Hassan v. Garib, 2017 ONSC 7227

CITATION: Hassan v. Garib, 2017 ONSC 7227

OTTAWA COURT FILE NO.: FC-17-1797

DATE: 2017/12/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Trifa Yousef Hassan

Applicant

– and –

Yadgar Raouf Garib

Respondent

Lisa Sharp, for the Applicant

Allan Hirsch, for the Respondent

HEARD at Ottawa : November 24, 2017

REASONS FOR JUDGMENT

Justice Engelking

1This is an application by Mr. Garib for an order under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T. S. 1983 No. 35 (“Hague Convention”) for an order directing the return of the parties son, Kochyar Raouf Garib, born February 15, 2014.

2It is agreed that Ms. Hassan wrongfully removed Kochyar from England on July 15, 2017. She had neither the sole legal authority nor Mr. Garib’s consent to remove Kochyar to Canada at that time.

3The operative articles of the Hague Convention for the purposes of this hearing are Articles 12 and 13. Article 12 provides:

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another state, it may stay the proceedings or dismiss the application for the return of the child.

4Article 13 of the Hague Convention provides:

Article 13

Notwithstanding 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 opposed its 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 I the removal or retention; or

(b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

5The sole issue in this case is whether the application of an exception to the child’s required return is justified. Does Kochyar’s return to the United Kingdom (“UK”) put him at “grave risk” of being exposed to “an intolerable situation” within the meaning of Article 13(b) of the Hague Convention?

6In Thomson v. Thomson, 1994 CanLII 26 (S.C.C.), the leading Canadian case on Hague Convention, La Forest, J. found at page 24:

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.

7Pursuant to Mahler v. Mahler, 1999 CanLII 14255 (MB QB), 143 Man. R. (2d) 56, [1999] M.J. No. 566, 3 R.F. L. (5th) 428 at paragraph 22, the onus is on Ms. Hassan to show that Kochyar “would be exposed to harm or otherwise placed in an intolerable situation if returned. She has an evidentiary hurdle (that is proof on a balance of probabilities) and a “gravity of risk” test to meet (see Thomson, supra, 328, para 80).”

8Ms. Hassan alleges that she was the object of domestic violence at the hands of Mr. Garib, which Mr. Garib denies. The Ontario Court of Appeal, referring to its earlier case of Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 at page 496, has found at paragraph 23 of Husid v. Daviau, 2012 ONCA 655 that “Article 13(b) is available to resist a child’s return when the reason for the child’s removal is violence directed primarily at the parent who removed the child: “returning a child to a violent environment places that child in an inherently intolerable, situation, as well as exposing him or her to a serious risk of psychological and physical harm” (emphasis in original).”

9In Achakzad v. Zemaryalai, 2010 ONCJ 318, Justice Murray did an extensive review of Hague Convention cases involving allegations of domestic abuse, and had this to say at paragraph 97:

A review of the case law indicates that return orders will be refused when past violence has been severe and is likely to recur; when past violence has been life-threatening; or when the record shows that the applicant for the return order has not been amenable to control by the justice system. Such an approach reflects a narrow construction of Article 13(b), while still giving appropriate meaning to the text of the Convention.

10In determining whether there is a grave risk that returning Kochyar to England would expose him to physical or psychological harm or otherwise place him in an intolerable situation, I propose, therefore, to review the evidence in light of the following three questions:

1. Has the alleged past violence been severe and is it likely to recur?

2. Has it been life-threatening?

3. Does the record show that Mr. Garib is not amenable to control by the justice system?

11For the reasons that follow, I find that Ms. Hassan has not met the burden of establishing that Kochyar would be exposed to harm or otherwise placed in an intolerable situation if returned to England. In coming to this conclusion, I comment not on Ms. Hassan’s subjective experience of her situation; I only apply the law of the Hague Convention to the facts of this case.

