychological harm, or otherwise place him in an intolerable situation.

[6] Secondly, the mother states that the child is mature enough, despite his age (currently 12 years old) such that his objection to returning to the United States should be considered.

[7] The child was represented in these proceedings by the Office of the Children’s Lawyer. They essentially take the same position as the mother.

Issues

[8] Given that the child was habitually resident in the United States, the only issues for the court to determine are as follows:

1. Has the respondent established on a balance of probabilities that there is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation as prescribed in Article 13(b) of the Hague Convention?

2. Has the respondent established that the child objects to being returned, and has attained an age and a degree of maturity at which it is appropriate to take account of his views as referenced in Article 13(2) of the Hague Convention?

[9] For the reasons that follow, I have determined that the respondent has established on a balance of probabilities that both exceptions prescribed in Articles 13(b) and 13(2) of the Hague Convention apply.

Nature of the Proceedings

[10] The United States of America is a signatory to the Hague Convention and is a contracting state with Canada, including the Province of Ontario.

[11] The Central Authority at the United States Department of State requested the assistance of the Central Authority in Canada in returning the child to Newton Falls, Ohio, United States of America.

[12] The Central Authority for the Province of Ontario sent a “Voluntary Return Letter” to the respondent on July 22, 2022. The Central Authority received a response from the respondent’s counsel, dated August 11, 2022.

[13] The parties filed voluminous affidavit and documentary evidence with respect to this matter. The applicant father filed affidavits dated August 26, 2022, September 26, 2022, and November 23, 2022. He was also cross-examined on November 9, 2022.

[14] The respondent mother answered via affidavits dated September 19, 2022, November 10, 2022, and November 23, 2022.

[15] The Office of the Children’s Lawyer filed an affidavit executed by Mr. Morrison Reid dated October 27, 2022.

[16] None of the affiants who filed affidavits on behalf of the mother, or the Office of the Children’s Lawyer, were cross-examined.

[17] The submissions took place over four full days.

[18] The applicant and respondent disagree with respect to virtually all evidence, the characterization of same, and the relevance of the evidence to the issues in this matter.

[19] I have not referred to all of the evidence in this decision. It is voluminous. I have, however, considered all of the evidence in determining this matter.

[20] As the issues in dispute are related to whether the respondent has satisfied the onus prescribed in either Article 13(b) or Article 13(2) of the Hague Convention, I determined that the respondent should proceed first with her submissions. That was followed by submissions from the Office of the Children’s Lawyer (“OCL”), as they represented the child, and supported the position of the respondent. The applicant then replied to their respective submissions.

The Evidence

[21] The father was born on April 3, 1974. The mother’s date of birth is July 24, 1984. The parties were married on May 30, 2009 in Ontario. They resided in Ohio for the duration of their marriage. The father is American and has resided in Ohio for his entire life. The mother is a Canadian citizen. However, she had been living in the United States since the parties were married and had status as a permanent resident at the time she left the United States.

[22] The child was born in the State of Ohio and resided there his entire life until arriving in Canada on June 17, 2022. Immediately prior to that date, the three members of the family resided in a house at 5180 Grand Blvd., Newton Falls, Ohio. This town is situated southeast of Cleveland, Ohio. The residence is a single-family dwelling with a bakery attached. The bakery was operated by the mother. There is also a small building on the property referred to by the parties as the “She Shed”.

[23] The applicant was trained as a welder and as a nurse but was not working in either capacity during the relevant time frame.

[24] Prior to the departure to Canada, the family was nuclear. Both parents exercised joint custodial care over the child. The child attended school, in Grade 5, at Newton Falls Elementary School. He was an honour role student.

[25] On June 17, 2022, the father was in the hospital as a result of surgery to his leg. The mother provided the father with no advance warning of her intention to leave the marital home and bring the child to Canada. She did not seek his consent. She had met with an Ohio lawyer who provided her with legal advice.

[26] On the date of departure, the mother had the father’s vehicle parked at the hospital with a message and instructions on how to retrieve the vehicle. She travelled with the child by vehicle and crossed into Canada.

[27] It is clear the mother intended to permanently leave both the matrimonial home and the United States.

[28] When the father returned to the house on June 18, 2022, there was a sign posted on the bakery door that stated: “Permanently closed. Thank you for your years of business.”

[29] It is not disputed on the evidence that the mother worked extremely long hours operating the bakery. It was estimated that there were often 20-hour days necessary to keep the bakery functioning.

[30] The bakery had employees. Some of those former employees provided affidavits in this matter.

Parenting

[31] At paragraph 10 of the father’s affidavit, dated August 26, 2022, he stated:

I have been an active parent and spent lots of time with David from the time he was born. I changed his diapers, fed him and played with him. I often arranged and took David to doctor’s appointments. I would arrange activities that we would attend as a family. As the Respondent’s business expanded, I took on most of the care of our son. I have a loving relationship with my son.

[32] Further, at paragraph 41 of the father’s reply affidavit, dated September 26, 2022, he stated:

I disagree with the Respondent’s characterization of my relationship with David as set out in paragraphs 42 and 43 of the Respondent’s Affidavit [dated September 19, 2022]. I never perceived David as being terrified of me. Friday night he would sit on my lap and we would watch movies together. We did so many activities together, swimming and go outside and watch him ride his bicycle. I’ve even walked he trials with him when I was able to. We went outside and played with dogs together. We did many activities together. David would often talk to me when he would want to come to sleep in bed with me or Mommy at night before he went to sleep. He would talk to me and tell me about his day.

[33] The father also provided the court with brief videos showing time where he interacted with the child outside the home. One video related to a school project. Another took place at a retail establishment. These videos showed some positive interaction between the father and the child. I took them into consideration in weighing the totality of the significant quantity of evidence the parties respectively relied on with respect to this matter.

Visits to Canada

[34] It is not disputed that the mother and child would travel to Canada a few times per year to visit family. There were times that the father would also attend.

[35] Prior to June 2022, the father would always sign consent papers. No such consent was obtained from the father. In this instance, the mother prepared two letters. The first letter provided her sister, Kathy Sulja, with authority to travel with the child into Canada for a one‑month visit. The second provided authority for health care decisions. Both letters were notarized in Ohio.

Surveillance Cameras and Listening Devices

[36] The evidence of the respondent is that the applicant would generally sit in a recliner chair in the living room of the house. A photograph of this seating arrangement configuration was in evidence and is attached to this decision as Appendix A. The facial features of the applicant in this picture have been redacted for privacy reasons.

[37] He had four surveillance cameras and three Amazon Echo/Alexa devices. [2]

[38] The respondent asserts that the applicant used the cameras to surveil the activities of herself and the child. In this manner, he could see them and hear what they were saying. He could communicate with them through the Amazon devices in the house and in the bakery, and the She Shed.

[39] The father explained the cameras were installed because the mother suspected that one of her employees was taking money. He added the following narrative, at paragraph 33 of his affidavit, dated August 26, 2022:

The employee saw us set up the camera overhead but continued to steal money, putting the money into her pocket. The employee was fired. We did not press charges because it would have cost us more than it was worth to pursue. I did use the cameras and the Alexa devices to communicate with my family because the house has separate sections that were hard to get to and I do not ambulate very well. There were some times that it was even hard for me to get out of my chair from the pain from my disability.

The cameras and Alexa devices were to provide comfort and additional security for our family. I never used any of the monitoring devices to record anyone. The cameras have an automatic storage at stores in a hard drive for about a couple of weeks of back video recordings, but it doesn’t record any audio; just video. The Alexa device doesn’t record anything either. We had Amazon Alexa’s Echoes in the living room, the bedroom and the bakery. And we have four total cameras that are mostly monitoring the outside; one in the bakery watching the door and one in the she shed watching the door.

[40] In a further affidavit the father executed on November 8, 2022, he responds to the affidavit of Mr. Morrison Reid, dated October 27, 2022. With respect to cameras, he stated that:

I have four working cameras. They are cheap and not very waterproof. The cameras do not have the capability of recording audio. They have poor quality video but it would not tell me when people are coming and going to the house. All the cameras were positioned pointing towards entrance ways to the house and the entrance to the she shed. They do have a DVR‑type recording, that keeps for a few days. There is an application also that allows me to look at the cameras on my phone. It only records very small little clips when the camera senses motion.

[41] The mother cited examples of the applicant saying things to her on the devices when he could not see her on a camera display. In her affidavit dated September 19, 2022, at paragraph 59, she included the following examples:

• Christine, you there. You there??
• I can’t see you on the camera.
• I don’t know where you are.

[42] If the applicant received no response, he would have David Jr. find her or call her on her cellphone.

[43] He would often comment to her on the Amazon Echo regarding her activities by asking her the following, also included on her affidavit dated September 19, 2022 at paragraph 59:

• “why are you hunched over the table like that”;
• “you should get off your phone”;
• “what are you doing”;
• “you haven’t moved in a while”;
• “what did that customer want”;
• “what did that customer buy”; and
• “why aren’t you set up and ready for your sale yet”.

