CITATION: Orlowska v. Orlowski, 2016 ONSC 7472
COURT FILE NO.: FS-16-408028
DATE: 20161207
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
IZABELA MARIA ORLOWSKA
Applicant
– and –
ADAM TOMASZ ORLOWSKI
Respondent
Mariola Bednarska, for the Applicant
Kenneth E. Snider, for the Respondent
HEARD: November 29, 2016
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The applicant and the respondent were married in Poland on April 24, 2004. Their one and only child Adrian Adam Orlowski (“Adrian”) was born in Poland on September 11, 2010. The parties continued to live with Adrian in Warsaw, Poland for several years.
[2] The applicant gave evidence that as a result of, inter alia, the respondent’s alcohol and drug abuse problems, their marriage broke down in or around May 2014, at which time the applicant started living separate and apart from the respondent albeit in the same property.
[3] On February 18, 2015, the applicant took Adrian with her to Canada, and specifically Toronto, where she has resided with her common-law partner Dimitrij Orechov (“Dimitrij”, whom the applicant says she met in Poland) ever since. The applicant submits that her and Adrian’s relocation to Toronto was carried out with the respondent’s consent so that the applicant and Adrian could start a new life after the collapse of her marriage to the respondent in Poland.
[4] For his part, the respondent claims that the parties never separated until such time as the applicant left Poland with Adrian for Toronto, and that the respondent subsequently advised him that “they were not coming back”.
[5] The respondent denies ever providing his consent to Adrian relocating to Toronto. On or about April 9, 2015 (less than six weeks after the applicant and Adrian left Poland), the respondent prepared and filed a Request for Return of a Child pursuant to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII (the “Hague Convention”) against the applicant seeking the return of Adrian to Poland.
[6] As described below, the respondent’s application ended up being argued as a motion brought in this family proceeding commenced by the applicant. The motion proceeded before me on November 29, 2016.
Preliminary Matters
a) No Delay
[7] Despite filing his Request under the Hague Convention in early April 2015, from the record before me, it does not appear that the Central Authorities of both Poland and Canada were successful in ensuring that the Request proceeded on a timely basis. A timely hearing date is typically the preferred result and in the best interests of the child.
[8] I do not find that the respondent delayed in advancing his Request, as it appears that proceeding through the proper channels under the Hague Convention did not result in a timely hearing. The respondent continues to reside in Poland, and retained counsel in Ontario (as described below) to respond to this proceeding once he was served with an Application.
[9] I thus attribute no fault to the respondent in the delay in securing a hearing date.
b) Attornment
[10] On February 2, 2016 (nearly one year after leaving Poland) the applicant commenced this proceeding seeking a divorce from the respondent and sole custody of Adrian. After being served with the Application, the respondent filed an Answer which is a standard, pre-printed form complete with boxes to check off and section to complete.
[11] In his Answer, the respondent did not oppose the divorce sought by the applicant, but “claimed” custody of Adrian through his Ontario counsel checking off the box named “custody”. Underneath that section, the respondent specifically requested the following:
• An order that the child Adrian Adam Orlowski be returned to Poland, pursuant to the Hague Convention, and
• An order that the Court with jurisdiction over the child Adrian Adam Orlowski is the Poland Court.
[12] While an argument could technically be made that the respondent attorned to the jurisdiction of Ontario by filing his Answer, this argument was not pursued by the applicant, and in my view for good reason. To begin, this proceeding is the only proceeding in which the respondent has been able to advance his request that Adrian be returned to Poland. I do not believe that the respondent’s act of filling in one box on a pre-printed standard court form should override or displace an extensive convention between participating countries which addresses significant matters such as potential child abduction.
[13] As held by the Court of Appeal for Ontario in Wolfe v. Pickar 2011 ONCA 347, “when a party to an action appears in court and goes beyond challenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens, the party will be regarded as appearing voluntarily, thus giving the court consent-based jurisdiction.” The respondent clearly took the position that he viewed “Poland to be the court with jurisdiction over Adrian”, and served and filed his Answer with a view to ensuring he would secure a “day in court” to make the substantive arguments advanced in his original Request.
