Court File and Parties

Brampton Registry No.: 1339/14 Date: 2015-01-16 Ontario Court of Justice

Between: Wioleta Magdalena Grabowska, Applicant

— And —

Zbigniew Stanislaw Mielnik, Respondent

Before: Justice Patrick W. Dunn

Heard on: 9 January 2015

Reasons for Judgment released on: 16 January 2015

Counsel:

• Molly C. Leonard, for the applicant
• Mariola Bednarska, for the respondent

Judgment

[1] JUSTICE P.W. DUNN:— Wioleta Magdalena Grabowska brought an application dated 3 November 2014 and the respondent was Zbigniew Stanislaw Mielnik. The parties are the parents of Wiktoria Mielnik, born on 5 May 2007 (the "child"). The applicant lives in Poland and the respondent in Mississauga, and they are not married.

[2] In the application, the applicant requested orders:

1. That the child was wrongfully detained in Ontario by the respondent, pursuant to the provisions of the Convention of the Civil Aspects of International Child Abduction (the "Hague Convention");

2. That the child be returned to the applicant, pursuant to articles 12, 18 and 22 of the Hague Convention;

3. Directing police forces to locate and apprehend the child and deliver her to the applicant, pursuant to section 36 of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended.

[3] The applicant also brought a motion, dated 30 October 2014, requesting the same relief as in her application. The respondent asked that the application be dismissed, and that the child be allowed to remain with him in Mississauga. He alleged that the child's welfare would be at risk if she were returned to Poland.

[4] The application and motion were served on the respondent on 15 July 2014. Mr. Patel, agent for Ms. Leonard for the applicant, and the respondent with duty counsel, first appeared in this court on 17 November 2014 before Justice Lise S. Parent.

[5] That Judge found that procedural issues needed to be addressed before the Hague application could proceed further. Hence, there was an adjournment to 4 December 2014, for the respondent to obtain a lawyer, and to consider whether the application was properly before the court.

[6] On 4 December 2014, Ms. Leonard for the applicant, and the respondent with a Polish interpreter, reappeared before Justice Parent. The respondent requested a hearing in February 2015, but Ms. Leonard asked for a date as soon as possible. Justice Parent ordered 9 January 2015 as the time for a hearing. Her Honour determined:

(1) Hague applications should be considered as soon as possible;

(2) despite the respondent's intentions to retain a lawyer, he had not yet done so, and he had had from 15 July 2014 to make that happen; and

(3) the hearing should not be delayed just because any lawyer the respondent engaged may not be available.

[7] On 4 December 2014, Justice Parent set filing deadlines for materials to be served and placed before this court.

[8] There were difficulties with the applicant's materials arriving from Poland during the busy Christmas season. They were filed late between 5 and 9 January 2015. The respondent filed his answer and a motion on 7 January 2015. The respondent's affidavits were all filed by 9 January 2015. Neither lawyer objected to late filing by either party.

[9] However, during the hearing on 9 January 2015, Ms. Bednarska sought an adjournment for the respondent to file further documents. The court denied the request because the respondent had from the date of service of the application, 15 July 2014, to prepare his materials and engage a lawyer, and his tardiness should not be excused or rewarded at the applicant's expense.

[10] At the outset of the hearing, the court dealt with the respondent's request in his motion that an oral hearing be held with viva voce evidence from the applicant and several other witnesses. The request was denied because Hague convention applications are typically heard on affidavit evidence. Katsigiannis v. Kottick-Katsigiannis, 55 O.R. (3d) 456, 144 O.A.C. 387, 203 D.L.R. (4th) 386, 18 R.F.L. (5th) 279, [2001] O.J. No. 1598, 2001 Carswell Ont 2909 (Ont. C.A.).

[11] Judges are to admit oral evidence only in exception cases. Cannock v. Fleguel, 2008 ONCA 758, 242 O.A.C. 221, 303 D.L.R. (4th) 542, 65 R.F.L. (6th) 39, [2008] O.J. No. 4480, 2008 Carswell Ont 6633 (Ont. C.A.). Also the costs of the applicant and potential witnesses travelling to Canada for a hearing would have been prohibitive and could lead to much further delays.

