ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: (Kingston Family Court) 351/12
DATE: July 12, 2012

BETWEEN:

JODIE LEIGH JUMA

LULAMA M. KOTZE, Counsel for the Applicant

Applicant

• and -

RAHIME JUMA

MARY-JO MAUR, Counsel for the Respondent

Respondent

HEARD: July 3, 2012
RELEASED: July 12, 2012

REASONS FOR DECISION

Trousdale, J.

Introduction

[ 1 ] This is a motion brought by the Respondent father (“father”) for an order for the return of the child of the marriage to the State of Florida in the United States of America pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction ( “ the Hague Convention ”). The parties agreed that the motions of the Applicant mother (“mother”) for a declaration that Ontario is the habitual residence of the child, or alternatively that the Ontario Courts should assume jurisdiction pursuant to the Children’s Law Reform Act , for temporary custody of the child, and for other relief, should not be dealt with until after the father’s Hague Convention motion has been determined, in accordance with Article 16 of the Hague Convention. The parties proceeded by way of affidavit evidence and oral submissions.

Background

[ 2 ] The parties began cohabiting in May, 1993. They were married on April 18, 1998. The parties have one child born of their marriage, namely, Hana Hussen Juma, (“the child”) born July 25, 2000. The parties made the decision to separate on either March 16, 2012, according to the mother, or on April 2, 2012, according to the father. They did not tell the child about the separation until May 5, 2012.

[ 3 ] Both parties are Canadian citizens. The parties lived in Kingston, Ontario from 1995 until December, 2011. The child was born in Kingston and resided all her life in Kingston until December, 2011. The child has attended school in Kingston until December 9, 2011.

[ 4 ] Through various companies, the parties own seven businesses in Kingston, Ontario and in Florida. They own a home, a cottage and a rental house in Kingston. The parties own a home in Holmes Beach, Florida near Bradenton, Florida, and sixteen vacation rental units in Florida.

[ 5 ] In December, 2011, the parents agreed that the child would be removed from her school in Kingston, Ontario and that she would be registered at a private school, St. Stephen’s Episcopal School in Bradenton, Florida to commence school there in January, 2012. The parties agreed that the mother would work at getting the couple’s business in Florida going as they have invested a substantial sum of money in Florida.

[ 6 ] On December 10 or 11, 2011, the mother and the child arrived by car in Florida. The father arrived in Florida a couple of days later. The family remained in Florida until January 16, 2012 when they all returned to Canada until January 22, 2012 at which time the mother and child drove back to Florida, where they resided until May 30, 2012. The child attended school in Florida throughout that time. The parties re-enrolled the child by March 31, 2012 to continue at the same school in Florida for the 2012/2013 school year commencing in August, 2012.

[ 7 ] The father resided at the matrimonial home in Florida with the mother and the child from on or about December 12 or 14, 2011 to January 16, 2012, and for an eight day period in February, 2012. The father was invited by one of their business clients to go on a business trip to China for approximately three weeks in April, 2012 and he took that trip.

[ 8 ] Either on March 16, 2012, according to the mother, or on April 2, 2012, according to the father, the parties decided to separate. They agreed at that time that the child would have her primary residence with the mother in Florida and would attend St. Stephen’s Episcopal School for a further year, as the parties were pleased with the child’s academic and social progress in that school in comparison with the academic and social difficulties the child had suffered in her Kingston, Ontario school. The child has been diagnosed with severe ADHD and takes prescribed medication. The father would reside primarily in Florida but would have to travel to manage the Ontario businesses. It was agreed the father would come to Florida to reside with the child as frequently as the businesses allowed him to do so. The parties further agreed that the child would reside with the father during all school vacations periods. In addition, the parties agreed that the child would reside with the father at the cottage near Kingston, Ontario during the summer of 2012 and that the mother would drive with the child to Florida on August 15, 2012 so that the child could recommence school at St. Stephen’s on August 20, 2012.

