Paschel v. Paschel, 2017 ONSC 6952

CITATION: Paschel v. Paschel, 2017 ONSC 6952

COURT FILE NO.: FS-17-230-00

DATE: 2017 11 21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BRITTANY JUSTINE PASCHEL APPLICANT

AND: GEOFFREY IAN PASCHEL RESPONDENT

BEFORE: Trimble J.

COUNSEL: Malerie Rose for the Applicant Sheila Gibb for the Respondent

HEARD: October 30, 2017

ENDORSEMENT RE HAGUE APPLICATION FOR RETURN OF THE CHILDREN TO TENNESSEE, FURTHER TO MY BRIEF ENDORSEMENT OF 31 OCTOBER, 2017

[1] On July 31, 2017, the Applicant Mother took her two children, C.B.P., born […], 2015, and K.B.P., born […], 2017 from the Respondent Father's home in Blount County, Tennessee, to the Applicant Mother's Mother's home in Mississauga, Ontario where they have lived since. She concedes that she did this without the Father's knowledge or consent.

Nature of the Motion

[2] The Father seeks an order pursuant to the Hague Convention on the Civil Aspects of International Child Abduction for return of the couple's two children to Tennessee on the basis that their habitual residence is Blount County, Tennessee.

[3] The Mother opposes this application. She says that the children have no habitual resident and therefore the Hague Convention does not apply. If it does apply, the Mother says that she was justified in taking the children pursuant to Article 13(b) of the Hague Convention because of imminent danger that the Father poses to the children. In addition, the Mother seeks an adjournment of the application so that the parties can receive and review the marital counsellor's notes from March, 2017, and so that the question of spousal abuse in the marriage can have an oral hearing.

[4] Because of the pending Tennessee applications discussed below, there is urgency in providing my ruling. On October 31, 2017 I released two endorsements. In the first, I held that the counsellor's notes were inadmissible. In the second, I allowed the Father's Hague motion, for reasons to be delivered. These are those reasons.

Proceedings in Tennessee

[5] Once the Father realized the Mother left Tennessee with the children and returned to Canada, he began family law proceedings in the Circuit Court for Blount County, Tennessee. Both parties are represented by family law counsel in those proceedings.

[6] On August 25, 2017, the Father obtained from that Court a Writ of Attachment which ordered the children returned to the Father in Tennessee, and a Restraining Order restraining the Mother from removing the children from Tennessee. Both orders remain in effect. It is common ground that the Mother has not complied.

[7] The Mother, through Tennessee counsel, brought a motion for a declaration that Tennessee does not have jurisdiction in the case. This motion was originally to be heard on October 30, 2017 but was adjourned on the agreement of counsel to November 27, 2017 on the theory that if this court finds that the children should be returned to Tennessee under the Hague Convention, the jurisdiction motion will likely be moot. The parties have also scheduled a custody hearing in the Circuit Court for Blount County, Tennessee fixed for January 23, 2018 before the Honourable Justice Harrington.

Proceedings in Ontario

[8] On August 23, 2017, the Mother obtained an ex parte order providing her with temporary custody of the two children and a restraining order. The order was without prejudice to any further order the court might make. She also commenced this Divorce Application here.

[9] The Father brought this motion under the Hague Convention. At the original return of the motion on September 26, 2017, Bloom, J. heard the Mother’s motion for an order adjourning the Respondent's Hague motion and ordering production of the counsellor's notes. Bloom, J. allowed the adjournment until today, ordered a timetable for the steps necessary to ready the motion for this hearing, and ordered that the marriage counsellor's notes be produced under seal pending any decision I should make in respect of those notes. Bloom, J did not specifically address the question of the hearing. However, the question was before him.

Agreed Facts

[10] This application is hotly contested. The parties filed 19 affidavits, nine of which were by the Father and Mother. The remaining ten were filed by eight other witnesses. As is customary in hotly disputed custody and access cases, the evidence is highly contradictory. The parties agree on very little.

[11] The parties agree on the following facts:

1. The children are 2 ½ years old and nine months old.
2. The Father is a U.S. citizen.
3. The Mother is both a Jamaican and Canadian citizen.
4. The oldest child, C.B.P. has citizenship in Costa Rica (his country of birth), the U.S., Canada and Jamaica.
5. The youngest child, K.B.P., has citizenship in Nicaragua (his country of birth), the U.S., Canada and Jamaica.
6. The parties met in an airport in Charlotte, North Carolina in January 2014, when the Mother was 19 and the Father was 36 years old. At the time, the Mother lived in Ontario and the Father lived in Tennessee.
7. The parties began to see each other, and began living together in Tennessee, beginning in March, 2014.
8. They were married in Russia on January 23, 2015.
9. They separated on July 31, 2017 when the Mother, without the Father's knowledge, took the children from Tennessee to Ontario.
10. The Father is prohibited from entering Canada because of a felony conviction which occurred when he was in his late teens.
11. The Mother was prohibited from entering the U.S. for a period of five years beginning in July, 2014 because she was flagged as having entered the U.S. too frequently and there was a concern that she intended to live there illegally.
12. Between her prohibition from entry into the U.S. in July, 2014 and July 31, 2017, the Mother crossed the border illegally by canoeing across the Niagara River. If either or both of the children were travelling with her when she crossed the border, one of the parents gave the child/ren to friends or family at the border before the Mother made her illegal border crossing.
13. The parties traveled a great deal during the relationship. Because of the Mother's illegal status in the U.S., she could not fly out or return to any U.S. airport (even on a domestic flight) or pass through any border crossing as she would have been apprehended and deported. Accordingly, when they traveled, the Mother booked her flights from Ontario and then crossed the border illegally. She often paired the family travel with time with her parents in Mississauga, Ontario.
14. The Father traveled, illegally, to Ontario once, in March 2017, to attend the marriage counsellor session.
15. The parties began immigration proceedings for the Mother in 2015. Her status was denied in mid-July, 2017. From that point onward she was not legally entitled to remain in the U.S.
16. On August 3, 2017, the Mother, with the children, surrendered herself and the children at a border crossing in Maine where she was voluntarily arrested due to her immigration status. As a consequence of this, she was banned from entering the U.S. for the next 20 years. She declined to make a statement contesting the travel ban, and has taken no steps to contest it or have it set aside.

Disputed Facts

[12] The Mother says:

a) She was abused by the Father both physically, emotionally and financially. He restricted her use of the automobiles. They lived in a remote location. She was required to tell the Father where she was going, with whom and when. The Father had his two other children from a previous marriage that lived with them, and a neighbour, watching the Mother's actions. She was not allowed money. He confiscated her cell phone.

b) The Father is violent. He has intimidated her by throwing and damaging objects and making threats. He abused and degraded her verbally and threatened to have her arrested by police due to her immigration status. He has strangled, slammed and punched the Mother several times both alone and in front of the children. The Father has physically and sexually assaulted at least one of his previous wives, A.M..

c) When the second child was born, the Father abandoned her in a hotel room with the eldest child, C.B.P.. She was in heavy labour at the time. C.B.P. was frightened by what the Mother was going through. She had to deliver K.B.P. by herself and keep C.B.P. calm while she gave birth. During this time the Father also restricted food to her.

[13] As a result of the Father's controlling nature, the Mother was forced to flee, which she did, first, in November, 2016 taking the youngest child. The Father forced her to return in March, 2017 with the child. The Mother says that she returned only to retrieve the eldest child and then return safely to Canada. After her return the abuse escalated when the Father added to his abusive behaviour confiscating her packed luggage and her wallet.

[14] The Father denies all of these allegations. He says that he has close and loving bond with both of his children. With respect to specific allegations of cruelty or abandonment, those he did not deny, he offered explanations.

Preliminary Issues

1. Mother's Request for an Adjournment

[15] The Mother renewed her request for an adjournment of the Hague motion to allow for oral evidence with respect to the issue of the Father's spousal abuse of the Mother, and the dangers posed to the children by the Father's violent nature. She argued that the oral hearing was necessary to determine the issues of credibility between the spouses. Further, she argued that Bloom, J. did not address this issue; therefore it was open for me to decide the issue.

[16] The issue of an adjournment for the purposes of arranging an oral hearing is moot. Bloom, J. in his order of September 26, 2017 dealt with all issues relating to the adjournment except one. Bloom, J. adjourned the motion to October 30, 2017 for a two-hour hearing. He set a timetable for the filing of the responding and reply materials, facta, and books of authorities.

[17] By making his order after the issue of oral evidence was argued before him, Bloom, J. implicitly denied the request for oral evidence. The only question that he left to the motion judge was with respect to the production and admissibility of the counsellor's notes in the application for the return of the children to Tennessee. I have ruled separately on this issue.

[18] To the extent that the adjournment request was made before me, irrespective of Bloom, J.'s order, I declined to adjourn the matter.

[19] Article 2 of the Hague Convention, and Chapter III (and in particular, Articles 8 and 11) contemplate that the question of return of the child to another state shall be decided by a summary procedure. Accordingly, in Ontario, the Convention contemplates that the question is decided on written evidence and, if necessary, any cross-examinations. The Ontario Court of Appeal has said: "The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure." See: Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), [2004] O.J. No. 3256, 2004 (C.A.), 2004CarswellOnt 3203 (C.A.) para. 19, leave to appeal refused, 2004 CarswellOnt 3203 (S.C.C.); Cannock v. Fleguel, 2008 ONCA 758, para.s 33-37.

