Court File and Parties

Barrie Court File No.: FC-16-0575-00 Date: 20160624

Ontario Superior Court of Justice

Between: Marie Allen Schroeder, Applicant – and – George Harold Jeremy McCormack, Respondent

Counsel: Ms. Penelope Ng, for the Applicant Ms. Carol Allen, for the Respondent

Heard: June 13 and 14, 2016

Endorsement

McDermot J.

Introduction

[1] It is a serious business for a parent to remove a child from his home and country without the consent of the other. It deprives the courts in that country from deciding on a matter that they may be best able to decide. It means that the parent who may have had custodial rights to the child is deprived of a remedy unless they travel to the country in which the child is now living. Most importantly, it is seen as a wrongful abduction of the child from the home in which he or she lived as it the child is effectively deprived of the love and affection of the remaining parent.

[2] Notwithstanding these grave consequences, this is exactly what the Respondent, Mr. McCormack, did. He and his partner, the Applicant in this matter, had been living in Denmark for about two months, where they had gone because of Ms. Schroeder’s employment. Accompanying the parties was their two-year-old son, Flynn. On March 30 of this year, Mr. McCormack got on a plane with Flynn and flew back to Ontario, where the parties had previously lived. He did this without notice to Ms. Schroeder and when she was away at a conference in San Diego, CA.

[3] He says that he was entitled to do this, largely because of an agreement drafted by him and signed by both parties in front of a lawyer in Ontario on the day before they were to fly out for Denmark from Ontario. That agreement purported to give Mr. McCormack “full custody” of Flynn for the next two years. It also says that Ms. Schroeder has mental health issues, including “disassociation” and “out of control anger”. Most importantly to Mr. McCormack, the agreement stated that Flynn was only “visiting Denmark” and is a “resident of Ontario”. The agreement stated that the Ontario courts would have jurisdiction over any “legal intervention” and that Flynn was “free to leave Denmark with [Mr. McCormack] at any time.”

[4] Ms. Schroeder brings this application for return of the child under the Hague Convention. [1] She says that Flynn was habitually resident in Denmark when he was removed and that the parties had intended to live there with Flynn for the foreseeable future. She says that Mr. McCormack had planned to obtain a British passport and his EU residency, which he was entitled to as his father was a British citizen. Her contract was for two years and she made a good living as a research scientist in Denmark; in fact she had tax advantages in her first five years in Denmark. She says that her custodial rights have been violated and the Hague Convention warrants an immediate return of the child.

[5] Mr. McCormack denies the parties were habitually resident in Denmark. He notes that the parties have never lived long in one place during their three years together; their longest stint was a 10 month period of time in Singapore, again for Ms. Schroeder’s employment. Prior to flying to Denmark, the parties had lived in Ontario for five months and he says that Ontario remained the habitual residence of Flynn, based both on the agreement and the facts on the ground. He says that he has always been the primary caregiver of Flynn and that he ought to remain in Ontario and that the Ontario courts should assume jurisdiction over this custody dispute.

[6] For the reasons set out below, there shall be an order under Article 12 of the Hague Convention returning Flynn to Denmark forthwith.

Issues

[7] It is apparent that the parenting agreement is crucial to the determination of the issues between the parties. If valid, the agreement recites that Flynn was a visitor to Denmark and that the Ontario courts should have jurisdiction. Moreover, if based upon a separation of the parties, the agreement is strong evidence that there was no joint intention to remain in Denmark, which would affect Flynn’s habitual residence, which is normally based upon the joint intentions of his parents. It also affects the legality of Flynn’s removal from Denmark.

[8] If the agreement is found to be invalid, the court must still determine the applicability of the Hague. In that regard, the parties have acknowledged that there is no “grave risk” of “physical or psychological harm” to Flynn under Article 13 of the Convention were he to be returned to Denmark. Therefore, the only issue is whether the Applicant has satisfied the conditions for return of the child under Articles 3, 4 and 12 of the Hague Convention. Those articles read as follows:

Article 3

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.

Article 4

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.

Article 12

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.

[9] The three issues raised by these articles are:

a. Was Flynn habitually resident in Denmark at the time of his abduction?; b. Did the Applicant have custodial rights to Flynn?; and c. Was Flynn wrongfully removed or retained?

[10] With regard to b and c above, the parties in argument agreed that, at the time of the removal, the Applicant had either joint custodial rights to Flynn or sole custodial rights to Flynn under the applicable Danish legislation. [2] As Article 3 of the Hague Convention confirms that a removal shall be considered “wrongful” where it is “in breach of rights of custody” and those rights “would have been… exercised but for the removal”, it appears that the removal would have been wrongful under the Convention. Accordingly, the issue of habitual residence was the issue vigorously argued by counsel. If habitual residence is found, the child then has to be returned as the latter two conditions have been otherwise met.

[11] The issues are therefore as follows:

a. Is the “parenting plan” agreement executed by both parties a bar to this application? b. Was Flynn habitually resident in Denmark at the time of his removal?

Analysis

a. Is the “parenting plan” agreement executed by both parties a bar to this application?

