ONTARIO COURT OF JUSTICE

DATE: February 26, 2024 COURT FILE No.: Toronto DFO 24-44752

BETWEEN:

J.C. Applicant father

— AND —

S.K. Respondent mother

Before Justice M. B. Pawagi Heard on February 20 and 21, 2024 Reasons for Judgment released on February 26, 2024

J.C................................................................ applicant father on his own behalf Sophie Dhami............................................... agent for the respondent mother

PAWAGI, M. B. J.:

1: Overview

[1] On February 20 and 21, 2024, I heard the father’s application seeking the return of the parties’ child to Portugal pursuant to the Hague Convention. [1]

[2] The child was born on […], 2020 in Portugal, and lived solely in Portugal until she was removed by her mother to Canada on June 7, 2022. She was 1½ years old at the time of her removal. She is now 3 years old.

[3] The father’s position is that the removal was wrongful as it was a breach of his rights of custody under the law of Portugal where the child was habitually resident; namely, his right to prevent international travel, and that consequently the court must order the return of the child to Portugal.

[4] The mother’s position is that the removal was not wrongful as the father did not have rights of custody; the father consented to her permanently relocating with the child to Canada; and the child’s habitual residence was Canada. If the court finds the removal was wrongful, the mother also relies on the following three exceptions to mandatory return: The child has settled in her new environment; the father acquiesced to the removal; and there is a grave risk that returning the child to Portugal would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[5] For the reasons set out below, I find the following:

(a) While the child was habitually resident in Portugal at the time of her removal, the father did not have rights of custody that rendered the removal wrongful and thus the father’s Hague Application should be dismissed.

(b) Even if the removal had been wrongful, the father’s Hague Application should still be dismissed as two of the exceptions to mandatory return apply:

(i) The father acquiesced to the removal when his first Hague application was dismissed as abandoned and he waited 7 months to commence the within Hague application; and

(i) There is a grave risk that returning the child to Portugal would place the child in an intolerable situation as a result of family violence in the form of a pattern of coercive and controlling behaviour by the father against the mother.

2: Facts

[6] The following is a summary of the undisputed facts.

[7] The parties met online in 2017. The father was 42 years old at the time and living in New York City. The mother was 24 years old and living in Guelph. They first met in person on June 28, 2018 in New York City where they signed a handwritten document prepared by the father accepting each other as “husband” and “wife” including a “dowry” of a trip to Mecca. They were never legally married.

[8] The father relocated to Portugal, where his family resides, around March 13, 2020. The mother, who had recently found out she was pregnant, went to visit the father in Portugal on March 15, 2020. Her return flight was for March 22 but it was cancelled due to the onset of the pandemic. She was not able to return to Canada until July 3, 2020.

[9] The mother returned to Portugal in September 2020. The child was born on […], 2020. The mother remained in Portugal with the child until June 7, 2022, at which time she left using the notarized travel consent the father had provided her permitting her to travel between Portugal and Canada with the child between February 18 to August 18, 2022.

[10] The mother’s version of events is that the parties had separated prior to the child’s birth, and that he had consented to the permanent relocation of the child to Canada. The father’s version is that they had lived together until the removal, and that while he had given permission for travel between February 18 and August 18, 2022, he had verbally revoked this permission prior to the removal.

[11] On June 12, 2022, shortly after the father learned of the removal, the father emailed the mother advising her that he would be contacting the authorities. She did not respond. On June 13, 2022, the father emailed several different government departments in Canada to report the removal. On September 12, 2022, he filed a Hague application with the Portuguese Central Authority.

[12] On February 24, 2023, the father commenced a Hague application in the Ontario Court of Justice in Brampton. It was adjourned repeatedly for him to effect service on the mother. On May 30, 2023, when he did not attend court, Justice M. Cheung dismissed his application as “abandoned.”

[13] On January 16, 2024, he commenced the within Hague application in Toronto. The mother was served on January 17, 2024.

[14] At the January 23, 2024 court appearance, the parties agreed that the father would have twice weekly zoom calls with the child with the mother providing the zoom link and date/time by email. The father stopped attending the zoom calls after the first three calls.

3: Credibility assessments

[15] The father testified on his own behalf. He called no other witnesses. The mother testified on her own behalf and called two other witnesses: her sister and her brother. All of the witnesses filed affidavits and were cross-examined on them.

