Ontario Court of Justice

Date: February 22, 2022 Court File No.: FO-21-00041895-0000

BETWEEN:

Jwalitha Kommineni Applicant

— AND —

Gopala Krishna Kumar Guggilam Respondent

Before: Justice Roselyn Zisman

Heard on: February 14, 16 and 17 2022 Reasons for Judgment released on: February 22, 2022

Counsel: Veena Pohani.................................................................................. counsel for the applicant Ron Shulman and Ruhaina Dhirani..................................... counsel for the respondent

Decision with respect to motion by Respondent pursuant to the Hague Convention

Zisman, J.:

1. Introduction

[^1] This is a motion by the Respondent for the immediate return of Aadhya Guggilam (“the child)” born […], 2016 to her habitual residence of Redmond, Washington, USA.

[^2] It is the position of the Respondent (“father)” that the Applicant (“mother”) wrongfully removed the child from her habitual residence in Redmond Washington to India on August 30, 2018 without his knowledge or consent and that the child should be immediately returned. It is submitted that the mother then moved to Calgary, Alberta leaving the child with the maternal grandparents in India for 2 years, without his knowledge and consent and then in the midst of ongoing court proceedings in India the maternal grandparents brought the child to Calgary to join the mother and then they all moved to Toronto, Ontario without his knowledge or consent.

[^3] It is the position of the mother that the father acquiesced or consented to the removal of the child to India and unduly delayed in commencing any court proceedings. Specifically, it is submitted that the father failed to act despite the fact the child has been in Canada since December 2020. It is also submitted that due to the abuse in the relationship that the child would be exposed to grave risk of physical or emotional harm or otherwise placed in an intolerable position if she was returned to Redmond Washington. It is submitted that the Hague Convention application should be dismissed and this court should assume jurisdiction pursuant to section 22 and 23 of the Children’s Law Reform Act.

[^4] The issues to be determined are:

1. Does the Hague Convention apply? To determine this issue the court must determine the following: a) Where was the child habitually residing immediately before her removal? b) Did the father have custodial rights at the time of the child’s removal? c) Was the father exercising custodial rights at the time of the removal? d) Did the mother wrongfully remove the child from Redmond Washington or did the father consent or acquiesce to the child’s removal and then her retention? e) If there was a wrongful removal and retention of the child from her habitual residence under the Hague Convention, do any of the exceptions apply? In particular, whether the father acquiesced or consented, whether the child’s return to Redmond Washington would expose the child to physical or emotional harm or otherwise place her in an intolerable position or whether due to the father’s delay in commencing the Hague application the child settled into her new environment.

2. If the Hague Convention does not apply, should the court assume jurisdiction pursuant to section 22 of the Children’s law Reform Act.

2. Brief summary of relevant undisputed facts

[^5] The parties were married on February 13, 2015 in Vancouver. British Columbia. and had a religious ceremony on June 6, 2015 in India.

[^6] The mother is 43 years old and the father is 50 years old.

[^7] The parties have resided in the United States since their marriage. Initially they resided in Reno Nevada and then relocated on June 16, 2016 to Redmond Washington.

[^8] The child was born on […], 2016 in Redmond Washington.

[^9] The mother was a stay at home parent.

[^10] The father was employed as a computer programmer by Microsoft and now is employed with Resource America Inc.

[^11] The parties and the child resided together until August 30, 2018. The child had a U.S. passport, medical and benefit coverage and a paediatrician. She had a community of people including the father’s cousin and his children, the father’s work colleagues and their neighbours. The child played in the local playground. She was not yet in school but the plan would have been for her to attend the local public school.

[^12] On August 30, 2018 the mother and child left their home in Redmond Washington and travelled to India. The mother purchased a one-way ticket paid for by her brother. The mother only advised the father she had left when she was boarding the plane.

[^13] From September 1, 2018 until October 11, 2018 the child resided with the mother and the maternal grandparents in India.

[^14] From October 11, 2018 the child resided in India with only the maternal grandparents. The mother resided in Calgary Alberta.

[^15] From July 15, 2019 to September 20, 2019 the child resided in India with maternal grandparents and the mother who returned for a few months.

[^16] From September 20, 2019 to December 13, 2019 the child continued to reside in India with the maternal grandparents while the mother returned to Calgary.

[^17] The father travelled to India on December 17, 2019 and stayed there for about 6 months. He commenced a court application for custody in India on June 16, 2020. While the court proceedings were outstanding, the child was removed by the maternal grandparents to Calgary.

[^18] From December 13, 2020 the child resided with the mother and maternal grandparents initially in Calgary and then moved to Toronto on March 21, 2021. The maternal grandfather at some point returned to India.

3. Court Proceedings

3.1 Court proceedings in India

[^19] The father commenced a court proceeding in India on June 16, 2020.and sought custody of the child. The mother and her parents were named as Respondents. At the time the child was living in India in the care of the maternal grandparents and the mother was living in Canada.

