CITATION: Vieira v. Dos Santos Trillo 2016 ONSC 8050
COURT FILE NO.: FC-16-2257
DATE: 2016/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marnei Vieira
Applicant
Priscila Dos Santos Trillo
Respondent
Allan Hirsch, counsel for the Applicant
Selim James Levy, counsel for the Respondent
HEARD: December 14, 2016
AMENDED REASONS FOR JUDGMENT
The text of the original judgment was amended on August 16, 2017 and the description of the amendment is appended
shelston j.
Overview
[1] The applicant (“father”) seeks an order that Luiz Felipe dos Santos Vieira (“the child”), born May 6, 2004, be returned to Brazil forthwith. The father alleges that the child is being retained in the Province of Ontario by the respondent (“mother”) in breach of his custodial rights and that such retention constitutes a wrongful retention of the children within the meaning of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 [“the Hague Convention”], Schedule to s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [“CLRA”].
[2] The mother opposes the father’s request.
Background
[3] The parties were born and lived all their life in Brazil. The parties never married nor lived together. They are the natural parents of the child. From two years of age, the child has lived with the father and the mother would have access.
[4] The father married Amanda Vieira and they have two daughters age 3 and 5. The five of them lived as a family in the province of Santa Catarina, Brazil.
[5] In December 2013, the mother married Daniel Trillo in Brazil. In June 2014, she moved to Regina, Saskatchewan to join her husband. In September 2015, they moved to Ottawa Ontario. They have one child of their relationship born November 25, 2015.
[6] In December 2014, the parties agreed that the child would visit the mother in Canada for one month from mid-December 2014 to mid-January 2015. The child was returned to Brazil in mid-January 2015 as agreed to by the parties.
[7] On December 14, 2015, the child came to Ottawa for another visit with his mother. The parties agreed that the child return to Brazil on January 19, 2016. On or about January 8, 2016 the mother and child told the father via Skype that he wanted to stay in Ottawa with the mother. The father refused to allow the child to stay in Canada but the mother did not return the child.
[8] The child was to commence school in Brazil on January 20, 2016. Instead, on January 18, 2016, the mother registered the child in grade 6 at the Farley Mowat Public school in Ottawa.
[9] In February or March 2016, the father commenced proceedings in Brazil which resulted in him being granted provisional custody of the child on March 15, 2016. The mother’s petition for provisional custody in her own action was rejected on August 29, 2016. The two actions were combined into one proceeding in Brazil in May 2016.
Agreement of the parties
[10] The parties agree that Brazil is the child’s habitual residence, that the mother has retained the child in Ontario without the father’s consent or acquiescence and her actions are in breach of his rights of custody.
[11] The parties agree that the child is wrongfully retained in Ontario as defined by Article 3 of the Hague Convention and that the father commenced his application to this Court within 12 months of the wrongful retention.
Mother’s defences under the Hague Convention
[12] The mother invokes Article 13 of the Hague Convention and makes two arguments in support of the child remaining in Canada:
There is a grave risk that returning the child to Brazil would expose him to physical or psychological harm or otherwise place him in an intolerable situation, and,
The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account, are his reasons substantial and exceptional enough to override the mandatory return provisions of the Hague Convention.
[13] Pursuant to Article 13:
Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes [his or her] return establishes that:
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
First Ground: Is there a grave risk that returning the child to Brazil would expose him to physical or psychological harm or otherwise place him in an intolerable situation?
Legal Framework
[14] The onus is on the mother to show that the child would be exposed to harm or otherwise be placed in an intolerable situation if returned. She has an evidentiary hurdle (that is proof on a balance of probabilities) and a “gravity of risk” test to meet (see Thomson, supra para 80)
[15] The threshold with respect to the exceptions set out in the Convention is very high. (Wentzell-Elies v. Ellies 2010 ONCA 347 para 40).