[20] The Convention does not preclude oral evidence in an oral hearing in Hague Convention proceedings. Generally speaking, however, oral hearings are exceptionally rare, granted in only the most unusual of circumstances, and only when the matter cannot be determined on the existing record. See: Mahler v. Mahler (1999), 1999 14255 (MB QB), 3 R.F.L. (5th) 428 (Man. Q.B.), para. 25; Cannock, supra, para.s 33 to 37.

[21] In W. Re. [2005] 1 F.L.R. 727 (Eng. C.A.), at para. 23, Lord Justice Thorpe said: "However, to warrant an oral exploration of written evidence, the judge must be satisfied that there is a realistic possibility that oral evidence will establish an Article 13(b) case that is only embryonic on the written material."

[22] In Cannock, supra, the Court of Appeal adopted the test set out in W. Re., saying at para. 50, the Court of Appeal also said: "I close with the additional caution that the bifurcation of the application proceedings as in this case is not to be encouraged. It would be preferable that the application judge determine all issues and the undertakings required at a single hearing.”

[23] In this case, the Mother seeks a hearing with oral evidence as necessary to determine the question of whether the Father is a child and/or spouse abuser, and hence, whether the children are at risk sufficient that Article 13(b) is activated. As in Thompson v. Thompson, 1994 26 (SCC), [1994] 3 S.C.R. 551, para.s 44 and 128 these are questions that pertain to issues of custody and access to the specific children involved in this case, a matter best left to the court ultimately held to be the Court with jurisdiction under the Hague Convention. Indeed, Article 16 prohibits the Court in the haven state from deciding questions of custody under an application for return of the child/ren. See also Cannock, supra, para.s 34 and 49.

[24] A hearing involving oral evidence, in this case, is neither required nor necessary to determine the issues on this application for return of the children. Such hearings are permitted only where the Article 13(b) defence is only “embryonic” on the written material. On the evidence before me, it is clear that the Mother believes that the Father is both a spouse and child abuser and that there is harm to the children in returning them. This is controverted by the evidence of the Father. Based on my findings, below, with respect to the Article 13(b) argument, no oral hearing is necessary.

2. A.M.'s Affidavits

[25] All of the affidavits produced by all the parties contain a mixture of direct evidence and hearsay. At the hearing, the Father took issue with the admissibility of A.M.'s Affidavits. For the most part, Ms. A.M.'s Affidavits detail how the Father physically and psychologically abused the couple’s children when she and the Father were married. She also provided evidence with respect to custody issues concerning the couple’s son. She also had some first-hand evidence with respect to the Applicant Mother and how the Respondent Father interacted with the parties’ children.

[26] The Father says that any evidence Ms. A.M. gives with respect to any issue other than the issues between the parties and the children at issue in this litigation, is irrelevant and should not be admitted.

[27] The Mother says that Ms. A.M.'s evidence is necessary, cogent and relevant. While she admits that Ms. A.M.'s evidence is similar fact evidence, the Mother says that it should be admitted.

[28] Relying on the Law of Evidence in Canada (2nd edition), Sopinka, Lederman, and Bryant, page 602, the Mother says that the categories of relevance are not closed and the inquiry on admissibility of any evidence should not follow old stereotypes of hearsay. Rather, admissibility should always centre on whether the probative value of the evidence outweighs the prejudicial value. So long as the evidence is probative and not oppressive or unfair to the other side, and does not consume a disproportionate amount of court time, it should be admitted.

[29] The Mother also relies on two cases. The first is R.C.M.S. v. G.M.K., 2005 SKQB 296 (Family Law Division). This case involves a custody dispute between two parents of two children, one of which was the natural child of the parents and the other was from one of the parties’ previous relationship. The mother sought sole custody with no, or extremely limited access to the father. The mother claimed that the father abused her in front of the children, during the marriage, and that conflict continued after the separation often in front of the children. One of the children alleged that the father touched her inappropriately.

[30] The court awarded the mother sole custody and granted the father limited parenting time. In reaching this conclusion, the court admitted evidence adduced by the mother from the father's previous common-law spouse to the effect that the father abused the previous common-law spouse physically and emotionally during her relationship with the father. The court held that the conduct was relevant to the father's ability to act as a parent and because there were strong similarities between the evidence of the father's former common-law spouse and the mother.

[31] The court held that while in civil and criminal cases, similar fact evidence is inadmissible, under section 16(9) of the Divorce Act, the court is prevented from taking into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as the parent of the child. The court held that abuse is conduct that is relevant to a person's ability to parent even when the abuse is only of the other spouse. This is so because of the negative effect on children who witnessed the violence and because spousal abuse affects the dynamics of decision-making as it relates to the children and the milieu in which the exchanges of the children occur. The court also noted that while the father may have been abusive in a prior relationship, it does not mean that he will be abusive in a current or later relationship. The evidence was limited in relevance only to the father’s parenting abilities. See paragraphs 47 to 57.

