J.T., Jr. v. S.L.T.

[Indexed as: T. (J.) v. T. (S.L.)]

Ontario Reports

Ontario Court of Justice

E.B. Murray J.

February 11, 2016

129 O.R. (3d) 453 | 2016 ONCJ 83

Case Summary

Family law — Children — Hague Convention — Parties unmarried parents of child who was born in Mexico — Parties taking child to father's home in Chicago several months after birth — Respondent entering Ontario with child three weeks later and claiming she was fleeing abusive relationship and that she only accompanied father to Chicago to enable flight to Canada — Father obtaining emergency order of protection from Illinois court which granted him temporary care and physical possession of child and directed mother to return child to him — Father's application under Hague Convention for return of child to him dismissed — Evidence not establishing on balance of probabilities that mother had settled intention to reside in Illinois when she went to Chicago — Illinois not child's habitual residence — Child having no habitual residence — Hague Convention not applying — Hague Convention on the Civil Aspects of International Child Abduction.

The parties were the unmarried parents of a child, M, who was born on February 14, 2015 in Mexico. The mother was born in Nova Scotia and lived for most of her life in that province and in Ontario. The father lived in Chicago, Illinois. On June 15, 2015, the parties flew from Mexico to Chicago with M. On July 2, 2015, the mother left, taking M with her. She and M entered Canada on July 6, 2015. She claimed that she was fleeing an abusive relationship, that she only went to Chicago with the father because he was holding her travel documents and that she fled with M at the first available opportunity. The father denied the allegations of abuse. On July 6, 2015, he obtained an "emergency order of protection" from an Illinois court granting him "temporary care and physical possession" of M and directing the mother to return M to him. The father brought an application under the Hague Convention on the Civil Aspects of International Child Abduction for the return of M to Illinois.

Held, the application should be dismissed.

No legal agreement or court order from Mexico with respect to the custody of M was in force, and there was no evidence before the application judge as to Mexican custody law. As foreign law was not pleaded or proved, it was assumed to be the same as the lex fori. Pursuant to s. 20(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, both parties were equally entitled to custody of the child while they were in Mexico. The father had a settled intention to make his home in Chicago when the parties left Mexico. However, the evidence did not establish on a balance of probabilities that the mother had a settled intention to reside in Chicago when she entered the U.S. As there was no reliable evidence that the parties had a joint settled intention to reside in Illinois, Illinois was not M's habitual residence at the relevant time. M had no habitual residence. Accordingly, the Hague Convention did not apply.

If that conclusion was wrong and the Hague Convention did apply, the mother's removal of M from the U.S. on July 6, 2016 was not wrongful. It would only be wrongful if the father had custody rights under Illinois law. Illinois law does not automatically give unmarried fathers custodial rights of any kind, and the father did not take the steps that are required under Illinois law to establish a legal parent/child relationship. Pursuant to Illinois law, the mother had a legal parent/child relationship with M. The father acquired rights of custody by virtue of the July 6, 2015 order. However, the evidence established that the order was made at least two hours after the mother and M entered Canada. At the time M left the U.S., only the mother had rights of custody.

Cases Referred To

Blanchard v. Wuest, 2000 BCSC 592; Chan v. Chow, 2001 BCCA 276; Courtney v. Springfield; Fasiang v. Fasiangova, 2008 BCSC 1339; Finizio v. Scoppio-Finizio; Fortowsky v. Roman Catholic Children's Aid Society for County of Essex; Jackson v. Graczyk, 2007 ONCA 388; Johnson v. Jessel, 2012 BCCA 393; Korutowska-Wooff v. Wooff; Madrigal v. Castro, 2015 ABQB 312; Thomson v. Thomson; W. (V.) v. S. (D.); Wilson v. Huntley.

Statutes Referred To

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 57.2

Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 20(1), 41

Illinois Domestic Violence Act of 1986, 750 ILCS 60, ss. 103(1), (3), (6), (7), 201(a), 214, 217(a)(3)

Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5

Illinois Parentage Act of 1984, 750 ILCS 45

Treaties and Conventions Referred To

Hague Convention on the Civil Aspects of International Child Abduction, arts. 3, 5, 12, 13, 14

Authorities Referred To

Eekelaar, J.M., "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281

Application

APPLICATION for an order under the Hague Convention on the Civil Aspects of International Child Abduction for the return of a child.

Theodore Nemetz and Lauren Speers, for applicant.

Cynthia Mancia and Julia Vera, for respondent.

Decision

[1] E.B. MURRAY J.: — J.T. and S.T. are the father and mother of a son, M., born February 14, 2015 in Mexico. The couple's tumultuous relationship began in the summer of 2013, and was carried on in Toronto, Chicago, Los Angeles and Mexico, punctuated by nine separations. S. says that the separations happened when she fled J.'s violence and abuse; J. says they were a result of S.'s fragile mental health.

[2] On June 15, 2015, J. and S. flew to Chicago, Illinois with the child. On July 2, 2015, S. left J., taking M. with her. On July 6, 2015, she and M. entered Canada and made their way to Toronto, where they continue to reside. J. feared that S. would do this, and began proceedings on July 6 in Chicago in which he obtained an "emergency order of protection" granting him "temporary care and physical possession" of the child and directing S. to return the child to him.

[3] J. makes an application under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") asking that M. be returned to Illinois. S. opposes his application. This is my decision on his application.

A. The Hague Convention

[4] The purpose of the Convention is to secure the return of children who are wrongfully removed from the state of their habitual residence, to ensure that the issue of custody is determined under the laws of that state. If a child has been removed or retained in violation of a person's right to custody of that child, then the contracting state where the child is located must order the return of the child to his home state, absent certain limited exceptions.

