COURT FILE NO.: D618/13

DATE: 2014-07-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alexander Martin Hage

Self-Represented

Applicant

• and -

Lyssa Ann Skye Bryntwick

S. Heeley, for the Respondent

Respondent

HEARD: June 19 and 20, 2014

The Honourable Justice Mazza

1This is an application brought by the Applicant, Alexander Martin Hage, pursuant to the Convention on the Civil Aspects of International Child Abduction ["The Hague Convention"] for declaration that the child Mason Bryntwick, born February 26th, 2011, was wrongfully removed from the State of California and detained in Ontario; that the child is not habitually resident in Ontario; for an order that the child be returned to California for determination of the custody and access issues; and for police assistance to return the child.

2Because the Applicant father currently resides in California and is a member of the Marine Corps, his time in this jurisdiction was limited and, therefore, rather than have the parties prepare and file affidavit material, it was agreed that the matter proceed before me by viva voce hearing. Mr. Hage was self-represented.

Background

3The parties met on or about November or December 2009 online through a game called Ninja Trick. They continued to develop the relationship online through the video game and through Skype. Ultimately they met in May of 2010 when the Respondent travelled to California and on July 2010, the parties married.

4Shortly after the marriage, the parties, learning that Ms. Bryntwick was pregnant, decided to return to Canada, specifically Hamilton, Ontario, Ms. Bryntwick's place of birth and where she was raised, to visit her mother with the news about the marriage and her pregnancy.

5Around October of 2010, the parties attempted to return to the United States but Ms. Bryntwick was refused entry because she lacked the appropriate immigration status to reside in the States. She, therefore, returned home to live with her mother while Mr. Hage returned to California to resume his military duties.

6However, prior to the child's birth, Mr. Hage was able to obtain leave and was present for Mason's birth on February 26th, 2011. Shortly thereafter Mr. Hage, Ms. Bryntwick and Mason returned to the United States at which time Ms. Bryntwick was allowed entry but was warned that should she leave the United States again, she would not be allowed re-entry.

7The parties visited with Mr. Hage's mother, who resides in Andover, Minnesota, and then in approximately April of 2011, the family moved to California where they resided until October of 2012. During their time in California, Mason was examined by a general practitioner who suggested that Mason may have Autism Spectrum Disorder.

8As part of the evidence, a document brief prepared by Mr. Heeley, was admitted as "Exhibit 1" on consent and contained medical information on Mason from McMaster Children's Hospital. The purpose of this medical documentation was to provide the court with a medical chronology of treatment of Mason's communication and development skills. After undergoing a number of tests, it was concluded that Mason demonstrated skills "in the low average range on the cognitive, motor and socio-emotional scales, and skills in the extremely low range on the language and adaptive behavioural scales." The report of March 26th, 2013 stated as follows:

"Due to the concerns regarding Mason's development, and further early intervention services, such as those provided by the Infant Parent Program are recommended.

Given the concerns regarding his development, Mason would benefit from consultation from a developmental pediatrician at McMaster Children's Hospital Chedoke Site and he has already been referred. Mason's mother would benefit from input regarding his unusual behaviours and weaknesses in communication and adaptive behaviour skills, such as that provided by the appropriate program at McMaster Children's Hospital Chedoke Site, as recommended by the developmental pediatrician."

However, no further medical follow-up took place until Ms. Bryntwick eventually returned to Canada with Mason.

9While they resided in California from April 2011 Ms. Bryntwick was Mason's principal caregiver as Mr. Hage worked ten-hour days and after work, according to his own testimony spent two to three hours a day, two to three days a week playing a video game called World of Warcraft.

10As well, there were incidents of Mr. Hage's excessive consumption of alcohol which led to blackouts and memory loss. There was an alleged assault on Ms. Bryntwick by Mr. Hage when he was drunk but which he denies. And lastly, there was an incident which took place during Christmas in Ontario when Mr. Hage was drunk and the parties exchanged blows.

11Sometime prior to October 12th, 2012 Mr. Hage was advised that he was required to attend two courses as part of his military duties. Consequently, he would be away from home until March of 2013. Since Ms. Bryntwick required some assistance to care for Mason, it was agreed that she return to her mother's in Canada and reside there with Mason until Mr. Hage completed his courses.

