WARNING

The Court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the Court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the Court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Prohibition re identifying person charged.

The Court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2019-09-30

Court File No.: Toronto CFO-18-15843

Between:

Children's Aid Society of Toronto Applicant

— AND —

P.B. (Respondent mother)

J.J.W. (Respondent father)

Before: Justice Sheilagh O'Connell (In Chambers)

Ruling and Reasons for Decision on Submissions for Costs

Counsel:

• Yvonne Fiamengo — counsel for the applicant society
• Theodore Nemetz — counsel for the respondent mother
• Michael Stangarone/Meghan Melito — counsel for the respondent father
• Jane Stewart, Justice for Children and Youth — counsel for the child, L.W.

Decision

O'CONNELL J.:

1. Introduction

[1] This is my decision regarding the costs of a hearing of the father's Hague application for an order returning the child of the marriage to Minnesota, United States. The father brought the application under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, C.T.S. 1983/85 ("the Hague Convention").

[2] The hearing was blended with a child protection hearing commenced by the Children's Aid Society of Toronto regarding the same parties and child.

[3] At the conclusion of the Hague and child protection hearing, I found that the child was in need of protection and that the child had been wrongfully removed from the State of Minnesota within the meaning of Article 3 of the Hague Convention. I also found that none of the exceptions under the Hague Convention, in particular Article 13, applied.

[4] I ordered that the child be returned to Minnesota and that the child remain in the temporary care and custody of the Children's Aid Society of Toronto or its agent, later amended to be placed in temporary care of the paternal grandparents when being returned to Minnesota, subject to several conditions regarding an appropriate transition plan, as will be addressed later in this decision.

[5] I further ordered that pending any investigation or assessment by the Minnesota child protection services, and pending further order of the Minnesota District Court, Family Division, both parent's access to the child shall be supervised by the Children's Aid Society of Toronto and/or the Hennepin County Child Protection Services in Minnesota, as agent for the Society.

2. The Parties' Positions Regarding Costs

[6] The father submits that he was entirely successful at the hearing of this matter and he is therefore presumed entitled to his costs. Further, the father submits that both the mother and Justice for Children and Youth acted in bad faith and he is therefore entitled to his full recovery of costs, pursuant to Rule 24(8) of the Family Law Rules.

[7] The father claims his costs relating to the entire trial should be fixed in the amount of $126,700.00, to be divided equally between the mother and Justice for Children and Youth ($63,500.00 each). The father does not seek costs against the Children's Aid Society.

[8] The father also seeks his expenses associated with the Hague application, including his Minnesota legal fees since the child was removed from Minnesota, his fees associated with travel to Canada on multiple occasions, rental accommodation, the travel costs of the child and her escort upon returning to Minnesota, and the costs of retaining experts, for additional expenses of $67,355.33, in accordance with Article 26 of the Hague Convention. He seeks that these costs also be payable in equal shares by the mother and Justice for Children and Youth.

[9] The total amount of costs that the father seeks against the mother and the child's counsel is therefore $194,055.33.

[10] The Children's Aid Society takes no position on the costs sought by the father against the mother and Justice for Children and Youth.

[11] Justice for Children and Youth ("JFCY") does not seek costs against any party. However, it strongly opposes the father's request for costs against JFCY and submits that at all times, it acted reasonably in its representation of the child and within its role as child's counsel.

[12] For reasons unknown to the Court, the mother did not file any written submissions in response to the father's costs submissions, despite being given ample time to do so.

3. Background

[13] L., the child who is the subject of these applications, was 13.5 years old at the time of the Hague hearing. L. and her parents are American citizens. Her father lives in Plymouth, Minnesota and until September of 2018, L.'s mother also lived in Minnesota, not too far from Plymouth. L. has an older sister, age 22, who lives in Toronto.

[14] L. and her mother arrived in Canada on or about September 18, 2018. Prior to their arrival, L.'s parents had previously been involved in what can fairly be described as a bitter and high conflict custody and access dispute in the Minnesota family court. On October 5, 2015, following numerous court hearings and eventually a trial, Justice Patrick Robben of the Minnesota District Court placed L. in the sole custody of her father and placed her older sister in the sole custody of her mother.

[15] Justice Robben granted access between L. and her mother every second weekend during the school year from 8:00 AM to 3:00 PM on Saturdays and Sundays, up to twenty-eight days of summer holiday access, including telephone and text contact. He did not make an access order between the father and L.'s older sister as by that time, the older sister had been estranged from her father and refused to have contact with him.

