Court File and Parties

Court File No.: FC-24-1371-00 Date: 2024-10-31 Superior Court of Justice – Ontario – Family Court

Re: C.O., Applicant And: P.G., Respondent

Before: The Honourable Madam Justice A.M. Daurio

Counsel: M. Stangarone/T. Guo, Counsel for the Applicant F. Hudani/J. North, Counsel for the Respondent

Heard: October 23, 2024

Ruling on Hague Application

Relief Requested

[1] On August 30, 2024, the Applicant brought an Application seeking the return of the children of the marriage, namely, Ar. O. and An. O., to Singapore pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

[2] The Applicant took the position that the children’s habitual residence is in Singapore and that the Respondent wrongfully removed the children from Singapore on July 2, 2024.

[3] The Respondent and the children are currently present in York Region. The Respondent took the position that the children’s habitual residence is in Ontario.

[4] The parties were ad idem that the court was to use the hybrid approach to determine the children’s habitual residence.

[5] If the Court finds that the children’s habitual residence is in Singapore, the Respondent asks the court to exercise its discretion to permit the children to reside in Ontario pursuant to the exceptions found in Article 13 of the Hague Convention.

Decision

[6] For the reasons that follow, the Hague Convention Application is dismissed, and the Ontario Court has jurisdiction to determine custody and access of the children as they are habitually resident in Canada.

Undisputed Facts

[7] The parties were married on August 30, 2019, and separated on June 19, 2024.

[8] The parties and the children are Singaporean citizens. Both children were born in Singapore.

[9] The parties and Ar. O. are Permanent Residents in Canada, and the Respondent has applied for Permanent Resident status for An. O. (without the knowledge or consent of the Applicant).

[10] An. O. had never been to Canada prior to the alleged wrongful removal.

[11] The parties moved to Canada with Ar. O. in March 2022, and they initially resided in Halifax, Nova Scotia. In September 2022, they relocated with Ar. O. to Markham, Ontario.

[12] The Respondent is a Registered Nurse who has been employed full time by Stouffville Hospital (Oak Valley Health) since February 2023. She is currently on maternity leave that comes to an end in December 2024.

[13] The Respondent was diagnosed with hyperemesis gravidarum in the summer of 2023, which caused her to become quite ill during her pregnancy with An. O.. As a result, she was placed on short term disability in late August 2023.

[14] The Applicant is a compliance specialist who had been employed by Price Waterhouse Cooper (PWC) between July 2022 and October 2023. The Applicant was on short term disability between March 2023 and July 2023 and left his job in October of that year, just prior to the parties traveling to Singapore with Ar. O..

[15] While both parties were on short term disability, Ar. O. continued to attend daycare full time in Ontario until late October 2023.

[16] With the Respondent pregnant and feeling unwell, the parties agreed that they needed the family support they would receive in Singapore for the pregnancy and the birth of a new baby, while Ar. O. was very young. The parties dispute the permanency/fluidity relating to the decision to go to Singapore.

[17] The parties purchased tickets for the family to travel to Singapore. The Applicant’s plane ticket was cancelled before the trip and then a new ticket was purchased.

[18] The family travelled to Singapore on October 28, 2023.

[19] Before they departed Ontario, the parties put some of their household belongings in a storage unit, left some belongings with their friends, and they pre-registered both of the children at Ar. O.’s daycare centre in Markham, to start in September 2024.

[20] The parties moved out of their Markham apartment in July 2023, to reside with friends. They then let their apartment lease expire at the end of September 2023, they terminated the lease on their Mercedes vehicle in Canada, and they were residing temporarily with friends before they left for Singapore.

[21] The parties had a matrimonial home in Singapore that was being rented out and provided them with rental income. When the parties arrived in Singapore, they stayed with the Respondent’s parents. They did not move back into their matrimonial home and, in early 2024, the Applicant proposed that arrangements be made to extend their tenant’s lease of the home for another two years. At the time of the hearing, the Applicant was residing in the matrimonial home as the tenancy had since been terminated.

[22] In February 2024, Ar. O. started attending daycare in Singapore.

[23] At the end of February 2024, the Applicant was removed from the Respondent’s parents’ home at the request of the police. He did not return until March 24, 2024. During the intervening time, the Applicant was seeing the children about once per week.

[24] On March 25, 2024, the Applicant purchased a plane ticket for himself to return to Canada in April 2024. On the same day, the Respondent purchased plane tickets for the parties and the children to return to Canada together at the end of July 2024, with the Applicant’s knowledge.

[25] Around this same period, late March 2024, the Applicant was in communication with a friend of the family in Ontario and he was making plans to obtain his Ontario driver’s licence, to secure a job in Ontario and to locate an apartment for the family in Ontario. The Applicant told this friend that the family was returning to Canada.

[26] The Respondent made allegations that the Applicant raped her on March 27, 2024, and the following day he advised her that he was no longer agreeable to returning to Canada. The Applicant left the Respondent’s parents’ home again, and he was facing charges in Singapore as a result of these allegations. The charges remained outstanding until May 20, 2024, when the Singaporean police decided not to pursue the charges.

[27] The Applicant did not see the children for 2.5 months following March 28, 2024. The Applicant was prohibited from having contact with the Respondent during this period.

[28] In mid-June 2024 the Applicant requested to see Ar. O. once per week. He requested to see An. O. on Father’s Day. On June 19, 2024, the Applicant filed for divorce in Singapore.

[29] Through Counsel, the Respondent sought the consent of the Applicant to travel with the children to Canada on June 26, 2024. On July 1, 2024, the Applicant advised that he did not consent to this travel, and he requested that the Respondent relinquish the children’s passports as he believed her to be a flight risk.