[12] As I mentioned above, it is an understatement that the agreement in question was fairly one sided. The agreement says that the Applicant has mental health issues, and four different conditions are listed. It provides for full custody in favour of the Respondent without any access being provided to the Applicant; in fact, the agreement says “full custody and access” in favour of Mr. McCormack. It confirms that Mr. McCormack can leave Denmark at any time with Flynn and that Flynn was just visiting Denmark.

[13] The context of the agreement is important. That is because of s. 53(1) of the Family Law Act, R.S.O. 1990, c. F.3, [3] which states that couples who are cohabiting, or intend to cohabit cannot make a domestic contract “on the right of custody of or access to their children”. To make a custody agreement, the parties must be separated in order to enter into a separation agreement under s. 54 of the FLA.

[14] The context is also important because the Applicant says that she was, effectively, forced to sign the agreement; if she did not, it would mean that she would go to Denmark without Flynn as Mr. McCormack had told her that, unless she signed the agreement without amendment, he was not going to Denmark, and Flynn would remain with him in Ontario. She says that, considering the unconscionable terms of the agreement, and considering the fact that it was presented at the last minute, with the “propellers turning on the tarmac” that she was subject to duress and the agreement is not capable of enforcement.

[15] Finally, the Applicant suggests that, even if the agreement is binding on the parties, it cannot displace the provisions of the Hague Convention, which are not subject to the terms of an agreement as to jurisdiction and which govern irrespective of an agreement to the contrary.

i. Were the Parties Separated When the Agreement was Signed?

[16] Mr. McCormack’s counsel argued vigorously that the parties were actually separated when the separation agreement was signed on January 29, 2016. Ms. Allen said that by that date, the relationship between the parents had changed from an intimate relationship to a co-parenting relationship. She submits that the agreement was intended as a separation agreement and she relies upon the emails between the parties and correspondence drafted by the Applicant as evidence of the separation.

[17] Much of the evidence regarding the state of the parties’ relationship is garnered from emails exchanged between the parties at various times which made up a large part of the record.

[18] On December 7, 2015, Ms. Schroeder writes to Mr. McCormack that,

I need you to commit to moving to Denmark as a family, and contribute to making plans re: moving costs, your work there, childcare, what to do with the car, shipping, etc. Or, if you don’t want to move, I need you to come up with a serious and attainable financial plan as to how we will support ourselves. [4]

[19] Later, on January 6, 2016, Ms. Schroeder says in an email to Mr. McCormack, that, “The key think is that we commit to going to Denmark, or to another sustainable plan, very soon so we can move forward together as a family.” [5]

[20] On January 14, 2016, Ms. Schroeder emails Mr. McCormack suggesting shared custody on an equal basis and stating:

In the meantime, I would suggest that we figure out what to do about the move to Denmark. I am hoping we can work between us to come up with a way in which we share custody over the course of the year and share expenses, both 50-50. If you want to go to Denmark to make things easier then I will support you for a few months (up to 3) while you find a job. Alternately, if you find a job in Toronto that can support all of our expense then I will search for a job here. [6]

[21] Finally, on January 28, 2016, the day before execution of the agreement, Ms. Schroeder emails to Mr. McCormack that they “think of Denmark as a long holiday” and that he could return after 6 months “if it doesn’t work out.” She suggests that they both look for work in North America but that Denmark is an opportunity to “repair our relationship and come together.” She says it is “an opportunity to start working as a team once again.” [7]

[22] The Respondent points to all of these emails as evidence of the fact that he was never intending to stay in Denmark, but he also says that they are also evidence of the breakdown in the relationship. He notes that the Applicant had also drafted a letter to lawyers where she asked for advice that would allow her to move to the U.S. or Denmark with Flynn; there is no evidence that this letter was ever sent to any lawyer. [8] Both parties had consulted with family lawyers in Collingwood prior to leaving for Denmark.

[23] He suggests, as a result, that the parties were separated when they signed the Parenting Plan agreement on January 29, 2016. He says that the relationship had fundamentally changed from an intimate relationship to a co-parenting relationship by that point in time, and that there was never a reconciliation. When I asked counsel why her client had then determined that he should get on a plane without money or return airfare, she said it was both for the purpose of co-parenting Flynn together and as well to help Ms. Schroeder work and develop her career in Denmark.

[24] I have some difficulties with this submission. To sign a separation agreement, the parties must be separated with no possibility of reconciliation; parties cannot be “kind of separated” for this to happen. The separation of an intimate relationship therefore requires an unequivocal act, something that says that, “This relationship is finally over.” There must be something that shows that the parties, or at least one of them, is intent upon ending the common law relationship. There must be more than the parties considering separation and speculating how they might deal with it in the future; the parties, or again at least one of them, must be intent upon living separate and apart without the possibility of reconciliation.

[25] None of the emails cited to me meet that criterion. The fact that the parties were talking to lawyers or had drafted a letter to be sent to counsel does not mean that the parties had separated; it means that they were thinking about separation, and that both parties were having doubts about the relationship and were considering their options. The fact that Ms. Schroeder was sending an email speaking about moving to Denmark and about a “sustainable” plan for the future speaks, in fact, of the relationship having a future. She is planning for a future together and not apart; although Ms. Schroeder indeed appears to be discussing a custody agreement on January 16, 2016, which would imply that she thought that the parties might then be separated, on January 28, 2016, she is speaking to Mr. McCormack of repairing their relationship and coming together. She expresses in that email a desire to to work “as a team once again.” She signs the letter “with love.” In that email she speaks of a future, inconsistent with a separation.

