Court File and Parties

Court File No.: Toronto DFO 19 15865 Date: 2019-12-13 Ontario Court of Justice

Between: Jodi Cormier, Applicant

— And —

Mathew Borsk, Respondent

Before: Justice M. B. Pawagi

Heard on: November 1, 5, 25, and December 5, 2019

Reasons for Judgment released on: December 13, 2019

Counsel:

• Julia Tremain, counsel for the applicant
• Matthew Giesinger, counsel for the respondent
• Patric Senson, on behalf of the children

PAWAGI, M. B. J.:

1: Nature of the Case

[1] This is the father's Hague application seeking the immediate return of the parties' two children, ages 10 and 14, to his care in Michigan. It is not disputed that the children are habitually resident in Michigan with the father; that they were on a summer access visit with the mother in Ontario; and that the mother failed to return them for the start of their school year in Michigan, contrary to the terms of the Michigan custody order. The mother, and counsel on behalf of the children, oppose the father's application on the grounds that the children both object to being returned and that returning them would place them at grave risk of harm or otherwise in an intolerable situation.

[Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No 35 (in Ontario, incorporated into s. 46 of the Children's Law Reform Act, R.S.O. 1990, c.C.12 as am.)]

2: Brief Overview of the Facts

[2] The parties are both Canadian. They met and married in Canada in 2003 and moved to Michigan soon after because of the father's job.

[3] In 2012/2013, the father's current partner and her three children moved in with the parties and their two children and they all lived as a family until 2015 when the mother moved out.

[4] The father and his partner and her three children remained in the family home in Michigan. The mother returned to Ontario where she re-married.

[5] The parties' Michigan Judgment of Divorce dated June 4, 2015 granted the parties joint legal custody of their two children with the unusual shared time arrangement of the children alternating yearly between living with father and his partner and attending school in Michigan, and then living with the mother and her wife and attending school in Ontario (and having summer and other holiday access with the other parent each year):

• 2015/2016 school year with father in Michigan
• 2016/2017 school year with mother in Ontario
• 2017/2018 school year with father in Michigan

[6] In 2018, the mother filed a motion in Michigan to change custody to have the children primarily reside with her in Ontario. The father responded with a motion to have the children primarily reside with him in Michigan. Both parties were represented.

[7] The parties agreed that a custody/access evaluator would be appointed to complete an assessment that would be filed with the court; that the recommendations in the assessment would automatically form the basis of an interim order effective August 22, 2018; and that parties would then have 21 days to file written objections and seek a hearing, failing which the temporary order would become final.

[8] The evaluator recommended that the children live primarily with their father in Michigan based on the following findings:

[9] Alternating school years is stressful, unworkable, impractical and clearly not in the children's best interest;

• a. Both parties are "more than adequate" parents and if they lived in the same geographic area shared parenting time would not be an issue;
• b. Both parents are supportive of the older child's transgender identification (which was emerging during this time);
• c. Father's parenting style is more strict, while the mother's is more lenient, but neither is inherently better than the other. Both parents have a loving relationship with their children;
• d. While the practice in such assessments is not to reveal the preferences the children expressed to the evaluator, both parents expected the children's preference would be to live with their mother;
• e. The father's plan had the advantage of stability: the children's home in Michigan was the one they had resided in since birth (while the mother had moved several times); the children had always attended the same school in Michigan with the exception of one school year in Ontario; and the father was more financially secure.

[10] The temporary order based on the above recommendation became final when the mother did not file an objection. The children consequently remained in Michigan with their father during the 2018/2019 school year.

[11] During this year the older child experienced difficulty at school, with respect to being bullied, being misgendered and having appropriate washroom access. He was the first openly transgender student his school had ever had. The parents were supportive of him, though he and his mother dispute the adequacy of the father's support, which will be addressed below.

