Court File and Parties

Court File No.: FC-23-632-00 Date: 2023-07-12 Ontario Superior Court of Justice

Between: Alexandra Susa Bodnaruk, Applicant And: Daniel Andrew Bodnaruk, Respondent

Counsel: W. Doodnauth, for the Applicant Roslyn M. Tsao, for the Respondent

Heard: June 20, 2023

Reasons for Decision

Jarvis J.

[1] This is a motion brought by the father, Daniel Andrew Bodnaruk (“the father”), under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII (“the Convention”), against the mother, Alexandra Susa Bodnaruk (“the mother”), seeking the return of the parties’ two infant children (“the children”) from Ontario to Texas.

[2] The mother concedes that the children were habitually resident in Texas when she relocated with them to Ontario on March 31, 2023. The only issue to be determined is whether, on a balance of probabilities, the mother has proven that the exception pursuant to Article 13(b) of the Convention applies dealing with grave risk to the children should they be ordered to return.

[3] An urgent Case Conference was held by MacPherson J. on April 28, 2023. A one-day hearing was set. Directions were given with respect to affidavit and viva voce evidence of the parties, including that of a therapist whom the mother proposed to call.

[4] The evidence comprised: (a) The mother’s affidavits sworn on April 16, 2023 (in support of her motion for an urgent case conference); on June 4, 2023 (in response to the father’s affidavit in support of his Hague motion for return of the children); and on June 9, 2023 (in support of her motion to schedule an additional hearing date to permit her to call the parties’ therapist who was unable to attend on the scheduled date). Attached as an exhibit to the mother’s April affidavit was an affidavit from her father sworn on April 16, 2023; (b) Affidavits from the father sworn on May 19, 2023 (in support of his Hague motion) and on June 15, 2023 (in reply to the mother’s June 9th affidavit); (c) Both parties’ affidavits included text and email exchanges between the parties and between their counsel, some photographs of the children, work-related documents pertaining to the father, communications involving the parents and local (Texas) school authorities, an April 1, 2023 Canada Border Services Agency report submitted by the father, a copy of the father’s Texas Divorce Application proceedings issued on April 5, 2023, sobriety and anger management programs undertaken by the father and copies of the notes taken by their Texas therapist (Anne Marie White) between June 1, 2022 and March 27, 2023.

[5] A preliminary objection was taken by the father to the mother’s motion to adjourn the hearing to July 20, 2023 or as soon thereafter as was practicable, to hear from the parties’ therapist (the earliest day that the therapist would be available to testify was July 20, 2023). In his April 28, 2023, endorsement MacPherson J. had provided directions with respect to Ms. White’s proposed evidence and for disclosure of a report from her dated April 26, 2023, that had not yet been disclosed to the father. Neither the endorsement addressed nor the parties disputed when the Hague motion was argued that MacPherson J. had ruled on the admissibility of Ms. White’s evidence. Counsel acknowledged that the report contained opinion evidence.

[6] The report of Ms. White was ruled as inadmissible. It did not comply with Family Law Rule 20.2. Importantly, no information detailing the therapist’s qualifications, her educational experiences and her area(s) of expertise were tendered in evidence and no acknowledgement of expert’s duty signed by her filed. In addition, the court inquired, and counsel agreed, that neither of their clients disputed the observations recorded by Ms. White in her notes of her meetings with the parties or the accuracy of those notes. Accordingly, no purpose would be served by adjourning the hearing and having Ms. White testify: the court would rely on what the notes recorded. Only the father and mother testified.

[7] For the reasons which follow, the children are ordered to be returned to the State of Texas, subject to certain undertakings required of the father and related terms.

The Convention

[8] The Convention deals with the wrongful removal of children and has been adopted into Ontario law by s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The threshold issues involve determining where a child was habitually resident when removal (which includes wrongful retention) is alleged to have occurred and, if the removal was wrongful, whether an exception to the child’s return should be made. As noted by the Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680, a two-stage analysis is required, the first of which, pursuant to Article 12 of the Convention, is determining “habitual residence” and the second, pursuant to Article 13, whether an exception should be made to the child’s return. Only the second stage is relevant in this case. The mother must return the children to Texas unless she can prove that an exception applies.

