Court File and Parties
CITATION: Adam v. Kasmani, 2021 ONSC 2176
DIVISIONAL COURT FILE NO.: 670/20
DATE: 20210324
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Baltman and Kristjanson JJ.
BETWEEN:
Mohamed Adam
T. Haque, for the Applicant (Appellant)
Applicant (Appellant)
- and -
Rubina Kasmani
S. Di Federico, for the Respondent (Respondent in Appeal)
Respondent (Respondent in Appeal)
HEARD at Toronto (by videoconference): March 11, 2021
Reasons for Decision
Baltman J.
[1] This appeal concerns the application of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) to a child who was born in Canada and has remained here ever since, with the Respondent Mother. The Applicant Father, who resides in Massachusetts, U.S., brought an application that the child (“AB”) should be “returned” to Massachusetts, where the parents were living until shortly before AB’s birth.
[2] In a decision dated March 6, 2020, Justice G.A. MacPherson determined that the child is habitually resident in Ontario, that the Ontario courts have jurisdiction to determine custody and access, and that the child should not be returned to the United States.
[3] The Father appeals on the basis that the Motion Judge a) erred by applying the wrong legal test to the habitual residence analysis, b) made findings of fact without any evidentiary foundation and ignored the Father’s evidence, and c) improperly accepted jurisdiction under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[4] For the following reasons I would dismiss the appeal.
Background Facts
[5] Both parties were born in Kenya. The Father has lived in the United States since 2001 as a green card holder. The Mother immigrated to Canada with her family when she was 9 years old, and is a Canadian citizen. She had been working as a teacher in Ontario for 10 years before the parties married.
[6] The parties were married on January 6, 2017 in New York and lived in Massachusetts for the duration of the marriage.
[7] The parties separated on July 29, 2019, when the Mother returned to Ontario. She was about nine months pregnant at the time. AB was born in Toronto on August 25, 2019 with significant health issues. He has a medical team that continues to treat him in Toronto. The child is a Canadian citizen and has never been to the United States. He currently resides with the Mother and maternal grandparents in the Toronto area. The Father has visited the child once, in November 2019.
[8] In November 2019, the Father began an application in Massachusetts to deal with parenting issues. In January 2020, he began an application in Ontario under the Hague Convention for the child’s “return” to the United States.
Legislative Framework
[9] Under Article 3 of the Hague Convention, the removal or retention of a child is wrongful if it contravenes a person’s custody rights under the law of the State where the child was habitually resident immediately before the removal or retention. Article 3 states:
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.
[10] Article 4 applies the Convention to any child who was habitually resident in a Contracting State immediately before the removal or retention. Both Canada and the United States are Contracting States. Under Article 12, if a child is being wrongfully retained, then the authority in the State where the child is being retained must return the child, unless either one year has passed since the date of wrongful removal, or certain other exceptions under Article 13 are met.
[11] In addition, under s. 22(1) of the CLRA, a court may only exercise jurisdiction over a child if the child is habitually resident in Ontario or, where the child is not habitually resident in Ontario, other factors under s. 22(1)(b) are met which establish that Ontario is the appropriate jurisdiction. Finally, a court having jurisdiction under the CLRA may decline to exercise its jurisdiction pursuant to s. 25 if it would be more appropriate for jurisdiction to be exercised outside Ontario.
Standard of Review
[12] The standard of review for a judicial appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, at paras. 8 and 10. On matters of law, the standard of review is correctness. On findings of fact, the standard is palpable and overriding error.
[13] The parties agree that the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 established that findings of habitual residence in Hague Convention cases are reviewable on the palpable and overriding error standard: para. 38. In Ludwig v. Ludwig, 2019 ONCA 680, our Court of Appeal noted that based on Balev, the determination of habitual residence is a question of fact or mixed fact and law, and an application judge’s determination of habitual residence is subject to deference: para. 33.
Issues and Analysis
Issue #1: Did the Motion Judge err in the habitual residence analysis by failing to apply the correct legal test and consider all relevant factors?