[12] The mother complied with the terms of the court order until August 14, 2019 when she failed to return the children to Michigan. She arranged for the older child to see a lawyer at Justice for Children and Youth who then sent a letter to both parents dated August 9, 2019 setting out the reasons why the older child wished to stay in Ontario with his mother, which centred around his concerns that his father and the Michigan school were not supportive of him as a transgender youth.

[13] The mother brought a custody application in Ontario alleging that the father was physically and emotionally abusive to the children and that both children wished to stay with her in Ontario. The father responded with a Hague Application seeking the immediate return of the children to Michigan. The Hague Application took precedence as it deals with which court (Michigan or Ontario) has the jurisdiction to make decisions regarding custody.

[14] An order was made requesting the involvement of the Office of the Children's Lawyer who appointed counsel to represent the children. Counsel filed an affidavit from a clinical investigator setting out that both children's wishes were to remain in Ontario with their mother and that they both objected to being returned to Michigan.

[15] On November 5, 2019, I arranged for judicial communication with the judge presiding over the court proceeding in Michigan. Judge Zemaitis participated by telephone conference call on the record (with counsel only). The purpose of the conference call was to allow each court to understand the status of the proceeding in the other jurisdiction. The possibility of conflicting orders being made by the two courts was discussed but not resolved.

3: The Law

[16] The Hague Convention is an international treaty, signed to date by 90 plus contracting States, including Canada and the United States, to deal with the pressing issue of parental child abduction.

[17] The purpose of the Convention is set out in Article 1: to secure the prompt return of children whose parents have wrongfully removed them from, or wrongfully retained them in, another jurisdiction. The question in a Hague Convention proceeding is not which parent should have custody, but rather, in which jurisdiction should the question of custody be decided. The Convention's underlying rationale is that it is in the best interests of the child to have the question of custody determined by the court where the child habitually resides.

[18] The test for when the Convention applies is set out in Article 3 which deals with habitual residence and rights of custody. It is not disputed here that the mother's retention of the children was wrongful in that it breached the father's custody rights in Michigan where the children were habitually resident.

[19] What is disputed here is whether the court should direct the mandatory return of the children as set out in Article 12.

[20] The mother here relies on the Article 13 exceptions to the direction for mandatory return, because while the direction to return is mandatory, it is not automatic. Two of the possible exceptions are relevant here; namely, that the judge has the discretion not to order return if there is a grave risk that returning the child would place expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or if the child objects to be being returned and has attained an age an degree of maturity at which it is appropriate to take account of the child's views. I have set out the relevant parts of Article 13 below:

Article 13

Despite 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:

(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.

4: Analysis

4.1: Child's Objection

[21] The mother and counsel on behalf of the children assert that this court should refuse to order the return of the children because both children object to being returned and both children have attained an age and degree of maturity at which it is appropriate to take account of their views.

[22] The father's position is that the children are insufficiently mature, and their wishes are not independent, having been subject to manipulation by the mother.

[23] The Supreme Court in Balev recently confirmed that the issue of a child's objection is a question of fact, and that the following factors should be considered:

If the elements of (1) age and maturity and (2) objection are established, the application judge has a discretion as to whether to order the child returned, having regard to the "nature and strength of the child's objections, the extent to which they are 'authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations": In re M., at para. 46.

[Office of the Children's Lawyer v. Balev, 2018 SCC 16 at para 81]

[24] As noted above, this Article 13 exception is subject to judicial discretion. It does not require a judge to automatically accede to the child's stated wishes.

[25] Courts differ on whether only "exceptional" circumstances will qualify, but it does not appear to be disputed that the reasons must at least be "substantial." As Mackinnon J. noted in Garelli v. Rhama:

In my view, 'objects' should be given its usual and ordinary meaning, of expressing disapproval, disagreement and opposition to something. Within the context of the Hague Convention, the objection must be to returning to the country of habitual residence, and not merely an expression of a preference as to custodial parent and, the court ought to consider the reasons provided by the child. In every case to which I was referred where effect was given to the child's objection, the reasons for the objection were substantial, as in S.Re, important psychological, language and educational factors, or were related to parental misconduct by the parent seeking the child's return.

