CITATION: Usmani v. Hassan, 2016 ONSC 6453
COURT FILE NO.: FS-16-20911
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
USAMA PARWEZ USMANI
Applicant
- and -
BEENISH HASSAN
Respondent
Michael Stangarone/Kristy Maurina, for the Applicant
Robert M. Halpern/Adam Black, for the Respondent
HEARD: October 6, 2016
HOOD J.
REASONS FOR DECISION
Nature of Proceeding
[1] This is an application brought by the father, Usama Parwez Usmani (the “AF”), under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, (entered into force 3 September 1953) [Convention], against the mother, Beenish Hassan (the “RM”), seeking the return of their son, Ismael Usama Usmani, from Ontario to California.
[2] A total of 18 affidavits were filed on the application before me. I have reviewed all of them. In addition to those from the AF and the RM, there were numerous affidavits for each side from a variety of family members and friends. There was no questioning on any of the affidavits. The stories portrayed, for the most part, were diametrically different. Even if there was agreement as to a date or event, often the interpretations placed upon the event by the AF and the RM differed.
[3] Briefly put, Ismael was born in California on October 26, 2015. After his birth, he lived there with both parents. From December 2, 2015 to March 6, 2016, Ismael was in Toronto with the RM. On March 7, 2016, Ismael and the RM returned to California. He lived there with both parents. On April 22, 2016, Ismael travelled to Connecticut with the RM. On May 4, 2016, the RM and Ismael travelled from Connecticut to Toronto. On June 10, 2016 the AF commenced the within application.
[4] For the reasons that follow, I allow the AF’s application and find that Ismael should return to California. The California courts can deal with the issues of custody and access.
Facts
[5] The AF and RM met online in late 2012 or early 2013. The AF is an engineer and works in San Jose, California. He lives in Milpitas, California. He is a U.S. citizen.
[6] The RM was completing her Master’s degree at the University of Toronto. She lived in Toronto. She is a Canadian citizen.
[7] The RM argues that this was a long distance courtship between virtual strangers with separate households. How the relationship started or how it developed is not relevant to the issue I have to decide. The fact is they married in May 2013 in the U.S., and in December 2013 had a number of wedding celebrations in the U.S.
[8] Both parties argue as to what their intentions were following marriage. The RM argues that they always intended to live in Toronto. The AF argues that they always intended to live in California. Rather than consider what the parties’ intentions may have been, it is more important to look at what actually occurred.
[9] In June 2013, following their marriage, the AF commenced the U.S. immigration process for the RM. In April 2014, after losing her job in Ontario, the RM moved to California and the parties lived together. In July 2014, the RM applied for a Visa and in September 2014, the RM travelled back to Canada for her immigration interview. On November 5, 2014, she received a Permanent Resident Visa from the U.S. government. She travelled back to California and the parties lived together in Milpitas, California.
[10] In early February 2015, the RM became pregnant. Due to complications with the pregnancy, she was unable to travel. Ismael was born in San Jose, California on October 26, 2015. The parties took Ismael to a pediatrician in Milpitas, California.
[11] On December 2, 2015, the RM and Ismael travelled to Toronto. The RM alleges that this was intended to be a permanent move to Toronto, with the AF’s consent, with the intention that the AF would follow to set up permanent residence in Toronto. She argues that Ismael has been habitually resident in Toronto since then. The AF alleges that this was a temporary visit with the RM’s mother and family as part of their cultural practice following Ismael’s birth.
[12] There is no evidence supporting the RM’s position other than her own affidavit. The fact that Ismael had a nursery set up at his maternal grandparents’ house is irrelevant. This is no sign of permanence. In any event, much of Ismael’s baby things returned with Ismael to California in March 2016. Nor is the fact that Ismael had an Ontario health card evidence of permanence. There is no suggestion or evidence that the AF took any steps in accordance with this alleged plan, such as seeking immigration status in Canada. To the contrary, the RM had already taken steps to permanently immigrate to the U.S.
[13] The RM argues that the fact the trip to Toronto was on one-way tickets is relevant and is evidence that there was no plan to return to California. I place no weight on these one-way tickets any more than the other one-way tickets bought. As pointed out by the AF, the RM travelled to California in April 2014, November 2014, and March 2016 on one-way tickets, yet she argues there was no intent to stay permanently in California.