[30] The Respondent returned to Ontario with the children on July 2, 2024.

The Applicant’s Position

[31] The Applicant’s narrative suggested that he had previously just acquiesced to plans made by the Respondent and that he had been a reluctant follower. For example:

(a) he claimed that the Respondent “convinced” him to move to the GTA from Halifax;

(b) when the parties decided to move out of their basement apartment in Markham at the end of July 2023, he “had no choice but to agree;” and

(c) he was pressured by family friends to enroll the children in daycare in Markham for September 2024 “as a back up plan” even though “it was not their place to make plans for our family…”

[32] The Applicant’s description of the parties’ relationship vacillated between him being the victim of verbal and physical abuse, to the parties having similar hopes and dreams about the future. He described the relationship as being tumultuous.

[33] The Applicant claimed that the parties had planned to travel to Singapore with the children in October 2023 because their “dream” of living in Canada had not panned out. The parties were having challenges with securing housing and the affordability of living in Canada was out of reach. He stated in his Affidavit that the parties “did not plan to go back to Canada in 2024-2025.”

[34] In submissions, the Applicant softened this statement and acknowledged that there had been some discussions about a possible return to Canada, however, he claimed that the situation had been “fluid” and the parties had not settled on a plan before they separated.

[35] The Applicant alleged that, despite the fact that the parties had agreed to move back to Singapore, the Respondent had initially cancelled his plane ticket to Singapore in October 2023 out of retaliation. He claimed that he was required to purchase another ticket for the same flight to ensure that the family travelled together.

[36] While the parties were in Singapore, the Applicant claimed that the relationship troubles intensified because the Respondent wished to return to Canada with the children, while the Applicant did not. Furthermore, they were not receiving the level of support with the children that they had expected.

[37] The Applicant claimed that he was looking for work in Singapore as the parties had returned to reside there. He also claimed that the only discussion that took place about a possible return to Canada occurred when the Respondent presented him with an ultimatum on March 21, 2024, as follows: he agrees to return to Canada, or she would file for divorce.

[38] While he admitted that he was looking into securing his driver’s licence in Ontario, looking at apartment listings and looking for jobs in April/May 2024, this was only done in line with the Respondent’s ultimatum, and it was not evidence of his intention to return to Canada.

[39] The Applicant made several allegations against the Respondent about her behaviour, parenting skills, and the Respondent having an affair. He spent quite a bit of time in his evidence and submissions on these issues and his claim that the Respondent intentionally, with a plan, unilaterally absconded from Singapore with the children knowing that the Applicant did not consent.

[40] The evidence relating to the alleged affair will be discussed later in this decision, as a legal issue relating to this evidence arose in submissions.

[41] The Applicant filed for divorce in Singapore on June 19, 2024, and the Respondent filed pleadings in response. Both parties also sought interim injunctions from the Singaporean Court related to the children’s location pending the outcome of those proceedings.

[42] As such, the Applicant took the position that the Respondent had attorned to the jurisdiction of the Singaporean Courts to determine the parenting issues. Further, the Applicant indicated that because there was a claim before the Singapore Court (that both parties were actively engaged in) to allow the parenting issues to be litigated in Canada would create a multiplicity of proceedings. Something that should be avoided.

[43] The Applicant submitted that the children’s habitual residence was in Singapore. He stated that the children were Singaporean citizens, An. O. had never been to Canada, Ar. O. attended day care in Singapore, both children were enjoying parenting time with both parents in Singapore, and their extended family resided in Singapore. Furthermore, they owned their matrimonial home jointly in Singapore.

[44] The Applicant accused the Respondent of forum shopping given that there was already a custody proceeding before the Court in Singapore.

[45] The Applicant’s position was that, at the time of the alleged wrongful removal, the children’s habitual residence was in Singapore. He submitted that the Court is to use the hybrid approach as set out in Balev and that Balev stood for the proposition that the Court is to move away from a focus on parental intention.

[46] He pointed out that the parties did not have any family members in Canada, that they only put items in storage in Canada because they had not yet decided what they were going to do, that they pre-registered both children in daycare for the September 2024/25 program in advance as a “back-up plan,” and that even if he had agreed that the plan for the family was to return to Canada, there is a time limit to this consent and the Court must look at the situation that the children were in immediately before the removal on July 2, 2024.

[47] The Applicant was concerned about the way his parenting time had been restricted before the alleged wrongful removal. It was his position that the Respondent had made false allegations of rape against him in Singapore in March 2024, this resulted in criminal charges and prevented him from seeing the children. The charges were withdrawn in late May 2024.

[48] The Applicant was also concerned about the lack of parenting time that he has had since the children’s removal, and he implored upon this Court that it should not rely on these manufactured gaps in parenting when determining whether his parenting rights were being exercised immediately before the removal.

[49] When pointing to a factual connection between the children and Singapore, the Applicant submitted that the children and both parents were Singaporean, Ar. O. had spent more of his life in Singapore than he had ever spent in Canada, further, he had been in Singapore for eight months at the time of his removal – which is a significant amount of time in the life of a child.

[50] Ar. O. had been attending daycare and he was spending time with his extended family before he was removed. In addition, the family had doctors, property and a history of residing in Singapore.

[51] In his view, the children and the family did not have a factual connection to Ontario at the time of the removal. He pointed out that An. O. had never even been to Canada, while Ar. O. had been enrolled in daycare, he had not attended at that daycare for several months at the time of the removal, the parties had no family in Ontario and the Applicant was unemployed and without a home to live in here.