[32] The second case upon which the wife relies on is Shaw v. Brunelle, 2012 ONSC 590 (SCJ), in which, in obiter, the court commented that in domestic abuse cases, similar fact evidence of violent behaviour may be admitted to the extent that it demonstrates that the abusive party has a propensity to act violently towards a specific complainant. In other words, the prior acts of aggression are directly linked to the acts alleged in the pleading.

[33] For the purposes of the Hague application, and only the Hague application, the evidence of Ms. A.M. is not admissible. As in Shaw and R.C.M.S., there are marked similarities between the abuse alleged by Ms. A.M. and that alleged by the claimant. That abuse, however, is not relevant to the Hague application or the Article 13(b) defence. It relates to custody and access, a matter which Article 16 places outside of this court’s consideration.

[34] Even if the evidence were admissible, for the same reasons, above, I would have given it no weight on this motion. Further, Ms. A.M.'s evidence is highly suspect since her affidavits are sworn at a time when she and the Father are in a heated custody dispute concerning one of their children.

Issues to be Decided

[35] The parties agree that the Mother removed the children from Tennessee without the Father's knowledge or consent, and in doing so, denied his custodial and access rights. Therefore, under Article 3 of the Hague Convention, her removal is wrongful.

[36] The parties also agree that I must determine two issues:

1. Where (if anywhere) do the children habitually reside?

2. Is the Mother justified in taking the children under Article 13(b) of the Hague Convention?

3. The Children's Habitual Residence?

a. The Father's Position

[37] The Father says that the children are ordinarily residents in Tennessee. He approaches this subject on three bases.

[38] First, any reasonable calculation of where the children were located and for what length of time favours Tennessee as the place of habitual residence, as the children spent most of their time there. The Father admits that they travelled a great deal.

[39] Second, except for the Mother's parents and siblings, the children's connections to a place (for example: school, friends, pets, step siblings, etc.) favour Tennessee. The children had a home in Tennessee which their Father owned. The mother neither owned nor rented any premises in Ontario. She stayed with her parents.

[40] Third, the parties' intention as to where the children lived (habitually resided), until the Mother's application to remain legally in the U.S. was denied in mid-July, 2017, was that the family’s place of residence, and the children habitually resided in Tennessee. The Father admits that the Mother's intention changed in July, 2017. That, however, does not alter the children's place of habitual residence.

b. The Mother's Position

[41] The Mother adopts the same approach to question the question of the children's habitual residence. She says that the evidence points to the conclusion that the children have no place of habitual residence. Therefore, the Hague Convention does not apply.

[42] First, the Mother said that the family lived a nomadic life. Any reasonable calculation of where the children were located and for what length of time leads one to conclude that they spent approximately the same amount of time in Ontario as Tennessee. In addition, they spent significant time in other places such as Jamaica, Russia, and Costa Rica.

[43] Second, they have no real connection to Tennessee other than the location of the Father's property. The Mother has no connection to Tennessee, she argues, because she was, in effect, held there against her will.

[44] Third, the parties had no intention regarding habitual residence. They spent little time in any one place. The eldest child did not attend pre-school in Tennessee. The Mother said that for months before she left (as early as November, 2016 although this date varied in oral submissions), she formed the intention to leave because of the Father's emotional, psychological and financial abuse. In answer to my question, the Mother admitted that before she decided to leave the Father, she intended to live with him in Tennessee.

[45] The Mother adds to the three approaches to habitual residence the circumstances of the children since she removed them from Canada. She says that since she and the children came to Canada in August, 2017, they have lived with the Mother's Mother, step-Father and the Mother's two siblings. They have an Ontario paediatrician and an Ontario general practitioner. The eldest child has attended pre-school in Ontario. Essentially, she says that the "new life" of the children since coming to Ontario should not be disturbed.

c. The Law

[46] In Ontario, the Hague Convention is part of the law of Ontario pursuant to section 46 of the Children's Law Reform Act, R.S.O. 1990, C. c.12, s. The following are the legal principles to be applied in any Hague Convention application for the return of a child:

i. The Hague Convention's purposes

[47] Among the purposes or objectives of the Hague Convention are (a) to secure the automatic return of children wrongfully removed from a Contracting State to another Contracting State, and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[48] The Hague Convention provides for automatic return of children to one Contracting State from another where the removal from the latter to the former was done in contravention of the Convention’s provisions. Automatic return of abducted children is designed to deter fugitive parents from abducting children by depriving fugitive parents of any possibility of having their custody of the children recognized in the haven State and thereby legitimizing the situation for which they are responsible. See: Hague Convention, Article1; Katsigiannis v. Kottick-Katsigiannis, 2001 24075 (ON CA), [2001] O.J. No. 1598 (C.A.), para. 17; Balev v. Baggott, 2016 ONCA 680 (C.A.), para. 32.

ii. Presumption of Immediate Return

[49] The Convention presumes that the interests of children who have been wrongfully removed from the originating State to a haven State are better served by repatriating them immediately to the originating jurisdiction, where the custody and access issues ought to have been determined. The deterrence of international child abduction "depends in particular on the rapidity of the return procedure". See: V.W. v .D.S., 1996 192 (SCC), [1996] 2 S.C.R. 108 at para.37.

iii. The "Best Interests of the Child" Who is the Subject of the Dispute Have No Application in a Hague Convention Application.