The Facts

[12] The parties were born in Poland and resided together there at the time of their daughter Wiktoria's birth on 5 May 2007. The child had always lived with the applicant until 21 July 2014. In about August 2011, when Wiktoria was about 4 years old, the respondent moved to Canada and the applicant and Wiktoria continued to dwell in Poland. The respondent remained in communication with the applicant and their daughter by telephone, skype and e-mail. In June 2014, the respondent obtained a personal work permit to allow him to work in Canada.

[13] It was the respondent's position up to and including June 2014, that the parties planned for the applicant and Wiktoria to come to Canada to join him, and for the applicant to gain employment in Canada. He averred that he had "reserved" airline tickets for them to fly to Canada in late June or early July 2014. However, the respondent stated in his affidavit sworn on 29 December 2014 that, by the end of June 2014, the applicant sent an e-mail to state that she could not leave Poland in June 2014 because her graduation for courses she was taking would not occur until September 2014. With that information, the respondent cancelled the airline tickets for the applicant and child. The respondent also claimed that he applied for a work permit for the applicant as well as for himself, but there was no clear proof of that. The respondent had no proof for any of his allegations against the applicant.

[14] On 10 July 2014, the respondent came to the applicant's home in Poland and asked to take Wiktoria on a vacation. The applicant agreed, and the next day the respondent picked up his daughter for a holiday in Poland. After their departure, the applicant discovered that Wiktoria's passport and health card were missing. The applicant reported the removed passport to the appropriate agency, and it was cancelled as of 15 July 2014. However, after a week, the respondent and child returned to the applicant's residence. Then on 21 July 2014, the respondent asked the applicant if he could take Wiktoria to the zoo. Permission was granted, but the respondent did not return the child to the applicant, and it is now known that he took Wiktoria to Canada.

[15] This issue of whether the applicant consented to the child's removal was in serious dispute. The respondent claimed the applicant did assent, and she denied doing so. The respondent's version of events, leading to his decision to leave with the child for Canada in July 2014, varied significantly from that of the applicant's. In early July 2014, the respondent claimed he had concerns about the applicant's care of their daughter. He alleged that Wiktoria told him that her mother drank with unknown men and neighbours and that she smoked at home. One such man was "Jack" who slept with the applicant. Wiktoria voiced threats that the applicant beat her. The child, as reported by the respondent, asked him to come to Poland and take her back to Canada with him.

[16] The respondent claimed he asked the applicant whether he could return to Canada with Wiktoria. (Paragraph 25 in respondent's affidavit sworn on 29 December 2014):

The applicant replied by saying "She did not need Wiktoria for anything" and that "I could take Wiktoria with me if I wanted to." Wiktoria was present during this conversation and that same evening, Wiktoria gave me her passport. Both Wiktoria and I told the applicant that I had Wiktoria's passport, and would be leaving with Wiktoria for Canada.

[17] The applicant filed a request for a return of child to the National Organ in Poland, pursuant to the Hague Convention. The request was dated 6 August 2014. The request was forwarded to the Central Authority in Ontario, and the respondent was located in Peel Region. The applicant retained legal representation in August 2014.

[18] The applicant had two court proceedings in Poland. One sought an order for her to have sole future decision-making decisions about the child, the second requested an order for Wiktoria to reside with her. On 12 November 2014, the court in Poland stayed those proceedings until the Hague application before this court is decided.

The Law, Pursuant to the Hague Convention

[19] The legislation requires a court to make certain determinations. Two are:

• Was the child habitually resident in Poland?
• Did the applicant begin her Hague application within one year, after the date of the wrongful removal?

[20] Ms. Bednarska conceded these issues. The respondent agreed that Wiktoria was habitually resident in Poland before July 2014, and that the applicant began her proceedings within one year after July 2014.

Was the Applicant Exercising Custodial Rights at the Time of the Wrongful Removal?

[21] The next enquiry was whether the applicant was exercising custodial rights as of July 2014. The respondent did not agree that she was, but the evidence was clear that the applicant maintained custodial rights. Her right to custody was established under the Polish Family and Guardianship Code. Article 92 stated that an underage child is under the authority of his or her parents. Article 93 dictated that parental authority applied to both parents.

