CITATION: Gavriel v. Tal-Gavriel, 2015 ONSC 4181
COURT FILE NO.: 379/15
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ERAN GAVRIEL
Applicant
- and -
MORAN TAL-GAVRIEL
Respondent
J. J. Chaimovitz, for the Applicant
R. Brant and M. Ruhl, for the Respondent
HEARD: June 22, 2015
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[1] This application is brought pursuant to the Hague Convention on the Civil Aspect of International Child Abduction (The Convention). The issue to be determined is the habitual residence of the parties’ child, Ariel Meir Gavriel, born December 1, 2013.
[2] The applicant submits that the child’s habitual residence is Israel. Alternatively, he argues that if the child’s habitual residence is Ontario, then his consent to relocate to Ontario, as a family, was fraudulently obtained by the respondent. The applicant argues that the respondent had decided to separate from him prior to their relocation from Israel to Canada and withheld her decision from him until after relocation.
[3] On a procedural point, the respondent not only filed her own affidavit but also filed an affidavit from her mother, Talia Tal, and from the child’s nanny, Laura Stoton. Mossip J.’s endorsement did not account for third party affidavits and only referred to the cross examination of the parties. I ruled that it was the intent of Mossip J. that all affiants could be cross examined and if the respondent was relying on these affidavits, the affiants were to be produced for cross examination. On consent, the respondent was permitted to withdraw the affidavit of Laura Stoton and Talia Tal, along with the parties were cross examined.
THE FACTS
[4] The parties and the child were all born in Israel and are citizens of Israel. The parties were married in Israel on June 27, 2013 and separated on September 19, 2014, when they were living in Guelph, Ontario.
[5] Prior to coming to Ontario the parties were both gainfully employed in Israel where they owned a home.
[6] The respondent was a veterinarian, graduating from a university in Israel. She wished to further her education and was, in April, 2014, accepted for graduate work and a three year residency program at the School of Veterinarian Medicine at the University of Guelph.
[7] The applicant supported the respondent’s wish to further her education and it was agreed the family would move to Guelph. The applicant quit his job of 8 years, as did the respondent. The applicant was able to obtain a Canadian work visa.
[8] The parties moved to Guelph, Ontario on June 24, 2014.
[9] Upon arrival the parties hired a nanny to take care of Ariel during the day. The applicant could then explore job prospects while the respondent was at school.
[10] On June 30, 2014, the partied entered into a tenancy agreement with the University of Guelph to rent a town house unit on a month to month basis. Presumably the unit was available to them as long as the respondent was registered as a student. The tenancy agreement was signed by both of the parties.
[11] On or about August 6, 2014, the parties signed a three year lease for a 2014, Acura MDX motor vehicle.
[12] It would appear they were putting into place the necessities and logistics required by them to live in Canada for at least three years.
[13] In this regard the applicant deposes that during their discussions about coming to Canada it was agreed that if the applicant could not find a job or was unhappy he could return to Israel with Ariel while the respondent remained to complete her program of studies. This allegation is vigorously denied by the respondent who stated she would never agree to any arrangement which would take Ariel away from her.
[14] The applicant deposes that he believes the respondent formed the intention to leave before the parties came to Canada.
[15] The respondent denies this allegation and testified that while there were problems in the marriage before the parties moved to Canada, it was her hope and belief that the move to Canada would be a fresh start for both of them and their marriage. The parties have no family or friends in Canada and accordingly would have only each other to rely on and communicate with.
[16] It is the evidence of the respondent that on August 4, 2014, when using the applicant’s laptop computer, she discovered that applicant was using sex-focused dating websites with the goal of meeting women. It was this discovery that lead the respondent to confide in her mother and begin the legal process of divorce, seeking custody of Ariel and child support.
[17] On or about September 4, 2014, the respondent’s mother Talia Tal arrived in Guelph to offer assistance and support to her daughter.
