Court File and Parties
Ontario Court of Justice
Date: 2014-06-10
Court File No.: Toronto DFO 14-11415-00 A3
Between:
Shamila Francis Applicant
— And —
Amarnath Maharaj Respondent
Before: Justice H. Katarynych
Hearing: May 30, 2014
Decision: May 30, 2014
Reasons for Judgment released on: June 10, 2014
Counsel
Ms. Cynthia Mancia — counsel for the applicant
Mr. Herschel Fogelman / Erin Chaiton-Murray — counsel for the respondent
Ms. Julia Tremain — counsel for the Office of the Children's Lawyer, legal representative for the child
Reasons for Decision
KATARYNYCH, J.:
On May 30, 2014, in disposition of the Hague Convention application before the court and for written reasons to be released, this court ordered the return of almost six year old Anuradha Maharaj to Trinidad and the care of her mother pending further decision-making in that jurisdiction in relation to her custody and related issues, including father-child access.
These are the reasons for that decision.
Context
This child, born June 25, 2008, is one of two children born to these parents. For some two and a half years, she has been in Canada and in her father's care. Her slightly older brother has remained in Trinidad in their mother's custody and care.
It is not in dispute that sometime in November 2011, this father removed this then three and a half year old child from Trinidad and brought her to Canada, leaving behind in Trinidad, the child's mother and their then four year old son.
At the time of that removal, the family had been living in Trinidad for approximately 4 months. They had arrived in Trinidad as a family in June 2011.
For all but their first month in Trinidad, the family had been residing in the home of the maternal grandparents.
The relationship of the parents had been deteriorating for some time. The mother had taken herself and the children to the home of her own parents after a domestic argument and the father's abrupt leaving of her and the children in the home of friends with whom they had been residing in Trinidad.
Although he rejoined the family a week later, the spousal deterioration continued, and it was in the midst of a domestic argument on November 2, 2011 and each accusing the other of assault, that the father took this child and left the home.
He then ceased all contact with the mother and son in Trinidad.
Shortly thereafter (the precise date is unclear), he departed Trinidad with this child, bound for Canada, and taking with him the birth certificates and passports for both children and whatever other documents were in the envelope that the parents maintained for important documents.
The father and child have been residing in this jurisdiction ever since, essentially as a family of two.
In the wake of his departure with the child, the mother had tried to reach him via telephone numbers that she had had for him while they were together as a family, only to find that those numbers were either no longer in service or that they went directly to his voicemail, and got no response from him. She tried to locate the child through inquiries to his own family in Trinidad, only to be told that they did not know his whereabouts. The mother's email to him on November 14, 2011, asking him to "please communicate for the sake of the kids", also went unanswered.
Until the initial conferencing of this application and the court's direction to counsel that they put in place a means of contact for this child with her mother and brother in Trinidad, the child had had no contact with her mother or her now seven year old brother.
The father did not dispute the gap in contact between the child and her family left behind in Trinidad. It was his position, as I understood it, that if the mother had wanted to make contact with him, she could have reached to the address on the materials that he had sent directly to the Trinidad court in response to litigation that she had launched there.
In circumstances where her own efforts to locate the child and have her returned home had met with no success, the mother reached to the courts in Trinidad for assistance.
On May 23, 2013, after a number of delays occasioned by her attempts to satisfy the court's various directions to her, including notification of the father on her court case, the Trinidad court made a final custody order in her favour for both children, entrusting her with the rights and responsibilities of custody of this child and her brother. That order was made "effective immediately", and contained, inter alia, a requirement that the father return the child to Trinidad and mother's care forthwith.
The father, although found by the court to have been served in accordance with the court's substitutional service orders, did not attend the hearing, either personally or by agent, nor did he comply with the procedures required to have his case before the court for its consideration.
He had known about the litigation since March 25, 2012, on his evidence, when he caught sight of a newspaper notice seeking him on the Internet. On February 17, 2012, the mother had obtained an order from the Trinidad court permitting that form of notification of the case.
The father, on his own evidence, was also aware of the Trinidad court's order from June 23, 2013.
He did not return the child to Trinidad.
In relation to that Trinidad custody order, the father has initiated process in Trinidad, seeking leave of the court there for extended time to appeal the custody order and its related relief. At the time of writing, the court in Trinidad has not heard that appeal.
The father's choice of Canada as a place of residence for himself and this child was deliberate.
Both of their children had been born in Canada.
Although Trinidad is homeland of both parents (both maternal and paternal grandparents and other extended family reside there), the parents had been in Canada for a number of years under the authority of temporary work permits.
The temporary work permits ended when father lost his employment in Canada.
The father had made application to Immigration Canada for permanent resident status, naming the mother as a dependent.
Although they were confident that they would be approved eventually, no decision had been made on that application at the time of their departure from Canada with their children on June 22, 2011. They knew that they had to accumulate savings to satisfy Immigration Canada's requirements for re-entry to Canada and went home to Trinidad to try to do that.
It was only when the mother approached the Canadian Consulate in Trinidad for assistance in the wake of the father's removal of this child from the family, that she learned that he had actually deleted her from his "permanent resident" application sometime in 2010, - before they had left Canada bound for Trinidad.
In February 2014, her mother filed application in this court seeking an order pursuant to the Hague Convention that the child be returned to her custody in Trinidad and to the jurisdiction of the Trinidad court.
Father responded by motion seeking dismissal of the mother's application, arguing that mother should be compelled to proceed under the "Enforcement of Foreign Orders" provisions of Ontario's Children's Law Reform Act, and that custody and access rights to this child should be decided in this jurisdiction.