[16] The risk must be grave, weighty and severe, while the harm to which it refers must amount to an intolerable situation. The intolerable situation must involve substantial and non-trivial psychological harm—something greater than what would normally be expected on taking a child away from a parent and passing him to another. Justice La Forest in Thomson at p. 596-97 stated:
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word ‘grave’ modifies ‘risk’ and not ‘harm’, this must be read in conjunction with the clause ‘or otherwise place the child in an intolerable situation’. The use of the word ‘otherwise’ points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. … In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
… the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree… that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words ‘or otherwise place the child in an intolerable situation’. [emphasis in original]
[17] Where the evidence of physical and psychological harm to the mother and the child was supported by clear, cogent and irrefutable evidence consisting of transcripts of the father’s ranting and threats, medical and psychological reports and detailed statements at independent eyewitnesses to the father’s escalating abuse and mental stability, the child was not returned to the father as was held in Pollastro v Pollastro 1999 CanLII 3702 (ON CA), 1999 CarswellOnt 848 Ontario Court of Appeal.
[18] Even where an application judge ruled that despite the higher probability of war or terrorist activities in Israel, the children’s daily safety was not a significant risk. This finding was confirmed by the Alberta Court of Appeal in Brill v Brill 2010 ABCA 229.
[19] In J.S. v R.M., 2012 ABPC 184, the application judge found that the risk must be substantial, not trivial and must be severe. At paragraph 57 of his decision, the application judge considered a decision of the United States Six Circuit Court of Appeal decision in Friedrich II, 78 F.3d at 1067, where the court addressed the risk of returning a child to Israel as follows:
Respondent has not established by clear and convincing evidence that A. is in grave risk of physical or psychological harm if she were to return to Israel. The Six Circuit addressed this issue stating:
Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g., Returning the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Psychological evidence of the sort Mrs. Friedrich introduced in the proceeding below is only relevant if it helps prove the existence of one of the situations.
Analysis
[20] The mother decided to keep the child in Ottawa rather than returning the child to the father in Brazil because of the reasons set out as follows:
When the child arrived in Canada he was underweight, weighed only 27 kg, was filthy and had wax buildup in his ears. Based on these factors the mother believes the child was malnourished and unclean; and,
She was concerned that the child showed signs of trauma;
The father did not take care of the child’s health properly including not getting the child glasses;
The child is at risk to be kidnapped;
Brazil is in a violent situation; and,
It could be harmful to return the child to Brazil.
[21] The father denied these allegations and demanded that the child be returned to Brazil.
Allegations that the child was malnourished and unclean.
[22] The child arrived in Canada on December 14, 2015. In March 2016, the mother obtained Canadian health insurance coverage for the child. On April 29, 2016, the mother brought the child to the Children’s Hospital of Eastern Ontario where he was diagnosed with constipation and his weight was noted to be 41 kg.
[23] The first time the mother brought the child to a doctor was on June 6, 2016. The mother submitted a letter from the Dr. Delgado dated June 16, 2016 in which the doctor repeats what the child, mother and her husband told the doctor about the child’s life in Brazil and his physical state when he arrived in Canada. The letter from the doctor is of little probative value for the court. In the circumstances, the only admissible evidence is the finding by the doctor that on June 6, 2016 after he conducted a physical exam of the child, it was normal.
[24] Ms. Tania Vianna stated that when she first met the mother last winter in Ottawa and met the child that same day. Her only observation regarding the child was that he was very skinny, was shy and reserved.
[25] To counter such allegations, the father has provided photographs of the child taken with his school friends and siblings in Brazil in December 2015, before he flew to Ottawa. Upon a review of these pictures, I find that the child looks like a very happy child interacting with his friends and siblings.
[26] I do not find that there is sufficient evidence to making a finding that the child was malnourished and filthy when he arrived in Canada. I make no finding with respect to the issue of the child having an excessive wax buildup in his ears.
Allegations that the father did not care for the child’s medical issues including purchasing glasses.
[27] The mother was involved when the child had an appendicitis while on an access visit with his mother. On November 19, 2013, the mother took the child to the hospital where the father met them both. At that time the child’s weight was 27.5 kg.