[14] Accordingly, I do not find that the respondent attorned to the jurisdiction of Ontario for the purposes of the divorce and custody dispute.
c) Evidentiary Issues
[15] In support of his motion (although no Notice of Motion was in fact served and filed), the respondent filed his affidavit dated October 5, 2016. That affidavit was sworn in Warsaw, Poland. Unfortunately, the contents of the affidavit are in the English language, and both parties acknowledge that the respondent does not speak English.
[16] There is no evidence from anyone who translated the contents of the affidavit to the respondent prior to his execution of the affidavit. In his submissions, counsel for the respondent advised that the affidavit was prepared by his office, and sent to the respondent’s counsel in Poland (“Polish counsel”) who translated its contents to the respondent (and commissioned the respondent’s oath).
[17] I advised counsel for both parties that I was prepared to proceed on the basis that the respondent’s evidence was as set out in his affidavit, although I do require a further affidavit from Polish counsel confirming that the content was translated and explained to the respondent prior to the affidavit being sworn. Counsel for the respondent undertook to serve and file a copy of an affidavit from Polish counsel with the Court.
[18] The applicant swore a responding affidavit dated October 26, 2016. The respondent did not swear any reply affidavit.
[19] In a previous attendance on October 31, 2016, my colleague Justice Corbett adjourned the respondent’s motion for the purpose of, inter alia, allowing the parties to conduct questioning upon their two respective affidavits. Neither party chose to proceed with questioning. The evidentiary record consisted of both affidavits, and nothing more. As such, it was difficult to reconcile the evidence of each party as their respective versions of events remain drastically different.
The Alleged Marriage Breakdown.
[20] While there is no dispute that up to February 18, 2015 the parties resided with Adrian in Warsaw, Poland, both the applicant and the respondent completely disagree as to the state of their marriage at that time.
[21] The applicant described being in an untenable situation which ultimately led to the breakdown of the marriage, and the applicant leaving Poland with Adrian. She gave evidence that the respondent suffered from significant substance abuse problems, including an inability to control his drinking and the continuous ingestion of marijuana and amphetamines. The applicant further stated that as a result of the respondent’s addiction problems, he was often verbally abusive, and on occasion physically abusive.
[22] To support her position, the applicant filed medical notes and records of Dr. Katarzyna Janiszewska, a doctor who had treated Adrian in Poland. While those notes have been translated from Polish into English, there is no affidavit from Dr. Janiszewska. In any event, within those notes is the following entry:
“Father is addicted to alcohol, he creates unfavourable atmosphere at home. After having alcohol, he calls the mother a slut, a whore, accuses her of betrayal, he is aggressive, goes on a rampage after alcohol. Recently a little quieter. After having alcohol – two personalities. “
[23] In the respondent’s affidavit (delivered before the applicant’s affidavit), he gave evidence that the parties “lived and worked as a normal family in Warsaw” and denied ever abusing alcohol or taking drugs. The respondent adamantly refuted the applicant’s allegations of domestic violence and accused her of fabricating such incidents in a post-abduction attempt to justify her removal of Adrian from the respondent’s life.
[24] The respondent stated that he was a good and loving father who took great care of Adrian, who was “the joy and pride of his life”.
The Applicant Leaves Poland
[25] The applicant gave evidence that in or around May 2014, she secured a job at the Warsaw Airport, and shortly thereafter advised the respondent that their marriage was over. The applicant then moved into Adrian’s bedroom, living separate and apart from the respondent while in the same home. She stated that her situation became intolerable, and she “knew she had to physically separate from the respondent to build a new and better future for her and Adrian”.