The motion was dismissed for written reasons released on April 28, 2014. In short compass on that point, it is settled law in this jurisdiction that any quest for a trial of an issue under the Children's Law Reform Act to determine the custody of a child goes forward only if the court determines that the Hague Convention does not apply in the circumstances of the case. See Korutowska-Wooff v. Wooff. In this case, the Hague Convention does apply.
The Children's Law Reform Act itself also makes plain that in the event of conflict between s.46 of the CLRA and the Hague Convention, determination of the Hague Convention case takes priority. See CLRA s.46(8).
The father's stance in response to the mother's application is that Trinidad is not the habitual residence of this child, and that even if the court finds otherwise, he has a defence under both Article 12 and Article 13 of the Convention sufficient to retain this child in Canada and his care.
The Hague application hearing went forward on May 30, 2014 on the evidentiary records filed by each parent, a report of the Children's Lawyer who had been asked by the court to provide a limited intervention to bring evidence independent of each parent before the court in relation to certain issues relevant to the proper disposition of the Hague application, and the submissions of counsel.
Evidence
Both parties proceeded by affidavit evidence, with various appendices attached to the affidavits, and both written and oral submissions on that evidentiary record.
Counsel in this case, making their own efforts to keep within the objectives of the Convention, were in agreement that neither party would be produced for cross-examinations, nor would the author of the Children's Lawyer report be called for questioning, and their ability to point out in submissions, those aspects of the report that, if time had permitted, could been given closer scrutiny in the investigation.
The Relevant Law
The Hague Convention is incorporated into Ontario law as a schedule to s. 46 of the Children's Law Reform Act, R.S.O. 1990, c. C-12 as amended.
It is binding law in Canada. Both Canada and The Republic of Trinidad/Tobago are signatories to the Convention.
The underlying objectives of the Convention are:
General deterrence of international child abduction by parents;
Prompt return of the child facilitated by precluding a full inquiry into the "best interests" of the child in the state to which the abductor has fled with the child;
Restoration of the status quo;
Entrusting to the courts of the place of habitual residence the ultimate determination of what the best interests of the child require.
The Hague Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. See Article 4.
If the court finds a wrongful removal or retention, it is mandated to return the child to the place of habitual residence unless the parent who took the child establishes a defence within the criteria stipulated by either Article 12 or Article 13 of the Convention.
The Convention does not permit the court to approach the question of a "return" order as if the hearing of the application for a return of the child to the home jurisdiction is a custody hearing on the merits based on the court's analysis of the "best interests of the child".
The Supreme Court of Canada made plain in Thomson v. Thomson many years ago that the Convention's Preamble declaration that "the interests of children are of paramount importance in matters related to their custody", does not licence a "best interests of the child" approach to a Hague adjudication.
From Mr. Justice Laforest in Thomson, at para 42:
[The Preamble]… should not be interpreted as giving a court seized with the issue of whether a child should be returned to the jurisdiction to consider the best interests of a the child in the manner the court would do at a custody hearing. This part of the preamble speaks of the interests of children generally, not the interest of the particular child before the court. This view gains support from Article 16, which states that the courts of the requested state shall not decide the merits of custody until they have determined that a child is not to be sent back under the Convention.
Under the Convention, the interests of the individual child are only considered in the "most limited and exceptional of circumstances", and those circumstances are defined by the Convention itself. See Thomson, supra and W.(V) v. S (D), [1996] 2 S.C.R. 108.
These overarching principles were alive throughout the court's consideration of the evidentiary cases filed by each parent, - cases that had been presented in affidavit and documentary form and thus available for reading prior to the hearing of the submission of each counsel.
The legal principles specific to the issues in dispute in this case are contained in the reasons given for the determination of each issue.
Analysis and Findings
Although the father in his affidavit of May 26, 2014 had characterized this case as a "complex matter", it did not emerge as complex if focus remains on the requirements of the Convention for the adjudication of the application.
It was not in dispute that Canada and the Republic of Trinidad/Tobago were contracting states within the meaning of the Hague Convention at the time of this child's removal from Trinidad to Canada, and that they continue to be contracting states at the time of writing.
I had found, in my review of the evidence as a whole prior to the hearing of the submissions of each counsel that there was no material dispute on the narrative set out earlier in these reasons.
Specific to the "Habitual Residence" Issue
On the whole of the evidence, Trinidad was the place of habitual residence for both this child and her parents within the meaning of the Convention when this father absconded with her.
Relevant Legal Principles
"Habitual residence" of a child within the meaning of the Convention is tied to child's place of habitual residence at the time of the parent's removal of her from that place. See New Brunswick Attorney-General v. Majeau and Prasad.
The Ontario Court of Appeal makes plain in both Wartzell–Ellis and Cawdreu cases that no "permanent intention" to reside there is required to make out the status of habitual residence.
A child's place of birth or citizenship status do not establish habitual residence within the meaning of the Convention.
Habitual residence is the place where the person resides for an appreciable period of time with a settled intention to remain there, whether temporarily or permanently for a particular purpose.
In relation to the concept of an "appreciable period of time" in combination with a "settled intention", there is this guidance for the adjudication:
There must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
See R. v. Barnet London Borough Council (1982), [1983] 2 W.L.R. 16 (U.K. H.L.) and Chan v. Chow (2001), 2001 BCCA 276, 199 D.L.R. (4th) 478 (B.C.C.A.).
The Ontario Court of Appeal long ago made plain in Korotowska-Wooff that the "habitual residence" of a child is tied to that of the child's custodian, and consolidated in that case the principles emerging from jurisprudence at that time (including the Ontario Court of Appeal's judgment in Kinnersley-Turner v. Kinnersley-Turner (1996), 94 O.A.C. 376).