[28] On August 28, 2015 the child was seen by his family doctor on account of epigastric pain. The child weighed 36 kg and showed normal good health aspects.
[29] The mother alleges that the father refused to purchase eyewear for the child. I was provided with a receipt from an optician store in Brazil confirming that on September 26, 2014 the father purchased frames and lenses for the child in Brazil.
[30] The mother alleges that the father did not take care of the child’s medical needs. I have a medical report from the doctor who saw the child on August 28, 2015 where he confirmed that the child was normal for his age, showed normal good health aspects and weighed 36 kg.
[31] With respect to the allegations that the father was not properly caring for the child, the mother alleges that the father did not take care of the child resulting in him having frequent asthma attacks. The father denies such allegations.
[32] Based on this evidence, there is no merit in the allegations regarding the child’s lack of medical care while in the father’s care in Brazil.
Allegations that the child has suffered trauma
Allegations that Brazil is in a violent situation
Allegations that it would be harmful to return the child to Brazil
[33] In addition to the mother’s affidavit, she has provided affidavits from three individuals to support her claims. The individuals are Ms. Maria Ester Trillo, the aunt of Daniel Trillo; Ms. Maria Trillo’s husband, Mr. Kevin O’Malley and Ms. Tania Vianna, a family friend dated November 5, 2016.
[34] The mother submits that the affidavit evidence of the aunt and Ms. Vianna should be relied on to find that the child exhibited symptoms of trauma. She relies on the fact that they are both trained healthcare workers in a position to observe the child.
[35] In R. v Graat (1982) 1982 CanLII 33 (SCC), S.C.J.102, Justice Dickson considered the admissibility of lay opinion on the issue of whether a driver was intoxicated. Justice Dickson observed:
Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently falls, antithesis between fact and fiction. The line between “fact” and “opinion” is not clear.
[36] In the Children’s Aid Society of Toronto. M. R. 2016 ONCJ 215, 2016 ONCJ215, Justice Murray stated in paragraph 106 and 107 of her decision the following statements:
- Upon the modern view as set out in Graat, non-experts are permitted to give their opinion on an issue if a witness:
has personal knowledge of the observed facts;
is in a better position than the trier of fact to draw the inference;
has a necessary experiential capacity to draw the inference; and
- expresses an opinion that is a “compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctively”
- Courts following Graat have allowed opinion evidence from social workers not qualified as experts to be admitted in protection cases and criminal cases involving childhood sexual abuse. Courts have, however, followed the caution in R. v. Mohan that “the closer the witness comes to expressing an opinion on the ultimate issues, the closer scrutiny should be of the admissibility of the evidence”.
[37] Ms. Vianna is a nurse living in Ottawa and a friend of the mother and her family. She purports to provide an opinion that the child is overcome by traumas. Specifically on page 2 of your letter dated November 5, 2016 she states in the third paragraph:
I see in Luiz a child who has overcome traumas, who learn to smile again, and trust his close relatives to protect him. Now, he lives save, has earned his place and space in the Canadian society, and also, has mastered the English language and local customs.
[38] Ms. Maria Ester Trillo has a graduate degree in social work and nursing and lives in the United States. Her affidavit makes the following statements :
a) Based on her work as a social worker she has conducted custody and abuse and neglect investigations and is familiar with the methods of evaluating parents, children, support collaterals and environmental factors.
b) The level of violence in Brazil is overwhelmingly greater than that of a single-family home neighbourhood environment Luiz lives in in Canada.
c) In her opinion she believes that a return to Brazil for Luiz would be harmful to him and not at all in his best interest.
