Court File and Parties

Court of Appeal for Ontario Date: 20240829 Docket: COA-24-CV-0144

Nordheimer, Gomery and Wilson JJ.A.

Between

Keith Bernard Thomas Applicant (Appellant)

and

Fernanda Thomas Respondent (Respondent)

Counsel: Maneesha Mehra and Aleksandra Malinowska, for the appellant A. Sam Zaslavsky, for the respondent

Heard: August 22, 2024

On appeal from the order of Justice Susan Vella of the Superior Court of Justice, dated January 29, 2024, with reasons reported at 2024 ONSC 615.

Nordheimer J.A.:

[1] Mr. Thomas appeals from the order of the application judge that dismissed his application under the Convention of the Civil Aspects of International Child Abduction ("Hague Convention"). At the conclusion of the hearing, we allowed the appeal and made an order that the parties’ son be returned forthwith to his habitual residence in Balch Springs, Texas. We said our reasons would follow and I now provide those reasons.

Background

[2] I take the background facts in large part from the reasons of the application judge. The appellant 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 USD per year. The respondent is also 31 years old. She is a Canadian citizen and resides in Toronto at her father's residence. She is currently unemployed.

[3] The parties met online in 2019 through a combination of the respondent’s sister and a friend of the appellant. The parties were married at the North York Civic Center in Ontario on February 22, 2020. After the marriage, the appellant returned to Texas and the respondent stayed in Ontario.

[4] The respondent visited the appellant in Texas in July 2020, and she became pregnant with their child, Isaiah. The appellant returned to Ontario. The parties 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 appellant returned to Texas in or around December 2020 while the respondent remained in Ontario until July 29, 2021.

[5] Isaiah was born on March 28, 2021 in Toronto. Isaiah has dual Canadian and American citizenship. The respondent and Isaiah returned to Texas in July 2021 where they joined the appellant. The appellant was gainfully employed in Texas. The parties applied for the respondent's application for Alien Relative, her permanent residence status, and employment authorization so she could work in Texas.

[6] The parties' marriage soon began to face challenges, and marital discord ensued. However, both parties were involved in parenting Isaiah. In May 2023, the respondent's mother visited the family in Texas for one month. By this time, the respondent's mother and the appellant did not get along. Meanwhile, the marital discord between the respondent and the appellant grew.

[7] On June 3, 2023, the respondent's mother returned to Ontario. The respondent's parents purchased a plane ticket for the respondent and Isaiah to come to Ontario. The respondent returned to Ontario with Isaiah on June 5, 2023, without notifying the appellant of her intentions.

[8] Upon arriving in Toronto, the respondent texted the appellant and advised him that she had returned to Ontario with Isaiah and that she planned to live here with their child.

[9] Various communications ensued between the appellant and the respondent regarding this situation. Many were by text message. Others were by telephone. A sampling of these and related events will suffice:

• In a text on June 21, 2023, the appellant said to the respondent, “[j]ust come home”.
• In a call on July 24, 2023, which was recorded by the appellant, the respondent demanded that the appellant provide information for her to apply for Canadian government benefits for Isaiah. In response, the appellant notes that the respondent took Isaiah and states, “why would I do anything when I did not co-sign on it.”
• On August 8, 2023, the appellant commences a divorce proceeding in Dallas, Texas. He does not serve that proceeding on the respondent.
• On October 13, 2023, the appellant texts the respondent, “I’m coming to get Isaiah in December. It’s my time to have him.”
• On October 20, 2023, the respondent makes a report to the Toronto Police in which she says that the appellant “…has begun making suggestions that he would return to Canada to take Isaiah back to Texas.”
• On October 23, 2023, the appellant texts the respondent, “you can choose to live off your Father, but my son Isaiah WILL be living in the US.”
• On November 13, 2023, the appellant commences this application.

The decision below

[10] The application proceeded on the basis of affidavit evidence filed by the parties. There were cross-examinations conducted at the hearing before the application judge.

[11] The application judge said that she had to make a finding of credibility given the “diametrically opposed evidence” and positions of the parties. She noted that she had the benefit of “observing the parents under cross-examination and their resulting viva voce testimony”. In addition, she also noted that she had the benefit of numerous text messages between the parties after Isaiah had been brought to Toronto. However, the application judge also observed that she did not have the benefit of any affidavit evidence from third parties, who may have shed light on this issue, including evidence from family members of the respondent or friends and family members of the appellant.

[12] In terms of the affidavit evidence and viva voce evidence, the application judge said, at para. 74: “Neither party was particularly compelling. They each had inconsistencies in their evidence, which were exposed in cross-examination.”

[13] Notwithstanding that finding, the application judge concluded that the respondent had established, “on clear and cogent evidence”, that the appellant had unequivocally acquiesced to the relocation of Isaiah to Toronto.

Analysis

[14] While the application judge correctly cited the applicable legal principles relating to an application under the Hague Convention, it is clear to me that she failed to properly apply those principles. In particular, she failed to understand the degree of proof that is required for a proper determination of whether the acquiescence exception in Article 13(a) could be relied upon.

[15] I recite certain principles that apply in Hague Convention cases as they relate to this case. I draw those principles from earlier decisions of this court including Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 and Ibrahim v. Girgis, 2008 ONCA 23, 291 D.L.R. (4th) 130. Those principles include:

i. The object of the Hague Convention is to deter abductions of children and to secure the prompt return of children where abductions occur; ii. “consent” and “acquiescence” as used in Article 13(a) should be given their ordinary meaning; iii. Acquiescence is a question of the actual subjective intention of the wronged parent; iv. The onus rests on the abducting parent to establish acquiescence by the objecting parent; v. Acquiescence must be established on clear and cogent evidence; vi. To be established, it must be shown that the acquiescence was unequivocal; vii. The standard for finding acquiescence is high.

