Court File and Parties
Court of Appeal for Ontario Date: 20221214 Docket: COA-22-CV-0141
Benotto, Roberts and Harvison Young JJ.A.
Between:
Raviinder Singh Parmar Appellant
and
Parminder Kaur Flora Respondent
Counsel: Steven M. Bookman and Gillian Bookman, for the appellant Farrah Hudani and Jessica Luscombe, for the respondent
Heard: November 25, 2022
On appeal from the order of the Honourable Justice Mario D. Faieta of the Superior Court of Justice, dated August 5, 2022, with reasons reported at 2022 ONSC 3079.
Benotto J.A.:
[1] The appellant is the father of a 3 ½ year old girl. He brought an application against the respondent mother, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, Can. T.S. 1983 No. 35 (the “Hague Convention”). He sought to have the child returned from Toronto to Florida on the basis that she was being wrongfully retained in Toronto. The application judge found that, at the time of the alleged wrongful retention, the child’s habitual residence was Toronto. He dismissed the application.
[2] The father appeals. He submits that the application judge erred by choosing the wrong date to determine the child’s habitual residence. He should have chosen the date the mother left Florida, not the date that it became clear to the father that the mother was not going to return with the child.
[3] As I will explain, the date chosen by the application judge did not affect the outcome. There was no wrongful removal of the child when the mother left Florida, nor was there a wrongful retention when she did not return. I would dismiss the appeal.
Facts
[4] The appellant father was born in the United States and is an American citizen. He works in Florida as an anesthesiologist and pain physician. The respondent mother was born in Toronto and is a Canadian citizen. She works in Toronto as a behavioural scientist and researcher, as well as helps her family to manage rental units.
[5] The parties met online in 2006. In 2014, they started a long-distance relationship. The father promised that he would move to Toronto if their relationship became serious. Although they continued to see each other, he did not move to Toronto. He lived in a few different cities and eventually settled in Florida.
[6] In 2016, the parties were engaged to be married. The mother alleges that, before she accepted the proposal, the father agreed to move to Toronto. The father said that the parties kept their options open as to where they would live. To that end, the father states that he looked for work in both Florida and Ontario. He sat the Canadian Medical Board exams in May and June 2017. He failed the exams and refused to write again. The parties also discussed immigration options for the mother to move to Florida.
[7] Despite not resolving the issue of where they would live, the parties were married on September 2, 2017. Thereafter, the father continued to work and reside in Florida and the mother continued to work and reside in Toronto. They visited each other and travelled together.
[8] Their daughter, D.K., was born in Toronto on May 18, 2019. For the first nine months of her life, the father visited the mother and the child in Toronto on weekends. When D.K. was nine months old, and the mother was still on maternity leave, she took D.K. to Florida for a visit. They arrived on February 28, 2020. The COVID-19 pandemic struck in March and the border between Canada and the United States was essentially closed until the summer. The mother felt that it was safer to “shelter in place” rather than risk travelling with an infant.
[9] Flights to Canada resumed on July 5, 2021, with no hotel quarantine for vaccinated travellers. On July 18, 2021, the mother and D.K. returned to Toronto on a one-way ticket. The father travelled to Toronto six times between July and December 2021. He said that, each time, the parties talked about where they were going to live. They never came to an agreement. However, the mother did not want to move to Florida. She wanted to live in Toronto where her life and her family were.
[10] On December 10, 2021, the father says he realized that the mother had no intention of living in Florida. He commenced divorce proceedings in Florida the same day. He returned to Toronto and told the mother, on December 18, 2021, that he had filed for divorce. He left Toronto the next day. The following day, December 20, 2021, the mother was served in Toronto with his divorce papers.
[11] On February 22, 2022, the father brought an application, pursuant to the Hague Convention, for return of the child to Florida.
[12] The application sought a declaration that the child “is being wrongfully detained (sic) in Ontario by the respondent” and an order for the return of the child to Florida. He also sought police enforcement of the order.
Decision Below
[13] The father submitted to the application judge that D.K. was being wrongfully retained in Toronto. His submissions were somewhat unclear. His counsel submitted that the date of the alleged wrongful retention was September 9, 2021, when he asked the mother if she was going to stay in Canada. He then submitted that the date should be December 10, 2021, when he realized that she did not want to go back to Florida.