[44] The mother added in her supplementary affidavit of September 19, 2022 that if the father saw the child spending time with her, he would utilize the Amazon device to tell him that he should not be “pissing around” and direct him to go into the house and do laundry, dishes, or other chores as directed.

Monitoring Behaviour Away from the House

[45] For a considerable period of time, the respondent did not have her own vehicle. She stated in her affidavit that the life of herself and the child was like living in a prison.

[46] She stated they had to ask permission to go anywhere. She had to provide the applicant with what he considered a legitimate excuse for leaving the house.

[47] Furthermore, on occasions when the respondent and the child were away from the residence/bakery, the respondent stated that the applicant would contact them regularly via video chat, telephone, or text message. At paragraph 59 of her affidavit dated September 19, 2022, she provided the following examples of what the applicant would do:

• demand we disclose what we were doing;
• ask how long we would be;
• ask why we were not home yet;
• ask if this trip was necessary; and
• say “you can’t be long because you have work to do”.

[48] Furthermore, if they were at all delayed in their planned itinerary, the applicant would demand a new schedule setting out their revised arrival time at the house. At paragraph 59(g) of her September 19, 2022 affidavit, the respondent explained this situation as follows:

I learned to provide the Applicant with a full list of stops. I had to frequently call him or message him to keep him updated with respect to every stop. If I told him I was going to Walmart, I would have to tell him which one, so he could calculate drive times. If I was longer than he anticipated, he would angrily call me and demand that I explain why we were not home.

[49] The applicant’s explanation for his actions in this respect was benign. He indicated he would simply check in on them to see how they were doing and ask them other general questions to show his interest.

Household Chores Performed by the Child

[50] The mother stated that in some respects, the child’s life was structured to serve his father.

[51] The tasks that he was required to do were extensive. The following are included in a listing of the tasks [3]:

a) rub lotion on the father’s legs; b) clip the father’s toe nails; c) bring the father clothes after he showered; d) provide the father with food and water; e) pick up after the father; f) feed all the animals; g) change guinea pig bedding; h) clean fish tanks and fish tank filters; i) wash dishes; j) do the father’s laundry; k) make the father’s bed; l) wash the bedsheets; m) shovel the driveway; n) mow the lawn; o) collect garbage around the house; p) take the garbage out; q) walk the dogs; r) bring working loaded guns to him; s) go shopping while the father waited in the vehicle; t) unload the car after shopping trips; u) bringing him medication.

[52] The father often built projects with the child. However, because of his disability, the father would direct the child on the operation of paver tools. This often led to confrontation if the child was unable to accurately follow his directions.

[53] The father’s position is that children of David’s age would be required to do certain chores such as clean their room and assist with pets. With respect to some of the specific tasks he performed, the father provided his explanation.

Incontinence

[54] The applicant often defecated in his clothing, all over the toilet, and in the bathtub. He also urinated frequently in a sink. The child was required to clean up these messes. This included picking up the feces soiled underwear and then washing the soiled laundry. He also had to clean the toilet and sink so that it could be used bathe or shower.

[55] The applicant acknowledged that he did have accidents at times because he suffered from many gastrointestinal problems. He stated that he did his best to try and clean up any mess that he may have had and wash the clothes or at least get them to the washing machine. He submits that the respondent’s explanation of these issues is exaggerated.

[56] With respect to the issue of the applicant defecating in his pants, and the child having to clean that up, counsel submitted that only occurred once and it is possible to pick up soiled underwear by the edges and not come into contact with the feces. Furthermore, as a result of surgery and medications being properly regulated, the applicant’s situation has improved.

Putting Lotion on Applicant’s Legs

[57] The child was required to rub lotion on his father’s legs. The applicant’s explanation for this is that the respondent would not perform this task.

[58] The applicant acknowledges the child did help with this task. The father needed this assistance because the respondent would not help him in this respect, and he had to have medicine applied to his legs to remediate the edema.

Clipping the Applicant’s Toenails

[59] While he admits this did occur, the applicant stated that it was only a few times and “David enjoyed it.”

Bringing the Applicant Food and Water

[60] The respondent and the child stated the child was often directed to bring the father food and water to his recliner. The father denied that the child was required to bring him food and water.

Weapons in the Home

[61] The respondent asserted the house contained numerous loaded weapons. This was confirmed by the child and other affiants.

[62] In the respondent’s affidavit material, pictures of the weapons were included. One of the photographs depicted a revolver located near the applicant’s chair fastened under a lamp shade. That photograph is attached to this decision as Appendix B. As referred earlier, Appendix A shows the location of the lamp beside the recliner where the father was usually located.

[63] The position of the applicant is that guns were a part of his life. While he denied having guns strewn throughout the house, he acknowledged keeping a loaded gun by his side for safety in case something would happen with “all the strange people coming into the bakery”.

[64] At paragraph 17(1) of his affidavit dated September 24, 2022, he responded with respect to weapons, as follows:

Most of my guns have been for a long time totally dismantled so they cannot fire and are basically just decorations. These are not functional guns. I have never, in my entire 48 years of life, ever pointed a gun at anyone. I have never threatened anyone with a gun.

[65] Then at paragraph 27 of the same affidavit, he adds:

In reply to paragraph 33(e) dated September 24, 2022 of the respondent’s affidavit, there were several occasions when I did carry a loaded gun in my pocket for my own safety. I’m disabled. I’ve never pointed it or used it in any way against anyone. We certainly did not always know the character of the people coming to our door.

[66] He added that now that the bakery is closed and the respondent is gone, he does not feel the need to keep a gun close by for protection.

[67] He added that when he was teaching the child how to shoot a BB gun, the child did not show any fear or reluctance.

[68] At the hearing, he disclosed that he has recently dismantled the guns and put them away. He is willing to remove all guns and ammunition from the property if that will make the child feel better.

[69] He denied the assertion of the respondent that he had David Jr. bring a working loaded gun to him.

Allegations of Abuse and Threats

[70] The respondent asserts she fled from Ohio (and the United States) to escape years of domestic violence.

[71] That domestic violence included an on-going pattern of intimidating, controlling, and abusive behaviour. She was the victim of threatening behaviour, psychological and physical threats, as well as financial and emotional abuse.

[72] At paragraph 54 of her affidavit, dated September 19, 2022, the respondent states:

Again, the Applicant is extremely malicious and there is no doubt in my mind that he will try to hurt me. I am terrified that if I have to return to Ohio, he will find me and hurt me.

[73] More specifically, the respondent described the conduct of the applicant as controlling her and the child through unrelenting physical intimidation, threats, yelling, screaming, surveillance, verbal denigration, financial abuse, periodic physical abuse, and threats of violence.

[74] With respect to verbal abuse, at paragraph 58 of the mother’s affidavit, dated September 19, 2022, she states:

(f) The Applicant referred to “little David” as an “idiot”, a “retard”, a “sissy”, “stupid”, a “pansy”, “gay”, a “crybaby”, a “mama’s boy”, and a “tattletale.” He would tell “little David” to shut up. He advised him that he would not be liked in school and that he would have a difficult time in life because he was not a man. “Little David” advised me on numerous occasions “we are the imperfection to Dad’s perfection.” “Little David” advised me that “Dad thinks he is perfect and we are little failures that had to serve him.”

[75] Further, she asserts that he had stated to her if she ever tried leaving and taking “little David” she “will regret it… you wait and see…”

[76] He also stated to her and David Jr. that she should watch herself because “if you step on my toe, I’ll stomp on your head.”

[77] She is afraid that if David Jr. is returned to the applicant, he will punish him to get back at her.

[78] The applicant responded to these assertions. At paragraph 31 of his reply affidavit, dated September 26, 2022, he provides as follows:

I deny the allegations at paragraph 33(g) of the Respondent’s Affidavit [dated September 19, 2022]. I may have raised my voice on occasion, as any parent or husband might do. I did not physically abuse Christine or David. Christine had her own bank accounts and credit cards. I am not sure what Christine means by financial abuse. I did not threaten suicide.

[79] He added that his is not malicious and has no intentions of ever hurting his wife. He loves his wife and son, and it would never “occur to him to hurt either one of them.”

[80] With respect to the financial abuse, he denied this allegation. He indicated the respondent had her own bank accounts and credit cards.

[81] The mother stated that the father had told her that if she ever left him, she would “live to regret it”. He advised that they were married for life, and he would never allow a divorce.

The Applicant’s Behaviour with Others

[82] The respondent provided a number of affidavits in support of her position in this matter. I will review the relevant evidence from those affidavits.