Background Facts

12Ms. Hassan and Mr. Garib were both born in Kurdistan. Ms. Hassan immigrated to Canada with her family in 1989 and became a Canadian citizen in 1993. Mr. Garib moved to the UK and became a UK citizen in 2002.

13The parties met in Kurdistan in 2008. They entered into a long distance relationship between Canada and the UK thereafter. They married, again in Kurdistan, on August 19, 2009. Mr. Garib sponsored Ms. Hassan to come to the UK; she obtained her UK residency permit on July 23, 2013.

14The parties took up residence together in Cheltenham, England, where Mr. Garib had settled, soon after their wedding. One child, Kochyar Yadgar Raouf Garib, was born of the marriage on February 15, 2014. Kochyar will, of course, be turning four years of age in February.

15There was an alleged incident of domestic violence perpetrated by Mr. Garib on Ms. Hassan in February of 2016, which I will describe later, which resulted in the involvement of the police and child protection authorities in Cheltenham. Subsequent to this incident and its fallout, the parties resumed cohabitation. They travelled to Kurdistan together, along with Kochyar, from May 5 to June 2, 2016. Later that summer, on August 6, 2016, Ms. Hassan and Kochyar travelled to Ontario to visit Ms. Hassan’s family with the consent of Mr. Garib. Ms. Hassan was to return to England on November 6, 2016, but did not do so.

16On December 11 or 12, 2016, Ms. Hassan travelled to Refrath, Germany and stayed at the home of Mr. Garib’s brother Jaza. The plan was for Mr. Garib to join her and, with the aide of his family, discuss the marriage. However, Mr. Garib did not arrive in Germany until mid-January, after which the parties once again resumed cohabitation in Cheltenham, England.

17The parties separated on March 18, 2017, after Ms. Hassan locked Mr. Garib out of the home they shared at 6 Albert Street, Cheltenham.

18On July 15, 2017, Ms. Hassan unlawfully removed Kochyar from the UK and came to Canada with him.

19On August 28, 2017, Ms. Hassan signed an Application General, which was filed with the court in Ontario on November 7, 2017, in which she is asking for an order of sole custody of Kochyar with access to Mr. Garib.

20On November 6, 2017 Mr. Garib filed his Answer in which he is seeking an order that Kochyar be returned to England pursuant to Article 12 of the Hague Convention.

Issue #1- Has the alleged past violence been severe and is it likely to recur?

21Ms. Hassan has made the following allegations with respect to domestic violence perpetrated on her by Mr. Garib:

• Mr. Garib would constantly swear at Ms. Hassan;

• Mr. Garib would regularly call her “whore” and “bitch” in front of their young son;

• Mr. Garib would accuse Ms. Hassan of being “crazy” and a “bad mother”;

• Mr. Garib would swear about and belittle her family;

• Mr. Garib hit Ms. Hassan when she was pregnant with Kochyar, and told her he could kill the baby inside her;

• Mr. Garib held a knife up to Ms. Hassan when Kochyar was about one, put his hands around her throat and said “I could kill you right now”;

• Mr. Garib beat Ms. Hassan so badly in February of 2016 that she could hardly walk;

• When she reported this assault to the police, Mr. Garib threatened to kill her and her entire family if she did not change her story;

• Mr. Garib punched Ms. Hassan in March of 2017 so hard that it left multiple bruises on her right arm;

• Mr. Garib spit in the face of Ms. Hassan in March of 2017 while trying to get into her house after she’d locked him out;

22In addition, Ms. Hassa alleged that Mr. Garib threatened that he would take their son away from her, would not allow her to work, would not allow her to leave the home very often, forced her to dress in a manner acceptable to him and kept her isolated. She also alleged that she was forcibly confined by Mr. Garib’s brother and his family in Germany.

23Mr. Garib denies Ms. Hassan’s allegations. He states that Ms. Hassan has been wanting to relocate to Canada with Kochyar for a few years, and that she is now using allegations of domestic violence to justify her unlawful removal of Kochyar in July of 2017.

