ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN PAUL BALEV
S.M. Bookman and C. Stankiewicz, for the Applicant
Applicant
- and -
CATHARINE-ROSE BAGGOTT
M. Stangarone and K. Maurina, for the Respondent
Respondent
James Stengel, for the Office of the Children’s Lawyer
HEARD: March 9, 2015, April 21, 2015 and August 24, 2015
The Honourable Madam Justice W.L. MacPherson
1This is an application pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Convention”) commenced by the applicant father for the return of the children, Brian Balev and Mary Balev.
2The father seeks a declaration that the children are being wrongfully retained in Ontario by the respondent mother and that such retention constitutes a wrongful retention of the children within the meaning of Article 3 of the Convention and pursuant to Article 15 of the Convention. The father also seeks an order that the children be returned to their habitual residence in Dreieich, Germany, and an order for police enforcement, if necessary.
3The respondent mother seeks an order dismissing the father’s Hague application. It is her position that the children came to Ontario with the consent of the father and there has been no wrongful retention. The children’s habitual residence is Ontario and the children have now settled in this environment having been here for more than two years. Even if there has been a wrongful retention, the children should not be returned to Germany as they object to doing so.
4If the mother is successful, she seeks to have the Ontario custody proceedings bearing Court File No. 266/14 reinstated.
The Facts
5The parties have submitted extensive affidavit evidence. While there are some points that remain in dispute, the facts relevant to the matters being determined by this court, are relatively clear.
6The parties were married in Toronto, Ontario on November 4, 2000. They moved to Germany in 2001 and attained resident status.
7The father was employed on a full-time basis in Germany. The wife was employed off and on while the parties lived in Germany.
8The parties have two children, Brian Balev, born September 1, 2002, and Mary Balev, born December 17, 2005. Both children were born in Frankfurt am Main, Germany. However, both children are Canadian citizens.
9The father is a Canadian citizen, although he was born in Bulgaria. The mother is a Canadian citizen, having been born here.
10The parties jointly purchased a home in Dreieich, Germany in 2008 where the parties resided with the children. The father continues to reside in this home.
11The children had lived in Germany all of their lives and until April 2013 they had primarily attended school in Germany. There were two exceptions: Brian had attended Alexandra School in St. Catharines, Ontario in 2006 when the children and the mother were in Canada for an undisclosed period of time; and in October 2010, the children and the mother came to Canada for a two week holiday. They remained in Canada and the children were enrolled in Alexandra School (Mary in kindergarten and Brian in grade 3) where they continued until January 2011. The father came to Canada in December 2010. He provided a notarized letter dated December 30, 2010 confirming his consent that the children could travel with their mother without time or distance restrictions of any kind.
12The parties and the children did return to live in Germany in January 2011, where the children were re-enrolled in school. The parties separated shortly thereafter and family court proceedings were commenced in Germany.
13In April 2011, the father was granted interim custody of the children. The father states that the children were in his custody and that the mother only saw the children on alternating weekends and one evening per week. The mother states that she continued to have the children an equal amount of the time.
14By the end of September 2012, the parties had resumed residing together in the family home. The wife states that the parties had resumed a romantic relationship as early as April 2012 and that in September 2012, they reconciled. The father states that there was no reconciliation and that he only took the mother and the children into the matrimonial home out of concern for their mother’s state of mind (she had threatened to commit suicide) and concern for the children’s wellbeing.
15Nevertheless, the parties agree that they were residing together with the children from October 1, 2012 until April 2013.
16The children and the mother moved to Canada on April 19, 2013. The children began attending school at Alexandra Public School in St. Catharines on April 23, 2013.
17The father states that the parties separated on April 19, 2013. The mother states that she was unaware that the marriage was over and while the circumstances would mean that they would be living apart from one another, there was no discussion of the marriage ending.
18According to the mother, it was the father who had initially suggested that she take the children to Canada. The father states that it was the mother who initially raised the topic of the children attending school in Ontario, but the agreement was that the move would be temporary and for one school year only.
19The mother stated that the plan was that she and the children would come to Canada to attend school; the father would come to Canada for Easter and Christmas; and she and the children would spend the summer in Bulgaria and Germany, returning to Canada for the next school year. She cited numerous reasons for the move – Mary was having difficulty in school and the parties wanted her to be assessed early and get academic help that was not available in Germany; early in February 2013, the parties had received large invoices for the court costs and expert reports which were to be shared equally and unlike in Germany where the mother’s income was uncertain, the mother would be able to earn an income in Canada to be able to pay her share of the debts arising from the court proceeding.
20In furtherance of this plan, the father signed a Consent Letter for Children Travelling Abroad confirming his consent for the children to visit Canada from July 5, 2013 until August 15, 2014. Subsequently and on April 2, 2013, the father signed a notarized letter transferring physical custody of the children to the mother and giving permission for the mother to travel to, and reside in, Canada with the children until August 15, 2014, which period of residence could be extended. The father stated that he provided this consent at the request of the mother and for the purpose of enrolling the children in school in Ontario and did so without the benefit of legal advice.
21On April 16, 2013, the mother signed the necessary forms to advise the local municipality in Germany of their departure for tax purposes and also signed forms to de-register the children from their German school. The children have remained in Canada since April 19, 2013.
22The father has maintained contact with the children through once per week telephone/Skype sessions. The first physical visit by the father in Canada took place in November 2013 for ten days. He had been expected to come to Canada in May 2014 but did not do so. The next physical visit by the father lasted ten days and took place in March 2015.
Chronology of the Hague Proceedings
23This matter has been delayed in getting to a hearing in the Ontario Superior Court. There were multiple reasons for the delay as set out below.
24Unbeknownst to the mother, one week after their departure for Canada, on April 26, 2013, the father had emailed the German Justice Department enquiring about steps to deal with an abduction of the children. On May 6, 2013, he was advised by the Central Authority for International Parental Custody Disputes that the children’s retention was not unlawful until his consent had expired.