[83] With respect to these affidavits, I note the following:

1. The father was cross-examined by the respondent’s counsel.
2. There were no cross-examinations conducted with respect to any of the affidavits filed by the respondent mother.
3. There were motions to challenge portions of the content of the affidavits made by both parties. It was decided that the admissibility of the probative value and weight, if any, to be given with respect to the information challenged by the parties would be determined by the court on the hearing of the application. In reaching this decision, I found it unnecessary to consider or rely on any of the evidence challenged by counsel for the applicant father. I was able to render a decision in this matter disregarding all of that evidence.
4. I did not rely on any of the hearsay evidence contained in the affidavits.
5. I did not give weight to any statements wherein the affidavits attempted to convey how the respondent and/or the child must have felt as these affiants could not provide the court with admissible evidence with respect to the state of mind of any other person.
6. There was an affidavit filed by Kimberlee Belle Earl. She was the first wife of Mr. Harley. I disregarded the entirety of her affidavit.

Affidavit of Linda Griswold

[84] Ms. Griswold is Mr. Harley’s mother and the child’s grandmother. She is 69 years old. She has been married to Thom Griswold for 38 years. Mr. Griswold is Mr. Harley’s stepfather.

[85] Much of the information contained in her affidavit was inflammatory. I disregarded much of it as hearsay and speculation. However, there was information in the affidavit that I did consider, as follows:

1. There are video cameras and Amazon Echo devices in the home and bakery.
2. There are guns in the home and a gun was in the lampshade near the applicant’s recliner chair.
3. Her son has made racist comments in her presence. Specifically, she described a situation at paragraph 26 of her affidavit where she asserts the father curtailed the ability of the mother and the child from visiting she and her husband because he stated, “I’m not sitting across the table from any n….s.” The father was referring to the neighbours of the Griswolds who are Black and “effectively family” to her and her husband, Thom.
4. He sits in a large recliner in the middle of the home…He has a computer which he is on constantly. He has rigged the entire home with security cameras and listening devices. He watches everything that goes on in the home on a monitor and listens to everything that goes on with an Amazon Echo.
5. The applicant had attempted to curtail the involvement of herself and her husband with the mother and the child.
6. He once threw her against a wall.

[86] In Ms. Griswold’s opinion, “David terrorizes Christine and Little David for fun and glorification.” She fully supports the decision of the mother to leave with her son in the circumstances she observed. She assisted the mother in that respect.

[87] The applicant’s response to his mother’s affidavit is as follows:

1. He denies ever throwing his mother against the wall.
2. It was the mother’s suggestion that the child’s time with Ms. Griswold be curtailed because she suffers from tremors and it “might affect her driving”.
3. There are weapons in his mother and stepfather’s house as well. They are spread out and not in a gun rack because his stepfather stated, “You should spread your guns out because the chances are they won’t get all of them if they rob you.”
4. He denies using the “n” word. He did not want the neighbours included because at family gatherings, “I would like it to be just family.”
5. His mother and stepfather are angry with him because his stepfather had extramarital affairs and he shared this with his mother.

Affidavit of Thom Griswold

[88] Mr. Griswold is Mr. Harley’s stepfather and the child’s grandfather. He was 78 years old at the time he swore his affidavit. He is the spouse of Linda Griswold, the mother of Mr. Harley.

[89] Mr. Griswold is a retired police officer and police trainer. He has experience and certification with respect to domestic abuse cases. It is his opinion that the respondent and/or the child will be physically harmed if they return to Ohio. He added a significant amount of information regarding the relationship of the applicant to guns and gun culture. It is his opinion that the applicant is dangerous.

[90] I am not relying on any opinion evidence of Mr. Griswold in this matter. While I acknowledge and respect his career as a police officer, I cannot give weight to his opinions in a matter to which he is personally connected.

Affidavit of Kristen Muzic

[91] Ms. Muzic worked for the respondent in the bakery on and off for approximately four years. During this time, she observed what she described as the “relentless emotional torture, verbal attacks, and screaming and yelling” towards the respondent and the child. She quit her employment three times.

[92] Ms. Muzic confirmed the use of multiple cameras and listening devices in the bakery, the She Shed, and the house. She observed guns in the house that the applicant made a point of showing her.

[93] At paragraph 22 of her affidavit, she stated in part as follows:

For example, on one occasion in 2022, “little David” ran into the bakery to warn Christine. He whispered, “stop talking about what you are talking about. Dad is listening to you.” Christine and I immediately stopped talking. However, it was too late and “little David” was caught. When “little David” returned to the home we could hear the Applicant screaming, denigrating, and humiliating “little David”.

[94] Ms. Muzic indicated that she was providing this affidavit even though she feared for her safety.

[95] The applicant responded to Ms. Muzic’s affidavit by indicating that she was an unreliable employee. She did not want to come back to work because of COVID concerns even though work was available. The applicant never reported her for unemployment fraud.

[96] He denied speaking verbally violently to the mother or the child. He stated that the mother had begun manipulating the child to report things to Ms. Muzic regarding what she did not like. He brought this to his wife’s attention in a conversational manner.

Affidavit of Stephen Zuschlag

[97] Mr. Zuschlag described himself as a former friend of Mr. Harley. He stated that in July 2021, he was present at the Harley residence assisting with a project. He believes it was the construction of a large deck and outdoor turtle pond. During this process, Mr. Harley began ordering he and the child around to the point where he lost his temper and began screaming and yelling. At this point, the child ran into the house crying and yelling for his mother. Things escalated to the point where Mr. Harley took three swings at Mr. Zuschlag.

[98] Mr. Zuschlag was concerned the violence would escalate until the respondent came out of the house and intervened. He indicated he was concerned for his safety and that of his children who were present with him. He gathered his things and his children and left. He has not spoken to Mr. Harley since. Mr. Zuschlag knew there were guns in the house and was worried he might get shot.

[99] The response of the applicant to the affidavit of Mr. Zuschlag with respect to the evidence I have considered in this matter, is as follows:

1. Mr. Zuschlag was a Facebook buddy.
2. They would pay Mr. Zuschlag $50 a day in cash to assist with various projects around the house. Mr. Zuschlag had no knowledge, but the father was physically unable to do the work.
3. With respect to the final incident, he stated, at paragraph 89 of his supplementary affidavit dated September 26, 2022, as follows:

In reply to paragraphs 8 to 12 of Mr. Zuschlag’s Affidavit, I was telling Steven how to do the job as I have done it many other times before. Steven was refusing to do the job as instructed. Steven became loud and angry and was shouting at me that he didn’t want to do the work according to my instructions. I tried to remind him that I was the one that was paying him to do the job. He continued to argue. I told him that he was fired and to get off of my property immediately. He ran towards me and shoved me. I shoved him back and again ordered him off the property. David was not outside during this. Nor was Christine. Steven was refusing to leave the property at first but did eventually did. I did not have a gun and, again, I have never pointed a gun at anyone nor have I ever threatened anyone with a gun.

Affidavit of Blake Edwards

[100] Mr. Edwards was an employee of the respondent from 2017 to 2021. He is a retired member of the United States Navy. He retired in 2013 after serving two tours in Iraq and one in Afghanistan. He worked three or four days per week in the bakery from 8:00 a.m. until 3:00 p.m.

[101] Mr. Edwards observed what he called relentless and shocking verbal and emotional abuse directed at the respondent and the child. He observed the applicant call the respondent and the child “lazy”, “useless”, and “good for nothing” in front of customers in the bakery. He described the yelling and screaming as constant.

[102] Mr. Edwards felt uncomfortable working in the bakery. He believed he was providing the respondent with assistance and protection from her husband.

[103] The applicant described Mr. Edwards as someone who used to work two to three times per week, but in the last two years “he was lucky if he worked 3 days a month”. He denied referring to the mother as lazy and suggested Mr. Edward’s was confused because that is normally how the mother referenced him in front of customers of the bakery.

Office of the Children’s Lawyer

Affidavit of Morrison Reid dated October 27, 2022

Interview Process

[104] Mr. Morrison Reid has been a member of the Clinical Panel of the Office of the Children’s Lawyer since 2000. He holds both a Bachelor and Masters of Social Work, and is a Registered Social Worker with the Ontario College of Social Workers and Social Service Workers. In this role, Mr. Reid interviews children, parents, and others, and prepares Children’s Lawyer Reports pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[105] Subsequent to the appointment of the OCL on September 9, 2022, Mr. Reid provided clinical assistance to Ms. Kimberly Doucett, legal counsel for the OCL. In that capacity, he interviewed the following individuals:

• the applicant father;
• the respondent mother;
• the paternal grandmother (Linda Griswold);
• the paternal step grandfather (Thom Griswold); and
• the maternal grandmother (Ana Sulja).

[106] As well, there were four meetings with the child, conducted as follows:

1. On September 20, 2022, in person, in the private backyard of 590 Birmingham Avenue, LaSalle, Ontario.
2. On September 24, 2022, Mr. Reid in person and Ms. Doucett via Zoom, at the LaSalle Public Library in a private study room.
3. On September 30, 2022, Mr. Reid in person and Ms. Doucett via Zoom, at the LaSalle Public Library, at a private green space.
4. On October 17, 2022, via Zoom.