[16] I find the father and the mother were not credible witnesses. They were both selectively self serving in the partial evidence they provided in their affidavits. For example, they each provided only the endorsement(s) from the Brampton proceeding that supported their version of events and neglected to include the ones that did not:

(a) The father only provided endorsements from the Brampton proceeding up to March 21, 2023. In the March 21st endorsement, Justice M. Cheung summarized the father’s claim that the mother wrongfully removed or retained the child and stressed the urgency of the matter. Justice Cheung strongly encouraged the mother to seek and retain legal counsel in this matter. Attached is an email from the court showing this endorsement was emailed to the mother.

(b) The father did not provide the final endorsement dated May 30, 2023, which is the only one the mother provided. The father did not attend the May 30th appearance by telephone as had been arranged. Justice M. Cheung found he abandoned his claim and dismissed his application “for want of service and lack of prosecution.”

(c) The father purposely left out that he was found to have abandoned the Brampton proceeding. The mother purposely left out that she had been provided notice of the Brampton proceeding from the court. While the mother testified that she did not check that email address (stars.foreve@gmail.com) until months afterwards, that is not consistent with the fact that she attaches to her affidavit multiple emails to that same address that she is relying on to dispute the father’s version of events: Exhibit J (receipt from Vodafone dated February 12, 2022); Exhibit R (message from a Portuguese government office dated January 25, 2021); Exhibit T (emails from the father on February 24, 2022).

[17] Each party also only provided that portion of the father’s June 12, 2022 email that supported their version of events. This is the one email the father sent to the mother after he learned of the removal:

(a) The father only attached the heading of the email which is all in bold and shows he is serious about seeking the return of the child: If need be I will be reaching out authorities.

(b) The mother only attached the body of the email which is a rambling message consistent with her concerns about the father’s attempts to control her:

…. it’s not about the child. With you evil women it’s never about the child who was in the safest place i have come to know and it’s safe to say you are even more unintelligent and clueless than I thought. Putting the child within the confines of a tyrannical government at the head of Disbelief surrounding by people who also pose harm to her health. So they have rights but the father does not? Granted family plays a role but same way they had the freedom to choose to take that poison. Same way this child has a right to be free from any exposure to such potential threats who you talked a good game about like you’re the new best expert and then just totally disregard it. This is epitome of foolishness and like the other evil doer You are very inclined to try to expose the man who provided you with free room and board food, lights, water while you hold no title. You pay no bills and possess no job. I’m the one who payed for clothes, taxes on the house, electrical gas and water bill after my mother lost her mind and all her money along with it. she doesn’t eat if I don’t use the money from my house sale cuz the money just ain’t enough right now but what do you care when you create your reality but Like I said I want to about the whereabouts when she will return or I will reach out to the authorities and the curse of Allah and of the angles and of mankind be upon you now and forever and rightfully so for this criminal act.

[18] They were also both inconsistent as between their affidavit evidence and their testimony at trial. The following are a few examples:

(a) The father deposed that the entire time the mother was in Portugal, the parties resided together at his home at 49 Ruq dos Abracos. At trial, when faced with the mother’s evidence to the contrary, he acknowledged that they also stayed at an Airbnb, at his home on Avenida Fernao Magalhaes, and at his summer home in Cinfaes.

(b) The mother deposed that after the birth of the child, the father left her “homeless” and she had to live in an Airbnb with the child. At trial, she acknowledged that the parties lived together in the Airbnb.

(c) The father testified that he is Catholic. But when questioned about he emails to the mother where he frequently refers to his strong Islamic beliefs, he stated he actually holds all beliefs and does not prefer one god over another.

(d) The father deposed that the parties are not married. But at trial, he stated that the mother’s family abandoned her because they did not approve of their “marriage.” When questioned about a “contract” he and the mother signed wherein he wrote “I take S.K. as my wife,” he amended that this was a “promise” to marry.

[19] As a result of my credibility assessments of the parties, where their evidence conflicts, I find I have no basis to accept one version or the other, unless there is other supporting evidence.

[20] I find the mother’s sister and brother were credible witnesses for the following reasons: They were balanced, forthright and detailed; they clearly distinguished between what the mother told them and their direct observations; and they were consistent as between their affidavits and cross examination. I accept their evidence in full.

4: Analysis and the Law

4.1: The Hague Convention

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

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

[23] The test for when the Convention applies is set out in Article 3, which provides as follows:

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.