Alleged Assault of February 19, 2016

24Ms. Hassan’s evidence is that on February 19, 2016, “the Respondent beat her so badly that [she] was left covered in bruises on [her] right leg and was barely able to walk”. Ms. Hassan did not describe the assault in either of her affidavits filed in support of her case.

25Ms. Hassan called her family in Ottawa and asked that her sister, Treasca Hassan, call the appropriate authorities in Britain to report the assault. Her reason for doing so is that she stated that she was not able to make outgoing calls from her phone, only receive incoming ones. This is a small but important point, as although Ms. Hassan states this, there are references in her affidavits to calls she made, including this one to her family in Canada.

26Ms. Hassan’s sister, Treasca Hassan, and her mother, Kumriye Ahmed, also filed affidavits in this proceeding. Treasca stated that in the evening in question, her mother was on the speaker phone with Ms. Hassan, and she, Treasca, “heard Trifa crying and the Respondent yelling at the Applicant” before the phone was hung up. Ms. Ahmed stated that Ms. Hassan called her “crying and screaming, telling me that the Respondent hit her”. The Respondent then took the phone and when Ms. Ahmed asked him why he was hitting Ms. Hassan, “[t]he Respondent told me not to talk to him in that manner and hung up.” Neither Treasca Hassan nor Kumriye have any further direct knowledge of what transpired on the night of February 19, 2016. Ms. Ahmed and Treasca Hassan state that it was the following day that Ms. Hassan asked Treasca to call the police.

27In any event, Treasca did call the police in the UK and make a report, and the police were able to make contact with Ms. Hassan a few days later. According to Ms. Hassan, they arrived at her home with child protection services and told her she would have to leave the home and go to a safe house or the child would be removed. Mr. Garib was arrested and charged with assault. Ms. Hassan was put in touch with the Gloucestershire Domestic assistance Support Service (GDASS) and she did go to a safe house. However, she only stayed one or two nights before returning to Mr. Garib. In paragraph 51 of her affidavit sworn November 8, 2017, Ms. Hassan stated: “During this time, the Respondent managed to get in contact with me and begged me to return and promised to change.”

28Ms. Hassan advised children’s services that she had returned to Mr. Garib, and they booked an emergency court hearing for March 9, 2016 to determine if Kochyar could remain in her care if she stayed with Mr. Garib.

29According to Ms. Hassan, between the date of her return to Mr. Garib and the emergency court hearing, he told her to change her story or he would kill her, kill her family in Canada and behead her family in Kurdistan and Canada. She did not do so prior to the emergency hearing, and on March 9, 2016, she was ordered to stay in a “mother and baby placement” with Kochyar until a more formal hearing could be held about one month later. During this period, Ms. Hassan says she had no contact with Mr. Garib. She also stated that during this period, Mr. Garib “moved his residence to 6 Albert Street, in Cheltenham.”

30Ms. Hassan’s evidence is that for the next court appearance, she lied to the court and recanted her entire statement about previous abuse and what transpired on February 19, 2016 because she feared for her own life and the lives of her family members. The child protection proceeding was formally withdrawn on May 31, 2016.

31Ms. Hassan and Mr. Garib resumed cohabiting shortly after they had filed their position statements with the court. As I have indicated above, the parties then went to Kurdistan for a month, during which period or shortly after Ms. Hassan became pregnant. Notwithstanding that he was concerned about the effects of travel on her pregnancy; Mr. Garib consented to Ms. Hassan coming to Canada with Kochyar for a visit with her family between August 5 and November 6, 2017.

32Mr. Garib denies Ms. Hassan’s allegations of domestic violence. He denies constantly swearing at her or calling her names; he denies swearing about or belittling her family; he denies hitting her while pregnant or telling her he could kill the baby inside her; he denies holding a knife up to her, putting his hands around her throat or saying he could kill her right now; he denies making threats to Ms. Hassan or her family to influence her to change her story in March of 2016; he denies Ms. Hassan was unable to leave the house of her own accord; and, he denies that any domestic abuse has been witnessed by Kochyar.