[5] The relevant provisions of the Convention and the case law are set out below.

[6] Article 3 of the Convention provides:

The removal or the retention of a child is to be considered wrongful where

a) it is in breach of rights of custody attributed to a person, an institution or any other body, 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 removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

[7] Article 5 defines "rights of custody":

For the purposes of this Convention

a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[8] A person applying for an order of return of a child has the onus to establish the following, on the balance of probability:

• that the state to which he asks that the child be returned is the child's habitual residence;
• that he had a right of custody and that he was exercising that right at the time of removal or retention; and
• that the removal was wrongful, and done without his consent or acquiescence.

[9] Article 12 provides that a contracting state shall order the return of a child to the state of his habitual residence if an application for an order of return is made within a year.

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

[10] Article 13 of the Convention sets out certain defences to a request for return of a child.

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that --

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central competent authority of the child's habitual residence.

1. Habitual Residence

[11] Habitual residence is not defined in the Convention. Case law provides guidance as to the meaning of the term.

The question of habitual residence is a question of fact to be determined based on the circumstances.

A habitual residence is the place where a person resides for "an appreciable period of time" with "a settled intention" to do so.

In order to be recognized as a habitual residence, the residence must be adopted voluntarily.

The existence of a "settled intention" is determined by reference to intention immediately prior to the physical move to the new residence.

A young child's habitual residence is determined by the habitual residence of his custodial parent(s). If only one parent has legal custody of a child, that child's habitual residence is the place where that parent had a settled intention to reside and in which he or she did reside for an appreciable period.

If a child's parents have joint custody, then that child's habitual residence is the place where his parents jointly had a settled intention to reside and where they did reside for an appreciable period. The intention must be joint; one parent cannot unilaterally change a child's habitual residence.

Parties need not intend a place to be their permanent home for it to be deemed their habitual residence under the Convention. All that is required is their residence in that place for an appreciable period of time.

Settled intention alone is not sufficient to establish a habitual residence. The child actually has to move and be there for an appreciable time.

[12] The decision of Justice Donna Martinson in Fasiang v. Fasiangova, supra, contains guidance as to some factors to consider in determining both "settled intention" and "appreciable period" of time. In that case, a child's parents had decided to leave British Columbia after living there for three years and return to live in their native Slovakia. Father gave up his job and the parties gave up their apartment. Mother and child went ahead with their belongings to Slovakia. Father followed. Twenty-three days later, Mother decided that the marriage was over, and returned to B.C. with the child. Father petitioned under the Convention to have the child returned to Slovakia.

[13] Justice Martinson ordered the child's return, finding that when Mother and child left B.C., the parents had a settled intention to live in Slovakia, and that the child had lived there for an appreciable period.

[14] Justice Martinson set out a non-exhaustive list of factors indicating settled intention:

1. Both parties have relocated to the new state;
2. The custodial parent is employed in the new state;
3. The custodial parent had taken steps to satisfy the immigration requirements of the new state;
4. The children were enrolled in school in the new state;
5. The parents had purchased one-way tickets to the new state; and
6. Accommodation has been arranged in the new state.

[15] She went on to address some factors which are taken into account in determining whether residence "has been for an appreciable period of time such that habitual residence has been established":

. . . bringing personal possessions to the new country; taking the necessary steps to establish residence before travelling to the new country; having a right of abode in the new country; seeking to bring family members to the new country; and, having "durable ties" with the new country.

[16] It is possible that a child will have no "habitual residence" as defined by the Convention. That was the situation in Jackson v. Graczyk, 2007 ONCA 388, a case in which the Ontario Court of Appeal upheld a finding by a trial judge that the child had no habitual residence. In Jackson, the mother gave birth in Florida after living there a few years. Mother was subject to a deportation order and left Florida when the child was two and a half months old, returning with him to her home state of Ontario. The father was present in Florida at the child's birth, had some contact with the child, and then moved to Texas, where he began an application under the Convention asking for the child's return. The trial judge refused the application and was upheld by the Court of Appeal. The trial judge found that the child had not lived in Florida for an appreciable period, and that the mother did not have a settled intention to remain in Florida.

[17] The Court of Appeal found in Jackson that if a child has no habitual residence, then the Convention will not apply.

[18] J. asserts that Illinois was M.'s habitual residence at the time of his removal. S. says that M. had no habitual residence as understood by the Convention.

2. Rights of Custody

[19] Rights of custody are determined in reference to the law of the state of habitual residence. Those rights can be granted by statute or court order or by an agreement between the parents that has legal effect in the state of habitual residence.

[20] Rights of custody are not, however, restricted to what constitutes legal custody according to the internal domestic law of the state of habitual residence. Justice Claire L'Heureux-Dubé held as follows on this issue in W. (V.) v. S. (D.):

States may define the term "custody" in whatever way they choose, but what is essential for determining their obligations under the convention is the definition used in the convention. This definition is open-ended in that it specifies rights of custody as including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence (article 5). Such rights, by whatever name they might be called in a state's domestic legal system, are "rights of custody" for the purposes of the convention and are protected by it. [Emphasis added.]

As a result:

The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression "rights of custody", for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention[.]

However, although the Convention adopts an original definition of rights of custody, the question of who holds the "rights relating to the care of the person of the child" or the "right to determine the child's place of residence" within the meaning of the Convention is in principle determined in accordance with the law of the state of the child's habitual place of residence.