[9] Articles 13 of the Convention deals with exceptions:

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 or 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.

[10] In Office of the Children’s Lawyer v. Balev, 2018 SCC 16, the Supreme Court of Canada emphasized the narrow, principled, nature of the exceptions to returning a child to their country of habitual residence:

76. The exceptions to the rule that the child should be returned to the country of the child’s habitual residence are just that – exceptions. Their elements must be established, and they do not confer a general discretion on the application judge to refuse to return the child...

[11] To succeed in this motion, the mother must prove on a balance of probabilities that return of the children to Texas engages “grave risk” pursuant to Article 13(b). In Paschel v. Paschel, 2017 ONSC 6952 “grave risk” was considered:

83. Article 13(b) provides that a child should not be returned to the place of habitual residence only where “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.” This is a stringent test with a very high threshold.
84. In Thompson, supra, the Supreme Court of Canada adopted a restrictive reading of the grave harm exception. In Friedrich v. Friedrich, 78 F.3d 1060 (U.S. C.A. 6th Cir. 1996), the Court of Appeal in the 6th Circuit accepted S.C.C.’s definition in Thompson. It held that “grave harm” meant that return of the child would put the child in “imminent” danger between the time of the child’s return and the custody hearing, such as returning the child to a location which is in a zone a) of war, famine or disease, or b) where there is a grave risk of harm by serious abuse or neglect, or extraordinary emotional dependence, and c) when the court in the country of habitual residence may be incapable or unwilling to give the child adequate protection. The Ontario Superior Court of Justice has also accepted this interpretation. [citation omitted].
85. Further, the risk the child is said to face must be greater than would normally be expected on taking a child away from one parent and passing him to another. The harm must be grave and intolerable. [citation omitted].

[12] In Pollastro v. Pollastro a mother’s appeal from an Order requiring her to return the parties’ child to California was allowed. Abella J. (as she then was) accepted that returning a child to a violent environment placed the child in an inherently intolerable situation, as well as exposing the child to a serious risk of psychological and physical harm. In that case, the court accepted that the father had been verbally abusive to the mother, her family and friends; physically violent towards the mother, causing physical harm; behaved irrationally and irresponsibly during and after cohabitation; had a substance abuse problem; had been unpredictable and unreliable when caring for the infant child; had anger management issues; and, was palpably hostile towards the mother.

[13] In Achakzed v. Zemaryalai, 2010 ONCJ 318 a case in which a father in California had obtained an Order for a child’s return, the Ontario court declined the request, finding that the mother had been assaulted by the father eight times between October 2003 and December 2005. The past violence had been severe, the magnitude of potential harm to the mother great. Some of the assaults occurred in the child’s presence or when the child was nearby. The mother was the primary caregiver. It was probable that the father’s behaviour would continue if a return was ordered.

[14] More recently Harley v. Harley, 2023 ONSC 2563, a case upon which the mother relies, involved a father’s unsuccessful Hague application for return of the parties’ twelve year-old child to Ohio, King J. approved the description of an “intolerable” situation by Rosenberg J.A. in Rayo Jabbaz v. Rolim Mouammar, (2003) 225 D.L.R. (4th) 494 (Ont. C.A.) as “an extreme situation, a situation that is unbearable; a situation too severe to be endured”. In Harley, the court concluded that the marital home in Ohio was controlled by the father “in a significantly cruel and abusive manner” over a period of many years, surveilling and controlling virtually all the activities of the mother and child; they were “captives” in their own home.