[^20] Both parties were represented by counsel.

[^21] The mother only filed a response on November 18, 2020 and indicated that once she had permanent residency in Canada she planned to return to India in January 2021 to take the child to Canada or if that is not possible her parents would bring the child to Canada. The mother deposed that she had no way to travel back to the U.S.

[^22] As a result of this information the father on December 21, 2020 filed a petition for interim custody. On January 6, 2021 counsel for the father also filed a Memo to the court indicating that the mother was planning to “shift the minor child to Canada” [ it was assumed this meant relocate the child] and sought an order prohibiting such a move. The father having returned to the U.S. committed to returning to India to pick up the child.

[^23] On January 15, 2021 the mother filed a further affidavit with the court stating that the child was no longer in India and that her parents had brought the child to Canada to join her in December 2020. The exact date was not stated in the affidavit but the mother deposed in this court that the child came on December 13, 2020.

[^24] No orders were made in the court proceedings in India. Counsel advised that the court proceeding was still outstanding.

3.2 Divorce Petition in Washington

[^25] The father commenced a Petition for Divorce in the Superior Court of the State of Washington on January 27, 2022 seeking an order for a parenting plan, restraining order and proportionate sharing of daycare expenses.

[^26] Counsel advised that this proceeding is pending the outcome of the proceedings before this court.

3.3 Court proceedings in the Ontario Court of Justice

[^27] The mother commenced an Application in this court on September 23, 2021 for decision-making responsibilities, child support and dispensing with the father’s consent for renewal of the child’s passport and travel. The father was served by an order for substitutional service by email on October 13, 2021.

[^28] The father attended the first appearance on December 6, 2021. He advised that he intended to obtain counsel. He was given an extension to file his responding pleadings to January 7, 2022.

[^29] The father retained counsel and filed his Answer, 35.1 and Financial statement on January 7, 2022. The father sought a declaration that this court did not have jurisdiction to determine the parenting and other issues and sought an immediate return of the child to Redmond Washington. He sought various other temporary orders relating to deposit of the child’s passport., non removal and the mother’s contact information.

[^30] On January 17, 2022 counsel for the father filed a 14B requesting an urgent motion pursuant to the Hague Convention for the immediate return of the child. The mother opposed the granting of an urgent motion and deposed that she would be prejudiced if a case conference was not held.

[^31] Unfortunately, the 14B motion and the supporting affidavits were not brought to my attention until January 25th. [^1] On that date, the court endorsed that a videoconference would be arranged for the next day.

[^32] On January 26th, a videoconference was held. The parties agreed that the father’s Hague Convention application would proceed commencing on February 14th as a focused trial. Counsel advised that only their clients would be testifying. The parties’ evidence in chief would be by affidavit subject to limited oral evidence and subject to cross-examination. Timelines for filing were agreed upon. Counsel agreed to prepare a joint document brief to include all documents that they would be relying upon. The court requested that the documents relating to the court proceedings in India be included.

[^33] As the mother requested a case conference, a case conference before another judge was scheduled and held on February 1, 2022. At the case conference, temporary orders for non-removal were made.

[^34] Both counsel cooperated with all of the timelines.

[^35] The court relies on the pleadings filed, the affidavits of both parties and the factums. The joint document brief was made an exhibit on consent. The court relies on the documents in the brief that were referred to by counsel as part of their examination or cross-examinations.

4. Credibility

[^36] I wish to briefly comment on credibility at this stage.

[^37] I found the father to be a credible witness. He answered questions directly and clearly although at times he seemed confused about the implications or meaning of some of the legal documents. For example, he seemed unaware that he claimed a restraining order in his divorce proceedings in Washington.

[^38] His evidence was consistent on all relevant issues and he was not contradicted in cross-examination.

[^39] I found the mother not to be a credible witness. She was evasive, contradicted herself and made misleading statements in her court documents.

[^40] By way of examples, the mother stated in her affidavit sworn January 19, 2022 paragraph 2 that the child had resided with her in Toronto since December 2020. In paragraph 15 she states that she, her parents and the child moved to Toronto on March 21, 2021. In her application she is vague and simply states that the child resided with her in Canada since December 2020. The mother confirmed in her direct examination that she, the child and her parents moved to Toronto on March 21, 2021.

[^41] In her affidavit sworn January 19, 2020 the mother states that she had no ability to return to the U.S. as her H-4 dependent status Visa had expired. The mother also made this same statement in the proceedings in India and in her Application before this court. However, in her oral evidence and for the first time, in answer to a question from her counsel, she advised that she had obtained a Visitor’s Visa to travel in the U.S. on February 18, 2020 that is valid for 10 years and permits the mother to stay in the U.S. for up to 6 months (Ex. 5).