[16] In his written judgment at the conclusion of trial, Justice Robben made several factual findings, including a finding that the mother was engaged in parental alienation, which caused the estrangement between the father and the older child. He found that L. was at risk of alienation by the mother, hence his decision to grant sole custody to the father and somewhat restricted access to the mother.

[17] The mother appealed Justice Robben's Order but was unsuccessful. L. had been in the sole custody of her father for at least four years by the time that L. and her mother arrived in Canada.

[18] Following a summer access visit in August of 2018, the mother secretly brought L. to Canada without the consent of the father. When L. did not return at the end of her summer access visit, the father contacted the police. L.'s whereabouts were unknown for a number of weeks and a warrant was issued for the mother's arrest in the United States on charges of kidnapping.

[19] Upon their arrival in Montreal on September 18, 2018, the mother made a refugee claim. The mother and L. then travelled to Toronto where L.'s older sister was living. On September 19, 2018, Toronto police arrested the mother.

[20] As a result of the mother's arrest, L. was apprehended and brought by the police to the Children's Aid Society of Toronto ("the Society") as there was no other parent in Canada at the time having care of L. The father was making his way to Canada at the time, but he had not yet arrived.

[21] When brought to the Society's office, L. was interviewed by a child protection worker. L. made several very concerning statements about being harmed in her father's care, and strenuously objected to being returned to her father. The mother was later released on a police undertaking and she also reported several incidents of the father's abusive behaviour towards herself and the child.

[22] The Society commenced its protection application on September 21, 2018. L. was still in the Society's care. In its protection application, the Society sought a protection finding under section 74(2)(b)(i) and (ii) and 74(2)(h) and a supervision order placing L. in the father's custody once he arrived in Canada.

[23] In its original protection application, the Society set out the child protection concerns as follows:

1. The mother had been arrested;
2. The child had been removed from the United States in what appeared to be an abduction and there was no other parent in Canada to care for her;
3. The child had made a number of concerning statements that the father was harming her in the United States;
4. The child was adamant in her position that she did not want to see the father or have any contact with him.

[24] On the first appearance of the child protection application, L. was placed in the temporary care of the Society on a without prejudice basis, pending the father's arrival in Canada.

[25] The father met with the Society's child protection worker immediately upon his arrival in Canada and denied all allegations of abuse. Both parents filed lengthy Answers and affidavits in the child protection application.

[26] Shortly thereafter, on or about October 15, 2018, the father commenced this Hague application. The Society did not withdraw its protection application and continued its investigation.

[27] I conducted a judicial interview of L. after the society commenced its application and prior to the commencement of the father's Hague application, given the need for an expedited hearing. Mother's counsel sought the assistance of Justice for Children and Youth ("JFCY") to advise and assist L. during the judicial interview and subsequently to assist L. for the Hague and child protection hearings. Justice for Children and Youth agreed to act and was available immediately. Following a contested motion, the Court approved the appointment of JFCY to represent L.

[28] During the judicial interview, L. stated that she did not want to return to her father's care and that her mother had been planning the move to Canada for approximately one year.

[29] On November 21, 2018, three months after L.'s arrival in Canada, the blended hearing of the two applications commenced. I heard six days of evidence, involving numerous witnesses, including two competing experts and a third expert regarding Minnesota law.

[30] L. remained in the temporary care and custody of the Society during the hearing. She was exercising supervised access with her mother however, she refused to see her father or have any contact with him.

[31] At the outset of the hearing, it was the Society's position that it no longer had protection or safety concerns with respect to the father. It continued to seek protection findings but sought an order that L. be returned to her father pursuant to section 101(8) of the Child Youth and Family Services Act without any further orders being necessary.

[32] Both parents initially sought a dismissal of the child protection application, although at trial, counsel was not opposed to a protection finding.

[33] Regarding the Hague application, it was the father's position that L. was a victim of parental alienation by her mother and that she had been wrongfully removed from her habitual residence in Plymouth, Minnesota within the meaning of Article 3 of the Hague Convention. He sought an order for L.'s immediate return to her habitual residence and the father's lawful custody.

[34] The mother conceded that the child's habitual residence is Minnesota, that the father was exercising rights of custody at the time of L.'s removal and that the father did not consent to L.'s removal, thus triggering the child's mandatory return to Minnesota pursuant to Article 12 of the Hague Convention.

[35] However, the mother sought an exception to the child's mandatory return under Article 13 of the Convention. Specifically, the mother advanced two defences under Article 13(a) and (b): First, that L. would be at grave risk of psychological harm and physical harm and/or otherwise placed in an intolerable situation if returned to Minnesota; and secondly, that L. adamantly objected to her return and has obtained an age and degree of maturity at which it is appropriate to take into account her views.