[26] Evidence of a separation has to include what the parties tell the world about their relationship; when parties tell their friends and family that it is over, that is strong evidence of separation. Mr. McCormack is very close to his brother, Christopher McCormack, and sought advice from him on a number of things; I believe that Chris McCormack was in court for support during argument of the motion.

[27] Chris McCormack filed an affidavit outlining his version of events leading up to leaving for Denmark. He confirms that the relationship was in trouble and that Mr. McCormack “was struggling in the relationship with Marie.” He speaks of the fact that Mr. McCormack was “questioning” the relationship on January 14, 2016, when the parties went to visit the United States, and Mr. McCormack had asked his brother to witness an agreement which would allow him to return to Canada with Flynn. He attaches an email from himself to both the Applicant and the Respondent on the date the agreement was signed, with the goal of helping them with their situation; significantly nowhere in that email does he suggest that the parties are separated or that he has been told that the parties are separated. Nowhere in his affidavit does he say that he understood that the parties were separated on January 29, 2016 when the agreement was signed.

[28] Similarly, the affidavit of Wendy Robertson, Mr. McCormack’s sister in law, also does not state that she had been told of a separation that had taken place prior to the move to Denmark. Although she says that she had understood that the move to Denmark was temporary, perhaps for both parties, but certainly for Mr. McCormack, she did not say that she understood that the parties had decided to separate when they moved to Denmark, but only that there continued to be “instability” in the relationship when they were in Denmark. Instability is not enough to prove separation; there must be more than that.

[29] As well, Ms. Schroeder filed emails from the Applicant’s good friend, Geoffrey Adamson, in whose home the family lived during part of their last sojourn in Ontario. One email is dated January 23, 2016, the second February 9, 2016. [9] In neither email does Mr. Adamson speak of Mr. McCormack and Ms. Schroeder having separated. He certainly appears to have the impression that the family continued to be intact.

[30] Finally, from Mr. McCormack’s own emails, it appears that the separation between the parties took place either on March 20, 2016 or on April 5, 2016 after Mr. McCormack had left Denmark. The crucial email that speaks of this is Mr. McCormack’s email dated April 5, 2016, written after he had landed in Ontario with Flynn. In that email, he speaks of the “devastating situation we are now in” (emphasis mine). He cites an email from Ms. Schroeder dated March 20 which stated “we are finished as a couple” and later says that that “you have been clear about an intention to rid of me in Denmark, and you have now effectively dissolved our relationship.” [10] He complains of Ms. Schroeder’s infidelities which would seem to belie Mr. McCormack’s assertion that the relationship was only that of co-parents by that point in time; Ms. Allen’s suggestion that he was upset about honesty only does not ring true considering the tone of the email, which speaks to the breakdown of an intimate rather than a parenting relationship.

[31] As well, Mr. McCormack confirms that the separation took place in Denmark: he says in his own affidavit that it was not until February 24, 2016 that he found that Ms. Schroeder was continuing with her infidelities and that at that time, he determined that he “had to leave and the relationship was over.” [11] Nowhere else in his own affidavit does he speak to a specific date of separation.

[32] I therefore find on the balance of probabilities that at the time of the signing of the agreement, Mr. McCormack and Ms. Schroeder were not separated, and that the relationship continued to be an intimate common law relationship until at least March 20 when Ms. Schroeder emailed Mr. McCormack to tell him that the relationship was over. The agreement in question is therefore a cohabitation agreement, as the parties were not separated when the agreement was signed. The agreement, which speaks of custody and access, is therefore invalid under s. 53 of the Family Law Act, which prevents a cohabitation agreement from dealing with matters affecting the custody and access rights of the parties. The agreement is therefore incapable of enforcement and does not affect the custody rights of the parties and did not permit the Respondent to leave Denmark with the child as it purports to do.

ii. Circumstances Surrounding Execution of the Parenting Agreement

[33] Even were the agreement capable of enforcement as a separation agreement, I would have serious concerns about enforcing the agreement considering the circumstances under which it was signed. And I cannot ignore the fact that the agreement speaks to certain facts, including the intention that the child would be a “visitor” in Denmark which are apart from the question of enforcement of the agreement itself.

[34] It appears from the evidence that Ms. Schroeder was told early in the day on January 29, the day before their flight to Denmark, that Mr. McCormack was not leaving Ontario, and that he would be keeping Flynn in Ontario with him. Ms. Schroeder deposes that she was not willing to leave Ontario without Flynn.

[35] However, she was also aware that the situation was not viable in Ontario as it stood at that time. Notwithstanding Mr. McCormack’s views that the parties had, in Ontario Works, a stable source of income, I agree that for this family, welfare was not a viable long term economic plan for this family. Ms. Schroeder’s emails make it clear that she was not invested in Denmark; however, she was invested in a long term sustainable economic plan for the support of the family. She found Mr. McCormack’s idea of remaining on public assistance on an indefinite basis unacceptable in that regard. She did not need to move to Denmark but she clearly thought it the only option given that Mr. McCormack provided no evidence of any response to Ms. Schroeder’s numerous emails asking him for a financial alternative to going to Denmark.

