CITATION: Stacey v Stacey 2016 ONSC 8054

COURT FILE NO.: FC-15-2824

DATE: 2016/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mark Derek Stacey

Applicant

– and –

Karen Stacey

Respondent

Allan Hirsch, counsel for the Applicant

Karen Hogan, counsel for the Respondent

HEARD: November 16 and December 16, 2016

Endorsement

Overview

Overview

1The Applicant (“father”) seeks an order that the two children of the marriage namely Joseph Edward Stacey, born October 28, 2004 (“Joseph”) and Evelyn Robyn Stacey, born March 6, 2008 (“Evie”), be returned to England.

2The father alleges that the children are being retained in the Province of Ontario by the 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”].

3The mother opposes the application and the return of the children to England.

Background

Background

4Both parties were born, raised, educated and married in England on September 20, 1996.

5The two children of the marriage were both born in England.

6The father has lived in Hampshire, England all his life. He has worked for the same company as an engineer for over 30 years and resides in the matrimonial home where the mother and the children resided.

7The parties separated on January 1, 2013. The parties had a nesting agreement where both children remained in the home and the parents rotated caring for the children from January 2013 to September 2013. In September, 2013, the parties ended the nesting agreement and the father saw the children regularly during his week and every alternate weekend at his parent’s home. After that time the mother remained as the primary caregiver and the father had access to the children.

8On December 27, 2013, the mother advised the father that her boyfriend, Mr. Butler, had been offered a one-year contract to work in Canada and that she wished to travel there and take the children. The mother emphasized that the contract would not exceed one year.

9The parties entered into a detailed agreement without the assistance of counsel dated February 4, 2014 (“the Relocation Agreement”) which states as follows:

I, Mark Stacey (father), will agree to the temporary relocation of the Children to Canada with their mother, for a period of 12 months, (to a maximum of 13 months) commencing on 10 March 2014, provided the following conditions are agreed.

1. Adequate health insurance cover is taken out to cover the Children, with specific provision to Evie’s particular health condition.

2. The Children attend a high standard of school in Canada at a suitable level of education.

3. Any important decisions related to the Children whilst in Canada shall be made with the agreement of the Children’s father.

4. Children are to have regular communication with their father, (minimum twice weekly, for a minimum period of one hour), via Skype or telephone etc., this should be private time between the Children and the father. In addition, the Children shall be allowed to contact their father at any time, 24/7, if they are upset, home sick or just for a talk. (In arranging these communications, adequate consideration of time zone differences shall be made).

5. If the Children are unhappy and/or don’t settle into their Canadian life for schools, the children will return to the UK, and resume their education at their old schools (subject to place availability). If the children cannot be placed at their old schools, (with the agreement of the Parents and the Children), they shall attend suitable schools in the local Havant area.

6. The Children are to be flown back to the UK to stay with their father during their Canadian school summer break, minimum six weeks, and for the remainder of the summer break, if the Children wish to extend the visit. (Father to be advised of the children’s arrival dates at the earliest opportunity).

7. The Children’s father and other close family members can visit the children in Canada at any time at their own expense. Arrangements for which shall be made in advance.

8. All Children’s travel to and from Canada will be at the mother’s expense.

9. Upon return to the UK, the Children shall resume their education at their old schools (subject to place availability). If the children cannot be placed at the old schools, (the agreement of the Parents and the Children), they shall attend suitable schools in their local Havant area.

At all times will the needs and wishes of the Children be considered by the mother and father and wherever possible take preference.

10At the same time and at the request of the mother, the father signed a second agreement entitled the “Simplified Agreement” dated February 4, 2014 which permitted the mother to obtain Canadian visas for the children. The agreement provides as follows :

I Mark Derek Stacey give permission for my children Joseph Edward Stacey and Evelyn Robyn Stacey to Travel to Canada with their mother Karen Stacey and Mark Vernon Peter Butler to reside there.

11The youngest child, Evie, at eight months of age, had open heart corrective surgery. Before leaving for Canada, the child had already scheduled a follow-up appointment at the Southhampton University Hospital in England for February 11, 2015. Before leaving, the mother confirmed that the child would be attending that appointment.

12The mother, children and Mr. Butler moved to Canada in March 2014. They rented a home. The children were registered in school. Currently, Joseph attends W. Erskine Johnston Public School in grade 6 and Evie is in grade 2.

13Since coming to Canada with the children, the mother has not worked and is financially reliant on Mr. Butler for her needs.

14After moving to Canada, the children returned to England in the summer 2014 and spent six weeks with their father. The father was supposed to have contact with the children by Skype or telephone two times per week. However, once the mother moved to Canada, the access was restricted to one contact per week.

15When the mother came to England to collect the children to return to Canada that summer, the father asked for a visit with the children during the week of Christmas. The mother indicated that that was not possible because she had a friend attending with her own children.