[24] If the requirements in Article 3 are met, Article 12 mandates the return of the child to their habitual residence provided the Hague proceeding was commenced within a year of the wrongful removal or retention. If the proceeding is commenced after a year, the court is not required to return the child if the court finds the child is now settled in its new environment:

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of 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.

[25] The mother disputes that the requirements in Article 3 have been met. In the event they are found to have been met, she asks that the court find that the child has settled into her new environment pursuant to the exception in Article 12.

[26] The mother also relies on two of the Article 13 exceptions to mandatory return; namely acquiescence and grave risk of harm:

Article 13

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

(a) the person, institution or other body having care of the person of the chid 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.

4.2: Issues

[27] The court must answer the following questions:

(a) What is the child’s habitual residence?

(b) Did the father have rights of custody?

(c) Can the court consider evidence of settling in?

(d) Did the father acquiesce to the child remaining in Canada?

(e) Would returning the child to Portugal put her at grave risk?

a. What is the child’s habitual residence?

[28] There is no definition of “habitual residence” in the Hague Convention. It is a question of fact to be determined by the court.

[29] The test for habitual residence is set out by the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev [2]. The Court considered what at that time was the dominant “parental intention approach” and also considered the “child centred approach”, supported by the Office of the Children’s Lawyer, whereby habitual residence is determined by the child’s acclimatization in a given country rendering intentions of parents largely irrelevant, and focusing on the child’s connections with the state.

[30] The Court concluded that habitual residence should be determined using a “hybrid approach,” where instead of focusing primarily or exclusively on either parental intention or the child’s acclimatization, the judge must look to all relevant considerations arising from the facts of the case.

[31] The Court is clear, as set out in paragraphs 43 and 67 of the decision, that while 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.

[32] The starting point, therefore, in determining habitual residence is determining the date of the alleged wrongful removal or retention.

[33] The father’s position is that the date of the alleged wrongful removal is June 7, 2022. His position is based on the following evidence:

(a) He signed a travel consent permitting the mother to travel between Portugal and Canada with the child only between February 18 and August 18, 2022;

(b) He verbally withdrew this consent in May 2022 after an argument the parties had where the mother told him she wanted to leave Portugal and live in Canada with the child. He asked the mother to return the travel consent to him. She told him she had destroyed it;

(c) The mother left Portugal with the child on June 7, 2022, using said travel consent; and

(d) On June 12, 2022, the father emailed the mother stating he would be contacting the authorities and on June 13, 2022, he emailed various government departments in Canada reporting the removal as an abduction. He filed a Hague Application with the Portuguese Central Authority on September 1, 2022.

[34] The mother’s position is that the father verbally consented to her permanently relocating with the child to Canada and deposes that he came to the summer home in Cinfaes, where she and the child were residing, to kiss the child goodbye prior to their departure. She provides no evidence that supports this position.

[35] In fact, her own evidence supports the contrary. She attaches to her affidavit an email she received from the father on June 12, 2022, five days after she left Portugal in which the father writes, among other things, “… I came to visit to leave supplies yesterday but it appears she has been abducted which indicates taken by deception.”

[36] The travel consent which specifies permission to travel only between February 18 and August 18, 2022, and the father’s actions immediately following the removal also contradict her position. While the travel consent does extend to August 18, 2022, I find that the father’s actions immediately following the removal on June 7, 2022 support his position that he had withdrawn his consent.

[37] The question thus, is what were the parents’ joint intention and the child’s circumstances immediately prior to June 7, 2022.

[38] There is no evidence of any joint intention. As set out above, the mother provides no evidence that the parties jointly agreed that the child be raised in Canada. The mother relies on evidence that her prenatal care was in Canada and her assertion that she intended the child to be born in Canada, but this is not evidence of any joint intention. There is also no evidence that the parties jointly agreed that the child be raised in Portugal. They took no steps to regularize the mother’s status in Portugal. She arrived as a visitor only. And the father expressed his desire to take the child to Iran.

[39] The child’s circumstances immediately prior to June 7, 2022, however, are undisputed. The child was born in Portugal on […], 2020 and remained in Portugal from her birth until she was removed on June 7, 2022. She was 1 ½ years old at the time of her removal. All of her medical appointments had been in Portugal. There was no evidence of any other connections, but given her young age, this is not surprising.

[40] After applying the hybrid approach set out by the Supreme Court of Canada, I find the child’s habitual residence is Portugal.

b. Did the father have rights of custody?