25On March 17, 2014, the father revoked his consent to the children remaining in Canada by sending an email to the mother and insisting that they be returned to Germany on or before March 31, 2014, or she would be charged with abduction.
26The father commenced a Hague application through the Central Authority in Germany on April 11, 2014, which application was received by the Ontario Central Authority on May 5, 2014. The father then commenced the Hague application before this Court on June 26, 2014.
27On the return date of the Hague application on July 17, 2014, a consent order was made which provided as follows:
i) the mother was restrained from removing the children from the Province of Ontario pending the hearing and disposition of the application;
ii) if mother wishes to travel with the children within the province, she is required to provide the father’s counsel with details of the travel; the passports for herself and the children were to be deposited with her counsel; and
iii) a case conference is scheduled on August 8, 2014.
28On August 8, 2014, the mother filed her Answer to the Hague Application and a case conference was held on the same day.
29Subsequently on September 15, 2014, on the consent of both counsel, an Order was obtained to have the matter transferred to Toronto. However, as proper procedures had not been followed in seeking permission of that jurisdiction and as there was no connection to Toronto other than that both parties’ counsel practiced there, on January 28, 2015, the matter was transferred back to St. Catharines.
30On February 6, 2015, counsel for the father requested that the matter be set for hearing which was done expeditiously, with a hearing date of March 9, 2015 being provided to counsel.
Court Proceedings in Germany
Prior to Hague Application
31These parties are not strangers to litigation. Since their initial separation in January 2011, continuing to the date of hearing of the Hague Application, there have been multiple court proceedings in Germany.
32In the District Court of Langen (Hessen) Family Court (“District Court”), both parties sought custody of the children, Brian and Mary. Within that proceeding and on April 28, 2011, a provisional order of the court granted the father physical custody of the two children on an interim basis.
33Within that proceeding on November 7, 2011, the District Court requested psychiatric reports of each of the parents and of the children. It appears the report was ordered on November 7, 2011 but was not provided until August 31, 2012. Excerpts of the reports translated were attached by the father to the Hague Application. Nowhere in the record did the father provide complete copies of the reports nor translations of same.
34The next ruling of the District Court was made on October 30, 2012 which indicates the proceedings have been settled and the cost of the proceedings will be split by the parties. In its reasons, it states that the parties have unanimously declared the proceedings as settled, due to the fact that a common household has been re-established. In view of the reconciliation, the costs will be shared. This ruling was not referenced by the father in his Hague Application.
Subsequent to Hague Application
35On March 11, 2014 (four months prior to the August 15, 2014 date included in the father’s consent), the father requested a resumption of the custody proceedings in the District Court in Germany seeking parental custody of the two children and requesting a Guardian ad Litem be nominated to act for the children. The mother did not immediately receive notification of this having been done.
36The mother did respond to the resumption of this proceeding on July 14, 2014. It is apparent from that response that there were multiple reports from the Guardian ad Litem appointed on behalf of the children throughout that proceeding. In addition to the child and parent psychiatric assessments referred to by the father, there were additional psychiatric evaluations and psychiatric assessments filed with the court.
37A ruling was issued by the District Court on August 13, 2014 and, following oral argument, an interim order was made such that the right to determine the place of residence of the children was transferred to the mother with costs of the proceeding to be shared. In its reasons, the court stated:
In accordance with section 1671 of the BGB (Civil Code) the right to determine the place of residence in respect of the two children shall be transferred to the children’s mother for the time being. In this decision it was taken into account that the children have been living in Canada for the past 1-1/2 years, 1 year of which with the consent of the children’s father. A temporary change of residence from Canada to Germany would not be in the best interests of the children and is not advocated either by the guardian ad litem or by the child welfare office.
With regard to the parenting deficits of the children’s mother – as alleged by the children’s father – these were already present at the time when the children’s father gave his consent to their residence in Canada. The children’s situation, their wishes and their needs are not known at present. These must be determined and evaluated within the framework of the pending main proceedings – with the possible involvement of international organizations. For the final decision, it will be necessary to evaluate what another change of residence would mean for the children.
Until a final clarification and decision is reached, the children are to remain in Canada in their mother’s care. Due to the fact that the children’s parents could not agree on this point, the right to determine the place of residence is transferred to the children’s mother for the time being.
38The father appealed the District Court order to the Higher Regional Court Frankfurt am Main (the “Higher Regional Court”). On September 15, 2014, that court issued a ruling as follows:
We wish to point out that the District Court’s ruling has no legal validity and needs to be amended. The mutual applications for an interim order are rejected – insofar as they have been maintained. The overriding reason is that a German court does not have international jurisdiction, because the children do not have the German nationality and already had their habitual residence in Canada when the summary proceedings were initiated. Furthermore, Canada did not enter into any international agreements other than the HKU (Hague Convention on International Child Abduction). Therefore, I cannot see on what grounds the international jurisdiction of a German court might be based. I would also like to point as a precaution that with regard to the German courts, the principle of perpetuatio fori, i.e. changes occurring afterwards have no influence on jurisdiction, would not be applicable. It is thus irrelevant whether in view of the parental custody proceedings pending in Canada a conflicting pendency might (also) prevent the issuing of an expedited ruling by the German courts.
39In that ruling, the parties were given an opportunity to withdraw their custody applications before September 22, 2014, which both parties did.
40Subsequent to requesting custody of the children in the District Court, on June 16, 2014, the father also applied to the District Court for a Certificate of Illegal Residence pursuant to Article 15 of the Hague Contention. On November 6, 2014, the District Court issued its ruling such that the application submitted by the father for the issue of a Certificate of Unlawfulness was rejected and the father was ordered to pay costs. In its reasons, the court indicated the application was admissible but not factually justified:
This court has international jurisdiction, since the matrimonial and custody proceedings are pending at a local court.