12While Ms. Bryntwick and Mason continued to reside in Hamilton, Ontario, Mr. Hage testified that because of the demands of the workload from his courses, and the distance between the parties, the relationship began to deteriorate to the point where having neglected to call Ms. Bryntwick for a three-day period, she advised him she wanted a divorce. Although he offered some resistance, it was on or about December of 2012 that they mutually agreed to proceed with the divorce. At that very same time, Mr. Hage who had, in fact, prepared on behalf of Ms. Bryntwick an application for immigration to the United States, decided, upon the parties agreeing to proceed with the divorce, to shred the documents.

13Although the divorce was to proceed, Mr. Hage advised Ms. Bryntwick that he wished to visit her to have discussions about possible options with respect to Mason. He, therefore, made arrangements to drop his recruiter's course, obtained a 30-day leave to see Mason, but was told by Ms. Bryntwick to not visit because of medical issues concerning Mason to which she had to attend and because she was emotionally stressed over the separation.

14With this development, Mr. Hage hired counsel; dropped his course on January 15th, 2013; and filed for divorce and custody on February 9th, 2013. After receiving leave, he attended with his father to Canada on February 25th, 2013, at which time he served Ms. Bryntwick with divorce papers which included a notice to her to attend mediation on March 15th, 2013, via Skype or by telephone as well as notice of hearing for the custody and divorce which was to take place in San Diego, California, in the Superior Court on April 8th, 2013. He also served her with blank response papers which she did not complete.

15Mediation took place on March 15th, 2013, and a mediation report was prepared suggesting that he have the child 85 percent of the time and Ms. Bryntwick have the child 15 percent of the time. Although Ms. Bryntwick did participate in the mediation via telephone she did not attend the hearing in the California Superior Court on April 8th, 2013, at which time a temporary order was made granting Mr. Hage custody of the child with access to Ms. Bryntwick pursuant to the mediation report. Subsequent to the order of April 8th, 2013, Ms. Bryntwick obtained a temporary order in this jurisdiction on April 12th, 2013.

Submissions of Alexander Hage

16Mr. Hage submitted that the child Mason was "abducted and wrongfully retained" from his ordinary jurisdiction of California in the United States on December of 2012. He submitted the child was removed without legal authority the moment Ms. Bryntwick refused to return him to what he referred to as his habitual residence being San Diego County, California. He reminded the court that the primary intention of the Hague Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. In support of his position, he quoted Articles 3 and 12 of the Hague Convention as well as the exception under Article 13(b).

17In remaining in the jurisdiction of Hamilton, Ontario, Ms. Bryntwick, in his submission, found a more sympathetic court in spite of the fact that a legal process had already begun in the United States of America, a legal proceeding which was commenced prior to Ms. Bryntwick commencing her application in Hamilton.

18He further reminded the court there was no delay in commencement of his proceeding, that upon his learning that the child would not be returned, he took immediate action; hired a lawyer, and in spite of the unavoidable delays integral to the court process he made an application for divorce and obtained an order in a timely fashion.

19He further submitted that Ms. Bryntwick's participation by telephone in the March 15th mediation which took place in the jurisdiction of California, constituted acquiescence to the California jurisdiction. He reminded the court that his application preceded Ms. Bryntwick's application; his application commencing February 9th, 2013, Ms. Bryntwick's application commencing April 5th, 2013.

20He, therefore, submitted that the moment Ms. Bryntwick was aware of the jurisdiction under the Supreme Court of San Diego County, Ms. Bryntwick had an obligation to advise this jurisdiction of the commencement of his application in California. He further went on to say that Ms. Bryntwick's application was misleading in the sense that she stated that the parties had not been involved in a court case before yet clearly she was aware of the application commenced in California. Furthermore, he submitted when Ms. Bryntwick's full knowledge of the proceeding that was taking place in California, she deceived this court by not advising the court of the prior court order obtained by Mr. Hage.

21Mr. Hage further submitted that evidence of Mason's habitual residence is demonstrated by the fact that Ms. Bryntwick left most of his clothes and his toys and other objects of ownership "that either belonged to Mason or herself," and, therefore, that demonstrated a clear intent to return. He submitted that Ms. Bryntwick unilaterally created a new habitual residence by wrongfully removing herself and the child. She breached the agreement that she would return after four months and in view of the agreement between the parties that she would return, she knew full well that Hamilton was not Mason's habitual residence.

22In making reference to Section 13(b) which considers the factor of "grave risk to the child of being exposed to physical or psychological harm if the child were returned to the jurisdiction from where the child was taken," he reminds the court that the term under that particular subsection is "grave." He, therefore, submitted that the circumstances between himself and Ms. Bryntwick in which she may have been struck by him while riding in a vehicle is unsubstantiated because there were no other parties present.