[^42] The mother deposed that the father was aware that she was traveling to India and did not try to stop her. She admitted in cross-examination that she left for the airport on August 30, 2018 after the father went to work and only advised him that she and child were traveling to India when she was boarding the plane.

[^43] The mother deposed that the father at all times knew where she and the child were and did not try to see her in India or in Calgary or now in Toronto. Yet the mother could not provide any proof that she advised the father of her address in any of those locations prior to court proceedings and contradicted herself several times during cross-examination on this issue.

[^44] The mother in her communications with the father in November 2018 sent the father photos of the child. However, at that time the mother was living in Calgary and the child was in India. Therefore, those photos could only have been provided through the maternal grandparents with whom the child was actually residing at the time. This is just one example of the mother deceiving or misleading the father as to the child’s whereabouts.

[^45] The mother further testified that before she left for India she and the father had been separated for over a year and slept in different bedrooms although they continued to live in the same apartment. The mother in her application states the parties separated on August 18, 2018. Although the mother may have not understood that parties could be legally separated while living in the same household, she does not explain why in her Application or affidavit she does not make any reference to the evidence she provided to the court about the relationship between the parties.

[^46] Given my assessment of the mother’s credibility where there is a dispute between the evidence of the parties, I prefer the evidence of the father. Specifically I prefer the father’s evidence with respect to his role in the child’s life, his attempts to have contact with the child, his lack of knowledge of the child’s whereabouts and his explanation of the mother’s ability to renew her U.S. Visa.

5. General Principles

[^47] The Ontario Legislature adopted the Hague Convention into Ontario law pursuant to section 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[^48] The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained. [^2]

[^49] The enforcement of custody rights and the prompt return of wrongfully removed or retained children to their country of habitual residence is not a custody determination. [^3] It is simply an order designed to restore the status quo that existed prior to the wrongful removal or retention and to deprive the “wrongful” parent of any advantage that might be otherwise gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.

[^50] The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence. [^4]

[^51] The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident. [^5] If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned.

[^52] Articles 1, 3, 8, 12, and 13 of the Hague Convention are most relevant to this case. These provisions read as follows:

Article 1 The objects of the present Convention are - a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 3 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.

Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

Article 12 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 where the child 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. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13 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 Authority or other competent authority of the child's habitual residence.

[^53] In Balev [^6], the court stated that the heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised, but for the wrongful removal or retention.

[^54] If the requirements of Article 3 are established, Article 12 requires that the judge in the requested state order the “return of the child forthwith” unless certain exceptions apply. Those exceptions in summary are:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13 (a);
2. There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b);
3. The child of sufficient age and maturity objects to being returned (Article 13 (2);
4. The return of the child would not be permitted by fundamental human rights and fundamental freedom of the requested state (Article 20); and
5. The application is brought one year or more from the date of the wrongful removal or retention and the judge determines that the child is settled in the new environment (Article 12).

[^55] Accordingly, there are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions. [^7]

[^56] In this case, the onus is on the father to prove that at the time immediately before the alleged removal, the child was habitually resident in Redmond Washington and that she was wrongfully removed. If the child’s habitual residence is found to be Redmond Washington and that she was wrongfully removed then the onus shifts to the mother to prove that one of the exceptions apply.

[^57] Habitual residence is central to the Hague Convention because it defines when a removal or retention of a child is wrongful. As Article 3(a) of the Hague Convention provides, the removal or retention of a child is only wrongful if it is in breach of custody rights under the law of the state in which the child was “habitually resident immediately before the removal or retention” (emphasis added).

[^58] The term “habitual residence” is not defined in the Hague Convention. The leading case with respect to the meaning of “habitual residence” in the Supreme Court of Canada’s decision in Balev. The court held that such a determination is guided by the hybrid approach that is explained at paras 43 and 44 of the decision as follows:

[43] On the hybrid approach to habitual residence, the application judge determines the focal point of the child’s life — “the family and social environment in which its life has developed” — immediately prior to the removal or retention: Pérez-Vera, at p. 428; see also Jackson v. Graczyk (2006), , 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.

[44] Considerations include “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality: Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358, at para. 56. No single factor dominates the analysis; rather, the application judge should consider the entirety of the circumstances: see Droit de la famille — 17622, at para. 30. Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: O.L. v. P.Q. (2017), C-111/17 (C.J.E.U.), at para. 45.

[^59] In the case of Ludwig and Ludwig [^8] the Ontario Court of Appeal considered and applied the new hybrid approach to the determination of habitual residence that the Supreme Court of Canada set out in Balev. The court then explained the proper approach to a Hague Convention application and how to apply the hybrid model.

[^60] At paragraph 40 of the decision the court summarizes the governing analytical framework for Hague Convention applications as follows:

Stage One: Habitual Residence

1. On what date was the child allegedly wrongfully removed or retained?
2. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach: a) The court’s task is to determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention. b) To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances: i) The child’s links to and circumstances in country A; ii) The circumstances of the child’s move from country A to country B; and iii) The child’s links to and circumstances in country B. c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors: i) The child’s nationality; ii) The duration, regularity, conditions and reasons for the child’s stay in the country the child is presently in; and iii) The circumstances of the child’s parents, including parental intention.