[41] Pursuant to Article 3, a removal is only wrongful if it is in breach of rights of custody under the law of the State where the child was habitually resident at the time of the removal, which in this case has been determined to be Portugal.

[42] “Rights of custody” have been interpreted broadly by the courts. The Supreme Court of Canada in Thomson v. Thomson [3], held that rights of custody include “ne exeat” clauses; that is, a parent’s right to prevent international travel (unless they are just to enforce access).

[43] The father bears the burden of proving that he had rights of custody under the law of Portugal. The father asserts that the law of Portugal is clear that a minor cannot be removed from Portugal without a signed consent to said removal signed by the other parent. However, the information on the law provided by the father himself, along with the information provided by Ms. Dhami, agent for the mother, does not support the father’s assertion.

[44] The father provided a two-page printout from the website of the Embassy of Portugal in Singapore, Ministry of Foreign Affairs, entitled “Travel Information for Unaccompanied Minors” (emphasis added). Only two paragraphs are relevant to the within case as the child here travelled while accompanied by her mother. They are reproduced in full as follows and do not support the father’s assertion:

Minor, whose parents are married (to one another) or within cohabitation – The travel permit must be granted and signed by one of the parents only if the child is travelling without either of them; in cases where the child is travelling in the company of one parent, no permit is required, provided there is no opposition by the other parent;

Minor, child of unmarried parents, divorced, legally separated or whose marriage has been declared void or annulled – The travel permit must be granted and signed by the parent holding custody and / or with whom the minor resides. In cases of joint parental responsibility, the minor may leave the country with either of them, provided there is no opposition by the other parent;

[45] While the second paragraph does not specifically state that it applies to parents who are not living together, this can be inferred as the above paragraph refers to those who are living together.

[46] The father’s source raises more questions than it answers: Why the Embassy in Singapore? How does a parent demonstrate there is no opposition? Is the within case one of joint parental responsibility?

[47] On the first day of trial, I asked for additional information regarding the father’s rights of custody in Portugal. The father did not provide anything further other than to assert in his closing submissions that he is relying on his “god given right as the biological father.”

[48] Agent for the mother Ms. Dhami helpfully provided a report on Parental Responsibilities in Portugal [4] which sets out who has parental responsibilities when parentage has been established but the parties are not married, pursuant to Article 1911 of the Portuguese Civil Code, as follows:

If the parties do not live together, the exercise of parental responsibility falls to the parent who has custody of the child. The law presumes that the mother has custody of the child, although this presumption may be legally overturned;

If the parties live together, and have declared before the official of the Registry Office that they wish to jointly exercise parental responsibility over their child, then parental responsibility belongs to both.

[49] In this case, the parties were never married. I also find they were not living together after the birth of the child. I accept the mother’s evidence on this point as it is consistent with various written communications she attaches to her affidavit which confirm that she lived in the father’s summer home in the village of Cinfaes with the child while the father lived in Porto:

(a) On March 26, 2022, the father sent the mother an email starting with, “Maybe it’s best you come to porto until the month of Ramadan begins in a week…” and ending with describing how she can catch a bus to do so.

(b) On April 13, 2022, the parties’ acquaintance “Bro Ali” wrote to the father, “You also abandoned your daughter F. You dumped her and her mother in the rundown house we literally call the cave… in a small village…”

(c) On May 25, 2022, the father sent the mother an email which ends, “…Tomorrow God willing I will travel to Cinfaes and leave a month’s worth of food for my daughter because you are too inept and emotionally dysfunctional to do the right thing.”

[50] Given that the parties were not married and not living together, and the child was in the mother’s sole care, it appears that “parental responsibility” falls solely to the mother. While this can be “legally overturned” and the father could obtain “joint legal responsibility” such that he could object to international travel, this was not done in this case.

[51] To counter the above, is the fact that the mother believed she needed a notarized travel consent from the father and that she was asked to show the consent to border agents at the airport before departure; however, I cannot make conclusions about the law of Portugal based on a parent’s belief and the actions of a border agent.

[52] Given that the father had the onus to demonstrate he had rights of custody, I find he has not discharged that onus and therefore in accordance with Article 3 of the Convention, the mother’s removal of the child from Portugal on June 7, 2022 was not wrongful.

[53] However, even if I am wrong on this point, my order would not change as I found the mother has satisfied two of the exceptions to mandatory return; namely, that the father acquiesced to the child remaining in Canada and that the child would be at grave risk of harm if returned to Portugal.

c. Can the court consider evidence of settling in?