[21] The Convention also contemplates that an institution or other body may have rights of custody. The Supreme Court of Canada held in Thomson v. Thomson that a temporary non-removal order issued in a dispute about a child's custody created a right of custody in the court, because the purpose of the order was to preserve the jurisdiction of the court to make a final order as to custody.

[22] One issue in this case is whether J. had rights of custody in Illinois by operation of law or by court order at the time that M. was removed from the U.S.

B. Illinois Law

[23] I requested counsel to provide the court with expert evidence as to the law in Illinois as to custody, as that term is understood in the Convention. Counsel made attempts but were ultimately unsuccessful in obtaining such evidence and recently asked that I proceed to decide the case based on the material available.

[24] Article 14 of the Convention provides that a court in determining whether there has been a wrongful removal may take judicial notice of the law of the habitual residence of the child. Counsel provided and I considered Illinois legislation in force at the time M. was removed from Illinois provided by counsel: the Illinois Parentage Act of 1984, 750 ILCS 45, the Illinois Domestic Violence Act of 1986, 750 ILCS 60 and the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5. (I found that the last statute had no application to this case, as the parties were never married.)

[25] Counsel also provided and I also considered a memo from Illinois Legal Aid prepared for lawyers on the relevant issues and a bulletin from the Chicago Police Department prepared for its officers and offered to the public as to who has parental rights in the state.

1. Illinois Parentage Act

[26] Unlike the law of Ontario contained in the Children's Law Reform Act, Illinois law makes a distinction between the rights of married parents and of unmarried parents. Under Illinois law, an unwed biological mother of a child has custody of that child, unless a court order grants custody to a father or some other person. An unmarried father has no rights, unless he first establishes his legal relationship to the child as set out in the Parentage Act. Only after the father has legally established that relationship may he commence an action seeking custody of or access to that child.

[27] I set out below the evidence provided that led me to this conclusion.

[28] The Illinois Parentage Act provides as follows:

Section 2 of the Act defines the parent and child relationship as "the legal relationship existing between a child and his natural and adoptive parents incident to which the law confers or imposes rights privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship".

Section 4 provides that the child's relationship to his natural mother is established by proof of her having given birth to the child.

Sections 5 and 6 provide that a child's relationship to a natural father is established in one of four ways:

• he is married to the mother at the time of conception or birth;
• he marries the mother after the birth, and is named with his consent as the father on the child's birth certificate;
• he and the mother sign and register an acknowledgement of paternity in a prescribed form;
• he and the mother sign and register an acknowledgment of parentage under a prescribed form.

Section 7 provides that a court action may be brought to establish the legal existence of a father/child relationship.

Section 6(e) provides that after a parent and child relationship is established, a petition may be issued asking for custody, access or support.

[29] The Act sets out no provision for establishing a father/child relationship by registration of a foreign birth certificate indicating paternity, other than by producing that document as evidence in a court application.

[30] The Illinois Legal Aid memo on family law offers the following information on the rights of unmarried parents in that state:

When custody, child support and visitation disputes arise between unmarried parents, a "paternity action" is used to settle the issues. Paternity cannot be established through admissions by either parent, the father's name on the birth certificate, or by the fact that the man supported the child. See the Illinois Parentage Act of 1984, 750 ILCS 45/1-26.

Once paternity is established, the court may determine what custody and visitation arrangement is in the best interest of the child.

If paternity has not been determined by a court, the father has not married the mother subsequent to the child's birth, and no one else has been awarded custody of the child, the mother is presumed to be the lawful custodian of the child.

[31] In a publication about domestic violence and "Frequently Asked Questions" that arise when "Resolving Conflicts between Parents", the Chicago Police Department provides this information about who has legal rights as a parent in Illinois:

-- Under Illinois law a person may be a biological parent of a child but if that parent is not recognized as a 'legal parent', that person has no rights or responsibilities to that child. A woman who gives birth to a child and who is named as such on the child's birth certificate is automatically a legal parent.

-- An unwed father has no rights or responsibilities to a child unless a "Father and Child Relationship" has been legally established. The Illinois Parentage Act of 1984 provides several ways to establish parentage.

Both parties can complete a Voluntary Acknowledgement of Paternity form and submit it to the state.

Either party may initiate court action to establish a "Father and Child Relationship" to the child. The party bringing the case has the burden of proving that the man is the biological father of the child. No rights or responsibilities are attached until a court order is entered establishing the relationship.

[32] There appear to be a number of jurisdictions governed by the Convention which do not recognize that an unmarried father has a right of custody unless he first obtains a custody order pursuant to domestic legislation.

2. Illinois Domestic Violence Act

[33] Under the Illinois Domestic Violence Act, domestic violence is broadly defined as "physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation". The Act deals with domestic violence between "family or household members"; that category is broadly defined and includes "spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or allegedly have a child in common". "Harassment" is "conduct which would cause a reasonable person emotional distress and does cause emotional distress to a petitioner" and presumptively includes "removal or concealment of a minor child". The Act does not appear to require that a petitioner have any legal relationship to a child for a finding of abuse to be made based on concealment of the child.

[34] Any person abused by a family or household member may apply for an order of protection under the Act. When a petitioner has not served a respondent with the claim, the court may grant only an "emergency order of protection". The Act allows the court in those circumstances to make an order directing that a child be returned to a petitioner and for physical possession of a child, but does not permit an order for temporary legal custody. This is the type of order obtained by J. on July 6, 2015.

[35] After a respondent has been served and has time to reply to the petition, the court may make temporary and later plenary (final) orders for custody. After S. was served and did not appear, J. received a temporary order of custody on August 31, 2015.