[15] A Hague Order for the return of children does, and should, not be conflated with a custody Order because the purpose of the Convention is to return a child to the jurisdiction most appropriate to determining parenting issues. This does not mean, however, that the court should ignore “best interests”: rather the “grave risk” exception analysis is more focussed than the broader consideration of which parent is best able to meet a child’s needs. As observed by Horkins J. in Stefanska v. Chyzynski, 2020 ONSC 3048, any “interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Convention”. An in-depth analysis of the parties’ history is inappropriate. It is through this lens that the reference in Paschel to importing a “best interests” analysis must be viewed:

86. In the Article 13(b) analysis, the risk of grave harm to the specific child in returning him or her to an intolerable situation, imports the “best interests of the child” analysis. Evidence must be presented as to the risk of physical or psychological harm, and whether it is in the best interest of the child to be returned to the place of habitual residence. This is not conflating a custody concept into an Article 13(b) Hague Convention analysis. Rather, this question is mandated by Article 13(b)’s wording. The evidence must, of course, be credible and must meet the high threshold of “grave risk”. See: Pollastro v. Pollastro, [1999] O.J. No. 911 (Ont. C.A.).

[16] Credibility is important. As noted in Brown v. Pulley, 2015 ONCJ 186:

163. The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547 (Ont. S.C.J.), affirmed at 2012 ONCA 469 (Ont. C.A. [In Chambers]).

[17] The overarching analysis also involves a consideration of the likelihood of future harm and its severity. In Hassan v. Garib, 2017 ONSC 7227, a mother claimed that the return of the child to the U.K. from Canada would put him at a grave risk of harm or would otherwise be intolerable. She alleged domestic violence that included verbal and physical abuse, assault, forcible confinement, police and social (and child protection) services involvement. The father disputed the allegations. Even with a finding that past violence occurred and was severe, Engelking J. confirmed that the court would still have to assess whether the violence was likely to recur. The court carefully assessed the mother’s allegations and shared third party concerns about the father as a perpetrator of domestic violence, but ultimately was unable to conclude that it was likely to recur. The court was unable to prefer the credibility of one party over the other. It was also clear from the evidence that the mother was unhappy in her marriage.

[18] In framing her analysis of “grave risk” Engelking J. considered the observations of Murray J. in Achakzad and reviewed the evidence in light of several questions which will be adapted to the evidence and facts of this case. They are: (a) Is there evidence of physical or psychological harm to the children and is it severe?; (b) Does the record show that Mr. Bodnaruk is dismissive of the mother’s allegations such that the behaviour alleged to have forced her to leave Texas is likely to recur?; (c) Would the return of the children to Texas put them in an intolerable situation that cannot be appropriately addressed by the justice (and social services) system there?