[Garelli v. Rhama, 2006 CarswellOnt 2582 (Ont. S.C.J.) at para 36]

[26] Evidence regarding the older child's objection was provided from three independent sources: Justice for Children and Youth, the Office of the Children's Lawyer and the child's therapist in Michigan.

[27] Justice for Children and Youth staff lawyer Samira Ahmed sent a letter to both parents dated August 9, 2019 advising that she had been retained by the child for sole purpose of writing said letter setting out his wish to remain in Toronto in his mother's care. The following is a summary of the letter:

• a. The child is presently unwilling to return to Michigan but he both loves and cares about all his parents and does not wish to hurt anyone.
• b. He has had a continued and long-standing desire to have his mother and step mother act as his primary custodians during the academic school year.
• c. His position is based on "where he believes his mental health and gender identity can best be supported. He believes his mental health will deteriorate significantly if he is forced against his will to return to his father's care. He has indicated that he physically cannot force himself to return to Michigan because he does not want to be overwhelmed by feelings of suicide and/or act on these thoughts are risk grave psychological harm."
• d. His panic attacks, self-harming tendencies and suicidal ideations are worse when he resides in Michigan because he lacks the structure and support that he believes is necessary to address these issues.
• e. He has a counselor, but he does not feel integrated or included in any LGTBQ programming where he feels accepted and/or safe. His father uses his name and pronoun of choice, but he does not believe his father is willing to integrate his identity further into their life; for example, his father won't allow him to legally change his name, demonstrated resistance to exploring puberty blockers and/or hormonal medication to stop menstruation. The laws of Michigan require consent and participation of parent in all health care decisions.
• f. He has to stay in his room from 8 p.m. to 8 a.m. He was self-harming on almost daily basis in his father's care.
• g. At summer camp in 2019, his father consented to him being placed in a girls' cabin.
• h. His school in Michigan does not accept or understand him; for example, teachers and students misgender him; he was not allowed to use the boys' bathroom. The religiousity of his peers is harmful to his ongoing mental health struggles and transition.
• i. He knows his father and stepmother both love him very much. He loves his stepsiblings and will miss them. However, return is "prompting multiple anxiety attacks daily and intensifying thoughts of suicide."

[28] The affidavit of the clinical investigator for the Office of the Children's Lawyer sets out the following:

• a. The child was clear in both the meetings with the clinical investigator that he objects to leaving Canada. While his stepmother helped him contact Justice for Children and Youth, the content of the letter the staff lawyer prepared was his own. He is frustrated that his father does not seem to care about this letter.
• b. He described the differences between his school in Michigan and in Ontario. In Michigan he is frequently misgendered even after correction. By contrast, in Ontario the misgendering is only occasional and he believes it is accidental and people are respectful when he corrects them.
• c. He acknowledges that his father is respectful and does not misgender him, but that his paternal grandparents do and use his "dead name" (the female name he was given at birth).
• d. While he has access to trans support youth groups in both homes, his father would make his attendance conditional on his good behaviour.
• e. His thoughts of self-harm have decreased since he's been in Toronto. He had one incident of self-harm in Toronto, compared to "every night" while living in Michigan.
• f. He described his relationship with his younger brother as "close" and that he loves him but sometimes finds him annoying (due to their age difference). The brothers spend time "arguing, cuddling and watching shows together."
• g. He loves his father but their relationship is "broken." He speaks to his father weekly but his father often directs the conversation to litigation issues which makes him uncomfortable.
• h. He does not like his father's partner because she favours her own children over him and his brother. He does miss one of his stepsiblings.

[29] In cross examination, the clinical investigator testified that the child was presenting well beyond his years (14), in terms of his maturity, in the conversations she had with him. She gave as an example of his insight his comment to her that when a parent/child relationship is broken, a "child doesn't stop loving a parent, they stop loving themselves."