[ 9 ] The father returned from the trip to China on May 4, 2012. On May 5, 2012, the parties told the child about their separation and the plans that had been agreed upon.

[ 10 ] The parties continued to live together in their Florida matrimonial home for one further week so that the child would see that they were still able to get along with one another. The father then moved out into one of the vacation rental homes.

[ 11 ] After the parties physically separated, they had a number of discussions via email regarding the details of their separation. On May 22, 2012 they had a big argument in person. That same day, after the argument, the father fell and was admitted to hospital in Florida and had two stents put in his heart. The father has a number of health problems, including polymyositis (an inflammatory muscle disorder), diabetes, cardiac problems, and high blood pressure.

[ 12 ] The father moved into the former matrimonial home in Florida when he was released from hospital as that home has an elevator and a special bed for him. The mother moved into one of the Florida vacation rental homes owned by the parties.

[ 13 ] The parties continued to have email and text discussions regarding their separation. The father was displeased that the mother wished to obtain a lawyer to represent her.

[ 14 ] On May 26, 2012, the child went to stay with the father at the matrimonial home in Florida. The child’s last day of school was May 30, 2012. Both parties attended the closing ceremonies.

[ 15 ] Later that day, the father dropped the child off at an afternoon birthday party. The evidence of the parties is contradictory as to who was to pick up the child from the party, with the mother saying her time with the child was to start then for a few days, and the father saying that he was to pick up the child. The mother alleges that she interpreted the father’s comments and emails to her earlier that day to mean that he would not allow her to have access to the child until matters were settled between them.

[ 16 ] The mother picked up the child 30 minutes before the end of the party and removed the child from Florida. The mother left a number of the child’s belongings at the former matrimonial home in Florida, including the child’s ADHD medication.

[ 17 ] For several days, the mother did not contact the father nor allow the child to do so. The mother did contact the father’s mother on May 31, 2012 and the father’s sister on June 1, 2012 to advise that the child was with her and that they were fine. She would not say where she was. The mother says she did not contact the father as she was afraid of him. The mother and child entered Ontario, Canada on June 1, 2012.

[ 18 ] On June 4, 2012, the child talked to the father by telephone but she would not reveal where she and the mother were. The mother had her Kingston, Ontario lawyer send an email letter to the father on June 4, 2012 which the father denies he received.

[ 19 ] On June 4, 2012, the father obtained an ex parte Court Order in Manatee County, Florida for the return of the child to Florida.

[ 20 ] On June 7, 2012 the mother’s Ontario lawyer sent another copy of the email letter of June 4, 2012 to the father at a different email address, and his Kingston, Ontario lawyer contacted the mother’s Ontario lawyer that day.

[ 21 ] On June 8, 2012, the Court in Manatee County, Florida made an Order to Pick Up Minor Child. No notice of that hearing was given to the mother’s Kingston, Ontario lawyer.

[ 22 ] The father was permitted extensive electronic contact with the child on June 7, 8, and 9, 2012, although the child was not allowed to say where she was. On June 9, 2012, when the mother became aware of the June 4, 2012 Order from Florida, the mother again cut off contact between the child and the father, and despite previous arrangements, the mother did not allow the father to see the child as she was afraid he would return with the child to Florida with the ex parte Order.

[ 23 ] The mother has commenced a motion in Florida to set aside the ex parte Orders obtained by the father on the grounds that the Florida Court does not have jurisdiction over the subject matter of the custody and access of this child as the child was not resident in Florida for six continuous months as the mother alleges is required by the Uniform Child Custody Jurisdiction Enforcement Act in Florida, and on the basis that she was not given notice of the proceedings even though the father knew she had an Ontario lawyer.

[ 24 ] On June 14, 2012, the mother brought an urgent motion in the Ontario Superior Court of Justice in Kingston, Ontario returnable on June 20, 2012 for a declaration that the habitual residence of the child is in Kingston, Ontario and for other relief.