[52] The Applicant submitted that if the children were to be returned to Singapore, he would vacate the matrimonial home to allow the Respondent and the children to reside there.

[53] The Applicant cautioned the Court about considering any evidence of connection to the competing jurisdictions that the Respondent had included in her material arising after the date of the alleged wrongful removal.

The Respondent’s Position

[54] It was the Respondent’s position that when the parties decided to travel to Singapore, they had always planned to return to Canada.

[55] She claimed that they travelled to Singapore for the sole purpose of receiving support during her pregnancy with An. O. and for about six months following her birth, to help with both An. O. and Ar. O..

[56] The parties’ extended family resided in Singapore and the Respondent was quite ill while pregnant. With Ar. O. being so young, she wanted to be with her family during this period of time as the Applicant was unable to provide the level of support required.

[57] The Respondent claimed that the Applicant resisted her proposal to travel to Singapore temporarily for the birth of An. O. and that he cancelled his plane ticket for October 2023 because he was insisting that the parties remain in Canada.

[58] The Respondent claimed that it was always the intention of the parties to travel to Singapore temporarily for support during the pregnancy and birth, and that they would return to Canada in June or July 2024. That was the plan from the beginning and the Respondent’s intentions in this regard never changed.

[59] The Respondent pointed to evidence in support of her position, including:

(a) the parties had a home in Singapore that they had rented out. Despite this, they stayed with the Respondent’s parents when they were visiting. Furthermore, the Applicant sought to extend the rental agreement with the tenants of their home for two years. It was her position that if the parties intended to remain in Singapore, they would have taken steps to move back into their home;

(b) the Respondent had a full time job as a Registered Nurse in Ontario and she was on maternity leave, with a plan to return to her position in December 2024;

(c) text messages that the Respondent sent to her family and friends indicated that the Respondent would be returning to Canada in the summer of 2024;

(d) text messages that the Applicant sent in March/April 2024 stated that the family was returning to Canada and he wanted to secure his driver’s licence, get a new job and find an apartment;

(e) the Applicant had purchased a plane ticket to return to Canada in the spring of 2024 so he could make arrangements before the Respondent and children joined him here;

(f) on March 25, 2024, the parties had purchased return tickets for the entire family to travel back to Canada from Singapore at the end of July 2024;

(g) the parties had put their belongings in storage in Canada and they left some additional valuable items with their friends; and

(h) the parties had pre-registered both children to attend day care in Canada starting in September 2024, and that Ar. O.’s spot had been put on hold while they travelled.

[60] It was the Respondent’s position that the children’s habitual residence is in Ontario, as this was always the parties’ intention; and the Respondent had been the children’s primary caregiver since their births.

[61] According to the Respondent, the Applicant simply changed his mind about their plans to return to Canada. In her view, it was not within the Applicant’s authority to simply “change his mind” and effectively decide that the children’s habitual residence would then be established in Singapore.

[62] The parties agreed, in Canada, that they would raise the children in Canada. That was the status quo before they left, and it was this status quo and plan that still existed when An. O. was born and until late March 2024.

[63] In the Respondent’s submission, her intention for the children to be raised in Canada never wavered and this should sufficient to establish the children’s habitual residence in Ontario. Her temporary consent for the children to travel to Singapore should not result in their habitual residence being established in Singapore.

[64] The Respondent submitted that if the Applicant wished to change the agreed-upon plan, he would have to make this argument before the Ontario Courts.

[65] The Respondent argued that there were strong public policy considerations to take into account in this case. If the Court were to agree that a party could “change their mind” once children are located in a different country, this would open the door to immigrant parents effectively being “trapped” in a foreign country with the children.

[66] To do so, would cause the Hague Convention to be brought into disrepute and would run contrary to the Hague Convention’s intentions. Those intentions are to ensure that children remain in/are returned to the jurisdiction of their habitual residence while decisions are made about the parenting arrangements. Not the reverse scenario, that the Respondent claimed was being made by the Applicant.

[67] The Respondent filed a number of documents in support of her position, including Affidavits, text messages, a doctor’s note, emails and letters. The Respondent stated that all of the documentary evidence, including some of the evidence filed by the Applicant, pointed toward the family always having the intention to return to Ontario until the Applicant simply changed his mind.

[68] The Respondent submitted that the Applicant’s position, that the plan was always fluid, or that they never planned to return, was not supported by any corroborating evidence. He did not file a single text message, letter, email or other document to back up his claims.

[69] The Respondent submitted that the Applicant himself had made plans to get his Ontario driver’s licence, he was applying for jobs in Ontario as late as June 2023, he was looking for housing and he was actively involved and informed about purchasing tickets for the children to return to Ontario that were purchased in March 2024.

[70] While the Respondent was looking for a job in Singapore, this was only for the purpose of supporting the family while they were there. It was not an indication of a long term plan. Further, he had not found a job there before the parties separated.

[71] The Respondent also pointed out that the Applicant did not file one piece of evidence from any extended family in Singapore to support his proposition that the children were connected to his family while there.

[72] The only evidence of the children’s family connections in Singapore revolved around the Respondent’s family. There was no evidence of the children having connections with the Applicant’s family.

[73] As far as the connections the children had in Ontario, the Respondent outlined that they had daycare arrangements, a plan to return to the same home that the family resided in before they left last year (with friends), they have a family doctor in Markham, and Ar. O. had friends at his daycare that he attended before they left (and he was registered to come back to the same daycare upon their return).