[107] Additionally, Mr. Reid had contact with the LaSalle Police Service, the Windsor-Essex Children’s Aid Society, LaSalle Public School where the child is attending, and Cassandra Jocco, the child’s therapist in LaSalle, Ontario.

[108] Both Mr. Reid and Ms. Doucett attempted to attend at Newton Falls Elementary School where the child previously attended. The school was provided with a consent signed by the father, mother, and child. However, the school was not prepared to participate in a meeting and eventually did not respond to requests for a telephone call.

Information Obtained From Interviewing the Child

[109] Mr. Reid described the child as a “mature, articulate, and intelligent 12‑year‑old boy. With respect to returning to Ohio, Mr. Reid indicated the child stated as follows:

“David strongly and consistently objects to going back to Ohio. The importance to him, that he stays in Lasalle, Ontario, is 10/10. David has stated that ‘unless dad went to jail and the school system got a lot better’, the reason he would go back would be to get a few belongings, and then he would ‘immediately return to Lasalle’. David maintains that if someone said he had to go back to Ohio he ‘would run away, even if it was the President of the United States that told him he had to go back [to Ohio]’, and that he ‘just can’t go back there’. David said that in Ohio he was ‘bullied at home in the morning and bulled at school, only to go home and be bullied there’, by his father.”

[110] The child also indicated the following:

1. He is fearful his father will hit him again as he was slapped in the forehead before and threatened to hit him with a metal pole.
2. His father makes him do the following: i) cut his toenails; ii) put cream on his legs; iii) assist preparing meals; iv) fetch drinks, food, and gun parts; v) complete projects around the house; vi) do laundry (sometimes after he had gone to bed); vii) clean up after the pets and fish.

[111] The child described the instructions for these chores being given to him aggressively by his father. Also, his parents argued a lot because his mother was often telling his father he was giving the child too much to do.

[112] The child also described two scatological issues as follows:

1. He would have to clean up his father’s soiled clothes because “dad would sometimes poop his pants and make me pick them up and put them in the wash.”
2. His father had begun to urinate in the shared bathroom sink as he could not reach the toilet. David was afraid he would drop his toothbrush or something in “the pee-stained sink.”

[113] The child described himself as “slave labour” to his father.

[114] The child reported his father was a racist. He used the “n” word. The child also reported not being able to associate with another family because they were Black, and his father stated he “refused to sit at the same table as “n’s”. He indicated his father called him “retard”, “momma’s boy”, “gay”, “sexist”.

[115] The child would often go to the she shed to do his schoolwork, but he was uncomfortable with the surveillance that occurred with the cameras and audio devices. He found this “creepy and uncomfortable”. His father monitored these devices constantly. The child advised there were guns, gun parts, and ammunition throughout the house. The father always had a loaded gun next to him. There were three in the bedroom and another on a magnetic strip on the wall by the television in the living room.

[116] In his supplementary affidavit, dated November 8, 2022, the father responded to the affidavit of Morrison Reid, dated October 27, 2022.

[117] He acknowledged that the tasks the child performed included laundry once or twice per week, was required to tidy his room monthly, help the father make his bed, and load and unload the dishwasher (twice per week).

[118] The child also did the following:

i) tidy the counter; ii) garbage; iii) feed the dogs; iv) feed the guinea pigs and clean their cages – at one time there were 20 guinea pigs; v) cut part of the lawn; and vi) work on the goldfish pond.

[119] The child would be asked to turn on the lights for the father because he could not if they were out of reach, and he was in pain.

[120] The father also had the child put lotion on his legs once per week and twice had him clip his toenails.

[121] In total, he estimated these tasks took about two hours per week.

[122] With respect to the issue of the child having to clean up feces of the father when he soiled himself, he stated the following at paragraph 10(b)(i):

On a couple of occasions, I might have had an accident. I would either rinse the clothes first and then hand them to David to put in the wash machine or I would put them in the machine myself.

[123] The father also provided an update regarding personal services issues. He stated he had joined a FIT Program for weight loss under the supervision of a physician. He was receiving assistance from cousins with household chores and was waiting for 21 hours of social assistance to provide “light housekeeping, bathing, laundry and the like.” He qualifies for this because of his disability. He also states that because of his disability, he will be acquiring a ramp for the home, grab bars, a hospital bed, and a lift chair as well as a fully accessible bathroom.

[124] It is not disputed that the father is 6’4” tall and weighed approximately 500 pounds. The father describes himself as being on disability. He does not specifically the reason why he is considered disabled. He infers that it is his weight that constitutes his disability, because he makes significant references to being unable to perform certain tasks because of his weight.

[125] At paragraph 12 of his initial affidavit, he adds:

I have some health issues and am under the care of my doctor. I have been employed in the past as a welder. I retrained to be a nurse, graduating form nursing school in 2010. I worked as a nurse until 2016 when I suffered an injury and was unable to return to work. I am an Ordained Minister and served the Church community for six (6) years.

[126] In the father’s submissions he indicates that while there were issues with his weight, far too much emphasis was being placed on that fact by the mother.

[127] At paragraph 17 of September 24, 2022 affidavit, he states as follows:

I was admitted to hospital on December 8, 2021, and remained there until December 14, 2021. The respondent could have left then.

[128] As well he states:

The respondent could have left anytime and just said she was going to visit her family, like she has done many times over the last 12 years of our marriage. She did not have to leave this way at all. She also did not have to cut off all communication between me and David.

Legal Framework

[129] The Hague Convention was adopted into Ontario law under s.46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[130] For the purpose of this hearing, the relevant provisions of the Treaty are as follows:

Article 1

The objects of the present Convention are -

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

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

Article 3

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

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

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

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

Article 13

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

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

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

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

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

Analytical Framework for Hague Convention Proceedings

[131] The Court of Appeal for Ontario in Ludwig v. Ludwig, 2019 ONCA 680 (“Ludwig”), summarized the governing analytical framework for Hague Convention applications.

Stage 1: Habitual Residence

1. On what date was the child allegedly wrongfully removed or retained?

2. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach:

a) The court’s task is to determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention.

b) To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances:

i) The child’s links to and circumstances in country A; ii) The circumstances of the child’s move from country A to country B; and iii) The child’s links to and circumstances in country B.

c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:

i) The child’s nationality; ii) The duration, regularity, conditions and reasons for the child’s stay in the country the child is presently in; and iii) The circumstances of the child’s parents, including parental intention.

End of Stage One: Two Outcomes

1. If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.

2. If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.

Stage Two: Exceptions

At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3. The child of sufficient age and maturity objects to being returned (Article 13(2));

a) Has the party opposing return met the threshold to invoke the court’s discretion to refuse return?

i) Has the child reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and ii) Does the child object to return?

b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider:

i) The nature and strength of the child’s objections; ii) The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent; iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and iv) General Hague Convention considerations.

4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or

5. 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 (Article 12).

Analysis

Stage One: Habitual Residence/Wrongful Removal and Retention

[132] There is no dispute that the child was habitually resident in Newton Falls, Ohio, United States of America. As well, the applicant and respondent shared custodial rights to the child before the respondent fled with him to Canada.

[133] It is not disputed that the father did not give the mother permission to do the following:

1. Remove the child from the residence at 5180 Grand Blvd., Newton Falls, Ohio.
2. Travel to Canada with the child on or about June 17, 2022.
3. Relocate with the child to Canada.
4. Remain in Canada with the child.

[134] The court finds that:

1. The mother never told the father that she was planning to move to Canada with the child.
2. The decision to move to Canada was premeditated. The mother had obtained legal advice from an attorney in Ohio before she left the country.
3. The father did not consent and would not have consented to the mother and the child moving to Canada permanently.
4. In order to enter into Canada, the mother orchestrated documents to be permitted to enter into Canada with the child.

Stage Two: Exceptions

[135] In this matter, there were two exceptions advanced by counsel for the respondent and the OCL.

1. First Exception – Grave Risk of Physical or Psychological Harm or Place the Child in an Intolerable Situation – (Article 13(B))

[136] It is well established law that the threshold for a party to prove there is “grave risk” of physical or psychological harm is high: see Thomson v. Thomson, 1994 SCC 26 (“Thomson”); Ellis v. Wentzell-Ellis, 2010 ONCA 347 (“Ellis”).

[137] The definition of “risk” was set out in Thomson, where the LaForest J. writing for the Court stated, at p. 554, that the risk must be:

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

[138] In this instance, that burden rests solely on the respondent.

[139] In Rayo Jabbaz v. Rolim Mouammar, 2003 ONCA 37565, [2003] O.J. No. 1616, 225 D.L.R. (4th) 494 (C.A.) Rosenberg J.A. described at para. 23 an intolerable situation as “an extreme situation, a situation that is unbearable, a situation too severe to be endured.”

[140] One consideration is whether the removal of a young child from their primary caregiver on the evidence of this case, as it is not readily apparent who was the primary caregiver of the child.