[36] Justice for Children and Youth on behalf of L. also submitted that L. should not be returned to Minnesota and advanced arguments under both prongs of the Article 13 defence. JFCY counsel further argued on behalf of the child that L. should not be returned to her habitual residence while her refugee claim is pending in Ontario, citing the Court of Appeal's decision in A.M.R.I. v. K.E.R., 2011 ONCA 417.

[37] On the first day of the hearing, JFCY counsel produced a report prepared by forensic psychiatrist Dr. Mitesh Patel that it had obtained shortly before trial. In the Report, Dr. Patel found, following a psychiatric assessment of L., that L. was a "mature minor" who was very unhappy in her father's care and who described being harmed by her father. L. described a number of incidents to Dr. Patel, largely historical in nature, and one which was reported to her by her older sister. It was Dr. Patel's opinion and diagnosis that L. presented with anxiety and depressive disorders in which she experienced periods of low mood and passive suicidal ideation.

[38] Dr. Patel found that L. had voiced and expressed a direct intention to remain in Canada with her mother and sister. It was his forensic opinion that L. would be at a grave risk of psychological harm, leading to a worsening of her psychological state and at risk of developing a major depressive disorder if she were returned to Minnesota against her will.

[39] It was also Dr. Patel's opinion that L. was a mature and intelligent youth who was able to express a clear understanding of the outcomes that may be before her, that she was able to weigh and balance the repercussions and challenges that she may experience as a consequence of various options, and that she had an intact comprehension of Courtroom proceedings and was capable of providing instructions to counsel.

[40] JFCY arranged and paid for Dr. Patel's assessment of L. without the knowledge or consent of the Society or the father.

[41] The introduction of the report was vigorously opposed by counsel for the father and the Society. Ms Stewart, counsel for JFCY acknowledged the late disclosure of the report but argued that this was due to the expedited timeline on which the hearing proceeded, combined with the need to identify, retain and have Dr. Patel meet with the child and prepare his report. She submitted that the report was directly relevant to the central issue in both the Hague and the child protection proceedings, that is, the risk of emotional and psychological harm to the child.

[42] After argument, the Court permitted JFCY to tender the report, subject to a voir dire, and permitted father's counsel to obtain its own expert, if necessary.

[43] After a highly contested voir dire, involving a lengthy cross-examination of Dr. Patel, the court found on the issue of threshold reliability, that Dr. Patel was an expert qualified to provide a general psychiatric assessment, including diagnosis and treatment options for L. However, I reserved my ruling on the ultimate reliability of Dr. Patel's expert opinion to the end of trial after hearing all evidence.

[44] The father retained Dr. Jeffrey Wong, a clinical and forensic psychologist, in response to Dr. Patel's report. Dr. Wong conducted a psychological assessment of L., in which he also made several findings and expressed an opinion. Dr. Wong was also qualified as an expert following a voir dire, with the court's finding on ultimate reliability also reserved.

[45] Unlike Dr. Patel, Dr. Wong interviewed the child, both parents, the child protection worker and reviewed all the Court documents, including the judgment and findings of fact made by the Minnesota District Court judge in the family trial.

[46] Like Dr. Patel, Dr. Wong also found L. to be a mature and intelligent child who was capable of making treatment decisions, participating in legal proceedings, and had a clear understanding of the Court proceedings.

[47] Following his assessment, it was Dr. Wong's opinion that L. did not meet a formal diagnosis of an anxiety or depressive disorder under the DSMV, nor did he find that L. was suicidal or expressing self-harm. However, he did find that L. was experiencing symptoms of anxiety and depressed affect along with feelings of frustration and anger and that L. should be monitored closely by professionals.

[48] Regarding the risk of psychological and emotional harm to L. should she be returned to the United States, Dr. Wong found that L. was not at an imminent risk of serious psychological harm should she be returned to the United States.

[49] Dr. Wong acknowledged that there was a risk to her emotional and psychological health, but he found L. to be a mature and very resilient young teenager and that she had many "protective factors" that could assist with her adjustment should the Court order her return to the United States. Dr. Wong also recommended and set out a "risk management plan" to assist with L.'s transition back to the United States.

[50] Dr. Patel and Dr. Wong's had similar findings and opinions on some issues. Although I found that both assessments had limitations for different reasons, I ultimately preferred and accepted Dr. Wong's expert opinion. Dr. Patel did not interview the father, the mother, the Society's child protection worker, or review any of the Ontario or Minnesota Court proceedings and judgment, nor was he aware that the Minnesota family judge had made a finding of parental alienation against the mother. Dr. Wong had far more information available to him when conducting his assessment. Dr. Patel met with L. on one occasion only for approximately two hours.