[14] The application judge found that the date of the alleged wrongful retention was December 10, 2021. The application judge then embarked on the process, outlined in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, to determine the child’s habitual residence immediately before the date of the alleged wrongful retention.
[15] The application judge found that, immediately prior to December 10, 2021, D.K. was habitually resident in Toronto, not Florida. As per Ludwig, the application judge considered three factors: (i) D.K.’s links to, and circumstances in, the United States; (ii) the circumstances of D.K.’s move from the United States to Canada; and (iii) D.K.’s links to, and circumstances in, Canada.
[16] As to D.K.’s links to Canada, the application judge noted that D.K. was born in Toronto and, while she is a citizen of both Canada and the United States, she has a Canadian birth certificate, social insurance number, passport, and an Ontario Health Insurance Plan (OHIP) card. He also noted the family connections D.K. has in Canada, as well as that she is active in Toronto’s Sikh community, a Toronto-based gymnastics class, and attends in-person pre-school in Toronto. Finally, he noted that the mother has been D.K.’s primary caregiver and is “the focal point” of D.K.’s life.
[17] After considering all these factors, the application judge found that D.K. was habitually resident in Canada prior to the date of the alleged wrongful retention in Canada. There was, therefore, no wrongful retention and the application was dismissed.
Issues
[18] The appellant father submits that:
- The application judge erred by choosing December 10, 2021, instead of July 18, 2021, to determine habitual residence;
- The application judge failed to follow the appropriate test for habitual residence by placing too much weight on parental intention;
- The application judge’s reasons were inadequate; and
- The application judge erred in permitting the respondent mother to participate in the hearing, given that she did not serve and file an Answer.
Analysis
[19] I will address the specific issues raised by the father. First, however, I will discuss the purpose of the Hague Convention; what constitutes wrongful removal and wrongful retention; habitual residence; and then consider these principles in the context of this family.
(1) The principles
Purpose of the Hague Convention
[20] The purpose of the Hague Convention is to secure the prompt return of a child wrongfully removed or wrongfully retained. Article 1 provides:
The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Wrongful removal or retention
[21] Not every removal or retention is wrongful. As per art. 3 of the Hague Convention, the removal or the retention of a child from her habitual residence is wrongful when:
a) 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
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.
[22] A removal or retention is wrongful if the child was habitually resident in the country immediately before the alleged wrongful removal or retention. Therefore, habitual residence is central to the Hague Convention because it defines when a removal or retention is wrongful: see Ludwig, at para. 22.
Habitual residence
[23] The approach to habitual residence was changed in 2018 when the Supreme Court of Canada issued its decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.R. 398. The parental intention model previously used was replaced with a hybrid model. The hybrid model considers parental intention, but also the circumstances of the child.
[24] This court’s decision in Ludwig, incorporating the changes from Balev, outlined a two-step process to determine habitual residence. At the first stage, the court is to determine the date of the alleged wrongful removal or retention. At the second stage, the court is to look to all the circumstances, including parental intention and the circumstances of the child, to determine the “focal point of the child’s life”, having regard to the child’s links to both countries and the circumstances of the move from one country to the other. The application judge’s conclusion is entitled to deference.
(2) Applying the principles
[25] The father’s claims pursuant to the Hague Convention must be considered in the context of this family’s situation.
[26] The parents never agreed on where they were going to live. Their entire relationship involved movement, back and forth, between Toronto and Florida. The now 3 ½ year old child spent the first nine months of her life exclusively in Toronto. The parties continually discussed whether they would settle in Toronto or Florida, but never reached an agreement.
[27] In this context, I consider the father’s submission that the mother’s departure from Florida on July 18, 2021, constituted a wrongful removal of the child. Then, I consider whether the fact that she did not return to Florida in December 2021 constituted a wrongful retention.
July 18, 2021
[28] The father submits that the mother’s departure from Florida, on July 18, 2021, constituted a wrongful removal. He says that she did not tell him that she was not coming back and, therefore, he consented to her departure under false pretenses. He submits that, had the application judge chosen the date of her departure from Florida as the correct date for wrongful removal, he would have found that the child’s habitual residence was in Florida.
[29] I reject this submission for two related reasons.
[30] First, the application judge did not address the child’s habitual residence on July 18, 2021, because this submission is made for the first time on appeal. However, it is clear, from the factual findings the application judge made, that D.K.’s habitual residence was not Florida at either time.