23The allegation of him being drunk during the visit in Ontario and the physical altercation between himself and Ms. Bryntwick, does not, in his opinion, constitute grave risk to the child. In support of that position, he submits there is no evidence that he ever harmed the child and moreover since he and Ms. Bryntwick had agreed that the child would return to the United States after her four-month stay with her mother, Ms. Bryntwick never raised the issue of harm or risk to Mason.

24He then went on to describe the psychological harm that Mason could face if he was deprived of relationships with his grandparents, being his paternal grandfather and grandmother, "several uncles, a total count of six, and his aunt, and approximately access to twelve cousins, two of which are in his age bracket." He further stated that Mason would be placed in harm's way if he were allowed to stay with Ms. Bryntwick's mother who in fact has been diagnosed with bipolar and "now diagnosed depressive and being diagnosed bipolar typically means that reality can and often does blend with imagination." He is also asking this court, in his reference to Section 24 of the Children's Law Reform Act, that whatever past behaviour he demonstrated, i.e. his altercation with Ms. Bryntwick, it is only relevant if it has a significant bearing on his ability to parent the child. He submitted, therefore, that one altercation did not amount to his inability to be Mason's father.

25In conclusion, Mr. Hage asked the court for an order that Ms. Bryntwick return Mason to California under the Hague Convention because of evidence of her illegal removal and retention of the child from his ordinary and primary habitual residence in California. He further asks the court to set aside the interim order of the Superior Court of Justice of Ontario. Mr. Hage provided the court with a case from the Ontario Court of Appeal and asked the court to consider the principles set out in that case.

Submissions of Sean Heeley

26Mr. Heeley submitted that his client was not attempting to deceive the court inasmuch as her affidavit in support of the emergency motion brought before this court set out in detail the events as they unfolded in the State of California. He spoke of the tests which this court must consider in a Hague Application as follows:

27First, was the child wrongfully removed?

28Second, if the court found the child was wrongfully removed, could it then be established that there was a settled intention that the child remain permanently in the new environment?

29Third, he submitted, was the person from whom the child was removed actually exercising custodial rights at the time of the removal or in the alternative, had the person acquiesced or consented?

30And lastly, would the child be placed at grave risk of harm if returned to the original jurisdiction?

31Applying the facts as they unfolded at this hearing, Mr. Heeley first submitted that the child was not wrongfully removed inasmuch as Ms. Bryntwick left with the child on October 12th with Mr. Hage's consent. The next consideration which flowed from the issue of removal is whether the child was wrongfully retained in this jurisdiction. He submitted that the final order obtained by Mr. Hage in the jurisdiction of California did not establish wrongful retention. In support of that position, he quoted from the case of Thomson v. Thomson 1994 26 (SCC), [1994] 3 SCR 551 (SCC). The court, in referring to this kind of order as a "chasing order", which is an order made ex post facto for the purpose of bolstering an application under the Hague Convention, stated the following from the headnote:

"...The issuance of a "chasing order" does not result in retention becoming wrongful... The custody order granted by the Scottish court... [to] the father... standing alone, [would not] have ground[ed] an application under the [Hague] Convention, as it could not, in itself, make the retention... wrongful."

32Mr. Heeley went on to say that the order was made after the removal and did not reflect the status quo before the removal inasmuch as the evidence clearly showed Ms. Bryntwick provided the vast majority of care for Mason and that Mr. Hage's participation and care for the child was significantly less due to his long work hours and his video hobby to which he admitted playing two to three hours a day, two to three days a week. In any event, Mr. Heeley submitted, that Mr. Hage appeared to be significantly relying on the chasing order, which the Supreme Court of Canada stated is inadequate and less than compelling and persuasive, to justify an order returning the child to the original jurisdiction.

33Mr. Heeley then submitted that the child has sufficiently settled in his new environment. In referring to the case of Garelli v. Rahma, 2006 13555 (ON SC) 28 RFL (6th) 455, (ON SC), he submitted that, in determining the issue of settled exception, the court held that certain aspects of the child's best interests must be taken into consideration. The court further stated and I refer to the headnote:

"...In short, the settled exception ought to apply where the policy in favour of entrusting the best interests of the child to the courts in the place of habitual residence is no longer a strong one in the circumstances of the particular case."