[36] In addition, Ms. Schroeder works as an academic fellow conducting medical research, and she had already left one position in Singapore under dubious circumstances. She did not wish that to happen again. Were she not to show up in Denmark on short notice after having accepted the offer of employment at Aarhus University, her academic reputation may have been irreparably ruined. She had a legitimate fear for her career, and it appears that Mr. McCormack took advantage of this.

[37] The email chain between Ms. Schroeder and Christopher McCormack confirms the sequence of events. [12] At 12:41, Ms. Schroeder emails Christopher and advises that “Jeremy now says that he (and Flynn) aren’t going to Denmark” and that she is “so sorry to ask for help but I don’t know what to do.” At 3:48 Mr. McCormack writes to his brother and says “getting [the agreement] witnessed, will hope for the best and fly out tomorrow.” By 5:39 Ms. Schroeder writes to Chris stating that she was “overwhelmed” and “could think of no one else to reach out to.” She then says that “he seems to have found a solution to make him happy to go”, presumably the agreement.

[38] There is no disagreement by Mr. McCormack that unless the agreement was signed without changes, he would not be flying to Denmark with Ms. Schroeder and Flynn as well would not be going.

[39] Ms. Allen in her submissions states that Ms. Schroeder would have done or signed anything that would have resulted in the parties moving to Denmark, and the evidence satisfies me that she was in, as far as she was concerned, a desperate situation. She did what it took to make the Denmark posting happen, because the evidence also satisfies me that the situation was not sustainable in Ontario; the family could not continue to subsist on Ontario Works and she would suffer serious harm to her career were she not to go to Denmark. The alternative would be to lose custody of her child and travel to Denmark alone. The fact that she would have done anything because she was in a personally desperate situation leads me to believe that a finding of duress can be made, irrespective of her apparently calm demeanour before Tom Merrifield, the lawyer who witnessed the agreement without providing legal advice.

[40] I find that, when this agreement was presented to Ms. Schroeder, that there “was a real power imbalance at that point” and Mr. McCormack “held all the cards”: see Stergiopoulos v. Von Biehler, 2014 ONSC 6341 at para. 67. In that case, a marriage contract was set aside because the husband felt that to sign the agreement was the only way to avoid assault charges which would have jeopardized his employment with the Department of National Defence.

[41] That case involved a marriage contract that purported to deal with property and spousal support. The issue of power imbalance and duress becomes even more important where there is a child involved. Under the circumstances, both parties had their own agenda respecting the agreement; Mr. McCormack wanted to ensure that he would be able to leave Denmark with Flynn if he so desired and if the relationship broke down, something entirely foreseeable at that time. Ms. Schroeder wished to ensure that she continued to parent Flynn, that the family had financial stability and that her career survived intact. Neither party was particularly intent upon examining Flynn’s best interests at the time, and each party was operating from the fear of what would take place if the relationship finally broke down. The agreement cannot be said to be the result of a reasoned examination or determination of Flynn’s best interests; in fact, according to her email of January 16, 2016, Ms. Schroeder was originally intent upon shared custody of Flynn, something not reflected in the agreement presented to Ms. Schroeder.

[42] Therefore, were it necessary to do so, I would set the agreement aside under s. 56(1) and (4) of the Family Law Act as it does not necessarily address the best interests of the child. Further, based upon the circumstances under which the agreement was signed, and the fact that Ms. Schroeder signed it because she was caught between the choice of economic stability on one hand and losing her child on the other, and was also given no chance to negotiate the agreement, I give the recitals of fact in that agreement little or no weight in my determination of Flynn’s habitual residence in this Hague Convention application.

iii. Displacement of Provisions of Hague Convention by Agreement

[43] Finally, even if the agreement were valid and enforceable, there is authority for the proposition that the agreement cannot, in any event, displace the provisions of the Hague Convention.

[44] “Habitual residence” under the Hague Convention is not defined, but courts have referred to the definition of the section contained in s. 22(2) of the Children’s Law Reform Act: see Solem v. Solem, 2013 ONSC 1097 at para. 33 and Medhurst v. Markle, 1995 CarswellOnt 1096 (C.J.) at para. 26 and 27.

[45] In Sanders v. Sanders, 2014 ONCJ 20, the court considered a court order which was entered into as a condition of allowing the mother to move to Switzerland with her new partner. The order provided that the Ontario Court of Justice would remain “seized” of any future variation proceedings concerning custody of the child.

[46] The mother did not return from Switzerland and began proceedings there to exclude the father from the child’s life. The father brought proceedings in Ontario, relying upon the agreement.

[47] P.A. Hardman J. found that the child was habitually resident in Switzerland. He stated that the order “cannot confer jurisdiction on a court that the court does not have in law.” Because the habitual residence of the child was in Switzerland, the order could not give jurisdiction to the court where s. 22(2) would not allow it. It is the facts on the ground that determine the habitual residence of the child rather than any agreement of the parties.

