Court File and Parties
Court File No.: FS-23-39153 Date: 2024-01-29 Ontario Superior Court of Justice
Between: Keith Bernard Thomas, Applicant And: Fernanda Thomas, Respondent
Counsel: Maneesha Mehra, for the Applicant A. Sam Zasclavsky, for the Respondent
Heard: January 15, 2024
Before: Vella J.
Reasons for Decision – Hague Convention Application
Introduction
1The Applicant Father brings a motion for the return of his son, Isaiah (sometimes referred to as the “Child”), to the Father’s residence in Balch Springs, Texas, U.S.A., pursuant to Article 12 of the Convention of the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”) or alternatively, pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). The Father asserts that Balch Springs is the Child’s habitual residence, the Respondent Mother wrongfully removed the Child from Texas on June 5, 2023, and she has been wrongfully retaining the Child in Toronto.
2The Mother relies on the exceptions under Article 13 of the Hague Convention that the Father subsequently acquiesced to the Child’s removal and/or retention in Ontario or alternatively to return the Child would pose a grave risk of harm or otherwise would place him in an intolerable situation.
Procedural Background
3The Father commenced an application for the return of the Child pursuant to the Hague Convention in or around mid November 2023
4The Father filed an urgent without notice motion under the Hague Convention on or about November 13, 2023, prior to filing the Application, to schedule an expedited hearing of this Application.
5The matter initially came before Justice Shore on November 15, 2023. At this point, the Father had yet to serve the Application on the Mother. Justice Shore ordered, on a without notice basis, that the parties attend a brief case conference, during To Be Spoken To (“TBST”) Court on November 27, 2023. Her Honour issued an interim order, inter alia, that until the Application has been determined, the Child shall remain in Ontario.
6At TBST court, with both parties and their lawyers in attendance, Justice Shore scheduled the hearing of this matter for today, for one half day, in person. The Father was permitted to attend by virtual appearance. The Mother was directed to withdraw her application, which had been filed in the Ontario Court of Justice so the matter could proceed in this court.
7On November 22, 2023, the Mother filed her Answer, denying the Father’s claims and asserting her own claims for (table) child support and decision-making authority over the child under the Divorce Act, R.S.C., 1985, c. 3, Family Law Act, R.S.O. 1990, c. F.3, and the CLRA.
Hearing Process
8Rule 37.2(2) of the Family Law Rules, O. Reg. 114/99, provides that the rules for Hague applications are to be interpreted with a view to providing “the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.” Rule 37.2(3) requires that these types of cases be disposed of within “six weeks after the case is commenced if Article 11 of the Hague Convention applies.”
9The hearing was to proceed by way of affidavit evidence.
10The Father submitted his own personal affidavit and reply affidavit, together with affidavits from two lawyers tendered as expert witnesses in American law to give opinion evidence concerning, inter alia, the jurisdiction of the Texas court and the best interests of the child test applied in family law jurisprudence, and immigration law, respectively. The Mother submitted her own personal responding affidavit and sur-reply affidavit. She did not file any affidavits from other witnesses.
11In light of the conflict in the respective parties’ affidavits on key factual issues, the need to assess credibility, and the need to resolve this matter expeditiously, cross-examinations on the parties’ respective affidavits were conducted through viva voce testimony at the hearing. Both parties consented to this procedure. The Mother did not request to cross examine the two tendered expert witnesses. This process allowed me to assess the credibility of the two parties and make the requisite findings of fact without delaying the matter to permit cross-examinations prior to the hearing: Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), at para. 59. [1]
12I cautioned the parties that the exhibits attached to their personal affidavits were not automatically entered into evidence, nor were all the paragraphs of their respective affidavits for that matter, and that I would hear any objections relating to the admissibility of the affidavits and exhibits, including the videotaped and audio recordings that were attached by hyperlinks to a Dropbox account (as permitted by Justice Shore).
13The Mother did not challenge the qualifications or admissibility of the Father’s two expert lawyer affidavits. She did not adduce any evidence to challenge their respective opinions.
Issues
14The issues to be determined are the following:
(a) Where was the Child habitually resident prior to his removal to Ontario? (b) Did the Father consent to the Child’s removal to, and/or retention in, Ontario by his Mother? (c) Did the Father acquiesce to the Child’s removal to, and/or retention in, Ontario? (d) Would the return of the Child to Texas result in grave risk of harm or otherwise place him in an intolerable position? (e) Does the CLRA offer an alternative analysis to the Hague Convention where both countries are signatories to the Convention?
