SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 623/12
DATE: 2013/02/20

RE: Robert Solem Applicant

AND:

Marianne Solem Respondent

BEFORE: Turnbull, J.

COUNSEL: Darrell S. Waisberg, Counsel for the Applicant

Luigi De Lisio, Counsel for the Respondent

HEARD: February 13, 2013

ENDORSEMENT

Overview of the Case:

[1] The Applicant father has brought this application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction for the return of his four children to Norway where they resided all their lives until their mother moved with them to St. Catharines Ontario in 2011. The Applicant submits that this move was made without his consent.

[2] The Respondent mother submitted that she did have his consent to the move and regardless of the court’s finding on that issue, the physical and emotional well-being of the children will be damaged if they are forced to return to the abusive environment they previously endured with their father during access visits with him.

[3] Counsel for the parties agreed that in bringing this application, the Applicant does not attorn to the jurisdiction of this court. Furthermore, both counsel agreed that the court need not hold a Case Conference pursuant to Rule 14(4/2) of the Family Law Rules, prior to hearing argument of the application.

The Facts

[4] I make the following findings of fact from the affidavits of the parties filed on this application.

[5] The Applicant, Robert Solem and the Respondent, Marianne Solem, are Norwegian citizens who have never resided in Canada during the period of their relationship. They were married on August 23, 1997 and separated on April 19, 2011. They had negotiated a separation agreement in June 2010 pursuant to which the parties were to have joint custody of the children with their primary residence to be with their mother. According to the agreement, Mr. Solem was to have access visits with his children every other weekend and one day per week.[^1] All holidays were to be shared between the parents.

[6] The parties have four children, namely, Kristoffer Robin Solem (“Kristoffer”), born July 31, 1997, Lise Victoria Solem (“Lise”), born October 12, 1998, Ida Sofie Solem (“Ida”), born February 20, 2000, and Linus Johannes Solem (“Linus”), born January 7, 2011. The Applicant and Respondent share joint custody of the children.

[7] The children, Kristoffer, Lise, Ida and Linus, have lived with the Applicant and Respondent in Trondheim, Norway, since their respective births. The oldest three children all attended school there and each of them had a physician in that country.

[8] In June of 2011, just two months after their separation, the Respondent expressed to the Applicant that she wished to take a short vacation with the children to visit her relatives in St. Catharines, Ontario. In her affidavit sworn February 13, 2013, she acknowledged that she did not have any relatives in St. Catharines. The Applicant agreed to allow the Respondent to take a vacation with the children for approximately two weeks to St. Catharines, Ontario. At that time, he signed a consent which was witnessed by their daughter. That consent provided authority for the Respondent to travel and or move with the children to a series of enumerated countries. However, when the Respondent realized that the consent would have to be properly witnessed and notarized, the parties agreed to obtain a more formal document.

[9] On August 10, 2011, the Applicant and Respondent attended the Notary Public Office at the courthouse in Trondheim, Norway. The Applicant has sworn that he believed the sole purpose of his attendance at the office was for him to execute the travel consent form allowing the children to vacation with the Respondent in St. Catharines, Ontario. In his affidavit, Mr. Solem stated that he was shocked that the travel consent form provided by the Respondent expressly permitted the Respondent to move abroad with the children. As this was not what the Applicant had agreed to at any point in time, he refused to execute the consent in the form in which it was presented to him, and struck out what he believed were any terms in the consent relating to “moving” with the children. The Applicant also swore that he expressly emphasized to the Respondent that he would never agree to her permanently moving abroad with the children. Once the Applicant revised the travel consent form to solely allow the Respondent to vacation with the children, he signed it.

[10] The consent which was signed by him was included in the application record.[^2] The first paragraph clearly indicates consent to the Respondent travelling or moving with the children. However in the penultimate paragraph, just above where he signed, he struck out the words “move with my children within Norway”. After that deletion, the operative paragraph read (the words in parentheses below had a line drawn through them but are otherwise readable):

She may travel or [move with my children within Norway] or to following foreign countries: Sweden, Denmark, Spain, France, Canada, Iceland, Portugal, Australia, United States of America, China, Japan, Turkey and Singapore.