[30] Ann Bixler was the child's therapist in Michigan from November 2018 until June 2019, when he left for Ontario. She also runs a weekly group for transgender youth. She has been a counselor in private practice for 23 years and has worked with hundreds of transgender adults and youth.

[31] She was called as a witness in this proceeding by the father. She testified (remotely from Michigan) as follows:

• a. The child's self-harming behaviour consists of "scratching" (as opposed to "cutting"). For example, he does not use a razor, he uses a paper clip. He showed her his ankles where he had been scratching. It was not something that would require stitches. Still, it is not healthy because it can introduce bacteria into your skin, and can become addictive, because it releases endorphins; but it is not a suicidal action.
• b. The child is fairly immature. He is "prone to bursting into tears, being super angry when he hears what he doesn't want to hear, or is challenged… has difficulty taking responsibility for his behaviour." He wants immediate gratification. He wants everything to happen now. Ms. Bixler would describe his maturity as being at the lower end of his age of 14. He has outbursts in class and then peers pick on him. He insists that everyone be really understanding of what it is to be transgender. She said a couple of students were giving him a hard time and he does not cope well with bullying behaviour.
• c. He has "Disruptive mood dysregulation disorder." She described that he is not very regulated, that he can't self soothe, and can't calm himself down.
• d. She described the father as "absolutely supportive" of the child's transgender status, pointing out that the father sought out a therapist who specializes in "gender non-conforming folk" for his son, and that the father initiated bringing his son to the youth group at the Pride Centre.
• e. When asked in cross examination about instances where the father took the child's journal away from him and did not permit him to attend the Wednesday night group for LGBTQ teens as a consequence for not doing his homework, she responded that these were appropriate disciplinary actions for a parent to take.
• f. She is aware that the child is threatening suicide if he is forced to return to Michigan and she said she would take that threat seriously. She said, "I would be fearful of him acting out because he is that immature and could try to prove something." If he were returned to Michigan, she would recommend that he be supervised 24 hours a day, and be hospitalized if necessary.

[32] The father does not dispute that his son was misgendered by teachers at his Michigan school, but the father does not believe it was malicious. He believes it is because the school had known him for seven years as female and were adjusting to the change. The father has spoken to paternal grandparents about misgendering the child and they do not do it anymore.

[33] The mother acknowledges an improvement in the paternal grandparents' being respectful of the child. The mother also agrees that the Michigan school teachers' misgendering of the child was not malicious, but states that since the child came out as transgender in September, it should not still be occurring in May, eight months later. Also, she believes the students misgendering of him is malicious and the students are not being reprimanded by school staff.

[34] The mother is concerned about the bathroom issue at the Michigan school. The school did not permit the child to use the boys' bathroom. The school permitted him to use the teacher's bathroom, at his request; however, this bathroom is at the far end of the school which makes him late for classes. She described the school as making "minimal changes, begrudgingly" and not standing by them. For example, the teachers' bathroom was blocked during the school's fall carnival, so he had no bathroom to use during that time.

[35] She said that after seeing his father for a camping trip in the summer, the child "reported he was feeling really anxious about returning, getting really panicky, with feelings of wanting to cut."

[36] In contrast, the mother described that at his school in Toronto (where the child was able to register himself without requiring the father's consent), when a teacher mistakenly used the child's old name, the mother called the principal and he responded immediately, emailed all the teachers and reassured the mother that it would not happen again. Also, in Toronto, the child was able to obtain medication from a clinic to stop menstruation, as parental consent is not required, unlike in Michigan.