16On October 20, 2014 during a Skype conversation with both children, Evie suddenly announced to the father that the children were staying in Ontario for three more years. The father was taken back as the mother never discussed this issue with him. The parties texted each other that same day as follows :

1. 4:52 PM the father texted the mother: “so are you and Mark planning on staying in Canada for three years?”

2. 5:00 PM the mother texted the father: “may be … We haven’t decided it all depends on the kids. At the moment they want to but I don’t know if I will weather the winter ”

3. 5:01 PM the mother texted the father: “and it’s doubtful that the divorce we sorted so I will have no deposit until it is ”

4. 5:12 PM the father texted the mother: “well they have said they would like to come home, so I have said at they can come say with me. If that is a case it may be better for them to come home in January so they can get back into their UK for two terms. Have the summer with you in Canada”

5. 5:13 PM the mother texted the father: “know they have said they want to stay here”

6. 5:15 PM the father texted the mother: “that’s know what they told me”.

17The father attempted to communicate with his children on Christmas Day but was not successful. However, the father spoke to the children on December 26, 2014 during which he promised the children that he would celebrate a second Christmas when they came back to England in April 2015.

18In January 2015 the father spoke to both of the children schools to confirm that there would have been space available for their anticipated return in 2015.

19On January 6, 2015, the father texted the mother to remind her of the Southhampton hospital appointment on February 11, 2015 at 2:40 PM.

20On January 16, 2015, the father sent the mother an email reminding her of Evie’s cardiac appointment at the Southhampton Hospital set for February 11, 2015. Specifically, the email entitled “Return of Evie and Joseph to the UK” stated the following:

Karen,

Just thought I would email you with Evie’s Hospital Appointment details, which I sent you a text about last week but I wasn’t sure that you receive them.

I have checked with Southampton General and they confirmed that Evie’s annual hospital checkup is on 11 Feb 2015 at 2.40 p.m. As I have not seen her in person for over 5 month I would like the opportunity to of her return to the UK to spend some time with her. It is very important Evie receives consistance care, from the team at Southhampton Cardiology Team who are familiar with her history.

Additionally (as per our agreement for the Childrens to return to the UK after the year, to continue their schooling) I have been in contact with the schools and for the commencement of Summer Term Joseph and Evie need to be back for 7 April 2015. Please can you let me know the flight details A.S.A.P. so that I can start making plans.

Of course if you would like (to save you some money and flights), I would be more than happy for both Evie and Joseph to the UK in February and resume their schooling here and live with me full time, until you are able to return, and we can share parental responceabilities for the ongoing future(as agreed).

Alternatively, if you wish to extend your stay in Canada (with your Mark, until his contract finishes), I would be happy for the Children to live with me throughout the time you remain out of the UK and we can agree periods through the school holidays when the children can visit you in Canada (much the same as they did with me last summer. Again once you return to the UK I would be happy for us to share parental duties on an alternate week basis.

Please try and understand I love and care for children as much as you, and that it is our joint responsability to ensure their future well-being for. As you know I only agreed to them living in Canada for 1 year, I thought, as you did, that it would be a good life experience and that it would not interfere with their overall schooling. That time has now passed and they now need to return to the UK schools to continue their educations.

I would like to think that we can come to a mutual agreement on this, before involving solicitors. I am sure that you would prefer to spend the money on the kids rather than the solicitors, as what I.

Regards,

Mark

21He further confirmed that the schools expected the children to return by April 7, which was the start of the summer term in England. The same day, January 16, 2015, the mother sent an email to the father advising him, for the first time, that she was no longer planning on returning the children to the United Kingdom. Specifically the email stated as follows:

Mark,

I too have been talking with the Southhampton Hospital – we have agreed to postpone her appointment until we return to the UK in just over two years. They agree the care she will get here in Canada will be outstanding, and are happy with this, and see no reason why they should see her as she has been seen here in November last year and the team at CHEO in Ottawa came to the same conclusion as the team in Southhampton, that being that Evie is progressing as expected and there is no cause for concern.

The only thing I want is for them to be happy, and their quality of life here is exceptional-I have made them both aware that they can go and live with you or stay here-and that it is totally up to them (as per the agreement-we agreed that the needs and wishes of the children would take precedence) and that we only want them to be happy. We have discussed this with them both on numerous occasions, individually and together, and they are happy and excited to stay and are looking forward to the opportunities the next two years have for them.

Their education here was not a break from their education and does not interfere with their “overall schooling”. The education they receive here is on a par, if not better than the education they would receive in the UK-they have such great opportunities here-both are able to speak better French than me-Evie knows the story of the little red hen and can tell you in French or English, and they both frequently talk French to each other, something they would never get taught in England especially at such a young age!

The opportunities they have outside of school are also exceptional, they are both looking forward to the camps they can attend in the summer and Joseph is off on another cub camp again soon. It’s an inset day today so he is off to the skating rink to play ice hockey with his friends. Evie is currently at her friends playing on the ice rink in their back garden. Evie plays outside with her friends every night after school-even in the really cold temperatures we are having something she couldn’t do in the UK because of the danger the UK roads pose.