"...The concept of being settled is one of degree and requires a careful examination and assessment of the child's circumstances here and a balancing of them with the objectives of the Convention."

34Mr. Heeley went on to say that in finely balancing between the primary purpose of the Hague Convention and the child's best interests, the court looked at several factors, one of the main factors being whether the prompt return of the child can be accomplished. He submitted that in applying that principle to the facts of the case before this court, the prompt return of the child was no longer achievable since the child has now been in the jurisdiction for 20 months, similar to the circumstances in the Garelli case where the child was in the jurisdiction for over a year. As well, a status quo would be impossible to accomplish inasmuch as Ms. Bryntwick has never had a U.S. citizenship and she has not been able to return to the United States because Mr. Hage in fact had shredded the immigration application documents and she can no longer re-enter the country.

35Moreover, obtaining her citizenship has become even more difficult inasmuch as Mr. Hage has now divorced Ms. Bryntwick. As well, there was no evidence that the child in fact was abducted by Ms. Bryntwick and further, since Ms. Bryntwick had no way of returning to California to live there, this meant she would be separated from Mason whom she has raised for a little over three years.

36As well, Mr. Heeley submitted Ms. Bryntwick has suitable housing. She has been residing with her mother who has bonded with the child. Moreover, in view of the fact that Mason continues to have special needs, both Ms. Bryntwick and her mother have been actively participating in his assessments, his treatments, and he has been monitored by pediatricians and medical professionals who have been following him to monitor his progress.

37Turning to the last test, whether or not the child would be subject to risk of harm either physically or psychologically, Mr. Heeley submitted that firstly Mason would miss his primary caregiver, namely his mother. As well, Ms. Bryntwick and Mason only have Canadian citizenship. Further, if returned to California, Mason would be placed in Mr. Hage's care which would involve a plan where Mason would be living with Mr. Hage and his new girlfriend whom he has never met.

38Moreover, Mr. Hage has a history of alcohol abuse, which has led to blackouts and where he has exhibited violent behaviour. As well, there has been evidence of physical abuse in the home and, therefore, there would be concern that if Mason were placed in such an environment, he could be at risk of being a victim of those types of behaviours.

39In conclusion, Mr. Heeley submitted that this court find that Mason is sufficiently settled in this jurisdiction and that removing him from the jurisdiction would place him at serious risk of harm.

Reply Submissions by Mr. Hage

40In reply, Mr. Hage submitted that in view of the fact that he filed what he called an abduction case in the State of California prior to obtaining his final order, that in fact it is not a chasing order. He further submitted that although he agrees that the immigration application which he prepared on behalf of Ms. Bryntwick no longer applies "due to the court order for divorce finalized August 26th, 2013," that Ms. Bryntwick is allowed to enter the United States for 60 days with a passport and apply for a student or work visas, many have before.

41Regarding concern of his alcoholism, he further admitted that he has not attended Alcoholics Anonymous but in fact has his consumption of alcohol under control. He further submitted that the court need not be concerned about acclimatization by Mason, given his very young age.

Analysis and Conclusion

42The main focus of the Hague Convention Application is not the child's best interest, although a consideration of it in determining this application is unavoidable, but to determine the appropriate jurisdiction in which the issue of custody and access would ultimately be decided.

43The objects of the Convention are expressed in Article 1 as follows:

"a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) To ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

44Under Article 3 of the Hague Convention:

"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."

45Article 4 provides:

"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years."

46Under Article 5 of the Convention "rights of custody" are defined as including the right to determine the child's place of residence.

47Article 12, by way of summary states where a child has been wrongfully removed or retained in terms of Article 3, the authorities shall order the return of the child forthwith if less than a year has elapsed from the date of the wrongful removal or retention.

48Article 13, which appears to be an exception to Article 12, states that even if a court does find a wrongful removal or retention, the judicial authority of the State which is being requested to return the child has the power to refuse such a request if the person with whom the child is residing and who opposes the return is able to establish the following:

"a) the person, institution or other body having the care of the person of the child 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."

49As I see it, the issues before the court are as follows:

a) In which state was the child habitually resident?

b) Was the child wrongfully removed from the State of California?

c) Did the mother establish a settled intention to reside permanently in Ontario?

d) Did the father acquiesce in the removal of the child?

e) Would the child be at grave risk of exposure to physical or psychological harm or be placed in an intolerable situation if returned to California?

