Ogunboye v. Faoye, 2023 ONCJ 46

CITATION: Ogunboye v. Faoye, 2023 ONCJ 46

COURT FILE NO. D43147/22

ONTARIO COURT OF JUSTICE

B E T W E E N:

IYANU EZEKIEL OGUNBOYE

DARRELL S. WAISBERG (agent), for the APPLICANT

APPLICANT

• and -

OYEYEMI FAOYE

JAMES S. MARKS, for the RESPONDENT

RESPONDENT

HEARD: JANUARY 23-25, 2023

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] On April 3, 2022, the respondent (the mother) entered Canada with the parties’ two-year-old son (the child) from the United States. She immediately applied on behalf of herself and the child for refugee protection from Nigeria. The mother claims that she advised the applicant (the father) on April 3, 2022 that she was making the refugee applications and that she intended to relocate to Canada permanently. She said that the father consented to this relocation.

[2] The father, who resides in Texas, asserts that the mother obtained his consent for the child to enter Canada through deceit and material misrepresentations. He claims that his consent was obtained under duress. He asserts that the mother did not advise him that she was applying for refugee status for herself and the child, or that she intended to reside in Canada permanently. He claims that that he did not provide a valid and informed consent and that the child was wrongfully removed from the United States.

[3] In the alternative, the father claims that his consent was time-limited to the child traveling in Canada for 7 days so that the mother could renew her tourist visa. He claims that the mother has wrongfully retained the child in Canada.

[4] The father claims that the child’s habitual residence is in Texas, in the United States.

[5] The father asks the court for an order requiring the child to be returned to Texas. He seeks this order pursuant to the Convention on the Civil Aspects of International Child Abduction (the Convention).

[6] The mother seeks a dismissal of the father’s application (the Hague application). She claims that the child was not wrongfully removed from the United States nor wrongfully retained in Canada since the father consented to the relocation. She submits that this is simply a case of the father trying to revoke his consent.

[7] The mother submits that Canada is the child’s habitual residence and that the Convention does not apply. In the alternative, she submits that the father consented to her living in Canada with the child. She also claims that there would be a grave risk that the child’s return to the United States would expose the child to physical or psychological harm or otherwise place him in an intolerable situation. She submits that she cannot re-enter the United States and that a return of the child to the United States would separate him from the only caregiver he knows.

[8] Pursuant to Rule 37.2 of the Family Law Rules[^1] this case was actively case managed by Justice Roselyn Zisman and expedited for a prompt hearing. The parties filed affidavits for their direct evidence. They were permitted to give additional oral evidence at the hearing and were both cross-examined.

[9] A Canada Border Service Officer (the BSO) testified about her interactions with the parties on April 3, 2022.

[10] The mother filed an affidavit from a Canadian lawyer who attended with her at a virtual hearing that took place on September 20, 2022 in Texas family court (the Texas Court), where the father had applied for parenting orders and the return of the child to Texas. The father chose not to cross-examine him.

[11] The father filed an affidavit from a former Texas judge regarding Texas state law, specifically about rights of custody. The mother chose not to cross-examine this witness.

[12] At the request of Justice Zisman, the father filed the transcript of an oral hearing regarding temporary parenting issues that took place between the parties in the Texas court on October 10, 2022. Both parties relied on the contents of the transcript at this hearing.

[13] The issues for the court to determine are as follows:[^2]

a) On what date was the child allegedly wrongfully removed or retained?

b) Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident?

c) If the court finds that the child was habitually resident in the United States immediately before the date of the alleged wrongful removal or retention, do any of the exceptions to return set out in the Convention apply? Specifically in this case:

i) Did the father consent to the removal or retention? In answering this question, the court must determine:

i. Did the father give informed consent?

ii. Was the consent given by the father obtained through material misrepresentations or deceit?

iii. Was the consent given by the father provided under duress?

iv. If the consent given by the father was valid, was it time-limited, and if so, for how long?

ii) Is there a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation?

Part Two – Background facts

[14] The mother is 35 years old. She was born in Nigeria.

[15] The mother deposed that in April 2018 she traveled from Nigeria to Texas on a tourist visa. The visa expired in January 2020. The mother said that she remained and worked in Texas illegally. The mother deposed that she worked as an administrator in a home health agency and also operated a cleaning business.

[16] The mother did not make a claim for refugee status[^3] or start any other process to regularize her immigration status while she lived in Texas.

[17] The father is 30 years old and resides in Texas with his common-law partner and their 11-month-old child. The father has lived with his common-law partner for two years.

[18] The father deposed that he was born in Nigeria and moved to Malaysia in 2012. In 2016, he moved to the United States. He is a permanent resident of the United States and said that he expects to receive United States citizenship within the next four months.

[19] The father operates a trucking logistics business in Texas. He advised the court that his annual gross income is $280,000 and that his annual net income is about $160,000.

[20] The parties had a brief relationship. They met in early 2020 in Texas and ended their relationship by April 2020. They never cohabited.

[21] The parties have the one child together.

[22] The child has always resided with the mother. She has always been his primary caregiver.

[23] The parties disagreed on the extent of the father’s involvement with the child while the child lived in Texas. The mother said that the father exercised sporadic parenting time, once or twice each month, and that he paid her little child support. The father said that he saw the child almost every weekend and that he regularly supported the child. The father claimed that the mother was controlling about his parenting time.

[24] The parties agreed that while in Texas, the father never had parenting time with the child outside of the mother’s presence. He also never had overnight parenting time with the child.

[25] On March 8, 2022, the mother advised the father that she needed to take a short trip to Washington D.C. to renew her international passport. She asked him to sign a travel consent. The father responded a few days later and told her that she did not require a travel consent if traveling in the United States. He said that he had no objection to her traveling to Washington D.C. to renew her passport.

[26] The mother deposed that she went to Washington D.C. and on March 31, 2022, booked a flight with the child for the purpose of entering Canada and making the refugee claims.

[27] The mother acknowledged that she did not advise the father about this plan. She described it as impromptu.

[28] The mother did not take steps to renew her international passport in Washington, as she had told the father.

[29] The father made several attempts to contact the mother by both phone and text after March 31, 2022. She did not respond to him. She had turned her phones off.

[30] The mother concedes that she tried to take the child across the Canadian border on April 1, 2022 without the father’s consent in order to make the refugee claims. She admitted that she did not tell the father her plans because she did not believe that he would consent.

[31] The mother was intercepted and arrested by the RCMP while attempting to cross the border at Roxham Road in between points of entry on April 1, 2022.[^4] The mother disclosed to border officials her intention to claim refugee protection in Canada from Nigeria for herself and the child. Although physically in Canada, the mother had not yet entered the country from an immigration perspective. She could not do so until interviewed by a Border Services Officer.

[32] The BSO interviewed the mother on April 3, 2022 and advised the mother that she needed to inform the father that she was crossing international borders with the child and obtain his consent.

[33] The BSO spoke to the father. The father told the BSO that he did not consent to the child crossing the border.

[34] The mother subsequently had text and telephone discussions with the father. The parties disagree upon what was discussed. Those discussions will be reviewed in more detail later in this decision.

[35] The father called the BSO during the evening of April 3, 2022 and advised her that he now consented to the child entering Canada.

[36] The mother and the child entered Canada on April 3, 2022.

[37] The mother immediately applied for refugee status for herself and the child, claiming that they would not be safe if she was returned to Nigeria. They did not claim refugee protection from being returned to the United States.[^5]

[38] The mother and the child moved into a shelter in Toronto on April 5, 2022.