[14] The Father submits that the Motion Judge did not properly apply the hybrid approach in the habitual residence analysis from Balev. Under the hybrid approach, the court considers both the parents’ intentions and the focus of the child’s life: Balev, paras. 42-47. The Father complains that the Motion Judge failed to give any weight to the parties’ agreement and shared intention that they would raise AB in the United States and ignored the Mother’s contraventions of that agreement. He further maintains that it was an error to give effect to factors linking the child to Ontario which were established after the wrongful “retention,” i.e. after the child’s birth. As habitual residence cannot be changed by wrongful retention, the Motion Judge should not have considered the connections that arose after the child was wrongfully retained in Ontario.
[15] I disagree. The Father is effectively relying solely on a parental intention analysis to determine habitual residence, which he bolsters using cases released prior to Balev. While Balev indicates that parental intention “may” be particularly important in the case of infants, it emphasizes that every case is “unique,” and the motion judge must look to the “entirety of the child’s situation”: paras. 45, 47, and 70. In particular, Balev requires the court to determine the focal point of the child’s life: para. 43. The Motion Judge did this and correctly determined that neither the focal point of the child’s life, nor his habitual residence, could be in a country he has never been to.
[16] Nor did the Motion Judge disregard the parents’ intention vis-à-vis AB. As he observed at para. 38 of his decision:
In terms of settled intention, while Mr. Adam intended for the child to be born and raised in the United States, Ms. Kasmani, following the parties’ separation, moved to Canada a month before the birth of [AB] and has remained here since. She has, since July 2019 demonstrated a settled intention that is different from that of Mr. Adam. [emphasis added]
[17] In other words, even if, as the Father asserts, for some period of time both parents intended to raise their child together in the U.S., that clearly changed as the marriage deteriorated. While the Father professes shock at this development, the evidence suggests both parties saw it coming. I refer in particular to the note the Mother left with the Father on July 29, 2019, when she departed. The Father relied on this note as evidence that, at the point where the Mother left, she had not expressed any intention to live in Ontario on a permanent basis, but merely seemed to want a “break from the marriage.”
[18] However, the note suggests the marriage was badly broken. Although the Mother indicates in the note that she is “willing to put in the work into this marriage” and that things can change “if we both put in the effort,” the note makes it clear the marriage had been deteriorating badly over many months. The Mother states “you’ve changed drastically … the last 7 months have been draining … our marriage has been on the rocks … it’s been 7 months of isolation, neglect, minimal communication, stress, stonewalling and emotional abuse … I’ve had enough of this toxic environment”. The Mother further says that the Father has admitted to recording her on his phone without her knowledge or consent, on “numerous occasions.”
[19] The letter also suggests the Father was aware how unhappy she was: “I’ve repeatedly tried to speak to you about the urgency of discussing our marital issues”. She adds that despite her pleading that they seek counselling, he has refused to discuss their problems.
[20] Far from supporting the Father’s position, this note makes it clear that both parties were aware the marriage was in serious peril long before the Mother’s departure.
[21] Finally, the Motion Judge correctly determined there was neither a removal nor a retention in this case. As he stated, given that it is not possible to abduct a fetus, there could not have been a wrongful “removal” under Article 3 of the Hague Convention: Re F (Abduction: Unborn child) [2006] EWHC 2199. As for the Father’s alternative argument that AB was wrongfully retained at the moment of (or immediately after) his birth, there can be no “retention” here under Article 3 unless immediately before such retention, AB was “habitually resident” in the U.S. As AB has never physically been in the United States, much less been habitually resident there, he cannot have been residing there “immediately before” the retention in order to trigger any custodial rights by the Father within the U.S.
[22] Consequently, the Motion Judge correctly held there was no breach of custody rights attributed to a person in the U.S. As he stated at para. 34: “It is noteworthy that at the time of his birth, [AB] was a Canadian citizen, in a Canadian hospital with his mother and medical providers. The focal point of [AB’s] life at birth and since is Canada.” The Motion Judge properly determined that the focal point of AB’s life, and therefore his habitual residence, could not be the United States, a country he has never been to. This decision aligns with the purpose of the Hague Convention, which is to determine the jurisdiction most appropriate for the resolution of custody and access issues.