End of Stage One: Two Outcomes

1. If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.
2. If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.

Stage Two: Exceptions At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
3. The child of sufficient age and maturity objects to being returned (Article 13(2)); a) Has the party opposing return met the threshold to invoke the court’s discretion to refuse return? i) Has the child reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and ii) Does the child object to return? b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider: i) The nature and strength of the child’s objections; ii) The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent; iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and iv) General Hague Convention considerations.
4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or
5. The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

6. Analysis

6.1 Date of alleged wrongful removal

[^61] There is no dispute that the child was allegedly wrongfully removed on August 28, 2018. Identifying this date is not a finding that there has been a wrongful removal but it is the date from which the court conducts the habitual residence analysis.

6.2 In which jurisdiction was the child habitually resident immediately prior to the alleged wrongful removal?

[^62] Although at the outset of the hearing counsel for the mother conceded that the child was habitually resident in Redmond Washington, in both the evidence of the mother and the submissions of counsel, it became unclear if she was conceding this issue.

[^63] Some of the confusion in the mother’s evidence and counsel’s submissions appeared to be a misunderstanding of the relevant time for determining the habitual residence of the child.

[^64] The Supreme Court in Balev [^9] was abundantly clear that the relevant date is immediately before the alleged wrongful removal or retention and that the hybrid approach did not change that analysis. Although the child’s circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The Court is clear that the child’s circumstances following the wrongful removal or retention can only be considered when the Hague Application is not brought within a year of the wrongful removal or retention.

[^65] In this case considering both the parental intention and the child’s circumstances prior to her removal from Redmond Washington I find that the father has met the onus on him to prove that the child’s habitual residence was Redmond Washington based on the following findings of fact:

a) The parents were residing in the same apartment. Even if the mother’s evidence that they were separated is accepted by the court, the parties were still all living as a family in the family home; b) The child was born in Redmond Washington and is a U.S. citizen; c) The child has a U.S. passport even though the mother let it expire. The child is entitled to a U.S. passport and her passport can therefore be renewed; d) Prior to August 30, 2018, except for a visit to India to see her maternal grandparents, the child had never been outside of the U.S; e) Prior to August 30th, Redmond Washington is the only place the child would call home; f) The child has relatives in Redmond Washington and Phoenix Arizona with whom she has spent time; g) The child has health coverage and medical benefits in Redmond Washington. h) The child has a paediatrician in Redmond Washington who she saw regularly as needed; i) The child also attended with an eye doctor who treated her for an allergic reaction; j) The child and parents socialized with neighbours and friends in their community; k) Prior to August 30th the child had no connection to India, Calgary or Toronto; l) Prior to August 30th, both and the mother and father were settled in Redmond Washington where they had lived since before the birth of the child. The father has been steadily employed in that jurisdiction; and m) The child was removed without the father’s knowledge or consent from Redmond Washington. Thereafter, the child was left in India in the care of maternal grandparents and then moved to Calgary and then Toronto without the father’s knowledge or consent.

6.3 Did the father have custody rights and were those rights being exercised prior to the removal?

[^66] Having determined that the child’s habitual residence prior to the child’s alleged wrongful removal was Redmond Washington, the onus is on the father to establish that the preconditions in Article 3 have been met.

[^67] It was the position of the mother that the father did not have and/or was not exercising custodial rights prior to her removing the child on August 30th, 2018.

[^68] The mother alleged that she was the primary caregiver and that the father worked long hours and was not involved with the child.

[^69] In this case, the parties did not have any legal agreement or court order from Washington with respect to the custody of the child. Neither counsel provided the court with proof of the law in Washington state regarding custody which is understandable given the short time counsel had to prepare for this trial.

[^70] In the absence of proof of the law in the child’s habitual residence the court must rely on the law in the forum where the proceeding is being heard, [^10] in this case the law of Ontario.

[^71] Applying section 20 (1) of the Children’s Law Reform Act, both parents are equally entitled to decision-making responsibility [formerly custody] with respect to the child.

[^72] Even if there is a finding that a parent is the primary caregiver this does not have the same meaning as “exercising custody.” [^11]

[^73] In this case I do not make a finding that the mother was the primary parent as insufficient evidence was presented on this issue. Except for the common sense conclusion that the mother spent more time with the child as she was a stay at home parent and the father worked, no other evidence with respect to decision making responsibilities was presented.

[^74] The exercise of “rights of custody” in the context of Article 3 of the Hague Convention must be widely construed. As was held in the case of Agboola v. Unoh [^12], there is a very low threshold for the left-behind parent to establish that he was exercising custody rights and similarly a very high threshold for the parent who has the child to establish the left-behind parent has abandoned his rights of custody.