[39] The parties exchanged multiple text messages for the next two months until they had an argument over June 2 and 3, 2022. At that time, the mother blocked the father from her phone and from having any contact with the child. She did not provide the father with her address.

[40] The father retained counsel in Texas on July 6, 2022.

[41] In August 2022, the father brought a custody application in the Texas Court.[^6]

[42] The mother attended virtually in the Texas court with an Ontario lawyer on September 20, 2020. The mother and her Ontario counsel who attended the hearing assert that the mother challenged the jurisdiction of the court to hear the matter and was unsuccessful.[^7]

[43] The Texas court made what it terms a Bandaid order on September 20, 2020. The court made a finding that it had jurisdiction of the case and of the parties. It ordered that the father have temporary virtual parenting time with the child every Tuesday and Thursday, and in-person unsupervised parenting time with the child in Toronto from September 30 to October 2, 2022.[^8] The matter was adjourned until October 10, 2022 for a temporary hearing with oral evidence.

[44] The father exercised the unsupervised parenting time ordered by the Texas court, in Toronto, from September 30 to October 2, 2022.

[45] On October 10, 2022, the temporary parenting hearing was conducted in the Texas court. Both parties were represented by Texas counsel. Both parties testified and were cross-examined. A review of the transcript shows that the jurisdiction of the Texas court to hear the case and make temporary parenting decisions was not challenged at this attendance.

[46] The Texas court made temporary orders. It ordered that the father have the exclusive right to designate the primary residence of the child within Harris County, Texas and contiguous counties, until such time as the mother returned the child to Texas. At that time, the parenting orders could be reviewed. The court ordered the father to transport the child to Ontario so that the mother could have parenting time on the third weekend of each month in Ontario.

[47] The mother did not deliver the child to the father. She also took no steps, as required by the Texas court, to deliver the child’s documentation that would permit him to return to the United States with the father.

[48] Instead, on October 13, 2022, just three days after the Texas court made its decision, the mother issued an application in this court for essentially the same relief that the Texas court had just adjudicated upon. She sought primary residence and decision-making responsibility for the child pursuant to the Children’s Law Reform Act (the CLRA) and child support pursuant to the Family Law Act. She did not mention the Texas case or any of the decisions made in that case in either her application or in her Form 35.1 parenting affidavit.

[49] On October 24, 2022, the Texas court issued its formal order regarding the decision made on October 10, 2022.[^9]

[50] On November 10, 2022, the Central Authority for the Province of Ontario, Canada (the Central Authority) issued a notice to the court pursuant to Article 16 of the Convention.[^10] The notice indicated that a Hague application was pending, and that the court should not decide on the merits of custody until there is a determination that the child is not to be sent back to the United States.

[51] On December 12, 2022, Justice Zisman was advised by the father’s counsel that he would be making the Hague application shortly and she organized this hearing for that purpose. She made a temporary order that the father have temporary day parenting time in Toronto, on conditions, on December 29, 30 and 31, 2022. These unsupervised visits did not take place as the parties had a dispute over how the father’s passport was to be delivered to the mother.[^11]

[52] On December 28, 2022, the father brought a cross-motion within the mother’s application seeking the return of the child to the United States pursuant to the Convention.

[53] On January 20, 2023, the father issued a Hague application seeking the identical relief sought in his cross-motion dated December 28, 2022.

Part Three – The Convention

[54] The Convention is an international treaty, signed to date by numerous contracting states including both Canada and the United States. Article 1 of the Convention sets out its purposes, which are:

a) To secure the prompt return of children wrongfully removed to or retained in any contracting state; and

b) To ensure the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting states.

[55] The Ontario Court of Appeal described the purposes of the Convention in paragraphs 19 and 20 of Ludwig v. Ludwig, supra, as follows:

[19] 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: Balev, at para. 24; Hague Convention, Article 1. 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: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. 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.

[20] 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: Article 8. 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.

[56] The Convention process is meant to restore the status quo that existed before the wrongful removal or retention. Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access. See: See: Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (Balev).

[57] The Convention seeks to remedy the harms and serious consequences for the child abducted and the parent left behind. These harms are children being removed from a parent, their home environment, being transplanted into a new culture with which they have no ties and that dueling custody battles may be waged in different countries. See: Balev.

[58] Following a child’s abduction, the child’s best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence. Returning the child to the jurisdiction in which they have their closest connection is also considered to be in their best interests. See: F. v. N., 2022 SCC 51.[^12]

[59] All signatories to the Hague Convention are presumed to make decisions based on the child’s best interests. See: Leigh v. Rubio, 2022 ONCA 582, par. 45.

[60] The Convention contains its own code and rules. See: Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551.

[61] Not every removal or retention of a child is wrongful. Habitual residence is central to the Convention because it defines when a removal or retention of a child is wrongful. See: Parmar v. Flora, 2022 ONCA 869.

[62] Article 3 of the Convention sets out when a removal or the retention of a child is to be considered wrongful. It reads as follows:

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.

[63] Article 5 of the Convention defines rights of custody for the purpose of the Convention. It reads as follows:

For the purposes of this Convention -

a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[64] Article 8 of the Convention provides that 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.

[65] If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Convention provides that the court “shall order the return of the child”. This is subject to exceptions set out in Articles 12, 13 and 20 of the Convention. See: Ludwig, par. 34.

[66] Article 12 of the Convention reads as follows:

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.

[67] Article 13 of the Convention provides an exception to Article 12, even in the event that the court finds a wrongful removal or retention, in that a judicial authority of the requested state is not bound to order the return of the child if the person who opposes the 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.

[68] Article 17 of the Convention provides that the sole fact that there is a custody order, or that a parent is entitled to seek a custody order in the place of habitual residence, is not, by itself, grounds for returning a child to the place of habitual residence. It also provides that the court may take into account the reasons for that decision in applying the Convention.

Part Four – Analytic framework for a Hague application

[69] At paragraph 40 of Ludwig v. Ludwig, supra, the Court of Appeal set out the following analytic framework for a Hague application:

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:[^13]

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.

iii) The child’s links to and circumstances 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 child unless it determines that an exception applies. In this case the possible exceptions are:

1. The father consented to the removal or retention – Article 13A.

2. There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation – Article 13B

[70] The date of the alleged wrongful removal or retention is central to the analysis because the court assesses in which country the child was habitually resident immediately prior to this date. A child’s attachment to a country that is developed after the date of alleged wrongful removal or retention is only relevant to the Article 12 “settled in” exception. See: Balev, par. 67. This date also determines whether the Article 12 “settled in” exception can apply. See: Ludwig, par. 24.

[71] Identifying the date of alleged wrongful removal or retention does not imply a finding that there has been a wrongful removal or retention. At this first step of the analysis, the wrongfulness of the removal or retention is merely an allegation. All that is required at this step is to fix a date to conduct the habitual residence analysis. A court may find a date of alleged wrongful retention at this first step, and then ultimately find that there was no shared parental intention and that the respondent’s retention of the child in Ontario was not wrongful. See: Ludwig, par. 25.

[72] The court is not bound to accept the dates of alleged wrongful retention proposed by the parties. This is a factual determination to be made by the court.

[73] In Parmar v. Flora, 2022 ONSC 3079, affirmed on appeal, 2022 ONCA 869, the court did not accept either of the dates of alleged wrongful retention submitted by the parties. In Parmar, the father had consented to the mother traveling with the child to Canada. The father claimed that the date of alleged wrongful retention was when he sent the mother a text in September 2021, asking when she would return to Florida. The mother submitted that the date of the alleged wrongful retention was in March 2022, when the father issued his Hague application. The court found that the date of the alleged wrongful retention was in December 2021, when the father realized that the mother was not returning with the child to the United States and when he filed an application in Florida for the return of the child.