[23] In sum, the Motion Judge did not make an overriding or palpable error in his finding that AB is habitually resident in Canada and not habitually resident in the United States.
Issue #2: Did the Motion Judge make findings of fact without any evidentiary foundation and ignore the Father’s evidence?
[24] The Father asserts that the Motion Judge made a palpable and overriding error by accepting the Mother’s evidence without any reasons, even though he identified numerous inconsistencies in her evidence at the hearing. He complains, in particular, that the Motion Judge wrongly concluded that 1) the Mother had abandoned her green card application in the U.S.; 2) the Father is a stranger to the child, despite the fact that he is the child’s biological father; and 3) returning the child to the United States would cause him harm, even though the Father brought evidence of the medical supports available in the United States.
[25] I note at the outset that the Father chose to have this matter determined by way of a motion based on affidavit evidence, rather than a trial where he could have tested the evidence in cross-examination or oral testimony.
[26] That said, the Motion Judge’s reasons make it clear he considered the relevant evidence and that his findings are amply supported. For example, with respect to the Mother’s green card application, her affidavit evidence – on which she was not cross-examined – indicated that she had abandoned that application. Moreover, it is undisputed that
a) AB was born in Ontario
b) He is a Canadian citizen and has spent his entire life in Canada
c) He has never been to Massachusetts
d) He had several seizures when he was born
e) He remained in the Neo-Natal Intensive Care Unit for one week after birth
f) He receives treatment from his medical team of doctors in Ontario
g) the Mother is AB’s primary caregiver
h) the Father has met AB once
i) AB and the Mother reside with the maternal grandparents and they have a large extended family in Ontario.
[27] From those facts, it is apparent that while the Father is AB’s biological parent, he is effectively a stranger. Those two things are not mutually exclusive.
[28] Those facts also support the Motion Judge’s determination that it is in AB’s best interests to remain in Ontario, where both his maternal family and his medical team are situated.
[29] I conclude that the Motion Judge’s findings of fact were amply supported by the evidence before him, and that he did not ignore any pertinent evidence.
Issue #3: Did the Motion Judge err in determining jurisdiction under the CLRA?
[30] The Motion Judge determined that if he was wrong in concluding that AB’s habitual residence is in Ontario, then the Ontario Superior Court of Justice should assume jurisdiction under s. 22(1)(b) of the CLRA.
[31] The Father argues that the Motion Judge
• did not give adequate weight to the pending custody application in the U.S.
• failed to consider the potential care options for the child in Massachusetts
• placed too much emphasis on evidence of the child’s best interest in Ontario and did not consider evidence of his best interest in the U.S., and
• failed to conduct a balance of convenience analysis.
[32] I disagree. The Motion Judge referred to the numerous compelling factors that link AB to Ontario (described above) and the paucity of his connection to Massachusetts. That evidence clearly supports his determination that Ontario is the appropriate forum to determine custody and access issues for AB. The Motion Judge was aware of the property and divorce proceedings in Massachusetts, but found that the parenting issues should be resolved in Ontario. He sensibly concluded that the child could not have a closer connection to another jurisdiction since he has lived in Ontario his whole life and has never been to another jurisdiction.
Conclusion
[33] The appeal is dismissed.
[34] The Father submitted that if his appeal was unsuccessful, this Court should order interim access to the child. It is not appropriate for this Court, hearing an appeal, to make an initial order of access.
[35] The Appellant shall pay costs of $15,000, inclusive of HST and disbursements.
Baltman J.
I agree ___________________________
Swinton J.
I agree ___________________________
Kristjanson J.
Released: March 24, 2021
CITATION: Adam v. Kasmani, 2021 ONSC 2176
DIVISIONAL COURT FILE NO.: 670/20
DATE: 20210324
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Baltman and Kristjanson JJ.
BETWEEN:
Mohamed Adam
Applicant (Appellant)
- and -
Rubina Kasmani
Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
Baltman J.
Released: March 24, 2021