Court File and Parties
COURT FILE NO.: FC-24-391 DATE: 2024/08/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TAREK AHMED Applicant – and – RANIA ABDELMOAEIN Respondent
Counsel: Michael Rappaport, for the Applicant Valeriy Kozyrev, for the Respondent
HEARD: August 19, 2024 (In Ottawa)
Reasons for Decision
DOYLE J.
[1] The applicant father has brought a motion requesting the return of the parties’ 4-year-old child to London in the United Kingdom (UK), pursuant to the Convention on the Civil Aspects of International Child Abduction (“Convention”). The mother opposes the motion as she submits that the child’s habitual residence is in Canada.
[2] This case turns on the court’s determination of the child’s habitual residence in accordance with the hybrid approach set out in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.R. 398. This approach takes into consideration the child’s circumstances and the parties’ intentions.
[3] The court finds that the child’s habitual residence is the UK but that this case falls into one of the exceptions in that the father, through his actions, consented and acquiesced to the retention of the child in Canada.
[4] For the reasons that follow, the court dismisses the father’s application.
Background
[5] The undisputed facts are as follows.
[6] The parties were married in Cairo, Egypt on May 27, 2016. The mother is an Egyptian national and the father is a British national and also has Egyptian citizenship.
[7] In July 2019, the father was able to obtain a visa so that the mother could relocate to London, UK from Egypt.
[8] The parties’ child, Tarek, was born on December 27, 2019, in London.
[9] The parties resided together in London until the events of September 2023, which are the subject matter of this case. As further detailed below, the mother did spend time in Egypt with the child.
[10] The father owns the matrimonial home in London, UK, and works as a group finance manager at Developmental Pathways Limited. He has worked there since April 2018. The mother has not been employed since 2017.
[11] In 2018/2019, the parties began the process of immigration to Canada. The parties confirmed in their affidavits that they intended to move to Canada. The mother’s brother, Tamer Abdelmoaein (“Tamer”), who resided in Ottawa, was in a good position to facilitate the process as he was a relative of first-degree.
[12] Both parties completed the required documentation as requested by the Canadian immigration authorities, Immigration, Refugees and Citizenship Canada (IRCC).
[13] In March 2023, Tamer informed the father that they had received their visas and they would have to visit Canada to activate the visas.
[14] The parties purchased round trip airline tickets on July 15, 2023. The parties arrived in Canada on September 15, 2023 and they were scheduled to return to London on October 8, 2023.
[15] They landed at Pearson International Airport in Toronto and were provided with their Permanent Residence cards and the parents confirmed in writing their permanent residence status. The parties stayed with Tamer in Ottawa.
[16] On September 28, 2023, the mother told the father that the family should remain in Canada and process the visa requirements in Canada rather than in the UK.
[17] The father objected and returned to the UK without the mother and child and commenced the process of the Hague application before the court.
Father’s Position
[18] The father submits that the parties had not decided to move to Canada permanently. Rather, they were visiting Canada to determine whether this was a possibility. He still had employment in the UK.
[19] In addition, the child had just been registered in a nursery in London, UK.
[20] On September 28, 2023, the mother told the father that she wished to stay in Canada and he felt that she had tricked him.
[21] The father submits that there was no agreement that the child stay in Canada, and this was a decision taken by the mother against the wishes of the father.
[22] The father immediately contacted the authorities to report the unlawful detention of the child and he was advised to contact the agency in the UK and to submit a Hague application.
[23] He also enlisted the assistance of family and friends to communicate with the mother to convince her to return to London, UK without success.
[24] He submitted an application to the International Child Abduction authorities, and on August 31, 2023, the authorities submitted an application to the central authorities in Ontario, Canada.
[25] On March 11, 2024, the father commenced his Hague application.
[26] The father submits that the child’s habitual residence is in London, UK because:
a) The child was born in England and is a British National as per his birth certificate and his passport; b) The child has been registered with and treated by a general practitioner in London since January 2, 2020; c) He has had his vaccinations over the past three years in England with the last one in June 2023; d) He is registered at Little Acorns Day Nursery, Prestwood House, Drummond Road, London, UK; e) The child’s support network including family and doctors are in London, UK; f) The father owns the family residence in London where the child lived from his date of birth; and g) The family have been receiving child benefits from the UK since May 2020.