[48] Therefore, notwithstanding the Parenting Agreement in this matter, which states that Flynn was only in Denmark as a visitor, the court must determine habitual residence from the facts of this case rather than any agreement between the parties. The facts on the ground rather than the terms of the agreement are determinative as to habitual residence, which will be considered in the next portion of this endorsement.

iv. Conclusions

[49] In short, I find that the agreement is a cohabitation agreement as the parties had not separated when it was entered into. It is unable to bind the parties as to custody and access issues. Even without negotiation in a situation of unequal bargaining power; I am also concerned that it was drafted with the interests of the parties in mind, rather than the best interests of Flynn. Similarly, I do not find that the facts recited in the agreement are reliable or should carry any weight in my determination of habitual residence, again because of the circumstances surrounding the execution of the agreement by the Applicant. And even were weight to be given to those facts as recited in the agreement, they cannot displace or affect the determination of habitual residence under the Hague Convention.

b. Was Flynn habitually resident in Denmark at the time of his removal?

[50] As noted above, in determining habitual residence under the Hague Convention, the court is to have reference to the test for habitually resident as defined by s. 22(2) of the Children’s Law Reform Act. That section provides that a child is “habitually resident in the place he has resided with… both parents”.

[51] Habitual residence is not defined in the Hague Convention. However, J. Mackinnon J. set out a useful summary of the criteria for habitual residence drawn from the case law in Maharajh v. Maharajh, 2011 ONSC 525 at para. 7:

(a) It is a question of fact to be decided based on all the circumstances. (b) It is the place where the person resides for an appreciable period of time with a "settled intention". (c) A "settled intention" or purpose is intent to stay in a place whether temporarily or permanently for a particular purpose. [13] (d) A child's habitual residence is tied to the child's custodian(s).

[52] Accordingly, as set out by Proudfoot J. in Chan v. Chow, 2001 BCCA 276, a child’s habitual residence is tied to the habitual residence of his or her custodians. This requires an examination of the habitual residence of both of the parents of the child; although the Respondent took a lot of time in his materials to show that he was the primary caregiver of the child this does not necessarily affect the determination of the habitual residence of the child: see Wentzell Ellis v. Ellis, 2010 ONCA 347 at para. 27 and 29-30 and Maharajh v. Maharajh, at para. 8.

[53] The intent of the parties need not be to reside permanently in the jurisdiction in question; a temporary move to that jurisdiction will do: see Wentzell-Ellis and H.(A.) v. H.(F.S.), 2013 ONSC 1308 at para. 52 as aff’d by Hammerschmidt v. Hammerschmidt, 2013 ONCA 227. Krusack J. in H.(A.) also noted that “intention is examined through one’s actions” and that is what I have to look to in this case in order to determine habitual residency. In the words of Ms. Ng, I have to look at the “facts on the ground” to determine who intended what.

[54] There is little question that Ms. Schroeder had intended to live and work in Denmark for the coming two years when Flynn was removed from that jurisdiction. The issue before the court is the intent of Mr. McCormack when he moved to Denmark: did he intend to reside indefinitely, or had he a different intention as submitted by his counsel? Did he truly intend only to stay in Denmark for 60 to 90 days, and then return to Canada with Flynn? Or alternatively, did he have a settled intention to reside in Denmark as a family along with the Applicant and Flynn?

[55] It is clear that, when the parties moved to Denmark, the parties had not sojourned for any lengthy period of time in any particular jurisdiction. The parties began cohabitation about three years ago. Flynn was born in Toronto in February, 2014, and the parties then lived in Toronto for about five months. Ms. Schroeder is a U.S. citizen, and a research scientist. It was common ground that her area of expertise is quite specialized; she is unable to work in Canada without a work permit, and it is apparent that she requires an academic placement either in research or teaching for her employment.

[56] After Flynn was born, the Applicant’s research fellowship in Toronto expired. She could not find work in Ontario but was able to find employment in Singapore and the parties moved there together in July, 2014. They returned for visit to Toronto in May, 2015 after 10 months; Ms. Schroeder claims that, at that time, Mr. McCormack refused to return to Singapore with Flynn and forced her to resign her position in Singapore. Mr. McCormack says that he had nothing to do with her losing that job and that she was terminated for some other reason. Whatever the reason for this job ending, Ms. Schroeder received three months’ severance pay, and the parties used this settlement to travel to several exotic locations including Los Angeles, the U.K. and France between May, and August, 2015. Ms. Schroeder interviewed for the position in Denmark in July, 2015, during the the parties’ stint in Europe. Part of her termination pay was also used in the purchase of a vehicle which was placed in the Respondent’s name.

[57] When the parties ran out of money, they returned to Ontario. They stayed for a period of time at the Respondent’s brother’s home in Toronto; eventually, they moved to a one-bedroom apartment in a home owned by the Respondent’s friend in Collingwood. Ms. Schroeder describes the parties being in a “financially desperate” situation while Mr. McCormack says it was not that bad; however, it is clear that by late 2015, the parties were subsisting on general welfare assistance, and that after payment of rent, the parties had $300 to live on each month. Ms. Schroeder says that she borrowed money from her parents and her grandmother to get by. She says that she tried but could not obtain employment in Ontario and was unable to work here without a work permit because of her U.S. citizenship. It appears that Mr. McCormack had no long term plan to obtain employment; indeed, he acknowledges that he had made the decision not to work and to concentrate on raising his son.