[14] What I find more relevant is the initial Canadian passport application for Ismael prepared by the RM in February 2016, while she was in Toronto with her parents. On the initial application, she indicated that Ismael had a current home address in Milpitas, California. While this address was ultimately changed to a Toronto address on the actual application, I find that this was done at the RM’s suggestion in order to facilitate the obtaining of Ismael’s Canadian passport. In addition, when the U.S. passport application was submitted earlier by the parties, Ismael’s mailing address was Milpitas, California and Canada was indicated as a country to be visited.
[15] In March 2016, the RM and Ismael travelled to California. The RM alleges that the return was solely for the purpose of Ismael obtaining medical treatment that he was unable to obtain in Ontario, and the fact that Ismael thereafter lived with both the AF and RM in California should not be viewed as support of Ismael’s habitual residence being Milpitas, California. The AF alleges that this was always the plan. He alleges that Ismael and the RM’s stay in Toronto was only a temporary visit with her family and that once the trip they had planned to Pakistan was cancelled, due to concerns over Ismael’s health, the RM decided to return to California.
[16] Whatever the reason for the return, it is clear that from March 2016 onwards the parties were living together with Ismael in California.
[17] The RM argues that it would be contrary to public policy to find that California was Ismael’s habitual residence if he travelled there and stayed there in order to receive medical treatment which was unattainable in Ontario.
[18] While there is evidence of Ismael having a severe diaper rash, I do not accept that this was the reason for his return to California. I believe that the medical issue and the alleged inability to obtain treatment in Ontario was something arrived at after the fact, in order to attempt to explain away the return to California in March 2016.
[19] There is no evidence that medical specialists in Ontario were incapable of diagnosing Ismael’s diaper rash. As it turned out, it was a result of an allergic reaction to his formula. Once it was changed, the rash almost immediately cleared up. Ismael’s pediatrician in Ontario made a referral on March 4, 2016, to an infectious disease specialist. The RM sent it to specialists in California, not to specialists in Ontario. If she was intending to stay in Ontario with Ismael rather than return to California with him, then it made no sense to do this.
[20] As well, if the return was simply due to Ismael’s medical condition, he was completely cured soon after his arrival in California, as confirmed in a check-up on March 18, 2016. Despite this the RM stayed in California rather than returning to Toronto. This suggests that this was because California was their home.
[21] Moreover, the RM issued an application for custody of Ismael in the Ontario Court of Justice (the “OCJ”) on May 9, 2016. In this application, there is no mention of Ismael’s medical condition as being the reason for the return to California. Rather, she alleges in the OCJ application that the AF “forced the child and I to visit his parents again in California”. I do not accept this either. I find that it was always the plan for Ismael and the RM to return to California to live there with the AF.
[22] On April 22, 2016, the RM and Ismael flew from California to Connecticut for a family visit and wedding. This was on a return ticket, with a return date of May 23, 2016. Rather than returning she flew with Ismael to Toronto.
[23] The RM alleges that the parties had agreed to separate during a family meeting that took place a few days prior to the departure of April 22, 2016. While both parties agree that a family meeting took place, they disagree over what was discussed. The AF alleges that it was to discuss recent erratic behavior of the RM and ways to improve their marriage. The RM alleges that it was to discuss the AF’s recent violence against her and Ismael. The RM further alleges that at this meeting, the AF agreed that the parties would separate and he gave his consent for the RM to permanently return with Ismael to Toronto following the visit to Connecticut. The AF denies this.
[24] The affidavits filed on behalf of the AF confirm that there was a meeting, but make no mention of any agreement and deny any discussion of abuse by the AF. Those on behalf of the RM, again while confirming that there was a meeting, do not clearly corroborate the RM’s allegations and give slightly different versions of what allegedly happened at the meeting.
[25] Regardless of what may have been discussed at the meeting, I am unable to find that the AF consented to Ismael returning to Toronto on either a permanent or temporary basis. There is no acceptable independent evidence of this from a third party. There is no corroborative evidence from the RM such as a letter, email, or text confirming the AF’s consent to the arrangement. The OCJ application makes no mention of this meeting or the consensual arrangement. The OCJ application states that the RM “escaped” from California to get away from the AF’s physical and emotional abuse.
[26] More telling as to whether any consent was given by the AF at this meeting is the fact that the RM, in her initial affidavit of June 23, 2016, in response to the AF’s Convention application, makes absolutely no mention of such a meeting and makes no suggestion that there was any consent given at the meeting. Rather, she states that it was while she was in Connecticut that she informed him during a telephone conversation that she was going to Toronto. It was only in her later affidavit that she mentioned the meeting. As well, the RM’s position is that consent was given for Ismael and the RM to live permanently in Toronto by the AF prior to their trip to Toronto in December 2015, and that Ismael’s habitual residence was created in Toronto at that time. However, the difficulty with this position is, as mentioned previously, Ismael’s return to California with the RM in March 2016, and the fact that thereafter the AF, the RM, and Ismael were together as a family in California until her return with Ismael to Toronto.