33According to Mr. Garib’s evidence, there was no assault of Ms. Hassan in February of 2016. Mr. Garib says that on the night of February 19, 2016 he was packing for their joint move into their newly acquired 6 Albert Street apartment when they got into an argument. He admits to accidently kicking Ms. Hassan on the leg when he intended to kick a cardboard box that lay between them. He states he immediately apologized to Ms. Hassan and hugged and kissed her.

34Mr. Garib states further that it was Ms. Hassan who called him after she went into the “safe house” in early March. He states that Ms. Hassan explained to him that GDASS replaced the SIM card in her phone as per their standard procedure, and he had no way of contacting her. He states that Ms. Hassan called him and apologized for it turning into a “big thing”, and told him where to meet her and Kochyar to take them home, which he did.

35Mr. Garib also states that after the court ordered Ms. Hassan to stay in the “mother and baby placement” on March 9, 2016, he had regular contact with her at access visits he had with Kochyar which were supervised by a social worker. Certainly, the order of Judge Harrington of March 9, 2016, provided for “supervised contact being three times a week for 2 hours for the family to spend time together on those occasions.”

36Mr. Garib attached to his affidavit sworn on October 5, 2017, copies of both his and Ms. Hassan’s Position Statements that were filed in the Gloucestershire County Council (GCC) child protection proceedings, in which both state that Mr. Garib accidently kicked Ms. Hassan, and in which Ms. Hassan denies any other domestic abuse in her relationship with Mr. Garib, or that Kochyar had directly witnessed the incident of February 19, 2016. As I have indicated above, the GCC was permitted to withdraw its protection application on May 31, 2016.

Forcible Confinement

37As I have already indicated, Ms. Hassan came to Canada on August 6, 2016 with Kochyar to visit her family with the consent of Mr. Garib. The provision of consent for this trip by Mr. Garib seems somewhat inconsistent with Ms. Hassan’s allegations of control and isolation, in that she was free to be with her own family members and do as she pleased, at least during that three month period. Ms. Hassan had a return flight to England booked for November 6, 2016.

38Unfortunately, in late September of 2016, Ms. Hassan suffered a miscarriage. Her evidence is that she was afraid to tell Mr. Garib that she had lost the child because he would be angry and blame her. Nevertheless, she did tell him a few days after the miscarriage by a telephone call over speaker phone which her sister, Treasca, heard. Ms. Hassan indicates that Mr. Garib was very angry and blamed her for the loss of the child. Treasca says that Mr. Garib accused Ms. Hassan of murdering the child and he blamed Ms. Hassan’s family. In a call a few days later, Mr. Garib told Ms. Hassan “not to come back”, according to Ms. Hassan, or that “he did not care whether she came back” according to Treasca.

39Mr. Garib says that he was extremely upset about the loss of the child, and describes himself as “hurt and grieving and angry too.” He was also being asked to pay for Ms. Hassan’s hospital bills, which he was originally told were about $4000 and then later $2000. Mr. Garib’s evidence is that he asked Ms. Hassan’s family to pay and that he would try and come up with the money to pay them back. He has never done so, however, and he believes they are still angry at him as a result.

40Ms. Hassan’s evidence was that it was at this point and as a result of her conversation with Mr. Garib that she cancelled her return trip to the UK scheduled for November 6, 2016, “with the intention of staying in Canada”. Ms. Ahmed’s evidence stated that it was at this point that Ms. Hassan decided she “would stay in Canada permanently.”