[54] The “settling in” exception to mandatory return turns on whether the proceeding is commenced within a year of the wrongful removal or beyond. Article 12 refers specifically to the commencement of the proceeding before the judicial authority in the state the child is in, which in this case is Ontario.

[55] The father commenced a proceeding in the Ontario Court of Justice in Brampton on February 24, 2023, within one year of the child’s removal on June 7, 2022. However, that proceeding was disposed of on May 30, 2023. Justice M. Cheung found that the father had abandoned his claim and dismissed his application “for want of service and lack of prosecution.” This dismissal was a final one, and not made without prejudice.

[56] The father commenced the within proceeding in the Ontario Court of Justice in Toronto on January 16, 2024, more than 1 ½ years after the removal on June 7, 2022.

[57] Given that more than one year has elapsed, this court is not required to order the return of the child if it is demonstrated that the child is now settled in her new environment.

[58] The mother’s evidence on this issue was sparse. She testified that she lives alone with the child in a basement apartment in Scarborough. She is the child’s primary caregiver and she is in receipt of Ontario Works. She did not provide any details about the apartment or about the child’s daily routine other than to testify that she takes the child regularly to the YMCA and to the library. The child is 3 years old. She does not attend school or daycare. The mother did not provide any details regarding the child’s particular relationships with other people, other than to say the child sees extended family and friends.

[59] The mother’s brother’s evidence was that the child he observed to be in smelly dirty clothes and extremely agitated and constantly crying when he was in Portugal in February 22, is now thriving in a safe and loving home with clean clothes, ample food, educational resources and family support. He attached to his affidavit several photos of the child smiling brightly in different scenarios: dressed up; riding a bicycle with training wheels; and hanging on to the side of a swimming pool.

[60] The mother’s sister’s evidence was also that the child is no longer the distressed child she met in Porto in May 2022, but is now wearing clean clothes, has an abundance of food, and is flourishing physically and emotionally.

[61] Courts have generally held that with such young children “settled” usually means in the care of their primary caregiver regardless of location, so it is more difficult to prove a child is settled in a particular location. [5]

[62] I find the mother has not demonstrated that the child is settled in her new environment.

d. Did the father acquiesce to the child remaining in Canada?

[63] The Court of Appeal for Ontario in Katsigiannis v. Kottick-Katsigiannis [6] held that to establish that the father acquiesced to the child remaining in Canada, the mother would have to show “some conduct of the father which is inconsistent with the summary return of the children to their habitual residence” and that it must be “clear and cogent evidence of unequivocal consent or acquiescence.”

[64] The Court distinguished between consent and acquiescence, defining “to acquiesce” as “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.” [7]

[65] The father deposed that he did not acquiesce, that he made multiple efforts to serve the mother without success. However, he does not explain why he failed to bring any motions regarding service in the Brampton proceeding, such as for substituted service, or why the skip trace search which was successful in the end in locating the mother had not been tried months earlier.

[66] He deposed that “The matter in Brampton was eventually discontinued after numerous court attendances as a result of an inability to physically locate the mother for service purposes.” As noted earlier, this is a misrepresentation. In the final court date at the Brampton court on May 30, 2023, the father failed to appear. Justice M. Cheung found the father had abandoned his claim and dismissed his application “for want of service and lack of prosecution.”

[67] The endorsement sets out all of the accommodations the court had provided to the father. The following is an excerpt:

…Arrangements were made for the father to have access to the teleconferencing line and the call-in details were contained in the endorsement from April 18, 2023, which was given to Mr. Jaffer [agent for the father] and emailed directly to the [father].

Today, there is no further filings in the court file, no confirmation, no proof of service, no requests for service motions. The call-in line was open this afternoon until 3:30 pm and the father did not join it. There is no indication why this is so.

The application has been outstanding for over three months without the issue of service on the mother being addressed satisfactorily. Given that the claims are under the provisions of the Hague Convention, the court on the first occasion made a temporary order and has accommodated the repeated requests for this matter to be scheduled, with short return dates and in a hybrid format, so that the mother (if served) could participate in person and the father could participate remotely from Portugal. This is the 7th appearance in this application, with little progress.

The inference I draw from the father’s non-participation is that the father has abandoned his claim.

Application dated February 24, 2023 is dismissed for lack of service and want of prosecution. All temporary orders are vacated.