[37] The younger child (age 10) did not speak with Justice for Children and Youth. No doctors or therapists were called to give evidence regarding his views. The only independent source of evidence regarding his objection was the affidavit of the clinical investigator for the Office of the Children's Lawyer:

• a. The child was clear and consistent in both meetings with the clinical investigator that he wishes to stay living in Toronto with his mother.
• b. He said no one was telling him what to say.
• c. He said he is very close to his older brother and that he would "hate" it if he had to go back to Michigan and his older brother remained in Toronto. He wouldn't want to spend a minute living apart from his older brother. If they were separated, he would miss him "sooo much." He made a sad face.
• d. When asked to draw pictures of the people in both homes, he drew the Michigan family with his father and father's partner and her three children grouped together and then he and his brother grouped together at a distance with tears on his brother's face. He explained that he feels he and his brother are not part of the family in Michigan, and that his father's partner favours her own children. In his Toronto picture he shows four people gathered together.
• e. When asked about the type of language used in both homes, he said bad language is not used in Toronto but is sometimes used in Michigan. When asked for further detail, he spelled out "bitch" on paper and said his father had used that word in talking to him.
• f. He says he has a fine relationship with his father, and he would like to see him monthly if he lives in Toronto.
• g. He said he feels "safer" in Toronto than in Michigan. When asked for examples, he said he lives on a quieter street in Toronto with fewer people speeding on the road.
• h. He said he is more involved in extracurricular activities in Toronto than he was in Michigan and he enjoys the different foods available in Toronto.

[38] In cross examination, the clinical investigator said the child loves both parents and spoke positively about both parents, but that he had a strong desire to be in Toronto. The child said if he were ever to be separated from his older brother, he would be very sad, that he had a strong desire to be with his older brother and be in Toronto. The clinical investigator believed the child's views were independent because he said, "my mom wants me to talk to my dad," and she believed that he was not being manipulated because he was still having a relationship with his father. She believed he presented as at is age (10). While, he did not use the word "object," he said he wants to stay in Toronto, and he does not want to go back to Michigan.

[39] In considering whether the above evidence meets the test for the objection exception in the Hague Convention, it is helpful to consider how it compares with other cases, those where courts have directed a return and those where courts have not. The following is a sample from the cases provided by counsel in this case.

[40] Courts have consistently returned children where the reasons behind the child's objection were not found to be substantial:

• a. The Application judge in Balev found that while the children in that case (age 9 and 12) were of an age and level of maturity such that it would be appropriate to take account of their views; however, she found their views did not have the requisite strength of feeling, amounting more to a preference for Canada over Germany, rather than an objection to returning to Germany. The Supreme Court specifically noted that it did not overturn those findings of the Application judge in its final decision. The Application judge concluded that the threshold for a court to refuse to return based on a child's objection is high:

The court must conclude that a valid defence based on the children's objections has not been made out by the mother. The court comes to this conclusion by examining the reasons behind the objection (too much homework; loss of friends and family dog; Canada feels like home) in the context of the purpose of the Convention. To accede to such an objection would set the threshold much too low and certainly much lower than intended by the Convention which provides that where there has been a wrongful retention, children shall be returned to their habitual residence unless the removing parent can establish that exceptional circumstances exist. Such circumstances do not exist in this case.

This principle is best captured in the comments of Chamberland J.A. in F. (R.) v. G. (M.) referenced in [Ellis v. Wentzell-Ellis, 2010 ONCA 347]:

• The Hague convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also...a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.

[Balev v. Baggott 2015 ONSC 5383, [2015] O.J. No. 4490 at paras. 105-6]

• b. Hoilett J. directed the return of a 13-year-old who strongly objected to returning to Israel, citing concerns the child was caught up in the vortex of a custody battle.

[Toiber v. Toiber, [2005] O.J. No. 6139 (Ont. S.C.J.) upheld on appeal, [2006] O.J. No. 1191 (Ont. C. A.)]

• c. Shelston J. directed the return of a 12-year-old boy to Brazil, finding that the reasons for the objection were not substantial (he had said he was fearful of his father and preferred his life in Canada).

[Vieira v. Dos Santos Trillo, 2016 ONSC 8050]

• d. The Alberta Court of Appeal, upheld a decision of the trial judge directing the return of the three children (the older two of which were 10 and 14) to Holland, despite their objection, noting, "But to give effect to their feelings, though understandable, would undercut the fundamental objective of the Hague Convention… lead to other parents' abducting and relying on children's "contentment" to avoid being returned."