The facts

[19] The unchallenged evidence, and facts as found by the court, are these: (a) The parties are Canadian citizens who have lived most their lives in the Greater Toronto Area; (b) They began their relationship in 2017. Two children were born, both boys, JAB born April 20, 2018, and JRB born June 30, 2020. The parties married on June 28, 2020, just before JRB’s birth; (c) Both parties were employed before JAB’s birth. The mother was employed as a server in the restaurant industry and except for a brief attempt (one day) to return to her former work after JAB’s birth, she has not worked outside the home since. The father was employed in the insurance industry as a Risk Management Consultant. To augment the family income, he worked a second job, also as a server in the restaurant business. This employment ended with the Covid-19 pandemic. The parties’ loss of their server income (first the mother, then the father) caused a significant strain on their financial resources. To meet their living expenses, they encroached on their savings; (d) The mother’s parents and the father’s mother (more her parents) assisted with childcare; (e) When JAB was two years old the parties arranged for speech therapy for him. This was discontinued after a year because of noticeable progress but aspects of his development caused concern and led to his being assessed for autism. While there was no formal diagnosis made then, some concerns were identified, and the parents were advised to monitor JAB’s behaviour. A formal diagnosis of autism was confirmed when JAB was four years old (this was in Texas). The evidence is that he also presents with ADHD, OCD, sensory perception disorder and anxiety; (f) The parties decided to relocate from Ontario for financial reasons. This was a joint decision. After exploring several opportunities in the United States, the father accepted a job offer from a fire prevention contractor in Austin, Texas. He moved there to work in February 2022 and was followed by the mother and their children later in March 2022. In late April 2022 the parties bought a home outside of Austin in a small community. The purchase was funded by a mortgage and with financial assistance from the maternal grandfather; (g) The father was issued a TN visa that permitted him to remain in Texas so long as he was employed. The mother and children were issued TD visas that permitted the children to attend school but did not make the mother eligible to work. If the father lost employment the visas would expire in sixty days unless he found new employment; (h) The father experienced significant issues at his new job. He began to drink alcohol to excess, a fact that he acknowledged (although not to the degree alleged by the mother). This negatively impacted his behaviour toward her. In Ms. White’s June 1, 2022, file note, she recorded that the father presented as “very anxious and worried about work and caring for his family”. This is what the father reported to her. Therapeutic recommendations were made. The father continued to see Ms. White on a more or less regular basis afterwards: June 8, 22, July 6, 13, August 4, 31, September 14, 28, October 13 and November 17, 2022. The mother attended all but four sessions. The father’s initial, and subsequent, presentations were anxiety, depression and, during the latter sessions, they disclosed increasing marital issues; (i) On June 5, 2022, there was an incident in the backyard to the family home involving the father and JAB which was precipitated by the child hitting the father’s face (the mother did not witness this). The father had been drinking and he was screaming at the child, scaring him. He then left the home in a drunken state in the family car. The mother acknowledged in her testimony that all other incidents of the father’s concerning behaviour occurred after December 2022; (j) On September 19, 2022, JAB (then three and a half years old) was diagnosed with high-functioning autism, ADHD, anxiety and related symptoms. The father was recorded as also having ADHD symptoms and a history of anxiety and motor and vocal tic behaviour; (k) The father continued to be worried about his employment circumstances. Ms. White provided a letter dated November 1, 2022, for the father to give to his employer, the gist of which was that the father was being treated for mental health issues and was “learning to deal with his depression and anxiety in a more productive way.” Ms. White was confident that with her help and continued therapy the father would “be able to gain valuable skills to manage his anxiety and depression” and perform better at work. There is no dispute that this letter had little to no effect on the father’s employment circumstances and, by extension, its consequential impact on his troubling behaviours; (l) Later in November 2022, JAB began attending an autism program, initially for three days a week then later for six hours a day five days a week, the estimated cost of which was about $8,000 weekly according to the father and was covered by his employment benefits; (m) The father discontinued seeing the therapist after November 17, 2022. Her notes of that session record an increase in his agitation, erratic behaviour, excessive alcohol consumption (increasing his anger) and that the mother (who was attending) did not feel emotionally safe any longer. A recommendation that the father consult a psychiatrist was made but ultimately never followed through by the father; (n) The father’s alcohol consumption and erratic behaviour toward the children, the mother and third parties (including her parents and his mother when visiting) became more consistent and alarming after Christmas 2022 (the mother’s concern but not its extent is acknowledged by the father); (o) In mid-February 2023 the mother began to explore school options for JAB in Texas (kindergarten in August); (p) The mother began seeing Ms. White without the father on March 2, 2023. In all, they met four times. The mother was reported to be anxious and depressed, to be struggling with her relationship with the father, he was drinking to excess, she felt trapped in the marriage and she was worried about the children, especially about JAB’s therapeutic needs. She saw Ms. White again on March 9 and March 15, 2023; (q) On March 16, 2023, the father was terminated from his employment. He had sixty days to secure new employment or his visa, and by extension, those of the mother and their children, would expire. Checking the father’s phone that evening, the mother discovered that the father was browsing for escorts and sex workers; (r) In Ms. White’s note of the mother’s fourth, and last, appointment with her on March 27, 2023, the “client reported that she is going to move back home with her parents and feels good about filing for divorce from her husband. The client reported that she is working on a plan but it feels very overwhelming due to the uncertainty of the situation.”. All the therapeutic notes disclose that the mother reported that she was anxious, depressed and struggling emotionally; (s) On March 31, 2023, the mother and the children flew to Ontario. The father was unaware of this. The airfare was paid by her father; (t) On April 12, 2023, the father secured an Offer of Employment from a Texas company specializing in fire and disaster risk management as a Fire Suppression Designer, which he started on May 1, 2023. This employment provided roughly the same income and benefits as the father’s former employment; (u) The father attended and successfully completed on April 19, 2023, a four-hour anger management course and on April 21, 2023, a four-hour drug and alcohol awareness class; (v) On May 5, 2023, the father submitted to a blood test (PEth) for alcohol that confirmed the absence of ethanol in the blood (a direct marker for alcohol consumption) for the previous thirty days. During the hearing on June 20, 2023, a further test report taken on June 9, 2023, was filed in evidence with the same result; (w) The father provided evidence that JAB was eligible to re-enroll in the same clinic for autism in Texas as before. The mother enrolled JAB in a local Newmarket kindergarten program (with the father’s consent) and had made applications for autism-funded programs in Ontario but no placement had been confirmed at the time of this hearing.