[39] Mr. Kevin O’Malley provided an affidavit where he states that he has been an attorney in the Commonwealth of Massachusetts since 1979, that he has represented clients in every aspect of family law and that he has been appointed by the court in numerous custody related cases as a Guardian Ad Litem. He provides his own observations of the child interacting with his new family in Canada. He states:
a) he had discussions with the child about his desire to remain in Canada and not return to Brazil.
b) that he is well aware of the violent nature and unstable environment in Brazil because he lives in a home with a Brazilian wife and a mother-in-law who watch Brazilian television news virtually every evening.
c) he is aware of the political, educational and economic issues that Brazil currently faces while Canada has a stable peaceful environment which offer superb educational and health services.
[40] While I agree that applications under the Hague Convention are summary procedures to be dealt with expeditiously, the rules of evidence must still be adhered to. The three affidavits provide comments regarding their observations regarding the child, repeat statements made by the child to them and comment on the violence in Brazil and the risk to the child.
[41] These affidavits are very problematic. Firstly, the affidavits contain statements made by the child. I find that the statements made by the child to these three individuals are not admissible because they are hearsay. Further, there is insufficient evidence contained to be able to determine if the statements would meet the initial test of necessity and reliability. The three affidavits simply repeat what the child has told them in an attempt to buttress the mother’s position that the child does not wish to return to Brazil. I have not considered these affidavits with respect to any statements made to them by the child.
[42] Secondly, any comments regarding the state of violence in Brazil are based on the alleged knowledge of the writers based on their Brazilian heritage or on watching Brazilian TV. None of these witnesses were qualified as experts on the state of violence in Brazil. The fact that the statements are contained in an affidavit do not make the statements contained therein more admissible. Most Hague Convention applications are adjudicated based on affidavit evidence. In this case I will not rely on the general statements made by the three deponents of affidavits as to the state of violence in Brazil.
[43] Thirdly, I have not considered the opinions made by the witnesses regarding the child suffering trauma and that in their opinion returning to the child to Brazil would be harmful to him. They have not been qualified as expert witnesses on psychological factors.
[44] I have considered the observations made by the various witnesses but do not find that there is a grave risk that the child may suffer physical or psychological harm if he is returned to Brazil.
The child is at risk to be kidnapped
[45] The mother alleges that the father enjoys a prominent position in the bank and because the child is his son, this puts the child at risk of being kidnapping. In support of that submission the mother attached two news articles which were translated by Google translate.
[46] With respect to kidnapping, the mother filed a printout of two stories in 2012 regarding kidnappings of family members of bank managers. The stories were originally in the Portuguese language but the mother’s lawyer admitted during submissions that he translated the stories from Portuguese to English using the Google translate. I will not accept those translated stories because I do not have a certified translation of the original stories. Secondly, even if I accepted that the stories were accurately translated, their probative value with respect to the threat to this father and this child is very low. Thirdly, the evidence from the mother, her friend Ms. Vianna, Ms. Trillo and Mr. O’Malley, does not provide an evidentiary basis upon which I can make the conclusion sought that the child is at risk to be kidnapped if he is returned to Brazil.
[47] In Ndegda v Ndegda 2001 CanLII 28132 (ON SC), 2001 CarswellOnt 2528, MacKinnon, J, in determining the admissibility of a “Resource Book” said to contain sociological data and information from various government and nongovernment organizations dealing with the issues of human rights, civil liberties and corruption in government and the justice system in Kenya made the following comment at paragraph 20:
The resource book does not contain affidavit evidence or expert reports. As such, the material cannot meet the basic requirement for evidence that can be accepted by the court in the hearing of emotion. The material is not sworn or affirmed, no deponent with opportunity for personal knowledge or observation, or with information learned from named her identified source is identified. While the mother has presented summaries describing the various organizations from which the information is obtained, nothing is made available to the court in terms of how, by whom and from whom the materials was complied. Nor is there opportunity for any cross-examination with respect to this material. The court cannot assess expertise or whether there is a proper foundation of research and knowledge made to accept material.
It is clear that the material tendered in the resource book cannot fall into either category. It is tendered to support the mother’s allegation that the state of Kenya would not or could not protect her; that she cannot return to Kenya in safety; and, that the “system” in Kenya is corrupt, including the justice system. These are not indisputable facts or matters capable of immediate proof such as to fall within the scope of judicial notice.