[68] I find that a determination by the Ontario Court of Justice Brampton that the father “abandoned” his claim is clearly inconsistent with the summary return of the child to Portugal, and in combination with the fact that the father did not commence the within proceeding until more than seven months after he abandoned the Brampton proceeding, qualifies as clear and cogent evidence of unequivocal acquiescence.

e. Would returning the child put her at grave risk?

[69] The Supreme Court of Canada in Thomson v. Thomson [8] set out the test to be met under grave risk of harm:

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

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

[70] The Court of Appeal for Ontario in Jabbaz v. Mouamman [9] further elaborated and defined the phrase “intolerable situation” as “an extreme situation that is unbearable; a situation too severe to be endured.”

[71] Many Hague cases about grave risk are about family violence. And the violence does not have to be directed at the child. The risk of physical assaults on, or psychological abuse of, the mother is capable of establishing the risk of psychological harm to a child. [10]

[72] Family violence includes a pattern of coercive and controlling behaviour. As the Court of Appeal for Ontario pointed out in Zafar v. Azeem [11], new sections were added in 2021 to both the Divorce Act [12] and the Children’s Law Reform Act [13] to define family violence, and to include in that definition conduct that constitutes a pattern of coercive and controlling behaviour. While Zafar v. Azeem was not a Hague case, the Court reiterated that even under the more stringent standard of the Hague Convention, risk of harm to a caregiver constitutes risk of harm to a child.

[73] The father denied all of the mother’s allegations of family violence. However, I accept her evidence as it was supported by written communication between the parties; photographs; and the evidence of her sister and brother. The following is a summary of the pattern of coercive and controlling behaviour exhibited by the father against the mother in the form of manipulation, financial control, physical control and threats not to contact the authorities.

Manipulation

[74] The father acknowledged at trial that he lied about his age in his dating profile. The mother believed his assertion that he was less than 10 years older than her when they met, when in reality he was almost 20 years older. He was 42 and she was 24 when they first met online. The following is an excerpt from his dating profile on a Muslim dating site:

If you took the COVID injection-vaccine please go away. I’m not interested. I don’t beat around the bush. I’m a serious man, a dominant man and I don’t apologize for either one. If you are crying for attention you won’t receive any from me. You need to come half way and you need to be committed to the religion no part timers. no pretenders.

[75] The first time they met in person, he had the mother sign a handwritten document, which he referred to as a marriage contract, and which stated as follows:

I [J.C. (Y.A.)] … take [S.K.] as my wife with the agreed upon dowry of a trip to Mecca for Hajj and children and infinite love and protection until death do us part … I [S.K.] accept the agreed terms and dowry and take [J.C. (Y.A.)] as my husband.

[76] He took advantage of her youth and gullibility and convinced her that the marriage was thereby legally established, when it was not. At trial, he characterized the document instead as a “promise to marry.”

[77] He sent the mother multiple emails trying to coerce her into relocating to Iran with him and the child. His March 1, 2022 email specifically refers to “Iran” while the others refer to making “Hijra” and leaving the land of “Kufr” which she explains as meaning going on a pilgrimage to the land of believers (Iran) and leaving the land of non-believers (Portugal/Canada).

[78] On February 24, 2022, the father sent the mother an email, the second half of which states as follows:

I need not to prove or convince anyone of anything. I’m the Father of the child And as the Father it’s my duty to make Hijra leaving the land of Kufr and bring this child to the land of believers. You (the mother) if you resist for whatever reason of your choosing well then prepare to answer before God why you rather bring her to what is becoming a tyrannical land. A land in fact of “the disbelievers” sinking in decency and modesty. A land drowning in corruption and moral and spiritual decay and let’s not forget a clear and present danger to her health on multiple levels. I didn’t just guide you by the Will of Allah swt out of disbelief and into the ahlul bayt alehi salme. I also guided you out of stupidity and ignorance in many non religious matters. Otherwise this child would have been pumped with 30 shots of poison on her way to 40 and you with at least 2 more. It ia Allah swt states

“those that know are not equal to those that don’t know”

[79] On February 26, 2022, the father sent the mother an email in which he wrote, among other things:

It is our duty to make hijrah and bring this child to the land of the believers only a fool would debate that. And the West at That time is referred to Europe. We know this because the hadiths specifically mention Canada and the land of America.” A few minutes later on the same date he sent another email stating, “And neither is America the West it is rather the Land of Amerik and only a fool would raise a child in this cursed place.