Furthermore, it was established in a letter from the Federal Ministry of Justice dated 04-11-2014 that a Certificate of Unlawfulness based on Article 15 of the HKU Hague Convention on International Child Abduction had been requested. Therefore, a legitimate interest in submitting this application can be answered in the affirmative (see Higher Regional Court of Nuremberg dated 01.09.2008 under file No. 7 UF. 835/08).
However, the pre-requisites for issuing such a certificate are not present.
This would be issued, if the child – in this case the children – had been removed to Canada unlawfully or are being retained there. However, in view of the consent given by the children’s father on 02.04.2013 the alleged unlawful removal of the children to Canada is indisputably denied.
On 17.03.2014 the children’s father withdrew his consent, whereupon the children’s mother refused an immediate return of the children. However, this does not constitute an unlawful retention.
A child is considered to be unlawfully retained in a contracting member state, if the child’s habitual place of residence is in a different contracting member state and it has been taken from there to the first-named contracting member state – initially under unlawful circumstances – and the child’s continued sojourn there becomes unlawful (Hamm Higher Regional Court, FamRZ (Family Law Gazette)1999, FamRZ 1999 page 948, FamRZ 1999, 949; Rausch in: Weinreich/Klein, Family Law, 2nd edition, appendix II to art. 21 EGBGB (Introductory Act to Cifil Code), art. 5 HKIntU (Hague Convention on International Child Abduction) para. 10).
However, the children’s habitual place of residence is no longer in Germany but became established in Canada. If a habitual place of residence has become established in a different state, this does not constitute an unlawful retention (see Hamm Higher Regional Court ruling dated 07.08.2008 – 11 UF 135/08); MunchKommBGB (Munich Civil Code Commentary)/Siehr, 5th edition, Hague Convention on the civil aspects of international child abduction (HEntfU), art. 3 para. 39).
The habitual place of residence represents the children’s geographical and actual centre of life. By this we mean the place or the country, in which the majority of ties of the person in question, i.e. their centre of existence, are located. Prior to the consent withdrawal, the children had been living in Canada for a year. It is expected that after six months, young children will become attached to a place of residence. Apart from the length of time there are other circumstances which indicate the children’s permanent attachment to the place of residence. Both children have become integrated linguistically and personally, their maternal grandparents live near-by and they attend schools in Canada.
41The father appealed the Article 15 District Court decision to the Higher Regional Court in Frankfurt am Main.
42On January 9, 2015, the Higher Regional Court released a comment stating that the applicant’s appeal has no chance of success as the appeal court shares the opinion of the District Court. The court indicated:
The two children had their habitual place of residence in Canada, since in such a case the requested certificate of unlawfulness in accordance with Art. 15 of the Convention cannot be granted.
On the relevant date when the proceedings were initiated (July 30, 2014), the children’s place of residence was already established in Canada. This was also the case on March 17, 2014, since by then the children had already spent 11 months in Canada. Even after considering all the individual circumstances and the criteria taken into account in this case, including the original time limitation of the consent, the fact remains that at the time of the retraction, the children were already settled in Canada, and their integration was facilitated not only by the fact that they were Canadian citizens, but by various other factors (the appellant had granted his permission as far back as October 2010).
43The Higher Regional Court gave the applicant an opportunity to withdraw the appeal to avoid court costs and instead his counsel submitted more arguments to support the appeal. On January 27, 2015, the Higher Regional Court stated:
The option of withdrawing the application dated June 19, 2014 exists if a legal viewpoint as to the inadmissibility of the application for a certificate of unlawfulness is maintained. In such a case the Senate would most likely annul the contested ruling of the District Court dated November 06, 2014 with reference to the withdrawal of the application.
If the application is not withdrawn, then the Senate would have to consider whether to accede to the submitted Canadian request (the letter from the central authority dated November 04, 2014 mentions this) and whether the District Court’s ruling should be annulled due to absence of the need for legal protection, or whether this is immaterial since the certificate of unlawfulness would not be issued for other reasons – the way the Higher Regional Court of Nuremberg proceeded in the decision cited by you, which is more likely. A rejection of the appeal would be the likely result.
44Subsequently, the father withdrew his application for a certificate of unlawfulness. On January 30, 2015, the Higher Regional Court made a ruling that “the decision of the District Court of Langen (Hessen) dated November 6, 2014 has been retracted, following the withdrawal of the application dated June 19, 2014.” The father was ordered to pay the costs of the Article 15 proceedings as well as the costs of the appeal proceedings.
Subsequent Steps in the Hague proceeding
45It was only after all of those avenues in Germany had been exhausted, and on February 6, 2015. that the father resumed the Hague application in Ontario and the hearing of the application was held on March 9, 2015 based on the affidavits filed by the parents.
46Subsequent to the hearing of this matter and after further review of the materials filed, on March 26, 2015, counsel were directed to attend on April 21, 2015 to make further submissions as to whether or not the Office of the Children’s Lawyer (“OCL”) should become involved on behalf of the children, Brian and Mary.
47Following those submissions and on April 21, 2015 an order was made requesting the OCL to become involved and to do so on an expedited basis. The father had objected to such an order being made as this would cause additional delay in having the Hague application dealt with. However, after finding that the father was responsible for 10 months delay as a result of the steps taken by him in the German courts, the delay resulting from the involvement of the OCL would be minimal. Importantly, the role of the OCL was to provide evidence as to children’s objections so that this court could assess the strength of the objections and ascertain if they had been influenced by the mother.
48The OCL appointed legal counsel, James Stengel, together with a clinician, Gillian Sheldrick. The clinician’s affidavit was sworn on August 6, 2015 and filed on August 7, 2015. When the Hague application resumed on August 24, 2015, both counsel were provided with the opportunity to have Ms. Sheldrick attend to be cross-examined, but they declined to do so.