[48] There simply is no reliable evidence of a direct threat to this child being kidnapped.
[49] After considering the evidence and the legal standard that must be met by the mother, I do not find that the mother has met the high threshold that this child is at grave risk to suffer physical or psychological harm if returned to Brazil.
Second Ground: Should the court refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Legal Framework
[50] The jurisprudence directs application judges to consider objections that are substantial in nature and it is only in exceptional circumstances that a child will not be returned because of strong objections as stated in Garelli v Raham, 2006 CanLII 13555 (ON SC), 2006 CarswellOnt 2582.
[51] In Balev v Baggott 2016 ONCA 680, the Court of Appeal discussed the purpose of the Hague Convention as follows :
It is important to keep in mind that a judge deciding a Hague Convention application is not determining custody or deciding what would be in the best interest of the children. The judge is simply deciding whether a child has been abducted or wrongfully retained within the meaning of the Hague Convention. If the answer to that question is yes, and if no exception contemplated by the Hague Convention is present, the child must be returned to the place of the child’s habitual residence.
The underlying purpose of the Hague Convention is to protect children from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence. The Hague Convention establishes a presumption in favour of ordering the child’s summary return under article 12: Thomson v Thomson. 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551
[52] The Contracting States accept that the other Contracting States will properly take the best interest of the children into account and where there has been a wrongful removal or retention, and no affirmative defences established under article 13, the child must be returned to his habitual residence as was stated by the Court of Appeal in Katsigiannis v Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 2001 CarswellOnt 2909 paragraph 32.
[53] In Balev v Baggott 2016 ONCA 680, the Court of Appeal confirmed the application judge’s observations with respect to consideration of children’s objections such as having too much homework in Germany, the loss of friends, the loss of their dog and that Canada feels like home. At paragraph 105, the application judge stated:
To accede to such an objection would set the threshold much too low and certainly much lower than intended by the Hague Convention which provides that where there has been a wrongful retention, children shall be returned to their habitual residence unless the removing parent can establish that exceptional circumstances exist. Such circumstances do not exist in this case.
[54] In Garelli v Rahma 2006 CanLII 13555 (ON SC), 2006 CarswellOnt 2582, Justice V. J. MacKinnon dealt with the interpretation of objections by a child as follows:
- In my view, “objects” should be given its usual and ordinary meaning, of expressing disapproval, disagreement and opposition to something. Within the context of the Hague Convention, the objection must be to returning to the country of habitual residence, and not merely an expression of a preference as to custodial parent and, the court ought to consider the reasons provided by the child. In every case to which I was referred where effect was given to the child’s objection, the reasons for the objection were substantial, as in S.Re, important psychological, language and educational factors, or were related to parental misconduct by the parent seeking the child’s return.
[55] Where there was undisputed evidence that the father traffics in and uses non-medically prescribed drugs, drinks alcohol to access, use of physical discipline, brings home many female friends and has sexual intercourse with them within earshot of the child and does not pay attention to him, were sufficient by the application judge to accept the child’s objection and not return him to the father.(Wilson v Challis 1992 CarswellOnt 1504 (Provincial Court)
[56] The English Court of Appeal upheld the child’s objections to returning to France where the 10-year-old girl had a very high IQ, the mental age of 12. The parents had lived with the child throughout the world but the child was educated in English. They have settled in France and after separation the mother wrongfully brought the child to England. There was evidence of long-standing psychological issues and dyslexia that created significant speech difficulties for the child such as stuttering and stammering in French. As a result of the exceptional circumstances in that case, the child was not returned to France. (Re.S. (A Minor) Court of Appeal, 1993,Fam 242.