[27] Following the service of the OCJ application on the AF in mid-May 2016, the AF issued his Convention application on June 9, 2016.
Law
[28] The objective of the Convention is to secure the prompt return of children wrongfully removed or retained in any Contracting State, and to ensure respect for rights of access and custody. It is the courts of the country in which the child was habitually resident before his or her wrongful removal that are to decide custody and access: Wentzell-Ellis v. Ellis, 2010 ONCA 347, at para. 17.
[29] It is in the best interest of children that the courts of their habitual residence decide the merits of any custody issue. This discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown: Cannock v. Fleguel, 2008 ONCA 758, at para. 23.
[30] In considering whether the removal or retention is wrongful under Article 3 of the Convention, the court must determine where the child was habitually resident immediately before the removal or retention.
[31] In addition, under Article 3 of the Convention, the court must also consider whether the removal or retention is a breach of the applicant’s rights of custody. That is not an issue before me. The RM acknowledges that the AF has rights of custody. What she argues is that Ismael was habitually resident in Ontario, not California, so that accordingly there is no wrongful removal or retention.
[32] There is no definition of habitually resident in the Convention.
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (the “Act”) contains a definition of habitually resident. A child is habitually resident where he or she resided with both parents or 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, whichever last occurred: s. 22(2)(a) and (b).
[34] California is the only place where Ismael has resided with both parents. While now separate and apart, there is no court order or separation agreement. Acquiescence is not raised by the RM. Nor does she allege implied consent. She alleges that there was explicit consent from the AF either in December 2015 or alternatively in April 2016. As herein before set out, I find that there was no such consent. It was the RM’s burden to prove consent and she has not done so.
[35] However, the courts in Ontario do not solely rely upon s. 22(2) of the Act in determining habitual residence: Balev v. Baggott, 2016 ONCA 680, at para. 36 [Balev]; Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), [2004] W.D.F.L. 491, [2004] O.J. No. 3256 (C.A.) at para. 8.
The principles to be considered in determining habitual residence are as follows:
- The question of habitual residence is a question of fact to be decided based on all of the circumstances;
- The habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
- A “settled intention or purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
- A child’s habitual residence is tied to that of the child’s custodian(s).
[36] The courts have interpreted this to mean that the habitual residence of a child will be the state where both parents lived together with the child, and neither parent can unilaterally change the habitual residence, without the express or implied consent of the other parent: Balev, at para. 19; Cornaz v. Cornaz-Nikyuluw, [2005] W.D.F.L. 4480, [2005] O.J. No. 4121 (S.C.J.), at para. 50.
[37] It is clear that the only state where both parents lived together with Ismael was in California. Moreover, this was how they lived as of April 22, 2016, just before the RM moved alone to Toronto with Ismael. It is also clear that the AF has absolutely no connection to Ontario. He has lived for the past 14 years in the U.S. and for the last 8 in California. He has no status in Ontario. He is a U.S. citizen. His job is in California, his family is in the U.S, and there is nothing to show that he intended to leave California for Ontario. Ismael’s habitual residence is in California.
[38] There is no consent of the AF, either express or implied, to change Ismael’s habitual residence to Ontario. The onus is upon the parent alleging such consent to prove it with clear and cogent evidence: Katsigiannis v. Kottick-Katsigiannis, 2001 24075 (ON CA), [2001] W.D.F.L. 575, [2001] O.J. No. 1598 (C.A.), at para. 49; Maharaj v. Maharajh, 2011 ONSC 525, at para. 19. The RM has failed to do so.
[39] The RM argues that if the court finds Ismael to be habitually resident in California, as I have done, that I ought not to order his return. She argues that there is a grave risk that Ismael’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. This is a defence under Article 13(b) of the Convention.
[40] The physical or psychological harm contemplated under the Convention is harm to a degree that also amounts to an intolerable situation. The risk has to be more than taking Ismael from the RM, his primary caregiver, and passing him to the AF: Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, 50 A.C.W.S. (3d) 812, at paras. 80–82 [Thomson].