Life they have here is fantastic-they both have great friends and are happy. I am sure if you saw how happy they are you would understand. If they ever asked to go back to England to live and were serious about it I would support them fully.

As in the agreement you are welcome to come and see them whenever you want to and I would encourage you to do so to see how happy they are and what a fantastic life they have here.

More than happy for you to go and see a solicitor if you want to but I don’t think even you are that selfish.

Karen

22By email dated January 21, 2015, the father believed that he had sent a text message set out below. However, the email was inadvertently sent from the father’s personal email to his own work email and was never delivered to the mother. The email stated as follows:

Karen,

Why have you not involve myself in the discussion with the Hospital, as you agreed to in our agreement. As Evie father I have the right to be involved jointly. Please send me a copy of all corresponse with both hospitals regarding her health. Decisions regarding both of our Children are more important than disagreements we have between us.

The Children’s quality of life also included their ability to see all of their family members (included extended family). By remaining in Canada you are depriving them of that right. The Children’s grand parents are all elderly and cannot travel to Canada, the Children should have the ability to see them as regularly as possible (they will not be here for ever) and the children are too young to appreciate this. You are incorrect in saying that we have discussed with the children whether they wish to come home to the UK or stay in Canada. You may have talk the children, but first time I have had a discussion was last Tuesday(?? Jan 2015) and clearly from that discussion I do not fully explain the full implication of the decision, regarding access to there full family, and not just you.

Just to reittorate, as per our agreement, that granted the Children’s temporary residence in Canada, there must return back to the UK by 18 Apr 2015, but beyond that date I do not give my permittion. The second agreement that I signed for you was a simplification, per your request, to help you obtain your necessary visas.

The Children both “Having great friends and a fantastic” is not excusive to Canada, they have always had that also in the UK. With Children like ours, having good friend and getting involved and lots of activities is the norm.

I am sure that you and the Children have had a nice time in Canada and that it was a good life experience for them, it is time them to return home.

23There was no further discussion between the parties after the exchange of the emails on January 16, 2015. The father did not realize that the January 21, 2015 email did not reach the mother. On the other hand, the mother believed that since she had no communication from the father, he had agreed to her request. It appears that both parties were waiting for the other party to respond without either party taking a proactive action.

24Not having received a response from the mother, the father decided to instruct his solicitor to make a formal demand for the return of the children. On March 18, 2015, the father’s solicitor in England wrote to the solicitor for the mother in England the following letter which includes the following paragraph:

We are instructed by our client that there was an agreement between him and your client that she would remove the children from the jurisdiction to live temporarily in Canada for 12 months returning home between March and April 2015. Our client is concerned that your client intends to extend her stay in Canada. Please confirm by return that this is not the case and that your client will be returning to the United Kingdom within the next week or so. We look forward to hearing from you by close of business on Friday, 20 March 2015. If we do not receive assurances from your client that she and the children will be returning to this country we are instructed to issue an application to the High Court for the children’s immediate return to the United Kingdom.

25By letter dated March 23, 2015, the solicitor for the mother responded that their client was extremely surprised that the father had taken this course of action as it was her understanding that the father was well aware that the children wished to remain in Canada and the understanding was that the father would not object to this decision. Further, the letter confirmed that the mother would not be returning the children to the United Kingdom. Specifically, with respect to the children’s wishes, the letters states as follows :

… The children have expressed a clear wish to continue living in Canada and in those circumstances that is what our client intends doing. Our client would very much welcome your client’s cooperation and support in this regard, particularly as she is firmly of the view that your client is aware of what the children’s wishes are. However, if your client cannot be persuaded to respect the children’s wishes that they continue living in Canada, we will have to make this Application to Court.

26The mother attempted to resolve the issues with the father by calling him. On March 23 and March 25, 2015, the mother spoke to the father and unbeknownst to the father tape-recorded the conversations. Specifically, I refer to the following excerpts of the transcription recording made on March 23, 2015:

(a) Page 4-male-“ well, I want them to come back here”

(b) Page 4-male-“I don’t care. I want you all to come back here so I can see them.”

(c) Page 5-female-“so, you’re prepared for them to be uprooted from Canada and go to different schools, different friends; another house. Start all over again, and up route again?”

(d) Page 5-male “well, they’re just coming back to their own lives again ”

27During the second conversation on March 25, 2015, the father reiterated his request to have the children to come back to England. Specifically, I refer to the following excerpts of the transcription recording:

(a) Page 12-female- “Alright. Have you thought about it? Have you come up with any suggestions?”

(b) Page 12-male- “Well no, I still just I do want the kids to come back.”

(c) Page 12-female- “Okay, well were not going to do that”

(d) Page 14-male- “well, I’ll need to check all those things out anyway, so that’s fine. It seems to me that I just lose everything. I’m lose-lose everywhere. To me, it seems pretty unfair and I don’t see why you can’t see that, but it’s just not right. You know it’s all very well for you all the time seeing them all the time and everything. You’re not seeing that it’s not fair that I don’t see them.”