[22] The applicant established that she was actually exercising parental rights at the time of Wiktoria's removal and that the respondent was not doing so. The evidence in this regard was:

1. The applicant was in control of Wiktoria's schooling, medical care and sponsoring the child's involvement in extra-curricular activities.

2. The activities in which Wiktoria was engaged were extensive. The applicant:

   • provided certificates of completion by Wiktoria in English language, skiing and swimming. The child was awarded a school certificate of achievement;
   • enrolled Wiktoria in dance, rhythmic classes and volleyball; and
   • Wiktoria went on excursions, and there were many engagements with the applicant's family of origin, especially with the child's maternal grandfather.

[23] It was clearly evident to the respondent, or it should have been, that Wiktoria was living with and parented by the applicant when he came calling in July 2014. The respondent acknowledged the applicant's custodial right when he requested her permission to take Wiktoria on a vacation, and when he returned the child to her residence.

Did the Applicant Consent to Wiktoria's Removal to Canada?

[24] The next question was crucial to whether the child should be returned to the applicant. Did she consent to Wiktoria's going to Canada with the respondent in July 2014? The court finds that the answer is no. The applicant cancelled the child's passport when she found it missing after 11 July 2014. If the respondent was correct that the applicant consented to their daughter's departure to Canada, there is no reason why the applicant would cancel the passport. Furthermore, the applicant proved that she had the passport annulled.

[25] Subsequently the applicant took the appropriate steps to launch a request for the return of the child under the Hague Convention. She brought court proceedings in Poland and in this court at pertinent times. Until the Central Authority for Ontario could locate the respondent, there was little more the applicant could have done to pursue her claim. I cannot find that at any point the applicant acquiesced to the child's removal from Poland. At all times, she did her utmost to effect the return of the child to her.

Is There a Grave Risk That the Child's Return to Poland Would Expose Her to Physical or Psychological Harm, or Otherwise Place Her in an Intolerable Situation?

[26] The respondent claimed there is such a grave risk. He pointed in his materials to the applicant's affinity for liquor, her debauchery, her failure to toilet train the child (at age seven). His further allegations included:

• The applicant threatened to kill Wiktoria and herself, if he sought the child's custody.
• The applicant threatened Wiktoria with beatings.
• The applicant's apartment was in a dirty and smelly condition.
• The applicant was not permitting access to the paternal grandparents.
• The applicant's mother apologized to the respondent for not raising the applicant to be a good mother and wife.
• The applicant threatened to take Wiktoria's and her own life, if the respondent were to remove the child to Canada.
• The respondent said Wiktoria believed she always annoyed the applicant. In his affidavit sworn on 29 December 2014 he wrote:

Her mother told Wiktoria that she perceived Wiktoria as an inconvenience. The applicant never cared whether Wiktoria was happy, healthy, fed or clean. It was Wiktoria's maternal grandfather who looked after her feeding and cleaning, because her mother was too busy to care for her.

• Sexual abuse was perpetrated by the maternal grandfather.

[27] The respondent brought a panoply of allegations why the child would not be safe in Poland with the applicant.

[28] There were virtually no derogatory allegations that the respondent missed. The difficulty with his position in this regard was that it was so encompassing, so all condemnatory that it eschewed belief. No one person could be as bad as the respondent described the applicant.

[29] The evidence pointed to a contrary position. The applicant proved that Wiktoria has been a contributing member of society. She was in school, and in sports activities. If this child was as neglected as the respondent claimed, her maladjustment would surely have come to the attention of child welfare authorities. From the certificates filed, it was clear that the young girl was not only a participant, but that she followed through on courses until their successful completion.

[30] Wiktoria's primary school did a report for the year 2013-2014. It noted:

Wiktoria's complies with social standards . . . no conflicts with other children . . . She helps her peers . . . is liked by other children. She has good relationships with adults.

[31] Of particular interest to this court was the school's note about Wiktoria's hygiene. It stated:

Wiktoria is independent as far as hygiene is concerned. She undresses and dresses . . . on her own. She remembers to wash her hands.

[32] These latter statements did not concur with the respondent's belief that the child was not toilet trained in July 2014. The school had no criticism of the applicant's care of her daughter.