[57] In Toiber v Toiber 2005 CarwellOnt 8366,where a 13 ½-year-old girl submitted a letter to the judge where she stated emphatically that she hated her father, that he never cared for her, was mean to her, and yelled at her as well as indicating that she wanted to live with her mother and never hear from or see her father, the court returned the child to France and made the following comments at paragraph 36:
- …. Generously read, it is probably open to a court to find that Liliya’s note\letter constitutes an objection within the meaning of article 13. Without in any way denigrating the sentiments expressed by Liliya , the court should be cautious in assigning undue weight to such a document, given the almost inexcusable conclusion that sentiments expressed no doubt mirror some of the mother sentiments, concerning whose evidence I have earlier commented. Objectively read the sentiments expressed by Liliya are no more, in my view, then those often expressed by a child caught in the vortex of a custody battle. That being the case, it is clear on the authorities that those are issues best dealt with by the courts in the jurisdiction in which the child was habitually resident immediately before the removal or retention.
[58] In C.L.M. and J.E.A., 2002 NSCA 127, the Nova Scotia Court of Appeal stated at paragraph 42 the following :
…. The second is that, in situations in which the objection is based on the fear of the other parent but where returning the child does not create a grave risk of physical or psychological harm, only rarely, and not in this case, should such an objection be relied on to exercise the discretion not to order the child’s return. To do so would seriously undermine the purpose of the Convention.
Analysis
[59] The mother has filed three letters prepared by the child. In the first letter which is undated but which the mother indicates is dated January 25, 2016 the child makes the following comments which have been translated into English:
the child threatens to run away from home and go to the police station if he is forced to return to Brazil;
the child complains about the father’s drinking and a particular friend William at a soccer event;
the child accuses the father of stealing money for the child; and,
the child asked the father to sign the necessary documentation to live in Canada.
[60] A second letter, prepared by the child in English dated May 24, 2016 in his own handwriting, lists the reasons why he wanted to remain in Canada. The letter states verbatim as follows :
To Whom It May Concern Tuesday, May 24, 2016
I’ am writing this letter because I own to stay in Canada because:
My English is really better;
In Brazil my father 2 or 3 times drinks beer and drive with me;
It is one opportunity I have for stay in one better country Canada;
I here learn two languages, English and French;
In my tests I’m going really well, my worse mark is a test it is 85% or 21\25 and this is because my first week in school and the subject has only in grade 7 in Brazil;
here in Canada I go to hospital for my stomach. I reach in 7.00 at clock in the night and go back at 10’s: 30, but in Brazil I go to hospital the “guy”said in virose and the “guy” said is lactose and I go to the tests and the tests said I have lactose intolerant but here the doctor said I have so many poops and the poop it is from Brazil. Because this and other things, I own stay here.
Sincerely, Luiz Felipe dos S. Vieira.
[61] A third letter dated June 2016 concludes with the words “why are you treating me, father, like I am an animal?”
[62] In addition to the three letters filed by the child, the mother filed 31 letters that were written by classmates, an educational assistant and parents in or around May 20-24, 2016 all supporting the child remaining in Canada.
[63] In support of her submission that the child wishes to stay in Canada, the mother filed a number of affidavits including her own, her friend Ms. Vianna, Ms. Trillo and Mr. O’Malley. In all these affidavits, the deponents repeat that they have spoken to the child about his wishes to stay in Canada. Putting aside the admissibility of such statements, the father submits that the child has been coached. I cannot conclude on the evidence before me that the child has been coached but to ascertain the child’s wishes, I sought independent verification. For that reason I ordered that there would be a Voice of the Child report prepared.
[64] The father’s submits that he is concerned that the child has been influenced by the mother and her relatives since he has been in their care since December 2015 and that any report received by the court must consider that fact.
[65] The parties agreed on December 5, 2016 to retain the services of Ms. Karen L. Douglas to conduct and prepare an independent Voice of the Child report to assist in obtaining the preferred residential schedule of the child. Ms. Douglas met with the child on December 7 and 12, 2016 at his school. She reviewed the affidavits of the father, the mother, his elementary provincial report card, an assessment of his reading ability and his student profile. In addition, she spoke with the vice principal at the child’s school and the child’s English as a second language teacher.