"Habitual residence" is a question of fact, to be decided taking into account all the circumstances.
Factual Findings
At the time relevant to the determination of habitual residence, these parents were not residing in Canada.
Although the parents still owned property in Canada when they left for Trinidad, it was rented out, and ultimately lost to foreclosure proceedings after they had gone to Trinidad to live. It was not "home" for this child.
Neither the children nor the parents came as "tourists" to Trinidad.
Although the family had not been in Trinidad for all that long in the overall scheme of life, they had been there for an appreciable time, in the sense addressed by the jurisprudence. They had no fixed departure date.
They had no intention to leave Trinidad until they had Immigration Canada's decision allowing them to re-enter Canada with "permanent resident" status. They were hopeful of success in that regard, but they had no guarantee that they could then return to Canada as a family. The fact that they had stored their belongings in Quebec pending Immigration Canada's decision is testament to their hope.
Viewed through the eyes of this three and a half year old, her family life in Trinidad played out in the parenting given to her by both her mother and her father, the companionship of her older brother and maternal grandparents. The residence of her maternal grandparents in Trinidad was where they all lived. It was "home". This is what was left behind when her father absconded with her.
The mother had been able to find employment. Schooling was arranged for the older child. The family had "settled into" Trinidad. The grandparents' home in Trinidad was their regular abode at the time.
On Father's Argument that Canada is the Place of Habitual Residence
That the child was born in Canada and has resided in Canada for the bulk of her life does not dictate the determination of this child's "habitual residence" at the time of his abduction of her.
The relevant timeframe is the span between the family's arrival in Trinidad in June 2011 and his taking of the child on November 2, 2011.
On Father's Argument about the Intended Temporary Nature of their Stay
It is not disputed that when the family left Canada in June 2011, these parents had no intention to reside in Trinidad permanently.
They had a common intention to return to Canada.
However, unbeknownst to the mother, the father had actually scuttled the common-ness of that intention sometime in 2010.
She rested in a belief they were in Trinidad as a family to await the decision of Immigration Canada on the permanent residency application. The father himself points out to the mother's own evidence that it was their "hope" that "we would be returning to Canada as a family once our permanent residence was granted". See Affidavit of mother, sworn May 17, 2014.
What he slides past is his deception of her in that regard.
The father's application for permanent resident status in Canada had included her as a dependent. She did not know, because he had not told her, that he had removed her name from that application sometime in 2010, - long before they left Canada bound for Trinidad.
So it was that Canada Immigration gave the father a permanent resident status but not the mother, and shortly thereafter, he left Trinidad with this child, bound for Canada, knowing that he had choreographed affairs so that he would be gone before she would find out what he had done, and knowing, too, that her ability to return to Canada would require an application of her own.
In short, he had ensured that this child would not have her mother return to Canada unless the mother obtained that right from Canada independent of him.
He would have this court find that he had removed her from his application in a fit of temper, and intended to re-add her to the application in due course.
The bottom line is that he deliberately deceived this mother, ensured that she would be unable to re-enter Canada in the wake of his abduction to search for the child, left it to her to find out after his removal of the child that Immigration Canada did not have her name on the father's application for permanent resident status and never did re-add her to his application.
When the father removed the mother from his application for permanent resident status, he unilaterally severed altogether the very "connection through settled intention" that he would have me find.
Specific to the "Wrongful Removal" Issue (Article 3)
Under Article 3 of the Convention, a wrongful removal or retention of this child has occurred if:
a) it is in breach of rights of custody attributed to a person…..either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of that removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Those rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of agreement having legal effect under the law of that State.
So it is that "custody", as understood by the Convention, is a broad term that covers many situations where a person lawfully has the care and control of a child. Custody may arise by operation of law. It does not require any formal order or other legal document.
The focus in the Hague Convention process is whether the parent seeking Hague relief possessed and was exercising custody rights over the child in that broader sense at the time of the other parent's removal of the child to another country, and whether that parent either consented or acquiesced to that removal.
By operation of Trinidadian law, absent a court order, both parents had rights of custody to this child at the time of their removal.
The mother had not given her consent to his removal of their daughter from Trinidad, nor had she acquiesced in that removal.
Although both parents portray a common law relationship in deterioration both in Canada and in Trinidad, both parents were actively involved in the parenting of their children through the life of both children.
This mother was actively parenting this child in Trinidad, as she had in Canada. Nothing in her conduct suggested that she had lost interest in carrying out her parenting duties to this child, or handed over her custody rights to this father. She was an intrinsic part of this child's life and the life of her slightly older brother.
Even if this father was in a primary parent role (and I make no finding in that regard, mindful that the family home in Trinidad was also the home of the maternal grandparents throughout the bulk of this family's time in Trinidad), that role does not tip the balance on the issue of parental interests and rights, including any relocation of this child outside Trinidad.
In taking on the role of income earner, the mother had not abandoned her parenting rights in relation to this child. He had been unable to obtain employment in Trinidad. She had been more fortunate in that regard. The determination of whether a parent is exercising custody rights does not rise or fall on whether a parent has employment.
At the time of her father's removal of her from Trinidad, both her parents had parenting rights in relation to this child.
That the common law relationship was in deterioration did not give this father licence to disregard the parenting rights and interests of this mother.
This mother was actively exercising her custody rights at the time of the father's abduction of their child. He had no right to simply snatch this child and take her to Canada.
So it was that this court found his conduct to be a "wrongful removal" of this child from her home jurisdiction within the meaning of the Convention.