Result
15The Application is dismissed:
(a) The Child was habitually resident in Texas prior to his removal to Ontario. (b) The Father did not initially consent to the removal of the Child prior to his move to Ontario. (c) The Father, through his conduct and words, acted in a way that was inconsistent with the summary return of the Child to Texas. He subsequently unequivocally acquiesced to the Child’s removal to and retention in Ontario. (d) The Mother did not prove that the return of the Child to Texas would result in a grave risk that he would be placed in harm or would otherwise place him in an intolerable position within the meaning of the Hague Convention. (e) The CLRA does not offer an alternative analysis to the Hague Convention, as Canada and the United States of America are signatories to the Hague Convention. The Hague Convention provides a complete code for the resolution of this matter.
Undisputed Facts
16The Father is 31 years old. He is a U.S. citizen and resides in Balch Springs, Texas. He was born and raised in Texas and is employed as a Biomedical Equipment Technician at Baylor University Medical Centre. He earns approximately $56,000 U.S.D. per year.
17The Mother is 31 years old. She is a Canadian citizen and resides in Toronto at her father’s residence. She is currently unemployed.
18The parties met online in 2019 through the Mother’s sister, Juliana, and the Father’s best friend, Brandon.
19The parties were married at the North York Civic Center in Ontario on February 22, 2020. After their marriage, the Father returned to Texas and the Mother stayed in Ontario.
20The Mother visited the Father in Texas in July 2020, and she became pregnant with Isaiah.
21The Father returned to Ontario, and they lived together in Ontario from September 2020 to November 2020. However, this living arrangement did not work out, and the parties decided to go to Texas and build a life together. The Father returned to Texas in or around December 2020 and the Mother remained in Ontario until July 29, 2021.
22Isaiah was born on March 28, 2021 in Toronto. Isaiah has dual Canadian and American citizenship.
23The Mother and Isaiah returned to Texas in July 2021 where they joined the Father.
24The Father was gainfully employed in Texas (and still is). The parties applied for the Mother’s application for Alien Relative, her permanent residence status, and employment authorization so she could work in Texas.
25The parties’ marriage soon began to face challenges, and marital discord ensued.
26However, both parties were involved in parenting Isaiah.
27In May 2023, the Mother’s mother (the “Maternal Grandmother”) visited the family in Texas for one month. By this time, the Maternal Grandmother and Father did not get along. Meanwhile, the marital discord between the Mother and Father grew.
28On June 3, 2023, the Maternal Grandmother returned to Ontario. The Maternal Grandparents purchased a plane ticket for the Mother and Isaiah to come to Ontario.
29The Mother returned to Ontario with Isaiah on June 5, 2023, without notifying the Father of her intentions.
30Upon arriving in Toronto, the Mother texted the Father and advised him that she had returned to Ontario with their Child and that she planned to live here with Isaiah.
31The Father’s counsel presently has Isaiah’s U.S. and Canadian passports, and his birth certificate, pursuant to Justice Shore’s order dated November 15, 2023.
Framework for the Analysis
The Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35
32The Hague Convention operates as a complete code for resolving what court will have jurisdiction over allegations of international child abduction in the family /civil law context, along with the appropriate remedy, when the dispute transcends signatory countries. Its main purpose is to provide an expeditious process for returning a child who was wrongfully taken or retained by the removing parent back to the place where the child is habitually resident.
33Therefore, the first issue is whether the Hague Convention governs this jurisdiction dispute.
34Both Canada and the United States are signatories to the Hague Convention.
35The Hague Convention has been incorporated into the law of Ontario through s. 46(2) of the CLRA since the Convention became effective in 1983.
36Article 3 provides, in material part, that the removal or retention of a child is considered “wrongful” where it is in breach of rights of custody attributed to a person under the law of the State in which the child was “habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The Article also states that these rights of custody may arise by operation of law.
37Article 12 of the Convention states that where a child has been wrongfully removed or retained from their habitual residence, the court “shall order the return of the child forthwith.”
38However, exceptions to the mandatory requirement of Article 12 is provided in Article 13. The Mother relies on these exceptions. Article 13 states:
Despite 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…which opposed its return establishes that:
(a) the person…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.
Issue 1: Where is the Child’s Habitual Residence?
39As a preliminary matter, both Canada and United States of America are signatories to the Hague Convention. No one disputes the applicability of the Hague Convention to this application.
40The first stage is to determine the Child’s habitual residence just before the impugned removal and whether the person who is objecting to the removal was exercising custodial rights. The burden is on the Father as the objecting parent.
41There is no doubt that the Child’s habitual residence was Texas and that the Father was exercising joint parental, custodial rights at the time of the impugned removal. The Child had lived continuously in Texas since July 2021 and immediately prior to the Mother and Isaiah’s relocation to Ontario. The family lived in Texas together until the impugned removal, and they had formed a settled intention to stay in Texas at that time: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 36. For example, the parties had applied for the requisite immigration permissions and documents to allow the Mother to work and live in the United States, and they were living together in an apartment for nearly two years. They applied for and received an American passport for Isaiah. Until Isaiah’s removal, both parents were exercising “the ordinary care and control over their child”: Thomson v. Thomson, [1994] 3 S.C.R. 551 at p. 580. The Mother did not contest these facts at the hearing.