[ 25 ] On June 14, 2012 and returnable in the same Court on June 20, 2012, the father brought a motion pursuant to the Hague Convention for the return of the child to the care and custody of the father and for an order declaring Florida to be the proper jurisdiction for the resolution of custody and access issues concerning the child.

[ 26 ] On June 20, 2012, the parties appeared before a motions Justice and agreed to a temporary Order regarding arrangements for the child pending the hearing of this motion.

Issues

[ 27 ] 1. Does this Court have jurisdiction to hear this matter pursuant to the Hague Convention?

2. If so, was the child habitually resident in Florida when she was removed from Florida on May 30, 2012?

3. If so, was the removal of the child wrongful within the meaning of the Hague Convention ?

4. If so, has the mother established an exception to a mandatory return of the child pursuant to Article 13 of the Hague Convention , by reason of acquiescence of the father to the removal, non-exercise of custodial rights by the father at the time of the removal, or that there is a grave risk that the child’s return to Florida would expose the child to physical or psychological harm or otherwise place the child in an intolerable position?

5. Based on the determination of the aforesaid issues, should the father’s Hague Convention application be dismissed or should the child be returned to Florida?

Positions of the Parties

[ 28 ] The father, who is the Respondent in the proceedings, but the moving party in the Hague Convention motion, takes the position that he was exercising custody rights at the time that the child was wrongfully removed by the mother from Florida. He also contends that the child was habitually resident in Florida at the time the child was removed. The father argues that the mother has failed on the evidence to establish any defences to the return of the child to Florida. The father’s position is that the child should be returned to Florida, pursuant to the provisions of the Hague Convention, so that the issues of custody and access may be determined by the Court having jurisdiction in the place where the child had her habitual residence immediately prior to the removal.

[ 29 ] The mother alleges that the parties were not residing together in Florida, as she contends that the father was not residing in Florida. The mother’s position is that the father should not be permitted to use the Hague Convention in the circumstances of this case as the father’s habitual residence is in Ontario and he is therefore not a “left behind parent”. She maintains that she has always been the primary caregiver of the child. She argues that the father should not be allowed to use the Hague Convention for an improper purpose, that is using this motion to have the child returned to the father’s care, rather than to the State of Florida, as she claims the father does not intend to reside in Florida.

[ 30 ] The mother argues that it was a relatively new separation and that there was no agreed upon settled intention between the parties. The parties discussed many possibilities, but nothing was agreed upon other than they agreed that the child would spend the summer vacation of 2012 in Kingston, Ontario. The mother contends that there was no clear intention regarding the child for after the summer vacation in 2012. The mother submits that she did not wrongfully remove the child from Florida, nor is she wrongfully retaining the child in Canada as the parties had mutually agreed that the child would reside in Kingston, Ontario for the summer of 2012. The mother does not now wish to return to Florida nor does she wish the child to return to Florida as the mother does not believe it is in the child’s best interests. The mother states that she is afraid of the father. She also has concerns regarding the father’s ability to care for the child. Since the removal of the child to Canada, the mother states that she has been dismissed from her position at the companies and she does not know if it is feasible for her to return to Florida. The mother also argues that Florida cannot be the habitual residence of the parties if neither party has the right to obtain a custody or access order by the terms of Florida law because the child had not lived for 6 months consecutively in the State of Florida. The mother seeks that the father’s application for the return of the child to Florida be dismissed and that the Ontario Superior Court of Justice assume jurisdiction to determine the issues of custody and access of the child.

The Hague Convention

[ 31 ] Article 1 of the Hague Convention states that the objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[ 32 ] The Hague Convention is to be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms contained therein, in their context and in light of the Hague Convention’s object and purpose. (See Ellis v. Wentzell-Ellis 2010 ONCA 347 , [2010] O.J. No. 1987 (C.A.) at para. 15 )

[ 33 ] In Korutowska-Wooff v. Wooff 2004 5548 (ON CA) , [2004] O.J. No. 3256 , Feldman, J.A. states:

The court of the contracting state to which the child was removed is not to enter into a determination of the custodial rights of the parties, but is to return the child to the state from which he or she was removed, in order that the custody and related issues be determined in that state.