[16] There is no dispute that the habitual residence of Isaiah was in Balch Springs, Texas. There is also no dispute that the respondent removed Isaiah from his habitual residence without the knowledge or consent of the appellant.

[17] The application judge found that acquiescence had been established, at para. 76 of her reasons, because “nowhere in writing did [the appellant] explicitly state that he did not consent to Isaiah's removal. Nowhere in writing did he demand that the [respondent] return Isaiah to Texas.” There are two problems with this finding. One is that it directly contradicts what the application judge had said at para. 44: “It is clear that the Father did not consent to Isaiah's relocation to Ontario”. The other is that it reverses the burden of proof. As earlier set out, the burden of proof is on the abducting parent. The abducting parent must prove consent or acquiescence. There is no burden on the objecting parent to prove the opposite.

[18] The application judge appears to place considerable emphasis on a text where the appellant tells the respondent, “[j]ust come home”. The application judge faults the appellant because he never, at any point in this exchange, demanded that the respondent return Isaiah. Not only does this finding once again reverse the burden of proof, it also appears problematic to conclude that the appellant’s statement, “[j]ust come home” does not include Isaiah. Common parlance would suggest that when the appellant asked the respondent to come home, it would carry the implicit assumption that the child, who was three years old, would accompany the respondent’s return.

[19] The application judge noted, at para. 86, the appellant’s point “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.” However, she never alludes to the appellant’s motivations in this regard when she criticizes him for never recording, in writing, that he wanted Isaiah returned to Texas.

[20] The application judge also refers to the fact that the appellant had started a proceeding in Texas in August 2023 in which he asked, among other things, for the right to decide the primary residence of Isaiah. At no point does the application judge explain how the commencement of this proceeding is consistent with her conclusion that the appellant acquiesced in the relocation of Isaiah to Toronto. Instead, the application judge criticizes the appellant for not serving this proceeding on the appellant, without reference to her earlier observation that the appellant was attempting to reconcile with the respondent. Serving process on the appellant would not be likely to advance reconciliation efforts. More problematic is that the application judge goes further by finding that, because the appellant did not serve the proceeding on the respondent, “he cannot rely on this step as demonstrating that he was demanding a summary return of Isaiah”. It was an error for the application judge to eliminate that proceeding from her consideration of the issue of acquiescence, especially given that acquiescence is determined based on the subjective intention of the objecting parent.

[21] The application judge also refers to the fact that the appellant came to Toronto on November 4, 2023 to see Isaiah. He alerted the police to his visit because he was concerned that there might be a confrontation with the respondent. The police attended at the time and noted that the appellant told them that there was a custody dispute regarding Isaiah. The application judge does not explain how this statement by the appellant could be consistent with a finding that the appellant had acquiesced in Isaiah’s removal to Toronto.

[22] Ultimately, the application judge said, at para. 95:

Applying 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.

[23] There are obvious problems with this finding. For one, citing the balance of probabilities standard is inconsistent with existing authorities that establish that the “standard for finding acquiescence is high”: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183, at para. 50. It is also inconsistent with the requirement that there be clear and cogent evidence of acquiescence. Clear and cogent evidence does not require a balancing of evidence of the type envisaged in the balance of probabilities standard. The clear and cogent evidence standard is also not established by a finding that the appellant “implicitly consented”.

[24] Before concluding, the application judge proceeds to fault the appellant, not once but twice more, for never demanding that Isaiah be returned to Texas, once again demonstrating that she has reversed the onus of proof.

[25] As I have already alluded to, the application judge never addresses, at any point in her reasons, the requirement that acquiescence is a question of the actual subjective intention of the objecting parent. On this point, I repeat the test referred to in Katsigiannis, at para. 48, that “[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world's perception of his intentions.” The application judge never resolves how the actions of the appellant, even as characterized by her, could be seen to be consistent with a finding that he subjectively intended that Isaiah would remain in Toronto.

[26] I contrast this case to cases where acquiescence has been established. For example, in Jackson, the court observed that, after the relocation of the child, the father had never telephoned to ask about his son. Here, the appellant was not only in immediate contact with the respondent, but he also consistently communicated with Isaiah up to the hearing of the application. The father in Jackson missed several opportunities to visit his son. Here, the appellant traveled to Toronto to see his son as earlier described. The court found in Jackson that the father took no real interest in his son’s life. The situation here is the polar opposite of that finding.

[27] I return to the objective of the Hague Convention. It is to secure the prompt return of abducted children. The Convention establishes “a presumption in favour of ordering the child’s summary return under Article 12”: Ibrahim, at para. 21. The application judge’s decision does not fulfill the objective of the Hague Convention nor does it accord with that presumption.

Conclusion

[28] It is for these reasons that we allowed the appeal and ordered that Isaiah be returned forthwith to his habitual residence in Balch Springs, Texas. The appellant is entitled to his costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST. He is also entitled to his costs of the proceeding below, fixed at $15,000 inclusive of disbursements and HST.

Released: August 29, 2024 “I.N.” “I.V.B. Nordheimer J.A.” “I agree. S. Gomery J.A.” “I agree. D.A. Wilson J.A.”