[20] The unchallenged evidence of the mother is that the parties were experiencing financial difficulties in Texas. They had borrowed money from both their parents. In late 2022 the father texted the mother that “…[S]omeone has to gift us money with no strings attached. I can’t hit my mom up for that again……[H]ere are the options. Your dad gives you some considerable money for Christmas or I have to work. We have rung out my mom…”

[21] There is no credible evidence of pre-Texas problematic behaviour exhibited by the father involving substance abuse (principally alcohol) or mental health concerns which caused the mother any relationship or parenting concern before the parties jointly decided to relocate.

[22] The mother acknowledged in her testimony that she never sought out counselling in Texas for the impact of the father’s behaviour on the children as alleged by her.

[23] There is no evidence of police, social service or child protection services involvement with the family at any time in Texas.

Discussion

[24] Each party challenged the credibility of the other. The father claimed that the mother had prioritized her needs over those of, in particular, JAB in removing him from an autism therapy program that both acknowledged benefited him and relocating to Ontario where no such program was readily available (although the mother was exploring options). The text messages between the parties (which was usually how they communicated when apart) were selectively biased. The mother claimed that the father’s credibility was undermined by the content of the text exchanges (those in evidence were often accusatory, aggressive and expletive in content), his allegations that she didn’t empathize with, or support, his mental health troubles (which she did) and his inflammatory suggestion that she used cocaine (of which there was no evidence). The father avoided directly responding to the mother’s narrative of events described in her April 16, 2023, affidavit in support of her emergency motion in this court dealing with his behaviour towards JAB, the impact of that behaviour on the children and her and his control of the family finances (he was the family’s only income source, she was prohibited from working and could not open a bank account in her name alone due to her visa restrictions).

[25] As often observed the assessment of credibility is an inexact science, impossible to articulate with precision. So many variables (coherence, common sense, logic, investment in outcome and witness recall, to name the most obvious) impact the weighing and probative value of witness (or even documentary) evidence. In this case, the evidence of the mother is to be preferred to that of the father. He avoided directly answering many of the mother’s allegations about his behaviour, downplayed the extent of his alcoholism (and its resulting impact on the children and her) and, in a telling but revealing comment in his testimony, deflected to the Texas court’s view whether he should be held equally responsible with the mother for the $85,000 loan made by her father to the parties to assist in the purchase of their home in Texas, a loan that he clearly acknowledged was owed in his May 19, 2023 affidavit (paragraph 12). While not directly relevant to the Hague issues, this evidence contributed to undermining the father’s overall credibility.