[33] The court concludes that Wiktoria would not be exposed to harm if she were returned to Poland, but that she would be rejoining a healthy and happy home.

Does the Child Object to Being Returned to Poland (Taking Into Account the Child's Age and Degree of Maturity)?

[34] Very helpful information about this question was provided in the affidavit of one Helena Stefaniak, sworn on 6 January 2015. This deponent was engaged by the respondent to provide child care for Wiktoria in the summer of 2014. Ms. Stefaniak stated:

7. Wiktoria told me every day I saw her that she wished to return with her mother in Poland. When she said this in front of her father, he would immediately begin talking her out of it.

8. Sometimes I mentioned my own plans to go to Poland. Wiktoria would cry, saying that she wanted to go with me.

[35] There is no reason to doubt the truth of Ms. Stefaniak's assertions. She no longer was employed by the respondent, and she had nothing to gain by making the statements she did. The girl repeatedly expressed her wish to someone she trusted, to want to return to Poland.

[36] I appreciate that Wiktoria, at seven years, is too young independently to determine her own future. However the school report indicated that she was intelligent and capable of clear thought. Heavy weight should be given to Wiktoria's wishes to return to Poland.

[37] It did not help the respondent's credibility that he had no complaints about the applicant's caregiving ability during the three years he was in Canada. It was not until July 2014, when he wanted to remove his daughter that suddenly he saw parenting deficiencies in the applicant.

Has the Child Settled Into a New Environment in Canada?

[38] It is not necessary for this court to consider the issue. Article 12 in the Convention only required consideration of the question if a year had elapsed between the time of the wrongful removal and the time the Hague proceeding commenced. That is not the case on these facts. However, it is instructive to observe how little information the respondent gave about the child's adaptation to Canadian life. In his affidavit sworn on 29 December 2014, he stated:

36. Soon after my daughter's arrival in Canada, I rented an entire house and registered my daughter in school. I rent one room to Robert Borowik. Wiktoria has full access to all medical benefits through my OHIP insurance.

37. I work hard to support my daughter. My daughter attends a Catholic school. Wiktoria has evolved so fast here in Canada, and I believe with all my heart that Canada is our only hope for survival and a better life standard.

38. Wiktoria has adjusted to life in Canada.

[39] Even though Wiktoria has been with her father for almost six months, the respondent gave no explanation of how the child has adjusted to Canadian life. This dearth of information raises the specter that the respondent knew little about how his daughter was faring under his tutelage. It may be that he spent little time with the girl. Ms. Stefaniak's affidavit observed:

5. While I worked for the respondent, he was working long hours, typically from the morning until 7:00 p.m., five or six days a week. Wiktoria told me, and I verily believe, that sometimes he would take Witktoria with him to work, and she would sit and wait for him for hours.

Orders

[40] This court concludes that, under the Hague Convention, the child should be returned to the applicant in Poland. The following orders shall issue:

1. An order finding that the child of the marriage, namely Wiktoria Mielnik, born on 5 May 2007, is being wrongfully detained in Ontario by the respondent father, Zbigniew Stanislav Mielnik, pursuant to the provisions of the Convention of the Civil Aspects of International Child Abduction (the "Hague Convention");

2. An order returning the child to the care and control of the applicant mother, Wioletta Magdalena Grabowska, forthwith, pursuant to articles 12, 18, and 29 of the Hague Convention;

3. An order, pursuant to section 36 of the Children's Law Reform Act, directing the police forces in the Province of Ontario, including but not limited to the Peel Regional Police, Metropolitan Toronto Police, Halton Region, and/or any such law enforcement agencies as may have jurisdiction, such as the RCMP, to do all things that may reasonably be done to locate and apprehend the child, and deliver her to the applicant mother, forthwith.

4. The respondent's motion is dismissed.

I thank Ms. Leonard and Ms. Bednarska for their careful and thorough presentations. If there is a request for costs, it should be addressed in writing to the attention of Ms. Laurie Findlay, Judicial Secretary, Brampton Courthouse, 7755 Hurontario Street, Brampton, L6W 4T6.

Released: 16 January 2015

Justice Patrick W. Dunn