On the Retention of this Child in Canada
This father has unlawfully retained this child in Canada for the entire time that the two of them have been residing here.
No court order in Canada has been obtained to legalize his custody of the child.
He never had this mother's agreement to his retention of the child in Canada.
He never had this mother's acquiescence in his retention of this child in Canada.
The mother has been trying over the course of the ensuing years to bring the child home, using the legal processes available to her both in Trinidad and in Canada.
He left this child unable to restore what he had taken from her.
She was left unable to continue her relationship with her mother and brother left behind in Trinidad.
He left it to the mother, who had learned only from others that that he had returned with the child to Canada, to try to explain the disappearance of this sister to the older brother, himself only four years old at the time, and to tend to the grieving of that child's loss as well as her own.
He foreclosed her ability for contact with her grandparents in Trinidad.
In scuttling the mother's "permanent resident" opportunity, he left this child with a mother who had no status to return to Canada to search for her and bring her home.
His attitude to the court proceeding launched by the mother in Trinidad left this child with an order compelling her return to Trinidad and her mother's parenting, but no implementation of that order, even though the order was stipulated "to take effect forthwith". He learned of the existence of that order, on his own evidence, on June 20, 2013. He did nothing to give it effect for this child.
I was mindful in this regard that nothing in the Convention requires the court determining a Hague application to recognize or hold determinative of the outcome of the Hague application, a foreign custody order obtained after the child has been removed from that jurisdiction.
This court's order for return of this child to Trinidad did not rest in the existence of the Trinidad order. The Trinidad order is before this court as part of the mother's evidence on her efforts to return the child to Trinidad.
Father has gone to great effort in his materials to argue the merits of that order, and what he has placed before the court in Trinidad to try to obtain the leave of the court in Trinidad for late appeal of the order. None of that was relevant to the child's entitlement to a return order in this application.
That he had recently obtained a stay of the Trinidad custody order pending the hearing of his application to extend the time permitted to appeal the order was also no good reason to delay implementation of the "return" order made at the close of this hearing.
On the "New Settled Environment" Defence (Article 12)
Under Article 12, the court "remains under a duty to order the return of the child to her home jurisdiction, "unless it is demonstrated that the child is now settled in her new environment"".
The Article 12 defence is there to ensure that the "general deterrence" objective does not overwhelm the analysis needed for a specific child. It is recognition that the interests of a particular child in not having her life disrupted once she is settled down in a new environment may (but does not necessarily), override the otherwise compelling need to protect all children from abduction.
While it is not the point of the Convention, in that "over-riding" of the general objective, to send a message to a parent wanting the child all to himself, that an unlawful removal is the way to accomplish that exclusive possession, it is also not the point of the Convention to use the "return" power if the result is to accentuate the harm caused by the wrongful relocation. See Kubera at para 38-39.
It is the father, as the parent who removed the child from her home jurisdiction, who bears the onus of proof in that regard.
The court's task in this defence is to determine on the whole of the evidentiary record pertinent to the defence, whether this child is now "settled in her new environment" to the degree envisioned by the Convention as a basis for ousting the primary objective of the Convention to restore her to her "home" jurisdiction.
The focus of the Article 12 analysis is the "now" and the "foreseeable future".
Kept in mind by the court is that a determination that a child falls within this exception is a decision that custody and related issues should be decided in Canada rather than her "home jurisdiction". It is acknowledgment in the specific circumstances of the case at bar, the passage of time has resulted in a situation where the bulk of the evidence pertinent to custody and related issues is no longer in her "home" jurisdiction, but now in Canada. It is not a decision about which parent should have custody, nor is it a decision about where she should ultimately live.
The determination requires compelling evidence.
The circumstances addressed by Article 12 are both "limited and precise".
The Thomson court long ago pointed out that it 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. That Court pointed to the requirement of a "forthwith" return before one year has elapsed as the "ordinary" rule in these cases, and the presumption of return after that lapse of time unless the Article 12 defence is made out.
It also made clear that the ordinary effects of a child's "settling in" do not justify a refusal to return the child to the home jurisdiction.
Neither the Convention policy nor the circumstances of the child can be determined in the abstract. Each must be carefully considered and weighed as it applies to the circumstances of each case.
This much is plain from the jurisprudence:
The Article 12 exception to the general rule to "return the child" does not come into play unless the court has made a "wrongfully removal" finding.
The determination of "now settled in a new environment" is a child-centric factual inquiry. See Kubera, para 67.
What is needed for a proper determination is detailed and compelling evidence of that settling. For expanded discussion, see Kubera, at para 74, referencing Bielawski v. Lozinska, [1997] O.J. No. 3214.
The passage of time in the new environment is not the determining factor.
"New environment" as contemplated by the Convention is a concept to be interpreted narrowly.
That is so because the Convention is not designed to allow the spouse who has wrongly removed the child to rely on a factual environment created by his own wrongdoing so as to circumvent the objects and purposes of the Convention.
See Majeau, supra at para 41.
As noted by the Court in New Brunswick (Attorney General v. Majeau-Prasad), at any time when a child is removed, the fugitive parent has to eventually settle himself and the child in one community, including school and activities and friendships and routines. These events do not necessarily satisfy the concept of "new environment" as defined by the Convention.
Although the level of settlement in the new environment does not have to be exceptional, it does have to be more than a mere adjustment to the new surroundings. See W.V., [1996] 2 S.C.R. 108 (SCC).
The court must look beyond outward appearances and superficial realities to determine the actual degree of settlement.
The court considers the degree to which the child has rooted herself in the care of the abducting parent, and the degree to which she is likely to be emotionally harmed by a sudden uprooting of her.