49The Affidavit of Gillian Sheldrick disclosed that the clinician and the OCL lawyer met three times with each of the children. The Affidavit also set out the children’s objections to returning to Germany.
50Brian’s objections to returning to Germany were:
a) he has an 8 year old dog, Gilda, who will not be able to return by plane to Germany;
b) he has friends in Canada and he had no friends in Germany, except for one who had pushed him and broken his arm;
c) German people are bad – providing such examples as his teacher being very strict and being loaded down with homework.
51Mary indicated to the OCL that she wanted the case dealt with in Ontario rather than in Germany. The reasons that she objected to being returned to Germany were:
a) there was too much homework in Germany and dad got angry with Brian because he didn’t do his homework;
b) there are not many sports outside in Germany and school lunches weren’t provided until the end of the day and “you need food for thought”;
c) it is easier to make friends in Canada than in Germany although she acknowledged she had friends in Germany, but they would all be at different schools now;
d) “Canada feels like home” and Germany did not.
52At the final meeting, Brian indicated that his father would get angry and had a bad temper. When asked for more detail, he then indicated that his father would get irritated and yell when trying to help him with his homework. However, the example provided by Brian was certainly more consistent with a parent becoming frustrated and not indicative of a parent being verbally or physically abusive.
53Both children spoke positively about their father and of him being a nice guy who does fun stuff with them.
54The OCL also spoke with the children’s teachers and family physician. The children were previously interviewed by a worker from Children’s Aid Society of Niagara, who confirmed that the children had expressed a desire to remain in Canada. Neither the children nor the mother had been told in advance that the worker would be attending at the school to speak with the children.
55The OCL conceded that some of the children’s comments may well have emanated from the mother, such as the education system being better in Canada than in Germany; that Germans are not nice and that their father is “cheap”. But other objections (such as leaving friends and community in Canada; not having friends in Germany; Canada feels like home) were significant objections that were age appropriate and consistent with the children’s level of maturity.
56On behalf of the children, the OCL took the position that the children have expressed a strong and consistent objection to returning to Germany and that despite some influence from the mother, their objections should be given substantial weight.
The Law
57Section 46(2) of the Children’s Law Reform Act incorporates the Convention on the Civil Aspects of International Child Abduction (“Convention”) into provincial law.
58Article 1 of the Convention provides that the objects of the Convention are:
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.
59Article 2 sets out that Contracting States shall take all appropriate measures to secure within their territories the implementation of the object of the Convention. For this purpose they shall use the most expeditious procedures available.
60Article 3 of the Convention provides that the removal or retention of a child is wrongful where:
a) it is in breach of rights of custody attributed to a person, 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 the 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.
61Article 12 of the Convention provides that:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
62Article 13 of the Convention sets out that:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
Issues
63The issues raised in this case are:
(a) Was the retention of the children in Canada wrongful within the meaning of Article 3 of the Convention?
(b) If there has been a wrongful retention, has the mother established a defence under Article 12 or Article 13 of the Convention?
Analysis
(a) Was the removal or retention of the children in Canada wrongful within the meaning of the Hague Convention?
64In order to determine this, the court must engage in a multi-step analysis to determine the habitual residence of the children, custody rights of the parents and finally consider whether the removal or retention has been wrongful.
65Under the Convention “habitual residence” is not defined. The Ontario Court of Appeal in Korutowska-Wooff v Wooff (2003) 2004 CanLII 5548 (ON CA), 188 O.A.C. 376 (ONCA) determined that:
the question of habitual residence is a question of fact to be decided 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; and
a child’s habitual residence is tied to that of the child’s custodian.
66In determining habitual residence the courts have also considered section 22(2) of the Children’s Law Reform Act which provides that a child is habitually resident in the place where he or she resided,
a) with both parents;
b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
67I am satisfied on all of the evidence and do find that the children’s habitual residence was in Germany.
68While both parents were Canadian citizens, they had acquired permanent resident status in Germany. Both parents had resided in Germany for 12 years. They had both been employed in Germany and they owned property there.
69Although the children are Canadian citizens, they were both born in Germany and had resided there all of their lives, a period of 10 years for Brian and a period of 7 years for Mary. Both children were fluent in German. While in Germany they attended school, engaged in extracurricular activities and had friends. With the exception of two brief visits to Canada in 2006 and 2010, the children’s lives were centered in Germany prior to their departure for Canada in April 2013.
70While the children have now attended school in Canada for one partial and one complete school year (April 2013 until June 2014; September 2014 until June 2015) and have also attended summer camps here, and over the course of the twenty-eight month stay in Canada, have obtained new friends and become integrated into their community, in my view, in keeping with the principles of the Convention, those factors are simply not relevant to the initial step of determining habitual residence.
71As to the purpose for the move to Canada and the “settled intentions” of the parties, while the mother states that the move to Canada was being done on a permanent basis, the evidence simply does not support this. The undisputed evidence is that the mother came to Canada with two suitcases, leaving the bulk of her and the children’s belongings in Germany. The evidence from the OCL confirms that it was the children’s understanding that they were coming to Canada for “a vacation” and it was only after being in Canada for a period of time, that it became a permanent move and not a visit to Canada. The father’s evidence on this issue was that while there was an agreement for the children to attend school in Ontario on an “educational exchange”, it was to be temporary only, to see if the children’s academic performance might improve under the Ontario educational system. I prefer the father’s evidence on this issue.
72On the facts before me, the father consented to the children coming to Canada on a temporary basis for the purpose of an educational leave which expired on August 15, 2014. While there was provision in the consent for the period to be extended, it was never extended by the father and in fact the father tried to unilaterally shorten the duration of his consent, which he could not do.