[18] Exhibit D to the affidavit of the respondent, sworn, June 15, 2015, is a copy of the applicant’s profile page on a website entitled, “Just hookup”. The profile headline is “The sky is the limit”. Under the heading, “tell us a little about yourself, part of the applicants entry reads, “Pure Sex, No Games.
[19] Exhibit E to the same affidavit are two emails. One is from someone using the name, Sopia Wentir and is addressed to the applicant. It reads,
Oh babe. Lemme know where and when we meet. ok so I can prepare myself and I will brought all thing’s we need.
[20] To that the applicant responded,
1:30 pm, is it ok? Stone rd mall? Do you want me to pick you up from somewhere else? Do you have a phone number?
[21] As a result of this discovery, the respondent deposes that she made the decision to end the marriage. She could not trust the applicant. She instructed an Israeli lawyer to commence divorce proceedings which were filed, in Israel, on September 18, 2014. On the next day the respondent confronted the applicant with what she had found and advised him of the divorce proceedings.
[22] An argument resulted from the confrontation and the respondent testified that the applicant went upstairs which resulted in a further confrontation with the respondent’s mother, Talia Tal. Ms. Tal alleges that during this confrontation the respondent exposed his genitals to her and said something to the effect of, “you want to suck, suck on this.”
[23] The applicant denied exposing himself but did not deny what is alleged he said.
[24] The police became involved and the applicant was charged with indecent exposure. After a trial, in March, 2015, he was convicted of the offence and was sentenced to a conditional discharge. Notwithstanding the conviction the applicant continues to deny the allegation.
[25] As a result of the arrest the applicant was removed from the home.
[26] The respondent returned to Israel on December 31, 2014, to attend to what are referred to as, preliminary hearings, in the family and religious courts. She deposes that she only planned to be away for a week so she left Ariel with her mother in Guelph. The applicant alleges she left Ariel in Canada to ensure an order was not made restricting the child from being removed from Israel. This is denied by the respondent.
[27] At exhibit M of the respondent’s affidavit sworn June 15, 2015, is a certified translated copy of the decision of the Israeli Family Court. The court notes that both parties had filed a claim for custody of the child. The applicant also sought an order for the return of the child to Israel.
[28] The ruling notes that on December 3, 2014, the following endorsement was made.
This Court has no jurisdiction to assume deliberations on the custody applications and the return of the Minor in a claim of this kind and the parties should consider their legal steps.
[29] The court went on to say that,
Notwithstanding the forgoing, the secretariat should set a date for hearing for one month from today. A considerable weight shall be given to the absence of one of the parties.
[30] The secretariat then set the January 1, 2015, hearing date.
[31] The ruling also notes that on December 31, 2014, the applicant sought a stay of exit against the Minor.
[32] In the discussion portion of the ruling the Israeli court noted that the parties mutually agreed to move to Canada. The court declined the applicant’s request that the respondent be restrained from leaving Israel.
[33] The court also referenced the Hague Convention and was of the opinion that the issue of child abduction should be, in the words of the translation, “discussed prior to the deliberations of the Minor’s custody”.
[34] The respondent, in regards to why she started an application in Israel, testified that she understood from searching the internet that because she had not lived in Ontario for at least a year and therefore she could not start divorce proceedings in Ontario. She thought a claim for divorce would include a claim for custody and support.
[35] On cross-examination of the respondent the suggestion was put to her that the reason she used an Israeli lawyer was that she considered Israel to be her home. To this suggestion the respondent answered by saying it was, “partially true”.
CREDIBILITY
[36] After reviewing the evidence, including the cross-examinations, I find that wherever a conflict exists between the evidence of the applicant and the respondent, I find the respondent more credible and accept her evidence over that of the applicant.
[37] I say this for a couple of reasons. The applicant testified that, while he admitted his involvement in the hookup website, he had no intention of meeting other women. He testified that he knew that the website only lead to another website where after taking your credit card information, would then let you watch other women, presumably in some sexually graphic activities. He testified he was on the website because he was bored, at home, without a job.