Also to be considered is the degree to which the child is established in a community, and in her schooling.
That is so because the child's present circumstances are assessed in light of the underlying objectives of the Convention and in particular how a "return" order is likely (or not) to further those objectives. See A. (J.E.) per Cromwell, J.A., writing for a unanimous court at para 67-68. (I note that in that decision for example, the child had been in Canada for some 7 years, had become integrated into the life of her new community, and was nonetheless ordered returned to her country of habitual residence).
What cannot be lost in the analysis is the Convention's principal objective to protect children from the harmful effects of child abduction by deterring and where appropriate, remedying a wrongful removal or retention of a child.
Jurisprudential authority makes plain that effective deterrence depends on the Convention operating with a degree of certainty to deny the actions of the abducting parent of any practical or juridical effect, and that as a matter of common sense, refusal to return the child detracts from that certainty.
So it is that "both a purposive and a contextual approach" must be brought to bear on the analysis; - a factual inquiry into the child's actual circumstances at the time of the hearing set within a consideration of the objectives of the Convention.
Findings
In short compass, and for the reasons now set out, this case did not emerge, on the whole of the evidence, as one where the passage of time in the father's care, substantial as it is for a child so young, - has resulted in a weakening of the policies of the Convention presumed to justify mandatory repatriation of the child in all cases, and a corresponding strengthening of those policies that require attention to the welfare and interests of the particular child.
This young child had been in wrongful removal and wrongful retention zone for a period of some two and a half years. That is a very long time for a child of this age and stage in life. It is common knowledge that early childhood is a time of rapid growth and development.
I was mindful that she has already been expected to adjust to an array of disruptions in her life.
In the few months that passed in Trinidad after the family's arrival there in June 2011, and as part of the family's own relocations, this young child had been subjected to the long flight from Canada to Trinidad, lived for a time in the home of friends of her parents only to find herself moving out and then living in the home of her maternal grandparents, then uprooted from that home altogether and in short order, sitting in an airplane with her father on the long flight back to Canada, and in circumstances where neither her mother nor her brother were on the flight with her.
She then found herself living out the next two and a half years of her life with no contact whatsoever with any of those left behind in Trinidad who were meaningful to her. That is a lot of upheaval for a child so young.
There is a degree of settlement in the father's care.
The child and her father live in a one bedroom basement apartment in the suburbs of this city. They share the bedroom. A curtain separates their "quarters" within that bedroom to give each of them privacy.
On the father's evidence, his landlady has become a pseudo grandmother for the child and that this landlady regards him as a "son". I took into account in this regard that there was no evidence from the landlady on that point.
Although the child began school in Toronto in the public school system, since January 2013 her school is a private school.
School staff at her present school remark positively about her father's care of this child, noting his attention to her grooming, his attention to nutritious foods, her manners and her comfort in her father's company. He himself delivers her to school and picks her up at day's end.
There is not a single mention of this social worker's exploration of this child's sense of her mother, if indeed the social worker even knew that the child had a living mother.
Whether the social worker made any inquiries about the existence of this child's mother and brother and the mother-child and sibling relationship is left unaddressed by the father's case.
So it is that, whatever her experience of the sudden loss of her mother and brother (and there is no evidence to shed light on her presentation in the weeks and months subsequent to her father's abduction of her), she has adjusted over time to her father's parenting and the involvement of others in her life, including his landlady, her neighbourhood, her teachers and those involved community activity.
What, if anything, either the initial school or the private school knows about the circumstances in which this child was brought to Canada, and the mother and brother and grandparents left behind is unaddressed by the father.
The social worker privately retained by father to prepare a report to support his case in Trinidad, overflows with praise for the father's parenting, and points out the child's love for her father and comfort in her father's care.
She is not deeply rooted in her "community" in the sense required by the jurisprudence. Deep roots take time to sink. A child of this age and stage has simply not lived long enough of life to do that to the degree required by the Convention.
Her father cites, without any corroboration, various extra-curricular activities in which she is a participant. There is no evidence of rootedness in any of them.
This school is her second since her father's arrival with her in Canada, and whatever her rooting in the routines and activities in that school, the prospect that this can be her long term school is slim.
On the father's evidence, her private schooling has been paid as part of his enrolment in adult 2nd Career education with Ontario's Ministry of Colleges and Universities, a funding that, on his assertion, also paid his rent and living expenses for both him and the child, including her need for before and after school care for her since their return to Canada. So it is that, as I understand his evidence, he and the child have been funded by the public purse since his return to Canada with her. He appears to have had no employment since his return to Canada. He has no employment at present.
On her Degree of Dependency on her Father
For the last two and a half years, this child has been wholly dependent on her father for her care.
This child's dependency is intertwined with whatever she has absorbed in her father's care about her safety and well-being in the care of anyone else.
The father himself attests as reason for his failure to attend the court proceeding in Trinidad that the child would not stay with any person other than him.
What emerged once her mother came to town is that she is quite capable of trusting her mother's care of her.
Once this child was given contact with her mother, and opportunity to once again experience her mother's caring, it emerged that she is not as embedded in the father's parenting as he would have the court find.
This is not a situation of a mother so long out of the child's sight that mother is now out of the child's mind and heart.
The two and a half years without contact with her mother had not left her bereft of memory of her mother.
Her bonds to her mother survived her father's attempts to position her for rootedness only in him.
She recognized her mother immediately when she first caught sight of her from a distance when her mother came to her school. She approached her without hesitation, displayed delight in her company, and within a brief time, they were deeply into each other's company.
That joy in time together was the trajectory leading up to the hearing itself.