[141] The child was spending more time with the father due to the long hours being worked by the mother operating the bakery. However, from the evidence and the long list of tasks the child was required to perform, it is not clear whether he was the primary caregiver of his son, or the son was a caregiver of the father.

Stefauska v. Chyzynski

[142] The decision in Stefauska v. Chyzynski, 2020 ONSC 3048 (“Stefauska”), is cited as a case that confirms the level of “grave risk” of physical or psychological harm required on the evidence to satisfy the requirements of Article 13(b) of the Hague Convention.

[143] In that case, Horkins J. held that the evidence did not support such a conclusion and ordered the children returned to Poland. She reached this conclusion notwithstanding allegations of possible abduction of a child, financial control, physical and verbal abuse, exposure to pornography, and allegations of narcotics use.

[144] The benchmark referenced by Horkins J. was set out in the case of Pollastro v. Pollastro, 1999 ONCA 3702, 43 O.R. (3d) 485 (C.A.), 171 D.L.R. (4th) 32 (“Pollastro”). In Pollastro, there was evidence of physical violence against the mother, her vehicle was disabled, requiring her to walk to work carrying their baby while the father followed her along the way. He talked about exacting revenge and made death threats. In fact, there was overwhelming evidence of the father making death threats as against the mother and child. Justice Abella, as she then was, writing for the Court of Appeal for Ontario concluded at paragraph 36 that the risk of violence was overwhelming.

[145] Reference was also made to the U.S. Court of Appeals decision in Friedrich v. Friedrich, where Baggs J. wrote:

A grave risk of harm for the purposes of the Convention can only exist 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 – eg. 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.

Does The Article 13(B) Exception Apply?

[146] The mother claims the child will suffer grave psychological harm and be placed in an intolerable situation if ordered returned to the United States. Furthermore, she states that she cannot legally re-enter the United States and that the child will suffer as a result of being separated from her, his mother.

[147] The father submits that the evidence does not support a finding that the mother has met the high standard for this exception to apply.

[148] Furthermore, the father has deposed that he was the child’s primary caregiver given the mother was spending up to 20 hours per day operating the bakery.

[149] He also submits the mother has not taken any steps to try and obtain legal status in the United States.

[150] As well, she did not provide any expert evidence that she will be unable to enter the United States. He notes that he has not commenced any legal proceedings in this matter to present because of financial considerations.

[151] At this stage, the court must conduct the following determination on whether there is a grave risk that the return would expose the child to physical or psychological harm or place the child in an intolerable situation.

[152] The onus is high because the effectiveness of the Hague Convention to facilitate the return of children improperly removed from their place of habitual residence would be severely limited if the test was less rigorous.

[153] For the reasons that follow, I have determined that the respondent has met the high threshold required and established that there is grave risk that returning the child would expose him to physical or psychological harm and place him in an intolerable situation.

Article 13(b) Analysis

[154] It has been established law for many years that the burden on the abducting parent is demanding. The analysis of the risk of serious harm should be on individualized assessment, not a broad-based analysis.

[155] While separation from the mother can be harmful, it will not always give rise to the level of harm.

[156] On the totality of the evidence, I find that there is grave risk of physical or psychological harm to the child that otherwise will place him in an intolerable situation as defined in Article 13(b) should he be returned to Ohio.

[157] Specifically, I have concluded that the marital home located in Newton Falls, Ohio was controlled by the applicant in a significantly cruel and abusive manner. The father used a combination of internal video cameras and Amazon Alexa devices to surveil and control virtually all activities of the respondent and the child in the house, the attached bakery, and the She Shed.

[158] In particular, I have concluded as follows:

1. I do not accept that the four surveillance cameras were installed and operated for security pertaining to the bakery. Had there been a single camera framed on the entrance and shop floor of the bakery, I would consider that a reasonable arrangement intended to provide a measure of security for the small bakery operation operating by the mother. I accept the testimony of the mother and other affiants that the four surveillance cameras were situated in such a manner that the father could monitor the activities of both the mother and the child.
2. I do not accept the evidence of the father that the Amazon devices were simply being used by him as a basic communication tool and so that he could demonstrate to his wife and son that he cared what they were doing. Given the arrangement of these devices in the home, I find they were being used by the father in conjunction with the surveillance cameras to monitor and control the whereabouts and activities of both the mother and the child from his recliner chair.
3. While the cameras may have provided some basic security for the retail bakery, there was no rational reason to utilize four cameras to perform that task. I note that in his initial explanation for the cameras, he indicates the genesis for same was ongoing thefts by a female employee of the bakery (August 26, 2022). Then, in his affidavit of November 8, 2022, he provides an elaborate explanation that the cameras are all directed from the outside to the entrances to the bakery, the house, and the She Shed. If he intended the initial camera to detect an employee stealing money from the bakery, installing cameras facing outside the structure of the house, bakery, and she shed would provide no assistance with respect to a concern that a bakery employee was stealing money from the bakery.

[159] The evidence in this respect of the respondent mother is corroborated by a number of witnesses. These include the applicant’s mother, employees of the bakery, and a former friend.

[160] In essence, the mother and the child were captives in their own home. Their activities in the home and on the property were monitored and controlled by the applicant, primarily from a recliner chair in the living room. From this location, he would monitor the applicant and the child on the property performing household chores. The father would beckon the child to assist him with a number of personal care activities. The nature of those activities was not only inappropriate but were highly demeaning and psychologically damaging to the child.

[161] It is appalling that the child was required to assist the father when he would defecate in his pants. The child would be required to remove soiled underpants and place that and other clothing into the laundry. In addition to the horror of asking a child of this age to perform this odious task, it was also unsafe.

[162] I do not accept the submission of the father that the child was only required to do this once. The level of miscomprehension with respect to the inappropriateness of these commands and the psychological harm that would be caused by this improper parenting is compounded by the fact that counsel for the father explained that if you pick up the soiled underpants from the corners you do not have to touch the fecal matter, as if that made it acceptable.

[163] Should the child be returned to the United States, there is grave risk of serious psychological harm because of this intolerable situation.

[164] While some of these tasks would be commonly and properly delegated to a child of David’s age (e.g. cleaning room and helping with dishes), cumulatively, this list grossly exceeds what would reasonably be expected of a child of this age. The suggestion by the applicant that the child actually liked cutting his father’s toenails further demonstrates the serious nature of the psychological trauma this child was subjected to while resident in the house.

[165] That it even happened once, as he admitted, is, in and of itself, troubling. I find that this was happening on a more frequent basis.

[166] In summary, a review of the day-to-day activities in the Harley household reveals a situation of Dickensian proportions. [4]

[167] The behaviour of the applicant father vis a vis the child in this case is much more concerning than the court found in Yunus v. Mohammed, 2020 ONSC 8227 (“Yunus”).

[168] In that case, there was evidence that the father was controlling with the mother regarding her housekeeping, pregnancies, and care of the children. The abuse caused her to seek therapeutic assistants with respect to the four children of the marriage (aged 3 – 11), the evidence was that the father would not let the children sleep before their bedtime, would wake them up and hit their heads if they yawned. There was one alleged incident of hitting one child for disrespecting a guest in their home and slapping them on the back of the head when they were young.

[169] The father went to great lengths in his affidavit materials to state that he has made a number of changes to the setup and operation of the home since the mother and the child departed for Canada. Because of his disability, he has obtained the support of domestic assistance in the home in excess of 20 hours per week.

[170] Notwithstanding this, his counsel submits this was not to replace the chores the child was performing. I do not accept that submission. He asserts that the child was only spending one or two hours per week on the chores. While I agree that expecting a child of his age to do one or two hours of age-appropriate, safe, and a reasonable chores per week is not unreasonable, it is clear from the evidence I accept that he was required to spend considerably more time on chores.

[171] Furthermore, if counsel for the father is correct and the tasks being provided by the governmental support due to his disability, are not the chores required to replace what the child was doing, how and by what means will those chores be provided if the child is ordered to return to Ohio?

[172] This assertion simply does not work for the following reasons:

1. The mother was unable to do many domestic chores because she was working, at times, up to 20 hours per day operating the bakery.
2. By his own admission, the father was disabled and unable to perform many, if not more, of the chores. His restrictions were such that he would have the child deliver him food, turn on the light switch just out of his reach, and clean up when he had an accident.
3. Over 20 hours per week of services are not being provided.

[173] Who, other than the child, was doing these tasks prior to June 17, 2022? The answer is obvious. It was the child. A return of this child to this residence, particularly without the mother being present, creates an intolerable situation.

[174] In Yunus, Nakonechny J. concluded that the mother may have been unhappy in the marriage. However, at paras. 43-45, she stated:

I am not persuaded by the Respondent’s argument. Even if all of the allegations made by the Respondent against the Applicant were true, the incidents and behaviour described would not meet the high standard of “grave risk of harm” or “a situation too severe to be endured”: Knight v. Gottesman, 2019 ONSC 4341, at paras. 84-86.