Question #1 (Physical and psychological harm)

[26] Excepting the incident on June 5, 2022, involving a physical interaction between JAB and his father (which the mother did not witness), there is no evidence of physical abuse before or after that event prior to March 31, 2023. There is no evidence of sexual abuse. There is no evidence of harassment or of threats to kill or harm animals or to damage property (or following through with that conduct). There is evidence of emotional abuse and possible, but unascertainable, psychological harm occasioned by the father’s alcohol abuse but no evidence that the mother sought third party assistance for the children or for herself (social services, child protection services, etc.) for this behaviour apart from attending therapy sessions with the father in 2022 and later alone in March 2023. Ms. White’s notes chart a progressively deteriorating marital relationship into late 2022 with the mother “not feeling emotionally safe anymore” and the father behaving erratically and verbally aggressive toward the mother (November 17, 2022, note).

[27] As of late February 2023, the mother was exploring suitable schooling for JAB in Texas.

[28] At or shortly after the father lost his job and the mother had discovered escort service information on his cellphone, she told him they should separate and she made the decision to leave Texas with the children. There is no doubt that the mother was unhappy in her relationship with the father and concerned about the impact of that behaviour on the children but, viewed overall, the father’s behaviour does not rise to that level of grave risk of harm or intolerability captured by Article 13(b) of the Convention.

Question #2 (Likelihood of recurring problematic behaviour)

[29] There is no credible evidence of alcohol (or other substance) abuse by the father before the parties moved to Texas. Rather the evidence points to the father’s predisposition to anxiety and stress accentuated by his employment circumstances in Texas and the reactive deterioration in his behaviour toward family and others fuelled by alcohol. He participated in substance abuse and anger management classes after the mother and children left Texas and appears to have secured less emotionally challenging (but comparable) employment since then. And while it is premature to conclude that the father could be just a bad day away from falling off the wagon there is no reason to doubt that Texas is well equipped to determine parenting issues in accordance with its laws should there be a recurrence of the father’s troubling behaviours.

Question #3 (Efficacy of Texas justice system)

[30] Hague Convention contracting states accept that the Courts of other contracting states will properly consider the bests interests of children. Paraphrasing Jennings J. in Medhurst v. Markle, the Texas District Court in this case is “presumably equipped to make, and will make, suitable arrangements in a child’s best interests. There is no evidence to the contrary.

[31] As already noted, there is no evidence that the mother made, or even considered, child protection complaints involving the father’s behaviour, no evidence that she made any inquiries about social services assistance and no evidence of police involvement with the family. There is no independent evidence of the impact of the father’s conduct on the children and no evidence that any counseling for the children was considered or indicated (even if that was feasible given the children’s ages). There is no evidence that the mother pursued, or even considered, mediation services. Above all, there was no evidence that these services were unavailable in Texas.

[32] The mother testified that she consulted a lawyer on March 28, 2023, the day after her last session with Ms. White and that she explored publicly-funded legal assistance in Texas but was not eligible. By that time though, she had already decided to “move back home with her parents” as the therapist’s notes confirm.

Summary

[33] The mother testified that in taking the children with her to Ontario she chose “emotional and financial security for now.” The relationship between her and the father was toxic and the family’s financial situation precarious. As a short term response to the breakdown of the parties’ marriage, the mother cannot be entirely faulted for taking the children with her to Ontario, and the court empathizes with her, but the evidence and facts in this case do not give rise to that requisite level of grave harm of risk or situational intolerance contemplated by the Article 13(b) exception in the Convention. The mother has not discharged her onus of proof. The children must be returned to Texas.

Undertakings

[34] An Order for the return of children under the Convention does not mandate their return to the other parent’s care. Terms for return, otherwise described as undertakings, may be imposed and tailored to the assessed risk. But the Hague court’s jurisdiction is a limited one. Undertakings are not meant to supplant the role of the court of Contracting State by prejudging the parenting dispute. Undertakings are short-term, purposed to ameliorate any risk of immediate harm upon return, including possible procedural jeopardy, until the matter can be brought before, in this case, the Texas court.