Whatever the "mostly bad things" as she characterized what her father had told her about her mother, they presented no impediment to this child's excitement that her mother had reappeared in her life.
She also displayed obedience to her mother's direction during their time together.
This is also not a case where a child had lost the language of communication needed to converse with the parent left behind. English is the language of communication for both the child and both her parents.
This child has roots in both parents.
The observations of the social worker from the Children's Lawyer's Office are testament to that.
On Her Future Prospects
Whatever other prospects exist for this child in Canada, and I could find little in her life and times that had overwhelming value, the most prominent "prospect" is that she will continue to be separated from her mother.
That the objective of securing her prompt return to Trinidad has been undercut by the passage of time does not lead to a conclusion that this child is now so deeply settled in Canada that she cannot be returned and entrusted to the courts in Trinidad for decisions about her custody and related issues.
Context for the excessive stretch of time is the father's frank disobedience of the orders made by the Trinidad court that required him to return her to her mother's custody. Had he obeyed those orders, much earlier her time in Canada and her separation from her mother and brother would have been much shorter.
In sum, the evidence advanced by the father on the "now settled" issue, set in the context of the evidence as a whole, did not rise to the "compelling" level in the sense required by the jurisprudence to demonstrate that this child is too settled in her new environment to be lifted from it.
In the end, and the whole of the evidence, and adopting the words of Baroness Hale of Richmond, writing for the House of Lords in M., Re, 2007 UKHL 55 (Eng. H.L.), at para. 54, this is not a case where a child, in being returned to Trinidad, "is being made to suffer for the sake of general deterrence of the evil of child abduction world-wide."
For this particular child, notwithstanding the passage of time in Canada, the proper forum continues to be Trinidad.
Father has active litigation in the Trinidad courts in relation to her and her brother, and has succeeded in obtaining a temporary stay of the final custody order granted to the mother by the Trinidad courts.
The bulk of the evidence advanced to support their various allegations about each other prior to the father's removal of this child lies within Trinidad.
So it is that in the actual circumstances of this particular case, the balance tipped in favour of the mandatory obligation to return the child to her home jurisdiction.
Although the repatriation of the child within a year of her unlawful removal has not been accomplished, the evidence as a whole does not support a finding that a return of this child to her home jurisdiction and her mother's care "will only accentuate the harm caused by [this father's] wrongful relocation".
On the contrary, while the parents await the outcome of the litigation already underway in the Trinidad court, it will restore to her everything that the father has withheld from her for the last two and a half years.
So it is that in the end, this court was not satisfied that this child is so settled into her environment with her father that it would harm her to extract her from it and return her home as the Convention requires as its primary objective. Both the interests and the welfare of this child call for her repatriation.
Specific to the Defences Advanced Under Article 13
On the "Grave Risk of Harm if Returned" Defence (Article 13b)
The father advanced his "belief" in two specific sets of circumstances likely to unfold if this child is returned to Trinidad; first, that "Anuradha and I would suffer irreparable harm due to threats that I am aware have been made by individuals in Trinidad to cause me harm, and second, "the intolerable and substandard living conditions available to us in Trinidad"".
The law brought to bear on this belief was guided by Thomson v. Thomson, [1994] 3 SCR 551 per La Forest J. paragraphs 80 and 81 of the decision; Pollastro v. Pollastro, (1999) 43 O.R. (3d) 483 (Ont. C.A.); Jabbaz v. Mauammar, 38 R.F.L. (5th) 103; Wedig v. Gaukel; and Husid v. Daviau, 2012 CarswellOnt 12136, 21 R.F.L. (7th) 336 (Ont. C.A.) per Ducharme, J.A.).
To extract the essence of that jurisprudence:
The test to be met for this defence continues to be that articulated in Thomson.
It is quite deliberate that the word "grave" modifies "risk" and not "harm", and must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion 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.
Evidence advanced in support of this defence is relevant only if it helps prove the existence of one or other of the following circumstances:
When return of the child puts the child in imminent danger prior to the resolution of the custody dispute in the home jurisdiction (e.g. returning the child to a zone of war, famine or disease); or
In cases of serious abuse or neglect or extraordinary emotional dependence when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protections.
So it is that the risk has to be shown to be more than an ordinary risk.
So it is that the risk must be shown to be something greater than would normally be expected on a transition of the child from one parent to the other parent.
The risk be a "weighty one", and also one that is likely to result in "substantial", and not trivial, psychological harm. That is the effect of the words 'or otherwise place the child in an intolerable situation'. An "intolerable" situation is one found to be "unbearable", "too severe to be endured". (In that regard, the Thomson Court adopted the approach of Nourse L.J. in In Re A. (A Minor) (Abduction) as the correct approach).
The defence requires compelling evidence on these points.
Findings
As I understand the father's evidence on this point, return of the child to Trinidad would mean an end to his own ability to preserve relationship with her because he fears for his own safety in Trinidad.
Specific to this Father's Fear for his own Safety
In the end, there is no credible evidence that anyone in Trinidad is waiting to harm him there.
In consideration of the Article 13 defence, he is not the centre of attention.
The father reads far too superficially, the jurisprudential principle that harm to a parent is harm to a child. A parent's subjective belief about his own safety, unpinned from any trustworthy factual basis for the belief, does harms the child, - essentially because it wraps the child in the parent's groundless fear. It is not the harm addressed by the Convention defence.
This defence cannot rest in feelings that have life only in the headspace of the parent who seeks to thwart a return of the child to her home jurisdiction, nor can it rest in speculation or conjecture, and that is all that was offered by the father.
On the whole of the evidence, his subjective belief about risk of harm was disconnected from any factual basis to ground his belief.