(e) Page 14-female- “ yes I do”

(f) Page 14-male- “the disappointment as well”

(g) Page 15-female- “I do get that Mark, which is why I’m saying coming over for the whole month. I’m offering and then come over at Christmas. And then will bring them back for a period next year may be”

(h) Page 15-male- “okay, well I’ll have to think about it, because as I said, what worries me Karen, is that how do I know you’re ever going to come back?”

(i) Page 15-female- “Mark, I don’t even know if I’m going to be alive tomorrow. Like you said, who knows? They might wake up tomorrow and say no, we’ve had enough. We want to go back to England. Then we go back to England.”

(j) Page 15-male- “yeah, I don’t-well, anyway, okay. All right, well I mean we just have to keep going on it. I’m still cracking through the divorce stuff anyway, so hopefully that will be sorted at some point.”

28The mother believed that after the conversation on March 25, 2015, the matter was resolved.

29In March 2015, Mr. Butler’s employment became permanent.

30On April 9, 2015, the father wrote to the mother as to whether or not some of the summer camps that she had booked for the children had been cancelled so that he could have 11 days of continuous vacation with the children. The same day, the mother responded that none of the summer camps had been cancelled.

31On April 12, 2015, the father wrote to the mother wanting to bring the children back to England for a longer visit. The same day the mother responded that children were involved in camps.

32The parties exchanged emails through May 2015 trying to organize a summer vacation taking into consideration the summer camps the children were involved with.

33On June 30, 2015, the mother and Mr. Butler purchased a residence in Kanata Ontario.

34The father states that he did not immediately start court proceedings when the April 18, 2015 deadline passed without the return of the children for three reasons:

(a) he wanted to give the mother an opportunity to “come to her senses and avoid a costly court case”;

(b) the children wanted him to come to Canada to see where they have been living for over year and to take a holiday to Niagara and Toronto; and

(c) to make the right decision, he needed to see and talk to his children directly without them being watched by the mother or Mr. Butler.

35The father came to Canada and spent nine days with the children and then a second period of five days with them after which he was convinced that the children would not be better off in Canada.

36After returning from Canada, in August 2015, the father retained a solicitor and contacted the Central Authority in England. On September 8, 2015 the father completed the application for the return of the children.

37By letter dated November 4, 2015, the Ontario Central Authority sent a letter to the mother advising her of the application from the father and asking her if she would return the children voluntarily. The mother did not respond.

38In October 2015 the father commenced proceedings in the Portsmouth Family Court in England seeking a Child Arrangement order. The mother was served with the English proceedings and her counsel appeared in court on December 21, 2015. The matter was adjourned to a dispute resolution hearing set for February 22, 2016. This date was selected because the parties expected that the Hague Convention application would be determined by February 11, 2016 within the six week delay considered reasonable pursuant to Article 11 of the Hague Convention.

39On December 31, 2015, the father commenced the Hague Convention application in this Court. The matter was originally returnable on February 9, 2016.

40On January 15, 2016, Judge Levey, of the Family Court in Portsmouth, was informed that the Canadian court would be determining the question as to whether the children are wrongfully retained in Canada for the purpose of article 3 Hague Convention. He refused to make a declaration of the rights of custody of the parents because that issue was to be considered as part of the proceedings by the Canadian court.

Issues

Issues

41This application raises that the following issues:

(a) Does the father have rights of custody to the children under the laws of England?

(b) If so, was he actually exercising those rights at the time of the alleged wrongful retention by the mother?

(c) Is evidence of whether the children have settled into their new environment relevant in a case where proceedings have been commenced within one year of the alleged wrongful retention?

(d) Did the father consent or subsequently acquiesce to the permanent relocation of the children to Ontario?

(e) Is there a grave risk that the return of the children to England would expose them to physical or psychological harm or otherwise place them in an intolerable situation?

(f) Are the children’s objections to be considered?

The Law

The Law

42In considering an application under the Hague Convention, the court is not to engage in an analysis of the best interests of the child, as it would in a typical custody or access dispute. Rather, the objects of the Hague Convention are to secure the prompt return of children wrongfully removed to or retained by any Contracting State and to ensure the rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States.

43In Balev v Baggott 2016 ONCA 680, the Court of Appeal discussed the purpose of the Hague Convention as follows :

29. 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.

30. 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

44Article 3 of the Hague Convention states that the removal or the retention of a child is to be considered wrongful where:

(i) 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

(ii) 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.

45Article 5 of the Hague Convention defines the “rights of custody” as including “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”.

46The defences available to the mother in this case are found in Articles 12 and 13 of the Hague Convention. Pursuant to Article 12,

Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of 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 [his or her] new environment.

47Pursuant 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 we 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.

Does the Father have Rights of Custody to the Children under the laws of England?

Does the Father have Rights of Custody to the Children under the laws of England?