[58] It was in this context that Ms. Schroeder was offered a job at the university at Aarhus in Denmark. Her pay was to be $104,000 per annum with special tax treatment for the first five years of residency. On December 3, 2015, the parties entered into a lease on an apartment which was found by the university housing office (signed by Ms. Schroeder but with both parties’ names on the lease). Ms. Schroeder signed her employment contract on December 20, 2016. The application for a work visa was delayed by Ms. Schroeder’s lack of funds; she had to borrow money from her parents to pay the fees and the fees were not paid promptly. Her parents also paid for the tickets for the family to fly to Denmark.

[59] I have already examined the issue of whether the parties had separated at the time that they signed the parenting agreement and flew to Denmark at the end of January, 2016. I have found that their common law relationship was, at that time, troubled, but intact. It was not until late March that the parties could be said to have separated; certainly at the latest it was when Mr. McCormack left Denmark with Flynn with the intent of enforcing his custodial rights.

[60] Notwithstanding the fact that the parties were still in a relationship when they went to Denmark, it is conceivable that Mr. McCormack never intended to stay any length of time in Denmark, and was only intent upon a short and limited stay there. It is conceivable that he had no settled intent to remain in Denmark.

[61] In support of this proposition, he says that he had no right of permanent residency in Denmark. He says that his application for a British passport (which he says was never completed) had nothing to do with moving to Denmark. He says that without EU residency, he could only stay a maximum of 90 days in Aarhus and that he would have had to leave at the end of that time. He notes that the parties never obtained health care coverage for Flynn and this also points to the fact that there was no habitual residence of Flynn in Denmark and that it was intended to return him to Ontario when his time in Denmark expired.

[62] Much of this is addressed by the correspondence from the university housing office, which explains how residency was to be obtained for the members of this family. [14] That email was sent in July, 2015, presumably when Ms. Schroeder interviewed for the position. The email spoke of Mr. McCormack taking “residence” in Demark “[a]s an EU-citizen” which appears to presume that he was an EU citizen, or eligible to become one. He was only able to do so as a British subject, which would again, presumably, be proven through the acquisition of a British passport.

[63] According to the passport application, Mr. McCormack had submitted his application for a British passport on January 26, 2016. [15] He acknowledges in his affidavit that he had applied for his British passport, but that this “application was unrelated to Denmark”. He says that he applied for the passport at the request of the Applicant. He is otherwise somewhat coy about his British passport application. He may have obtained it and he may not have. He does not explain why, in fact, he was applying for a British passport at that time, if it was unrelated to Denmark. All he says is that the application was at the behest of Ms. Schroeder. All of the information respecting the passport application was exclusively in the possession and control of Mr. McCormack.

[64] And the emails between Mr. McCormack and his friend, Geoff Adamson, tend to show that the passport was part of his plan of moving to Denmark. On November 19, 2015, Mr. McCormack writes to Mr. Adamson, about renting the apartment in his home in Collingwood; he sets out the parties’ plan to “go to denmark mid jan.” [16] On January 23, 2016, Mr. Adamson wrote to Mr. McCormack discussing his plan in which he would have been interested in considering the fact that the family was renting a floor in his home. Mr. Adamson states in that email that he “assume[s] leaving next weekend in time for Flynn to have his birthday in Aarhaus” and then suggests some “Departure items” including the fact that “you need a UK passport and a job plan.” He also says “I presume you are selling your car.” [17] Later, on February 9, 2016, Mr. McCormack is still working on his British passport from Denmark; he emails Geoffrey Adamson confirming that he is having “Mike… sign the witness thing for the passport.” [18]

[65] In fact, as suggested in the January 23 email, Mr. McCormack did list his car for sale, which was a vehicle purchased by Ms. Schroeder but put in his name. Again, Mr. McCormack says that this had nothing to do with the move to Denmark. He says in his affidavit that he did this, not because he was moving to Denmark, but because he “needed money.” [19] This belies his position during argument that the parties were not in “desperate” financial circumstances as suggested by Ms. Schroeder in her affidavit because they were receiving sufficient income through Ontario Works when living in Collingwood.

[66] It is up to Mr. McCormack to carefully explain the circumstances of his application for a British passport because this information was solely within his possession and is crucial to the issue of his settled intention to remain in Denmark. He does not present the court with the result of the passport application or discuss whether he had obtained what we would call a guarantor of the passport. He does not explain why, in fact, he applied for a British passport in late January, 2016, if it had nothing to do with moving to Denmark; otherwise, one has to wonder, why else would he have applied for a passport? In light of the fact that Mr. McCormack strongly relies upon the fact that neither he nor Flynn had Danish residency, it was particularly important that he explain the reasons for that application, and what, in fact, happened to that application. He did not. Accordingly, I can only assume that the evidence surrounding this application would shed a negative light on this position, and I can therefore only draw an adverse inference from Mr. McCormack’s failure to completely address this issue in his affidavit.

[67] I find it difficult to believe the father’s evidence that it was only coincidence that he applied for the British passport on the eve of moving to Denmark. I therefore find that, as stated by Ms. Schroeder, the father had planned to establish British citizenship, and correspondingly EU residency, allowing him to give Flynn the right to remain in Denmark, and health care for both of them under Danish law.

