Court File and Parties
Court File No.: Brampton 674-12 Date: 2012-09-14 Ontario Court of Justice
Between: Tomasz Dziedzic, Applicant
— And —
Lina Glyzina, Respondent
Before: Justice P.W. Dunn
Heard on: 13 September 2012
Reasons for Judgment released on: 14 September 2012
Counsel:
- Natalia Denchik for the applicant
- Aimee Colyer McGuire for the respondent
Judgment
P.W. DUNN, J.:
Background
[1] Before the Court is the respondent's motion dated 31 August 2012 in Volume 1, Tab 6. The motion requests this Court to order the return of Tristan Glyzin, born […] 2006 to the respondent in Vienna, Austria. The motion is opposed by the applicant.
[2] The applicant brought an application dated 1 June 2012 in Volume 1, Tab 1 seeking custody of the child. The respondent was served on 7 June 2012. In clerk's court on 16 August 2012, only the applicant and his agent appeared. The respondent did not attend. The case returns to court on 2 October 2012 for an initial case conference before the case management justice.
[3] The applicant brought an emergency motion without notice, dated 19 June 2012. He sought orders that Ontario should be found to be the proper jurisdiction to hear the case, that the child should have his primary residence in Ontario, and that the applicant receive temporary custody.
[4] On 27 June 2012, Justice Baldock granted temporary custody to the applicant. Tristan has been living with the applicant since 7 December 2011.
Findings of Fact
[5] I make the following findings of fact:
The child was born in Canada and the parties are his biological parents, and the parties never married.
Both parties have a close connection with Europe.
The parties began cohabitation in November 2005 in Ontario, and separated in January 2008, when Tristan was about one year and four months old.
Since separation, the respondent had custody of the child, but without court orders. The respondent made the important decisions about Tristan. The applicant had access.
In November 2010, the respondent with Tristan went to Europe to try to obtain a European visa and to look for employment. The applicant consented, with a time period of 15 November 2010 to 12 January 2011.
On 13 January 2011, the respondent obtained a visa permitting her to work throughout Europe and to live in Europe. The applicant was advised of this and of the respondent's plans for Tristan to attend school in Prague.
Before the respondent left for Europe, she sold her condominium in Toronto in March 2011, where she and Tristan had been living. She disposed of all of possessions owed by herself or Tristan that they were not taking to Europe. The respondent made it plain to all around that she was moving to Europe where she hoped to continue to stay with Tristan, if her work visa in Europe materialized.
From 16 November 2010 to 28 February 2011, the respondent and Tristan lived with the respondent's cousin in Prague. The applicant knew about this address.
Although the applicant's consent for the respondent to travel to Europe from 15 November 2010 to 12 January 2011 expired technically on 12 January 2011, I do not find that the applicant took any steps to object to his son's continued placement in Europe. For example, no action was advanced to try to force the return of Tristan to Ontario.
The applicant claimed that the respondent moved around Europe like a "hungry maniac". I do not find that to be the case. The respondent made sensible moves when her circumstances required it. The respondent only lived principally in Prague and Vienna.
After the respondent obtained her European work visa, she made it plain to the applicant that she and Tristan were planning to continue living in Europe and would not return to reside in Canada on a permanent basis. It appears strongly that the applicant consented to Tristan continuing to live with the respondent in Europe. If he did not actually consent, at least he acquiesced to that placement.
After the respondent obtained her visa, she rented an apartment in Prague on 1 March 2011. The applicant was told of that address and he had the respondent's telephone number.
Tristan attended a bilingual school in Prague from 1 February 2011 to 19 April 2011.
The respondent did obtain work in Europe.
In 2011, the respondent met her current husband. On 5 September 2011, the respondent with Tristan went to Vienna to live with that gentleman, and they married in January 2012.
In October 2011, the respondent enrolled Tristan in a private bilingual school available exclusively to children whose family work for the respondent's husband's employer. Tristan remained at that school to December 2011, when the boy left for a visit with the applicant in Ontario.
The applicant sent the respondent an important email on 8 August 2011. The message made no complaint about the respondent remaining in Europe with Tristan. He made no request that the boy be returned to Canada. On the contrary, the applicant was pleased that Tristan was in Europe with the respondent. He wrote, inter alia in the email:
We both have a dream to live in Europe. It is where we both grew up and always will want to go back to…I also always told you I will follow you guys…I know you are the best mother our son could ever wish for, and I know you provide a beautiful happy life for him.
Tristan adjusted well to European life with his mother and stepfather and to his school situation. He visited with his maternal grandmother in Russia in the summer of 2011.
From November 2010 to May 2011, the applicant did not contact the respondent nor did he pay child support from January 2011. The respondent made many attempts to induce the applicant to call and visit his son.
In November 2011, the parties agreed that Tristan would visit the applicant in Ontario for the period 7 December 2011 to 7 March 2012. The respondent arranged with Tristan's school in Vienna to make the trip and be accepted back to his school in Vienna upon his return.
Around September 2011, the respondent became pregnant with her husband. This child was born in […] 2012.
On or about 9 March 2012, the applicant told the respondent he would not return Tristan to her in Europe. At that time, the respondent was in her third trimester and could not fly to Ontario.
The respondent took such steps as she could to try to induce authorities to help to obtain the return of Tristan to her. She involved Child Services, Passport Office Ontario, Ministry of Foreign Affairs and U.S.A. Border Control, but to no avail.
The respondent does not wish to attorn to the Ontario jurisdiction because she believes the proper jurisdiction is in Austria.
The applicant claimed that Ontario should assume jurisdiction, since Tristan has resided here since 7 December 2011 (10 months). He is registered in school in Ontario, has a doctor to meet his health needs and does extra-curricular activities. The applicant maintained that Tristan's connection with Ontario went from his birth, on […] 2006, to when he went to Europe in November 2010 (at age 4 years) and then again from December 2011 (at age 5 approximately) until the present (at age 6 years).