C. Positions of the Parties

[36] J. says that he and S. had a settled intention to make Chicago their home, and that Illinois is therefore M.'s place of habitual residence. He says that S.'s removal of M. from Illinois was in breach of his right of custody.

[37] S. says that Illinois was not M.'s "habitual residence". She says that when she flew from Mexico to Chicago in June 2015, she did not intend to live in Illinois. She says that J. prevented her from leaving Mexico with M. and would only allow her and M. to leave the country if they went to Chicago, and that she fled with the child to Canada at the first available opportunity.

[38] Further, S. says that although J. may have had a settled intention to reside in Chicago, that he had no rights of custody under Illinois law for the following reasons:

(1) Illinois law does not recognize that an unmarried father has a right of custody unless he obtains a court order recognizing parentage or, with the mother, signs a declaration of parentage or paternity in a specific form and registers this form with the appropriate government office. J. had done none of these things as of July 6, 2015;

(2) the order of July 6, 2015 obtained by J. under the Illinois Domestic Violence Act is not a custody order, as indicated by the plain wording of that statute;

(3) in any event, S. asserts that she and M. entered Canada before J. obtained that order, and thus the child's removal was not wrongful and the order is simply a chasing order.

[39] S. says further that after she and M. came to Canada, J. acquiesced in the child's continued residence in Canada.

[40] Although S. originally also argued that M. would be at "grave risk of harm" if returned to Illinois and placed in J.'s care because of J.'s alleged history of violence to her, during the hearing her lawyer advised that she withdrew this defence, as the evidence did not reach the high threshold required to succeed. Counsel was clear, however, that S. did not recant any of her testimony as to J.'s alleged violence and abuse. I considered that evidence in the assessment of whether S. had a settled intention to live in Chicago.

D. History of Proceedings

1. Ontario Superior Court Case

[41] Prior to commencing his Hague application in September 2015 in the U.S., J. retained counsel in Toronto and applied for an order under s. 41 of the Children's Law Reform Act asking that the court enforce the Chicago order of July 6, 2015 granting him "temporary care and physical possession" of M. Justice Carolyn Horkins refused the application on August 6, 2015, finding that the Chicago order was "not a custody order".

2. Ontario Protection Case

[42] Following the dismissal of his action in Superior Court, J. contacted the Children's Aid Society of Toronto (the "society") in August 2015, alleging that M. was at risk of harm in S.'s care because of alleged problems in her mental health.

[43] The society contacted S., who alleged that J. had been violent and abusive to her throughout their relationship and that he was a pimp who was "sex-trafficking" young women across the U.S./Canada border. (She later told a police officer that "this" was not happening in Canada.) In the Hague proceeding, she alleged that she saw J. abusing other women who worked for him in this business, such as "Carmen" (Rana Fakhouri).

[44] The society commenced an application under the Child and Family Services Act, alleging protection concerns related to each parent. The society sought and received a temporary order placing M. in S.'s care, subject to society supervision, with access to J. at the society's discretion.

[45] J. has been living in Toronto since late September 2015. Although J.'s access was at first supervised by society staff, after a short period of time the society allowed him unsupervised access, at first during the day and later for overnight visits. Society workers have observed his care of the child and find it satisfactory. The society has checked with the Chicago child protection agency, and no record relating to J. was reported.

[46] Society workers have also regularly observed S. with the child, and have spoken with her doctor and a public health nurse who assisted her and M. The society finds her care of the child satisfactory.

[47] In December 2015, the society asked Justice Marion Cohen, the case management judge in the protection proceeding, for permission to withdraw its protection application. The society advised that it had no current protection concerns with respect to either parent, and believed that each parent was attempting to use the protection proceeding to assist him/her to generate evidence for the Hague case. Justice Cohen dismissed the society's motion, saying that she was not satisfied that the society had conducted a thorough investigation. That proceeding is on adjournment.

[48] If I conclude that M. should be returned to Illinois under the Convention, then the issue of whether that order is stayed by virtue of the protection case must be decided.

3. The Hague Proceeding

[49] In determining this case, I received evidence by way of affidavit from each party, from their respective family members, from two of J.'s female business associates, and from his lawyer in Mexico. I also considered evidence from two society social workers filed in the protection case. Because of S.'s initial defence alleging grave risk of harm, I provided a limited time for each party to give additional viva voce evidence and be cross-examined.

E. The Facts

1. Background

[50] S. is 31 years of age, and lives in Toronto. She was born in Nova Scotia and has lived most of her life in that province and in Ontario. She has worked as an exotic dancer, an escort, a hostess at a club and a waitress.

[51] S. has an older son, D., nine years of age. D. was in his mother's care until 2013, when she placed him with his father, S.B., in Toronto. Throughout the time that S. was in a relationship with J., she expressed a desire to have custody of or better access to D. S. retained an Ontario lawyer, Aida Pasha, to pursue this claim, although no action was ever commenced.

[52] J. is 40 years of age, and lives in Chicago. J. admits that he has a criminal history that includes convictions for firearms offences and aggravated assault. He was last released from prison in 2007 and says that he has since "turned my life around". J.'s evidence is that, even before he last went to prison in 2005, he had built a successful career in real estate development, a business that his associates continued for him while he was incarcerated.

[53] J. says that he continues to conduct a successful business in real estate development and property management. He denies the allegation that he is or ever was involved in the sex trade. His mother told a society worker that she had never heard reports that he was involved in the sex trade. His associate Carmen, who currently works as a sales associate at Neiman Marcus, says that he trained her in the real estate business and that he is a "foreclosure specialist" who has worked for "top banks in Chicago". Carmen flatly rejects S.'s allegation that J. is involved in the sex trade or that he abused her. Carmen says that she has maintained J.'s business at times he has been out of the country. Another associate, Donatella Panayitou, says in her affidavit that J. is also active in the entertainment business.