73The case law is clear that the habitual residence of a child is in the state where both parties lived together with the child, and neither parent can unilaterally change the habitual residence, without the express or implied consent of the other parent. (Cornaz v. Cornaz-Nikyuluw, 2005 CarswellOnt 4714 (OnS.C.); Thomson v Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C))
74The mother also submitted that this Court is bound by various Court orders made in Germany which purport to deal with habitual residence of the children. These multiple rulings came about as a result of various proceedings and appeals taken by the father (as detailed above).
75The father submitted that there were no valid orders in Germany that had determined the habitual residence of the children.
76At the conclusion of the submissions by counsel on March 9, 2015, it remained unclear what impact the various rulings made in Germany had on the Hague application. As such a request was made by through Justice Robyn Diamond (International Hague Network Judge for Canada) to the International Hague Network Judge for Germany requesting an opinion on this issue.
77Counsel for the parties had previously been provided with a copy of the court’s letter to Justice Diamond dated April 10, 2015. Attached to this ruling as Schedule “A” is a copy of the email from Justice Diamond to Judge Erb-Kulnemann which was sent on April 10, 2015, together with a copy of the email response from Judge Martina Erb-Kulnemann received on April 14, 2015.
78As set out in the response from Judge Erb-Kulnemann, there is no valid German court order dealing with habitual residence of the children. Further, it has been confirmed that, if the Ontario court were to determine that the habitual residence of the children is not in Canada, the German courts would receive an application for custody.
79Accordingly, as the issue of the children’s habitual residence has been left to be determined by this court in Ontario, and for the reasons set out above, I find that the habitual residence of Brian and Mary is Germany.
80However, that is only the first step in the analysis under Article 3, and the court must determine whether there has been a breach of rights of custody, which may arise under operation of law or by reason of a judicial decision or by reason of an agreement having legal effect under the law of the State.
81Although the father submitted that he was entitled to custody of the children under the temporary order of the District Court of Langen (Hessen) dated April 28, 2011, I disagree that this can form the basis for his custody rights. This was a temporary order only. Much has happened in the more than four years since this order was made, not the least of which is that the parties subsequently resumed cohabitation in 2012 whether for the purpose of reconciliation as submitted by the mother or for other reasons relating to the mother’s psychological instability as suggested by the father.
82On the issue of the mother’s psychological well-being, the father’s application is full of partial information concerning the mother’s alleged mental instability. In his submissions, he requested that the court rely on a psychiatric report tendered in the German court proceedings in August 2012 based on interviews that took place in 2011. Only portions of the report were translated from German to English. Further, it is significant that subsequent to that report being rendered, the father permitted the mother to live with the children in the family home (October 2012 to April 2013) and subsequently consented to the children moving with the mother to Canada, knowing that they would be in her sole physical care. It is implausible that the father had any real concerns as to the ability of the mother to provide for the day-to-day care of the children. Nonetheless it appears (from the OCL affidavit) that the father has continued to raise this issue, resulting in the involvement of the Children’s Aid Society of Niagara. While the Society did not conduct a full assessment of the mother and her self-report that her mental health was stable, the Society did confirm that they had no child protection concerns.
83As to the impact of the temporary custody order made in Germany, this Court notes that in the October 30, 2012 District Court ruling, the reasons indicated were that the parties had re-established a common household and the proceedings were settled. Although the father suggested that he was somehow tricked into settling the proceedings, it is difficult to see how this could have occurred, as he was represented by counsel. Further, the ruling was never appealed, although those rights existed and the father has certainly shown that he has been able to appeal numerous subsequent decisions of the German courts. This court finds that for the purposes of this proceeding, the father’s custody rights do not arise from the April 28, 2011 temporary custody order.
84In the absence of a valid order of custody, custody rights arise under operation of law, namely the German Civil Code section 1626 which provides that where parents are married to one another, they have joint custody of any children born to them.
85I am satisfied that the father’s consent to the removal of the children from Germany was for a defined period of time ending on August 15, 2014 and the mother’s refusal to return the children to Germany thereafter was a wrongful retention under Article 3 of the Convention.
(b) If there has been a wrongful retention, has the mother established a defence under Article 12 or Article 13 of the Convention?
i) Application of Article 12
86It was submitted by mother’s counsel (and supported by OCL counsel) that this court should apply the provisions of Article 12 and consider the circumstances of the children in Canada to determine whether the children are now settled in their new environment. I disagree.
87Article12 only applies where the proceedings have been commenced more than one year after the date of the wrongful retention. In this case, the wrongful retention only arose after August 15, 2014 when the father’s consent expired.
88In this particular case, the father commenced the application through the Central Authority in Germany on April 11, 2014, shortly after he became aware from comments by Mary that the mother was looking to buy a home in Canada. So rather than a delay in proceeding, the father proceeded expeditiously and brought the application even before his consent had expired and within the one year contemplated by Article 12.
89In those circumstances, and as the Hague application was commenced within one year of the wrongful retention Article 12 does not apply and the “settled intention” defence is not available to the mother. (Bazargani v. Mizael [2015] O.J. No. 3606, 2015 ONCA 517)
ii) Application of Article 13 (a) - Custody rights not being exercised
90The mother submits that the father was not exercising custody rights, relying on the Consent that was signed by the father. She also relies on the fact that she has been solely responsible for the children while they were residing in Canada since April 2013. Finally, she submits that the father has had little involvement with the children while they have been in Canada, aside from weekly telephone/Skype chats, only seeing them for 10 days in November 2013 and 10 days in March 2015.
91The case law makes it clear that a very low threshold exists to prove that a parent is exercising rights of custody. (De Martinez v Rios, 2008 CarswellOnt 2055 (ONSC)) A parent that seeks to maintain any sort of regular contact with the child is exercising the right of custody. To exercise the rights of custody simply means that the parent was continuing to take the stance and attitude of a custodial parent.