Habitual Residence

50Although the Convention mandates the return of any child who is "habitually resident" in a contracting nation immediately before an action that constitutes a breach of custody or access rights, interestingly, the term "habitual residence" is not defined under the Convention.

51Therefore, the court is obliged to determine the habitual residence of a child based on the facts and current case law.

52In the case of Csoke v. Fustos (2013) O.N.S.C. 2417 a case of the Ontario Superior Court of Justice, Mme. Justice C. Lafrenière, on the discussion of "habitual residence" referring to the case of Korutowska-Wooff v. Wooff, (2004) 2004 5548 (ON CA), 5 RFL (6th) 104 (ONCA) stated as follows:

"In Kurotowsaka-Wooff v. Wooff... the Ontario Court of Appeal stated, at paragraph 8:

The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J.(A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562 (H.L.) and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.). See Chan v. Chow 2001 BCCA 276, (2001) 199 D.L.R. (4th) 478 at paras. 30-34 (BCCA); Kinnersley–Turner v. Kinnersly-Turner 1996 1100 (ON CA), (1996) 94 O.A.C. 376 at paras. 19-20. The principles that emerge are:

• the question of habitual residence is a question of fact to be decided based on all of the circumstances;

• the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";

• 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.;

• a child's habitual residence is tied to that of the child's custodian.

53Inasmuch as the definition of "settled intention" forms part of the definition of "habitual residence," then it is necessary to define the expression "settled intention." In the case of A.H. v. F.S.H. (C.) 2013, ONSC 1308, Justice Kruzick encapsulates the definition of "settled intention" as follows:

"[T]here must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

54In the case before me, it cannot be disputed that the parties had planned to live in the State of California since they had resided there from April 2011 to October of 2012. However, the evidence also shows that the parties agreed that Ms. Bryntwick travel to Hamilton, Ontario with the child between October 12th and March of 2013. Therefore, it cannot be said that the child was wrongfully removed from the State of California at that time.

55The next issue to be determined is whether Mason was wrongfully retained in Hamilton, Ontario. This first requires the court's consideration of the status of the order obtained by Mr. Hage in the State of California on April the 8th, 2013. The second consideration is whether there is evidence to indicate that Ms. Bryntwick established a settled intention.

56In the case of Thomson v. Thomson (supra) the Supreme Court of Canada considered such an order. In that case, the mother obtained interim custody of their son Matthew on November 27th, 1992 from the Stranraer Sheriff Court in Scotland with both parties represented. The mother then travelled to Manitoba with her child with the intention to remain in that province. On February 3rd, 1993, the mother applied for custody of Matthew in Manitoba. On that same day, the custody hearing from which the interim order had been given resumed in Scotland. At the latter hearing, the Respondent husband was granted an order for custody. The Supreme Court of Canada found that the husband's order was in fact a chasing order and concluded that issuance of a chasing order does not result in retention becoming wrongful. "Rather, wrongful retention begins from the moment of the expiration of the access period where the original removal was the rightful custodian's consent." The court went on to say that the custody order granted by the Scottish court to the father, standing alone, would not have grounded an application under the Hague Convention as it could not in itself make the retention wrongful. Applying that definition to the case before me, Mr. Hage obtained his temporary order in the Superior Court of California after Ms. Bryntwick left the jurisdiction, thereby making it a chasing order and, therefore, it does not in and of itself establish wrongful retention.

Did Ms. Bryntwick Establish a Settled Intention?

57In my consideration of the evidence, I find that it is clear that Ms. Bryntwick and Mason have been residing with Ms. Bryntwick's mother in this jurisdiction since October of 2012. The child was attending daycare until Mr. Hage refused to provide Ms. Bryntwick with Mason's vaccination history from the United States. As well, Mason in fact has special needs and is being monitored by medical professionals to deal with his communication and development skills. Ms. Bryntwick is currently receiving government financial assistance from Ontario Works and both Ms. Bryntwick and Mason are Canadian.

58As well, given Mr. Hage's decision to shred the documents concerning Ms. Bryntwick's application to become a U.S. citizen, it is not possible for the prompt return of the child as required by Article 12 of the Hague Convention. In other words, the passage of time in my opinion is in favour of the child remaining in this jurisdiction.

Is There Evidence to Suggest that Mr. Hage Acquiesced to the Child Remaining in this Jurisdiction?