[^75] In this case, both parents were entitled to custodial rights prior to the removal. Even though the mother maintained that she was the primary parent she did not testify that she was the exclusive caregiver of the child or that she alone made all the decisions.

[^76] I find that the mother exaggerated the father’s lack of a role in the child’s life. I accept the father’s evidence that he worked Monday to Friday and rarely on weekends. I accept his evidence that he actively participated in the child’s life before and after work and when he was not working.

[^77] Even if the mother’s evidence is accepted that the parties were separated about a year before the removal, the mother agreed in cross-examination that the parties continued to participate in the day to day responsibilities and activities for the child.

[^78] The mother admitted in cross-examination that she had no plans to deprive the father of his parental rights prior to the removal, at the time of the removal or even now. The mother confirmed that she understood that parental rights included access/visitation and being involved in the decisions about the child.

[^79] The mother agreed that the father had attended with her for the child’s regular medical appointments. She also testified about the parties attending for medical attention regarding an issue with the child’s eye. The parties discussed the options and the father voiced his opinion that they should wait for surgery and the mother agreed. As it turned out the child’s eye issue resolved without the need for surgery. This is evidence of the parties making joint decisions and the father exercising his custodial rights.

[^80] Accordingly, I find there is clear evidence that the father had custodial rights and was exercising those rights prior to the removal of the child.

[^81] The court finds that the removal of the child from Redmond Washington was wrongful in accordance with Article 3 of the Hague Convention.

6.4 Applications of exceptions

[^82] Pursuant to Article 12, once it is determined that there has been a removal or retention that is considered wrongful under the Hague Convention, the court is required to return the child unless one of the exceptions to return applies. The onus is on the mother to establish an exception to the return of the child.

6.4 (i) Was the father exercising his custody rights or did the father consent or subsequently acquiesce to the alleged wrongful removal?

[^83] The mother submits that the father was not actually exercising his custody rights at the time of the removal or had consented to or subsequently acquiesced to the removal or retention in accordance with Article 13(a) of the Convention.

[^84] Based on the findings made that there was a wrongful removal, the court has already made a finding that the father was exercising his custodial rights at the time of the removal.

[^85] It is the mother’s position that the father acquiesced to the removal as he delayed in commencing any court proceedings in India or Canada. It is submitted that the onus is on the father to establish that he did not acquiesce to the child staying in Canada.

[^86] However, it is the mother who bears the burden of proof to establish that the Article 13 (a) exception would apply.

[^87] The question whether the father consented or acquiesced to the removal or retention of the child is a question of fact.

[^88] The meaning of the words “consent” and “acquiescence” were reviewed by the Ontario Court of Appeal in the case of Katsigiannis v. Kottick-Katsigiannis [^13]. The court held the words "consent" and "acquiescence" as used in Article 13(a) of the Hague Convention should be given their ordinary meaning so that they will be consistently interpreted by courts of Hague Convention contracting states.

[^89] The court held that the words "consent" and "acquiescence" are related words. "To consent" is to agree to something, such as the removal of a child or children from their habitual residence. "To acquiesce" is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.

[^90] To establish acquiescence within the meaning of Article 13(a) Hague Convention context that is, that the father “subsequently acquiesced in the removal or retention", the mother must show some conduct of the father which is inconsistent with the summary return of the child to her habitual residence.

[^91] Accordingly, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence.

[^92] I find that the mother has not established that the father consented or subsequently acquiesce to the removal of the child based on the following findings:

a) The mother did not obtain the father’s consent prior to removing the child from Redmond Washington on August 30th, 2018; b) The mother testified that she told the father about a week before her departure that her grandmother was ill and she may need to travel to India. The mother testified that she arranged for her brother to purchase a one-way ticket to India several days before her departure. She did not advise the father that she had the ticket or when she was leaving and agreed that she would have left even if the father did not consent; c) The mother left for the airport after the father had gone to work and did not advise him that she left until she was boarding the plane at almost 6:00 p.m. I accept the father’s evidence that he only saw this email much later in the night; d) The mother’s email of August 30th was misleading as it indicated that there was an emergency and she had to leave at the last minute and didn’t have much time. But the mother had the airline tickets at least 2-3 days prior to the departure and never told the father. I find that the mother had a pre orchestrated plan to leave with the child for India without the father’s consent; e) The mother corresponded with the father a few days later and never advised him that she intended to separate. The mother agreed that the father had no reason to believe that she and the child were not returning; f) The mother, within about 3 weeks of arriving in India, then left the child in India and travelled to Calgary. The mother did not advise the father and actively hid this fact from him by sending him photos of the child between November 2018 and February 2019; g) The mother continued to represent to the father that she needed him to send her documents so she could renew her Visa to return to the U.S. Despite knowing that her H-4 Visa was expiring in August 2018 the mother took no steps to renew it prior to leaving for India. I accept the father’s evidence on this issue that he provided the mother with the application in May 2018; h) It was only in about February 2019 that the father found out that the mother was in Calgary and that she left the child with the maternal grandparents in India. It is clear from the email exchange between the parties that the father did not agree to this arrangement. The mother states that she did not need to advise the father of her trip to Canada or get his permission; i) The father travelled to India to commence court proceedings for custody as India is not a signatory to the Hague Convention. He commenced proceedings as he did not agree to the child remaining in the care of the maternal grandparents; j) During the ongoing court proceedings in India, in December 2020 the mother arranged for the child to be removed and brought to Calgary. It is clear the father also did not consent to this removal as he filed court documents to prevent the removal but the mother removed the child before the court hearing was scheduled. The mother took the position as there was no order preventing the removal of the child she did not have to advise the court or the father. The mother continued to deceive the father that she could not return to the U.S. as her H-4 VISA had expired. The mother neglected to inform anyone that in fact she had obtained a Visitor’s Visa in February 2020 and therefore as of that date she could have returned with the child to the U.S; k) The mother then in March 2021 moved to Toronto. She did not notify the father and he had no knowledge of this move until served with the mother’s Application in this court in October 2021; and l) The father throughout the last 3 years has been attempting to have the child returned to Redmond Washington and attempting to ascertain the child’s whereabouts. In the interim, he was requesting photos and video contact that the mother only granted sporadically until this application was commenced.

6.4 (ii) Would returning the child to Redmond Washington expose the child to a grave risk of physical or psychological harm or place her in an intolerable situation?

[^93] There is a high threshold to prove “grave risk” of physical or psychological harm as confirmed by in Supreme Court of Canada in the leading case of Thomson v. Thomson [^14] and as followed by many trial and appellate decisions. Any interpretation short of a vigorous one with the few exceptions inserted in the Convention, would rapidly compromise its efficacy.

[^94] An assessment of risk involves not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring. [^15]

[^95] The credibility of the party seeking the Article 13(b) exception is an important determination in whether the child should be returned. The quality and quantity of the evidence of the alleged violence and the credibility of any witnesses is also important. [^16]

[^96] In this case the mother relies on an incident in 2015 where a member of the public called the police as she heard the parties arguing and saw the father push the mother and hit her and then both parties began to hit and slap each other. The police report filed indicates that the mother had minor injuries consistent with the being hit in the face. The father was charged with assault. The charges were subsequently either dismissed or withdrawn. This incident occurred prior to the child’s birth.

[^97] The mother testified to a second incident, that was not mentioned in her affidavit, and that occurred sometime in 2016 when she was about 5 months pregnant. The mother testified that she locked herself in her room as she feared the father would physically hurt her and she called 911. However, no police report was submitted about this incident and no charges were laid.

[^98] Since these incidents the mother gave birth to the child, the parties lived together until August 30, 2018 and even after this the mother still continued to communicate with the father about maintaining the family and being together as a family.

[^99] During the mother’s cross-examination she confirmed that she had no concerns about the father being around the child and expressed no fear of him. She only sought that his parenting time be supervised as she feared he was a flight risk.

[^100] The mother also agreed that she would feel safe moving back to Redmond Washington and trusts and is able to rely on police enforcement and the court system in that jurisdiction.

[^101] I find that it is clear that the mother does not fear for the safety of the child or herself. The mother’s allegations are a feeble attempt to bolster her wish to remain in this jurisdiction rather than any genuine concern about the well-being and safety of the child.

[^102] In view of the court’s concerns about the mother’s credibility I find the mother’s allegations of violence by the father against her are exaggerated but even if believed they do not meet the high threshold to establish a grave concern of harm if the child to returned.

[^103] There was no allegation that returning the child would place her in an intolerable situation. The father testified that the child would have medical coverage and return to the care of her paediatrician, she would be registered in the local school and attend before and after care that was available at the school. The father has appropriate accommodations for the child, the financial resources to support her and he is available to travel to transport the child back to Redmond Washington. He further testified that he has been having video calls with the child several times a week since the commencement of this proceeding and they have gone well. The mother agreed that the child enjoyed her contact with the father.

6.4 (iii) Is the child settled in her new environment?

[^104] Although not specifically pleaded, as the father commenced this Hague Convention proceeding more than one year from the child’s wrongful removal or retention from her habitual residence Article 12 is an available defence. Article 12 provides that a court is not required to return the child if it is demonstrated that the child is now settled in her new environment. The onus remains on the mother to prove this exception to the automatic return.

[^105] The child was wrongfully removed or retained in India as of August 30th, 2018. The father did not commence this Hague Convention proceeding until January 7, 2022. Accordingly, there has been delay of more than one year before the commencement of the Hague Convention proceeding.