Applying the three questions in Hassan, supra, the alleged past abuse has not been severe to the degree required to establish a grave risk of harm or an intolerable situation; it has not been life threatening; there is no evidence that the father is not amenable to control by the justice system. There is no evidence that the police, social services or any other protection agency has been involved with the family.

I cannot conclude that the children would be exposed to a grave risk of harm or be placed in an intolerable situation within the meaning of the Hague Convention if they return to Australia. If the parties choose to end their marriage, Australia is well equipped to determine the issues of custody and access between the parties and to protect the children’s welfare in accordance with its laws. The role of the court in a Hague Application is not a custody determination but to return the child to the jurisdiction where custody can be best determined: Balev, supra, at para. 24.

[175] The evidence of an abusive household and abusive conduct in the Harley residence is much more severe than even alleged in Yunus.

[176] In this matter, the applicant father has created a domestic situation, the hallmarks of which are video and audio surveillance, manipulated and abusive control of the mother and the child. This has been combined with controlling behaviours and the requirement for the child to carry out an enormous number of household tasks, some of which were demeaning and psychologically damaging to the child.

Weapons in the Home

[177] The fact that the father had weapons in the home are not in and of itself a reason to conclude that the respondent has established on a balance of probabilities that the test prescribed in Article 13(b) has been met.

[178] Many homes, in Canada and a higher percentage of homes in the United States of America, contain weapons. In and of itself, the existence of weapons in the Harley residence does not provide the court with evidence that satisfies the conditions prescribed in Article 13(b). The proper and safe storage of weapons is not the issue.

[179] Rather, it is the manner in which the father associates with respect to weapons, when considered in the context of all of the evidence, that gives me significant concern that there is grave risk of physical or psychological harm to the child or otherwise place the child in an intolerable situation.

[180] For example, the father denies having guns strewn throughout the house, at paragraph 34 of the September 26, 2022 affidavit. Yet, the pictures presented to the court are of weapons laying on the floor.

[181] Of particular concern are the two photographs (Appendix A and B) of a pistol fastened under inside the lamp shade of a lamp situated directly beside the father’s recliner chair in the area where he monitored the four video cameras and operated the Alexa devices. Positioning a loaded gun in such a spot is inimical to the father’s statements that the guns were totally dismantled, cannot fire, and are basically just decorations.

[182] I reject the suggestion that placing a loaded revolver inside a lamp shade by the side of a recliner chair was done for decorative purposes. It causes me to conclude that the father’s evidence with respect to the presence of loaded weapons and ammunition within the house is demonstrably false.

[183] I have concluded that both the mother and, more significantly, the child were subjected to serious family violence in the form of the following:

1. Physical abuse, namely physical contact as well as forced confinement given the set up of the home, bakery, and she shed.
2. Harassment, including stalking through the pernicious use of the video cameras and Amazon Alexa devices that were used to survey, monitor, and control the actions (and tellingly, interactions) of the mother and the child.
3. Psychological abuse due to the overarching control the father exerted on the mother and the child. This included, but was not limited to, demeaning language; racist language; and aggressive orders given. Even more significant was the constant use by the father to require the child to a wildly excessive array of domestic chores. I have concluded some of these chores, such as requiring the child to clean up the feces from the father’s soiled pants and clean the sink and tub in which the father frequently urinated, would readily cause the child to suffer severe psychological harm.

[184] I accept the submissions of counsel for the respondent mother and for the Office of the Children’s Lawyer and find as follows:

1. The child is at grave risk of being exposed to physical and psychological harm if returned to Ohio.
2. The child has been called names, yelled at and screamed at repeatedly.
3. The child has been physically threatened, coerced, and verbally demoralized by the father.
4. The child was living in an environment of fear whereas he was regularly exposed to the following: i) domestic abuse of his mother; ii) constant surveillance; and iii) the presence of loaded weapons not stored safely.

[185] I also find and accept the following as set out in paragraph 68 of the Factum of the Office of the Children’s Lawyer, with respect to the child:

He had no privacy and no sense of safety. He felt like a slave who was compelled to do his father’s bidding, including cleaning up his feces-soiled underwear and urine from the sink. He was denigrated, punished and not permitted to leave the home for any length of time. He saw his father denigrate, yell at and control his mother on an ongoing basis. He has been exposed to racist remarks and racism and isolated from family and friends by his father. David was withdrawn and afraid while living with his father.

[186] There has already been serious abuse of the child given the environment in which he lived, complete with his father’s abusive and controlling behaviours and the excessive and oppressive tasks he was required to perform. I have concluded that sending the child back to that same environment will clearly expose him to the same grave risk of physical or psychological harm and place him in an intolerable situation.

Do Safeguards Exist in Ohio?

[187] Would it be contrary to the Hague Convention assumption not to recognize the safeguards that exist in Ohio when assessing an Article 13(b) argument? At first instance, that would be an easy question to answer. The United States/Ohio is clearly a jurisdiction that has a functioning court system, rule of law, and a child welfare agency.

[188] More specifically, I can take note of the following from the affidavit of Mr. Gary M Rosen, dated August 29, 2022, at paragraphs 6 – 12, filed in this matter, addressing issues of women in abusive situations as follows:

6. Ohio Law establishes the requirement that every county in Ohio have a locally controlled child welfare agency. Newton Falls, Ohio is located in Trumbull County, Ohio. By virtue of this edict through the Ohio Revised Code, Trumbull County has a child welfare agency. The agency’s responsibility is to provide for the welfare of children who might be subject to abuse, dependency or neglect.
7. There are extensive provisions in the Ohio Revised Code Section 2919.25 with regards to domestic violence. There are both civil and criminal statutes with regards to options that an alleged victim of domestic violence might have and the manner in which that victim can utilize Ohio Courts.
8. Ohio Revised Code Section 2919.25 defines and outlines the criminal offense of domestic violence under Ohio law.
9. Violations of the criminal provisions could result in either a misdemeanor or felony charge against a person who commits acts of domestic violence.
10. Further, Ohio Law allows for civil complaints with regards to domestic violence and the issuance of a civil protection order through courts. These complaints are filed in either domestic relations or family courts situated in every Ohio county.
11. The procedure for obtaining a civil domestic violence protection order is outlined in Ohio Revised Code Section 3113.31.
12. Through the provisions of Ohio Revised Code Section 3113.31, a court may issue a protection order for up to five years to protect a victim and/or children who have been subjected to violence by a family or household member.

[189] While the underlying purpose of the Hague Convention is to properly determine whether the jurisdiction to which a child is to be returned has sufficient legal processes in place to properly determine issues relating to the child, I question whether any such issues will ever be able to come before the court.

[190] I have reviewed over 30 Hague Convention decisions made in Ontario in just the past two years. In at least 25 of those cases, there was competing litigation. That is, there was some form of court process under way in both the original jurisdiction from which the child was removed, and the destination where the child was present at the time the Hague Convention application was heard. With respect to the other five cases, I cannot determine whether or not there were competing cases.

[191] In this case, it is significant that the applicant father has taken no steps to put the applicable laws of the State of Ohio into play. The lack of any court application made by the applicant in this matter causes me significant concern for the following reasons:

1. Counsel for the father states that he cannot afford to commence litigation in Ohio. I do not accept this suggestion. The cost to at least file an application for divorce or parenting rights in Ohio cannot be considered, in and of itself, a bona fide explanation. If the father cannot afford to commence a relevant family law proceeding in Ohio now, what is to say he will be able to do so if the child is returned.

2. Near the end of the four-day hearing in this matter, counsel for the father acknowledged for the first time that her client now recognized that the marriage was over. She undertook that he would commence the required legal process once the child was ordered returned. I do not accept this undertaking in the circumstances of this case as I note that in the time since the mother and the child came to Canada, the father has done the following: i) On the website for the Apostolic Christian Church (Nazarean) the father posted this message in July 2022:

   Christine Harley, maiden name Sulja, abducted my son David US born citizen from his home in USA. She is keeping him from me over 2 weeks. No contact aloud at all. They are at her parents home Ana and Marci Sulja. Also Kathy her sister LaSalle ON. They all attend ACC. Please in the name of Jesus help me get my family back.