It is the respondent's position that she only agreed to an Ontario visit for three months in order for the applicant to be reacquainted with his son. The respondent fully expected Tristan would be returned to her on 7 March 2012, when he would re-enrol at his private Vienna bilingual school.
The respondent maintained she did all in her power to obtain the return of Tristan to her. She did not acquiesce to Tristan remaining in Ontario.
Analysis and Decision
[6] I agree with the respondent's position for these reasons:
(A) Wrongful Retention
The applicant kept Tristan in Ontario after 7 March 2012 against the will of the respondent. The respondent did not in any way acquiesce to Tristan remaining in Ontario. The applicant should not be permitted to use the ten months Tristan remains in Ontario to bolster his argument that the boy has a real and substantial connection with Ontario. He cannot be permitted to profit from his wrongdoing.
(B) Formative Years and European Connections
Although out of Tristan's six years of life, he has spent more time in Ontario than in Europe, his months in Europe from November 2010 to December 2011 (13 months) were at a very formative age. He put down roots in Vienna and attended school. His connections with the respondent, his stepfather and now his new brother, were important at this stage in his life. He is absorbed in the European culture and language experience and I believe he was thriving in that milieu. The boy has relatives in Europe on his mother's side that he does not have in Canada.
(C) Jurisdiction Under the Children's Law Reform Act
Ms. Denchik argued that this court should make an order under s.22 (b) of the Children's Law Reform Act. Since the child was present in Ontario when the applicant brought his application, this court should find:
(ii) that substantial evidence concerning Tristan's best interests is available in Ontario
and
(b) the child has a real and substantial connection with Ontario and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
As I stated in paragraph (B) above, there is more substantial evidence concerning Tristan's best interests in Vienna and Prague (and it is quality information) than in Ontario. Yes, the applicant could provide evidence from Tristan's Peel Region teachers, doctors, friends and others in Ontario, but Tristan has experienced a richness of opportunity and involvement in his life during thirteen months in Europe. The convenience for a trial would be for witnesses from Europe to attend court proceedings on that continent. Finally, the ten months of abducted status for the boy in Ontario to the present, do not in my opinion, deliver a real and substantial connection to Ontario, because from age 4 years 2 months (when the respondent moved to Europe) to his age 5 years 3 months (when Tristan same on visit to Canada) those times were significant developmental months for the boy. This was at a crucial stage in his life when he was learning to think like a European.
(D) Habitual Residence and the Hague Convention
I find the child is habitually resident in Austria and the Hague Convention applies. The respondent has a settled intention to reside in Europe with Tristan, and this intention has existed since the respondent obtained her European visa in January 2011. That was a practical and useful placement because the respondent has had gainful employment after she obtained a European visa.
(E) Custody Status at Time of Retention
At the time the applicant retained Tristan in Ontario in March 2012, the respondent was the actual custodian of the child, and would have continued to exercise that control, if the applicant had not retained Tristan.
(F) Austrian Civil Code
To bolster the respondent's claim for custody, Ms. Colyer McGuire provided paragraph 166 from the Austrian Civil Code, which states that a mother shall have sole custody of a "natural child" (otherwise known as a child born out of wedlock), which Tristan was.
(G) Multiple European Residences
Ms. Denchik disputed the respondent's claim to have a real and substantial connection in Europe for thirteen months, because the child resided in Prague, Russia and Vienna (in Vienna only for some six months). I find that the respondent is entitled to claim a connection in Europe for thirteen months, because the child only lived on a permanent basis in two cities, Prague and Vienna. He just visited his grandmother in Russia for two months in the summer of 2011. Although the languages were different for Tristan in Prague and Vienna, the evidence was that Tristan assimilated well in both European counties. I think I can take judicial notice of the fact that although the Czech Republic and Austria are different countries, their cultures have more in common with each other as European countries than they do with Canada.
(H) Wrongful Retention Finding
The court finds that on 7 March 2012, the applicant wrongfully retained Tristan when he did not return the boy to the respondent's lawful custody.
Orders
[7] The respondent's motion is granted, as follows:
Order pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction. The applicant is ordered forthwith to return Tristan Glyzin, born […] 2006 (the child) to the care and custody of the respondent.
Order that Austria is the proper jurisdiction for the resolution of custody and access disputes regarding the child.
Order that the Peel Regional Police, the Sheriff of the Regional Municipality of Peel, and any other police service having jurisdiction, locate, apprehend, and deliver Tristan Glyzin to the care, custody and control of the respondent, Lina Glyzina and to enter and search any premises where the said police officers or Sheriff have reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable under the circumstances, pursuant to s.36 of the Ontario Children's Law Reform Act, as amended.
The respondent may apply for and retain a passport for the child without the consent, signature or permission of the applicant.
Paragraph 1 in the temporary orders of Baldock, J. dated 27 June 2012, that prohibited either party from changing the child's residence from Peel Region in Ontario, or removing the child from Peel Region, is vacated.
Conclusion
[8] I thank Ms. Denchik and Ms. Colyer McGuire for their thoughtful and very carefully prepared arguments.
[9] Any request for costs on this motion must be served on opposing counsel and filed with the Judicial Secretary, Ruth Evans, by fax at 905-456-4839, by 5 October 2012. An Answer to a Request for Costs must be served and filed in the same manner by 26 October 2012. If the moving counsel wishes to Reply to the Answer, the Reply must be served and filed by 16 November 2012.
[10] The case is adjourned to 10:00 a.m., 2 October 2012, courtroom 210 for an initial case conference.
Released: 14 September 2012
Justice P.W. Dunn