[66] The report was filed with the court on December 14, 2016. In her report Ms. Douglas reports as follows:
she found that on both occasions the boy presented as being comfortable and at ease in her presence;
despite his first language being Portuguese, his English language was proficient and he was able to articulate himself in English;
she found that his views and preferences were very consistent and independent;
she found he was mature and thoughtful. She found him to be a very diligent student, he was passionate about sports, had a keen interest in music, wanted to pursue a career as a soccer manager and wanted to pursue postsecondary education in the area of physical education.
[67] With respect to returning to Brazil, on both occasions the child expressed a strong objection to returning to live in Brazil for the following reasons:
the degree of fear towards his father because his father would frequently be intoxicated with alcohol and when he was his father would behave aggressively both verbally and physically;
he provided considerable detail that his father acted aggressively during a state of intoxication including an incident where he threw a table knife at her friend name William. The child indicated that he was almost hit with a knife and that William was hit by the knife requiring medical attention;
on one occasion’s father was playing pool of friends and punched a wall and broke his hand;
on many occasions the father drove the child to school while in a state of intoxication;
that when he told his father in January 2016 that he wanted to stay with his brothers in Canada, his father was yelling profane and derogatory words towards his mother and that he was very angry; that his father could not be reasons with and was disrespectful towards him and his mother
that he wanted to raise the issue in December 2014 that he wanted to stay in Canada but was hesitant to discuss the subject with his father;
that his stepmother Amanda treated him differently from his half-sisters in that she favoured them over him, would not feed him properly, would only allow him to eat at certain times and at times is permitted to go hungry; and,
that his father had interfered with the child seeing his mother and on occasions the contact with his mother was cut short.
[68] On a positive note, he spoke fondly of his father when describing the love of soccer, that they went to soccer games together, that he wanted to maintain contact with his father and envisage that he would continue having regular contact with his father through Skype and a “messaging app”. He was open to visiting his father in Brazil but wanted his father to get professional help about his drinking and that it his father addressed his alcohol consumption issues he would not be afraid to go there. Finally he would go visit his father over Christmas and the summer break and that eventually his father would come to understand the reasons for him wanting to stay in Canada.
[69] I have considered the observations made by various individuals regarding the level of the child’s maturity including the findings made by Ms. Douglas. I find that the child is mature enough that his objections should be considered.
[70] The next question is to determine if the reasons for the objections are substantial such as important psychological, language and educational factors or are related to misconduct by the father. I am cognizant that only in exceptional circumstances are a child’s objections to form the basis for their non-return to the place of their habitual residence.
[71] The first ground raised by the child is that he is fearful of returning to Brazil because his father would frequently drive intoxicated and on one occasion threw a knife at his friend William which narrowly missed the child. There is no evidence that the father has a criminal record for impaired driving or any independent evidence to support a finding that he drives his motor vehicle while intoxicated. I have also taken into consideration the child’s May 24, 2016 letter where he comments that his father drove him in a vehicle while intoxicated on two or three occasions. By November 2016, the mother reports that the child said that the father “frequently” and on “many occasions” would drive with the child intoxicated. The father denies these allegations.
[72] The second ground is that his father behaves aggressively both verbally and physically when watching sporting events, drinks to a level of intoxication and on one occasion broke his hand after punching a wall. The father denies the allegations. The allegations by the child are of a general nature with very little specification as to when and where the incidents occurred. I do not have sufficient evidence to make a finding of the father behaves aggressively and physically in front of the child.
[73] The third ground is that the father was yelling profanity and derogatory words towards the mother and the child on January 8, 2016 when he was advised that the son wanted to stay in Canada. The father denies the statements.
[74] The fourth ground is that the child wished to raise the issue in December 2014 after spending a period of time with his mother in Canada but he was too afraid to tell his father. The father admits it was never raised with him in 2014.