Issue 2: Does one of the Article 13 Exceptions Apply?
42The second stage is to determine whether one of the two exceptions under Article 13 is established.
43The burden of proof shifts to the relocating parent to establish that one of the exceptions under the Convention applies on a balance of probabilities. In Katsigiannis, the Court of Appeal stipulated that this burden of proof must be discharged on the basis of “clear and cogent evidence”: at paras. 43 and 49. However, this standard does not alter the civil standard of balance of probabilities.
44Consent must be clear, informed, and voluntary. It is clear that the Father did not consent to Isaiah’s relocation to Ontario. The Father had no prior notice of the Mother’s intention to remove Isaiah from Texas and relocate to Ontario. The Father was not informed of the Mother’s intention until after she had landed in Toronto with Isaiah and sent him a text message. The Father did not reply that he was consenting to this removal, and there is no evidence that the Father explicitly consented to the relocation after he found out what had happened.
45The question for this motion is really whether the Father subsequently acquiesced to Isaiah’s relocation to Ontario, and, if he did not, whether returning Isaiah would put the Child at grave risk of harm or otherwise place him in an intolerable situation.
Article 13(a): Did the Father Subsequently Acquiesce to Isaiah’s Relocation to Ontario?
46Acquiescence, within the context of Hague Convention, has been characterized as “deemed consent” and must be inferred by the conduct, actions, words, inaction, and silence of the objecting parent, including the content of any communications that occurred with the parent who removed the child: Katsigiannis, at paras. 46-49.
47Of particular note, in Katsigiannis, at para. 49, the Court of Appeal confirmed that the acquiescence test is subjective and from the perspective of the objecting parent. The relocating parent “must show some conduct of the [objecting parent] which is inconsistent with the summary return of the [child] to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence.”
48The Mother submits that the Father’s conduct, words, inaction, and silence for over more than four months in the face of her advice that she was not returning to Texas with Isaiah or to the marriage demonstrates his unequivocal acquiescence to Isaiah’s relocation. The Father denies this allegation and points to his conduct and actions in support of his position, as well as unspecified telephone conversations he alleges to have had with the Mother discussing the return of the Child.
49I must make a finding of credibility given the diametrically opposed evidence and positions of the parties. I had the benefit of observing the parents under cross-examination and their resulting viva voce testimony. In addition, I have the benefit of numerous text messages between the parties after the relocation occurred, expert evidence, and the timing of the various court proceedings. While the court must particularly scrutinize text messages as they may be taken out of context or altered, in this matter both parties relied on text messages and certain recordings in support of their respective positions. The Father initially challenged the authenticity of certain text messages that the Mother’s lawyer had added underlining for emphasis, but the Mother re-submitted the text messages without the underlining in advance of the motion, and the Father did not pursue this objection. Furthermore, the Father had the opportunity to adduce further text messages in his Reply affidavit if he was concerned about context, but did not. I accept the text messages as being an accurate representation of the communication reflected in them.
50I did not have the benefit of any affidavit evidence from third parties who may have shed light on this issue, such as the Mother’s sisters or mother, or the Father’s best friend, Brandon (who is married to Juliana, one of the Mother’s sisters, and also resides in Texas nearby the place of cohabitation), and own parents (who are also residents of Texas and lived nearby the family’s residence). This might be explained by the relative expeditious timing of these hearings. However, I observe that the parties had time to prepare reply and sur-reply affidavits, and the Father had time to adduce affidavits from two expert (American) witnesses.
Review and analysis of the Evidence
51First, I will start with the documentary evidence.
52By way of chronology, the starting point is the date that Isaiah was taken to Ontario by his Mother without notice to the Father: June 5, 2023.
53In a text message dated June 5, 2023, the Mother advises the Father that she has taken Isaiah to her father’s house. This is the residence that they stayed together at the outset of the marriage.
54In this text, the Mother makes it clear that she is leaving the marriage, has returned to Ontario and that Isaiah will stay with her:
…But since you no longer want to put any effort into this marriage, let alone be with me at all, then it’s only right that I go back to where I came from. Just landed. For obvious reasons I cannot leave Isaiah behind & wanted to re-state that I will NEVER keep Isaiah from seeing you…
She also states in this text, “there is no point in finishing my paperwork”, meaning the immigration papers required for her to work in the United States and obtain her permanent residence there.
55The parties were engaged in frequent text messages after the Child’s relocation. Nowhere in the text messages produced by either party does the Father explicitly protest the Mother’s relocation to Ontario with Isaiah, nor does he demand that Isaiah be returned to Texas.
56On June 21, 2023, the Father replies in a text message to the Mother “Just Come home”. Much was made by each party who took diametrically opposed views of this text exchange. The Father submitted that the message voiced his opposition to Isaiah remaining in Ontario. The Mother submitted that it was part of the Father’s attempt at reconciling the marriage which she promptly rejected.