[41] I recognize that it is not the best situation for Ismael to move back and forth from one caregiver to another. He is now almost one year old. However, the AF has moved promptly for his return and the ordinary effects of settling in do not warrant a refusal to surrender. While there may be some psychological harm in having Ismael move from the RM to the AF, this does not rise to the level of harm severe enough to invoke Article 13(b): Thomson, at paras. 81–82.
[42] The RM argues that due to Ismael’s young age and the fact she has been his primary caregiver, any removal from her would result in psychological harm amounting to an intolerable situation. There is no evidence in support of this and even if there was, it would go to the merits of a custody hearing: Thomson, at para. 82. Moreover, to recognize an argument based on a child of tender years would effectively carve out an exception to the Convention, which would be inappropriate.
[43] The RM alleges that the AF has physically and emotionally abused her, and physically abused Ismael. These are allegations only and are denied by the AF. There are conflicting affidavits from multiple interested deponents. There is no corroborating independent evidence such as from doctors, the police, or a child protection agency.
[44] The RM argues that there is a grave risk of physical harm if Ismael is returned. The allegations of physical violence as herein before set out are all disputed by the AF and have no independent proof. There is difficulty in a summary hearing such as this, based upon affidavit evidence, to meet the test under the Convention of being intolerable. However, while the onus is high, the test must still be met. I have concluded that the RM has not done so.
[45] The issues of psychological harm and physical harm can all be dealt with by the California courts. There was no evidence presented that the California courts are unable to deal with the issues of custody and access. Under s. 3011 of the California Family Code, the California court would be able to consider all of these issues in making its determination as to the best interests of Ismael. Nor was there any evidence that the California court would be unable to protect the RM, if need be, from the AF while she argues custody and access there.
[46] Nor was it argued before me that the California court would be unable to deal with issues of interim support for the RM. Unless there is evidence to the contrary, which there was not, I am entitled to assume that the law of California is the same as the law of Ontario, and the RM will be able to apply for interim support if she decides to make such a claim.
Disposition
[47] The AF’s application is allowed. An order is to issue in accordance with paragraphs 1 and 2 of the application commenced on June 9, 2016.
[48] The RM, through her counsel, has undertaken to cooperate with any order made, and argues that paragraphs 3 and 4 of the application are unnecessary. Despite that, an order is to issue in accordance with paragraph 3 of the application.
[49] This is all that was effectively sought on the application. However, there was also a cross-motion from the RM. While she was seeking a dismissal of the application if access was to be granted, she was asking that it take place in Ontario. The following paragraphs of my order are designed to facilitate a transition for the parties until the California court assumes jurisdiction and makes its own orders.
[50] Given Ismael’s age and the fact that he has been with the RM since April 2016, it is appropriate that she travel with him. The AF shall cover their airfare expenses to California.
[51] In California, Ismael shall remain in the RM’s care and the AF shall have reasonable access to Ismael until further order from the California court. The parties shall cooperate in working out reasonable custody and access arrangements, and moving this matter through the California court.
[52] The AF has undertaken to arrange for and pay for reasonable accommodation for the RM near his home in Milpitas, California, so that the parties will be close to each other while issues of custody and access are worked out between them and in the California court. An order is made to that effect.
[53] The RM has permanent residence status in the U.S. until November 5, 2016. The parties shall sign any documentation that may be required in order to facilitate the RM’s ability to stay in the U.S. beyond that date.
[54] If further orders are required to implement this order, counsel may arrange a telephone conference or motion before me with the Family Law Office.
[55] The parties did not argue costs before me. They did not have Bills of Costs to present to me as required. Nor were they able to work out what an appropriate costs award would be for the successful party. They advised me that they would discuss this while my decision was under reserve and advise me if a number was agreed upon. I have not heard anything further from them, so I assume no agreement has been reached.
[56] Now that my reasons have been released, I hope that the parties will be able to reach an agreement on costs. I encourage them to try to do so. If they are unable to reach an agreement, the AF is to provide brief written costs submissions, not to exceed two typed double-spaced pages, together with a Bill of Costs and any necessary documents by November 1, 2016. I understood from the parties that there were no offers to settle which might affect the costs considerations. The RM may file responding submissions, subject to the same directions by November 15, 2016. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective costs submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
HOOD J.
Released: October 18, 2016
CITATION: Usmani v. Hassan, 2016 ONSC 6453
COURT FILE NO.: FS-16-20911
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
USAMA PARWEZ USMANI
Applicant
- and -
BEENISH HASSAN
Respondent
REASONS FOR DECISION
HOOD J.
Released: October 18, 2016