48Pursuant to Article 3 of the Hague Convention, in order to determine whether the removal or retention is “wrongful”, the court is required to determine if there was a breach of the rights of custody under the law of the state where the children were habitually resident immediately before the removal or retention and whether those rights were actually exercised at the time of the removal or retention or would have actually been so exercised but for the removal or retention.

49The first issue is to determine where the children were habitually resident immediately before the removal or retention.

50The term “habitual residence” is not defined in the Hague Convention. In determining habitual residence, the courts have considered section 22(2) of the CLRA, which provides that:

A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

51In Balev v. Baggott, 2015 ONSC 5383 [“Balev”], the motions judge said the following on the issue of habitual residence under the Hague Convention(at para. 73):

The case law is clear that the habitual residence of a child is in the state where both parties lived together with the child, and neither parent can unilaterally change the habitual residence, without the express or implied consent of the other parent (Cornaz v. Cornaz-Nikyuluw, 2005 CarswellOnt 4714 (OnS.C.); Thomson v Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C.)).

52The mother appealed the application judge’s decision to order the children’s return to Germany. On appeal, the Divisional Court overturned the application judge’s decision and held that the children’s habitual residence in Germany had changed to Ontario during a consensual temporary travel.

53The father appealed and on September 13, 2016, the Court of Appeal confirmed the application judge’s interpretation of the law on habitual residence and stated at paragraph 39:

There is a long and well-established line of authority to the effect that one parent cannot unilaterally change a child’s habitual residence under the Hague convention. The application correctly describe this principle at para. 73:” the case law is clear that the habitual residence of the child is the state where both parties lived together with the child, and neither party can unilaterally change the habitual residence without the express or implied consent of the other parent.”

54Further the Court of Appeal in Balev confirmed certain legal principles that are applicable to the case at bar:

(a) that a parent’s consent to a time-limited stay does not shift the child’s habitual residence-see paragraph 42;

(b) even where an extension is agreed to, the extension does not defeat the time-limited nature of the consent-see paragraph 48;

(c) the question of habitual residence is essentially factual in nature-see paragraph 50.

55In this case, the father has filed an affidavit in respect of UK law on the rights of custody signed by Karen Cox, his solicitor in England. Pursuant to that affidavit sworn on January 4, 2016, the solicitor has provided the following information at paragraph 1, 2 and 5 of her affidavit as follows:

1. The applicant father has sought a declaration regarding his rights of custody in respect of his two children Joseph Edward Stacey, DOB. 28. 10. 2004 and Evelyn Robin Stacey DOB. 06. 03. 2008. A hearing has been listed at the Family Court sitting in Portsmouth on 15. 01. 2016 to determine this issue. There are pending proceedings in respect to the applicant’s father’s application for a child arrangements order for both children pursuant to the children’s act in 1989 as well as his application for the immediate return of the children to the UK pursuant to the Hague convention.

2. Date of birth the term “rights of custody “ does not coincide with any particular concept of custody in English domestic law, but instead draws its meanings from the definition and purposes of the Hague convention. Rights of Custody , as referred to in the convention, include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. These terms refer to “rights to care, custody, control or guardianship.

3. In this case the applicant father has parental responsibility in respect of each of the children as she was married to the respondent mother at the time of the respective births. By virtue of section 2(1) children’s Law act 1989 parental responsibility is automatically conferred in such circumstances. The applicant father therefore is rights of custody in respect of each of the children and such rights were being exercise of the time of the agreed removal of the children from the jurisdiction and continuously since that time.

56There is no other evidence of English law submitted and I accept that the affidavit of Karen Cox, solicitor for the father in England, accurately describes English law. I find that both parties had and have rights to day to day care (custody) of the children and both parents are guardians of the children under English law.

57I find that the father has rights as to custody under English law.

Was the Father Actually Exercising Custody Rights at the Time of the Alleged Wrongful Retention by the Mother?

Was the Father Actually Exercising Custody Rights at the Time of the Alleged Wrongful Retention by the Mother?

58The next question to decide is whether the father was exercising those rights at the time of the retention or would have exercised those rights but for the removal or retention.

59Prior to the children leaving for Canada, the father had regular access to the children. The mother obtained the father’s consent to be permitted to travel with the children outside of the United Kingdom as well as on his consent to apply for Canadian visas. During the period of time that the children were in Canada, he attended and had access to them the summer of 2014, had regular telephone access and was exercising his rights as a parent. Until January 16, 2015, the plan was for the children to return to England.

60I find that the father was exercising his custody rights at the time of the retention of the children by the mother.

Is Evidence of Whether the Children Have Settled Into Their New Environment Relevant in a Case Where Proceedings Were Commenced Within One Year of the Alleged Wrongful Retention?

Is Evidence of Whether the Children Have Settled Into Their New Environment Relevant in a Case Where Proceedings Were Commenced Within One Year of the Alleged Wrongful Retention?