[26] The applicant met her present common-law partner Dimitrij in January 2015 while she was working at the airport. Dimitrij suggested that the applicant move to Canada with Adrian. The applicant testified that upon arriving at her home in Poland, she advised the respondent that she had met a man at the airport who agreed to assist her in building a better future for her and Adrian in Canada. The applicant testified that the respondent never questioned her decision to leave for Canada with Adrian, but indicated that it was “his dream to go and work in Canada one day”. In response, the applicant advised the respondent that she would help him find a job in Canada once she arrived there with Adrian. In her mind, the marriage was over.
[27] The respondent tells a completely different story. His affidavit stated as follows:
“The circumstances of the separation were that the applicant mother had made a decision that she wanted to go in Toronto to find work. The plan that we had discussed prior to her leaving was that she would take Adrian to Toronto first and then I would join them in Toronto. I had no idea that the applicant would contact me a few days after she arrived in Toronto with Adrian to tell me that she was ending the relationship, that she was not returning to Poland and that Adrian was staying there with her. Had I known that this was her plan, I would never had (sic) allowed Adrian to travel with his mother outside of Poland.”
[28] The applicant gave evidence that it was Dimitrij who purchased the air tickets for her and Adrian to travel to Canada, and that the respondent knew that Dimitrij had done so. Curiously, the respondent made no mention whatsoever of Dimitrij in his affidavit, although presumably he had not seen those allegations until after the applicant delivered her own responding affidavit.
The Consent
[29] The applicant knew that she would require the respondent’s consent to her travelling with Adrian to Canada. She found a “sample consent” in the English language which apparently had been used by others travelling abroad with their children. The Consent was drafted and put together by the applicant.
[30] The applicant stated that on February 11, 2015, the respondent came with her to work, at which time the Consent was translated, word by word, to the respondent by the applicant and her colleague Dorota Krasnodembska-Figat (“Dorota”). There is no affidavit on this motion from Dorota confirming that she translated the contents of the Consent into Polish for the respondent, although she did provide a letter to that effect attached as an exhibit to the applicant’s affidavit.
[31] There is no dispute that the respondent signed the Consent, and apparently did not make any changes to its contents. The Consent is witnessed by Dorota, and is declared to be valid until September 11, 2029, when Adrian would apparently reach the age of majority. The salient portions of the Consent state as follows:
“My child, Orlowski Adrian Adam, has my Consent to travel anywhere outside of Poland with his mother, Orlowska Izabela Maria bearing Polish Passport No. EH1387576, which was issued on December 9, 2014 at Warszawa, Poland for purpose of visiting another country and/or vacationing for such extended period of time as may be required and decided by his mother, Orlowska Izabela Maria. (“the first paragraph”)
Also, my child, Adrian Adam Orlowski, has my Consent to reside anywhere outside of Poland, with his mother, Izabela Maria Orlowska, bearing Polish Passport No. EH5387574, which was issued on December 9, 2014 at Warszawa, Poland, for such extended period of time as that may be required and decided by this mother, Izabela Maria Orlowska. (“the second paragraph”).”
[32] The Consent was subsequently notarized by a Notary Public in Warsaw. The applicant produced a handwritten note allegedly signed by the respondent which stated, inter alia:
“I, Adam Tomasz Orlowski, my Passport Number EH7328814, hereby give my permission for going abroad to my son Adrian Adam Orlowski born on 11th of September, 2010 in Warsaw, his Passport Number EH1387576, his Personal Identification Number 10291106891, at the presence of his mother, Izabela Maria Orlowska, her Passport Number EH5387574 and her Personal Identification Number 84031600486, as well as for staying outside the territory of Poland under his mother’s care.”
[33] In his affidavit, the respondent did not give any substantive evidence surrounding the circumstances of his signing the Consent, but gave evidence that he was “tricked into signing the travel consents and other documents that allowed Adrian to come to Canada, as well as taking my family to the airport.”