[80] A mutual acquaintance of the parents “Bro Ali” wrote to the mother on April 13, 2022, to advise her as follows with respect to the father:

Also you should know that he wanted your Canadian documents because the Iranian embassy said they wouldn’t accept his covid pass unless if it had a Canadian government stamp on it. He couldn’t get one because his was fake so the plan was to get one of your documents stamped and then recreate the stamp on his covid pass. Then before he was able to do that the Iranian embassy emailed him saying they rejected his visa.

Financial control

[81] When the mother arrived in Portugal on September 27, 2022 to visit the father, he refused to purchase a return ticket for her to Toronto contrary to her wish to give birth to their child in Canada where all of her family lived, and where all of her pre-natal appointments had taken place.

[82] About two weeks after the birth of the child, following the parties’ stay in an Airbnb, the father required that she and the child relocate to the village of Cinfaes where he had a summer home. It was about two hours away by bus from Porto where the father lived. The mother lived in Cinfaes alone with the child from November 2022 to June 2022, with occasional visits from the father and his mother. The father’s version of events is that the parties resided together in Porto this entire time. However, the written communication between the parties supports the mother’s version as set out at paragraph 49 above.

[83] The father left the mother and child in this home with no money, limited food and limited furniture. The mother provided photos of the barrenness of the home and the air mattress she slept on.

[84] On February 4, 2022, the mother called her brother to say that the father had come to the summer home and vacated the entire property including the furniture and she showed her brother photos of the empty rooms and the air mattress for her and the child to sleep on. She told him she was almost out of money for food and she would be forced to eat the potatoes the neighbours grew in the backyard.

[85] Her brother took a leave from work and flew to Portugal on February 9, 2022. They met in Porto. He observed that the mother was extremely skinny, her hair was dishevelled and she looked to him like a homeless woman carrying the child in a dirty baby carrier that appeared to be falling apart. She and the child were in dirty smelly clothes and the child appeared extremely agitated and constantly crying. She told him she does not have a working laundry machine in Cinfaes. He gave her 250 euros and purchased some basic necessities for her.

[86] On May 17, 2022, the father wrote to the mother “no more water every day now it’s every other day for 6 days and then it will be once a week in sha Allah.” The mother wrote back on the same day, “I just used up the 5 bucks to get fruits and tuna for [the child], I don’t hv anymore money to get diapers.”

[87] The mother’s sister met the mother in Porto on May 23, 2022. The mother was coming from Cinfaes. The mother’s sister observed that the mother was extremely skinny with thinning hair. The mother did not look like the person she knew. The mother appeared as if she were homeless. The mother and the child were dressed in dirty clothes with stains on them. The child was sitting in a broken stroller which was dirty and had a broken wheel. She gave the mother 200 euros to buy food for herself and the child. She was worried they were suffering from malnutrition.

[88] The father’s May 25, 2022 email to the mother confirms the mother’s evidence that she and the child were living apart from the father in Cinfaes and that she had to ask him repeatedly for food:

On Monday May 23rd you showed up in what has become customary embarrassing fashion barking up a storm, vulgarities in front of my child and making demands. The most prominent being the fact that you claimed my daughter is starving. Yet 2 days later fast forward and you are nowhere to be seen. Tomorrow God willing I will travel to Cinfaes and leave a months worth of food for my daughter because you are too inept and emotionally dysfunctional to do the right thing.

[89] The mother did not have legal status in Portugal. She could not obtain employment without a “NIF” card which would require the signature of the father and his family as witnesses and could not open a bank account without same.

Physical control

[90] In January 2022, the mother deposed that she confronted the father about forcing her to live in Cinfaes, and he grabbed her by her hair and dragged her down the hallway threw her out of the door of the home. He then smashed her phone, slammed the door shut on her hand and beat her outside by jumping on top of her and punching her in the mouth while threatening to tell the authorities that she was living in Portugal illegally. The child was present and observed the entire incident. The mother provided photos of her injuries: cuts to her lips and to her hand.

[91] The mother’s brother received a WhatsApp call from the mother on January 12, 2022. She was crying and saying the father had violently assaulted her and kicked her out of her home. He could see on the video call that she was in distress with visible injuries to her lip, swelling on her arms as well as scraped knuckles. She also appeared on the verge of homelessness and dressed in dirty ragged clothes. She told her brother that the father eventually let her back in the home.