[68] This is especially so where Mr. McCormack also does not appear to have made it clear to anyone amongst his own circle that he was intent upon moving to Denmark only temporarily, and would be returning with Flynn in three months. Mr. McCormack had not told either his brother or his sister in law that he was intent upon only staying in Denmark temporarily. Christopher McCormack does not mention at all in his affidavit that Mr. McCormack had intended to remain in Denmark temporarily even though he was closely involved in the discussions during the day of the signing of the parenting agreement. Wendy Robertson deposes that she was “not aware that Jeremy and Flynn were returning to Canada when they did” and was only told by Mr. McCormack that he elected to return to Canada “early” after the fact. [20]

[69] And if Mr. McCormack only intended to live in Denmark temporarily, I cannot understand why he would get on a plane to Denmark without return tickets and when he was penniless and financially dependent upon the Applicant. On February 9, 2016, he confirmed to his brother that he felt “trapped”. [21] On the same day he emailed Geoff Adamson about obtaining another guarantor for his passport which appears to confirm that he was then anything but trapped, but was voluntarily pursuing his application for the British passport. When he apparently had doubts about his relationship with Ms. Schroeder in March, 2016, he purchased return tickets for himself and Flynn rather than one way tickets. He described this as a “precaution”; I again have to ask, precaution for what?

[70] Mr. McCormack is the type of individual who plans ahead, as evidenced by the parenting agreement and the purchase of return tickets to Ontario in March of 2016. However, that parenting agreement did not mean that the relationship was over; it was, in my view, Mr. McCormack’s means of keeping his options open if the relationship broke down in Denmark which was entirely foreseeable based upon how the parties were getting along at the end of January, 2016. The same applies to his decision to purchase return tickets in March, 2016; he kept his options open. I find his actions in travelling to Denmark with the Applicant on one way tickets inconsistent with his other decisions, all designed to keep his options open.

[71] Finally, as can be seen, there are numerous inconsistencies and omissions in the evidence provided by Mr. McCormack. I therefore have concerns as to the credibility of his evidence.

[72] The evidence therefore satisfies me on the balance of probabilities that Mr. McCormack was intending to travel to Denmark for an indefinite period of time when he flew there on January 30, 2016. He only made up his mind to leave when he purchased the tickets for Flynn and himself in mid-March, 2016; based upon his purchase of return tickets, he apparently was then more intent upon returning to Denmark than he was intent upon returning to Ontario with Flynn in January.

[73] Mr. McCormack argues that neither he nor the Applicant had any intention of staying in Denmark. He cites a job application made to Stanford by the Applicant soon after arriving in Denmark. He says that that Applicant had her own doubts about going to Denmark and nearly did not get on the plane on January 30.

[74] The fact is that the Applicant went to Denmark to work and continues to live there. It is clear that she had a settled intent to live in Denmark at the time that Mr. McCormack removed Flynn from Denmark. Her doubts about moving there do not mean that there was no habitual residence; she went to Denmark notwithstanding those doubts. And the job application to Stanford was only keeping a promise to the Respondent which was to look for work in North America if she could because the Respondent had his own doubts about Denmark. [22]

[75] And even if Mr. McCormack, or indeed both of the parties, only had the intention of remaining in Denmark on a temporary basis, this is not fatal to the notion of habitual residence under the Hague Convention. In H.(A.) v. H.(F.S.), similarly to the present case, the mother of the child had only a temporary three-month visa to remain in Australia. In that case, the mother had told family and a friend that she had only intended to remain in Australia temporarily; Mr. McCormack appears not to have told anyone that prior to leaving. The parties in H.(A.) had return flights to Canada when they went to Australia, and the mother and child returned to Canada after only 2½ months in Australia. Notwithstanding all of these facts, Krusack J. found habitual residence in Australia sufficient to engage the Hague Convention.

[76] Mr. McCormack also acknowledged in several emails that he had “moved” to Denmark. He did so on April 18, 2016, stating that he had “left my life in Toronto… to move to Denmark to help and care for you.” [23] Later, on April 26, 2016, he complained that “if there was a Marie free of anger, and free from lying, …I would still be in Denmark.” [24] It is also significant that he purchased return tickets when he flew with Flynn to Toronto.

[77] As well, considering the past moves, Denmark was as much, if not more, of a habitual residence than was Ontario immediately prior to the move to Denmark. When the parties were here, they were in difficult financial circumstances. They were on welfare, living firstly in the home of the Respondent’s brother, and then in a one bedroom apartment in the home of a friend. The mother stated on several occasions that she was content to remain here if the Respondent could come up with a viable financial plan permitting the parties to do so. As far as I could see, the only plan of the Respondent was to do his taxes for the past few years and obtain a tax refund which would provide much needed cash. Apparently, the Respondent never took steps to complete those tax returns. The Respondent himself acknowledged his need for cash when he says that he was attempting to sell his car because he needed the money. I disagree with the Respondent’s counsel when she suggests that subsisting on public assistance in a friend’s apartment was a long term and viable financial plan for this family. The stay in Ontario was limited by the parties’ financial circumstances which were straightened, if not desperate.