[74] Regarding the issue of attorning to the Singaporean jurisdiction, the Respondent submitted that this is not relevant to the issues before the Court. She put to the Court that it would be inappropriate to chastise the Respondent for attempting to work with the Applicant in a collegial manner before she returned to Canada with the children.

[75] Furthermore, the Respondent had no option but to defend herself in the Singaporean action. To simply ignore it would have been foolish.

[76] The Respondent submitted that, there are no parenting Orders in Singapore, and it was the Respondent’s submission that it would be inappropriate for the Court to consider the issue of returning the children to Singapore based on legal, technical, rules. It was her position that Balev stood for the opposite proposition, that the Court should not be bound by such a technical approach in Hague cases.

[77] The Respondent asked the Court to consider the facts surrounding the children’s circumstances from the perspective of their very young lives. She claimed to be the children’s primary caregiver and, as such, she was the focus of their lives. They were so young that many of the factors in the Balev hybrid approach did not assist the Court. Balev, the Respondent submitted, instructed the Court to place more emphasis on the parties’ intentions where the children are very young.

[78] Despite the emphasis on intention for infants and young children, the Respondent still acknowledged that the hybrid approach was the current state of the law and that the Court must take many factors into consideration.

[79] When looking at connections to the community of these very young children, the Respondent claimed to be the focus of the children’s lives. At the time of their removal, the lives of An. O. and Ar. O. had their mother at the centre, as their primary caregiver.

[80] As such, she submitted that the Court should also consider the Respondent’s connections to Ontario that anchor the children here - through her. She has a full time job as a Registered Nurse and she is on maternity leave, she did not work for the majority of Ar. O.’s life and she has not worked since An. O. was born. Because she was on leave, she was the centre of the children’s universe.

[81] Further, while there were circumstances in March, April and May 2024 that interfered with the Applicant exercising parenting time with the children, he did not present a single letter or text message demonstrating that he had requested any parenting time before he filed for divorce on June 19, 2024.

[82] Between May 2024, when the charges were withdrawn, and the date of the removal, the Respondent claimed that the Applicant was not exercising regular parenting time with either of the children.

Hague Convention

[83] The Hague Convention is an agreement of signatory nations with the objective of securing the prompt return of children whose parents have removed them from the country that is their habitual residence bringing them to another jurisdiction.

[84] Both Canada and Singapore are signatory nations.

[85] It is noteworthy that the preamble to the Hague Convention states the following:

“The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions.” (emphasis added)

[86] The relevant articles of the Hague Convention state:

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.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

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.

Habitual Residence

[87] In considering habitual residence, the court is guided by the hybrid approach set out by the Supreme Court of Canada in Balev, supra, at paragraphs 43 to 45 of the majority opinion, which states:

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 developed” – immediately prior to the removal or retention. The judge considers all relevant links and circumstances – the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.

Considerations include “the duration, regularity, conditions, and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality: Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358, at para. 56. No single factor dominates the analysis; rather, the application judge should consider the entirety of the circumstances: see Droit de la famille — 17622, 2017 QCCA 529, at para. 30. Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: O.L. v. P.Q. (2017), C-111/17 (C.J.E.U.), at para. 45.

[45] The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. However, recent cases caution against over-reliance on parental intention. The Court of Justice of the European Union stated in O.L. 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”: para. 46. It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child . . . but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”: para. 47. The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case”: para. 48.

[88] Kraft J. in Thompson v. Thompson, 2022 ONSC 5474 [1], provided a comprehensive review of the Hague analysis post-Balev, as set out below. In Thompson, an agreement had been made between the parties about the relocation of the children, and where one party changed her mind. The other party left the jurisdiction with the children, without notice, however, this factor did not weigh against the finding that he had returned them to their habitual residence; nor did it equate to a “wrongful removal” as defined in the Hague Convention:

45. The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.

46. The court in Balev confirmed certain legal principles that are applicable to this case:

a) That a parent’s consent to a time-limited stay does not shift the child’s habitual residence, para. 42; and

b) Even where an extension is agreed to, the extension does not defeat the time-limited nature of the consent; see para. 48.

52. Both parties were aware that they had agreed to the relocation on very detailed conditions. The mother did not meet these conditions. The terms of the agreement she consented to are clear that the children were to be returned to Toronto if the two conditions were not met. She cannot now change her mind and revoke her consent to the return of the children to Canada if she does not subsequently like the result of her decision to agree to the move to Florida on conditions she could not meet: deHaan v. Gracia, 2004 ABQB 74, at para. 46.

53. In Gadea v. Rath, 2022 MBQB 5, the parties made a joint decision to move the child’s residence from Costa Rica to Manitoba and for the mother and her other children to join the father and the child. Although the parties planned for the mother to come to Canada, they knew it would be the decision of the Government of Canada as to whether or not she and her eldest two children would be granted permanent residency and that that decision was beyond anyone’s control. The mother changed her mind and decided she no longer wanted a relationship with the father or to immigrate to Canada where the father and child lived. The court found that the father acted on the joint agreement of the parties when he brought the child to Canada and that there was no wrongful removal or retention of the child by the father. The mother argued that the father had wrongfully removed the child and her habitual residence was Costa Rica. The court disagreed and found that the Hague Convention did not apply to the child. Further, the court found that “a change in habitual residence is not contingent on a family reunification or immigration status” since in that case, the agreement for the child to move to Canada was not conditional on immigration status: at para. 86.

54. Accordingly, I find that the father’s return of the children from Florida to Toronto was not “wrongful” because the mother had agreed and consented that the children were to return to Toronto if she had not met the conditions by the review date. That is not to say that the father went about the return of the children to Toronto in the correct manner. The father’s decision to drive with the children across the border and not tell the mother he was leaving was wrong and was self-help conduct. That does not, however, amount to a “wrongful removal” as referred to in the Hague Convention.