57The text message conversation is as follows:
Father: “Where you want all this stuff to go” (meaning the things the Mother left behind in Texas). Mother: “What stuff” Father: “Everything. I’m looking at moving” Mother: “Sorry trying to feed Isaiah at the same time. Where to? You can keep the mattress and TV. If you can just ship the rest of my personal belonging, I’d greatly appreciate that. (I don’t care about the skincare, fridge, you can keep the skincare products of [sic] you see yourself using it): It’s not much stuff though anyways..” Father: “My last words” Mother: “Yes and I asked where to? You’re not being specific enough if that’s what you’re referring to” “As ‘last words’ meaning your previous message to me?” Father: “Just come home” Mother: “I am home. I’m where my presence is actually wanted, valued and appreciated…” Father: “Alright. This is the last time you’ll hear from me. Isaiah is counting on you. Goodbye.”
58The Mother then responds with a long text message which starts: “What you mean the last time I’ll hear from you? We will always be a family unit. No matter what is going on with us it doesn’t change the fact that we will both forever be Isaiah’s parents and be his family. We obviously need to communicate to be able to co-parent effectively…”
59Notwithstanding the Father’s comment, the parties do have follow-up text messages in which the parents are speaking about Isaiah, such as the Father’s advice on June 23, 2023 that Isaiah needs a dentist appointment and an optometrist appointment. The Mother subsequently advised that she will obtain Isaiah’s temporary health card on the Monday following June 23.
60On July 20, 2023, the Mother asked the Father by text how much income he made in 2022. This was so she can apply for the Canada Child Benefit for Isaiah. The Father responds, “I don’t know”. The Mother follows up twice on July 23, 2023 because she did not hear back from the Father. The Father does not provide the information.
61The parties had a videocall on July 24, 2023. The Father surreptitiously recorded this call (as he acknowledged in cross-examination). In his affidavit, he deposed that during the course of this call, “I made it clear that I am objecting to Isaiah being removed from Texas by Fernanda”. I have viewed the recorded videocall. The Father does not mention that he objected to Isaiah being removed other than to say that he did not “co-sign” without elaborating [2]. Rather, the Father responded to the Mother reminding him that he has not paid any child support by saying that she took Isaiah knowing that she could not look after him; she did not discuss removing Isaiah and now that she has the “audacity” to ask for help and “that’s sad”. He does not demand or ask that she return Isaiah.
62In August 2023, the Father commenced a Petition in Texas seeking a divorce and ancillary relief. The Petition does not include a request that Isaiah be returned to Texas nor does it appear to make a request that he be granted custody. The Petition requests that the Father and Mother be granted joint conservatorship over Isaiah and that the Father be vested with authority to determine Isaiah’s primary residence, without regard to geographical location. However, he did not serve the Mother, nor advise her of this Petition, despite acknowledging that he knew where she was living and was in contact with her through text messages on a regular basis.
63On an undisclosed date, the Mother commenced an application before the Ontario Court of Justice, although it was commenced before the present application. That application was withdrawn on consent so that the proceeding would occur before the Superior Court of Justice in Toronto.
64On October 13, 2023, the Father texted the Mother: “I’m coming to get Isaiah in December. It’s my time to have him”. The Mother replied on the same day: “I will NEVER stop you from seeing your son…I have already started going through a lawyer to work out the divorce & custody agreement so until a judge tells us exactly what the custody agreement will be, you cannot take him to the U.S. But until we see the judge, you are more than welcome to have as many supervised visits with him as you want!” and “& whenever you want”. The Father then “likes” this message.
65On October 19, 2023, the Father texts, “I’m on the way”. The Mother asks, “What do you mean” and says Isaiah is busy outside and she does not want to get the phone. There is no response from the Father that day.
66On October 20, 2023, the Father texts, “I already spoke to the York Police Department they know” and the Mother responds, “I been spoke to them so…bye”. Then the Father texts: “Title 18 Section 1204” and “Federal offense I’ve notified the police here.” “Any further attempts to keep Isaiah from me will be consequences for all”. According to the Mother, this was the first time the Father has taken the position that he intended for Isaiah to be raised in the U.S.
67According to a Toronto Police Record, and confirmed by the viva voce testimony of both parties, the Father showed up at the Mother’s residence unannounced on November 4, 2023 at 20:22 p.m. He contacted the police, as he anticipated he would not be welcomed by the Mother. He is reported to have advised the police that he had not seen his son in five months, there was no custody paperwork in place, he “just wants to be in his [son’s] life”, and he wants to spend time with his son in Toronto. He is reported to have said that after the marital relationship started to deteriorate, the Mother and Isaiah moved back to Toronto on June 5, 2023 without telling him. According to the record, the Mother agreed to the visit that evening so long as it was in her presence, and the visit proceeded. There is no indication in this police record that the Father reported that the Child had been kidnapped or abducted, or that he was seeking to take him back to Texas, other than saying that the Mother took Isaiah without telling him. No objection was made with respect to this report, and I accept it as an accurate account of what occurred that evening and what the Father told the police officers.