[51] The court also had the benefit of hearing Mr. Jeremy Morley, an expert in Minnesota law. Following a voir dire, Mr. Morley was qualified as an expert to give opinion evidence regarding the law on custody and access in Minnesota and whether the courts in Minnesota are equipped to deal with child abuse and domestic violence issues.

[52] Mr. Morley testified that Minnesota is a leading jurisdiction in the United States in combating child abuse and domestic violence. There are strong mandatory reporting requirements about suspected abuse and cross-referrals are required to both child welfare authorities and the police. He described very strong laws in Minnesota addressing domestic violence and child abuse.

[53] Both parents also testified and were cross-examined at length regarding the allegations of abuse made by the mother against the father. The father's current partner and L.'s step-mother also testified, as did the paternal grandmother.

4. The Issues for Determination at Trial

[54] The issues before me at this blended hearing are set out below:

a. Is L. a child in need of protection under the CYFSA?

b. If so, what disposition order is in L.'s best interests?

c. Given that L.'s habitual residence was Minnesota and that the father was exercising custodial rights at the time of the child's removal to Canada, were there any exceptions to the child's mandatory return under Article 13 of the Hague Convention?

d. Should the court delay L.'s return to her habitual residence pending the determination of her refugee claim in Ontario?

5. The Court's Findings and Order from the Blended Hearing

[55] Given the expedited timelines required for Hague hearings, the court delivered an oral judgment. A transcript of the judgment was later provided to the parties.

[56] The following findings were made, based on the evidence:

1. L. is a very mature and intelligent child who strongly voiced her objection to returning to Minnesota and to her father's custody. L. clearly voiced that she was unhappy in her father's care. Although I found that the elements of (1) age and maturity and (2) stated objection were met in accordance with the factors set out by the Supreme Court of Canada in The Office of the Children's Lawyer v. Balev, 2018 SCC 16, I had concerns regarding the extent to which L.'s views were "authentically her own or the product of the influence of the abducting parent", as also articulated by the Court in Balev. I found that the mother involved L. in the plan to move to Canada, and to keep this a secret from her father. According to L., the mother had been planning the move for approximately one year. L. also knew that her mother had been arrested for kidnapping and she was very anxious about what would happen to her mother should she return to the United States.

2. L. is a child in need of protection, and specifically, she is at risk of emotional and psychological harm for several reasons set out in my decision.

3. However, the risk of harm to L. is not so severe that it would place L. in "an extreme situation that is unbearable; a situation too severe to be endured," if she were returned to Minnesota, nor is the State of Minnesota ill equipped to protect L. Any risk that L. may face upon returning to Minnesota could be adequately addressed with undertakings and a mirror order in the Minnesota Court.

4. The evidence established that the Minnesota child protection agency and family court were very capable of protecting the child from any of the alleged abuse described by the mother and by L. A properly crafted transition plan would also alleviate the risk of emotional harm to L.

5. The veracity of some of the allegations made by the mother was questionable. Some of the allegations that were historical in nature had been previously addressed by the Minnesota family court and the father at the custody trial in Minnesota. I explained my concerns regarding the reliability of the mother's evidence on some issues in my reasons for judgment.

6. The mother also failed to adduce any evidence of the alleged abuse from third party witnesses and did not report any of the more recent incidents of the alleged abuse to the police or child protection authorities in Minnesota.

7. Further, the mother did not bring a motion to change the final custody order in the Minnesota family court or pursue other legal remedies in that venue, notwithstanding that the father's custody order had been in place for almost four years. It is important to remember the basic presumption of the Convention that all contracting states are equipped to make, and will make, suitable arrangements for a child's welfare. That presumption is rebuttable, but the onus is on the party seeking to establish an exception to the Convention. The mother failed to rebut that presumption.

8. My decision in the Hague hearing should not be delayed by the child's refugee claim, which I understood to be based on the same information contained in the Hague application. Unlike the Court of Appeal's decision in A.M.R.I. v. K.E.R., L. had not been found to be a convention refugee. I adopted the reasoning of Justice Ellen Murray in G.B. v. V.M. in which she states, "While it might be attractive to delay a decision on a Hague case until a refugee application has been determined, case law has established that a court hearing a Hague application is not required to and in fact should not delay dealing with an application until the determination of a related refugee claim. The purpose of the Hague Convention would be defeated if applications for return of abducted children were not dealt with expeditiously."