41Mr. Garib evidence is that he was hopeful that the problems in the parties’ marriage could be worked out, but that he said to Ms. Hassan that he “would not and could not force her to continue our marriage”, which she apparently took as a rejection and proof that he did not love her. Mr. Garib states that between the beginning of October and November 6, 2017, Ms. Hassan never advised him she “cancelled” her return trip, or that she intended to stay in Canada beyond November 6, 2017, let alone permanently. While Mr. Garib may or may not have cared whether Ms. Hassan returned to England, I was provided with no evidence from this period which would support that he had at any time agreed or consented to Kochyar not returning to England.

42Mr. Garib’s evidence is that, contrary to Ms. Hassan saying she cancelled her return trip at the beginning of October, Ms. Hassan only decided not to return a few hours before the flight was scheduled to leave. He attached to his affidavit a copy of a text message from Ms. Hassan to him dated November 6, 2017 at 15:36 UK time in which she stated:

Kirmanj I made up my mind I’m not coming back because deep down I wanted you to be the one who did not give me the option of trying to keep our marriage or ending our marriage because your telling me it’s my choice meaning you don’t really care if I come back so this is my last choice with you if u want me if you want kochyar then what your [sic] going to do is for once sacrifice and move here and be with us so this time I made up my mind I’m getting on a bus and going back to Ottawa

43The contents of the message seem to support Mr. Garib’s version of events, in that 1) the choice to continue the relationship or not was Ms. Hassan’s, and 2) she did not appear to fear Mr. Garib, in so far as she was asking him to move to Canada to be with her and Kochyar.

44Ms. Hassan did not return to England with Kochyar on November 6, 2016, however, she and Mr. Garib had a text message exchange on November 8, 2016, wherein she stated to Mr. Garib:

Like a Man U shud [sic] take one step and come after me and ur son ONCE only ONCE and then we can go back together if not then it’s ur choice ur decision

45To which Mr. Garib replied:

If that makes u to understand me is ok then give me a bit of time then I will come and brink [sic] u guys back

46Mr. Garib did not immediately go to Canada, but Ms. Hassan’s evidence, and her mother’s, is that Mr. Garib’s brother, Jaza, called Ms. Ahmed from Germany to suggest that Ms. Hassan come to Germany and meet with Mr. Garib there, in a neutral setting, to discuss the marriage. Ms. Hassan decided to go to Germany, and travelled there on December 11, 2016.

47She states that Mr. Garib had promised to arrive in Germany a few days after her, but that he did not do so until January 17, 2017. Her evidence is that this was because Mr. Garib was spending time with a woman whom she later understood Mr. Garib to have married under Islamic Law, Greta Lesi. Ms. Lesi is a hair stylist working in one of Mr. Garib’s hair salons. Whether Mr. Garib married Ms. Lesi under Islamic Law or not is immaterial for the purposes of this hearing; the fact is Mr. Garib acknowledges intimate involvement with Ms. Lesi. Regardless, Mr. Garib states that Ms. Lesi was not the cause of his delay getting to Germany; rather it was a business of his (shawarma restaurant) that was failing, and which he ultimately sold in February of 2017.

48Ms. Hassan states that in the interim she was forcibly confined by Jaza Gharib and his family at their home in Germany. Ms. Hassan alleges that her cell phone and she and Kochyar’s passports went missing from her purse about a week after her arrival, only to reappear the day Mr. Garib arrived in Germany. Ms. Hassan alleges further that she could not contact her family without her phone, could not leave Germany without their passports, and could not leave the house on her own. Ms. Hassan says she had only 200 Euros that had been given to her by Jaza, which she paid back after Mr. Garib sent her 500 Euros. Ms. Hassan states she was only allowed to contact Mr. Garib using Jaza’s cell phone, and that neither she nor Kochyar’s iPad had any access to the internet. Ms. Hassan states that she was only able to contact her mother once during the first week of her stay, and this evidence is supported by Ms. Ahmed, who confirmed that Ms. Hassan called her only once in the early morning for a recipe for a Kurdish dish. Treasca Hassan states in her affidavit that she did not hear from Ms. Hassan once she was in Germany; that she sent her Snapchat messages that did not go through; and that she was only able to communicate with Ms. Hassan once she was back in the UK.