[74] Certain factors may be more relevant in determining habitual residence where the child is an infant or is very young. Where a child is an infant, the child’s environment 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”. See: Balev, par. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children. See: Balev, para. 45; Ludwig, par. 32.

Part Five – What is the date of the alleged wrongful removal or retention?

[75] The parties agree that the date of the alleged wrongful removal is April 3, 2022, immediately before the child entered Canada.

[76] The parties differ on the date of the alleged wrongful retention.

[77] The father claims that the date of the alleged wrongful retention is April 10, 2022 – when his 7-day consent for the child to remain in Canada expired. The mother claims it is when the father issued his application in the Texas court in August 2022.[^14]

[78] The court is not bound to accept either date.

[79] The father acknowledged at trial that he was not surprised that the mother could not address her immigration matters in 7 days. From his experience, he said that it sometimes took 2-3 months to deal with immigration matters. The father did not insist that the mother return the child to the United States after the 7 days had elapsed. His communication with the mother at the outset was friendly and supportive. He even offered her financial assistance.

[80] The relationship with the parties broke down after an argument that took place over June 2 and 3, 2022. The father indicated that he would take steps to see the child. The mother then blocked his phone number and denied him all contact with the child.

[81] The father said that this was when he realized that the mother would not be returning the child to Texas and that he needed to take legal action. He first contacted the Central Authority. He said that he did not have the necessary paperwork to start the Hague application. He retained his Texas lawyer on July 6, 2022. He and his lawyer had difficulty locating the mother in Canada and hired a private investigator to do this. He issued the custody application in the Texas court in August 2022.

[82] The court finds that the date of the alleged wrongful retention is June 3, 2022. This was the date when the father realized the mother was retaining the child in Canada and when he was no longer prepared to extend his consent to the child remaining in Canada. He actively took steps for the return of the child after this date.

Part Six – Where was the child’s habitual residence prior to the date of the alleged wrongful removal?

[83] It is not disputed that the child’s habitual residence prior to the date of the alleged wrongful removal was in Texas, in the United States. The child had lived his entire life in Texas and had no connection to Canada.

Part Seven – Where was the child’s habitual residence prior to the date of the alleged wrongful retention?

[84] If the court finds that the child was not wrongfully removed from the United States, it must determine the child’s habitual residence immediately before the date of the alleged wrongful retention on June 3, 2022.

[85] The father submits that the child’s habitual residence remained in Texas. The mother submits that the child’s habitual residence shifted shortly after April 3, 2022 to Ontario, because with an infant child, the child’s habitual residence is one and the same as his primary caregiver’s.

[86] To determine the child’s habitual residence as of June 3, 2022, the court must follow the hybrid approach set out in Balev that is described in paragraph 69 above..

[87] The court finds that the child had the following links to and circumstances in the United States as of June 3, 2022:

a) He was born in the United States.

b) He was an American citizen.

c) He had spent the first 15 months of his life in Texas.

d) He frequently saw the father in Texas, albeit under the supervision of the mother.

e) He regularly attended daycare in Texas.

f) His service providers, including doctors, were in Texas for the first 15 months of his life.

g) His half-sibling lived in Texas, although the mother had not permitted the child to have contact with her yet.

[88] The court finds the following to be the circumstances of the child’s move from Canada to the United States:

a) The mother tried to surreptitiously remove the child from the United States to Canada without the father’s consent.

b) The mother materially misrepresented to the father her intentions for coming to Canada with the child in order to obtain his consent. She also obtained his consent under duress. This will be reviewed in more detail below in the consent section.

c) The father did not agree that the child could relocate to Canada indefinitely – there was no joint parental intention for this to happen. This will be reviewed in more detail below in the consent section.

[89] The court finds that the child had the following links to and circumstances in Canada as of June 3, 2022:

a) He was in the care of the mother who has always been his primary caregiver.

b) He had been in Canada for two months.

c) He was residing with the mother in a shelter in Toronto.

d) He had a new doctor in Toronto.

e) He started daycare in Toronto in May.

f) He started going to church in Toronto regularly with the mother at the end of April.

[90] The court finds, applying the Balev hybrid analysis, that not enough time had elapsed to change the child’s habitual residence from the United States to Canada by June 3, 2022. This is particularly the case given the troubling circumstances of the child’s move from the United States to Canada and the mother’s misrepresentation to the father that she intended to return shortly with the child to the United States, once she regularized her immigration status. This misrepresentation will be dealt with in more detail later in this decision.

[91] The court finds that the child’s habitual residence immediately before the date of the alleged wrongful retention on June 3, 2022 was in Texas, in the United States.

Part Eight – Did the father have rights of custody at the time of the alleged wrongful retention?

[92] Article 3 of the Convention sets out that a removal or retention is only wrongful if it is in breach of rights of custody and those rights of custody were being exercised at the relevant time.

[93] In an Article 3 analysis, the nature of the custody rights of the party seeking an order for the return of children should be determined in accordance with the law of the habitual residence of the children. See: Finizio v. Scoppio-Finizio, 1999 1722 (ON CA), [1999] O.J. No. 3579 (C.A.). In this case, the court must look at Texas state law.

[94] The mother did not dispute that the father had rights of custody under Texas state law or that he was exercising these rights at the time of the alleged wrongful removal or retention. The father provided an affidavit from a former Texas state judge and specialist in family law who reviewed the relevant Texas law. This law confirms that the father had rights of custody at the time of the alleged wrongful removal and retention.

Part Nine – Does the Article 13A exception apply? Did the father consent or acquiesce to the removal or retention of the child?

9.1 Legal considerations

[95] In Katsigiannis v. Kottick-Katsigiannis, 2001 24075 (ONCA), the Ontario Court of Appeal explained the meaning of “consent” and “acquiescence” as used in Article 13A of the Hague Convention. To “consent” is to agree to something. To “acquiesce” is to agree tacitly, silently or passively to something such as the children remaining in a jurisdiction that is not their habitual residence.

[96] The test for acquiescence is subjective on the part of the left behind parent. See: Katsigiannis v. Kottick-Katsigiannis, par. 38.

[97] A fairly high bar must be crossed to show acquiescence or consent. There must be some formal indication of consent or acquiescence or alternatively actions or statements which unequivocally indicate the subjective intention of the wronged party to permit the child to remain in the location to which the child was removed. See: Raposo v. Raposo, 2023 ONSC 346.

[98] To trigger the application of the Article 13A exception there must be clear and cogent evidence of unequivocal consent or acquiescence. See: Komminemi v. Guggilam, 2022 ONCJ 66.

[99] The mother must prove words or conduct on the part of the father that are inconsistent with the child’s summary return. See: U.K. v. N.A., 2021 ONCJ 73, par. 107; Webb v. Gaudaur, 2015 ONSC 6956, par. 87. “Summary return” means a return of the child in the relatively immediate future, as opposed to an eventual return. And the length of time that must pass before acquiescence will be found will depend on the circumstances of each case. See: Katsigiannis v. Kottick-Katsigiannis, par. 36.

[100] Where there is evidence of consent, the court must consider whether the consent was a valid and informed consent. Vitiating factors may include deceit, fraud or fundamental misrepresentation. The common element in all of these is dishonesty. Consent obtained through calculated and deliberate fraud on the part of the absconding parent is not true consent. See: Knight v. Gottesman, 2019 ONSC 4341; De Martinez v. Rios, [2008] O.J. No. 3098 (SCJ). In Knight, at par: 72, Justice Sharon Shore wrote the following about consent and dishonest representations:

[72] It is clear from the travel consent that the father did not acquiesce to the children remaining in Ontario. The father's consent was not unconditional. He was clear from the outset that his consent was conditional on the children being returned. The father expressed a concern that the mother would retain the children in Toronto and the mother confirmed, quite emphatically, that she would bring the children back. She was being dishonest [page138] and deceitful. Even if the father had provided unconditional consent (which he did not), the consent would be vitiated by the mother's dishonest representations.