[Den Ouden v. Laframboise, [2006] A.J. No. 1605]

[41] Meanwhile, in cases where judges have accepted the child's objection and refused to return the child, the reasons behind the objection were substantial:

• a. Foran J. refused to return an 11-year-old child to England where the child's objections were based on parental misconduct; namely, the father traffics in and uses non-medically prescribed drugs; drinks alcohol to excess; used physical discipline on more than one occasion:

[Wilson v. Challis and Challis, [1992] O.J. No. 563 (Ont. Prov. Div.)]

• b. Kenny J. upheld the trial judge's refusal to return a 10-year-old child to Israel because the child's objections were based on his religious and cultural background and his concerns about being returned to a certain part of Israel:

[R.M. v. J.S., [2012] A.J. No. 1148 (Alta Ct. of Queen's Bench)]

• c. Balcombe L.J., upheld the trial's judge's refusal to return a 9-year-old child to France (from the U.K.) because the child's objections were based on educational concerns. There was evidence of serious psychological problems manifesting as speech difficulties in her French language school, that necessitated a change to an English school in the U.K.

[Re S., [1993] Fam. 242 (Eng. C.A.)]

• d. Moen, J., refused to return a 14-year-old child to South Africa as the child's objection was based not on choosing one parent over another but based on his safety in South Africa.

[Erhardt v. Meyer, 2018 ABQB 333]

• e. Butler, J. refused to return a 15-year-old to Connecticut because her objection went beyond preferring one parent over another and was based on her being teased and bullied at her school in Connecticut because of her sexuality.

[C.C. v. D.R., 2018 BCSC 176]

[42] With respect to each child before me, I find the threshold requirements have been met. I find each child to be of an age and maturity where it is appropriate to take account of their views. They are 14 and 10 years old and their level of understanding is age appropriate. They are sensitive and thoughtful children. They understood what was being asked. I also find they both object to being returned to Michigan.

[43] I turn now to the question of whether this court should exercise its discretion to refuse to return the children.

[44] The father believes both children are being influenced by the mother.

[45] I am concerned that the mother nurtures and supports the children's grievances more than she nurtures and supports their relationship with their father and family in Michigan. In one telling exchange in cross examination, when father's counsel challenged her on her reference to the "other people" in the father's home as meaning she does not consider the stepmother and stepsiblings to be family for the children, she re-iterated that "other people" was an "accurate term." In another, when father's counsel asked her to give specific examples of what she termed father's emotional and verbal abusive of the children in her pleadings, she responded that this was "subjective" and based on how the children report they feel.

[46] However, I do not find that she has unduly influenced the children to the extent that the wishes they express are not genuinely their own. They have been stating to both parents that they wish to live with their mother in Toronto for at least a year (as referenced in the Michigan custody evaluation in August 2018).

[47] But there is a stark difference between the children with respect to the nature and strength of their objection to being returned to Michigan.

[48] The older child's objection is substantial and relates to serious psychological and educational factors. He has clearly and consistently expressed his concerns, mainly about the way his Michigan school treats him as a transgender youth, to both of his parents, to Justice for Children and Youth, to the Office of the Children's Lawyer, and to his Michigan therapist. His concerns did not emerge only after he was retained in Ontario, they are long standing. They were stated to his Michigan therapist over a period of almost a year.

[49] In addition to gender dysphoria, he also suffers from emotional dysregulation, Attention Deficit Disorder, anxiety and depression, and takes medication for the latter. It is not disputed that he has engaged in self-harming behaviour, and with much greater frequency in Michigan than in Toronto. He has threatened suicide if returned to Michigan and his own therapist testified that he is impulsive enough to carry out that threat and consequently that he should be monitored 24 hours a day, or even hospitalized if necessary, if returned to Michigan.