   (Below the posting is a photograph of the child)

   ii) On August 14, 2022, the father posted three times in the vimeo site of the Apostolic Christian Church as follows:

   a) “1st Cor. 10 And unto the married I command, yet not I, but the Lord, Let not the wife depart from her husband 11 But and if she depart, let her remain unmarried or be reconciled to her husband” b) “The minister brothers in West Akron refused to assist in any council What good is the ACC if Elders, Miniters, members refuse to help believing Brothers and Sisters” c) “Christine Harley kidnapped my son David. They’re at Ana and Marci Sulja’s house in Windsor. I’m not allowed to speak/message my son, over 2 months. Mike Palaniki Elder Brother, wont return my calls.”

   iii) On August 25, 2022, the child sent the father on an email as follows:

   From: David Harley -harleythedave@gmail.com- To: yelrahdivad@yahoo.com -yelrahdivad@yahoo.com- Sent: Thursday, August 25, 2022 at 11:11:41 AM EDT Subject: Stop Hi dad I am happy and safe and with you trying to contact me you’re upsetting me. Things you are doing now you would never do if I hadn’t left. Please don’t send any more cards. Don’t send anymore comments or messages. I’m happy and safe here and I don’t want to see you anymore or go back. David

   iv) On September 2, 2022, at 7:00 p.m., the father sent the child an email in response. The text of the email is as follows:

   Hi David

   I am truly glad you are happy and safe. Would you please share the things you have been doing, that make you happy? Why won’t you talk to Dad?

   The other nights sermon, in Kitchner, was on promises. The day you were born I prayed with Mom to raise you up in the admonition of our Lord. Mom and I made promises when we were married. We should all be together as part of that family promise. I know I have broken my promises in the past. With God’s help, I am praying and working to fix them.

   I am so sorry for my failures and weaknes as a father and husband, I am asking you and Mom to please forgive me, for any sadness I made you feel. I realize I am not perfect. I never intend to upset you.

   First thing you and Mom need to understand…It is not helping or benefiting us, by not having you and Mom in my life. My better health, is actually in spite of my sadnenss, from you and Mom not being here. The things I am doing now are because, I have received proper medical treatment from my doctor. I finally found peace with God and past life events. I go to church online, in Windsor and Kitchner Sunday morning, afternoon and midweek. I also had a friend invite me to his church Sunday. I went and enjoyed it. I feel so much better. I am very active. I am actually very happy. All these these things, I want to share with you and Mom.

   There are so many things here that remind me of you and Mom. It makes me sad. But I do not let it keep me down. Before if Mom would have taken you away, I would have been even more unhappy and just shutdown even worse. Yes I do have to do everything for myself now. I relied on you and Mom for help too much before, because I felt so bad. I was in pain and sad. I don’t need to cunt on you and Moms help any more because, I feel so much better.

   I just want your company and love. You and Mom being away from me is not good for any of us. There are so many things we could do together. I am actually training on my exercize bike. I am hoping to be riding bikes with you, when I am ready.. I got the pool maintained and ready for our swimming. I want to take you fishing. I would love to take you to church. I would even like to play some video games with you online.

   Please open your heart, to spend a little time with your Dad.

   I will love you forever

   Dad

3. The inability of the mother to commence legal proceedings in Ohio. In and of itself, the failure of the mother to have commenced legal proceedings in Ohio before she left the jurisdiction raises an issue. However, when I consider the fact that she does not currently have legal standing in Ohio in the context of there being no legal process underway in Ohio, I have concerns that the child could be ordered returned to a situation where there is no legal process underway to determine the best interests of the child – such a legal vacuum would clearly pose a grave risk that would expose the child to psychological harm and place him in an intolerable situation regardless of whether the mother was residing in Ohio, or remained in Canada. Ultimately, it is the interests of the child that must be the paramount consideration.

[192] I have determined that the inaction on the part of the father is further evidence of the controlling behaviour he demonstrated before June 17, 2022. That is, his intention is to have this court grant his application and order the child returned to Ohio.

[193] If that occurs, the father will completely control where the child lives, short of the father commencing a court proceeding, or the State independently initiating a process. He will control every aspect of the child’s life.

[194] The mother’s status as a permanent resident in the United States of America was scheduled to end on February 23, 2023.

[195] The mother became a permanent resident of the United States of America in 2010.

[196] There was considerable emphasis by both parties with respect to the immigration status of the respondent. During the period of the marriage, she was residing in the United States as a permanent resident.

Did the mother engineer the risk of harm by bringing the child to Canada and not make application to renew her immigration status?

[197] In a sense, yes. However, in this instance her actions do not rise to the level of malfeasance cited in the jurisprudence.

[198] In F. v. N., 2022 SCC 51, albeit a non-Hague Convention case, Kasirer J. acknowledged at paragraph 77 that separating a child from the primary caregiver who cannot return home may be the source of serious harm to an infant.

[199] Further, at paragraph. 80, the Kasirer J. stated as follows:

Therefore, if a child is separated from their primary caregiver, but is nevertheless returned to their capable left‑behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm may not be met (for the Hague Convention, see Guide, at paras. 64‑65). Conversely, if the evidence demonstrates that the child would be returned to an environment where they will be left without care or that they feel unsafe with their alternate caregiver, it is very possible that the serious harm threshold will be met (see, e.g., Aldush, at para. 158).

[200] In cases where the other parent has actively taken steps to prevent the departed spouse from returning: See Hage v. Bryntwick, 2014 ONSC 4104; U.K. v. N.A., 2021 ONCJ 73; Jackson v. Graczyk, 2006 CarswellOnt 9048 (S.C.).

[201] The risk of harm is generally not considered sufficient to satisfy the onus in situations where the departing parent has taken steps (or as the case may be, not taken the necessary steps) to engineer not being in a position to return to the United States. See Parmar v. Flora, 2022 ONSC 3079, aff’d 2022 ONCA 869; Brown v. Pulley, 2015 ONCJ 186.

[202] Such is the case in this instance as the evidence discloses that the mother has taken no steps.

[203] If the assessment stopped at that point, it might well determine that the Article 13(b) threshold has not been met by the respondent. However, that is not the only evidence before the court.

[204] Even if the respondent had taken the necessary steps to apply to have her immigration status renewed, she would be precluded from commencing any family law proceeding in Ohio for a period of six months.

[205] It is common for jurisdictions to have residency thresholds for commencing family law claims. This is done to avoid the potential mischief of parties forum shopping.

[206] Pursuant to Ohio law, a person must have resided in the state for at least six months in order to make such a claim. Accordingly, if the mother returns voluntarily, she will not have legal standing to make any claim for custody (sole or otherwise) of the child. This is problematic. The mother may have seen it as prophylactic against litigation in Ohio. However, in effect, she has potentially prejudiced her ability to reside with the child and/or commence legal action to obtain custody/residency/parenting time with the child.

[207] In Ogunboye v. Faoye, 2023 ONCJ 46, Justice S. Sherr, of the Ontario Court of Justice, determined that the high threshold was not met, noting that separating a child from their primary care should never be done lightly. In that case, however, it was noted that the court in Texas had already made temporary parenting orders. That fact was given serious consideration by Justice Sherr. As he stated, in part, at para. 177:

It would be very difficult justifying the high threshold in Article 13(b) has been met, when there has already been a determination by the Texas court that it is in the child’s best interests to live with the father in Texas. Inherent in that decision is that the child can be safely parented by the father and that he will take reasonable steps to mitigate any harm to the child of being reared from the mother.

[208] In Dieffenbacher v. Dieffenbacher, 2023 ONCA 189, the Ontario Court of Appeal dismissed an application for a stay of a return to New York State order on the basis that there was no irreparable harm. New York Courts were presumed to be able to address the mother’s concerns with respect to litigation that had already been commenced. That has not occurred in this case, and it is troubling.

[209] In this case, there has been no determination in an Ohio court. There has not even been a legal application commenced by either party.

[210] Secondly, it is not disputed that the mother self-engineered the risk of harm to the child by not reapplying to renew her immigration status, did not advise the father of her intentions, and had legal advice with respect to the challenges she would have re-entering the United States of America. All of this must be juxtaposed against the intolerable living conditions the mother and, significantly, the child were subject to at their residence in Newton Falls, Ohio.

[211] While self-help is not to be encouraged or supported, I have concluded that the level of concern and fear that the mother had for herself and the child were such that the extreme actions were taken. Otherwise, she would have continued to be subject to the father’s total control and domination of their lives and activities.

[212] I find that the respondent has established that the father controlled the set-up and day to day affairs of the house/store/She Shed, in a manner to excessively and forcefully control the activities of both the mother and the child.

[213] I conclude that the statement made by the mother at paragraph 34 of her affidavit dated September 19, 2022, that “our life was like living in a prison” accurately described life for the mother and the child in the Harley household.

[214] On the totality of the evidence, I find that the father controlled every aspect of the lives of both the mother and the child.

[215] In particular, I have concluded that there is grave risk of physical or psychological harm to the child or otherwise place him in an intolerable situation should the application be granted, and the child ordered returned to the United States.

[216] I find that while there is some grave risk of physical harm to the child there is significant risk of psychological harm. The child lived in an environment where he was required to perform an excessive number of household tasks. Not only did the quantity of these tasks go far beyond what even a mature child of this age should be required to perform on a regular basis, some of these tasks were hygienically inappropriate and psychologically harmful to the child. In particular, requiring the child to clean up his father’s underwear after he soiled same by defecating in them, was potentially physically dangerous for the child and definitely caused him psychological harm.