[101] In Dougherty v. Dougherty 2008 ONCA 302, at par. 13, the court set out when an agreement can be set aside based on misrepresentation as follows:

A misrepresentation must be material in the sense that a reasonable person would consider it relevant to the decision to enter the agreement in question. In addition, the material misrepresentation must have constituted an inducement to enter the agreement upon which the party relied.

[102] Duress involves a coercion of the will of one party or directing pressure to one party so they have no realistic alternative but to submit to the party. See: Berdette v. Berdette (1991), 81 D.L.R. (4) 194 at para. 22 (Ont. C.A.). Equity recognizes a wider concept of duress including coercion, intimidation or the application of illegitimate pressure.

[103] Evidence of emotional, psychological or verbal abuse, intimidation tactics and other forms of controlling behavior by one party that cause fear in the mind of the other party may also provide a foundation for a duress claim. See: Kinsella v. Mills, 2020 ONSC 4785.

9.2 Evidence of the parties

[104] The mother acknowledges that she tried to enter the United States without the father’s consent. Her plan was to advise the father once she and the child safely arrived in Canada. However, this plan changed when the BSO advised her that she required the father’s consent for the child to enter Canada.

[105] The parties agree that the BSO called the father to see if he would consent to the child entering Canada and that the father initially said that he did not consent.

[106] The mother claimed that she heard the BSO tell the father that she intended to make refugee claims for herself and the child.[^15]

[107] The mother testified that she informed the father that she was applying for asylum for herself and the child and that she planned to live in Canada permanently. She asked the father if he was prepared to sponsor her to the United States. The father said no.

[108] The mother said that after several texts and conversations the father agreed that she and the child could relocate to Canada permanently. She said that she promised the father that he could come to Canada to see the child and that he was content with this.

[109] The mother said that the father then called the BSO to give his consent for the child to come into Canada.

[110] The father gives a very different version of events.

[111] The father said that the mother told him during their conversations on April 3, 2022 that she and the child had to briefly leave the United States so that she could renew her tourist visa and have legal status in the United States. He said that his consent to the child entering Canada was conditional on two terms:

a) That the child’s travel in Canada cannot exceed 7 days; and.

b) That the purpose of the mother’s trip to Canada was to allow her to renew her tourist visa to the United States.

[112] The father said that the mother never discussed with him that she would be applying for refugee status for herself and the child. He said that he had been unaware that the mother lacked immigration status in the United States since she had been working in the United States for four years. He said that he had never discussed the mother’s immigration status with her while she was in the United States.

[113] The father said that the BSO never told him that the mother would be making refugee claims.

[114] The father acknowledged that he called the BSO and gave his consent to the child entering Canada. He does not assert that he told the BSO the conditions of his consent. The BSO recorded no conditions in her notes.

[115] The father said that he only consented to the child entering Canada for a short-term purpose and that he did not consent to the child’s relocation to Canada on either a temporary or permanent basis.

[116] The father said that he would never have consented to the child entering Canada if he had been told that the mother and child would be making refugee applications or that she intended to relocate with the child permanently to Canada. He claimed that he was tricked by the mother into giving his consent.

9.3 Credibility

[117] The reliability and credibility of the parties is integral to determining the consent issues.

[118] The court had some concerns with the reliability and the credibility of the father’s evidence. In particular:

a) The father has given inconsistent evidence about his 7-day travel consent. In the Texas court he said that he consented to the child traveling in Canada for 7 days and that the mother had told him that she was coming to Canada to renew her passport. In his trial affidavit, he stated that the 7-day consent was for the mother to renew her tourist visa – not her passport. At trial, he said that he believed her immigration issues might have been about the renewal of her work visa.

b) The father told the Texas court that he only exchanged a couple of texts with the mother after she entered Canada. In fact, there were multiple text exchanges between them.

c) The father told the Texas court that he last communicated with the mother in April 2022, and that is when she blocked him. The mother provided texts between them in May and on June 2 and 3, 2022.

d) It is doubtful that the parties agreed on April 3, 2022 that the child would only remain in Canada for 7 days. The father’s texts are inconsistent with this. In one text exchange the mother tells him that the child has settled well in his new environment and he responds, “that is good to know”. He sent the mother a text wishing her a Happy Mother’s Day and thanking her for all that she does for the child. In an email on June 2, 2022, he reminds the mother that she had told him when he gave his consent that he could come and visit the child in Canada anytime once she was settled. The father acknowledged at trial, when asked by the court, that he was not surprised that it was taking more than 7 days for the mother to clear up her immigration issues and that he did not immediately demand the return of the child.

[119] The court’s concerns about the reliability and the credibility of the father’s evidence pale in comparison to its concerns about the reliability and credibility of the mother’s evidence.

[120] The court finds that the mother has acted in a deceitful and dishonest manner. The evidence established that she is prepared to do or say anything she believes will achieve her objectives. Absent independent corroboration, the court does not accept her evidence.

[121] Evidence of the mother’s deceit and dishonesty includes the following:

a) She tried to permanently enter Canada with the child without the father’s consent. She did not seek the father’s consent prior to April 3, 2022 because she knew he would say no.

b) She first tried to obtain the father’s consent to travel on March 8, 2022, by telling him that she needed this document to travel to Washington D.C. to renew her international passport. The father did not provide this consent when he learned that a travel consent was not necessary for the mother to travel within the United States. The mother probably would have used this consent to enter Canada with the child.

c) She did not travel to Washington D.C. to renew her passport, as she had told the father.

d) She consulted with friends and learned that Canada had friendlier immigration policies than the United States. She had worked in the United States for four years and acknowledged that nothing had changed – no one was taking steps to ask her to leave the United States. Instead of taking steps to regularize her immigration status in the United States she chose to surreptitiously come to Canada with the child and make refugee claims.

e) She carefully researched and planned the move to Canada. She booked a flight from Washington D.C. and then arranged a shuttle to come to the border at Roxham Road. She knew exactly where to present herself and the child between the points of entry. She deceived the father about where she was going and turned off her phones so that he could not communicate with her or prevent the move.

f) She insisted that the BSO told the father that she was at the border seeking asylum for herself and the child. This was expressly contradicted by the BSO, who said that she did not do that. The BSO said that she is prohibited by law from disclosing the reason someone is at the border. She said that she only asked the father whether or not he consented to the child’s entry into Canada. The BSO was much more credible than the mother.

g) She assured the father that he would be able to see the child. However, she refused to provide him with her address. The father had no video calls with the child. The mother claimed that the video on her phone was broken. The court doubts this. Then, after June 3, 2022, she cut off all contact with the father and attempted to prevent him from finding her and the child. He had to hire a private investigator to locate them. She has frustrated the child from having a relationship with the father since she came to Canada.

h) Three days after the Texas court ruled in favour of the father on the temporary parenting issues, the mother issued a claim in Ontario seeking the identical relief that had just been determined. She said that she did not appeal the Texas court decision because she had been told that her chances were not good. Instead, she chose a different jurisdiction to litigate the same issues.

i) The mother failed to advise this court in her application and Form 35.1 affidavit about the Texas court case or of the temporary orders made by that court.