[27] The father submits that the mother wrongfully retained the child in Ottawa on September 28, 2023, when she told the father she was not willing to return to London but planned to live with her brother.
[28] The child is too young to return to London on his own. There are no fundamental human rights grounds not to permit the child to return to London.
Mother’s Position
[29] The mother requests the dismissal of the application and an order declaring that the child’s habitual residence is Ottawa, Ontario.
[30] The mother submits that she is not a UK citizen and that her residency permit was required to be renewed, and she is at the mercy of the father for the renewal.
[31] After their marriage, the father used the marriage certificate/contract to apply for a spousal visa so that the mother could live with him in the UK on a temporary basis. The visa was issued for two years and nine months. After this period, the father was required to apply to extend her stay.
[32] If the father does not extend her visa, she could be removed from the UK as a person without a status.
[33] The mother indicates that she and the child have not had continuous residency in the UK as they spent extensive time in Egypt. They lived only in the UK for five months before they travelled to Canada in September 2023.
[34] With the support of Tamer, the sponsorship application was approved and was submitted in early 2019. After filing all the requisite documentation, they received their confirmation of permanent residence in 2023. The move to Canada was anticipated and planned.
[35] The family landed at Pearson Airport in Toronto and received their permanent resident documentation. The father said he could work online from anywhere in the world and that he had already looked for jobs. He applied for an Ontario ID card on September 21, 2023.
[36] On September 28, 2023, the mother told the father that it would be better to make the transition from Canada rather than the UK. The father has refused to return the child’s passport since that date.
[37] The child has adapted to the Canadian life as he is attending Islamic school and is registered for school camps. The mother has her Permanent Resident card, medical health card and driver’s licence. She has filed her 2023 tax return and will be attending Sheridan College to improve her English. She has received a grant from OSAP.
[38] Although the parties were to return to the UK after three weeks, they had an intention to settle in Canada and the mother’s intention to remain in Canada was accelerated because of the father’s abusive conduct and the fear of losing her son in the UK.
[39] In the alternative, the mother relies on Article 13(a) of the Convention and takes the position that the father consented to the removal or retention.
Legal Framework
[40] The main goal of the Convention is the restoration of the status quo and the two objectives, set out in Article 1, are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and access under the law of one Contracting State are respected in the other Contracting States.
[41] In Balev, the prompt return of wrongfully removed or retained children protects against the harmful effects of wrongful removal or retention as children may be “transplanted into a culture with which they have no prior ties, with different social structures, school systems and sometimes languages”: at para. 23.
[42] In addition, the prompt return deters parents from abducting a child with the hope of being able to establish links in a new country which may result in an award of custody.
[43] The Convention provides a process for a parent to pursue the immediate return of the child subject to certain exceptions.
[44] The process is intended to be a streamlined and time-sensitive process as the prompt return will lead to resolving of parenting issues to be determined in the child’s habitual residence.
[45] The Convention process is meant to restore the status quo that existed before the wrongful removal or retention. Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access: see Balev, at para. 24.
[46] The Court of Appeal for Ontario described the purposes of the Convention in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at paras. 19-20, as follows:
[19] The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained: Balev, at para. 24; Hague Convention, Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.
[20] The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned.
[47] Not every removal or retention of a child is wrongful. Habitual residence is central to the Convention because it defines when a removal or retention of a child is wrongful: see Parmar v. Flora, 2022 ONCA 869, 81 R.F.L. (8th) 299.
[48] Article 3 of the Convention sets out when a removal or the retention of a child is to be considered wrongful.
[49] Article 5 of the Convention defines rights of custody for the purpose of the Convention.
[50] Article 8 of the Convention provides that any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
[51] If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Convention provides that the court “shall order the return of the child”. This is subject to exceptions set out in Articles 12, 13 and 20 of the Convention: see Ludwig, at para. 34.
[52] In Balev, the Supreme Court approved the hybrid approach in determining habitual residence:
[42] Finally, the hybrid approach holds that instead of focusing primarily or exclusively on either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case at hand. As noted above, in Canada, the hybrid approach has been adopted in Quebec: see Droit de la famille — 17622, at paras. 29-30.