[50] I find, however, that the younger child's objection does not meet the test of being substantial. While he also suffers from anxiety and depression there was no medical evidence regarding any negative impact of a return.

[51] In the above cases where a child's objection was found to be substantial, the objection had to do with concerns about the place the child would be returned to (eg., educational factors or safety with regards to geographic setting), or concerns with parental misconduct (eg., abusive or other dangerous behaviour).

[52] Here, with respect to the younger child, there are no issues with his schooling and he makes no allegations of parental misconduct against his father. To the contrary, he loves his father and would like to see him every month. His objection amounts to a preference to live with his mother in Toronto. This preference, along with his concern about his step mother favouring her own children and him liking the extra curricular activities in Toronto, clearly do not rise to the level of objection under the Hague Convention. To import such best interest considerations into the objection test would seriously undermine the purpose of the Convention. I do not agree with counsel for the mother's submissions that the Convention would not be undermined because this is not a case of wrongful removal. It is equally important not to undermine the Convention in cases of wrongful retention.

[53] Counsel on behalf of the children submits that this court should take into consideration that the siblings are aligned and both object to being returned, and that the Ontario Court of Appeal in Ojeikere held that the objection of a younger or less mature sibling can be bolstered by an older or more mature sibling who shares the same objections. In that case, the court found that the siblings' "collective" desire to stay in Canada strengthened the court's finding that the children should not be returned to Nigeria.

[Ojeikere v. Ojeikere, ONCA 371 at para 83]

[54] However, Ojeikere is not applicable to the case at bar as it was not decided pursuant to the Hague Convention, but rather pursuant to s. 23 of the Children's Law Reform Act. Laskin J. himself notes in that decision that the standards mitigating against a return are "less stringent," and not as "exacting," when it is not a Hague case, because in Hague cases courts can have confidence that whatever jurisdiction decides on a child's custody it will do so on the basis of the child's best interests.

[Ibid, at para 60]

[55] None of the counsel here provided case law regarding the separation of siblings under the Hague Convention. But it is clear under Hague jurisprudence that each child must meet the test for the exception to mandatory return, and that siblings can be separated if they do not each meet said test.

[56] Indeed, the Manitoba Court of Appeal overturned a decision on this specific point when the motions judge refused to return both children when only the older child met the test. The motions judge found that the older child (age 14 at the time of the hearing) would be at grave risk of harm if returned to England to her father and that she should also not be returned given her strong preference to remain in Canada. The motions judge specifically found that there was no such evidence regarding the younger child, and but for the older child, the law would have required the return of the younger one to England. The Manitoba Court of Appeal overturned the decision with respect to the younger child only and ordered the return of the younger child to England.

[57] The Manitoba Court of Appeal found as follows:

Article 13 of the Hague Convention speaks of the "child" who is the subject of an application for return. It does not speak of "children" or "siblings." The provisions of the legislation are to be applied separately and distinctly to each child who is wrongfully removed from his or her country of origin. The evidence to be considered is the evidence relevant to that child and the risk to that child, not the evidence as it relates to a sibling or other family member. That is not to say a court should ignore evidence of the possible adverse effect on each individual child who is the subject of an application under the Hague Convention of treating siblings differently.

[Chalkley v. Chalkley, [1995] M.J. No. 21 at para 10; leave to appeal to the S.C.C. denied: Chalkley v. Chalkley (S.C.C.), [1995] S.C.C.A. No. 33]

[58] Similarly, and more recently, in Silva v. da Silva, siblings were separated by the court. In this case, the children were 10 and 16 years old. They both objected to being returned to their mother in Portugal and both wished to stay with their father in British Columbia. The older child was not returned as the Hague Convention does not apply to children age 16 and older. The younger child however, was returned, despite expert evidence that found the child to have the thoughtfulness and maturity to have weight given to his wishes. His wishes were based on the following: he had to do chores on the family farm after school in Portugal, and while he had some extra-curricular activities in Portugal, he had more in B.C., and his stepfather in Portugal swears at him. He stated that while he would miss his mother, his biggest reason for wanting to remain in Canada is because he wants to live with his father.