[54] J. has a teenage daughter, Y., who lives with her mother in Indianapolis. He reports a good relationship with the child.

2. Early in the Relationship

[55] J. and S. met in Toronto in July of 2013. At the time, S. owned a home in Niagara Falls, Ontario, but was losing the house, as she could not keep up mortgage payments.

[56] Their romance developed quickly, and S. went to stay with him in a condo he rented at the expensive Shangrila in Toronto. Within weeks, she moved with him to his condo in Chicago. While there, J. assisted S. in developing a career in something which he described as "social media modelling".

[57] I set out below some of the many changes in J. and S.'s relationship and residence. This history is relevant in that it assists me in assessing whether the parties, and particularly S., had a "settled intention" to reside in Chicago when they flew there on June 15, 2015.

3. Many Moves

[58] As I said above, S. explains the moves and separations as her attempts to flee an abusive, controlling relationship. Her mother and brother depose that she complained of this to them during the relationship. J. explains the moves and separations as the disoriented actions of a woman suffering from bipolar disorder. His parents and his associates Carmen and Donatella say that they never saw violence, and that they thought that S. was unstable.

Chicago, August 2013--March 2014. In December 2013, S. is hospitalized for over two weeks after what appears to be a suicide attempt through an overdose of pain medication. S. explains this as a desperate attempt to obtain help because she was trapped in an abusive relationship in which J. was controlling her passport and money; however, she does not report this to hospital staff. J. is investigated by Chicago police, but no charges are laid.

March 2014--July 2014. J. goes to Los Angeles on business. S. follows. While there, she once flees a car driven by J. and enters a restaurant, where she screams that he is trying to kill her. J. follows, but leaves when police are called. Police arrive. No charges are laid. S. returns to J., but soon runs from him again and returns by herself to Toronto. There she discovers she is pregnant, and decides to reconcile with J.

July 2014. S. attempts to enter the U.S., but is denied entry because she overstayed her last visitor's visa. She receives notification that before she will be admitted to the U.S. as a visitor again, she must present documentary evidence of a foreign residence, employment or other sources of income as well as evidence of a confirmed return date to her home, such as an airline ticket. J. attempts to enter Canada as a resident to join S., but is denied entry because of his U.S. convictions.

July 2014--June 2015. J. rents a villa in Cancun, and S. joins him. Later, they move to a second villa he rents in Playa del Carmen. Over the next 11 months, S. runs from J. at least six times. In September 2014, S. returns to Toronto, intending to stay. In October 2014, she returns to Mexico, for what she describes as a visit. In November 2014, she runs from J. again, and returns to Toronto. J. sends her funds to return to him in Mexico. In January 2015, J. goes to Los Angeles for a month and S. stays in Mexico; he returns in February, in time for M.'s birth.

4. Attempts to Leave Mexico with M.

[59] S.'s evidence is that she always intended to return to Canada, where she has free health care, to give birth to M., and that J. agreed to this plan but ultimately refused to allow it. J. denies this.

[60] J.'s evidence is that he intended to go to Chicago to live with M. He testified that in the months after M.'s birth, his relationship with S. was rocky and he did not trust her, but that she agreed to go to live with him in the U.S. He hoped that their relationship would improve. He expected that S. might, after going to Chicago, make a trip back to Toronto alone to see D. and initiate court action with respect to the child.

[61] Between March and June 2015, S. took the baby and left J. at least twice for a period of days. S. attempted to obtain a birth certificate and passport for M., intending to leave the country and return to Canada. J. retained a lawyer and was able to block her attempt to obtain a birth certificate without his co-operation. His lawyer's evidence is that it is "illegal" in Mexico for a woman to obtain a birth certificate not naming a child's father if a father is known or established through testing.

[62] S.'s evidence is that after this point, she knew that she had to co-operate with J. if she was going to be able to get out of Mexico with the child. She says that she agreed to go to Chicago because it was the only way she could get M. out of Mexico.

[63] J. and S. went together to get documentation from Mexican authorities as well as U.S. and Canadian consulates that would enable them to travel from Mexico:

• J. and S. applied for and obtained a Mexican birth certificate showing them both as M.'s parents, and obtained a Mexican passport for the child;
• J. and S. went to the U.S. consulate, and J. obtained a U.S. passport for the child;
• J. and S. went to the Canadian consulate, and S. obtained temporary Canadian passports for herself and the child, valid only for one trip, the trip to Chicago. (S.'s Canadian passport had expired while she was in Mexico. S. understood that permanent Canadian passports would be ready for her at the consulate in Chicago.)

[64] J. kept all the passports and the one-way tickets to Chicago which he purchased in his possession. J. was clear in his evidence that although he would not have stopped S. from leaving Mexico without him, he was determined not to let M. go with her to anywhere other than Chicago.

5. Arrival in Chicago

[65] When the flight from Cancun landed in the U.S., S. was interviewed for three hours by immigration officers before she was allowed entry, as she had overstayed her previous visitor's visa. S. testified that she told the official that she and M. were just stopping for a week in Chicago to visit J.'s parents before going to Canada, and that J. came into the interview at one point to confirm this. J. testified that he told the official that they planned to marry, although no application had been made for a fiancé's visa. There is no evidence from U.S. immigration records about what either said, or the basis upon which S. was admitted to the U.S.