[43] On the hybrid approach to habitual residence, the application judge determines the focal point of the child’s life — “the family and social environment in which its life has developed” — immediately prior to the removal or retention: Pérez-Vera, at p. 428; see also Jackson v. Graczyk (2006), 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.
[53] Article 13 of the Convention provides exceptions to Article 12, even in the event that the court finds a wrongful removal or retention. This will be elaborated below.
Discussion
Introduction
[54] The UK and Canada are both signatories of the Convention.
[55] The father promptly contacted the Central Authority for Canada upon learning the mother was refusing to return the child to the UK.
[56] The Central Authority provided the father with direction, and he made effort on a personal level to ask the mother to return. He engaged family and friends to convince her to return with the child on a voluntary basis.
[57] Since there was a lack of success, the father retained counsel and commenced a Hague application to seek the return of the child before the expiration of one year.
[58] This application was case managed by Justice Audet and she ordered a focused one-day hearing where cross-examinations on affidavits could take place. Both parties were cross-examined and Tamer was also examined under oath.
[59] The court has considered the father’s affidavits sworn March 10, 2024, June 24, 2024 and a reply affidavit dated July 19, 2024, the mother’s affidavit dated June 25, 2024 and affidavit of her brother, Tamer, sworn June 25, 2024.
[60] All the affiants were cross-examined in a focused hearing in accordance with the timelines set through case management as per Justice Audet's endorsement dated June 24, 2024.
[61] The court has considered the extensive evidence of the parties’ identifications, citizenship and connections with both contracting states, i.e., the UK and Canada.
Issue #1: What is the date that the child was allegedly wrongfully removed or retained?
[62] Identifying the date of alleged wrongful removal or retention does not imply a finding that there has been a wrongful removal or retention. At this first step of the analysis, the wrongfulness of the removal or retention is merely an allegation.
[63] The court must fix a date to conduct the habitual residence analysis. A court may find a date of alleged wrongful retention at this first step, and then ultimately find that there was no shared parental intention and that the respondent’s retention of the child in Ontario was not wrongful: see Ludwig, at para. 25.
[64] The court is not bound to accept the dates of alleged wrongful retention proposed by the parties. This is a factual determination to be made by the court.
[65] In that context, the court finds that the date of September 28, 2023, is the date that the child was wrongfully retained.
[66] The parents had an argument, and the mother told the father that she and the child were not returning to the UK. On this date, the intention of not returning to the UK and keeping the child in Canada was made and steps were taken towards that end.
Stage One: Habitual Residence
Issue #2: Immediately before the wrongful detention what was the child’s habitual residence?
[67] Article 16 of the Convention requires the court to determine the habitual residence of the child at the time immediately before the wrongful retention. Habitual residence is not defined in the Convention.
[68] As stated earlier, in Balev, the Supreme Court adopted the “hybrid approach” to determining a child’s habitual residence. The habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment and must be established, taking into account all of the circumstances of fact specific to each individual case. Considerations include the duration, regularity, conditions, and reasons for the child’s stay in a particular country, the child’s nationality, parental intention, the child’s circumstances prior to the retention, the child’s family, family connections and social environment. No single factor dominates the analysis. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev, at para. 47 (citation omitted).
[69] The court will discuss the factors necessary to determine the habitual residence in accordance with the jurisprudence.
[70] Regarding the focal point of the child’s life and the family and social environment in which his life developed, while in the UK, the child lived with his parents.
[71] His family doctor is in the UK and had his vaccinations in the UK.
[72] The child attended nurseries in both Egypt and the UK. He was registered to attend a child nursery upon his return from Canada.
[73] The child lived in the home that the father has owned for 10 years. The child is a British national and also has Egyptian citizenship.
[74] The parties did not have any family in the UK.
[75] The child spent almost half of his life in the UK while the remainder of the time in Egypt.
[76] Although the father did not remember all the times the mother and the child travelled to Egypt, he admitted she was there with the child for one year between June 2022 and June 2023. He was there from February 2023 to April/May 2023.