[50] The "best interests of the child" in issue are not to be considered in any Hague Convention proceeding regarding the return of the children to the originating State.

[51] Why do I say this? The preamble to the Hague Convention says that it seeks to protect children (as a class) internationally from the harmful effects of their wrongful removal from one Contracting State to another, and establish procedures to ensure their prompt return to the State of their habitual residence. The preamble says that the interests of children (as a class) are of paramount importance in matters relating to their custody. It specifically does not speak to the ‘best interests of the child’ as referred to or used in domestic custody and access, and child welfare legislation. The Convention presumes that the best interests of children, as a class, is best served by returning them to their State of habitual residence. See Thompson, supra, para. 44 per LaForest, J. speaking for the majority and para. 128 per L’Heureux-Dube and McLachlin, J.J. A.

[52] Further, there is no discretion on this point. Article 16 says that in a Hague Convention proceeding the court does not, and cannot decide matters of custody and access. The haven State accepts that the court in the originating State will properly take the best interests of the specific children in issue into account should the court in the haven State determine that the child must be returned. Therefore, absent a defence under Article 13(b), if the children in issue are habitually resident in the originating State and a parent has wrongfully removed them to or retained them in Ontario, the children must be returned to the originating State. See Katsigiannis, supra, para. 32; Balev, supra, paras. 29 and 30.

[53] Under the Hague Convention, ‘the best interests of the children’ at issue in the case is best addressed by the courts of their habitual residence when that court decides any custody and access issue. Adhering to this philosophy discourages child abduction and renders forum shopping ineffective, and provides the children with the greatest possible stability in the instance of family breakdown. See: Cannock, supra, para. 23.

[54] Conversely, importing a ‘best interests of the child’ analysis into a Hague Convention application for the return of the children is an express violation of Canada’s treaty obligation, and encourages forum shopping and instability by turning the summary process contemplated in the proceeding into a lengthy, costly process.

iv. Habitual Residence

[55] In order to establish wrongful removal of the children from the originating State and/or wrongful retention of the children in the haven State, the moving party must satisfy three conditions: (1) the child was habitually resident in a Contracting State immediately before any breach of custody or access rights; (2) the applicant has custody rights to the child; and (3) the child was wrongfully removed or retained. If those three conditions have been satisfied, Article 12 of the Convention mandates an order for the return of the child to the place of its habitual residence unless the responding party can establish a defence under Article 13(b). See: Hague Convention, Articles 3, 4 and 12.

[56] The Convention does not define "habitual residence".

[57] The Court of Appeal identified a number of criteria to be considered in determining the habitual residence of the child before the abduction:

• the question of habitual residence is a question of fact to be decided based on all of the circumstances;
• the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";
• a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.; and
• a child's habitual residence is tied to that of the child's custodian(s).

See: Korutowska-Wooff v. Wooff, supra, at para. 8; Wentzell-Ellis v. Ellis, 2010 ONCA 347, 2010 CarswellOnt 2981 (Ont. C.A.) at para. 22; Callicutt v. Callicutt, 2014 MBQB 144, para. 20.

[58] In addition, Ontario courts often rely on the definition of "habitually resident" under s. 22(2) of the Children's Law Reform Act, which says that a child is habitually resident in the place where he or she resided with both parents, with one parent under a separation agreement (where the parents are living separate and apart), or where he or she is living with one parent with the consent (implied or actual) or acquiescence of the other parent, or under a court order.

v. The Effect of Temporary Removal

[59] Temporary removal of the child by one parent from the State of habitual residence does not alter the fact of habitual residence. See: Balev, supra, paras. 42-48.

vi. At What Time is Habitual Residence Determined?

[60] There is no doubt that habitual residence is determined as of the time immediately before the abduction. One parent cannot unilaterally change a child's habitual residence under the Hague Convention without the express or implied consent of the other parent. See: Balev, supra, paras. 19 and 39.

vii. What If the Child is Born in a Country Other than that Suggested as that of Habitual Residence?

[61] Whether the children are born in another country is a factor to be considered in determining habitual residence under the Convention. The court must also consider any agreement, oral or otherwise, concerning where the child will live after birth. If such an agreement is found to exist based on the facts of the case, it is not open to one parent to change the fact, unilaterally. See: Wedig v. Gaukel, 2007 13522 (ON SC), [2007] O.J. No. 1547, 2007 CarswellOnt 2479 (Ont. S.C.J.), para. 55, aff'd 2007 CarswellOnt 4299 (Ont.C.A.), citing Williams v. Elliott (2001), 2001 28146 (ON SC), 21 R.F.L. (5th) 247 (Ont. S.C.J.).

viii. No Place of Habitual Residence or Many Places of Habitual Residence.