j) The mother’s rationalizations for not disclosing this information were informative of her willingness to say or do anything to justify her actions. She gave the following reasons for not disclosing this information:

i. She was self-represented.

ii. Her previous lawyer told her not to disclose this. The court does not believe this.

iii. She had only received the oral decision of the Texas court and not the formal court order.

iv. She didn’t intend to pursue her application, so it was unnecessary to provide this information to the court. She hoped that she could settle the case with the father.

v. The First Appearance court date was not until January 4, 2023 and she had up until then to disclose this information – she fully intended to do so if the matter continued in court.

k) She let her Nigerian passport expire in September 2022, creating a barrier to her re-entering the United States.

l) She said that she did not follow the Texas court order because she does not accept it. She said that she is the decision-maker for the child and she should decide where the child lives and when the child should see the father. She said that she would follow this court’s order because “the Hague court is a higher court and has heard all the evidence”.

m) She did not provide the in-person parenting time ordered by Justice Zisman on December 12, 2022.[^16]

n) At trial, she claimed that she would have told the father of her intention to enter Canada if her phones were on.[^17] She stated that “I knew that I needed his consent and he would be called”. This was contrary to any prior statement she had made in this case or to the Texas court.

o) At trial, she was very clear that she came to Canada with the child to permanently live in Canada. She only planned to travel in the United States once her immigration status was settled in Canada. However, she told the Texas court at the hearing on October 10, 2022 that her goal was to return to the United States – she just wanted to handle her immigration status first.

At page 58 of the transcript of the October 10, 2022 hearing, she acknowledged that she saw an opportunity for her to have the right papers and still be able to come back to the U.S. and to live in the U.S. with the right papers.

And, at page 74 of that transcript, she acknowledged that it was never her intention to stay in Canada for a long period of time, she just wanted to be able to move legally in the U.S.

[122] Except for when the mother’s evidence was supported by independent evidence, the court preferred the father’s evidence to her evidence whenever it conflicted.

9.4 Findings and analysis

[123] The court finds that:

a) The mother never told the father that she was making refugee applications for herself and the child.

b) The BSO never told the father that the mother was making refugee applications for herself and the child.

c) The mother told the father that she only intended to stay in Canada for a short time to regularize her immigration status and that she would soon return to live in the United States.

d) The parties did not agree that the child could only stay in Canada for 7 days.

e) The father did not consent to the child relocating to Canada indefinitely. He gave a time-limited consent for the mother and the child to remain in Canada for a short time for the mother to regularize her immigration status.

f) The mother told the father that he could regularly see the child and did not keep that promise.

[124] However, the analysis does not stop there. The court finds that the father’s consent to the child remaining in Canada was given under false pretenses and based on deceit and material misrepresentations made to him by the mother. It was not a valid and informed consent.

[125] The father’s consent was based on a material misrepresentation by the mother that she intended to return to the United States and that she only needed to remain in Canada for a short time to regularize her immigration status.

[126] The mother knew that these were false representations. She had no intention to return to the United States. She said at trial that she had intended to make Canada her permanent home when she made the refugee applications. She said that she came to Canada because it is a “saner country” than the United States. She said she did not feel safe in the United States[^18] and did not feel that she could support herself there. She also said that she felt insecure in the United States due to her lack of immigration status. She felt that she had a better chance of obtaining immigration status in Canada.

[127] The mother admitted that if she had told the father that she was making refugee applications and planned to live in Canada permanently he would not have consented. That is why she deceived him in leaving the United States in the first place. She obtained his consent through dishonesty. The court finds that he did not provide an informed consent. It finds that his consent is vitiated by the mother’s deceit and material misrepresentations to him.

[128] The court also finds that the father’s consent was obtained through duress.

[129] The father testified that the mother told him during their discussions on April 3, 2022, that: she could be charged with kidnapping, the child might be placed with Children’s Aid, that she and the child could be deported to Nigeria and that he might not see the child again unless he consented to the child coming into Canada.

[130] The father said that he wanted none of those things to happen. He stated that he felt no choice but to give his time-limited consent to the child coming into Canada.

[131] The mother denied saying to the father that she might be charged with kidnapping or that she and the child might be deported. She said that she told the father that she did not know what would happen to the child if he was not allowed into Canada and that maybe he would go into foster care.

[132] The court accepts the father’s version of events. He is a more credible witness. Further, the BSO’s notes indicate that the BSO told the mother that she needed the father’s consent to the child entering Canada, otherwise it could be considered kidnapping. It is highly likely that the mother used the prospect of her being charged with kidnapping to pressure the father to consent to the child entering Canada.

[133] The mother manufactured this situation at the border. The father was placed in a high stress situation where he believed that he had to make a quick decision or else the mother and the child could suffer serious consequences. He had no time to process this properly or to obtain legal advice. The father really had no realistic alternative in these circumstances other than to submit to the mother’s request for a consent. The court finds that any consent provided by the father for the child to stay in Canada is also vitiated by duress.

[134] The Article 13A exception does not apply.

Part Ten – Does the Article 13B exception apply?

10.1 Positions of the parties

[135] The mother claims that the child will suffer grave psychological harm and be placed in an intolerable situation if ordered returned to the United States. She says that she cannot re-enter the United States and that the child would be devastated being removed from his sole caregiver.

[136] The mother asserts that the father had little involvement with the child prior to the child coming to Canada. She does not believe that he is capable of caring properly for the child.

[137] The father submits that the mother has not met the high standard required for this exception to apply.

[138] The father deposed that he is very capable of caring for the child if the mother cannot immediately return to the United States. He and his partner have been raising their own child. He said that he loves the child and has the financial means to raise him. He plans to have the child attend daycare if he is placed with him. He will have the child added to his health coverage and ensure that he has a doctor.

[139] The father said that he had the child with him for a weekend in September 2022 pursuant to the Texas Bandaid order and the visit went very well.

[140] The father submits that the mother has not taken any steps to try and obtain legal status in the United States. Further, he submits that she did not provide any expert evidence that she will be unable to enter the United States in the near future.

10.2 Legal considerations

[141] There is a high threshold to prove “grave risk” of physical or psychological harm. See: Thomson, supra; Ellis v. Wentzell-Ellis, 2010 ONCA 347.

[142] The burden rests with the parent opposing the return of the child to establish a grave risk or an intolerable situation. See: Gourgy v. Gourgy, 2018 ONCA 166, at para 10.

[143] Any interpretation short of a vigorous one with the few exceptions set out in the Convention would rapidly compromise its efficacy. See: Konnineni v. Guggilam, 20222 ONCJ 66, per Justice Roselyn Zisman; Knight v. Gottesman, 2019 ONSC 4341, per Justice Sharon Shore.

[144] A test for severity of harm was set out by the Court of Appeal in Jabbaz v. Mouammar, 2003 37565 (ONCA) at para. 23, as "an extreme situation, a situation that is unbearable; a situation too severe to be endured".

[145] An assessment of risk involves not only as assessment of the severity of the harm, but also an assessment of the likelihood of it occurring. See: Andregiorgis v. Giorgis, 2018 ONCJ 965; Ojeikere v. Ojeikere, 2018 ONCA 372 and F. v. N., supra.

[146] The mother submitted three cases where courts found that the removal of a young child from their primary caregiver would cause the risk of harm and intolerability contemplated by the Article 13B exception.

[147] In Hage v. Bryntwick, 2014 ONSC 4104, Mazza J. dismissed a father’s Convention application finding that to return the child to his habitual residence in California would necessarily separate the young child from his mother and the only caregiver he had ever known.