Jurisdiction

[ 34 ] The Hague Convention has been in effect in Canada since October 25, 1980 and pursuant to Section 46 of the Children’s Law Reform Act , R.S.O. 1990, c C.12 as am., the Hague Convention came into force in Ontario on December 1, 1983.

[ 35 ] The requesting state is the state of Florida in the United States of America. The Hague Convention came into effect between Canada and the United States of America on July 1, 1988. Accordingly, the Hague Convention was in force at the time the child was removed from Florida in the United States of America on May 30, 2012. The child is under the age of 16.

[ 36 ] I find that this Court does have jurisdiction to hear this Hague Convention motion.

Habitual Residence of the Child

[ 37 ] Pursuant to Article 4 of the Hague Convention , the Convention shall only apply to a child who is habitually resident in a Contracting State immediately before any breach of custody or access rights.

[ 38 ] There is no definition of “habitual residence” in the Hague Convention. However, the Ontario Court of Appeal in the case of Korutowska-Wooff v. Wooff , supra set out the principles for determining habitual residence as follows:

(1) Habitual residence is a question of fact to be decided based on all of the circumstances;

(2) Habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

(3) A “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

(4) A child’s habitual residence is tied to that of the child’s custodian(s).

[ 39 ] Those principles have been followed in many cases since then including the decision of the Ontario Court of Appeal in Ellis v. Wentzell-Ellis , supra .

[ 40 ] When making a determination of habitual residence, it is improper to rely on facts arising after the wrongful removal of the child. ( See Ellis v. Wentzell-Ellis , supra .)

[ 41 ] The mother argues that the only settled intention that the parties had when she returned the child to Ontario was that the child would spend the summer in Kingston, Ontario. She alleges that there was no settled intention between the parties as to where the child was to reside after the summer. The mother argues that her residence and the child’s habitual residence is in Kingston, Ontario. The child has lived in Kingston throughout her life, with the exception of the period from December, 11, 2011 to May 30, 2012. In support of the mother’s contention that the child’s habitual residence is in Ontario, the mother relies on the following:

(1) The child was born in Kingston, Ontario and has lived there her whole life except for the period from December 11, 2011 to May 30, 2012.

(2) The child has attended school in Kingston, Ontario for her whole life, with the exception of attending school in Florida from January, 2012 to May 30, 2012.

(3) The parties own a home in Kingston, a rental property in Kingston, and a cottage just outside Kingston.

(4) The parties carry on a number of businesses in Ontario.

(5) The child has friends and relatives in Ontario.

(6) The child’s doctor, dentist, and optometrist are in Kingston, Ontario. The child has no doctor, dentist or optometrist in Florida. The child’s ADHD medication is prescribed in Ontario. In April, 2012, the mother had arranged an appointment for the child with the doctor, the dentist and the optometrist to take place in Kingston, Ontario for June, 2012.

(7) The mother’s habitual residence is in Kingston, Ontario and she had no intention to stay permanently in Florida.

(8) The mother and the father did not reside together in Florida as the father continued to have his habitual residence in Ontario.

(9) The mother and the father had no settled intention that the child would have her habitual residence in Florida. After separation, many options were discussed, but the parties were never able to agree on a settled intention, other than the child would reside in Kingston, Ontario for the summer of 2012.

(10) After separation, the father was exercising access rights and did not have custodial rights.

(11) The child’s habitual residence cannot be in Florida as the Florida Court there has no jurisdiction to grant custody and access there to either party as Florida is not the child’s “home state” as defined by the relevant Florida legislation.

[ 42 ] The father argues that the child’s habitual residence was in Florida at the time the mother removed the child from Florida. In support of that position, the father relies upon the following:

(1) The parties and the child moved to Florida in December, 2011 in order to devote efforts towards their Florida business and because both parties wanted to move away from the cold winter weather in Ontario.

(2) The child was registered in a private school in Florida commencing January, 2012 and completed her term there on May 30, 2012.