[62] It is open for a court to find there is no place of habitual residence or more than one place of habitual residence. A finding of habitual residence is not a finding made in default (i.e., because it is not X, it must be Y). A finding of no habitual residence is also a finding of fact, and where it is made, the Hague Convention does not apply. See: Jackson v. Graczyk, 2007 ONCA 388 (C.A.), paras. 36 and 37. However, such a finding will be rare. At para. 38 of Jackson, supra, Laskin, J.A. commented: "Courts should not strain to find a lack of habitual residence because that finding would deprive a child of the protection of the Convention." The court found in Jackson such a rare case. The parents were not married. They dated only a short time. The pregnancy was unplanned. They never lived together. The Mother and child were in Florida and the Father was in Texas. The child was born in Florida. The Mother was the sole care-giver. When the child was 2 ½, the Mother was ordered deported, so she returned to her parent's home in Hamilton, Ontario.

d. Analysis and Result

[63] I find as a fact that the children's habitual residence is Tennessee.

[64] During their short lives, the two children travelled a great deal. Therefore, computation of what time they spent in any specific place is of little assistance. On an arithmetic analysis, one cannot say that the children spent an "appreciable period of time" in any one place relative to any other.

[65] The question of habitual residence, in this case, turns on the intention of the parents since the children were too young to form any particular intention and the duration of the children’s stay in any one spot does not assist.

[66] Based on all of the evidence before me, I find that the Mother, Father and children, constituted a family. While there may have been periods before July 31, 2017 during which the parties and/or one or more of the children were parted from the others, they considered themselves as a family unit and acted as such.

[67] Based on all of the evidence before me, I find that the parties’ intention was that Tennessee was their place of habitual residence. They considered it “home". I say this for a number of reasons, the following of which are the principle reasons:

a) The Father lived in Tennessee on land which he owned. He worked in Tennessee in construction, and elsewhere as an actor. Because of his criminal conviction, he was not able to enter Canada;

b) The Mother lived in Tennessee with the Father from March, 2014 until she left in July, 2017, notwithstanding her illegal immigration status in the U.S.;

c) The parties never entertained living in Ontario. With the exception of coming to Ontario illegally in March, 2017 to see the marriage counsellor, there is no evidence that the Father came to Ontario during the couple’s union;

d) The Mother retained counsel to assist her in obtaining immigration status following the determination in July, 2014 that she could not remain in the U.S.;

e) The Mother and Father discussed plans for the Mother to open a business in Tennessee, all of which was dependent on her immigration status;

f) The parties married while they both lived in the Father's property in Tennessee, notwithstanding that the Mother had no legal immigration status;

g) While the family travelled a great deal, their home base was always Tennessee;

h) The Mother's tremendous efforts at travel reinforce the conclusion that she thought that she "lived" in Tennessee with the Father. Because the Mother was in the U.S. illegally following July, 2014, she could not fly domestically or internationally, nor could she cross at a border crossing without being deported and prohibited from re-entry. Therefore, when the family travelled, the couple made arrangements to have the children handed over at the border to friends and family, and the Mother canoed across the Niagara River, travelled to her parents' home and flew to the family destination from Canada;

i) That one of the children was born in Nicaragua and the other in Costa Rica is a neutral fact. It was explained by the Father as something planned, in order to give the children greater citizenship and immigration options. The Mother does not gainsay this. Further, the explanation makes sense since the children had U.S. citizenship through the Father, Canadian and Jamaican citizenship through their Mother, but neither parent could legally reside in the other's country of citizenship;

j) That the children had doctors in both Canada and the U.S. is a neutral fact. This makes sense given the amount of time that the children were present in each jurisdiction;

k) Since there was no court order to the contrary, both parents had equal custody and access rights;

l) The Mother admitted in oral argument that she intended that Tennessee was home, but that intention changed at some point. I infer that the point at which it changed was either in November, 2016 when she left Canada with the youngest child, or after March, 2017 when she returned to Tennessee because she was afraid that the Father would not allow her to have custody of or access to the eldest child; and

m) The Mother and children lived in Tennessee with the Father from March to the end of July, 2017.

[68] From the case law, the Mother's change in intention was unilateral. Therefore, it cannot alter the intention that existed between them prior to that point.

[69] In making the findings I have made, I have considered the Mother's evidence, carefully, and discounted much of it because it is vague and contradictory. For example, in her affidavits, she avers broadly that she never had a settled intention to live in Tennessee, in part because she did not have legal status in the U.S. She makes the same broad statements in paragraphs 89 and 90 of her factum. However, she participated in circuitous, complex and potentially dangerous border crossings to facilitate travel for three years, made necessary because of her immigration status. Border crossings of this nature only make sense if she intended to call Tennessee and the Father's property home.