49This evidence is contradicted entirely by an affidavit filed by Mr. Garib’s niece, Maastan Jaza Raoof, the daughter of his brother, Jaza. Ms. Raoof is 19 years old and lived in the home of her parents in Refrath, Germany while Ms. Hassan and Kochyar were visiting from December 11, 2016 to mid-January of 2017. Ms. Raoof swore the affidavit, rather than one or both of her parents, because in addition to Kurdish and German, she speaks English, while they do not. Ms. Raoof states that Ms. Hassan had a white iPhone 6 Plus with a gold case that she saw often because Ms. Hassan was “on her mobile all the time.” Ms. Raoof states that Ms. Hassan also had and regularly used an iPad Pro, and that Kochyar spent quite a bit of time watching YouTube videos on his iPad. Ms. Raoof states that Ms. Hassan spent a lot of time on social media, because she was “almost always on it when I came back from school.” Ms. Raoof indicates that Ms. Hassan was angry a few times with Mr. Garib because he was taking so long to get to Germany, but that her anger would dissipate, and that Ms. Hassan and Mr. Garib were in contact by phone and in writing throughout her stay.

50Ms. Raoof states that Ms. Hassan didn’t go out much because she didn’t want to, but indicates that she did go shopping with her mother to the town centre, where they bought food and things for Kochyar, and with her sister once to the town centre, where they bought cosmetics and things for Kochyar. Ms. Hassan also spent a day in Cologne with Ms. Raoof on January 12, 2017. According to Ms. Raoof, Ms. Hassan asked a cashier in one of the stores if she could exchange the clothes she had purchased in Britain. Ms. Raoof also states that Ms. Hassan went out from the house a few times with Kochyar alone. According to Ms. Raoof, her parents never took Ms. Hassan and Kochyar’s passports and did not recall ever seeing them.

51Ms. Hassan states in paragraph 79 of her affidavit sworn on November 8, 2017, that Mr. Garib “used intimidation to force me to return to England with him.” However, in her affidavit of October 31, 2017, Treasca Hassan stated that her mother, Ms. Ahmed, paid for Ms. Hassan’s ticket to Germany. No mention was made of a return ticket to Canada, nor was a copy of any ticket attached. Treasca also stated: “I advised Trifa not to go back to the Respondent but Trifa decided to go.” Additionally, Ms. Ahmed states in her affidavit sworn on November 8, 2017 that during the one telephone call she did receive from Ms. Hassan, she asked “Trifa why she was still in Germany.” The totality of the evidence suggests that it was understood by her relatives in Canada (and by Ms. Hassan) that Ms. Hassan would be returning to England with Mr. Garib.

52It is impossible to determine whether Ms. Hassan was forcibly confined by the family of Mr. Garib on the conflicting evidence before the court, and I decline to make any finding in that regard.

Alleged Assault of March 21, 2017

53After the family’s arrival in England, Mr. Garib kept Kochyar’s passport in his possession. He indicated that he did this on legal advice because he was aware of Ms. Hassan’s desire to return to Canada.

54Only upon their return did Mr. Garib tell Ms. Hassan about Ms. Lesi. As I have indicated, Ms. Hassan says that Mr. Garib told her he married Ms. Lesi in an Islamic marriage. Mr. Garib says that he did not, but that when he thought that Ms. Hassan had given up on the marriage in November, he began a relationship with Ms. Lesi, which he confessed to Ms. Hassan in January. He told Ms. Hassan that he would gently break it off with Ms. Lesi because they still worked together; however, Ms. Lesi discovered in February that she was pregnant with Mr. Garib’s child, which complicated the situation considerably.