68As already stated, in or around mid November 2023, the Father commenced this application. He brought an urgent motion for parenting time with Isaiah and for an order that Isaiah not be removed from Ontario pending the hearing of his Hague application. On November 15, 2023, Justice Shore granted a non-removal order, directed that Isaiah’s travel documents be held by the Father’s lawyer, and scheduled videocalls with Isaiah and in-person visits for the Father should he come to Toronto to visit. Parenthetically, the Father deposed that the Mother initiated and facilitated almost daily video calls with Isaiah from the date of relocation.
The affidavit evidence and cross-examinations of the parties
69In the Fathers’ affidavit and reply affidavit, he states that he neither consented or acquiesced to Isaiah’s removal and retention in Ontario. He also deposes that the Mother has an alcohol issue. However, there is no corroborative or confirmatory evidence of alcohol abuse or addiction.
70In her responding affidavit and sur-reply affidavit, the Mother states that the Father acquiesced to Isaiah’s move to Ontario, and it is “only recently” that he has taken the position that Isaiah was abducted from Texas. The Mother alleges domestic violence in the form of financial abuse and controlling and threatening behaviour. However, there is no corroborative or confirmatory evidence that the Mother has been the victim of domestic violence. For example, in her affidavit, the Mother indicated that the Maternal Grandmother had witnessed incidents of domestic violence; however, no affidavit from the Maternal Grandmother was tendered.
71I had the benefit of viva voce evidence from the parties, who were each cross-examined in court.
72In assessing the credibility and reliability of each witness’s evidence, I can accept all, none, or some of the witness’s testimony.
73In this case, the surrounding contemporaneous text messages and timing of court proceedings were of particular value in determining the Father’s subjective intention. In addition, as reviewed, the Father produced an approximately three minute, admittedly surreptitiously videorecorded, video call that occurred on July 24, 2023. The contents of this call are very telling.
74Neither party was particularly compelling. They each had inconsistencies in their evidence, which were exposed in cross-examination.
75The burden of proof is on the Mother to persuade the court that the Father unequivocally acquiesced to the Child’s removal on the basis of clear and cogent evidence. In my view, she has discharged this burden on the basis of clear and cogent evidence.
76The parties were engaged in almost daily texting about Isaiah. Both parties admit this. However, the Father admitted that nowhere in writing did he explicitly state that he did not consent to Isaiah’s removal. Nowhere in writing did he demand that the Mother return Isaiah to Texas.
77Rather, the Father testified that he voiced his objection and lack of consent in the course of telephone calls. However, he does not provide any examples of these alleged telephone calls in his affidavits. Rather, he makes two isolated references, saying in response to the Mother’s allegations that he did not “threaten” to take Isaiah back to the United States but rather, “I was asserting my rights as a parent with respect to her abduction of our son”. In the second reference to the removal of Isaiah at the end of his affidavit, he deposes, “I have repeatedly objected and requested Isaiah’s return to Texas which Fernanda has mischaracterised as “threats”. These are bald allegations.
78He deposed that his conversations and texts with the Mother were more focussed on reconciling the marriage.
79As indicated, the Father also went to the effort of setting up his camera on a tripod and video calling the Mother with the purpose of recording it without her knowledge. He relies on this videocall to support his case. Even though he planned this call, not once during the approximately three-minute call does he demand that the Mother bring Isaiah back to Texas or address the issue of his alleged lack of consent and/or acquiescence to Isaiah remaining in Ontario aside from saying that he did not “co-sign”. To the contrary, having listened to this call in its entirety, the Father can be heard telling the Mother that it is essentially her fault that she has Isaiah on her own with no means to support Isaiah. He states that she has the “audacity” to ask him for help when she took Isaiah to Ontario and that Isaiah is essentially her responsibility. In the call, the Mother put to the Father that he does not ask about Isaiah and has not provided any financial support.
80This call supports the Mother’s position that the Father was not interested in reclaiming Isaiah. The Father was focussed on the financial aspects of caring for Isaiah, which he was not volunteering to do, and blaming the Mother for finding herself in this predicament of having to be solely responsible for Isaiah in Ontario. He has paid no child support for Isaiah. Disturbingly, the Father continued to berate the Mother even when Isaiah appeared on the screen, and the Mother continued in an angry tone with the Father.