59If I am wrong about my conclusion with respect to the settled intention established by Ms. Bryntwick, does this court have any evidence as to Mr. Hage's acquiescence that the child remain in this jurisdiction? In the case of Katsigiannis v. Kottick-Katsigiannis, 2001 24075 (ON CA), Osborne, J.A. in delivering the majority decision and in relying principally on English case law, reiterated the definition of active and passive acquiescence:

"Active acquiescence involves some step by the aggrieved parent that is demonstrably inconsistent with insistence on the summary return of the child to the place of the child's habitual residence.

Passive acquiescence occurs when the aggrieved parent allows enough time to pass without insisting on summary return."

60Justice Osborne goes on to say in paragraph 41 of the case:

"Thus, even if a wronged parent has never in fact acquiesced in the child's removal or retention, if he or she has said or done something which is clearly and unequivocally inconsistent with the summary return of the child, the wronged parent's actual subjective intention will be disregarded."

The onus to establish such acquiescence is on the mother.

61In applying this definition to the facts before me, I turn to the testimony of Mr. Hage. In admitting that the parties agreed to divorce on or about December of 2012, and in referring to the immigration application which he prepared on behalf of Ms. Bryntwick, he testified as follows:

"She did not have them [immigration documents in October 2012 when she left, and]

And during the week break between the two courses, I was intending to submit them. But prior to the end of the first course that I completed, is when our relationship deteriorated so I shredded the documents."

The documentation referred to by Mr. Hage is Ms. Bryntwick's immigration application. This act by Mr. Hage combined with his knowledge that he knew that Ms. Bryntwick would not be allowed to return to the United States without proper immigration papers with the child or, in the alternative, an immigration status permitting her and Mason to return to the United States, I find is a clear demonstration of Mr. Hage's active acquiescence.

Grave Risk of Exposure to Physical or Psychological Harm

62In addition to the above reasons which I find establish that the Superior Court of Ontario is the proper forum for the determination of custody and access, there is what I consider to be in this case the inextricable consideration of Mason being exposed to the risk of serious harm whether it be physiological or psychological. Once again, in reviewing the evidence, firstly Ms. Bryntwick is not entitled to reenter the United States with Mason. Although the child may be permitted reentry following the application of immigration prepared by Mr. Hage on behalf of Mason, nevertheless Mason, who is a little over three years old and has known only his mother as his primary caregiver, would be abruptly separated from her if this court ordered him to be returned to the State of California.

63Moreover, given that there is a definite uncertainty as to the success of Ms. Bryntwick being allowed to enter the United States, the child would be separated from his mother for an indefinite period of time. As well, given that Mason is currently being monitored by medical professionals regarding his communication development skills, to remove him from his medical care which appears to be essential, as well as from his caregiver, I find, would place him at risk of serious harm if not physiological then possibly psychological.

64As well, this court takes little comfort in Mr. Hage's submission that Ms. Bryntwick would be allowed to enter the United States for a 60-day period and apply for a work visa, the child would return to California, but this would mean uprooting Mason from a settled environment.

65Moreover, evidence of Mr. Hage's blackouts and memory loss following his excessive consumption of alcohol, remain unaddressed. And although Mr. Hage has testified that he has had his consumption of alcohol under control, there is no objective evidence to support that position. Given the fact that this particular issue has not been thoroughly investigated and given that there is no way of knowing how it may impact upon Mr. Hage's ability to parent the child, I find that returning the child to an environment where the issue has been unexplored would again be to place him at risk of either psychological or physiological harm.

66Lastly, although Mr. Hage has argued that Mason could be the victim of psychological harm if he was not permitted to develop a relationship with Mr. Hage's extended family, I find there is no evidence that would indicate that Mason has developed any significant relationship with Mr. Hage's extended family. In any event, once the issue of custody and access has been determined in this jurisdiction that concern may be addressed.

67Therefore, for all of the above reasons, I am satisfied that the Hague Convention does not apply. Accordingly, Mr. Hage's Hague Application is dismissed.

68I further find that the proper forum for determining the issues of custody and access relating to the child Mason is Ontario. The child was not wrongfully removed from the State of California. The child has established a settled intention to remain in Hamilton, Ontario; and returning the child to the State of California would expose the child to grave risk of physical or psychological harm and would place the child in an intolerable situation.

69As well, I invoke clause (b) of Article 13 and, therefore, I am not prepared to order that the mother return the child to California.

70I further order that the child will not be permitted to leave the jurisdiction of Hamilton-Wentworth without the consent of Ms. Bryntwick.

Mazza, J.