92On the facts of this case, the parties had resided together in Germany immediately before the children were removed to Canada. The parties jointly made the decision for the children to move to Canada to improve their English language skills and to “try out” the Canadian school system. After the children left Germany, the father continued to maintain regular weekly contact with the children, together with two trips to see the children in Canada.
93There was no compelling evidence provided that would suggest that the father had abandoned his rights of custody, and certainly all of his actions (from as early as March 2014 in attempting to withdraw his consent and then applying in April 2014 through the Central Authority in Germany under the Hague Convention) confirm his consistent intention to exercise his custody rights.
94While he did sign a consent “transferring custody”, I do accept that this was done for the sole purpose of enrolling the children in the Ontario school system and was not an abandonment of his custody rights. As soon as he became aware that the mother intended to remain with the children in Canada he demanded the children be returned to Germany forthwith, and there was no evidence that the father relinquished his custody rights.
iii) Application of Article 13 (b) - grave risk of harm/ intolerable situation
95Article 13(b) was raised by the mother in the submissions made on the initial hearing of the application in March 2015. Other than a bald statement in her Affidavit, there was no evidence provided by her to verify that there was such a risk.
96In the submissions made by the OCL, he confirmed that no further information had been received from the mother to support a finding that there is a grave risk that the children’s return to Germany would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
97As noted above, while there was some indication by the children about difficulties over homework between Brian and his father, this clearly did not amount to a grave risk of harm or an intolerable situation.
98As such and on the evidence before me, there was no valid defence raised by the mother under Article 13 (b) of the Convention.
iv) Application of Article 13 - Children’s objections
99The test to be applied in determining whether to consider a child’s objections is set out in Wilson v. Challis, 1992 CarswellOnt 1504 (O.C.J. Prov Div) as follows:
Firstly; has the child attained an age and degree of maturity at which it is appropriate to take account of its views;
Secondly, does the child object to being returned;
Thirdly, is the child expressing strength of feeling, in the words of Justice Bracewell in Re R., “”which goes beyond the usual ascertainment of the child’s wishes in a custody dispute”;
Fourthly, are the views being expressed by the child of his own free will and choice, are they genuine views, or have they been influenced by some party or person in contact with the child.
100Further guidance is also provided in subsequent Ontario Superior Court cases such as Crnkovich v Hortensius, 2008 CarswellOnt 6951 (ONSC) and Reidel v. Thomopoulos-Danilov, 2005 CarswellOnt 6448 (S.C.J.) which confirm that in order to qualify as an objection, the child must be adamant in expressing the objection. The objection cannot be ascertained simply by weighing the pros and cons of two competing jurisdictions, such as in a best interests analysis. The objection “must be something stronger than a mere expression of preference”. Further and as noted by Justice Mackinnon in Garelli v Rahma, 2006 CanLII 13555 (ON SC), 2006 CarswellOnt 2582 (S.C.J.) a consideration of the reasons given by the child for the objection is important, and the reasons given in support of the objection must be substantial.
101I accept, as submitted by the OCL on behalf of Brian and Mary, that their objections to returning to Germany were consistent. I also accept that to the children, friends are very important and that Brian endured a bad experience with his friend in Germany. Further, I recognize that a period of more than two years in the lives of these children is not an insignificant period of time, especially for Mary.
102However, when considering the reasons provided by the children for not wanting to return to Germany, I am simply not able to find that the objection to being returned to Germany is a substantial one nor does it have the “strength of feeling” required that would take the objection beyond the level of expressing a preference for one place over another. As all counsel conceded, and as is clear from the case law, this is not a “best interests” test.
103In many respects, the children’s views do simply mirror the mother’s sentiments. This is evident from Mary’s comment about wanting the court to be dealt with in Ontario not Germany and comments about her father being “cheap”. This is also evident from Brian’s information about Germans being “bad” and his knowledge of not being able to take the family dog back to Germany. The children have not been influenced to the point that they have only negative memories of their father (which is often the case) and they did freely disclose their wish to remain in Ontario to the Children’s Aid worker when asked. However, Mary’s reaction to this event by crying and telling her father that she wanted the case to be over, make it all the more apparent that the stated objection is simply a preference of the children that is no different than those expressed by children who are caught in the middle of a custody dispute.
104Brian will be 13 years of age in less than a week and Mary will be 10 years of age in four months. I do find that each of the children has reached an age and degree of maturity at which it is appropriate to take their views into account. I also find that each of the children have consistently expressed their objection to returning to Germany. However, given the nature of the reasons stated by the children and a real likelihood that the children have to some extent been influenced by the mother, only minimal weight can be given to the objection to return to Germany.
105The court must conclude that a valid defence based on the children’s objections has not been made out by the mother. The court comes to this conclusion by examining the reasons behind the objection (too much homework; loss of friends and family dog; Canada feels like home) in the context of the purpose of the Convention. To accede to such an objection would set the threshold much too low and certainly much lower than intended by the Convention which provides that where there has been a wrongful retention, children shall be returned to their habitual residence unless the removing parent can establish that exceptional circumstances exist. Such circumstances do not exist in this case.
106This principle is best captured in the comments of Chamberland J.A. in F. (R.) v. G. (M.) 2002 CanLII 41087 (QC CA) referenced in Ellis v. Wentzell-Ellis, 2010 ONCA 347:
The Hague convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also…a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.
107On the evidence before this court, the children’s objection to returning to Germany is not a defence under Article 13 that would be sufficient to avoid the clear purpose of the Convention.
Disposition
108Having found that the children, Brian and Mary, have been wrongfully retained in Canada, the Convention mandates that the children be ordered to be returned to Germany. As the mother has not met the high threshold necessary to establish a defence under Article 12 or Article 13, the children must be returned to their habitual residence of Dreieich, Germany.