(3) The parties agreed that the child would recommence school at the same private school in Florida in August, 2012. The parties had re-registered the child at the school for August, 2012 and paid the deposit of $1,000.00.

(4) The parties had a settled intention that the mother and the child would reside in Florida for at least the next year, that the father would reside with the child in Florida when he was not required to travel for business, and that the child would reside with the father for all holiday periods.

(5) The child was involved in activities at school and in the community in Florida.

(6) The child has friends at school in Florida and socializes with them outside school at birthday parties and sleepovers;

(7) The parties own a home in Florida and resided there together with the child until May, 2012;

(8) The parties own a business in Florida which rents out 16 vacation rental units acquired by the parties with a significant investment of funds.

(9) The father was exercising custodial rights at the time the mother removed the child from Florida.

Analysis

[ 43 ] When the mother removed the child from Florida, the child had been residing in Florida for almost six months, which I find is an appreciable period of time. The child was attending school there. She resided in a home there with her parents. Although her father was not residing in Florida full-time as he had to travel for the businesses, he came to Florida to reside with the family for intermittent periods of time. The parents had paid the deposit for the child’s private school in Florida for the school year commencing August, 2012.

[ 44 ] The parents had come to an agreement after their separation that the mother and child would continue to reside in Florida for at least one more year so that the child could continue at her school in Florida, with the father to reside in Florida for such periods as he could manage away from the Ontario businesses. Even though the parties in later May, 2012 had some email discussions about this agreement, including the father expressing some concern about his lack of time with the child under these circumstances, and the mother offering to move back to Ontario with the child if the father wished, there is no corroborated evidence that the father ever said that he wanted or agreed to the child moving back to Ontario for the 2012/2013 school year. In fact the mother’s offer that she and child would move back to Kingston if the father wished her to do so, corroborates the parties’ agreement that the mother and the child were to reside in Florida for the 2012/2013 school year.

[ 45 ] There is no necessity to find that the mother intended to reside in Florida permanently. I find that the mother had a settled intention to reside in Florida for a period of time to assist in developing the parties’ Florida business. She had a particular purpose for being there. In addition to that particular purpose, the parties had an additional purpose. Both parties were very happy with the child’s social and academic progress in her Florida school and wanted to give the child at least one more year in that school to progress further. I find that the mother was habitually resident in Florida at the time she removed the child from Florida.

[ 46 ] In Wentzell-Ellis v. Ellis, supra, the Ontario Court of Appeal at page 30 found that it was an error in principle to discount the father’s residence and that the Convention does not make protection of custodial rights contingent upon an applicant being the primary caregiver nor give preference to the custody rights of the primary caregiver.

[ 47 ] In considering where the residence of the father was immediately prior to the child’s removal from Florida, the father was residing in the former matrimonial home of the parties in Florida. The child was residing with him for part of the time, and he was involved in the child’s school and other activities. Although the father may have also had a dual residence in Ontario at certain times during the previous six months and travelled intermittently between the two residences due to the demands of the businesses, the father’s family and home life had been centred in Florida since the parties moved to Florida in December, 2011. I find that the father was habitually residing in Florida at the time that the child was removed by the mother from Florida.

[ 48 ] The fact that the mother claims that she has been the primary caregiver of the child throughout the child’s life is not to be given preference in the determination of the issues before me on this motion.

[ 49 ] The fact that the mother has apparently been recently dismissed by the companies is a matter arising subsequent to the removal of the child and is not to be taken into account in the analysis of habitual residence. I was provided with no evidence from either party that he or she would be legally unable to return to Florida. If the mother has lost her employment, the father may need to assist the mother financially.

[ 50 ] Given the age of the child, the child’s habitual residence is tied to that of her custodian(s). I have found that the habitual residence of the mother and of the father were in Florida at the time that the child was removed. On the facts of this case, I find that the child’s habitual residence was in Florida at the time of her removal. I would note that the father is not relying on the Orders of the Florida Court granted subsequent to the removal (“chasing orders”) as being evidence of a Florida habitual residence for the child, nor would it be appropriate for him to do so.