[92] Around May 23, 2022, during the time the mother’s sister was visiting her in Porto, the mother went to the father and the paternal grandmother at 49 Ruq dos Abracos. She had no food for the child and asked to reside at the rental house for the duration of her sister’s visit. She also asked the father for 20 euros so that she could purchase supplies and groceries for herself and the child. The father refused her entry into the house and violently shoved her and pulled her hair. The father screamed profanities at her and the child including calling her a “bitch” and telling her to “get the fuck out of here”. He further told her to go back to Cinfaes or to go live with her sister. She met her sister the same day and her sister provided her with money for groceries.

[93] The mother’s sister’s evidence was that she received a call from the mother during her above argument with the father. The sister could hear the mother and the father screaming. The father was screaming profanities at the mother calling her a “bitch” and saying “get the fuck out of this house” while the child was crying in the background.

[94] Her sister returned to Canada on May 27, 2022, and together with the rest of the family sent the mother money for supplies and food and a flight back to Canada.

Threats not to contact the authorities

[95] Countries that are signatories to the Hague Convention presume that other signatories share basic values. Thus, where family violence is alleged, courts must consider that the “Court and the authorities in the state of the child’s habitual residence will be able to take measures to protect the child, including protecting the mother from domestic violence.” [14]

[96] The issue here though is not whether help was available in Portugal, but whether the mother was able to avail herself of that help, which I find she was not as a result of her vulnerable immigration status and the father’s controlling behaviour.

[97] The mother had no friends, family or support in Portugal. She did not speak Portuguese. She was isolated with the child in a small village which was two hours by bus from Porto where the father lived. The father told her that if she were to contact the authorities, she and the child would “regret it”. As a result of these threats, she was too fearful and unable to contact the proper authorities to report the abuse.

[98] On January 12, 2022, when she told her brother via WhatsApp about the abuse, her brother told her he would contact the authorities himself but she stopped him because she was fearful she would be separated from the child. Her brother forwarded her information for the Portuguese Association of Victim Support and paid for her phone bill, but she was too afraid to call. When she had threatened the father that she would call the police, the father had threatened to tell the Portuguese authorities that she was in the country illegally and she believed she would be separated from the chid.

[99] On January 13, 2022, her brother called the Portuguese Association for Victim Support himself. They took down the mother’s information, but told him the mother had to call them directly, which as described above, she was too afraid to do.

[100] The mother’s sister also recommended to the mother that she call the Portuguese authorities immediately but the mother was too scared she would be separated from the child and that she would risk further abuse from the father if he became aware of the report.

[101] I find that the child would be at grave risk of psychological harm or would otherwise be placed in an intolerable situation if returned to Portugal as a result of the pattern of coercive and controlling behaviour exhibited by the father against the mother, which includes manipulating the mother; controlling her financially and not providing enough money to adequately clothe and feed her and the child; assaulting her in the presence of the child; and influencing the mother against contacting the authorities in Portugal as she had no legal status there.

5: Order

[102] For the above noted reasons, the father’s Hague Application, issued January 16, 2024, is dismissed.

Released: February 26, 2024

Signed: Justice M. Pawagi

Cited Cases and Legislation

Legislation:

• Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No 35, in Ontario, incorporated into s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 as am. (“the Hague Convention”)
• Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) at ss. 16(3) and (4)
• Children’s Law Reform Act, R.S.O. 1990, c. C. 12 as am. at ss. 24(3) and (4)
• Portuguese Civil Code, Article 1911

Case Law:

• Office of the Children’s Lawyer v. Balev, 2018 SCC 16
• Thomson v. Thomson, [1994] 3 SCR 551
• F. Pereira Coelho and G. De Oliveira, Curso de Direito da Familia, Vol. 1, 3rd Ed., Coimbra: Coimbra Editora, 2003, p. 173, at para. 20
• Wallace v. Williamson, 2020 ONSC 1376
• Mindermann v. Mandall, 2010 ONCJ 182
• Katsigiannis v. Kottick-Katsigiannis, [2001] O.J. No. 1598 (Ont. C.A.) at para. 49
• Jabbaz v. Mouamman, (2003), 38 R.F.L. (5th) 103 (Ont. C.A.)
• Pollastro v. Pollastro
• Cannock v. Fleguel, 2008 ONCA 758
• Zafar v. Azeem, 2024 ONCA 15
• Mbuyi v. Ngalula, 2018 MBQB 176 at para. 62
• Thomas v. Thomas, 2024 ONSC 615 at para. 108