[38] This explanation is rejected in the face of his profile and the emails. The purpose of the website and the applicant’s profile was to meet women for sexual purposes. From the emails it is clear the applicant was trying to arrange a meeting with someone calling herself, Sopia. The Stone Rd Mall reference by the applicant in his email is a retail mall in Guelph.
[39] In regards to the allegation of indecent exposure a court concluded beyond a reasonable doubt that the incident occurred. As well it is inconsistent to deny the exposure of his genitals but not deny what is alleged he said to his mother-in-law.
[40] As noted, the applicant testified that it was a condition of their move to Guelph that if he was unhappy he could return to Israel with the child. This is inconsistent with him signing a three year vehicle lease and with him quitting his long standing job in Israel to come to Canada. If the move was conditional I would think different arrangements would have been made in Israel such as a leave of absence from employment in order to protect his job in the event the applicant returned to Israel.
[41] The fact is the parties left their jobs, home, family and friends to come to Canada for at least three years. I find the move was unconditional and there was no agreement which would allow the applicant to return to Israel with the child, leaving the respondent in Canada to complete her studies.
[42] I also conclude that the respondent had no intention to separate from the applicant at the time of their move to Canada. This allegation by the applicant is not borne out by the evidence. While the marriage had some problems, the problems did not reach the critical point until August, 2014.
THE LAW
[43] In my review of the facts I am focussing on the facts that assist me in determining, credibility and habitual residence. I am not required to make any determination of the best interests of the child nor comment on the conduct of the parties within the marriage.
[44] One of the objects of the Convention is to secure the prompt return of children wrongfully removed or retained across international borders. Convention proceedings are not to address the child’s best interests.
[45] The Convention is intended to ensure that custody and access rights are determined under the laws of the proper jurisdiction. The Convention is not to be used to determine the issue of custody but rather is a means to determine the jurisdiction where the issue of custody is to be determined.
[46] The proper jurisdiction is where the child is habitually resident. The determination of habitual residence is fact base determination (Csoke v. Fustos, [2013] ONSC 2417 para. 247).
[47] Under the Convention the court must determine where the child was habitually resident at the time of the removal or retention. Habitual residence is treated as the “sole connecting factor” triggering a child’s return.” (Jackson v. Graczyk, 2007 ONCA 388).
[48] Habitual residence is not defined in the Convention but has been judicially determined to mean the place where the person resides for an appreciable period of time with a settled intention. A child’s habitual residence is tied to that of his custodians (Korutowska-Woof 2004 CanLII 5548 (ON CA), [2004] O.J. No. 3256, para.8).
[49] Settled intention is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, education (Korutowska-Woof, supra, para. 8)
[50] A removal or retention will be wrongful where it breaches the custodial rights of a person (Article 3). In this case, at the time of separation, both parties had custodial rights. Both were exercising the rights of custody.
[51] In Csoke v. Fustos, supra, at paragraph 311, C. Lafreniere J. states,
While the case law is clear that there is no minimum amount of time required to establish a habitual residence, three days is a very short period of time. It has been suggested the time necessary to establish habitual residence may be as short as one day.
[52] As noted in Ellis v. Wentzell-Ellis, 2010 ONCA 347, paragraph 23, to establish habitual residence a party does not have to establish permanent residence and at paragraph 34 the court noted that an intention to return in the future to the country you left does not detract from establishing habitual residence.
[53] A.H. v. F.S.H. (C.), [2013] O.J. No. 1011 is a decision of Kruzick J. of the Ontario Superior Court. At paragraph 13, the court’s task was noted to be, to determine the intention of the parents as of the last time their intentions were shared. In the case before me that time is the date of separation, September 19, 2014.
