Court File and Parties

COURT FILE NO.: FS-11-17425
DATE: January 23, 2012

ONTARIO
SUPERIOR COURT OF JUSTICE

APPLICANT
Uri Landman Husid

RESPONDENT
Hélène Marie Thérèse Daviau

Jeffery Wilson, for the applicant father
Phyllis Brodkin and Serena Lein, for the respondent mother

HEARD: November 7-10 and 15-17, 2011

Perkins J.

Issues in the case

[ 1 ] This case is about which court – this court or a court in Lima, Perú – should deal with the custody and access rights of the parents of a 5 year old girl named Shelli. Though a family law case involving a young child, this is not a custody case, and it is not to be decided on the basis of the child’s best interests, but rather on the basis of the principles established by the Hague Convention on the Civil Aspects of International Child Abduction

[ 2 ] Shelli was born in Perú to a Peruvian father and a Canadian mother. She was habitually and actually resident in Perú until the mother brought her to Ontario 16 months ago. The mother and father were and still are involved in several court cases in Perú concerning custody of and access to Shelli, among other issues. Under a Peruvian court order, the mother was permitted to travel to Canada with Shelli in September, 2010 to visit her parents. The order required her to return with Shelli to Perú in November, 2010. Once she got to Canada, the mother refused to return. The father launched an application under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, seeking an order for the return of Shelli to Perú. That is the application that is before me for adjudication. The convention has been incorporated into our domestic law in section 46 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12.

[ 3 ] The mother has invoked article 13 (b) of the convention, saying she should not be required to return Shelli to Perú because, in the words of that provision, “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.” She says there is a grave risk of harassment, psychological abuse and physical abuse at the hands of the father and his family and a grave risk that Shelli would be put in an intolerable situation if required to return to Perú. The father denies there is any such risk, but says if this court finds there is any risk, the courts and authorities of Perú can deal adequately with it, and the mother has no valid reason to keep Shelli away from her home country.

[ 4 ] If successful in resisting the return of Shelli to Perú, the mother has asked this court for an order for custody in her favour, with only supervised access to the father.

Result

[ 5 ] The father's application for an order for return of Shelli to Perú is dismissed, on the ground that the mother has met the onus under article 13 (b) of the Hague Convention. She has established that a return would expose Shelli to grave risk of physical or psychological harm or place her in an intolerable situation.

[ 6 ] The mother's claim for custody and an access order may proceed. Directions may be sought if need be, by motion or at a case conference. If costs are not agreed, they are to be addressed initially in writing and if desired an oral hearing may be booked.

Family history

[ 7 ] The father is 47 years old. He was born and raised in Lima, Perú and has always lived there, though he received some of his education in the USA. He holds a senior position in a family business that imports and sells automotive parts. The mother is 41 years old and was born and raised in Canada. She is a specialist in a particular computer software.

[ 8 ] The mother was working as a computer consultant and living in New York City when the parties met on separate vacations in Jamaica in 1999. They took a liking to each other and arranged to meet again in Miami, where the father went regularly for business and where his family owned a condominium in Miami Beach. The father speaks Spanish and English fluently. When they met, the mother spoke English and French but no Spanish. They dated for a time and the mother began coming to Lima on business trips and spending substantial blocks of time with the father. He asked her to marry him in 2003. They were married in a civil ceremony in Montreal on July 26, 2003 and in a religious ceremony in Lima on November 17, 2003.

[ 9 ] The father and his family are Jewish. They go to synagogue, observe the major holidays and consider their Jewishness important. The mother was raised Christian but had many Jewish friends in New York and had an interest in Judaism. It was important to the father and his family that she convert to Judaism if she and the father were to marry. She pursued a course of study with a rabbi and underwent an Orthodox conversion, which allowed the couple to have a religious marriage ceremony in the father’s synagogue in Lima. She continues to live as an Orthodox Jew. It turns out she is more observant than the father.

[ 10 ] The couple lived in Lima in an apartment owned by the father’s family. He continued to work in the family business. The mother did not work at first after the marriage, though over time she acquired some proficiency in Spanish and pursued and landed contracts with former clients and new clients.

[ 11 ] The couple wanted to have children as soon as possible but no pregnancy occurred until the end of 2005, after the couple attempted and then abandoned efforts at in vitro fertilization. Shelli, their only child, was born August 19, 2006 in Lima.

[ 12 ] According to the mother, the marriage was troubled from the start and the father became increasingly abusive to her. The father painted a picture of an unhappy marriage as well, denying abuse and minimizing the trouble until later in the marriage. They separated on September 10, 2008 in Lima. The mother continued living in Lima with Shelli and the father had regular visitation until November, 2009. At that time the mother moved with Shelli to Cusco, Perú, some 1100 kilometres away. Her avowed purpose was to get away from the harassment perpetrated by the father and his family.

[ 13 ] Two months later, under court order, the mother and Shelli returned to Lima. In late January, 2010, two physical confrontations occurred, one between the mother and the father and one between the mother and the father’s mother. Police were called on both occasions and the scenes were very dramatic. Shelli witnessed both.

[ 14 ] The couple had begun litigation in Lima in respect of custody and access rights in September, 2008. Initially cooperative, the parties’ positions became adversarial and ultimately hostile. This will be discussed below in detail.

[ 15 ] The mother obtained an order permitting her to travel to Canada with Shelli for a family visit from September to November, 2010. She left Perú with Shelli on September 8, 2010. She and Shelli have been residing with her parents in Toronto ever since. The father has had only a handful of supervised visits with Shelli in the past year.

[ 16 ] Shelli had been attending a Jewish day school in Lima. She is now enrolled in a Jewish day school in Toronto. She is healthy and is in all respects a normal child.

(Decision continues with full findings, legal analysis, Hague Convention provisions, extensive factual findings, and appendix chart exactly as in the source.)