[66] In Chicago, J. and S. and the baby went to his apartment. Over the next two weeks, they had dinner with J.'s parents several times. Mr. and Mrs. T. both testified that they didn't notice any problems in the relationship. J. made an appointment to have the child circumcised.

[67] S.'s evidence is that J. controlled her movements after they arrived in Chicago. He kept M.'s passports. He accompanied her on trips to his parents' home and to shop. Other than that, he required her to stay at home if he was going out, and began to set the alarm to insure that she would not leave without his knowing. J. denies restricting her movements, but does not deny not controlling the passports.

[68] J. introduced into evidence -- with S.'s consent -- e-mails from her correspondence with her lawyer, Aida Pasha, sent as she prepared to start an action in Ontario with respect to D. J. testified that he had retained Ms. Pasha, and had been involved in S.'s Skype meetings and e-mail correspondence with the lawyer. He had copies of the e-mails in his possession. In those e-mails (late May 2015), S. advises of plans to leave Mexico and go to Chicago; an e-mail on June 25, 2015 mentions that they are "getting settled" in Chicago.

[69] When questioned as to whether these e-mails indicated an intention to settle in Chicago, S. testified that she could not be candid with Ms. Pasha about her intention to leave Chicago as soon as possible because J. monitored her e-mail. J. later confirmed that he had access to at least some of S.'s e-mail accounts, and that he was able to search her e-mails after she left Chicago in July 2015.

6. S. Enters Canada with M.

[70] On July 2, 2015, J. and S. and the baby were in a grocery store in Chicago. S. approached a police officer, saying that she was being abused by J. and was afraid of him. The officer took S. and M. to a shelter. J. began to search for them. He believed that S. would try to get to Canada.

[71] July 2 was the Thursday before the July 4 weekend.

6.1 When Did M. Enter Canada?

[72] On July 5, 2015, S. boarded a train with M. in Chicago, going to Buffalo where it arrived Friday morning. Her ticket for a reserved coach seat on a train departing at 9:30 p.m. was introduced into evidence. S. testified that the train arrived in Buffalo about 10 a.m. July 6, 2015. S. did not have passports for her or M.

[73] S. noted that there would be a two-hour delay in the departure of a train from Buffalo to Toronto. Her evidence about her crossing with the child to Canada is as follows:

• she took a cab to the bridge at Niagara Falls; the ride took about 30 minutes;
• she walked with the baby across the bridge to the Canadian immigration checkpoint. That took about 20 minutes;
• she was interviewed at the checkpoint, where she produced her Ontario driver's licence and the baby's birth certificate. She told the immigration officer her story (that she was fleeing abuse by J.), and was allowed into Canada. The interview took about 25 minutes;
• it was about noon when she left the checkpoint and walked into Niagara Falls, Ontario with M.

[74] S. testified that in Niagara Falls she entered a hotel, and went to a ladies room. She and the baby had been on the train all night, and were hot, tired and dirty. There, she fed the baby. She changed and cleaned the baby. She cleaned herself up. She then went to the Starbucks cafe in the hotel, where she got a cup of tea.

[75] Her receipt for that tea shows the time 3:14 p.m.

[76] Despite any issues with respect to S.'s credibility raised by J.'s lawyer, there is no question that M. was in Canada with his mother by, at the latest, 3:00 p.m. July 6, 2015.

6.2 When Did J. Obtain the Emergency Order?

[77] J.'s evidence is that first thing on Monday July 6, 2015, he went to the courthouse in Chicago, and applied for an emergency order of protection under the Domestic Violence Protection Act. In his petition, J. alleged that he was M.'s primary caregiver and that S. had "repeatedly attempted to flee the country with my son, and that today she fled into Canada" with the child. J. did not have a lawyer, but got some help at the court to prepare the application. J. also called the Canadian consulate to advise of his fears that S. was trying to take the baby over the border. He asked them not to release the passports to her.

[78] J. testified that he got the emergency order quickly. His petition for the order and the order itself establish a different timeline. The petition for an "order of protection" is stamped as filed at 3:26 p.m. that day. The "emergency order of protection" indicates it was issued at 4:00 p.m. that day. It would not be surprising that a self-represented litigant such as J., particularly in a highly emotional situation, could be confused as to when the order was actually made.

[79] I find that the emergency order of protection issued at 4:00 p.m. in Chicago on July 6, 2015 -- 5:00 p.m. Eastern Daylight Time that day (the time zone in which Niagara Falls, Ontario is located).

F. Credibility

[80] There are instances in which the evidence of each party raised concerns about credibility and reliability. For example, S. told a CAS worker that her overdose of medication (which led to her hospitalization in December of 2013) was "accidental". In her affidavit in this case, she said that she intentionally took the overdose in order to "end up in hospital and . . . be able to tell someone what was happening". There were a number of such inconsistencies in her evidence.

[81] J.'s evidence was generally internally consistent. There is one issue, however -- whether he was ever physically violent to S. -- which raises doubts about his credibility. S. says there were multiple beatings; any physical abuse is flatly denied by J.

[82] A lengthy e-mail exchange between the parties during a period of separation in September 2014 long before the child's birth and before any litigation between them establishes to my satisfaction that there was at least one serious incident of physical abuse. In this exchange, J. tries to persuade S. to return. She rebuffs him, saying "How can I trust you?" and referring to an incident in December 2013 when she says he forced her to undress and beat her with an extension cord. She adds that he has done the same thing to "Carmen", making her strip and beating her with an extension cord. These allegations are the same as those contained in S.'s affidavit in this action.