55. The Balev decision sets out how an application judge should determine the question of a child’s habitual residence. The three possible approaches were discussed: the parental intention approach, the child-centered approach, and the hybrid approach. Until Balev, the parental intention approach dominated Canadian jurisprudence. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The hybrid approach is fact-bound, practical and unencumbered with rigid rules, formulas, or presumptions: Balev, at paragraphs 45-47.

56. In Balev, at para. 37, the Supreme Court of Canada held:

The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.

62. The Court endorsed a hybrid approach to determining a child’s habitual residence, which tasks the court with determining 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”: Balev, at paras. 40-43.

63. The judge considers all of the child’s relevant 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: Balev, at para. 43. These considerations include the duration, regularity, conditions, and reasons for the child’s stay in the territory of a member state, and the child’s nationality.

64. The task of determining the children’s habitual residence is to consider how connected the children are to the jurisdictions involved, in this case both Florida and Ontario: K.F. v. J.F., 2018 NLCA 33, at para. 60. Such an inquiry must look at all relevant factors. Habitual residence is a question of fact. As set out in Bearisto v. Cook, 2018 NSCA 90, at paragraph 110, in relying on A.R. v. R.N. (2015), [2015] UKSC 35 (U.K.S.C.),

…It is the stability of the residence that is important, not its length or permanency…habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”

65. The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. However, the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: Balev, at para 45, also see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.

66. The framework for dealing with Hague Convention proceedings was helpfully described in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517. There, the court described a two-stage analytical framework arising out of Balev, summarized as follows:

(1) Stage One – habitual residence of the child.

(a) On what date was the child allegedly wrongfully removed or retained?

(b) Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident, having regard to the approach set out in Balev.

(2) Stage Two – if the child was habitually resident in the country of the parent invoking the Hague Convention, the Hague Convention applies, and the court proceeds to this stage, in which it shall order the return of the children unless one of the exceptions applies.

67. There is no minimum period required to establish habitual residence. It can be established in as short a period of time as one day: Unger v. Unger, 2016 ONSC 4258, 88 R.F.L. (7th) 64, at para. 79.

[89] With respect to an infant, such as An. O., Steinberg J. in Williams v. Elliot (2001) [2] determined that an infant born in Canada was habitually resident in the United States using the parties’ settled intention as rationale. In that case, there was an older child (habitually resident in the United States) that was an anchor to the infant. The Court is mindful that the case was decided prior to the Supreme Court determination in Balev that the hybrid approach was to be used to determine habitual residence; however, this case is instructive as to the relevance of the residence of an infant’s siblings when considering “all circumstances of a particular case”, in addition to evidence related to the settled intention of the parties. In his analysis, Steinburg J. set out:

13 With regard to Lorelei, although she was born in Ontario, the evidence strongly suggests that there was an ostensible agreement between the parties that Lorelei would live in North Carolina after she was born. In my view this agreement was sufficient to invest her with habitual residence in North Carolina when she was born, and it was not open to the mother to unilaterally change this.

14 With regard to Lorelei, I was unable to find any precedent on the issue of the determination of the habitual residence of a child, conceived in State A, born in State B, and then kept in State B from birth, against the wishes of the parent in State A. I have concluded that in the determination of that unique issue the court should look to the declared intentions of the parties as well as the habitual residence of any other children in the family, as important factors.

[90] The Williams case must be read with a post-Balev lens, which reinforces that the focus of the analysis is on the child and cautions against over reliance on parental intention. As stated in Balev, at paragraph 64, “The hybrid approach avoids the problem that a child may be found to be habitually resident in a country with which he has little or no connection.”

Analysis

Habitual Residence

[91] In determining habitual residence, Balev instructs the Court to consider the focal point of the children’s lives immediately before the removal or retention using a hybrid approach. This approach requires the to Court look at all of the circumstances, including the intentions of the parties, however, the weight of each factor must be conducted on a case by case basis.

[92] If the Court finds that the children were habitually resident in Singapore, the Court must then consider whether there was a breach of rights of custody attributed to a person, an institution or any other body, in Singapore and, further, whether those rights were actually being exercised, and would have been exercised but for the wrongful removal.

[93] In my analysis, below, when considering the focal point of the infant and toddler’s lives in this case, it is necessary for the Court to explore the circumstances of the parents because they are inexorably linked. When children are at a tender age, their worlds are defined by the connections that their parents create for them.

[94] The intention of the parties in this case is an important factor; but is not determinative on its own. Further, the Court is not conducting an analysis as to the outcome of a custody proceeding. The test in the case before me is not a best interests test. The Court is simply determining the jurisdiction in which the custody matter should be heard.

Children’s Links and Circumstances in Country A, Markham, Ontario, Canada

[95] The children’s links to Canada started when the parties decided to move (with Ar. O.) to Halifax, Nova Scotia in March 2022 and their applications for Permanent Resident status for themselves and Ar. O.. This set the family on a path toward establishing the children’s lives in Canada.

[96] The parties both acknowledge that they stayed in Singapore after Ar. O.’s birth to benefit from the support of the Respondent’s parents. Once they felt that they did not need that support any longer, they moved to Canada with Ar. O..

[97] The parties applied for, and were granted, Permanent Resident Status in Canada for themselves, and for Ar. O..