[148] In U.K. v. N.A., 2021 ONCJ 73, Justice Alex Finlayson applied the Article 13B exception because there was a serious risk that the mother of a 2-year-old child could not return to the child’s habitual residence in Texas because she had no immigration status in the United States.

[149] In Jackson v. Graczyk, 2006 CarswellOnt 9048, Justice George Czutrin dismissed the father’s Hague application on multiple grounds, including the mother’s inability to return to the United States due to her immigration status.

[150] All of these cases are distinguishable on their facts from the case before this court, as follows:

a) In both Hage and U.K.,

i. The fathers actively took steps to frustrate the mothers’ ability to re-enter the United States. In Hage, the father shredded the mother’s application to become a U.S. citizen. In U.K., the father withdrew the mother’s Green Card application. In this case, the father has not done anything to prevent the mother from returning to the United States. Any inability of the mother to re-enter the United States is of her own doing.

ii. Neither mother engineered the risk of harm to their children as the mother has done to the child in this case.

b) In Hage:

i. The settled intention exception in Article 12 of the Convention applied. That is not the case here.

ii. The court was very concerned about placing the child with a father who abused alcohol and had blackouts and memory loss. Here, the father is competent and stable and has family support.

iii. The child had special needs, and was receiving specialized services that would be lost if returned to the United States. Here, the child has no special needs.

c) In U.K.:

i. The court had the benefit of expert evidence from a United States immigration lawyer on the challenges faced by that mother of re-entering the United States. The court does not have such evidence in this case.

ii. There was overwhelming, clear and cogent evidence of both active and passive acquiescence on the part of the father that was inconsistent with the child’s summary return. This is far different than in this case where the court has found that the mother deceptively removed the child from the United States and the father has actively pursued the child’s return.

iii. The court found that the mother did not conceal her whereabouts when she came to Ontario. The parties had been involved in a domestic dispute that involved the police shortly before a pre-planned trip to Ontario. The father agreed to the vacation. While the mother was in Ontario the father refused to take her calls and wrote to U.S. customs asking to withdraw her green card application. The mother, who had no status in the United States, could not return. This is far different than in this case where the mother has concealed her whereabouts and lied to the father about her intention to return to the United States. Here, the mother has taken no steps to try to return to the United States.

d) The facts in Jackson were significantly different from those in this case. The mother was a citizen of Poland and Canada and was living illegally in Florida with the child. The father lived in Texas and worked in Ontario. The mother moved with the child to Ontario. The father brought a Hague application asking for the child to be returned to Texas. The court found that Ontario was the child’s habitual residence and that the Convention did not apply. The child had never lived in Texas. The father also failed to establish that he had rights of custody. The father’s ability to see the child was not impaired by the move.

e) In none of these three cases was there:

i. An adjudication having been made in the United States about what temporary orders are in the child’s best interests – a decision that was made with the full participation of both parties, as is the case here.

ii. An active court case in place in the United States, where the parent could seek a trial of the parenting issues based on the child’s best interests, as is the case here.

iii. A temporary parenting order in place that would ensure contact between the mother and the child after the return of the child. In this case, we are fortunate that the father has the financial means to bring the child to Ontario once each month pursuant to the temporary order.

iv. The egregious level of bad conduct exhibited by the mother in this case.

v. A mother who was trying to frustrate the child from having a relationship with the father, as we have in this case.

[151] Other cases have decided that the separation of a young child from their primary caregiver did not rise to the level of harm required in the 13B exception.

[152] In Parmar v. Flora, supra, the mother submitted that if the child was ordered returned to the United States, she would not be able to go with the child and the child would suffer grave psychological harm. The court had expert evidence from both parties and found that the mother’s intention to reside in the United States would be the key consideration in determining whether she was permitted entry. As such, the risk of her being denied re-entry turned largely on her own actions. The court found that the mother did not meet the threshold for the Article 13B exception.

[153] In Brown v. Pulley, 2015 ONCJ 186, this court did not apply the Article 13B exception as requested by an abducting parent. The court found that the mother had engineered the risk of harm to the children. It was also uncertain on the evidence whether the mother could return to the United States with the children.

[154] F. v. N., supra, was an appeal to the Supreme Court of Canada of a non-Hague international child abduction case decided under the CLRA. The mother had wrongfully retained the children in Canada. The mother submitted that pursuant to section 23 of the CLRA the children were at risk of serious harm if returned to the United Arab Emirates, since they would be separated from her, their primary caregiver.

[155] The trial judge rejected this defence, as did the majority of judges (the majority) at the Supreme Court of Canada.[^19]

[156] The majority acknowledged that separating an infant from their primary caregiver is a circumstance that most certainly can cause psychological harm to the child. It should never be considered lightly, given “the particular role and emotional bonding the child enjoys” with their primary caregiver (Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 121, per L’Heureux‑Dubé J.). The majority accepted as well, that a child’s loss of contact with a primary caregiver who cannot return to the home jurisdiction, for reasons beyond their control, can be the source of serious harm for an infant (see par. 77).

[157] However, the majority rejected the argument that such a separation, in and of itself and without regard to the individualized circumstances, will always rise to the level required under section 23 of the CLRA, as this could ultimately defeat the legislative objective of discouraging child abductions of very young children. In order to deter and remedy child abductions effectively, courts should be prepared, in some circumstances, to order the return of the children despite a risk of separation from their primary caregiver. Deciding otherwise could allow abducting parents, in some situations, to rely on their status as primary caregivers to circumvent the due process for custody determination and remove the children from the authority of the courts that would normally have jurisdiction. This could ultimately risk making Ontario a haven for child abductions (see par. 78).

[158] The majority found that the risk must be greater than simply being removed from the primary caregiver. The analysis of harm associated with separation under section 23 must be individualized and based on evidence specific to the child involved. The child’s age, and, where relevant, their special needs and vulnerabilities, may mitigate or aggravate the risk of harm (see par. 80).

[159] The majority wrote that the relationship between the child and the left-behind parent as well as the environment to which a child will be returned, may also affect how an abducted child responds to the separation from their primary caregiver. Therefore, if a child is separated from their primary caregiver, but is nevertheless returned to their capable left‑behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm may not be met. Conversely, if the evidence demonstrates that the child would be returned to an environment where they will be left without care or that they feel unsafe with their alternate caregiver, it is very possible that the serious harm threshold will be met (see par. 80).

[160] The majority wrote that when assessing the severity of the harm, judges should also consider whether undertakings made by the left‑behind parent to the primary caregiver in the proceedings — also called “protective measures” — could be joined to the return order in order to lift the obstacles to the parent’s return or to address any other aspect of the anticipated risk of harm to the child. These could include, for example, an undertaking from the left‑behind parent to facilitate daily contact between the abducting parent and the child or to attend to financial or administrative obstacles to the primary caregiver’s return (see par. 81).

[161] As to the likelihood of separation, the majority wrote that courts should consider all barriers to the return of the primary caregiver. In some cases, the risk of separation will be involuntary, namely when the primary caregiver faces definitive legal obstacles to their return. It may also be voluntary, in the sense that it flows from the parent’s refusal to return. In general, a parent ought not to be able to create serious harm and then rely on it through their own refusal to return. Accordingly, courts should carefully scrutinize refusals to return when there is no impediment to the parent re-entering and remaining in the country of the child’s habitual residence (see par. 82).

[162] The majority found that the mother could return to the United Arab Emirates but chose not to do so. It also found that the father had proposed reasonable undertakings to the mother to ameliorate any risk.

[163] The minority at the Supreme Court of Canada (the minority) agreed that ordinarily a parent should not be allowed to create serious harm and then rely on it through their own refusal to return with the child if removed from Ontario and called it the principle of “self-engineered harm”. However, the principle of self-engineered harm does not apply when a parent has reasonable and legitimate reasons for not returning (see paragraph 166).