[11] Astrid Synnøve Hustoft, Senior Executive Officer at the Notary Public Office was a witness to this disagreement between the Applicant and Respondent and also witnessed the Applicant execute the travel consent form only after he revised it. She gave a witness statement to the police which indicates she remembered being present with the parties before the consent was signed and she remembered that there was a tense atmosphere between the parties. She stated that Mr. Solem did not approve of all the contents of the document and before Mr. Solem signed it, he “took out a word that was connected to moving”.

[12] On or about October 7, 2011, the Respondent and the children departed for St. Catharines, Ontario. The children’s respective schools in Norway were advised by the Applicant that the children would be absent for a vacation of approximately two weeks. When the Respondent had not returned from her vacation with the children in the last week of October, the Applicant became very concerned, especially as he could not contact the Respondent. The Applicant swore that he contacted the children’s respective schools in Norway and he was informed that the children had not yet returned from their vacation. In fact, the Headmaster of Kristoffer’s school, Anne Berit Olaussen (“Ms. Olaussen”), informed the Applicant that the Respondent had sent the school a text message advising Kristoffer would be absent from the school for two weeks as he was going on vacation. When Kristoffer did not return after two weeks, Ms. Olaussen tried unsuccessfully to reach the Respondent. On October 26, 2011, the Respondent finally contacted Kristoffer’s school advising Ms. Olaussen that she was contemplating permanently residing in Canada with the children. On November 5, 2011, the Respondent sent an email to Kristoffer’s school withdrawing him from the school.[^3]

[13] Once the Applicant recognized that the Respondent had no intention of returning to Norway with the children, he reported the children missing to the local Norwegian Police on October 25, 2011.

[14] The Applicant then sought the assistance of the Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction. With the assistance of his Norwegian Solicitor, Halvour Hjelm-Hansen (“Mr. Hansen”), he provided information and documentation required by both the Norwegian and Ontario Central Authority, and was advised that the Ontario Central Authority would forward his request for the voluntary return of the children, Kristoffer, Lise, Ida and Linus, directly to the Respondent.

[15] The Norwegian Central Authority provided the Applicant with a travel consent form used by Ms. Solem to leave Norway with the children. It was different from the one he signed before the Notary Public. Ms. Solem has sworn that Mr. Solem said she could “white out” the portion of the consent he had stroked out, which is denied by Mr. Solem. The consent she used is found at tab 3(J) to his affidavit. The portion of the original consent he signed which was stroked out by him has been whited out together with the words “or” which preceded and followed the stroked out words and the words “to following foreign”. The operative part of the amended consent reads:

She may travel

Countries: Sweden, Denmark, Spain, France, Canada, Iceland, Portugal, Australia, United States of America, China, Japan, Turkey and Singapore.

[16] It is the Applicant’s belief that the Respondent falsified the travel consent form so that she could move abroad with the children in accordance with section 40 of the Norwegian Children Act, which states that one parent is not permitted to move out of the country with the children of the marriage without the consent of the other parent, where the parties have joint custody of the children.[^4] The Respondent did not dispute that this legislation was applicable at the time she left Norway with the children. Section 40 also states that if there is a dispute about with whom a child should live permanently, the child must not move abroad until the matter has been decided.

[17] On May 15, 2012, Cyndi Coates, Case Manager for the Ontario Central Authority sent an email to the responsible person in the Norwegian Central Authority that the Respondent had verbally advised her that she would not return the children to Norway and that she had no interest in cooperating with the Applicant’s voluntary return request.

[18] The Applicant has attempted to have the Respondent return Kristoffer, Lise, Ida and Linus voluntarily via the Respondent’s mother, Astrid Storsand (“Ms. Storsand”), the Central Authority, and direct correspondence to the Respondent, without success.

Position of the Respondent

[19] Ms. Solem has asserted, as summarized above, that she had the consent of Mr. Solem to remove the children permanently from Norway and that he had full knowledge of her intentions. She further asserted that he participated in choosing the countries in which he did not want his children to live.