[35] The father undertook to vacate the family home if the mother and children were ordered to return to Texas. That alone is inadequate, however, to address the immediate short-term consequences of return in terms of parenting time, temporary support and the outstanding legal proceedings in Texas. For example, the mother was served with the father’s Petition for Divorce on or about April 20, 2023. It is unknown whether she has filed an Answer within the twenty days required by the Texas Family Code. Paragraph 7.2 of the Standing Order provides that it operates as a temporary restraining Order for fourteen days after its filing unless before the expiry of that time (which, in this case, would be April 19, 2023) a party contests it, failing which the Order continues in full force and effect as a temporary injunction until further Order of the court. It is unknown (but, in the circumstances, unlikely) whether the mother has contested the Order. Nothing in it though is substantively prejudicial to the mother’s parenting and financial interests.

[36] There is no evidence that the father has sought or obtained an Order superseding or varying the terms of the Standing Order. Out of an abundance of caution then, this court will assume that the mother has not filed an Answer or contested the Standing Order and the father has taken no further steps in the Texas divorce proceedings other than as disclosed. Even so, these concerns shall be addressed.

Disposition

[37] Pursuant to Article 12 of the Convention, the children are ordered to be returned to Texas, subject to the following: (a) Within twenty days of the father providing the mother with confirmation of airfare payment for her and the children, they (the children) shall be returned to Texas; (b) The court accepts the father’s undertaking to vacate the matrimonial home in favour of the mother and children immediately prior to their arrival in Texas; (c) The father shall undertake to maintain payment of all expenses for the family home, such to include mortgages, realty taxes, insurance and utilities; (d) Within ten days of the release of these Reasons for Decision (“Reasons”) the father shall provide to this court satisfactory evidence that he has provided to the mother the sum of $1,500 USD to assist her payment of non-residential expenses for the children and her upon their return; (e) The payments required by the father are ordered without prejudice to any claim for costs in this Hague proceeding pursuant to Article 26 of the Convention; (f) Within ten days of the release of these Reasons, the father shall provide to this court satisfactory evidence that no further steps have been taken by him in the Texas court proceedings except as already disclosed to this court; (g) In the event that the mother has not filed an Answer to the father’s Petition for Divorce in Texas, the father shall provide satisfactory evidence that he has consented, or will consent, to any Order required by the Texas court allowing the mother to file an Answer; (h) Not less than 48 hours before the scheduled departure of the children and the mother for Texas the father shall provide to the mother a negative PEth test.

[38] The undertakings and related terms (i.e., “satisfactory evidence”) referenced in paras. 38 to (d) and (f) to (h) above shall be contained in an affidavit sworn by the father and filed by the required deadlines with this court.

[39] Nothing in the Order set out above shall be interpreted as trenching on the jurisdiction of the Texas court pursuant to its Family Code.

[40] No Order is made at this time for temporary visitation or other parenting relief, including child and spousal support because this court presumes that those issues can be addressed on an expedited basis by the Texas court immediately upon the mother’s return with the children to Texas.

[41] Paragraph 7.2 of the Standing Order encourages the parties settle their dispute without court intervention. That view is shared by this court.

Costs

[42] Article 26 of the Convention deals with costs, the last paragraph of which is relevant to these proceedings and provides as follows:

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

[43] If the parties are unable to agree on costs, the following provisions shall apply: (a) The father shall submit his submissions by July 25, 2023; (b) The mother shall submit her responding submissions by August 8, 2023; (c) Reply, if any, by the father to be delivered by August 14, 2023; (d) All submissions shall be limited to five double-spaced pages with respect to (a) and (b) above and three double-spaced pages with respect to (c). These submissions shall be filed in the Continuing Record. Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall also be filed by these deadlines. All documents are to be uploaded to Caselines after filing; (e) Counsel are to advise the judicial secretary when their material has been filed.

[44] A copy of these Reasons and the Order when issued shall be forthwith sent to the Williamson County, Texas District Court (23-0918-FC1) and to the Central Authority.

Justice D.A. Jarvis

Date: July 12, 2023