[164] The minority recognized that children can suffer serious emotional and psychological harm if they are removed from their primary caregiver, and thus it is generally in their best interest to maintain this relationship (see paragraph 173).

[165] The minority wrote at paragraph 178:

The relationship children have with their primary caregiver is thus crucial to their emotional and psychological welfare. Separating children from their primary caregiver can affect their wellbeing and cause them serious harm. Of course, this does not mean that separating children from their primary caregiver necessarily constitutes serious harm under s. 23 of the CLRA (Kasirer J.’s reasons, at para. 78). The assessment must be fact-specific and focus on the particular circumstances of the child (paras. 72 and 75). Still, the case law’s recognition of the harm caused by separation from a primary caregiver is a useful reminder of the need for careful attention to the facts if such separation is to be countenanced.

10.3 The mother’s ability to return to the United States

[166] The mother attempted to qualify a Canadian immigration lawyer to give expert evidence.

[167] A voir dire was held and, for oral reasons given at the hearing, the court did not qualify the purported expert.

[168] The court applied the framework set out in White-Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23, in determining this issue. This framework is as follows:

Stage One – Consider the four threshold requirements set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 being:

a) Relevance;

b) Necessity in assisting the trier of fact;

c) Absence of any exclusionary rule and;

d) The need for the expert to be properly qualified.

Stage Two – The gatekeeper stage where the court decides whether the potential benefits of admitting the evidence justify the risks in doing so. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because the probative value outweighs it prejudicial effect.

[169] Where an expert appears to have adopted the role of advocate for a party, that witness will not be impartial and the evidence should not be admitted. See: Bruff-Murphy v. Gunawardena, 2017 ONCA 502.

[170] The court did not qualify the witness as an expert for multiple reasons including:

a) He is not a duly qualified expert. He has practiced law for under four years. He conceded that he has not had a United States immigration case and that he has no expertise in United States immigration law.

b) He is the mother’s immigration lawyer in Canada and is not impartial. The difficulty with his evidence became apparent during the voir dire when he struggled with questions that might breach solicitor-client privilege.[^20]

c) He was being proffered as a litigation expert. The mother did not comply with the requirements for litigation experts set out in Family Law Rules 20.1 and 20.2. The witness did not complete an Acknowledgement of Expert’s Duty Form.

d) His evidence about Canadian immigration law was unnecessary and could have been provided in a factum. His affidavit filed for this matter contained no references to relevant statutes or regulations, either in Canada or the United States.

e) The probative value of the evidence did not outweigh its prejudicial effect.

[171] The mother also set out information in her trial affidavit from a website called Become a Permanent Resident Through Your U.S. Citizen Child.[^21] The court places no weight on this evidence. It is not a substitute for expert evidence on United States immigration law. No evidence was presented to support a finding that the information in the article is reliable. There was no person that the father could cross-examine about its contents and how the information in the article might pertain to the mother’s circumstances.

[172] The mother should have called an expert in United States immigration law to establish that she will have difficulties in re-entering the United States.

[173] The evidence is unclear when, or if, the mother can return to the United States. It is unclear whether she can return for a specified time frame or return permanently. It is unclear what steps need to be taken for her to enter the United States. She chose to let her Nigerian passport expire in September 2022. Can she renew this? How long will this take? Is this sufficient to re-enter the United States? Are there other steps that she can take to re-enter the United States?

[174] What the court does know is that the mother has taken no steps to be able to return to the United States and expressed no interest in doing so.

10.4 Analysis

[175] Deciding whether separating the child from the mother would cause the risk of harm and intolerability contemplated by the Article 13B exception was the hardest decision for the court to make in this case.

[176] Separating a child from their primary caregiver should never be done lightly. This court knows that this will likely cause the child emotional harm. As set out in F. v. N., the court must carefully examine the individualized circumstances of each case to determine whether this harm should be used as the basis for not returning the child.

[177] In the circumstances of this case, the court finds that the mother did not meet the high threshold required to establish the Article 13B exception for the following reasons:

a) A unique aspect of this case is that the Texas court has already addressed the child’s best interests and made temporary parenting orders. Unlike most “chasing orders”, this decision was made after a hearing where both parties participated and were represented by Texas counsel. They had the opportunity to present and test evidence about the child’s best interests.[^22]

This court is not tasked with determining the child’s best interests. It is only tasked, at this point in its analysis, with determining whether the Article 13B exception has been established.

The Texas court, after the oral hearing, made a decision that the child’s best interests were to reside with the father in Texas and to have parenting time with the mother one weekend each month in Ontario, subject to a review if the mother returns with the child to Texas. The mother did not appeal that order.

Although this court is not bound by that decision, the court should and has given it serious consideration. It is a decision from a Hague signatory. The decision was based on an assessment of the child’s best interests. All signatories to the Convention are presumed to make decisions based on the child’s best interests. See: Leigh v. Rubio, supra, par. 45.

The Texas court decision is buttressed by this court having had the benefit of hearing significant evidence of, and making findings about deceitful and dishonest conduct by the mother that was not before the Texas court.

It would be very difficult justifying that the high threshold in Article 13B has been met, when there has already been a determination by the Texas court that it is in the child’s best interests to live with the father in Texas. Inherent in that decision is that the child can be safely parented by the father and that he will take reasonable steps to mitigate any harm to the child of being removed from the mother.

b) The mother has self-engineered the risk of harm to the child as follows:

i. She failed to take any steps to regularize her immigration status in the United States.

ii. She carefully planned to remove the child from Canada without the father’s consent. She did so in a deceptive and dishonest manner. She was under no active threat of removal from the United States at the time. She had worked there for four years and operated a business.

iii. She deceived the father about her intentions to remain with the child in Canada and her reasons for coming to Canada.

iv. She entered Canada aware of the challenges of her re-entering the United States.

v. She chose to let her Nigerian passport expire instead of renewing it, likely burning another bridge to reenter the United States.

c) The court finds that the father was more involved with the child prior to the child’s removal from the United States than claimed by the mother. The court accepts that he saw the child each weekend and had a positive relationship with the child.

d) There are no allegations of family violence. There are also no allegations that the father would physically harm the child.

e) The father presented a plan that informs the court that the child would be safely cared for by him. He is already caring for an infant with his partner. He has the financial means to support the child. He has family support. He presented a reasonable and responsible plan to care for the child.

f) The father has demonstrated a serious commitment to having a positive relationship with the child despite significant barriers put up by the mother. Less committed fathers would have walked away. This commitment gives the court more confidence in his ability to parent the child in a responsible manner. The child would be placed in a loving home.

g) There is already a process in place in Texas for the mother to litigate the parenting issues quickly. She can seek a trial in the Texas court and ask for the child to be placed with her in Canada. She already has counsel in place in Texas. She can participate virtually if she cannot attend in person at trial. That court, in the child’s habitual residence, is best positioned to determine the child’s best interests.

h) There is already a parenting time order in place from the Texas court for the father to bring the child to Ontario once each month, at his own expense. The father has undertaken to comply with it. He has complied with court orders. This will mitigate the emotional harm the child will likely incur from being removed from the mother.

i) The father has also undertaken to take whatever steps are necessary, short of marrying and sponsoring the mother, to facilitate her return to the United States.

j) The mother failed to provide expert evidence about her ability to re-enter the United States. As set out above, there are many unanswered questions. However, the court wants to strongly emphasize that even if expert evidence had been presented that the mother could not return to the United States, it would not have found that the Article 13B exception had been established by her.