Much of what he advanced in support of his stance did not rise to the level of evidence at all.
There was no evidence from anyone who had first-hand knowledge of the "threats" that father advances as a reason for his fear of returning to Trinidad, and the hearsay accounts recited in his case were neither credible nor trustworthy.
His belief about "risk" rested in apparent assertions of his brother who was himself reporting second and third hand information. The father then rushed to connect the hearsay dots without first exploring the reliability of what he was being told.
On his own evidence, in terms of the purported risk of harm to him in Trinidad, the police in Trinidad declined to assist because they found no reason for police intervention. That suggests that his complaint about risk was too weakly grounded at the time to attract any police investigation.
It is not that the father has had insufficient time, because of the time pressures imposed by the court for the hearing of the mother's application, to gather his evidence on the issue of "risk" of harm to him in Trinidad. He has had the whole of the two and a half years that he has held this child in Canada to ascertain the reliability of the information that has formed and fuelled his fear for his safety.
If the father feared for his own safety at the time of his removal of this child from Trinidad, he could have left Trinidad without sweeping this young child into his departure plans.
There is no credible evidence that the child was ever in danger.
So it is that this is not a case where the potential for "grave risk" of harm to a father constitutes "grave risk of harm" to a child.
Specific to His Assertions about Living Conditions in Trinidad
There is no trustworthy evidence that this particular child is being returned to "intolerable" or "substandard" living conditions to the degree addressed by the Convention.
Although the father filed an array of material in support of his "harm if returned" stance, the bulk of that material did not rise to the level of "evidence".
In relation to his assertion of the prevalence of crime in Trinidad, the articles and documents included in his case fail as a sufficient "evidence" base for the same reasons that such material was rejected by the court in the Maharaj v. Maharaj case.
Newspaper clippings downloaded from the Internet for the purpose of showing "conditions" in Trinidad at the time of a particular clipping are not evidence. They attest to the fact that someone downloaded the content, and the fact that those who publish newspapers considered the information worthy of publication. The publication itself is not testament to the reliability of the content.
Travel Alerts issued by Canada, are worthy of attention, but only if the travel alert is current. In the circumstances of this case, it was not.
An article of a working group dated in 2009 addresses a timeframe prior to this family's return to Trinidad in 2011. Whatever the risk of harm, it did not deter these two parents from their return to their homeland with their children.
No harm has been visited on any of the family by the sorts of conditions argued by the father, or by any other condition.
I also noted that this child's older brother has resided with his mother and grandparents in Trinidad over the entire course of time that this father has retained this child in Canada. On the evidence pertinent to that now seven year old child, he is thriving in his home jurisdiction with his mother and grandparents.
On the Father's Assertion of Risk embedded in Domestic Violence
This aspect of the father's case did not rise to the degree required for an Article 13 defence.
What is described by each parent in terms of the deterioration of their relationship is not the stuff that grounds a basis for keeping this child in Canada.
The father's assertions about the maternal grandparents are quite vicious, but wholly uncorroborated. In circumstances where he has laid down such deception in his dealings with this child and the mother, it behooves a court to be wary of such venom.
It is an aspect of the father's case to be sorted out, if needed, by the Trinidad court.
On his own evidence, the argument that prompted him to take himself and this child to the police station to complain about the mother on November 2, 2011, had no extraordinary features to it. On the evidence of each parent, altercations played out as their relationship fizzled. No serious physical harm had come to either of them. There is no evidence (as opposed to speculation) that there was anyone standing in the shadows waiting to do harm to him.
So it was that, on the whole of the evidence, I found no risk of physical or psychological harm to this child if she is returned to Trinidad and entrusted to the courts in Trinidad for decision-making about her.
On the whole of the evidence, there is no "intolerable" situation awaiting this child in Trinidad on a return of her to her home jurisdiction.
On Attention Given to the Perspective of This Child
The assistance of the Children's Lawyer was requisitioned, not for the sole purpose of obtaining the views and wishes of this young child, but rather to provide a perspective, independent of the parents, on this child's reaction to the reappearance of her mother in her life.
There is a substantial body of jurisprudence articulating the proposition that children of this child's age and stage are too young and immature to have a court take into account her "views", as that concept is to be interpreted in Article 13. Mme Justice Lucy Glenn has catalogued that jurisprudence admirably at paragraph 7 of her decision in M.L.E. v. J.C.E. (No. 2), 2005 ONCJ 89.
Her conversations with the Children's Lawyer social worker yielded the finding that this child has positive feelings about both of her parents, and wants both of them in her life on a go forward basis.
From the child's perspective, neither the passage of time nor her perception (rightly or wrongly) that what her father had told her about her mother was "mostly bad things", had detached her from her love of her mother.
On Certain Aspects of the Evidence
This decision-making was made on the face of the affidavits and their appendices and documents filed in the case, with focus only what was pertinent to this particular adjudication.
I say that because, on a plain read, father directed considerable attention to the merits of his hopeful appeal of the Trinidad custody order by giving this court essentially the case that he has filed there, - all of which must be left in the hands of the appeal court without commentary from this court, - and competing "best interests" considerations that also must be left to the court of her home jurisdiction to sort out.
I was on watch throughout the case for the need for a trial of any issue material to the adjudication of this application. Quite properly, on my read of the evidentiary record, none of the three counsel sought trial of an issue.
On the whole of the evidentiary record, the sorts of credibility findings needed in order to fairly determine those facts relevant to the Hague Convention did not require cross-examination of either parent. In the circumstances of this case, those determinations could be made and were made on the face of the record.