[ 51 ] I now turn to the mother’s claim that the Florida Court has no jurisdiction to deal with the issues of custody and access pursuant to its own relevant legislation.

[ 52 ] The Florida Uniform Child Custody Jurisdiction and Enforcement Act provides in section 61.514 as follows:

(1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

[ 53 ] “Home state” is defined in section 61.503 as follows:

(7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

[ 54 ] At the time that the mother removed the child from Florida on May 30, 2012, the child had been resident in Florida for approximately 170 days. In that calculation, I have included as part of the residency, the period from January 16 to 22, 2012 when the parents temporarily returned to Canada for some undisclosed purpose or visit. The mother removed the child from Florida on May 30, 2012, which on the evidence appears to be earlier than the parties intended the child to go to Kingston, Ontario to spend the summer. The mother’s email to the father on May 29, 2012 stated that she would pick up the child on May 30, 2012 and have the child with her for several days at her home in Florida and then return the child to the father at the former matrimonial home in Florida on June 4, 2012. If the mother had not removed the child on May 30, 2012, the child would likely have been resident in Florida for at least another 5 days, which would bring the total residency in Florida to be very close to 180 days or 6 months of residence. However, this is an issue that the Florida Court would have to decide if the child is ordered returned to Florida pursuant to this Hague Convention motion.

Was the Removal of the child from Florida wrongful within the definition of the Hague Convention ?

[ 55 ] Article 3 of the Hague Convention 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.

[ 56 ] When the mother removed the child from Florida, there was no custody or access order in existence nor any written separation agreement between the parties. Pursuant to Article 3 of the Hague Convention , the court is to have reference to the law of the State of Florida with respect to custody and access rights, as I have found that the child was habitually resident in Florida immediately prior to her removal.

[ 57 ] Article 14 of the Hague Convention permits the court to take notice directly of the law of the habitual residence of the child without the usual procedures for proof of foreign law. The evidence before me is that according to Florida law the court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. I find that there is a presumption according to Florida law that the parties shall have shared custodial rights.

[ 58 ] The mother alleges that the father was exercising access rights rather than custody rights at the time of her removal of the child from Florida. Article 5 of the Hague Convention states that for the purposes of the Convention “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. I find that after the parties separated, the child went back and forth between the two parents and spent overnight time with each. Both parents were involved in the care of the child, and in her schooling and activities. On the evidence before me, including the emails and texts between the parties, I find that the parties both accepted that they shared the right to make decisions regarding the child including the right to determine the residence of the child. I find that the father was presumptively entitled to custodial rights by the law of Florida, and that he was exercising custodial rights immediately prior to the time that the child was removed.

[ 59 ] I find on the evidence before me that the mother’s removal of the child from Florida was a breach of the father’s custodial rights and was therefore wrongful within the definition of the Hague Convention .

Defences to the mandatory return of the child to Florida

[ 60 ] Once it is found that the child was habitually resident in Florida immediately prior to her removal and that the removal was wrongful, the child must be returned to Florida pursuant to the Hague Convention unless the mother is able to prove one of the exceptions set out in Article 13 of the Hague Convention .

(a) Non-exercise of custody rights

[ 61 ] The mother alleges that the father was not exercising custody rights at the time of her removal of the child from Florida. However, as I have previously found on the evidence before me that the father was exercising custody rights at the time of the removal of the child from Florida, I find that this exception does not apply.

(b) Acquiescence

[ 62 ] A defence to the return of the child is that the father was consenting to the removal of the child at the time the child was removed, or that he subsequently acquiesced in the removal of the child.

[ 63 ] The mother alleges that the father did acquiesce in her removal of the child to Ontario as the parties had agreed that the child would spend the summer in and around Kingston, Ontario. The intention was that the child would spend much of the summer with the father at the cottage owned by the parties outside Kingston. The mother states in her first affidavit that the initial plan agreed upon the parties was that she would drive the child to Kingston on June 5 or 6, 2012. The child would spend the summer with the father. Then the mother would drive the child to Florida on August 15, 2012 as school starts in Florida on August 20, 2012.