[78] There is other evidence that the parties had a settled intention to move to and live in Denmark. These factors include the following:

a. The parties gave up their apartment in Collingwood and Mr. McCormack had emailed his friend to make it clear that they would be vacating the apartment in mid-January; b. Mr. McCormack listed his vehicle for sale. Although he had left it in the parking area at Pearson airport, he asked his brother go there to get it. c. Mr. McCormack removed himself from Ontario Works prior to going to Denmark. He did not do this, as far as I can see, temporarily. d. The parties obtained an apartment in Aarhus. The lease was for six months. Although the lease was signed by the Applicant, she had the lease placed in both names which indicates that she, at least, thought that the parties mutually intended to reside in Denmark together. e. When the parties arrived in Denmark, they quickly moved into a family routine. The family would wake up and eat breakfast together and after Ms. Schroeder went to work, Mr. McCormack spent the day with Flynn. They would go to the museum, or participate in other activities. Although the parties differed as to when Ms. Schroeder would return from work, it is clear that there was a family routine together during their time there. f. At one point in time, soon after arriving in Denmark, Mr. McCormack wrote to his brother complaining that he felt “trapped” in Denmark and blaming his brother for this. Had Mr. McCormack been vacationing for a limited period of time, he could hardly complain about being “trapped” in Denmark. On the same date, he wrote to a friend about the passport process and obtaining another guarantor to the passport. g. The parties purchased a membership for Mr. McCormack and Flynn at the National History Museum in Aarhus.

[79] Based upon all of these factors, I find that the parties had a settled intention to reside in Denmark. Their habitual residence, and therefore the residence of Flynn at the time of his removal, was in Aarhus Denmark.

[80] I have already discussed the other two criteria applicable under the Hague Convention. Ms. Schroeder had custodial rights to Flynn, and as he was removed from Denmark contrary to those custodial rights, the removal by Mr. McCormack was wrongful.

[81] Counsel for Mr. McCormack acknowledged no risk of harm under Article 13 of the Convention.

Disposition

[82] There shall therefore be an order that Flynn be forthwith returned to Aarhus, Denmark pursuant to Article 12 of the Hague Convention.

[83] The parties may make submissions as to costs, with the Applicant and then the Respondent making submissions on a ten day turnaround. Submissions shall be no more than 5 pages in length not including any offers to settle and bills of costs.

McDERMOT J.

Released: June 24, 2016

Footnotes:

[1] The Convention on the Civil Aspects of International Child Abduction adopted in Ontario by s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12

[2] See The Danish Act on Parental Responsibility, s. 7 which is attached to the affidavit of Per Gunhard Nielson found at Vol. 3, Tab 7 of the Continuing Record. Mr. Nielson practices family law in Denmark and provided an opinion that the parties had joint custody of Flynn. However, a reading of the Act confirms that unless certain conditions are met respecting unmarried couples, “the mother has sole custody.” It was apparent from a reading of the Act that those conditions had not been met in this case, and accordingly, notwithstanding Mr. Nielson’s opinion, it appears that on separation Ms. Schroeder would have sole custody of Flynn under Danish law. Either way, Ms. Schroeder had custodial rights under Danish law when Mr. McCormack removed Flynn from Denmark at the end of March, 2016.

[3] R.S.O. 1990, c. F.3

[4] Ex. E to the Respondent’s affidavit sworn May 14, 2016 at Tab 8, Vol. 3 of the Continuing Record

[5] Ibid., Ex. F

[6] Ibid., Ex. J

[7] Ibid., Ex. K

[8] Ibid., Ex. H

[9] Ex. I and L to the affidavit of Ms. Schroeder sworn Mary 28, 2016 at Tab 6 of Vol. 2 of the Continuing Record.

[10] Ex. A to the affidavit of Ms. Schroeder sworn March 9, 2016 at Tab 4 of Vol. 1 of the Continuing Record.

[11] Affidavit of Mr. McCormack at para. 45

[12] Ex. B to the affidavit of Christopher McCormack sworn May 18, 2016 at Tab 9 of Vol. 3 of the Continuing Record.

[13] Or several purposes: see H(A.) v. H.(F.S.) citing Chan v. Chow at para. 52

[14] Ex. H to the affidavit of Ms. Schroeder sworn May 28, 2016 found at Tab 6 of Vol. 2 of the Continuing Record

[15] Ibid, Ex. J, p. 4 of 9

[16] Ibid., Ex. D

[17] Ibid., Ex. F. Also at Ex. I.

[18] Ibid., Ex. L.

[19] Paragraph 86 of the affidavit of Mr. McCormack sworn May 19, 2016 at Tab 8 of Vol. 3 of the Continuing Record.

[20] Paragraph 16 of the Affidavit of Wendy Robertson, at Tab 10 of Vol. 3 of the Continuing Record.

[21] Ex. P to the affidavit of Respondent sworn May 19, 2016 at Tab 8 of Vol. 3 of the Continuing Record.

[22] See the email from the Applicant to the Respondent dated January 28, 2016, where she suggests that, “we will both look for jobs/funding so we can support ourselves back in North America”: Ex. K to the affidavit of the Respondent sworn May 19, 2016 at Tab 8 of Vol. 3 of the Continuing Record.

[23] Ex. J. to the Affidavit of the Applicant sworn May 9, 2016, found at Tab 4 of Vol. 1 of the Continuing Record

[24] Ibid., Ex. H