[98] Ar. O., being very young during that period of time, would have experienced his parents as the centre of his universe. The Respondent was his primary caregiver as she was not employed between March 2022 and February 2023. However, the Applicant continued to be a big part of Ar. O.’s life, even after he started working at PWC.

[99] The parties then made the decision to move with Ar. O. to Markham, Ontario. The Applicant continued to work for PWC, remotely, and the Respondent secured a permanent full-time position as a Registered Nurse working various shifts.

[100] Even though the Applicant was working from home, the parties still enrolled Ar. O. in full time daycare. There is evidence that the Applicant was the one caring for Ar. O. when the Respondent worked different shifts, or when she needed to sleep after working a late shift.

[101] Not long after the Respondent started her job, in March 2023 the Applicant was placed on short term disability through his job at PWC, however, Ar. O. continued attending daycare full time.

[102] Ar. O. was settled in a routine where he attended daycare each day and then spent time with both of his parents at home. The Applicant was struggling with his own mental health at that time as evidenced by his leave of absence from work.

[103] When the Respondent continued to work full time and the Applicant was not working, the evidence supports the Respondent’s claim that she was struggling to take on the lion’s share of the family responsibilities. It was the Respondent’s suggestion that the parties move in to the home of family friends in order to secure more support. The family moved out of their apartment in July 2023, despite the fact that the lease did not expire until the end of September 2023.

[104] It was around this same time that the Respondent was placed on short term disability due to her illness during pregnancy.

[105] In Canada, at the time the parties traveled to Singapore, Ar. O. was attending daycare full time, both children had been enrolled to attend the same daycare upon their return to Canada in September 2024, the parties and Ar. O. lived with family friends who were a support to them.

[106] As such, Ar. O.’s world included both of his parents, his daycare environment, and the family friends they had been living with between July and the end of October 2023.

[107] At the time of their departure, Ar. O. was just over two years old (about 26 months) and he had resided in Canada for 19 months by that time. An. O. was not yet born and did not reside in Canada.

The Circumstances of Ar. O.’s Move from Country A To Country B: from Markham, Ontario, Canada to Singapore

[108] The Court is satisfied that it was the Respondent’s illness that was progressively worsening in July 2023, and the inability of the Applicant to provide adequate support, that prompted the parties’ decision to travel to Singapore.

[109] The parties agree that they needed the support of the Respondent’s extended family to care for Ar. O. while the Respondent continued to be pregnant and unwell, and to support the family after the new baby was born. The family had received similar support after the birth of Ar. O..

[110] There was conflicting evidence about the Applicant’s plane ticket being cancelled before the trip, however, without corroborating evidence to support either party’s position regarding this issue, the Court is unable to make a finding one way or the other.

[111] The Court is satisfied that Ar. O.’s daycare spot in Markham was secured in anticipation of his return to Canada and that a spot at the daycare was reserved for An. O.’s anticipated arrival in Canada. The parties completed the registration together and paid a deposit. No corroborating evidence was filed to support the Applicant’s contention that this was only a “back up plan.”

[112] The parties ended the lease on their vehicle because they planned to be in Singapore for many months. It defied logic to continue to pay a car lease while they were away. The termination of the vehicle lease is not determinative of the parties’ intentions.

[113] The Court does not find that there was any connection between the parties’ decision to terminate their apartment lease in Markham (giving notice in July 2023) and their decision to travel to Singapore.

[114] By both parties’ account, this decision was made for other reasons. The Applicant claimed that it was the result of the Respondent’s complaints about the smell of mould and the Respondent claimed that it was due to the offer of their family friends to provide them with additional support with Ar. O. while she was pregnant and unwell. She complained about the Applicant’s inability to appropriately care for Ar. O. and to support her.

[115] There was evidence of significant conflict that had occurred between the parties in June 2023.

[116] The parties paid around $3,000 to put many items in storage in Canada, including mattresses, winter tires, furniture, winter clothing and they paid for a storage company to store those belongings while they traveled.

[117] The Court finds that the storage of these items further supported the Respondent’s position that it was the parties’ intention to return to Canada. It made little sense to put such items in storage, at such a high cost, if they would not be returning. The Applicant failed to provide a satisfactory explanation regarding this issue and presented no plan regarding the disposal or sale of those items, nor a plan to move the items to Singapore.

[118] The storage of the items on its own is not determinative, however, taken together with the registration of the children at daycare, the Court is satisfied that the parties were planning to go to Singapore temporarily and that they planned to return to Canada with the children.

[119] There was no corroborating evidence filed to show that the plan was “fluid” at the time of the family’s departure to Singapore, as submitted by the Applicant.

The Children’s Links to and Circumstances in Country B, Singapore

[120] Ar. O. travelled to Singapore with his parents at the end of October 2023 and he stayed with his parents and maternal family while there until late February 2024 when a police call resulted in the Applicant leaving the home.

[121] While the parties owned a home in Singapore, they did not return to it and they stayed with the Respondent’s family, which was the plan all along.

[122] Ar. O. started full time daycare in Singapore in February 2024 just before An. O. was born.

[123] An. O. had very little contact with the Applicant before the removal date and no corroborating evidence was filed to demonstrate that the Applicant had taken any meaningful steps to see her between March 27, 2024, and the removal date. As such, An. O.’s world exclusively involved the Respondent, Ar. O. and her maternal extended family (in their home).

[124] Because of the very young ages of the children, their connections and circumstances in Singapore were primarily associated with the people that they saw on a day to day basis.

[125] The children were living in a temporary residence in Singapore and there was no plan for the family to move into the matrimonial home prior to the parties’ separation. In fact, it was the Applicant who sought to extend the lease of the home to their tenants for a further two years. This corroborating evidence further confirms to the Court that the plan to return to Canada was not “fluid” and that it was a solidified and agreed upon plan at all times until the Applicant simply changed his mind.