[77] In addition, in December 2020, the family visited Egypt and stayed until February 7, 2021. The family travelled again to Egypt in 2021.
[78] From the above timetable involving living in Egypt and the UK, the court finds that approximately half of the child’s life up until September 2023 was in the UK.
[79] Regarding the circumstances of the child’s move from the UK to Canada, the family had a return flight from London and the family’s intention was to return after their holiday in Canada. The mother had told the father that she may wish to stay an extra week as they had flexible return dates to the UK.
[80] The parties did not move furniture or all their personal belongings when they travelled to Canada in September 2023. The father kept his job, did not give notice to his employer nor did he make arrangements to rent or sell his flat in London, UK.
[81] The documents filed with the court confirm that all family members obtained their permanent residence status in Canada on December 2022.
[82] On cross-examination, the father minimized his understanding of the significance of a permanent resident status.
[83] He testified that he left it to his brother-in-law to take care of the immigration issues. From the documentation filed showing extensive compliance of immigration requirements, including security checks, medical examination and biometric report, he was well aware of the requirements and the process. He also participated and signed the necessary documents pertaining to the immigration process. The court finds that the father had a good understanding of the process given that he was involved with his wife’s spousal visa for the UK as well.
[84] In his affidavit dated March 10, 2024, the father stated that the parties formulated an intention in 2019 to move to Canada: at para. 13.
[85] Regarding the child’s links to and circumstances in Canada, the child was named in the permanent residence process application. The mother has made numerous efforts to establish herself and the child in Canada including:
i. The child is registered in a Muslim school. ii. The child is registered for school camps. iii. The mother has obtained an OHIP card, driver’s licence and is receiving child tax credit. iv. She has received her 2023 Notice of Assessment. v. She has registered for ESL with Sheridan College and has been provided a grant from OSAP. vi. She has a lease. vii. She has opened a bank account.
[86] Regarding the duration, regularity and conditions and reason for child’s stay in Canada, the child has been in Canada since he arrived almost one year ago (September 15, 2023) as a result of the mother withholding him.
[87] The mother was the primary caregiver, but that is not relevant to the habitual residence determination.
[88] Clearly the parents were intending to return to the UK as they had return tickets (even though the mother stated that there was some flexibility on the return flight). The father still had a job and the child was registered in a nursery.
[89] The parties had demonstrated an intention to immigrate to Canada as they completed the paperwork to complete the immigration process.
[90] The parties’ intention is a consideration or an “indicator” capable of complementing a body of other evidence: see Balev, at para. 45.
[91] As stated in Balev, the court must not over rely on parental intention. At para. 45, Justice McLachlin referred to the Court of Justice of the European Union in O.L. v. P.Q. (2017) C-111/17 (C.J.E.U.) when she stated that “parental intention ‘can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence'".
[92] Applying the Balev hybrid analysis, there was not enough time elapsed to change the child’s habitual residence from the UK to Canada. The child was in Canada with his parents with an airline ticket to return to the UK on October 8, 2023.
[93] The court finds that the child’s habitual residence is the UK.
[94] The parties did not dispute that, as a father, he had rights of custody at the time of the alleged wrongful retention in the UK.
[95] At this stage, the court shall order the return of the child unless it determines that an exception applies.
Stage Two: Exceptions
Issue #3: Should the court exercise its discretion to return the child to the UK or is there an exception?
[96] Since I have found that the habitual residence is the UK, the court is required to proceed to Stage 2.- determining whether an exception to returning the child applies.
[97] Articles 12, 13 and 20 of the Convention provide for six exceptions to ordering the return of the child when a finding of wrongful removal or retention has been made. These exceptions are as follows:
a) The parent seeking return was not exercising custody (Article 13(a)); b) The child of sufficient age and maturity objects to being returned (Article 13(2)); c) There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b)); d) The parent consented to the removal or retention (Article 13(a)); e) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12); and f) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20).
[98] Article 13(a) applies here as the father, by his actions, consented to this move.