[ 64 ] The mother went on to state that the father, however, kept changing his mind about the child attending school in Florida for the next school year and that nothing was ever finally agreed upon. In her affidavit evidence, she swears that the father ultimately told her that he did not agree with the child staying in Florida or attending school there and that he wanted the child to reside in Kingston.

[ 65 ] There were a number of text and email messages between the parties between May 26, 2012 and May 30, 2012 which were presented as evidence. At May 26, 2012, the mother sent an email to the father with the final bill for the child’s school fees for the 2012/2013 school year. She inquired as to whether the father still wished her to pay for half of the fees, and that she was happy to do so, but needed to know. I find that this email confirmed that the parties at that date had an agreement that the child would attend school in Florida for the 2012/2013 school year.

[ 66 ] The father who was in the hospital at the time, responded as follows:

“Can you ask for an extension? I think we need to talk. If it’s this hard for me to be here, I think Hana needs to see her Dad more than any school. We have to find a better way. A calm conversation is our only hope. I have a couple of things to clarify.”

[ 67 ] In the emails and texts, the mother acknowledged the father’s concern with lack of time with the child and offered that she and the child would move back to Kingston if the father wished. The mother states in her affidavit that the father said he wanted them to do so, but this allegation is not expressly corroborated in the emails and the texts and is denied by the father.

[ 68 ] In an email dated May 29, 2012 at 23:20 the mother told that father that she would be getting representation and that she would have them contact him. She said she would take the child to the birthday party after school closing the following day and would pick her up and bring her by the former matrimonial home where the father was residing to get some things to bring to the mother’s residence for the child’s time with her. The mother stated that she would have the child to Avenue E (the former matrimonial home in Florida) at noon on June 4.

[ 69 ] The mother texted the father later and asked if he were going to allow her to have the four days starting tomorrow or not. The father replied that as she had chosen to get a lawyer, he would work out the details with her lawyer, so her time would not start tomorrow, but once he had an opportunity to ask some questions of her by her representative.

[ 70 ] On May 30, 2012 the mother picked the child up from the birthday party 30 minutes before it was over and left Florida with the child. The mother left many of the child’s items at the former matrimonial home, including the child’s ADHD medication. When the father went to pick up the child at the birthday party he found that she was gone. He went to the home of the mother and they were gone. The cleaning staff said they didn’t know where she had gone. However, when he contacted the Florida police, they found out from the cleaners at the mother’s home that the mother was headed with the child for Canada.

[ 71 ] The mother did not allow the child to talk to the father until June 4, 2012 and the child was not permitted to say where she was. This situation persisted for several more days. The child was without her ADHD medication for 6 days.

[ 72 ] I find on the evidence that the father did not consent to the mother removing the child from Florida on May 30, 2012 and that the mother knew that the father was not consenting to her doing so.

[ 73 ] Although the parties had agreed that the child would spend most of the summer school vacation in or about Kingston, Ontario, I find that the father did not consent to the mother removing the child permanently from Florida, in the secretive manner that she did, at the time that she did, and without prior notice to the father, nor did the father consent to the mother withholding the child and the child’s whereabouts from the father for a number of days. If the mother was concerned, as she says, that the father was not going to allow her to have time with the child until things were worked out between them, she should have followed the proper process in bringing the matter before the Court to ensure she would continue to have time with the child, rather than engaging in self-help methods.

[ 74 ] Accordingly, I find that the mother has not satisfied the onus on her to prove that the father acquiesced in the removal of the child from Florida.

[ 75 ] The mother alleges that there has been no wrongful retention unless the child is not returned to Florida at the end of the summer in time for the start of school, and that no Hague Convention motion should be heard until or if that happens. However, the mother has been very clear in her affidavit material that she does not wish to return to Florida and does not wish the child to return to Florida. Given such clear evidence of the mother’s intentions, I find that it is not necessary to wait to the end of the summer to hear this Hague Convention application.