Post-February 2015 Life
[34] The applicant and Dimitrij are now a couple living together with Adrian in Etobicoke, Ontario. Adrian has been attending James Bell Public School since September 2015. According to the applicant, his command of the English language is now better than his command of the Polish language. The applicant gave evidence that Adrian is a healthy and happy child with many friends here, having adjusted well to life in Canada.
[35] The respondent testified that he has attempted to keep in contact with Adrian by any means possible on a daily basis, but the applicant has made it difficult if not impossible for him to do so. The respondent believes that Adrian has been emotionally influenced by the applicant, as when he does speak to his son, Adrian tells him that he is not his father and that he does not love him. The respondent testified that while living in Poland, Adrian was popular, happy and healthy and enjoyed strong relationship with many friends.
The Hague Convention
[36] As summarized by my colleague Justice Hood in the recent decision of Usmani v. Hassan 2016 ONSC 6453, “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.”
[37] Article 3 of the Hague Convention provides as follows:
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
[38] Article 12 of the Hague Convention provides as follows:
“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 the period 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.”
[39] The term “habitually resident” is not defined in the Hague Convention. In Kurotowsaka-Wooff v. Wooff 2004 ONCA 5548, the Court of Appeal for Ontario summarized the following principles for the Court to consider when determining a child’s habitual residence:
• 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.; and
• a child’s habitual residence is tied to that of the child’s custodian.
[40] As noted by Justice Hood in Usmani, there is an informative definition of “habitually resident” under the Children’s Law Reform Act R.S.O. 1990 c. C.12. Section 22 of that Act provides that a child is habitually resident where he/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 parent, or under a court order.
[41] In Balev v. Baggott 2016 ONCA 680, the Court of Appeal for Ontario confirmed that under the Hague Convention, neither parent can unilaterally change the habitual residence of a child without the express or implied consent of the other parent.
Decision
[42] As the Court of Appeal for Ontario noted in Balev, my task is not to determine custody or what would be in the best interests of Adrian. I am to decide whether Adrian has been abducted or wrongfully retained within the meaning of the Hague Convention. If I so find, and no exception under the Hague Convention is applicable, then Adrian must be returned to the place of his habitual residence.
[43] There is no question that prior to the applicant leaving with Adrian for Canada, Adrian was habitually resident in Poland. There was no connection, real, substantial or otherwise, between the parties and Canada. It is the applicant’s position that Adrian’s habitual residence changed on February 18, 2015 when Adrian entered Canada with the respondent’s express permission and agreement, as the signed Consent codified a shared intention on the part of the applicant and the respondent for Adrian to now reside in Canada. The applicant argued that the existence of the signed Consent elevated the merits of her position to something much more than a “he said, she said” scenario, as the Consent is written evidence of the respondent’s agreement for Adrian to relocate with his mother to Canada.
[44] I agree with the applicant that in order to dismiss the respondent’s motion, I must find that he expressly or impliedly consented to Adrian’s habitual residence being changed to Canada. For the reasons which follow, I am unable to do so.
[45] The inclusion of the two paragraphs in the Consent is confusing and ambiguous as the two paragraphs appear to be internally irreconcilable. The second paragraph, heavily relied upon by the applicant, permits Adrian to reside anywhere outside of Poland with the applicant for such extended period of time as may be required and decided by the applicant. The respondent’s subsequent notarized handwritten note provides for Adrian “going abroad and staying outside the territory of Poland under the applicant’s care”.
[46] While the applicant’s evidence was clear that she advised the respondent that she and Adrian were relocating to Canada, there is no mention of Canada in the Consent. At most, the applicant could argue that the second paragraph amounts to a shared intention for Adrian to reside “outside of Poland”, but nothing more.
[47] However, the first paragraph permits Adrian to travel outside of Poland with the applicant for the purpose of “visiting and/or vacationing” in another country for such time as may be required and decided by the applicant. The very nature of any visit or vacation is temporary, and contemplates a return back to the country where an individual habitually resides. To visit or vacation somewhere is certainly not to reside there, habitually or otherwise.