81The content of this call is consistent with the text messages adduced into evidence. [3] For example, in the text exchange of June 21, 2023, the Father asks the Mother where she wants her belongings sent, as he was considering moving. He explained in testimony that his lease was up. Although he tells the Mother to “Just come home”, he did not say that regardless of his desire for her to come home, he wants Isaiah back home. The Mother responded by providing a long explanation for why she will not come home (stating the Father did not want to be a husband anymore). The Father responded, “Alright, this is the last time you’ll hear from me. Isaiah is counting on you. Good bye.” The Father explained that he was not consenting to Isaiah’s removal; rather, he was just emotional and called the Mother later. Again, there is no evidence of the contents of this alleged subsequent telephone call.
82Under cross examination, the Father admitted that the Mother never told him she would come back to Texas to resume a marital relationship. There is no suggestion in the evidence that the Mother ever indicated she would return Isaiah to Texas and indeed the evidence is just the opposite.
83On June 23, 2023, the Father texted the Mother to remind her that Isaiah needs a dentist appointment and has an upcoming doctor’s appointment. He did not take this opportunity to demand that the Mother bring Isaiah home. The Mother advised that she is aware and will deal with it in Ontario and was in fact applying for a temporary health card for Isaiah.
84On July 11, 2023, the Mother asked the Father to send over Isaiah’s medial records so she can get him a doctor in Ontario, as Isaiah has dual citizenship. The Father did not actively assist, but he did not actively resist or attempt to stop the release of the medical records. The Father submitted that his Florida lawyer told him not to stop the records from being released; however, this explanation is not in his affidavit.
85On October 13, 2023, the Father sent a text saying that he is going to Ontario in December “because it is my time to have him”. When it was suggested in cross examination that he was looking to exercise some parenting time in Ontario, the Father responded that his text was being misinterpreted. When confronted with the Mother’s text replying that she would not stop him from seeing Isaiah but that she would not let Isaiah go to Texas without a court parenting order, the Father confirmed that he responded with a “like” emoji. However, he denied that it was meant to reflect that he approved of her comment regarding the need for a parenting order. He did not offer explanation of what he did mean, and he acknowledged that this would have been an opportunity to say that the Mother would not be keeping Isaiah in Ontario and/or would have to return Isaiah to Texas.
86The Father submitted that he did not express to the Mother that she had abducted or kidnapped Isaiah because he thought that this would be counterproductive to his efforts to reconcile. This is understandable. However, he also testified that he told the Mother he did not consent to the removal during unspecified telephone conversations, and therefore did not see that as an obstacle to reconciliation. There is no reason then why he would not have put his lack of consent into one of the frequent texts he sent to the Mother over the course of about five months of texting. He also admitted that the Mother never suggested that she might return to Texas. To the contrary, the Mother maintained that she was finished with the marital relationship, and was staying in Ontario, as her home, with Isaiah as of June 5, 2023 and in subsequent text messages.
87The Father also confirmed that while he started a divorce petition in Texas in August 2023, in which he asked for the right to decide the primary residence of Isaiah without regard to geographic location, he did not serve the application on the Mother, notwithstanding the fact that he knew where she was living. Indeed, the Mother was living at her father’s residence, which is where they had lived at the beginning of their marriage. The Father admitted he still has a key to that residence. The Father stated in cross-examination that there had been attempts to serve the Texas Petition, but no affidavit of attempted service was filed. He also acknowledged that he did not notify her of the Petition even though they were in frequent contact. The Mother did not know of this Petition until recently. The Father also could not explain why there was no request in his Texas Petition to have Isaiah returned to Texas by way of a “chasing order”, or order directing the Child’s return.
88Instead, the Father acknowledged sending a text on October 23, 2023 inviting the Mother to have her lawyer serve him with Ontario court materials by email. Under cross-examination, the Father denied that he intended to attorn to the legal proceedings in Ontario. Rather, he testified that he “was just calling her bluff because I didn’t think she had a lawyer yet”, or words to that effect.
89The Father texted the Mother to advise that he would be coming to Ontario in December 2023 to see Isaiah. The Mother agreed. However, inexplicably, the Father showed up at the Mother’s residence on Saturday, November 4, 2023. In advance, he called the police to meet him at the father’s house, as he anticipated trouble and believed the Mother to be intoxicated. The police arrived at the house, but there is no indication that the police were concerned that the Mother might be intoxicated or that the Mother put up any resistance to the unexpected visit. The Police recorded that the Father advised them there was a custody dispute. The Father admitted that he livestreamed this event; however, this was not adduced into evidence. He admitted spending some time with Isaiah on this occasion.
90The Father agreed under cross-examination that there were no text messages since June 2023 in which the Mother suggests she will ever go back to Texas.
91The totality of the text messages and the surreptitiously videotaped call by the Father paint a picture of the Father not voicing any explicit objection to Isaiah remaining in Ontario, demanding that Isaiah be returned, or articulating that he did not consent to Isaiah remaining in Ontario until, at the earliest, his text message of October 20, 2023. Rather, they are focussed on the Father blaming the Mother for putting herself in a financially challenging predicament with Isaiah by returning to Ontario and berating her for not thinking this decision through. The tenor of his messages is “you made your bed, now you lie in it”. There is no offer of financial assistance for Isaiah or any other gesture of support for Isaiah other than showing up at the paternal grandfather’s doorstep unannounced in November 2023.