[178] It was instructive to observe how dismissive the mother was at the trial of the father and of the child’s right to have a relationship with him. She does not feel that he is a good or responsible father. She feels that she should make all decisions regarding the child and that he should have no input. She does not place any value on the child having parenting time with the father and has demonstrated this through her actions.

[179] The mother went as far as intimating at trial that the father might not be the child’s biological father. She told the court that he did a DNA test but never showed her the results.

[180] The mother has also not paused to consider the impact on the child of her actions. She has deprived the child of his relationship with the father. She put the child at risk of being placed in Children’s Aid’s care when she came to Canada. The BSO testified that if the father had not consented to the child to coming into Canada, the mother and child would have been placed in the “Minor’s Project” and that Children’s Aid would likely have been called.

[181] There is a serious argument to be made that while separating the child from the mother might cause the child emotional harm, leaving the parenting circumstances in their present state might also cause the child longer-term emotional harm. This will be an issue for the Texas court to determine.

[182] Lastly, in the circumstances of this case, applying the Article 13B exception would be an abdication of Canada’s responsibilities under the Convention. It would be an open invitation for parents to abduct their children and come to Canada, where the parent has no immigration status in their children’s habitual residence. In this case, the mother admitted that she had learned from friends that this route had worked for others and that is why she chose it. This must be discouraged.

[183] The Article 13B exception does not apply.

Part Eleven – Summary of findings

[184] The court summarizes its findings as follows:

a) The child was wrongfully removed from the United States on April 3, 2022.

b) In the alternative, the child was wrongly retained in Canada on June 3, 2022.

c) The child’s habitual residence is in Texas, in the United States.

d) The father had custody rights and was exercising those rights when the child was wrongfully removed or retained from his habitual residence.

e) The Article 13A exception does not apply – the father did not provide an informed consent or acquiesce to the removal and subsequent retention of the child.

f) The Article 13B exception does not apply. The child would not face grave risk of being exposed to physical or psychological harm or placed in an intolerable position if returned.

g) The child is to be immediately returned to Texas, in the United States.

Part Twelve – Conclusion

[185] A final order shall go on the following terms:

a) Pursuant to the Convention, the child is to be immediately returned to his place of habitual residence, being Texas, in the United States, in the care of the father.

b) The mother shall deliver the child to the father by noon on January 31, 2023, and shall also do the following by that time:

i. Provide the father’s counsel and/or police forces with full particulars about the whereabouts of the child and copies of all records pertaining to the child pursuant to section 39 of the Children’s Law Reform Act.

ii. Deliver to the father’s counsel the originals of any passport, birth certificate, identity cards and any other identification for the child.

c) The mother shall execute any documentation required to facilitate the child traveling with the father back to Texas.

d) Neither the mother, nor any third party at her direction, shall remove the child from the City of Toronto, pending the child’s return to Texas.

e) As of January 31, 2023 at noon, the child shall remain in the father’s care in Canada until such time as he obtains the necessary travel documentation for the child to travel with him to the United States.

f) If the mother fails to deliver the child as directed by this order, the Toronto Police Service, the Ontario Provincial Police, the Royal Canadian Mounted Police, Canada Border Services and all other peace officers in Ontario where the child may be, shall, pursuant to section 36 of the Children’s Law Reform Act, locate, apprehend and deliver the child to the father, at his request. They shall also provide the father with all necessary assistance to ensure the prompt return of the child to Texas and enforce this order. In doing so, they may enter any place, including a dwelling place, if they have reasonable and probable grounds to believe the child is located there and seize the child’s passport, birth certificate and other identification or records pertaining to the child and deliver them to father’s counsel. This term shall remain in place for 12 months.

g) The father shall be permitted to apply for or renew any government issued documents for the child, without the mother’s consent, including, but not limited to a renewal of the child’s United States passport.

h) The court orders the following undertakings:

i. The father is to comply with the parenting time terms set out in the October 24, 2022 order of the Texas court.

ii. The father will ensure that neither he nor his agents will interfere with the mother’s ability to re-enter or remain in the United States.

iii. The father shall use his best efforts to assist the mother to obtain legal status in the United States. However, the return of the child to Texas is not to be delayed while this process takes place.

[186] Canada Border Services, the Minister of Public Safety and Emergency Preparedness, or any other government agency or ministry holding travel and identity documents for the child is requested to release these documents to the father to facilitate the child’s return to Texas.

[187] Court staff are directed to send a copy of this order to the Texas court.

[188] Only the Hague application was sent to trial for a determination. The application brought by the mother for parenting and child support orders remains outstanding. This decision should make it apparent what counsel should do regarding that application. Counsel should discuss this and can submit any consent for the withdrawal of that case by Form 14B motion. If they cannot agree, they shall appear before the court on March 29, 2023 at 3:45 p.m., by videoconference for a case conference.

[189] The father is entitled to his costs of the Hague application. If he wishes to seek his costs, he is to serve and file written costs submissions no later than February 14, 2023. The mother will then have until February 28, 2023 to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator.

[190] The court thanks both counsel for their thorough and professional presentation of this case.

Released: January 30, 2023

Justice Stanley B. Sherr

[^1]: This is the family law rule addressing international child abduction. [^2]: These questions arise from the analytic framework set out by the Ontario Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680. This framework will be set out in more detail below. [^3]: This is described as asylum in the United States and will be used interchangeably with refugee claimant. [^4]: Roxham Road is an unofficial border crossing between the State of New York and the Province of Quebec. [^5]: This is important since if the child is ordered returned to the United States, he is not being returned to the country from which he seeks asylum. He would not be at risk of persecution in the United States. He is an American citizen by virtue of his birth there. The principle of non-refoulement would not be violated by such an order. [^6]: This was at the District Court, 247th Judicial District, in Harris County, Texas. [^7]: The court was not provided with a transcript of this proceeding. [^8]: Texas uses the terms custody and access. Ontario now uses the terms decision-making responsibility and parenting time. The terms will be used interchangeably in this decision. [^9]: This was a 36-page order that appears to be a standard form, modified to be in accordance with the October 10, 2022 decision. [^10]: Article 16 of the Convention reads as follows: After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. [^11]: Justice Zisman had ordered that the father deliver his passport to the mother during his parenting time. [^12]: Although this case was determined pursuant to the CLRA and not the Convention, much of its commentary is applicable to international child abductions under both pieces of legislation. [^13]: This is what is known as the hybrid approach to determining habitual residence set out by the Supreme Court of Canada in Balev. [^14]: The court was not provided with the specific date when the Texas application was issued. [^15]: The mother wrote at par. 10 of her trial affidavit dated January 12, 2023 that the BSO specifically told the father that she was seeking asylum. The mother wrote that according to procedure, Canada Border Services is supposed to let the father know that someone has his baby at the border and is trying to seek asylum in Canada. [^16]: The court recognizes that the mother alleges that the father did not follow the order. However, the mother has not offered any other in-person parenting time to the father. [^17]: The mother claims that her phones were turned off after April 1, 2022 because when she was arrested at the border she was told to put her phones in her luggage. [^18]: The mother felt that a stranger (not the father) had been following her. [^19]: This was a 5-4 decision. [^20]: The father sought full disclosure of this lawyer’s file on the grounds that the mother had waived solicitor-client privilege. The court denied this request at the voir dire stage. However, this demonstrated the risk of trying to call your own lawyer as a witness. [^21]: This was not attached as an exhibit, but a link to the website was provided. [^22]: A chasing order is an order from the jurisdiction where the child was taken from. They are usually made to bolster an application under the Convention. The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful. See: Thomson, supra.