[48] If the purpose of the Consent was to evidence the respondent’s agreement that he was prepared to likely never see Adrian again, why would the first paragraph have been included at all? This is not a case where the purpose of the Consent had to be two-fold. On the contrary, the Consent needed to expressly secure the respondent’s agreement to change Adrian’s habitual residence to Canada.
[49] In my view, when dealing with matters as serious as child abduction, a parent’s agreement to change a child’s habitual residence, whether express or implied, must be proven by clear, cogent and reliable evidence. If the first paragraph contemplated a return by the applicant with Adrian to Poland after a “visit/vacation” to another country, I cannot find the Consent, written in a language not spoken or understood by the respondent, to be the type of reliable evidence required in the circumstances of this case. As a result, on the record before me I find that Adrian was habitually resident in Poland, and the respondent did not consent to change Adrian’s habitual residence to Canada.
[50] As the respondent did not consent to change Adrian’s habitual residence to Canada, I further find that the respondent was exercising his custody rights over Adrian at the time of the removal pursuant to Article 3(b) of the Hague Convention.
[51] In the absence of an exception under the Hague convention, Adrian must be returned to Poland. The applicant relies upon Article 12 in support of her argument that Adrian has now adjusted to Canada and is “settled in his new environment”. In Balev, the Court of Appeal for Ontario held that evidence of settling in is not a relevant consideration if the application is brought within one year of the wrongful removal of the child.
[52] The applicant argues that the respondent’s “claim” for Adrian’s return to Poland had not commenced until he served and filed his Answer in this proceeding on or about March 16, 2016, which was more than one year after the applicant left Poland with Adrian. As such, the applicant argues that the respondent never “commenced proceedings before the judicial or administrative authority of the Contracting State where the child is” (i.e in Canada) within the one year deadline prescribed by Article 12.
[53] As I have previously stated, I believe that the respondent proceeded through the proper channels under the Hague Convention when he filed his Request in Poland in early April 2015, well within the one year period provided for in Article 12 of the Hague Convention. It is a reasonable expectation that the Central Authorities of both Poland and Canada, as Contracting States, would take the necessary steps to ensure that a proceeding be commenced in Ontario in accordance with the respondent’s Request. In my view, the fact that the respondent’s Request suffered through unfortunate administrative delays does not adversely impact his compliance with his obligations under Article 12. As such, I am bound to disregard any evidence with respect to whether or not Adrian has settled in Ontario, and thus Article 12 has no application to this motion.
Order
[54] The respondent’s motion for the return of the child Adrian Adam Orlowski is granted.
[55] By no later than December 31, 2016, the applicant shall return Adrian to Warsaw, Poland to submit to the jurisdiction of the courts of Poland for the purpose of determining the issues of custody, access and residency between the parties.
[56] With a view to facilitating Adrian’s return to Poland, the applicant may travel with Adrian to Poland on the condition that she commence a court application in Poland within thirty days of their arrival in Warsaw to determine the issues of custody, access and residency between the parties.
[57] The terms of this Order shall not be enforced before December 26, 2016 so that Adrian has the opportunity to finish his first term at James Bell Public School.
Costs
[58] I would urge the parties to try and resolve the issue of costs of this motion and the application. In the absence of such an agreement, the parties may exchange and file written costs submissions.
[59] The respondent may serve and file his costs submissions on or before January 3, 2017. Those submissions shall be no more than four pages including a Bill of Costs.
[60] The applicant shall have until January 13, 2017 to deliver her responding costs submissions, which shall also be limited to four pages including a Bill of Costs.
Diamond J.
Released: December 7, 2016
CITATION: Orlowska v. Orlowski, 2016 ONSC 7472
COURT FILE NO.: FS-408028
DATE: 20161207
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
IZABELA MARIA ORLOWSKA
Applicant
– and –
ADAM TOMASZ ORLOWSKI
Respondent
REASONS FOR DECISION
Diamond J.
Released: December 7, 2016