92The fact that the Father started a Petition for Divorce in Texas in August 2023 is problematic to the Father’s position that this was clear notice of his intention to have Isaiah returned, as he did not notify the Mother that he had done this until recently (in or around November 17, 2023). As of the date of his affidavit, he had not yet served the Mother with the Petition even though he has known all along where she and Isaiah are staying. Accordingly, he cannot rely on this step as demonstrating that he was demanding a summary return of Isaiah. Furthermore, while he requests the court to “designate him the conservator who has the exclusive right to determine the primary residence of the child without regard to geographic location”, he does not specifically request that Texas be designated the Isaiah’s primary residence. He also requests that he and the Mother be designated “temporary joint managing conservators of the child”. He does not request that Isaiah be returned to Texas nor does he seek a chasing order. The expert evidence of Natalie Webb did not address the contents of the Petition.
93I accept the unchallenged opinion evidence of Diana McFarland (and find her qualified to give this opinion) that the Mother will be able to travel to the United States pending a determination of her application for permanent residence, and that she can use her Employment Authorization Card to travel back and forth. I further accept her opinion that the Mother’s application for permanent residence may not be denied solely because the marriage is no longer viable and the parties are no longer living together, though it appears to be a consideration in the U.S. immigration’s exercise of discretion as to whether to approve it. Furthermore, I accept that the Mother would be able to travel to the U.S. as a Canadian citizen, on the same grounds as available to other Canadians, in the event that her permanent residence is not granted.
94I also accept the unchallenged opinion evidence of Natalie Webb (and find her qualified to give this opinion) that in Texas, the courts will make parenting determinations based on the best interests of the child and could assume jurisdiction under certain circumstances.
Conclusion – The Father Subsequently Acquiesced
95Applying the standard of clear and cogent evidence, I find on the balance of probabilities that the Father subsequently unequivocally acquiesced to the removal and retention of Isaiah in Ontario. Through his subsequent actions and inactions, the Father subsequently implicitly consented to the removal and retention of Isaiah once the Mother notified him of this event on the same day the removal took place.
96The surrounding circumstances are consistent with the Mother’s understanding that the Father was not demanding a summary return of Isaiah to Texas. They are inconsistent with the Father’s contention that he never agreed to Isaiah remaining in Ontario but always intended for Isaiah to be returned to Texas.
97Those surrounding circumstances are revealed in the parties’ text messages sent between the date of removal and the date of this motion, as well as the video call surreptitiously recorded by the Father within the context of the Father’s and Mother’s affidavits and testimony under cross examination and re-examination. They are in harmony with the Mother’s version of events and not the Father’s.
98Contrary to the Father’s position, his conduct and actions demonstrate that he was fully engaged in dialogue with the Mother over her decision to leave Texas with Isaiah, but his focus was on his view that her decision was thoughtless, and Isaiah was now her responsibility. The fact that he has sent no child support whatsoever for Isaiah is consistent with this narrative. The fact that he did not demand in writing that the Mother return Isaiah to Texas and that he never consented to his removal when he texted the Mother about other matters affecting Isaiah further supports this finding. As stated, his isolated comment of “Just come home” is more consistent with a plea for reconciliation than a demand that Isaiah be returned to Texas irrespective of any potential reconciliation. His text of October 23, 2023, nearly five months after Isaiah’s removal, infers that he is not consenting and wants Isaiah returned. However, the Mother’s texts reveal in some detail that she had and has no intention of reconciling or returning to Texas from the outset. This brings into stark contrast the Father’s lack of a demand for Isaiah’s return, including during the course of a planned, surreptitious recording which was done after the Petition was issued by a Texas court and when the Father was represented by legal counsel.
99The Father’s version of events as to his intention was not credible, based on his own internal contradictions during viva voce evidence, and the documentary evidence. For example, under cross-examination, he stated that he retrieved his gun before he was holding Isaiah, and this was for his and Isaiah’s protection. However, in re-examination, he testified that he took Isaiah into the bedroom, was standing in his closet, and “grabbed” his firearm “off the shelf” because the Mother said that “something bad would happen”. It is also not credible that the Father would engage in frequent, ongoing text messages with the Mother concerning Isaiah but only relay his alleged non-consent to Isaiah’s removal to Ontario during the course of undocumented and unspecified telephone calls.
100On the other hand, the Mother’s version of events with respect to the Father’s intention not to demand a summary return of Isaiah was credible and supported by the documentary evidence.