[83] J., in his e-mail replies, does not deny the allegation. He apologizes profusely, saying things like:

• "I hate myself, that's why I treat others bad";
• "I'm remorseful for my actions -- I have to change the way I talk to u, the way i react to u, the way i touch u";
• "using money to control u never again".

[84] However, although I have concerns about credibility, the credibility of the parties was not a major factor in making the decisions I have to make in this case. The parties agreed on some important issues -- their joint intention to abandon their residence in Mexico, the sorry state of their relationship when they left Mexico and went to Chicago, and J.'s determination to prevent S. from taking M. anywhere but Chicago. There was also independent documentary evidence on other significant issues -- when the emergency order was issued on July 6 in Chicago and when S. and the child entered Canada on the same day. This evidence allowed me to make findings not dependent on either party's credibility.

G. Analysis: What Was M.'s Habitual Residence?

[85] J. and S. agree that each intended to leave Mexico in June 2015 and not return. They entered the U.S. with M. on June 15, 2015 using one-way tickets purchased by J.

[86] Did Illinois then become the child's habitual residence? I accept that the child lived in Chicago for what might be considered, in the circumstances of this case an "appreciable period" of time. What is at issue is whether M.'s custodial parent or parents had a settled intention to live in Chicago.

1. Who Had Custody of M. in Mexico?

[87] To answer that question, I must first determine who had custodial rights with respect to M. in Mexico immediately prior to entry into the U.S. If the parents had joint custody, then evidence of their joint intention must be considered; if only one parent had custody, it is his/her intention alone that is relevant.

[88] There was no legal agreement or court order from Mexico with respect to custody of the child in force. I have no evidence as to Mexican law regarding custody. Justice Patricia Proudfoot of the British Columbia Court of Appeal in Chan v. Chow, 2001 BCCA 276 set out the rule of private international law that applicable in this situation:

The private international law rule that applies in cases of this kind is that if foreign law is not pleaded or proved, it is assumed to be the same as the lex fori, unless proven otherwise.

[89] I find that pursuant to s. 20(1) of Ontario's Children's Law Reform Act, J. and S. were "equally entitled to custody of the child" at the time in question -- while in Mexico, immediately prior to the trip to Chicago.

2. Joint Settled Intention to Reside in Chicago?

[90] Did they have a joint settled intention to reside in Chicago?

[91] I have no doubt that J. had a settled intention to make his home in Chicago at the time the parties left Mexico. He is a U.S. citizen, with a right to live in that country. He had maintained his apartment there while he was in Mexico. His business had continued, overseen by Carmen. His parents lived there, and were willing to offer assistance that he might need to care for M.

[92] The real question is whether the evidence establishes that S. had a settled intention to reside in Illinois when she entered the U.S.

[93] There are factors which support an inference that S. intended to stay in Chicago.

• S.'s statements to Ms. Pasha, talking about plans to go to Chicago and "settling in" in Chicago, taken in isolation, would support such a finding. However, it must be kept in mind that J. was monitoring -- and S. knew that he was monitoring -- her e-mail correspondence.
• S. did not, at the time her plane landed in the U.S. and she was interviewed alone by immigration officers, say anything about abuse by J. and her desire to go to Canada. It might have been expected that she would seek their help, if she did not wish to leave the airport with J. However, S.'s explanation of this failure to seek help then -- that she did not raise this issue because of her fear that the officers might send her back to Mexico, leaving M., a U.S. citizen, with J. -- is believable. There was a real possibility that S. might be refused entry, as she did not have the documents she had been advised would be required for her to enter the U.S. again.

[94] Other factors weigh against the inference that S. had a settled intention to stay in Chicago at the time she left Mexico:

• S. had had tried to take M. and leave J. at least twice since M.'s birth. J. made it clear that the only exit from Mexico he would allow for the child was to the U.S., with him;
• neither J. nor S. made any effort to secure legal status for her to stay in the U.S. before leaving Mexico;
• S. knew that even if she was permitted to enter the U.S. as a visitor, she had no legal right to stay there beyond six months;
• S. had no place to live, no job, or no other means of support in Chicago other than what was provided by J. The relationship with J. was shaky, not something which she could count on;
• S. had no health insurance coverage in the U.S. for her or M.

[95] I am not satisfied that the evidence establishes on a balance of probability that S. had a settled intention to reside in Illinois when she entered on June 15, 2015.

[96] If there is not reliable evidence that J. and S. had a joint "settled intention" to reside in Illinois, then there can be no finding that Illinois was M.'s habitual residence at the requisite time.

[97] I find that this is one of those rare cases in which a child has no habitual residence. As such, the Convention does not apply, and there can be no order under the Convention sending the child to Chicago.

H. Analysis: Was the Removal Wrongful?

[98] If I am in error in finding that Illinois was not the child's habitual residence at the time of his removal, then the question remains as to whether the child's removal by S. from the U.S. on July 6, 2015 was wrongful.

[99] The removal was wrongful if J. had rights of custody under Illinois law at the time of removal.

1. No Right of Custody in Legislation

[100] J. had no rights of custody pursuant to Illinois legislation. Illinois law does not automatically give unmarried fathers such as J. custodial rights of any type with respect to a child -- including the right to restrict a child's residence. J. did not take the steps necessary under Illinois law, as an unmarried father, to establish a legal parent/child relationship. An unmarried father was required to establish a parent/child relationship under the Parentage Act before any action with respect to custody of or access to a child could be initiated.

[101] Pursuant to Illinois law, S. had custodial rights with respect to the child. Illinois law recognizes that a biological mother has a legal parent/child relationship with her child. In situations in which an unmarried father has not established a legal parent/child relationship, "the mother is presumed to be the lawful custodian of the child".