[126] The Applicant’s credibility was negatively impacted by his attempt to re-write history, so to speak. He provided no evidence to support the narrative that he presented and at every turn, he was attempting to explain away the very convincing and corroborating evidence filed by the Respondent that did not support his case.

Habitual Residence Finding

[127] There was evidence presented by both parties at this hearing that pointed to factors connecting the children to both Canada and Singapore, which I will review in detail below.

[128] When all of the factors are considered together, the Court finds that neither jurisdiction could be characterized as one where either child “…has little or no connection.” There is minimal danger of that occurring in this case.

[129] That said, the corroborating evidence filed by the Respondent about the parties’ intentions and the children’s connections to the Applicant immediately before the removal tipped the scales in a meaningful way and provided overwhelming support to her position that the children’s habitual residence is in Ontario.

[130] It is clear to the Court that immediately before the removal, the focal point of the children’s lives was in Ontario and that their link to Singapore was a temporary stay for a specific purpose, and based on a clear agreement between the parties (from which the Applicant resiled).

[131] The parties’ temporary return to Singapore for support during and after the Respondent’s pregnancy was always the plan, the parties agreed to this plan and the Applicant was fully aware that this continued to be the plan as late as April 2024.

[132] The Applicant’s own evidence shows his awareness that tickets had been purchased for the children to return to Canada effective in July 2024 (however, it was not disputed that the Respondent pushed the date up from July 29, 2024 to July 2, 2024).

[133] There were April 2024 text messages filed showing the Applicant’s discussions with a family friend in Ontario about his plan to obtain his Ontario driver’s licence and his efforts to find employment in Ontario.

[134] Compounding this evidence was the Applicant’s purchase of his own ticket to travel to Canada in April 2024 to put the pieces together in Canada before the Respondent and children returned.

[135] The exchange of text messages between the Applicant and his God mother alleging that the Respondent had given the Applicant an ultimatum was insufficient to prove that such an ultimatum had been made.

[136] Counsel for the Applicant raised the fact that the messages were sent contemporaneously to the events as proof of their authenticity, however, the Court has no way of knowing, for example, whether the Applicant felt pressured to explain the situation to his family in this way, and if he was simply trying to put the blame on the Respondent for their planned departure, or if he was relaying information that was true.

[137] The Applicant had no direct corroborating evidence to show that the Respondent herself had given him an ultimatum.

[138] Further, there was no evidence presented to show that the Applicant had told the Respondent (or anyone) that he was no longer willing to return to Canada leading up to the purchase of the return tickets in late March 2024. This begs the question of whether there would have been any reason for the Respondent to give him an ultimatum in any event.

[139] Even if an ultimatum was presented to the Applicant by the Respondent, he does not deny that he agreed to move back to Canada with the children and that he agreed to start taking steps to get their family life re-started ahead of the Respondent and the children’s arrival here.

[140] The Court is not convinced of the Applicant’s narrative that he has always been a reluctant follower of the Respondent.

[141] In addition to the intentions of the parties, I find that the children’s links to and circumstances in Singapore were not solid and were tenuous at best.

[142] In Singapore, the children were staying temporarily with the maternal family and there was no evidence that their connections with extended family were supportive and secure (on the contrary, the Applicant claimed that they were NOT as supportive as anticipated).

[143] There was no evidence of the children having any friendships or social relationships in Singapore beyond each other and their immediate family.

[144] Children of such tender ages can only have relationships that are cultivated by a parent or caregiver, and other than Ar. O. attending at daycare, the evidence does not establish that the parties took steps to cultivate deeper relationships for the children in Singapore or Ontario, outside of daycare.

[145] At the time of the removal, An. O. was not having parenting time with the Applicant and Ar. O.’s parenting time with the Applicant was limited and fleeting. The limited and fleeting nature of this parenting time was not the result of the removal or the circumstances around the removal.

[146] Using the analysis set out in Balev, I conclude that the focal point of Ar. O.’s life before and during the trip to Singapore was his parents’ lives and experiences and once An. O. was born, An. O. then became a significant part of Ar. O.’s life as well.

[147] At the time of the removal, the Applicant was not actively involved with the children and by that time, the children’s world revolved primarily around their mother, and each other.

[148] The focal point of An. O.’s life during her time in Singapore was anchored by the lives of her mother and her brother, Ar. O.. An. O. had little interaction with the Applicant before the removal and she had no other connections in Singapore given her very young age.

[149] In addition to the above factors, the evidence shows that it was the intention of the parties to build their lives in Canada, to reside in Canada and to raise their children here. There was no agreement to relocate and remain in Singapore and there was no corroborating evidence to demonstrate the Applicant’s alternative narrative.

[150] The parties’ intentions were demonstrated by the Permanent Resident status for themselves and Ar. O. in Canada, the Respondent completing her training to be a nurse in Ontario, the Respondent having a full time stable job waiting for her in Canada, and the fact that the parties put many large items in storage.

[151] I am also satisfied that the only reason Ar. O. and An. O. were present (and born) in Singapore, was for the sole purpose of the Respondent being able to access the support of her family during and after their births. Once this condition of the trip had been satisfied, the parties and the children were to return to Canada. There was no evidence to suggest that there was ever a plan to remain in Singapore with the children.