[70] Further, the Mother admitted in oral argument that she intended that Tennessee and the Father's property would be home, but changed her intention. She travelled to Canada (albeit circuitously) several times both by herself, and with one or both children, and without the Father. In each case other than after July, 2017, she returned to Tennessee.

[71] Finally, in each of three Affidavits sworn in August to October, 2017, the Mother gave different estimates of how much time the children spent in Canada. One would think that such matters would be calculated, easily.

[72] The Mother says that there is no evidence of a place of habitual residence and habitual residence should not be a matter of default. I agree, as a statement of law. On the facts of this case, however, Tennessee is the place the parties intended to live, with their children, at least until the Mother unilaterally changed her mind and took the children. Further, the facts in this case are clearly distinguishable from those in Jackson.

[73] The Mother also said in oral argument that I should find that the children were habitually resident with her, as opposed to any particular place. She provides no authority for this proposition. I reject it. The Convention itself ties habitual residence to a place. Article 3(a) refers to a breach of the custody rights of another parent "under the law of the State in which the child was habitually resident immediately before the removal or retention".

2. Article 13(b) Defence

a. The Father's Position

[74] The Father submits that once the court has held that the child was habitually resident in the originating State, the child shall be returned to that State forthwith. The only exception is if the opposing party can establish that there is "a grave risk" that the return of the child would expose the child to "physical or psychological harm or otherwise placed the child in an intolerable situation".

[75] The Father says that this exception must be construed narrowly. The threshold under Article 13(b) is, and must be extremely high given that the Hague Convention is designed by the international community to dissuade parents from illegally removing their children from one country to another. Any interpretation short of a rigorous one would compromise the Hague Convention's efficacy.

[76] In this case, there is no grave risk of harm. Such a risk can only exist when the return of the child to the originating State puts the child in imminent danger between the time of return and the resolution of a custody dispute such as where there is a grave risk of serious abuse, neglect, or extraordinary emotional dependence, and the court, child welfare organizations or other social service organizations are incapable or unwilling to give the child adequate protection. The Mother has failed to meet her onus.

b. The Mother's Position

[77] The Mother says that there is grave risk of harm. She says that the danger to the children is posed by the domestic violence carried out by the Father. It has been widely recognized that the probability of occurrence of abuse is high when the perpetrator does not admit his past wrongdoing and the risk of domestic violence may increase after separation. In this case, the Father does not recognize that he is an abuser.

[78] The Mother relies on case law which in itself relies on social science literature in support of the proposition that in order for the risk to be "grave", it does not necessarily have to be immediate. She relies on social assistance literature that supports the proposition that spousal abusers are also likely to be child abusers. Since the Father is a spouse abuser, there is a real, grave risk of physical and psychological injury to the children. Further, she relies on social science literature in support of the proposition that children that are exposed to domestic violence either directly or indirectly, and suffer during their childhood and adulthood from aggressive, antisocial, fearful, and inhibited behaviors, lower social competence, and higher rates of anxiety and depression.

c. The Law

[79] The following are the legal principles to be applied in any Hague Convention application where Article 13(b) is raised as a defence to an order for the return of a child:

i. Onus

[80] The parties agree that the Mother has the onus to prove that Article 13(b) is triggered. The standard of proof is the balance of probabilities.

ii. Restrictive Interpretation

[81] The exceptions under Article 13(b) are intended to be of limited scope and the threshold for applying the exceptions to return of a child to the State of habitual residence is extremely high.

[82] The Hague Convention is an international treaty created by the international community to thwart parents' attempts to remove their children, illegally, from the State of habitual residence to another State. A court's applying anything less than a rigorous and restrictive interpretation of Article 13(b) would frustrate the purposes of the Hague Convention. See: Jabbaz v. Mouammar, 2003 37565 (ON CA), [2003] O.J. No. 1616, 2003 CarswellOnt 1619 (C.A.), para. 33; Wentzell-Ellis, supra, para.s 37-40.

iii. What Constitutes a Grave Risk of Harm?

[83] Article 13(b) provides that a child should not be returned to the place of habitual residence only where "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." This is a stringent test with a very high threshold.

[84] In Thompson, supra, the Supreme Court of Canada adopted a restrictive reading of the grave harm exception. In Friedrich v. Friedrich, 78 F.3d 1060 (USCA, 6th Cir. 1996), the Court of Appeal in the 6th Circuit accepted S.C.C.'s definition in Thompson. It held that "grave harm" meant that return of the child would put the child in "imminent" danger between the time of the child's return and the custody hearing, such as returning the child to a location which is in a zone a) of war, famine or disease or b)where there is a grave risk of harm by serious abuse or neglect, or extraordinary emotional dependence, and c) when the court in the country of habitual residence may be incapable or unwilling to give the child adequate protection. The Ontario Superior Court of Justice has also accepted this interpretation. See: Wedig, supra, para.s 62 to 64.