[^106] The background of this matter is important in this determination as I find that the mother purposefully and intentionally mislead and deceived the father with respect to their relationship, her intentions to return to the U.S. and with respect to he child’s whereabouts.

[^107] Initially the father could not commence a Hague Convention proceeding as the child was in India and India is not a signatory to the Convention.

[^108] The father did not find out that the child has been left in India with her maternal grandparents until sometime in February 2019.

[^109] On or about January 15, 2021 the mother filed an affidavit in the court proceedings in India that the child had now been taken by the maternal grandparents to join the mother in Canada. The mother did not in those pleadings provide her address.

[^110] In a series of emails between July to September 2021 the father continued to request the mother’s address, a copy of the child’s passport and her OCI document, which is a document that provided her with the ability to travel to India.

[^111] In closing submissions, mother’s counsel submitted that the father was aware of the mother’s work address in Calgary as it is listed on her affidavit sworn November 18, 2020. The father was not cross-examined on this fact. He was not cross-examined as to why, once he was aware the child was in Canada, he did not commence a Hague Convention application. I put no weight on the fact that the mother’s work address was on her November 18, 2020 affidavit. I accept the father’s evidence, as corroborated by the email exchange between the parties, that he was not aware of the mother’s address as he kept asking for it and that the mother kept asking him why he needed it. The mother never tells him that he already has her address. I find that the mother was therefore refusing to provide her address either in Calgary or Toronto.

[^112] Once the father was served with the mother’s Application in this court, the father moved quickly to serve and file his Hague Convention proceeding.

[^113] I find that the father did not unduly delay in commencing this proceeding as he spent the last almost 3 years attempting to ascertain the whereabouts of his daughter and attempting to have her returned to her home in Redmond Washington. He was misled by the mother throughout this time.

[^114] I find that the mother has not established that the child is now settled in her new environment based on the following findings of fact:

a) The child has no legal status in Canada; b) The child has no health coverage or medical benefits in Ontario; c) The child is not enrolled in school as the school requires the consent of the father or a court order; d) The child does not have any close family in Toronto or elsewhere in Canada except for the maternal grandmother who is in Canada pursuant to a time limited visitor’s Visa; and e) The mother has recently commenced a dental hygiene program in Toronto and will graduate in October 2022. But she has no employment prospects and confirmed that once she graduates, she can find employment in Canada and the U.S.

7. Applicability of sections 22 and 23 of the Children’s Law Reform Act

[^115] It is the position of the mother that the court should accept jurisdiction and apply sections 22 (b) and 23 of the Children’s Law Reform Act.

[^116] Those provisions provide as follows:

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6.

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario. 2020, c. 25, Sched. 1, s. 6.

[^117] As a finding has been made pursuant to the Hague Convention that the child has been wrongfully removed and should be returned to her habitual residence it is not necessary to consider this ground of relief. However, even if the court had found that the child had not been wrongfully removed, for the brief reasons below I would have reached the same result namely, that the proper jurisdiction to determine issues relating to the parenting of this child should be in her habitual residence of Redmond Washington.

[^118] I find that this court should not accept jurisdiction in accordance with section 22 (a) of the Children’s Law Reform Act as the court has made a finding that the child was not habitually resident in Ontario at the commencement of the mother’s Application.

[^119] Section 22 (b) of the Children’s Law Reform Act requires that where a child is not habitually resident in Ontario all 6 criteria must be met. [^17]

[^120] In this case those criteria are not met based on the following facts:

a) The mother has not demonstrated that the child has any substantial connection to Ontario; and b) There are two ongoing and pending proceedings commenced by the father in the Superior Court of Washington and in India.

[^121] Section 23 of the Children’s Law Reform Act is also not applicable as the court has found that there is no risk of harm to the child if she is returned to the care of her father in her habitual residence.

8. Conclusion

[^122] In summary the court finds that:

1. The child’s habitual residence is Redmond Washington;
2. The father had custody rights and was exercising those rights when the child was removed from her habitual residence;
3. The removal and retention were wrongful within the meaning of Article 3 of the Hague Convention;
4. The father did not consent or acquiesce to the removal and subsequent retention of the child;
5. The child would not face grave risk of being exposed to physical or psychological harm or placed in an intolerable situation if returned;
6. Despite the delay in commencing the Hague Application the child is not settled in her new environment in Toronto Ontario;
7. Accordingly, there will be an order for the child’s return.

[^123] At the conclusion of the closing submissions and pending the decision of this court, counsel for the father requested temporary orders that the child’s travel documents including her U.S. passport and her Indian OCI documents be deposited with father’s counsel and not be released until further order of this court. Father’s counsel also requested an order that the child not be removed from this jurisdiction pending order of this court. These orders were granted on consent.