[54] At paragraph 52, Kruzick J. references two decisions which he says explain settled intention or purpose as follows:
There 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 the law requires is that there is a settled purpose. This is not to say that the “propositus” intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for a limited period. Education, business, or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly describes as settled.
[55] Finally in Rey v. Getta 2013 BCCA 369, para. 31, as noted in Allibhoy v. Tabalujan [2015] B.C.J. No. 39, paragraph 20 reads:
An habitual residence has been determined to be the place where children, who are wrongfully removed or wrongfully retained, presided for an appreciable period of time under the settled intention or purpose of their parents. A settled intention requires a degree of settled purpose that may include one or more several purposes and be specific or general. While the duration of the residency may be a relevant factor, a settled purpose does not require a lengthy stay, to a fixed or limited period, or even as short as one day. Settled intention simply requires that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
[56] In Fasiang v. Fasiangova 2008 BCSC 1339, paragraph 60, Martinson J. said:
A settled intention or purpose requires that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. But all that is required is that there is a settle purpose. There is no requirement that there be an intention to settle indefinitely.
ANALYSIS
[57] Leaving aside for a moment the respondent’s admission that it was partially true that she started the divorce proceedings in Israel because she considered it “home”, the facts establish that the child’s habitual residence, at the time of separation, was Guelph, Ontario, Canada. Apart from family and friends the parties cut all ties to Israel when they moved to Guelph. They gave up good jobs and upon arriving in Guelph, set about establishing their residence in Guelph.
[58] They executed a tenancy agreement and leased a vehicle for 3 years. The applicant commenced looking for a job and to allow him to do so and to allow the respondent to continue her education for a three year period, they hired a nanny.
[59] There was a sufficient degree of continuity to say that their settled intention was to reside with their son, Ariel, in Guelph, Ontario, for at least a three year period, an appreciable period of time.
[60] The separation occurred approximately three months after coming to Canada. While this cannot be said to be a long time it does not detract from the settled intention.
[61] The settled intention and habitual residence existed prior to the decision of the respondent to end the marriage.
[62] Returning to the “partially true” admission of the respondent, counsel for the applicant, in his submissions, relies heavily on this admission. He submits the admission is almost conclusive on the issue of habitual residence. Certainly the admission goes to the principle of settled intention, but is it enough to override the other facts which in my opinion establish Ontario as the parties’ habitual residence?
[63] In my opinion, while the admission is important, it does not alter the habitual residence of the parties and their son. Counsel for the respondent submitted that the idea of home can evoke an emotional response. To some extent that is true. I also take note that the respondent clearly wanted to move with all haste to obtain a divorce and could not do so in Ontario as she had not resided there for the necessary period of time.
[64] However, the fact that Israel may be the parties’ permanent home, the jurisdiction to which they will return, does not detract from habitual residence and on September 19, 2014, Guelph, Ontario Canada, was their habitual residence. A three year plan of study is a temporary residence for an educational purpose, a scenario recognized in the case law as amounting to a habitual residence.
[65] They had formed the settled intention in that their purpose of moving to Guelph was to allow the respondent to further her education even if for a limited period of time. The habitual residence test does not require a finding of permanent residence or domicile and on the facts before me and on the law presented I am satisfied.
RULING
[66] I find that the habitual residence of the parties and their son Ariel, born December 1, 2013, is Ontario, Canada, which is the proper forum to determine custody and access. The Hague Convention application is dismissed.
COSTS
[67] If the parties cannot agree on costs they may make written submissions within 21 days of the release of this ruling. The submissions cannot be longer than three pages together with a bill of costs.
Bielby J.
Released: June 29, 2015
CITATION: Gavriel v. Tal-Gavriel, 2015 ONSC 4181
COURT FILE NO.: 379/15
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ERAN GAVRIEL
Applicant
- and –
MORAN TAL-GAVRIEL
Respondent
REASONS FOR JUDGMENT
Bielby J.
Released: June 29, 2015