It was not that the parents were "ad idem" on everything pertinent to the adjudication. The affidavits of these parents were conflicting on all manner of things. They actually describe each other and members of each other's families in quite uncomplimentary language, - all of which is properly left for the eyes and ears of the Trinidad court.
On the Father's Approach to the "Transcript" of the Trinidad Proceedings
I accepted as valid objection Ms. Mancia's stance that what has been produced by the father as a transcript of the proceedings in Trinidad is not a proper transcript.
Confirmation of the transcription's accuracy cannot rest in an affidavit of the father's Trinidad based lawyer that his secretary accurately typed content from an audiotape. In the eyes of this court, what is needed is a transcript prepared by a qualified transcriber independent of the father and the mother, and certified by the court to be an accurate transcription.
That this father left it so late in the day to obtain a transcript of the Trinidad proceeding is misfortune that he visited on himself. The time to ascertain why the court had made a custody order for these children in favour of their mother was the time that he was made aware of the order itself, and that was months before the launch of the mother's reach to this court.
The transcript is irrelevant to this court's decision-making in any event. This court does not go behind it, nor did that order determine this court's decision to order return of this child to her home jurisdiction.
On the Father's Inclusion of the Documents filed in his Appeal
I understood from counsel that the portion of the father's evidentiary record dedicated to his application to the Trinidad court for leave for late appeal of the Trinidad custody order is before this court as testament to his efforts to gain response from that court.
On my read, his efforts to gain response from the Trinidad court appeared largely due to his failure to hold himself within the procedural law required in that jurisdiction for response to an active case.
On the Report of the Privately Retained Social Worker
This letter was not prepared for the purposes of this adjudication. Father's counsel indicated that it is a letter prepared for the benefit of father's appeal process in the Trinidad court, and part of the documentation that the father has included in his case to inform this court about the merits of his appeal.
It was nonetheless included in the father's case as part of his "now settled" defence of the application.
I address it only to explain why it was not valued by this court in this adjudication.
Even if it had been cast in sworn affidavit form, as it should have been, the content of the letter was too "gushing" to attract confidence that it had been prepared with the detachment needed for a report of this nature.
That the father and child have a loving relationship is made out by other evidence in the case.
On the Implementation of the 'Return' Order
At the close of the hearing, this court declined the request of father's counsel that implementation of this "return" order be delayed until the results of the father's quest for appellate relief in the Trinidad court are known.
I took into account in this regard that father's application for that "leave" for late appeal is scheduled for hearing in Trinidad later this month. I also took into account that the father has recently obtained a stay of the custody order granted to the mother to that court date in Trinidad.
On my read of the Convention, a removal order, once made and intended to be implemented "promptly", cannot then be shelved to await the sorts of developments raised by the father in this case. He, like all other participants in this case, is required to act in a manner that furthers the objectives of the Convention for this child.
I also declined to delay implementation of the return order to the end of the school term.
For a child this young, it better served this child's interests to have her in the physical care of her mother on the mother's return flight to Trinidad, and in her mother's physical care throughout the arrangements that had to be made for her return to Trinidad.
Her scheduled return date was approaching, and there were tasks to be accomplished for this child.
Mother needed to make flight arrangements for the child, and link the child's ticketing to her own.
Although her counsel indicated that the mother would do her best to try to stay longer in Toronto if required by the court, it made no common sense to escalate her costs in that regard. It made common sense to position the child for travel with her mother on mother's already scheduled flight.
As part of the travel arrangements needed for the child, the mother needed to obtain a passport for her. The father, who had taken the child's Canadian passport when he took the child from Trinidad, had allowed the passport to expire.
It also made sense to distance this not quite six year old child from the father's own grief about the court's decision.
When the decision was announced, the case was stood down after to enable counsel and the parents to put in place transitory measures for the transition back to Trinidad. The agreed upon conditions were then made part of the implementation of the "return" order.
I found nothing in the circumstances of this case that, in the name of meeting the purpose and spirit of the Convention, required anything more for this child than the return of her to Trinidad in the company of her mother on the terms stipulated in the order.
There was no reason in the child's interests, to elongate her father's unlawful retention of her in Canada.
The return order requires her to be in her mother's parenting and physical custody pending that decision-making.
The documents taken by the father in relation to this child were returned to her at the close of the hearing.
The father's passport continues to be held by this court pending confirmation that the child and mother have arrived in Trinidad.
On the Issue of Costs
The Ontario Court of Appeal made plain in Husid v. Daviau that this court has jurisdiction to award costs in a Hague case, relying on subrule 24(1) of the Family Law Rules; in short, that the limitation on imposing costs addressed by Article 26 of the Convention is not a limitation on the court.
The mother, as the successful party, in presumptively entitled to her costs of this proceeding.
If the parties cannot otherwise settle the costs issue, brief written submissions (no more than three pages from each party) will be received, together with the Bill of Costs and supporting documents, for a Chambers adjudication.
These Reasons are to be released to counsel of record today.
Deadline for applicant: July 15, 2014.
Deadline for respondent: July 30, 2014.
Acknowledgment
It was the fine work of all three counsel in this case, in relation to their evidentiary records, their submissions and their careful attention to the jurisprudence relevant to the issues in dispute, that held this process within the objectives and dictates of the Convention and enabled prompt decision-making for this child.
I am mindful that they accomplished that work at the cost of having to suspend other commitments, both personal and professional. It was lawyering in the finest traditions of the Bar.
I am also mindful that the Office of the Children's Lawyer was similarly called upon to work within a very short timeframe. The report provided a focused pulse on this child, and was very much appreciated.
Released: June 10, 2014
Heather L. Katarynych Ontario Court Judge