[^124] Counsel for the father also submitted that if the Hague Convention application is granted that the father would be travelling here to transport the child back home. He also requested a police assistance clause given the mother’s history of absconding with the child and moving to various jurisdictions without informing him. Counsel for the mother made no submissions regarding this request. In the circumstances of this case I find those are appropriate and necessary orders to ensure that the child is returned.

[^125] There will be a final order as follows:

1. The child, Aadhya Guggilam, born […], 2016 (hereinafter “child”), shall be immediately returned to her habitual residence namely Redmond, Washington, U.S.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
2. Within 14 days of the release of this Order, the Respondent shall pick up the child from the Applicant’s residence in Toronto, and travel with the child back to Redmond, Washington. The Applicant shall pack the child’s personal belongings in a suitcase and have the child and her suitcase available for the Respondent to pick up.
3. The child’s passport, travel documents shall be forthwith released to the Respondent.
4. Once the child arrives in Redmond, Washington, the child shall not be removed from Redmond, Washington, U.S.A., pending further court Order by the Superior Court of Washington. The herein Order shall expire on the issuance of any further order from the Superior Court of the State of Washington in and for the County of King and is made purely on a without prejudice basis pending the Superior Court of Washington ruling on this matter.
5. An Order directing and requiring all police services in the Province of Ontario, to take all necessary measures to enforce the apprehension Order and facilitate the transfer of the child to the Respondent in the event that the Applicant refuses to voluntarily allow the Respondent to pick up the child within 14 days of the release of the Honourable Justice Zisman’s trial decision.
6. Any issues relating to the parties’ separation specifically as they relate to the child shall proceed at the Superior Court of Washington under Court File No. 22-2-00516-9 KNT.
7. The Applicant’s Application File No. FO-21-00041895-0000, issued on September 23, 2021 is hereby dismissed with costs.
8. The Applicant, or any third party shall not remove the child from the Province of Ontario. For clarity, only the Respondent is entitled to remove Aadhya from Ontario, for the sole purpose of taking her home, to Redmond Washington, pursuant to paragraph 1 herein.
9. The Respondent shall be permitted to apply for any government issued documents for the child including but not limited to a renewal of her United States passport.
10. As the successful party the Respondent is entitled to costs of this proceeding. If the issue of costs is not settled, Respondent’s counsel shall submit brief costs submissions not to exceed 3 pages with a bill of costs and any offer to settle attached within 21 days. Upon receipt of the Respondent’s cost submissions, Applicant’s counsel shall submit her responding submissions on the same terms, within 21 days. Cost submission should be filed through the trial coordinator ‘s office. No copies of case law are to be submitted.

[^126] If any further directions from the court are required counsel should contact the trial coordinator’s office to arrange a videoconference.

[^127] I wish to thank counsel for their thorough and professional presentation of this case and their cooperation in ensuring this matter proceeded expeditiously.

[^128] In order to prevent any delay an issued and entered order is attached to this decision.

Released: February 22, 2022. Signed: Justice Roselyn Zisman

Footnotes

[^1]: The protocol in this court for any Hague Conventions application requires the court staff to immediately bring the file to the attention of myself as the local administrative judge so that a speedy process can be arranged. The file should have been brought to my attention upon the filing of the Answer and no 14B was required. The proceeding was slightly delayed as a result of this administrative error. [^2]: Office of the Children’s Lawyer v. Balev, 2018 SCC 16 at para. 24 (hereinafter referred to as Balev); Article 1 [^3]: Balev para. 24; Hague Convention Article 19 [^4]: Balev pars. 25-27 [^5]: Hague Convention Article 8 [^6]: Paras. 28-29 [^7]: Balev at para. 36 [^8]: 2019 ONCA 680 [^9]: Paras. 43 and 67 [^10]: Guarantee Co. of North America v. Mercedes-Benz Canada Inc. (2005) 83 O.R. (3d) 316 (S.C.J.) affirmed (2006) , 86 O.R. (3d) 479 (Ont. C.A.) at para.11; Brown v. Pulley, 2015 ONCJ 186 at para. 143 [^11]: Abib v. Abib, 2010 ONSC 5869. [^12]: 2016 ONSC 6779; See also Ryan v. Ryan [2010] N.J. No. 379 (Nfld. & Labrador S.C.J.) and Knight v. Gottesman, 2019 ONSC 4341. [^13]: , [2001] O.J. NO. 1598; at paras. 47-49 [^14]: , [1994] 3 S.C.R. 551; See Finizio v. Scoppio-Finizio, , [1999] O.J. No. 3579 (OCA); Ellis v. Wentzell-Ellis, 2010 ONCA 347; [^15]: Andegiorgis v. Giorgis, 2018 ONCJ 965 at para. 55; Ojeikere v. Ojeikere, 2018 ONCA 372 at para. 62 [^16]: Husid v. Daviau, 2012 ONSC 547 affirmed 2012 ONCA 469 [^17]: Turner v. Viau, [2002] O.J. No. 1229 (OCA)