61The first defence available to the mother is under Article 12 of the Hague Convention. Pursuant to Article 12, if the court finds that a wrongful removal or retention has occurred, the court is mandated to return the child unless more than one year has elapsed from the date of the wrongful removal or retention. Even where proceedings are commenced after the expiration of a period of one year, the Court must order the return of the child unless it is demonstrated that the child is now settled in his or her new environment.

62The mother submits that given that one year and at least eight months have passed since the alleged wrongful retention, it would be contrary to the spirit of the law and the Hague Convention to ignore the evidence of how the children are settled in Ottawa. In support of that submission, she relies on the nine month delay from the original return date of the application in February 2016 to November 2016, the fact that Joseph has started a new school and has been involved in scholastic and extracurricular activities and that Evie’s bonding with teammates and friends and continuing to be involved in many extracurricular activities.

63In 2015, McPherson J. A., speaking for the Ontario Court of Appeal held in Bazargani v Mizael 2015 ONCA 517 at paragraph 30:

… Pursuant to Article 12, the degree to which the child has become settled has no bearing on a Hague Convention application filed within one year. The familial bonds Andrew has forged in Ontario may well influence the issue of where and with whom this toddler should reside, but such custodial matters are not before us: see Hague Convention, article 16, 19; Thomson, supra, at 578.

64In Balev, supra, Sharpe, J.A. stated at paragraph 56:

However, decisions of this court and the Supreme Court of Canada hold that evidence of settling in is not relevant if the application is brought within one year of the wrongful detention or removal. Article 12 of the convention provides that if the application has been brought more than 12 months after the wrongful removal or retention, the court “shall…. order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ”

65The issue of settled intention is not applicable in this circumstance because less than one year had elapsed from the date of the wrongful retention until the commencement of proceedings. In this case, the mother advised the father on January 16, 2015 of her intention to retain the children in Canada. The children were to be returned in April 2015. They were not returned so in December 31, 2015, the father commenced his proceeding under the Hague Convention.

66Consequently, since the Hague Convention application was commenced within one year of the wrongful retention, Article 12 does not apply.

Did the Father Consent or Subsequently Acquiesce to the Permanent Relocation of the Children to Ontario?

Did the Father Consent or Subsequently Acquiesce to the Permanent Relocation of the Children to Ontario?

67The mother submits that the father acquiesced and/or consented to the children permanently residing in the province of Ontario.

68In Katsigiannis v Kottick-Katsigiannis 2001, CanLii 24075, the Court of Appeal stated at paragraph 52, the evidentiary burden that must be met by the mother in this case as follows:

52. The question whether the father consented to the children remaining in Ontario is a question of fact. In re R, supra. The mother bears the burden of proof on the consent\acquiescence issues. That is, she must establish that article 13(a) of the Hague Convention applies. To discharge her burden in the circumstances of this case, the mother most establish by a preponderance of evidence that the father consented to, or acquiesced in, the children remaining in Ontario with her. See P. v P., supra

69In, Katsigiannis, supra, the Court of Appeal stated at paragraph 36, the legal test to determine if acquiescence has occurred as follows :

36. ... These cases establish that acquiescence requires evidence from the alleged abducting parent of some conduct on the part of the wronged parent which is inconsistent with the summary return of the child to the place of (the) child’s habitual residence. Summary return, looked at generally, is relatively immediate, as opposed to eventual, return of the child. According to these cases, acquiescence for the purpose of article 13(a) may be active or passive. Active acquiescence involves some step by the aggrieved parent that is demonstrably inconsistent with insistence on the summary return of the child to the place of the child’s habitual residence. Passive acquiescence occurs when the aggrieved parent allows enough time to pass without insisting on summary return. The length of time that must pass before acquiescence will be found will depend on the circumstances of each case.

70Further, the Court of Appeal went on to endorse the following statements of law:

1. The test to determine if acquiescence has occurred is entirely subjective-see para. 38.

2. It will depend on the wronged parents state of mind-see para 38.

3. It may be inferred from conduct or evidence by statements in clear and unambiguous terms-see para 38.

4. Attempts by the wronged parent to affect a reconciliation or to reach an agreed voluntary return of the abducted child will not generally constitute acquiescence for Hague Convention purposes-see para 39

71I find that the mother has not discharged her burden of proof to establish on a preponderance of the evidence that the father acquiesced or consented to the children living in Canada beyond April 2015. I do so for the following reasons:

(a) the agreement was clear and stated that the children were to return to Canada in April 2015;

(b) on October 20, 2014 the mother did not indicate that she planned to stay in Canada beyond the 13 months provided by the relocation agreement;

(c) on December 26, 2014, during a conversation with his children, the father promised the children to celebrate a second Christmas when they returned to England in April 2015;

(d) in December 2014, the father contacted the school’s to ensure that the children had places to attend upon returning from Canada;

(e) on January 16, 2015, the mother, for the first time, by email, advised the father that she did not intend on returning the children to England on April 10, 2015;