[57] I therefore determined that L. should be returned to her habitual residence in Minnesota, however, under the care and supervision of the Society or its delegate, including L.'s paternal grandparents pending a full assessment of L. and a full investigation by the Minnesota child protection agency of the allegations made by L. and her mother regarding the father, and any further order of the Minnesota Court.

[58] Based on the above, the following Orders as amended were delivered to the parties in a Typed Endorsement:

1) The child, L.W., born [… 2005], is a child in need of protection, pursuant to section 74(2)(h) of the Child, Youth and Family Services Act, 2017. The child shall remain in the temporary care of the society pending the return and transition of the child to her habitual residence in Minnesota, U.S.A., subject to the conditions below.

2) The child has been wrongfully removed from her habitual residence of Minnesota, U.S.A. within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention").

3) The child shall be returned to her habitual residence of Minnesota, U.S.A. within 20 days of the date of this Order on the following terms and conditions:

a. Until such time as the Minnesota family court determines a motion to be brought, on notice, regarding the child's placement:

i) The child shall be placed in the temporary care and custody of the paternal grandparents in Plymouth, Minnesota, or another third party that all parties agree upon or Hennepin County Child Protection Services, as agent or delegate of the Toronto Children's Aid Society so that the child can be privately interviewed and assessed pending any placement order made by the Minnesota Court;

ii) Copies of both the psychological assessment of the child conducted by Dr. Jeffrey Wong and the psychiatric assessment of the child conducted by Dr. Mitesh Patel shall be provided to Hennepin County Child Protection Services and the presiding judge in the Minnesota court proceedings, as well as the child's therapist, and any other third party professionals engaged by the parties for the purposes of the family Court proceedings.

iii) Upon the child's return to Minnesota, a child's therapist shall be engaged exclusively for the child who will be able to meet with her therapist and engage in treatment, including to assist the child in any re-unification process with her father. The therapist will not be Ms Peggy Maki or any other therapist retained by the father for his own therapy and/or treatment.

iv) Pending any investigation or assessment by the Hennepin County Child Protection Services, and pending further Order of the Minnesota District Court, Family Division, both parent's access to the child shall be supervised by the Toronto Children's Aid Society of Toronto and/or the Hennepin County Child Protection Services, as agent or delegate.

4) The following undertakings are also ordered:

a. The Children's Aid Society of Toronto shall assist in the delivery of the child to Minnesota by delivering the child to the paternal grandparents, or another third party that the parties all agree upon or Hennepin County Child Protection Services, either by having the child protection worker, Ms Larissa Nicoleff, or her agent, travel with the child to Minnesota or by arranging to deliver the child to a representative or agent of Hennepin County Services who travels to Toronto to receive the child.

b. The Children's Aid Society of Toronto shall fully cooperate with Hennepin County Child Protection Services and provide copies of their complete notes and records regarding this family to that agency.

c. The father and the mother shall use their best efforts to cooperate with both Canadian and American police services to ensure the mother's safe return to the United States to face and resolve the criminal charges pending against her there, to cooperate with the police in having the pending charges against the mother dropped, if possible, and to permit the mother to participate in the Minnesota family court proceedings. However, the return of the child to Minnesota is not to be delayed while this process takes place.

d. The mother, or any agents acting on her behalf, shall not remove the child from the City of Toronto, Greater Toronto area or Province of Ontario pending the delivery of the child to Minnesota.

e. The father shall obtain a mirror order from the Minnesota Court containing the terms set out above.

[59] Following my ruling, the Society requested one week to make the arrangements to transport L. back to Minnesota by plane and to make further arrangements with the Minnesota child protection services to assist in the transition plan.

[60] The court also conducted a judicial telephone conference call with Justice Patrick Robben of the Minnesota District Family Court to discuss and clarify the transition plan, in accordance with the Protocol Regarding Inter-Jurisdictional Judicial Communication with Respect to Cases of Interjurisdictional Child Abduction.

[61] Following that telephone conference call, the parties agreed that the paternal grandparents could participate in the transition plan returning the child to Minnesota and the court amended its Order accordingly. It is my understanding that the transition plan was completed successfully.

6. The Law and Governing Principles Regarding Costs

[62] The starting point in addressing the issue of costs is Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Section 131 gives the court discretion as to determination of costs. However, that discretion is structured by Rule 24 of the Family Law Rules, O. Reg. 114/99 (all references to rules in this endorsement are to the Family Law Rules).

[63] Rules 18 and 24 govern the determination of costs in family law proceedings.

[64] The sections of Rule 24 relevant to the circumstances of this case are as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24(