109As such, the following order shall issue as follows:
The children of the marriage, Brian Balev, born September 1, 2002 and Mary Balev, born December 17, 2005 have been wrongfully retained in Ontario by the Respondent and that such retention constitutes a wrongful retention of the children within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction.
The said children shall be returned to their habitual residence of Dreieich, Germany pursuant to section 46(5) of the Children’s Law Reform Act R.S.O. 1990, Chapter c. 12 and Article 12 of the Convention on the Civil Aspects of International Child Abduction.
110The purpose of the Convention is to return children to the status quo that existed prior to the wrongful retention in order that the issue of custody can be determined by the court where the children had their place of habitual residence. The difficulty in this case is that the status quo prior to the children travelling to Canada in April 2013 was that they were in the joint care of both parents in Germany. A period of some twenty-eight months has now passed. It is simply not feasible that this status quo can be resumed with all parties residing in the matrimonial home in Germany. While the father’s counsel submitted that the children should be returned to the father’s care, that would resume a status quo from April 2011 (more than four years ago) and for reasons set out above, based on a court order that this Court does not accept to be valid.
111After considering the OCL’s submissions that if a return of the children to Germany was to be ordered, any disruption to the lives of the children could be reduced if the mother were permitted to travel with the children to Germany and reside there with them, that is the order that will be made. In the circumstances of this case, I am satisfied that such an order will lessen, as much as possible, any detrimental impact on the children of the returning order that is being made.
112With regard to the practical aspects of how the return of the children to Germany would be effected, the court did not have the benefit of receiving lengthy or detailed submissions from counsel. It is common in many Hague cases that through the use of undertakings, the requirement of a return of a child under Article 12 of the Convention can be complied with and any short term disruption to the child is minimized, until the long term best interests of the child can be determined by the court of the child’s habitual residence.
113There was conflicting evidence provided by the parties as to whether or not the mother has status to return to Germany. The mother provided an email exchange between herself and the Visa Section of the German Consulate in Toronto which states “you do have no longer the right to re-establish in Germany on basis of your former residence” and she was directed to contact the aliens authority (Ausländerbehörde Offenbach) to clarify matters. The father provided a translated email from the Foreigner’s Registration Office (Ausländerbehörde) where the mother had been registered. This confirmed that her residence permit had expired by operation of law because of the long stay abroad. However, Canadian citizens with a valid passport can enter Germany for longer-term stays without a visa and then apply for the residence permit once in Germany.
114As neither counsel provided a legal opinion as to any bars to the mother being able to re-establish residency in Germany, based on the e-mails only, it does appear that the mother can travel to Germany as long as she has her Canadian passport and she can re-apply for the appropriate residency status once there. This would seem to apply as well to re-establishing the residency of the children in Germany. The father will be expected to assist in any way that he can so that the mother and children’s residence can be re-established in Germany and the children re-registered in school.
115The prior order of July 17, 2014 which required the passports of the mother and the children to be deposited with her solicitor shall be rescinded upon the mother providing the father with her itinerary confirming that she has arranged for one-way flights to Germany for herself and the children. The passports are being returned to the mother for the sole purpose of effecting a return of the children to Germany.
116Another practical issue which was raised was where the mother and children would reside upon returning to Germany, as the mother has no accommodations there. While the mother submitted that the father should allow them to reside exclusively in the former matrimonial home, this court has no jurisdiction to make such an order regarding property located in Germany.
117However, on the basis of the father’s undertaking, confirmed by his counsel, he shall be required to provide suitable housing for the mother and the children in Germany, that approximates the accommodation the family enjoyed prior to departing for Canada.
118The mother does not have employment in Germany and clearly the father will have to provide reasonable financial assistance to the mother and children. Without any evidence as to the financial costs in Germany, the financial needs of the mother and the children, nor any evidence as to the financial resources of the parties, this court is not in a position to determine the amount of financial support that should be paid. If the parties are unable to agree on appropriate financial arrangements, the mother will be able to take the necessary steps in Germany to ensure adequate financial support is obtained.
119In light of the wrongful retention of the children by the mother and given that the mother has been employed on a full-time basis while in Canada, the cost of the airline tickets to travel to Germany for the children and for herself, shall be at her expense.
120As a term of the order being made, the children shall be returned to Germany on or before September 30, 2015.
121At this point in time, it is not known whether this will be sufficient time for the father to obtain accommodations in Germany for the mother and the children. It is also not clear how quickly the mother will be able to secure permission through the appropriate immigration authorities to return to Germany. Both parties are expected to take immediate steps to implement the order being made and to use all reasonable efforts to comply with this timeline.
122If, for reasons entirely outside of the control of the parties, the return of the children to Germany by September 30, 2015 cannot be effected or should the parties be unable to agree on other details necessary to effect the return of the children to Germany, the matter shall be returnable before me, on an expedited basis, upon contacting the Trial Coordinator.
Costs
123If the issue of costs cannot be resolved, I direct that the party seeking costs shall deliver written submissions to my chambers, at 59 Church Street, 4th Floor, St. Catharines, L2R 7N8, within 21 days of the release of this decision with responding submissions to be delivered to my office within 21 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
MacPherson J.
Released: August 27, 2015
SCHEDULE “A”
From: Robyn M. Diamond rdiamond@judicom.ca Sent: Tuesday, April 14, 2015 12:56 PM To: gczut@rogers.com; Wendy.MacPherson@scj-.ca Cc: George Czutrin Subject: Fwd: AW: Balev v. Baggott letter Apr 10, 2015
Dear Justice MacPherson, Please find attached the response received form the German judge. I hope this answers your questions. Please feel free to call if you have any further questions. Best, Robyn Diamond
----- Original Message -----
Dear Judge Diamond,
I safely received your request.