[217] If you accept, as I do, that the mother’s actions were solely and exclusively directed by these severe conditions and the reasonable fear that the child would be subject to grave risk of physical or psychological harm, in this intolerable situation, her actions cannot be considered as dishonest or deceitful. She was attempting to save the child (and herself) from a physically and psychologically harmful situation.

[218] In summary, I note that on Article 1, the objects of the Hague Convention on the Civil Aspects of International Child Abduction are:

a) To secure the prompt return of children wrongfully removed or retained in any contracting State; and b) To ensure that rights of custody and of access under the law of one contracting State are effectively respected in the other contracting States.

[219] At its core, the Convention is a scheme to codify complex conflict of laws that arise in cases involving contracting States.

[220] In this case, it is significant that the applicant father has taken no steps to put the applicable laws of the State of Ohio into play. I do not accept on the totality of the evidence in this case that the only reason no such action has been commenced is because the father could not afford to do same.

[221] Not only is that answer inherently and fundamentally preposterous, it raises additional and significant concerns. I will elaborate.

[222] If the father cannot even afford the initial legal fee and administrative fee to have commenced a divorce and/or custody/access application, how is it remotely feasible that he could afford to provide the necessities of life to the child?

[223] The mother made it perfectly clear in her affidavit material that if the father filed an application in Ohio, she would return to the jurisdiction. Curiously, that seemingly simple solution to the matter did not cause the father to take even that initial step.

[224] I do not accept his counsel’s comment to the court that he now understands and appreciates that the marriage is over. Again, if he truly accepted that, taking the simple step of taking a legal step would have provided the court with some empirical evidence to support that position.

[225] In effect, should this application be granted there is no basis to conclude that the rights of custody and of access under the law of one contracting country are ensured as prescribed in Article 1.

[226] I have determined that the inaction on the part of the father is further evidence of the controlling behaviour he demonstrated before June 17, 2022. That is, his intention is to have this court grant his application and order the child returned to Ohio.

[227] If that occurs, the father will completely control where the child lives, and whether any court action is commenced to determine the rights and custody of this child. He will control every aspect of the child’s life.

[228] Even if the mother is able to attend in the United States to attempt to have access with the child, that will be at his discretion and on terms that he alone will set.

[229] In conclusion, I find that the father has made this application and pursued this litigation effectively seeking only the return of the child. It was not done to have the issues relating to the child determined by the court in the contracting jurisdiction of the child’s habitual residence (United States) or by the occur of Ohio. If the application is granted, I find that not only will the serious abuse of the child that has already been perpetrated continue, he will be subject to being exposed to risk of physical and more significantly, psychological harm, but will also be placed in an intolerable situation without recourse.

[230] To order the child to return to Ohio to a household where the father states he cannot even afford to file a claim/make an application is tantamount to ordering the child to return to an intolerable situation.

2. Second Exception - Child of Sufficient Age and Maturity Objects to being Returned - (Article 13(2))

[231] At this stage, the court must conduct the following analysis on whether the child is of the sufficient age and maturity and objects to being returned.

[232] There are two primary questions:

1. Has the party opposing return met the threshold to invoke the court’s discretion to refuse return? i) has the child reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and ii) does the child object to return.

2. Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider: i) the nature and strength of the child’s objections; ii) the extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent; iii) the extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and iv) general Hague Convention considerations.

[233] Justice Glenn in England v. England, 2005 ONCJ 89, at para. 12, set out the following “earmarks of maturity” when dealing with a Hague Convention application for the of children aged seven and ten years old:

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; and
4. whether her fears relating to returning to the home state appear reasonable, in the circumstances

See Stefauska, at para. 84.

[234] For the reasons that follow, I find that the respondent has satisfied this onus on a balance of probabilities.

[235] I have taken a number of factors into account making this determination.

[236] The child was 12 years old when he entered Canada.

[237] It is not disputed that he is a bright and intelligent person.

[238] The father acknowledges that David is very intelligent. In his initial affidavit executed on August 26, 2022, at paragraph 7, he states:

David attends school at Newton Falls Elementary/Middle School. David has completed Grade 5 and received recognition for his academic achievements. Specifically, David was awarded the “Outstanding Achievement: All A Report Card All Year” and the “High Honor Roll” for the 2021/2022 school year.

[239] He was able to communicate accurately and effectively with Mr. Morrison Reid regarding the situation in the home relating to the following:

1. The state of disrepair of the house.
2. The continual use by the father of both surveillance cameras and Amazon Alexa devices to monitor and control the movement, location and activities of himself and his mother.
3. The prevalence of loaded weapons and ammunition in the house. Not only did the father possess numerous loaded weapons in the house, he would buy gun parts and build weapons. He once went with his father to sell a gun.
4. In particular, he was aware of the set up utilized by his father in the recliner monitoring the cameras with a weapon nearby.
5. The demands of the father that he perform an extensive number of household chores. In particular, he noted having to handle clothing soiled with his father’s feces and clean the sink and bathtub in which his father frequently urinated.
6. He believes he is “slave labour” to his father given the number of chores, the nature of them and the aggressive manner in which those directions were given to him by his father.
7. He was bullied extensively at school and received no support from his father in this respect.
8. It is his view that “unless dad went to jail and the school system got a lot better, he would not live in Ohio.” He would only go back to get a few belongings and then “return to Lasalle.”
9. The child is so fearful of his father that he has made a plan to run away if sent back to Ohio.
10. When the case is over, the child wants to change his name.

[240] There has been some interaction with his mother with respect to these issues. However, I have concluded that the interviews conducted by the OCL and, Mr. Morrison Reid, were conducted independently and objectively.

[241] I accept the submissions of the Office of the Children’s Lawyer in that respect.

[242] The father submits the child does not have the requested degree of maturity as required by Article 13 (2) of the Hague Convention.

[243] In addition to the evidence I have already referenced, I notice the very direct wording of the email sent by the father to the child on September 2, 2022.

[244] That letter is written with wording and in a style that someone would write to an adult. In fact, the letter could have been worded with exactly the same language (less the invocations to the child) to the mother in an effort to seek reconciliation.

[245] That the father believes the child is mature enough to receive and understand such a letter is further proof that this intelligent 12-year-old boy is mature enough to express his own views and clearly and unequivocally does not want to return to the United States.

[246] The opinions of a child as young as 8 years old have been accepted. See Borisovs v. Kubiles, 2013 ONCJ 85.

[247] In these circumstances, the child has voiced strong objection to returning to Ohio are based on his personal lived experience. He has suffered coercion, control, some physical harm, and extensive emotional harm by his father.

[248] Furthermore, he observed his mother be the victim of domestic violence. This sentiment is compounded by the undisputed evidence that he has been significantly bullied at school.

[249] In this case, failure to give proper weight to the child’s views and perspective will clearly have negative consequences to him.

[250] I have also taken into consideration, the decision of the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at paras. 80-81, where the court found that the requirement is satisfied where the court finds that the child has attained sufficient age and maturity so that is appropriate to take into account his views and objection to returning to the United States.

[251] Finally, I note that the child is also a Canadian citizen, so there is no issue with respect to him choosing to remain in Canada.

Decision

[252] In summary, I make the following findings:

1. The child’s habitual residence was in Newton Falls, Ohio in the United States of America.
2. The child was wrongfully removed from the United States of America on June 17, 2022.
3. Alternatively, the child was wrongfully retained in Canada on June 17, 2022.
4. The father had custody rights and was exercising those rights when the child was wrongfully removed or retained from his habitual residence.
5. The Article 13(b) exception does apply. I am satisfied the child would face grave risk of being exposed to physical or psychological harm or otherwise be placed in an intolerable position if returned to Ohio.
6. The Article 13(2) exception does apply. I am satisfied that the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his views.

[253] I have concluded that the respondent has satisfied the Article 13(b) requirement on a stand-alone basis.

[254] In other words, even if I am in error with respect to my determination that the respondent has satisfied the onus with respect to Article 13(2), the application should be dismissed on the basis of my conclusions with respect to Article 13(b).

[255] The converse is also true. The application should be dismissed on the basis of Article 13(2) on a stand-alone basis even if my determination regarding Article 13(b) is not correct.

Order

[256] The application is dismissed.

Costs

[257] If either the mother or the Office of the Children’s Lawyer seeks costs, they shall serve and file written costs submissions within 14 days following the release of this decision. The father will then have a further 14 days to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be filed with the court through the JSO portal.

Original Electronically Signed by “Justice G.W. King” George W. King Justice

Released: April 27, 2023 Correction: May 29, 2023

Appendices

Appendix A Appendix B

Footnotes

[1] The parties referred to the child as “Little David” in everyday parlance and in their affidavit materials. Any reference to “Little David” is a reference to the child. [2] The parties used the terms Echo and Alexa interchangeably. [3] Paragraph 49 of the Affidavit of Respondent, dated September 19, 2022. [4] Dickensian refers to a setting based on the novels of author, Charles Dickens, where characters resided in squalid, poverty-stricken working conditions.