[75] The fifth ground is the child’s allegation that his stepmother treated him differently from his half-sister’s, that she would not feed him properly, would only allow him to eat at certain times and at times permitted him to go hungry. The father denies these allegations.
[76] The sixth ground is that the child is upset at the father because he interfered with him having access to his mother in the past. The father denies these allegations.
[77] The seventh ground is that the father had misused funds belonging to the child. The father denies these allegations.
[78] In the child’s letter dated May 24, 2016, the objections are related to him preferring Canada for its medical care, his enjoyment in school and his ability to learn English and French languages. Only on one point does he raise an issue that on two or three occasions his father drove him after consuming beer.
[79] Other objections raised by the child related to his father being aggressive, his stepmother not treating him well, his father interfering with access to his mother, his father using profanity at him and his mother when he indicated he wanted to stay in Canada and his father misusing his the child’s funds. All these allegations are denied by the father.
[80] Evidence was presented from a lawyer in Brazil that the matter can be tried in Brazil by the end of 2017 and that the judge will interview the child as part of the trial process. Many of the objections raised by the child may be relevant in a custody proceeding that will take in Brazil.
[81] My discretion to refuse to return the child to Brazil must be exercised in the context of the Hague Convention and not in the context of a custody dispute. It is only in exceptional circumstances that I should refuse to order the immediate return of a child who has been wrongfully retained.
[82] While I have found that the child is mature, I have not found that his reasons are substantial. I have not found that they are important psychological, language, educational factors or related to misconduct by the father.
[83] Further, the objection based on the fear of the father should only rarely be relied on to exercise my discretion not to return the child when I have not found that a grave risk of physical or psychological harm exists if the child is returned to Brazil.
Disposition
[84] I find that the child is wrongfully retained in Canada and that such retention constitutes a wrongful retention of the child within the meaning of Article 3 of the Hague Convention.
[85] I have not found that there is no grave risk that the child will suffer physical or psychological harm if returned to Brazil creating an intolerable situation for the child.
[86] Further, I have found that the child’s reasons to object to returning are not substantial and that this is not an exceptional case within the meaning of the Hague Convention.
[87] Consequently, I am bound by the Hague Convention to order the child’s return.
[88] I order that the child, Luiz Felipe dos Santos Vieira, be returned to his habitual residence in Santa Catarina, Brazil on or before January 6, 2017 pursuant to section 46(5) of the Children’s Law Reform Act R.S.O. 1990. Chapter c.12 and Article 12 of the Convention on the Civil Aspects of International Child Abduction.
[89] I make further order as follows:
a) the father will arrange for and pay the cost for the flight from Ottawa, Ontario to Santa Catarina, Brazil for Luiz Felipe dos Santos Vieira;
b) the parties shall sign all required consents for the child to travel from Ottawa, Ontario to Santa Catarina, Brazil;
c) the mother shall provide the child with his passport and all other necessary travel documents to permit the child to travel;
d) the father shall, within the 14 days of the child’s return, initiate the applicable court proceedings in the State of Catarina, Brazil to determine the issue of custody, access and support; and
e) the father shall arrange for the registration of the child in school in Santa Catarina, Brazil upon his return.
Costs
[90] In the event the parties are unable to agree on the issue of costs, the father shall have until January 27, 2017 to serve and file his written submissions, including any offers to settle that he may have made. The mother shall have until February 17, 2017 to file her written submissions, including any offers that she may have made. The father may, if he so chooses, file a reply by February 24, 2017. Submissions are not to exceed three pages in length.
Shelston J.
Released: December 22, 2016
CITATION: Vieira v. Dos Santos Trillo 2016 ONSC 8050
COURT FILE NO.: FC-16-2257
DATE: 2016/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marnei Vieira
Applicant
– and –
Priscila Dos Santos Trillo
Respondent
REASONS FOR JUDGMENT
Shelston J.
Released: December 22, 2016
APPENDIX
August 16, 2017: Commencing at page 16 in the December 14, 2016, decision, the paragraphs numbers have been renumbered to be consecutive.