I just phoned with Mr Keuchler from the German Central Authority who stated that the information given by Judge Macpherson concerning German proceedings are complete. The German Central Authority is not aware of further proceedings in Germany.
Today the lawyer Hanke, the former representative of the father contacted me via e-mail and offered his help to give me further information. I refused as it is not my task as network judge to get in contact with representatives of the parties.
Here are my answers to your question which I can give right away as the situation seems very clear to me:
Are there valid orders existing in Germany which deal with habitual residence?
If it determined that the children do not have their habitual residence in Canada, will the German Courts have jurisdiction to determine the merits of custody?
1.) The is no valid German order.
The interim order from August 13, 2014 became invalid because of the withdrawal of the custody applications. In order to clarify this the Higher Regional Court Frank set aside the order dated August 13, 2014 by decision of September 29, 2014. But this is only a clarification. The abolition took place automatically because of the withdrawal of the custody applications.
The decision on June 16,2014 concerning the Certificate of Illegal Residence is also no longer valid. The father withdraw his application for a certificate. On January 30, 2015 the Higher Regional Court set aside the decision dated June 16, 2014.
To sum it up: there is no valid German court order dealing with habitual residence.
Even if there would be one the next question would be whether questions of habitual residence dealt with in such a decision are binding for the future. The question whether a Certificate of Illegal Residence has a binding effect is in dispute in Germany. And a custody decision is binding only in so far as the rulings itself on custody is binding. The next court asked for a change of such a decision is not bound concerning the results on habitual residence by the first court.
2.) There is no determination that the children do not have their habitual residence in Canada.
As there is no international treaty valid in so far between Canada and Germany a German court would have to apply § 99 FamFG (Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction) in order to determine international jurisdiction in case the court would receive an application on custody.
Section 99
Parent and Child Matters
(1) Except for proceedings pursuant to section 151 no. 7, German courts shall have jurisdiction when the child:
is German or
his place of usual residence is in Germany.
In addition, German courts shall have jurisdiction to the extent the child requires the care of a German court.
(2) If both German courts and the courts of a foreign country have jurisdiction with respect to the order of guardianship and if guardianship is pending in the other country, the German court may refrain from issuing a guardianship order when this is in the interests of the ward.
(3) If both German courts and the courts of a foreign country have jurisdiction with respect to the order of guardianship and if a guardianship exists within Germany, the court before which the guardianship proceeding is pending may relinquish the matter to the country whose courts would have jurisdiction over a guardianship order when this is in the interests of the ward, the guardian states agreement therewith, and the other country states its willingness to assume the guardianship. If the guardian, or, in cases where two or more persons have joint guardianship, one of the guardians, agrees, then instead of the court where the guardianship is pending, a decision shall be made by the court of a higher instance in the proceedings. The order shall not be appealable.
(4) Subsections (2) and (3) shall apply mutatis mutandis to proceedings pursuant to section 151 nos. 5 and 6.
I hope that my information are helpful. In case of further questions feel free to contact me again.
best regards
Martina Erb-Klünemann
Local court judge
Network judge: European Judicial Network and International Hague Network of Judges
Von: Robyn M. Diamond [mailto:rdiamond@judicom.ca]
Gesendet: Freitag, 10. April 2015 21:10
An: Erb-Klünemann, Martina
Betreff: Balev v. Baggott letter Apr 10, 2015
Dear Judge Erb-Kluenemann,
Please find attached a request that I received from Justice Wendy MacPherson of the Superior Court of Ontario wherein she is seeking assistance with regard to a Hague application that has been brought before her. As noted in Justice MacPherson's letter, contemporaneously with the Hague application brought in the Ontario Court, various proceedings have taken place in the German Courts. These are summarized at pages 1-4. As noted, the mother's counsel and the father's counsel take opposite positions with respect to whether there are valid orders existing in Germany which deal with habitual residence of the children.
I am therefore requesting, if you consider it appropriate, that you in your capacity as an International Hague Network Judge for Germany provide an opinion as to the validity and impact of the rulings from the various German Courts. As noted in Justice MacPherson's closing sentence, "In particular, if it is determined that the children do not have their habitual residence in Canada, will the German Courts have jurisdiction to determine the merits of custody?"
We would appreciate your assistance in this matter. If there are any further questions, please do not hesitate to contact me. Best regards, Robyn Diamond
cc. S.M. Bookman and C. Stankiewicz 1-416-488-4491
M. Stangarone and K. Maurina 1-647-727-0914
The Hon. Madam Justice Robyn M. Diamond
Court of Queen's Bench, Family Division
Room 226 - 408 York Avenue
Winnipeg, Manitoba
CANADA R3C 0P9
204-945-2050
204-9483762 - fax
----- Original Message -----
Your Honours, with respect to the above, please find attached letter from Justice MacPherson.
Thank you,
Tina Mignelli
Judicial Secretary
Superior Court of Justice
59 Church Street, 4th Floor
St. Catharines, ON L2R 7N8
Tel.: 905-988-6200, Ext. 445
Fax: 905-988-5531
-----Original Message-----
From: ONP3F01133975@ontario.ca [mailto:ONP3F01133975@ontario.ca]
Sent: April 10, 2015 9:34 AM
To: Mignelli, Tina (JUD)
Subject: Balev v. Baggott letter Apr 10, 2015
This E-mail was sent from "ONP3F01133975" (Aficio MP 5002).
Scan Date: 04.10.2015 09:33:58 (-0400)
Queries to: ONP3F01133975@ontario.ca
CITATION: Balev v. Baggott, 2015 ONSC 5383
COURT FILE NO.: 266/14
DATE: 2015/08/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN PAUL BALEV
Applicant
- and -
CATHARINE-ROSE BAGGOTT
Respondent
REASONS FOR JUDGMENT
MacPherson J.
Released: August 27, 2015