(f) on January 21, 2015, despite the father’s email inadvertently not being delivered to the mother, I find it shows his subjective view that the children should return to England and that the father objected to the mother unilaterally deciding for the children to remain in Canada;

(g) on March 18, 2015, solicitors for the father, wrote to solicitors for the mother insisting that the children return to England by March 20, 2015;

(h) the transcript of the taped conversation of the parties on March 23 and March 25, 2015, indicate that at no time did the father agree that the children remain in Canada. The transcript of the conversations show that the father was pleading with the mother to return the children to Canada;

(i) faced with the decision by the mother that the children would remain in Canada, the father arranged summer access to his children in 2015. Over the months of March, April and May, 2015 the parties were attempting to resolve the father’s visit to see the children in Canada. He agreed to go visit the children in Canada and spent nine days travelling with the children and five more days staying at a local hotel in Kanata. He had no other alternative but to attend in Canada to meet with his children and consider the option of the children staying in Canada;

(j) after spending two weeks with his children in Canada, the father’s position did not change and on September 8, 2015, the father signed the legal documentation to commence the application for the return of the children pursuant to the Hague Convention; and

(k) on December 31, 2015, the father commenced the current application in the Superior Court of Ontario.

72The mother submits that the decision to adjourn the proceeding on February 9, 2016 until November 16, 2016 was a unilateral decision made by the father and that this delay should be taken into consideration. The timeline is as follows:

1. December 31, 2015, the father commences proceeding and the mother is served the same day;

2. January 5, 2016, the Divisional Court releases its decision in the Balev matter;

3. January 8, 2016, counsel for the mother wrote to father’s counsel indicating that this was not an appropriate case under the Hague Convention but that the children’s habitual residence was in Ottawa and the Ontario Court should decide the best interests of the children;

4. January 8, 2016, counsel for the father advises that a full day of hearings have been set for February 9, 2016 and requests that the mother file her Answer and affidavit by January 25, 2016 and that the parties can file facta and their books of authority by February 4, 2016;

5. January 21, 2016, counsel for the father suggests the motion may be adjourned pending receipt of the mother’s pleadings, the necessity of disclosure and the possibility of questioning;

6. February 9, 2016, the hearing is adjourned;

7. February 29, 2016 counsel for the father writes to the mother’s counsel knowledging receipt of her pleadings, advising that the counterclaim for custody is premature, that his client will not answer the counterclaim until the Hague Convention matter is resolved and advises that there may be disclosure issues to be addressed after March 16 when counsel for the mother returns to the office;

8. April 26, 2016 counsel speak at which point counsel for the father advises that his client is awaiting the Court of Appeal decision in Balev after leave to appeal was granted on April 25, 2016;

9. May 5, 2016 counsel for the father confirms in writing that he is awaiting the decision by the Court of Appeal before proceeding with the Hague Convention application;

10. September 13, 2016, the appeal is granted in the Balev decision; and

11. Immediately after the release of the decision, the father obtains the first available return date being November 16, 2016 for the hearing on the Hague Convention application.

73The mother submits that as a result of the father waiting until the Court of Appeal decision in Balev, supra, the application was delayed and during that period of time the father supported the children making long-term plans for their lives in Ottawa.

74Upon review the evidence, I do not find that the father at any time agreed that the children would remain in Canada. I agree that during the period of time while awaiting the court proceeding, the father encouraged his children to be involved in activities at school and at home.

75I find that the decision by the father to await the Court of Appeal decision in Balev in a case very similar to the case at bar was a reasonable decision and cannot be construed as consenting or acquiescing that his children remain in Canada.

76Based on the totality of the evidence, I conclude that the father did not consent or acquiesce to his two children remaining in Canada after April 10, 2015.

77Consequently, I find that the mother’s retention of the children in Kanata, Ontario after April 10, 2015, was wrongful within the meaning of the Hague Convention.

Is There a Grave Risk that the Return of the Children Would Expose Them to Physical or Psychological Harm or Otherwise Place Them in an Intolerable Situation?

Is There a Grave Risk that the Return of the Children Would Expose Them to Physical or Psychological Harm or Otherwise Place Them in an Intolerable Situation?

78The mother invokes the defence set out in Article 13(b), which requires the court to analyze the facts to determine if there is a grave risk that the children will be exposed to physical or psychological harm or otherwise be placed in an intolerable situation, before deciding whether to return the children, in this case, to England.

79The 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]

80In Wentzell-Elies v. Ellies 2010 ONCA 347 para 40, the court stated that the threshold with respect to the exceptions set out in the Convention is very high.

81The mother submits that the following factors give rise to a finding that the children are at grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation as follows:

(a) emotional harm to the children;

(b) harm to their education;

(c) sudden instability for the children;

(d) harm to the relationship with their father; and

(e) financial consequences for the children.