[85] Further, the risk the child is said to face must be greater than would normally be expected on taking a child away from one parent and passing him to another. The harm must be grave and intolerable. See: Cannock, supra, paras. 24 and 25; Usmani v. Hassan, 2016 ONSC 6453 (Ont. S.C.J.), paras. 40-46.

iv. Best Interests of the Child May be Considered

[86] In the Article 13(b) analysis, the risk of grave harm to the specific child in returning him or her to an intolerable situation, imports the "best interests of the child" analysis. Evidence must be presented as to the risk of physical or psychological harm, and whether it is in the best interests of the child to be returned to the place of habitual residence. This is not conflating a custody concept into an Article 13(b) Hague Convention analysis. Rather, this question is mandated by Article 13(b)'s wording. The evidence must, of course, be credible and must meet the high threshold of "grave risk". See: Pollastro v. Pollastro, 1999 19933 (ON CA), [1999] O. J. No. 911 (C.A.).

[87] In Pollastro, Abella, J. A. (speaking for the Court) held that returning the child to a violent environment laces that child in an inherently intolerable situation as well as exposes him to a serious risk of psychological and physical harm.

d. Analysis and Result

[88] The Applicant has failed to discharge her onus.

[89] Accepting, for the moment, that the Mother has established that there is a grave risk of physical or psychological harm to the children, the Mother has not established on a balance of probabilities, by clear evidence, that the court, child protection organizations, or other social service organizations in Tennessee are or might be incapable or unwilling to protect the children from these risks. Absent such evidence, as a question of comity between jurisdictions, I must accept that the Tennessee court, child protection organizations and social service organizations will provide such protection, if required. The Mother has led no evidence in this regard.

[90] My finding, above, is dispositive of the Article 13(b) issue.

[91] I comment, however, on the Mother's arguments concerning "grave risk". I find that she has not discharged her burden. I say this for a number of reasons:

1. She says that part of the grave risk to the children arises from the Father's activities as a drug dealer. This evidence is hearsay at best. The Mother and her mother provide their suspicions, but no direct evidence other than a conviction for drug related offences when the Father was much younger;

2. The Mother says that the Father is a spousal abuser. This evidence is direct. It is, however, highly controverted, and often nonspecific as to date and time;

3. The evidence of abuse of the couple’s children is limited to one incident of direct physical contact. The remaining evidence of his behaviour relates to psychological abuse. This evidence, too, is highly controverted;

4. The Mother wishes me to conclude that the Father abused his children from his relationship with Ms. A.M., and relies on Ms. A.M.'s evidence is this respect. The Mother wishes me to conclude that since he abused one of his children from his relationship with Ms. A.M., there is a grave risk that he will abuse one of the parties' two sons. I give little weight to Ms. A.M.'s evidence for the reasons already given, and consequently, am not prepared to make the inference requested of a grave risk of harm; and

5. The Mother says that because the Father is a spouse abuser, based on social science literature, there is a high likelihood that he will be child abuse, or that he will abuse his spouse in front of the parties' children. This is a grave risk of harm. She relies on the Pollastro case as well.

I reject this reasoning for several reasons. First, the articles referred to are hearsay - opinions of people not before the court, whose credentials and expertise have not been tested, whose opinions were not delivered under oath and who did not pass through the crucible of cross-examination; Second, Pollastro does not assist the Mother. In that case, there was clear, uncontroverted evidence of the Husband's violence toward the Wife, in front of the children. In this case, the evidence is highly controverted. Further, while the Court of Appeal in Pollastro disagreed with the Application Judge's finding that the best interests of the children was a custody issue that the court in the place of habitual residence could determine, the Court of Appeal did not address whether the court, child protection or social service organizations in the other jurisdiction could protect the children against the grave risks found to exist.

Costs

[92] Unless the parties can agree as to costs, I will address the question of costs, in writing. The submissions are limited to five double spaced pages, excluding cases, Bills of Costs, and cases. The Father’s are to be served and filed by 4 p.m., 4 December, 2017 and the Mother’s by 4 p.m., 18 December, 2017.

Trimble J.

Released: November 21, 2017

CITATION: Paschel v. Paschel, 2017 ONSC 6952

COURT FILE NO.: FS-17-230-00

DATE: 2017 11 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PASCHEL v. PASCHEL

COUNSEL: Malerie Rose, for the Applicant Sheila Gibb, for the Respondent

ENDORSEMENT RE: HAGUE APPLICATION FOR RETURN OF THE CHILDREN TO TENNESSEE, FURTHER TO MY BRIEF ENDORSEMENT OF 31 OCTOBER, 2017

Trimble J.

Released: November 21, 2017