[99] In Ogunboye v. Faoye, 2023 ONCJ 46, 84 R.F.L. (8th) 99, Justice Sherr summarized the cases that define “consent” and “acquiescence”:
[95] In Katsigiannis v. Kottick-Katsigiannis, the Ontario Court of Appeal explained the meaning of “consent” and “acquiescence” as used in Article 13A of the Hague Convention. To “consent” is to agree to something. To “acquiesce” is to agree tacitly, silently or passively to something such as the children remaining in a jurisdiction that is not their habitual residence.
[96] The test for acquiescence is subjective on the part of the left behind parent. See: Katsigiannis v. Kottick-Katsigiannis, par. 38.
[97] A fairly high bar must be crossed to show acquiescence or consent. There must be some formal indication of consent or acquiescence or alternatively actions or statements which unequivocally indicate the subjective intention of the wronged party to permit the child to remain in the location to which the child was removed. See: Raposo v. Raposo, 2023 ONSC 346.
[98] To trigger the application of the Article 13A exception there must be clear and cogent evidence of unequivocal consent or acquiescence. See: Komminemi v. Guggilam, 2022 ONCJ 66.
[99] The mother must prove words or conduct on the part of the father that are inconsistent with the child’s summary return. See: U.K. v. N. A., 2021 ONCJ 73, par. 107; Webb v. Gaudaur, 2015 ONSC 6956, par. 87. “Summary return” means a return of the child in the relatively immediate future, as opposed to an eventual return. And the length of time that must pass before acquiescence will be found will depend on the circumstances of each case. See: Katsigiannis v. Kottick-Katsigiannis, par. 36.
[100] There is clear and unequivocal that the parties’ intention was to move to Canada. The parties did not agree on when this was to occur.
[101] The Court of Appeal for Ontario in Zafar v. Saiyid, 2017 ONCA 919, at para. 22, stated: “The purported status quo of the children remaining in Canada, which is not their habitual residence, was a situation that the appellant engineered and should not be continued by this court absent good reason. I am not satisfied that there is any such good reason.”
[102] The parental intention is distinguishable in Zafar when the mother refused to return to England after a visit to Canada. Here, the parties have completed a long process of applying for permanent resident status in Canada.
[103] The father committed to the immigration process as evidenced by the documentation filed with the Immigration office. He showed a subjective intention that Canada was their country of choice for their future. An important consideration for the family is that they had no family in the UK.
[104] The father participated and cooperated in the permanent residence immigration process. His testimony at trial contradicts his statements in his March 10, 2024 affidavit which confirmed that the parties were considering moving to Canada. In addition, he was familiar with visas as he had applied and succeeded in obtaining a few renewals of his wife’s temporary spousal visa.
[105] The court does not accept that the father did not understand the Canadian immigration process.
[106] Upon entry into Canada, he signed the required forms confirming permanent residence status in the presence of the immigration officers.
[107] In September 2023, at Pearson Airport, the father signed the Confirmation of Permanent Residence document in front of the IRCC officer in Toronto, which is clear and cogent evidence of unequivocal consent or acquiescence to his child residing in Ottawa. In September 2023, while in Canada, he applied for his Ontario ID card.
[108] Even though the plane tickets were return tickets with a specified return date, there was flexibility in the return date.
[109] The court finds that the parties' intention was to move to Canada and the father consented. The parties had disagreements about the process.
[110] The father had looked at online jobs and homes for the family that would be near the child’s school.
[111] The fact that, during the marriage, the parents discussed an overall desire to eventually move to Canada and took concrete steps to apply and complete the requirements equates to consent or acquiescence to the relocation of the child.
[112] The court summarizes its findings as follows:
a) The child was wrongfully retained in Canada on September 28, 2023. b) The child’s habitual residence is the UK. c) The Article 13(a) exception applies. The father did provide an informed consent or acquiesce to the subsequent retention of the child as he not only cooperated and provided all the documentation for the family’s permanent resident application but he also signed confirmation of permanent residence for the child when the family landed at Toronto Pearson Airport on September 15, 2023. d) The court declines to exercise its jurisdiction to return the child to the UK.
Conclusion
[113] Accordingly, the father’s application is dismissed. The court declines to return the child to the UK and the court will take jurisdiction in this matter.
[114] There will be no costs order as neither party is seeking costs.
Madam Justice Adriana Doyle
Released: August 27, 2024