[31] The application judge accepted the mother’s evidence that she never intended to permanently move D.K. to Florida. She went there for a visit during her maternity leave. When the pandemic hit, she and D.K. remained in Florida to avoid travel and stay safe. She left Florida as soon as she was able to avoid hotel quarantine. She left on a one-way ticket. The application judge found that her ties to her family in Toronto were stronger than those to her husband, as well as that she had a desire to continue her career as a researcher in Canada.
[32] The father submits that these findings place too much emphasis on parental intention, to the exclusion of the child’s circumstances. However, the child was an infant when she and her mother arrived in Florida. As Balev recognizes, at para. 45, the circumstances of the parents, including their intentions, are more important in the case of infants. The mother was, as the application judge found, the primary caregiver. She was the focal point of the child’s life. The application judge did not place undue weight on her intention not to remain in Florida. Although the father takes issue with the finding that the mother is D.K.’s primary caregiver, this finding was both open to the application judge and clearly supported by the evidence.
[33] Second, and relatedly, the mother’s departure from Florida, on July 18, 2021, was the continuation of a pattern the couple had followed their entire relationship. Her return to Toronto did not change the parenting or family pattern that they had followed up to that point. The father travelled to Toronto six times in the summer and fall of 2021, as he had after the child was born. There was nothing to indicate that this pattern would not continue.
[34] A removal is only wrongful if it is in breach of rights of custody or access being exercised. Here, since Toronto was the child’s habitual residence, a factual finding made by the application judge and amply supported by the evidence, there was also no unilateral decision made by the mother when she took the child back to Toronto or when she remained there with the child. Thus, the mother did not breach the father’s rights of custody or access. Nor did she need his consent to return the child to her habitual residence.
[35] There was no wrongful removal on July 18, 2021.
[36] The application was argued on the basis that the child was being wrongfully retained in Toronto. That is why the application judge considered the child’s habitual residence as of December 10, 2021. He concluded:
The evidence is clear that the Respondent has been DK’s primary caregiver during her life and that she has been the focal point of DK’s life, from birth to the present time, including at the date of her alleged wrongful retention in Canada in December 2021.
[37] Given that D.K.’s habitual residence was Toronto, there was no wrongful retention.
[38] I, therefore, conclude that whether the date for determination of habitual residence is July or December makes no difference. There was neither a wrongful removal nor a wrongful retention.
[39] I now turn to the other issues raised by the father.
(3) The Respondent Mother’s Participation in the Proceedings
[40] The father submits that the application judge erred by allowing the mother to participate in the hearing, given that she did not serve and file an Answer, as required by rr. 10(5) and 1(8.4)(2) of the Family Law Rules.
[41] I would dismiss this ground of appeal for two reasons.
[42] First, this ground, too, is being raised for the first time on appeal.
[43] Second, the trial judge retains discretion to allow a party to participate in a hearing, whether or not procedural rules have been followed. This court stated, in Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121, at para. 47, trial participation should only be denied “in exceptional circumstances and where no other remedy would suffice”. This is particularly the case in family law matters, where the interests of children are at issue, as is the case here: Purcaru, at para. 48.
(4) Inadequate Reasons
[44] I do not accept the father’s submission that the application judge’s reasons are inadequate. The application judge made findings of fact, carefully explained them, and applied the correct legal principles. There is no basis for a finding of inadequacy. The father’s submission, with respect to the sufficiency of reasons, appears to merely be a complaint that the trial judge made findings that he did not agree with. The reasons are sufficient; he does not like the result. I share the views of Doherty J.A., in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 4, where he commented:
I am dubious about the merits of arguments claiming that reasons for judgment are inadequate. Experience teaches that many of those arguments are, in reality, arguments about the merits of the fact-finding made in those reasons. By framing the argument in terms of the adequacy of the reasons, rather than the correctness of the fact finding, an appellant presumably hopes to avoid the stringent standard of review applicable to findings of fact.
Conclusion
[45] I would dismiss the appeal with costs to the respondent mother in the agreed upon amount of $15,000, inclusive of disbursements and HST.
Released: December 14, 2022 “M.L.B.” “M.L. Benotto J.A.” “I agree L.B. Roberts J.A.” “I agree A. Harvison Young J.A.”