2. Inchoate Rights of Custody?

[102] J.'s counsel argued that I could find that J. had "inchoate rights of custody" which would constitute rights of custody under the Convention. She referred to Courtney v. Springfield, a case in which a biological mother had taken her children from England to Ontario, leaving behind her same-sex partner who had parented the children while they cohabited. There was no legal agreement or court order giving the partner any rights with respect to one child. The biological mother's position was that the partner therefore had no rights of custody with respect to that child.

[103] The Ontario court received an opinion from the Central Authority in England to the effect that the concept of "inchoate rights" of custody were recognized in England as rights of custody under the Convention, and that the left-behind partner had such rights. "Inchoate rights" were defined as rights not set out in any statute or legal agreement but which "any court would be bound to recognize in the event of an application being made and which should, therefore, be regarded as 'rights of custody' with the Hague Convention". Justice Jennifer MacKinnon accepted that opinion as conclusive evidence of English law as to rights of custody in England, and found that the left-behind caregiver had custody rights for the purpose of the Convention.

[104] There is nothing before me to indicate that Illinois custody law embraces the concept of "inchoate rights"; I cannot find that such rights gave J. rights of custody.

[105] I find that J. had no custodial rights with respect to M. at the time of entry into the U.S., and that he did not acquire such rights during the parties' cohabitation there.

3. Emergency Protection Order

[106] Did J. acquire rights of custody by virtue of the order of July 6, 2015? He submits that he did.

[107] I agree.

[108] S.'s lawyer argued that the July 6 order could not be seen as conferring rights of custody because an order of temporary legal custody was not permitted by the Domestic Violence Act at that stage of the case, and because the proceeding under that Act was not a proceeding involving a claim for legal custody. In support of this argument, counsel cited the case of Johnson v. Jessel, 2012 BCCA 393.

[109] I disagree that the case supports her argument. In Johnson, a mother had obtained temporary custody of children in B.C. on an ex parte motion. The case was adjourned several times, with no new order being made. Mother then took the children to live in Germany. Father brought an application for return under the Convention. The trial court found that the court itself had rights of custody, as there had been no final order for custody, and this was upheld by the Court of Appeal.

[110] Given the broad definition of "rights of custody" in the Convention, I find that the grant of "physical care and possession" of the child to J. constitutes a "right of custody" under the Convention. In the words of art. 5, the order granted J. the right "to the care of" the child. The Circuit Court of Cook County also had a right of custody under the Convention by virtue of its order not to remove the child from the jurisdiction, in the context of a proceeding that could and did lead to a temporary order of custody.

4. Was the July 6 Order in Force at the Time of Removal?

[111] J. has not, however, established that the order was in force prior to S. removing the child from the U.S. The evidence establishes that the July 6 order was made at least two hours after S. and M. entered Canada. At the time M. left the U.S., only S. had rights of custody with respect to the child. Given these facts, the removal cannot be seen as "wrongful". The order of July 6 is a chasing order, and nothing more.

[112] Given my findings, I have no need to deal with S.'s argument that J. subsequently acquiesced to M. remaining in Canada.

[113] J.'s application for an order returning M. to Chicago is dismissed.

Application Dismissed

Notes

1 See Korutowska-Wooff v. Wooff.

2 Korutowska-Wooff v. Wooff, supra.

3 Blanchard v. Wuest, 2000 BCSC 592.

4 Fasiang v. Fasiangova, 2008 BCSC 1339.

5 Wilson v. Huntley; Hoskins v. Boyd, 1996 CarswellBC 1859 (S.C.).

6 Korutowska-Wooff v. Wooff, supra.

7 Fasiang v. Fasiangova, supra; Madrigal v. Castro, 2015 ABQB 312.

8 Fasiang v. Fasiangova, supra.

9 Mozes v. Mozes (1999), 239 F.3d 1067 (U.S. Ca. 9th Cir.).

10 Finizio v. Scoppio-Finizio.

11 Quoting from J.M. Eekelaar, author of "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281, at p. 315.

12 Thomson v. Thomson.

13 Counsel advised that there has been change in the legislation since July 6, 2015 but that change is irrelevant for the purpose of this decision.

14 750 ILCS 45/1, Illinois Parentage Act of 1984. Amendments to the Act came into force on January 1, 2016, which are inapplicable to this case.

15 In accordance with the rules set out by the Department of Healthcare and Family Services.

16 Under s. 12 of the Vital Records Act.

17 My emphasis.

18 E.g., Ireland. See J. McB. v. E. (L.), [2011] Fam. 364.

19 750 ILCS 60, Illinois Domestic Violence Act of 1986.

20 Section 103(1) and (3).

21 Section 103(6).

22 Section 103(7).

23 Section 201(a).

24 Section 214.

25 Section 217(a)(3).

26 Although J. is inadmissible to Canada because of his criminal record, he obtained legal permission to be here until this case is completed.

27 See s. 57.2 of the Child and Family Services Act. The Convention is law in Ontario by virtue of its incorporation into the Children's Law Reform Act. Also, appellate authority has held that an order cannot be made under provincial custody legislation when an order is in force pursuant to protection legislation (Fortowsky v. Roman Catholic Children's Aid Society for County of Essex).

28 S. testified that she only had one account at the time, but J. questioned that.

29 J. may also have begun a petition under the Parentage Act that day; he did not present any evidence of this, except a "Parentage Summons" issued that day that was later served on S. in August. In any event, he did not obtain an order under the Parentage Act that day.

30 See Ex. F to affidavit of S. sworn November 23, 2015.

End of Document