82With respect to the emotional harm, the mother submits that Evie does not do well with change, the children require stability, the children would face a big upheaval if moved back to England and that the children would suffer some anxiety. The only evidence submitted is the mother’s affidavit. While I understand that the children will face a degree of upheaval, I do not find that the evidence poses a substantial risk to the children.

83With respect to the harm of their education, the mother alleges that the children would have to start new schools, they may be required to skip a grade, that Joseph may be academically behind and the children would have a better education in Canada. The father denies these allegations and indicates the children can be going back to start school in the same system that they were attending before they moved to Canada. Further, I have considered the email of the mother of January 16, 2015 were she makes no negative comment about English schools. I conclude that the mother has not met her evidentiary burden of proof.

84With respect to the sudden instability of the children, while I appreciate that moving the children from Canada to England in a short period of time will create some instability, the children are going back to their habitual residence where they have family, friends and where the attended school. I do not find that the instability of the children creates a grave risk of the children suffering physical or psychological harm resulting in an intolerable situation.

85With respect to the financial consequences for the children, the mother submits that Mr. Butler is employed full-time and is supporting the family while the father is abdicated his financial responsibilities. Further, the mother has asked for support from the father. The father responds by indicating that the parties had agreed that he would pay the mother’s share of the mortgage on the family home in England in lieu of paying child support while she was in Canada with the children and that he continues to pay the entire mortgage. In any event, once the children are returned to England, this matter can be addressed in the Family Court in Portsmouth.

86In conclusion, none of the grounds submitted by the mother meets the high threshold required to find that returning the children to England will place them at grave risk of physical or psychological harm rendering the return of the children to England as intolerable.

Children’s Objections

Children’s Objections

87The first submission made by counsel for the mother is that the views of the children were extremely important in this matter. Specifically, the submission was that the February 4, 2014 Relocation Agreement contained the following sentence in the last paragraph of the agreement as follows:

“At all times will the needs and wishes of the Children be the first consideration by the mother and father and were ever possible take precedence”

88The mother submits that the children were unhappy and did not want to return to England. In the mother’s initial affidavit dated February 22, 2016, she indicated the children wanted to stay in Canada. In the mother’s affidavit dated November 13, 2016, she indicated that the children strongly objected to moving back to England. A significant amount of evidence filed on behalf of the mother was designed to support the argument that the children are well settled in Canada and strongly object to returning to England.

89The father denied that the children did not want to return to England and felt that they were being influenced by the mother and Mr. Butler.

90After hearing submissions by counsel on November 16, 2016 with respect to all of the issues raised in the pleadings, I ordered that the children be interviewed to ascertain their objections in this matter. The parties agreed to retain Ms. Karen L. Douglas M.S.W. as the clinician to interview both children. This application was adjourned to December 16, 2016 to receive Ms. Douglas’s report.

91Ms. Douglas prepared a Voice of the Child report dated December 14, 2016. Based on the report, on December 16, 2016, the parties agreed that the objections by the children do not meet the legal standard to support of defence that either of the children “object to being returned”.

92The mother no longer relied on this as a defence to returning the children to England. However, the mother continues to allege that the father consented or acquiesced to the children remaining in Canada and that the children would be a grave risk to suffer physical or emotional harm that would result in an intolerable situation if the children returned to England.

Disposition

Disposition

93I find that the children Joseph and Evelyn were wrongfully retained in Canada and that such retention constitutes a wrongful retention of the children within the meaning of article 3 of the Hague Convention.

94I find that the mother has not established a defence under article 13 of the Hague Convention and consequently the children must be returned to their habitual residence.

95I find that the children’s habitual residence is Hampshire, England

96I order that the mother return Joseph Edward Stacey, born October 20, 2004 and Evelyn Robin Stacey, born March 6, 2008 to their habitual residence in Hampshire, England on or before January 5, 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.

97With respect to the undertakings given by the father, he had proposed his undertakings on the basis that he would be travelling with the children from Ottawa to England. However, the mother has indicated that if the court were to order the children returned to England, she would travel with the children and return to England.

98With respect to the mother’s request for child and or spousal support, there are proceedings in the Family Court sitting at Portsmouth awaiting my decision under The Hague convention. Both parties have legal representation and the mother will be able to take the necessary steps in England to ensure adequate financial support is obtained.

99I further order as follows:

(a) the father will arrange for and pay the cost for the flights from Ottawa, Ontario to Hampshire, England for Joseph Edward Stacey, born October 28, 2004, Evelyn Robyn Stacey, born March 6, 2008 and the mother;

(b) the parties shall sign all required consents for the children to travel from Ottawa, Ontario to Hampshire, England;

(c) the mother shall travel with the children’s passports and all other necessary travel documents;

(d) the father shall, within the 14 days of the children’s return, initiate the applicable court proceedings in the Family Court, Portsmouth, England, to determine the issue of custody, access and support;

(e) the father shall arrange for the registration of the children in school in Hampshire, England upon their return; and

(f) the mother shall ensure that the father has access with the children within 48 hours of arriving in Hampshire, England.

Costs

Costs

100In 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.