(c) Grave risk or intolerable situation

[ 76 ] The mother states that she is afraid of the father and that is why she did not contact him after she removed the child from Florida. She alleges that the father is extremely controlling of her. The mother’s position is that it is not in the child’s best interest to be returned to Florida. She acknowledges that the father loves the child but she has concerns about his ability to care for the child due to his health problems and his intolerance to noise. She also expresses concern that the father does not ensure that the child deals with routine care issues such as hygiene issues and going to bed at a reasonable time as due to the child’s severe ADHD she needs to be constantly told to do these things.

[ 77 ] The father denies that he is controlling or that he has given any cause to the mother to be afraid of him. He acknowledges that he does have some health problems but says that his heart stent treatment in Florida has increased his energy and greatly improved his health. The father has had the child with him for overnights. The evidence before me is that the father has a mutually loving relationship with his daughter and there is no evidence that he has ever caused the child any physical or psychological harm.

[ 78 ] I find on the evidence before me that the mother has failed to establish the required high threshold of grave risk or that the child would be in an intolerable situation as established by the Supreme Court of Canada in Thomson v. Thomson 1994 26 (SCC) , [1994] 3 S.C.R. 551 at pages 30 to 31 . The mother offered to meet with the father on her own to discuss issues of the separation, which offers are corroborated by the emails and texts. The mother failed to give evidence of concrete examples of behaviour of the father controlling her or causing her to fear him, other than the one argument on May 22, 2012 where she alleges he was screaming and throwing things at her and threatening their divorce would be “the worst divorce ever”. The father admits the parties, in the absence of the child, argued that day about matters other than the plans for the child, and yelled at each other, but he denies any physical contact or threats by either of them.

[ 79 ] The child is well settled in Florida in her home and school. On the evidence before me, I find there is no grave risk to the child or that the child would be in an intolerable situation if she were returned to Florida to have the issues of her custody and access determined there. There is no evidence that the mother cannot return to Florida to reside there if she wishes.

Conclusion

[ 80 ] Final Order to go that the child, Hana Hussen Juma, born July 25, 2000 shall be returned to Florida so that the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida can assume jurisdiction regarding the custody and access of this child. I am requesting the parties to appear before me to hear submissions on what, if any, undertakings and further Orders shall be required to accomplish the safe return of the child to Florida, and to deal with the issue of the “chasing orders” made by the Florida Court, and as to whether there needs to be direct judicial communication between this Court and the Florida Court to deal with those issues. The Trial Co-ordinator is requested to set a date before me for the hearing of those submissions during the week of July 23, 2012, due to the urgency of this matter. The father shall serve and file by July 16, 2012 an affidavit setting out his proposal for the mechanics for the safe return of the child to Florida, dealing with the care of the child pending the return of this matter before the aforesaid Florida Court, and proposing any undertakings or orders he believes are necessary to accomplish this, as well as dealing with the issue of costs. The mother shall serve and file an affidavit setting out her proposals concerning the aforesaid issues by July 18, 2012. The father shall serve and file any reply affidavit by July 20, 2012. The return of the child to Florida shall be stayed pending my decision on the aforesaid issues, with the temporary Order of June 20, 2012 as amended by the temporary Order of July 3, 2012, and as amended by the temporary Order of July 11, 2012, to remain in effect pending my decision on the aforesaid issues.

Costs

[ 81 ] The issue of costs of this motion are reserved to the aforesaid hearing to be set by the Trial Co-ordinator.

Justice A.C. Trousdale

Released: July 12, 2012

COURT FILE NO.: 351/12
DATE: July 12, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
BETWEE N: JODIE LEIGH JUMA Applicant

• and -
  RAHIME JUMA Respondent

REASONS FOR DECISION

JUSTICE A. C. TROUSDALE

Released: JULY 12, 2012