[152] Furthermore, the Applicant had limited contact with An. O. prior to her removal, he had no established relationship with her. Even if the Applicant’s story could be believed; that the plan to return to Canada was either “fluid” or “non-existent,” he had been well aware of the Respondent’s intention and plan to follow through with the to return to Canada with the children since at least March 2024. He did not take any steps, until mid-June 2024, to see the children regularly.

[153] For all of these reasons I find that the children were habitually resident in Canada at the time of their removal from Singapore and, accordingly, the Hague Convention does not apply.

[154] If I am incorrect in this finding, I find that the Applicant was not exercising parenting time with the children before their departure from Singapore and that the criminal charges laid against him did not prevent him from pursuing such parenting time with the children. As such, the second part of the test would not be met, and the Hague Convention does not apply.

Hague Convention - Article 13

[155] If the Hague Convention does not apply to Ar. O., but it does apply to An. O. because she had never been to Canada before her removal, I would not have returned her pursuant to Article 13.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

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.

[156] An. O. is a very young infant who has always been cared for by her mother. The Respondent is her primary caregiver.

[157] The Respondent put roots down in Canada before leaving to give birth to An. O.. The Respondent has a job here and a parenting plan that includes the support of her friends and the Singaporean immigrant community.

[158] An. O. has only known a world that includes her mother and her brother, Ar. O.. Removing An. O. from her world and sending her to Singapore to be cared for by the Applicant, who is a stranger to her, would be to place An. O. in an intolerable position.

Attornment

[159] The Court agrees with the Respondent that the technical attornment of parties to one jurisdiction or another does not factor into the analysis of habitual residence pursuant to the Hague Convention.

[160] The Respondent had no choice but to file responding material in the Singaporean proceeding and to seek relief.

[161] The Court agrees that parties to a proceeding can consent to litigating in a specific jurisdiction, where there are evidentiary and factual connections to that jurisdiction, and where competing jurisdictions are at issue in a case. However, this is quite different from the Applicant’s position. The Applicant is seeking to impose jurisdiction to the Singaporean Court in an Application under the Hague Convention and to connect that issue with the children’s habitual residence.

[162] While the hybrid approach is not limited to specific factors, and it can consider a wide range of issues involving children, the Court is of the view that it would turn the Hague Convention on its head to suggest that jurisdiction could be determined by the party who brings a matter to Court the fastest, and effectively forces the other party to attorn because the issues at stake are of utmost importance.

[163] Further, attornment in such circumstances should not be included as a factor in the hybrid approach because it is not related to the lives and circumstances of the children, which is the primary focus of this analysis.

[164] Further, to include a “forced” attornment as a factor in the hybrid approach would have the untenable result of usurping the Court’s role in determining habitual residence by favouring the party who filed documents in their local Court the fastest, which has no relevance to the circumstances of the children’s lives.

[165] Attornment is a technically legal issue that does not impact on the children’s acclimatation or connection with the Singaporean jurisdiction.

Admissibility of Electronic Messages Between Third Party and the Respondent

[166] The Applicant sought to rely on photographs he took of electronic messages from the Respondent’s phone. The messages were between the Respondent and a third party, Nix.

[167] Some of the messages were filed in the Applicant’s original Affidavit and some came in reply. The reply messages were not a proper reply and are inadmissible.

[168] The Applicant put forward the messages as proof that the Respondent was having an affair and that the messages were exchanged around the time that the parties’ separated. It was unclear to the Court how the messages were relevant to the issues before me.

[169] This Court is not determining the outcome of custody litigation.

[170] While I did not refer to it above, both parties filed evidence that did not relate to the issues before the Court. Both parties attempted to besmirch each other’s reputation. None of that particular evidence related to the children’s connections with their community.

[171] With the messages filed by the Applicant, however, he has taken things too far. The messages are composed of private communication between two people in a discussion that did not include the Applicant. There is no doubt that the Applicant obtained the messages surreptitiously, as it would not make any sense for the Respondent to share them with him.

[172] The Applicant attempted to point to some of the messages as proof that the Respondent knew that she required the Applicant’s consent to travel with the children. The Respondent is not a lawyer. She is a nurse. There is no evidence before the Court to establish that the Respondent understood the nuances of the Hague Convention and that she was relaying that understanding to a third party.

[173] The Respondent did not admit in any of the messages that the children were habitually resident in Singapore as per the Hague Convention.

[174] Not only was it wholly inappropriate for the Applicant to look at the messages, it was beyond reproach that he chose to file some of those messages with the Court. The Respondent and the third party had a reasonable expectation of privacy. As such, the messages are inadmissible as they were illegally obtained and irrelevant to the issues before the Court. Furthermore, the Court must discourage this type of surreptitious behaviour, particularly in family law.

Order

There shall be a final Order as follows:

1. The Hague Application brought by the Applicant is dismissed.

2. The Ontario Court has jurisdiction to hear the merits of the parenting issues regarding the children, namely, Ar. O. and An. O., as they are habitually resident in Canada.

Costs

3. If the parties are unable to reach an agreement on the issue of costs, the Court invites written submissions on the issue, as follows:

(a) The Respondent may file written submissions not exceeding 3 pages within 15 days of the release of this decision.

(b) The Applicant may file written submissions not exceeding 3 pages within 25 days of the release of this decision.

4. Submissions shall be double spaced, using 12 point font.

5. The page limits do not include Offers to Settle or Bills of Costs, which should be attached.

6. Cost submissions shall be sent to my Judicial Assistant by email at nurit.suzana@ontario.ca and uploaded to Case Centre.

7. If costs submissions are not received in accordance with the above timelines, no costs shall be payable to the applicable party.

The Honourable Justice A.M. Daurio Date: October 31, 2024