101Accordingly, I find that the Mother proved that the exception from Article 13(a) of the Hague Convention applies. The Father subsequently unequivocally acquiesced to Isaiah’s removal to and retention in Ontario but changed his mind in late October 2023. By this time, and based on the parties’ prior interactions, it was reasonable for the Mother to believe that the Father was not seeking a summary return of Isaiah to Texas, and I find that the Father did not demand a summary return.
Article 13(b) Would Returning Isaiah to Texas place him in either grave risk of harm or an otherwise intolerable situation?
102In the alternative, in the event I had found that the Father did not acquiesce, and as this was fully argued, I will proceed with an analysis under Article 13(b) of the Convention which was the only other exception advanced by the Mother.
103As stated by the Supreme Court of Canada in Thomson v. Thomson, [1994] 3 S.C.R., at p. 596, the grave risk of harm “or otherwise place the child in an intolerable situation”, means that “the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation.”
104In Thomson, the Supreme Court observed that the requisite degree of risk of harm is a high bar and must be “severe enough to meet the stringent test of the Convention”: at p. 597. The case further stated, at p. 597:
[I]t would only be in the rarest of cases that the effects of “settling in” to the abductor’s environment would constitute the level of harm contemplated by the Convention. By stating that before one year has elapsed the rule is that the child must be returned forthwith, Article 12 makes it clear that the ordinary effects of settling in, therefore, do no warrant refusal to surrender. Even after the expiration of one year, return must be ordered unless, in the words of the Convention, “it is demonstrated that the child is now settled in its new environment”.
105One year has not yet passed since Isaiah’s removal from Texas.
106Furthermore, it must be remembered that the relevant test at this hearing is not what is in Isaiah’s best interests in terms of parenting matters, including his primary residence, parenting time, and decision-making authority. That decision will be made by the court of competent jurisdiction. The matter before this court is whether Isaiah must be returned to Texas forthwith under the parameters of the Hague Convention.
107As stated, I accept that the Texas court will apply a best interests of the child test that is comparable with Ontario’s test in determining parenting time, decision-making authority, and other parenting rights: Thomson, at p. 599.
108In relation to the allegations of domestic violence, the courts are again to consider that the “Court and the authorities in the state of the child’s habitual residence will be able to take measures to protect the child, including protecting their mother from any domestic violence”: Mbuyi v. Ngalula, 2018 MBQB 176, 17 R.F.L. (8th) 399, at para. 62.
109In Hassan v. Garib, 2017 ONSC 7227, at para. 10, the court posed three questions to frame the analysis of whether domestic violence satisfies Article 13(b):
(a) Has the alleged past violence been severe and is it likely to reoccur? (b) Has it been life threatening? (c) Does the record show that the offending individual is not amenable to control by the justice system?
110Without determining the veracity of the allegations of domestic violence made in this proceeding, the allegations, even if true, do not meet the high threshold presented by the Convention. This includes the gun incident in which it is alleged that the Father, while holding Isaiah, “pulled a gun” on the Mother during the course of an argument. I accept that the Father did go to his closet and retrieve a firearm while holding Isaiah in the other arm in the course of an argument with the Mother. However, I do not find that this incident is enough, even when combined with the allegations of financial control and verbal abuse, to meet this threshold.
111The Mother has not presented evidence that meets the high bar of demonstrating that returning Isaiah will result in a grave risk of harm that would place him in an otherwise intolerable situation. Had I been persuaded that Isaiah had to be returned forthwith to Texas under Article 12, I would have requested submissions on undertakings that would have ensure that any potential short-term harm to Isaiah would be ameliorated: Thomson, at pp. 598-599.
112Accordingly, the Mother did not prove the exception under Article 13(b) of the Convention.
Alternative Argument under s. 22(1) (b) of the Children’s Law Reform Act
113An alternative argument under s. 22(1) (b) of the CLRA was made by the parties. In my view, this argument is not available to them since Canada and the United States are signatories to the Hague convention. Therefore, the Hague Convention is the governing authority: Zafar v. Azeem, 2024 ONCA 15.
Disposition and Costs
114The Application is dismissed.
115If the parties cannot agree on costs, the Respondent shall provide her cost outline and written submissions within ten days, and the Applicant shall provide his cost outline and responding submissions within ten days thereafter. The written submissions may not exceed three double-spaced pages each and should be delivered to my judicial assistant.
Justice S. Vella Released: January 29, 2024
1This process is always within the control of the court but is particularly important within the context of Hague Convention applications, as recently highlighted by the Court of Appeal in Zafar v. Azeem, 2024 ONCA 15. Zafar dealt with an application for a declaration of habitual residence and related orders under s. 22 and 23 of the CLRA, but the rationale applies equally here.
2The Father did not elaborate on what he meant by “co-sign” in his affidavits or viva voce testimony.
3It is noteworthy that the Father admitted to surreptitiously recording the videocall. The Mother did not object to the admissibility of the call despite its surreptitious nature and admitted its authenticity.