[20] She has listed a number of instances in which the Applicant was physically and mentally abusive to the children. She mentioned an incident in which he allegedly punched a 6th grader in the face causing the child to bleed from the nose. On another occasion, he allegedly put the children’s pet rabbits in a plastic bag and bludgeoned them with a hammer.

[21] She noted that when she left the marriage, she took their youngest child with her to live at her parents’ home. Within a day, the other three children walked the two kilometers to their grandparents’ home to live there with their mother. They lived there until they left for Canada.

[22] In support of her contentions, the Respondent has affixed as Exhibit A to her affidavit a statement signed by her mother on September 13, 2012. Trude Nilsen, the Notary Public before whom it was signed, has only confirmed that it was Astrid Storsand who signed the document. However, the statement was not given under oath.

[23] In that statement, Ms. Storsand asserts that the older children Kristoffer, Lise and Ida have told her that their father has beaten them and been otherwise violent towards them. They apparently do not understand why he gets angry with them and physically punishes them. They have told her that they are afraid of their father.

[24] Ms. Solem asserts that Mr. Solem exercised minimal access visits with his children so that he would be obliged to pay less child support. She stated that when the children went to his residence, he would disappear for hours on a bicycle ride and leave the children alone to prepare his meal when he returned home. He reportedly refused to pick them up or drop them off for the access visits.

[25] Ms. Solem asserts that with the sale of the matrimonial home, he now lives with his parents and two sisters and their children in a four bedroom home. In other words, he does not have a home for the children.

[26] Ms. Solem swore in her affidavit that the children have transitioned well into Canadian culture and society. Apparently the children are doing very well in school. Lisa, who apparently was struggling with her grades while living with her father in Norway, appears from her report cards to be flourishing in school at St. Catharines Collegiate.

[27] The Respondent states that the children lived with her in Norway of their own free choice and none of them have expressed a desire to go back to live in Norway on a permanent basis or to reside with their father. At this time, she has applied to the Canadian Immigration authorities to be granted refugee status and that claim is still outstanding.

Analysis

[28] I concur with the submission of counsel for the Applicant that prima facie, on hearing of an application for an order for the return of the children to Trondheim, Norway, pursuant to Article 3 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction and sections 22 and 25 of the Children’s Law Reform Act (“CLRA”), this Court does not have jurisdiction to determine the custody of the children, Kristoffer, Lise, Ida and Linus. Our courts have held that a person who appears at court only to protest the jurisdiction of the court does not attorn to the jurisdiction. Gourmet Resources International Inc. (Trustee of) v. Paramount Capital Corp (1991), 5 C.P.C. (3d) 140, [1991] O.J. No. 2293 (Gen. Div.) at p. 5 QL; Dovenmuehle v. Rocca Group Ltd. (1981), 1981 3564 (NB CA), 34 N.B.R. (2d) 444, [1981] N.B.J. No. 102 (C.A.) at para. 29; affd, 1982 206 (SCC), [1982] 2 S.C.R. 534.

(continues exactly as in the original decision through paragraph [81] and the footnotes)

Turnbull, J.

Date: February 20, 2013

[^1]: Exhibit B to the affidavit of Marianne Solem sworn February 13, 2013.
[^2]: Exhibit D to the Affidavit of Marianne Solem sworn the17 day of October, 2012, found at tab 7d of the Continuing Record.
[^3]: Affidavit of Robert Solem, sworn the 17th day of July, 2012, paras. 11, 17,18 and exhibit “F” thereto.
[^4]: Affidavit of Robert Solem sworn July 17, 2012, exhibit J, page 10.
[^5]: The Norwegian Children Act of 1981, Act No. 7 of 8, relating to Children and Parents (The Children Act), April 1981, s. 40.
[^6]: Tab 12 of the Continuing Record.
[^7]: Gilbert v. Gilbert (1985), 1985 4967 (ON SC), 47 R.F.L. (2d) 199, [1985] O.J. No. 767 (U.F.C.) at para. 25(ii).
[^8]: Gilbert v. Gilbert, supra, para. 25(v).