[Silva v. da Silva, [2018] B.C.J. No. 880]

[59] There are Hague trial decisions that treat siblings as a unit, with the court making comments such as it would be "imprudent" to separate the children, or "the children simply can't be split up." But these decisions are not binding, nor are they persuasive as they do not set out where the basis for this is to be found in the Hague Convention. Furthermore, they only allude to the issue in passing as the parents in these cases were not asking the court to consider separating the children.

[Mahler v. Mahler, [1999] M.J. No. 580 (QL)] [J.M.H. v. A.S., [2010] N.B.J. No. 281]

[60] Thus, for the above noted reasons, I find that the test for the objection exception to mandatory return is met for the older child, but not for the younger child.

4.2: Grave Risk of Harm

[61] The Supreme Court of Canada in Thomson v. Thomson set out the test to be met under grave risk of harm:

In brief, although the word 'grave' modifies 'risk' and not 'harm', this must be read in conjunction with the clause 'or otherwise place the child in an intolerable situation'. The use of the word 'otherwise' points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. … In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

… the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree … that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words 'or otherwise place the child in an intolerable situation'.

[Thomson v. Thomson at pp 596-597]

[62] The Court of Appeal for Ontario in Jabbaz v. Mouamman further elaborated and defined the phrase "intolerable situation" as "an extreme situation that is unbearable; a situation too severe to be endured."

[Jabbaz v. Mouamman (2003), 38 R.F.L. (5th) 103 (O.C.A.) at para 23]

[63] There was no evidence presented at this hearing that the father was abusive in any way to these children, physically, emotionally or verbally. When the mother was cross-examined by the father's counsel about why she stated in her form 35.1 that the father was "verbally and emotionally abusive" to the children for years, she responded as follows:

• f. The way their father speaks to them causes the children distress;
• g. The younger child said the father called him a "bitch," (although the affidavit from the clinical investigator says only that the child said the father used that word);
• h. The older child characterized his relationship with his father as his father being very critical of him;
• i. Living in their father's house is affecting the children emotionally in a negative way.

[64] When counsel on behalf of the children cross-examined the mother about whether the children were neglected or physically abused in their father's care, the mother answered no, but added that both children raised the father's "strictness in terms of going to bed early."

[65] Counsel on behalf of the children submits that it would put the younger child in an intolerable situation to be separated from his older brother. As the Manitoba Court of Appeal in Chalkley notes (as cited above) the court should not ignore the adverse effects that could arise from treating siblings differently. However, in this case there was no evidence presented of those adverse effects other than the child telling the clinical investigator that he would be sad if separated from his brother. This evidence is far from meeting the test for "intolerable" situation.

[66] As the Supreme Court of Canada held in Thomson (as cited above) with respect to a parent, the risk has to be greater than what would normally be expected from removing a child from one parent and placing him with the other. An analogy can be made that the risk also has to be greater than what would normally be expected from a separation from a sibling.

[67] Thus, while the test for this exception is met for the older child, as returning him to Michigan over his objection would place him in an intolerable situation (as the compounded result of his trans gender issues, school issues and mental health issues), it is not met for the younger child.

5: Order

1. Order to go as follows:

   a. The child, W.M.B, born […], 2009, shall be returned to Michigan forthwith;

   b. Police Officers in the City of Toronto, OPP, RCMP, and officers of any other law enforcement agency having jurisdiction are directed and authorized to enforce this order, if requested, and in doing so may enter any place, including a dwelling place, where they have reasonable and probable grounds to believe the child is located;

   c. The Hague Application with respect to the child, L.M.B., born […], 2005 is dismissed.

2. Costs submissions may be made in writing by December 20, 2019, and any responding submissions by January 9, 2020.

Released: December 13, 2019

Signed: Justice M. Pawagi