55In her affidavit of November 8, 2017, Ms. Hassan stated at paragraph 82: “After this news [of the affair], I knew that I could not stay with the Respondent any longer. I could not live in a situation where I was constantly afraid of being abused, and knowing he had another wife. I wanted to leave the UK immediately with my son, but the Respondent would not let me leave with my son and he would not let me have his passport back, so I was forced to stay.”

56The parties nevertheless returned to their 6 Albert Street apartment and remained together until the date of separation of March 18, 2017. Mr. Garib says that on March 17, 2017 the parties argued about the Gardners Lane Children’s Centre daycare that he had registered Kochyar in on or about March 11, 2017, which argument resulted in Ms. Hassan locking him out of the house on March 18, 2017. In her original affidavit, Ms. Hassan says that the reason she kicked Mr. Garib out of the house was because he assaulted her when they were in the car. In her second affidavit sworn on November 15, 2017, Ms. Hassan says this assault occurred on March 21, 2017. However, on March 18, 2017, Mr. Garib filed a complaint with the police because he was locked out of his house.

57Ms. Hassan alleges that on March 21, 2017, Mr. Garib forcibly held her inside his care and bruised her arm by punching her when she refused to show him her phone; he drove off with the door open when she tried to get out, pulled her back inside the car, and drove around for two or three minutes until she jumped out of the car at a red light. Ms. Hassan attached photographs of what she states is her bruised arm to her affidavit of November 8, 2017. Mr. Garib denies the allegation and states that he kept notes of when he saw Kochyar, and he did not see him on March 20, 21 and 22.

58Ms. Hassan further alleged that there was an incident on March 28, 2017 wherein Mr. Garib attended the home to take Kochyar to his salon and an argument ensued. Ms. Hassan alleges that Mr. Garib pushed her and spat in her fact, and that she pushed him back and closed the door. Later on March 28, 2017, she alleges that Mr. Garib harassed her when she was picking up Kochyar from the daycare by blocking her path by placing his foot on Kochyar’s stroller. Ms. Hassan states that she threatened to call the police and Mr. Garib left. Mr. Garib denied being at Ms. Hassan’s home on March 28, 2017, but did acknowledge encountering Ms. Hassan and Kochyar leaving the daycare. He also acknowledges placing his foot on the stroller, but he states it was to keep it from moving as Kochyar wanted to be picked up by him. He, additionally, confirms that he walked away after Ms. Hassan said she was going to call the police.

59Ms. Hassan states that sometime after she returned to England in January, a health visitor, Arabella, came to see her, and she later confessed to her by phone that everything she had said to the court in 2016 was not true. After another in person meeting, this health visitor referred the matter back to the Gloucestershire child protection services (formerly GCC) and reconnected Ms. Hassan with GDASS, to whom she told her entire situation and explained why she had lied to the court the year previous. These services again began to assist Ms. Hassan, including with a referral for subsidized housing for herself and Kochyar, access to legal aid, and contact with the Canadian Embassy.

60In her materials, Ms. Hassan filed copies of the GCC file for her family, her GDASS file and various police records. Ms. Hassan’s position is that the contents of these records support her evidence. Mr. Garib’s position is that the contents of these records are based on only one source, Ms. Hassan. Even so, he states that some of the contents do not support Ms. Hassan’s case.

Gloucestershire County Council Records

61The files of the GCC reveal that the date the referral was received was March 9, 2017; the date the “single assessment” was started was March15, 2017; and, the date the date the single assessment was completed was June 13, 2017. Under the heading: “Reason for this assessment – what has led to this child/young person being assessed?” is the following:

Referral from Health Visitor

• The Child/Children’s needs:

Kochyar is at risk of emotional harm as his parents seem to row angrily in front of him. Father has taken Kochyar’s passport off Mother

• The Parents/Carers and their parenting capacity:

Both parents seem to be very loving towards Kochyar and he goes easily between one parent and another. Father has a laid back style to parenting whereas Mother is more able to provide boundaries. Parents are investigating separating. Father has funds for a lawyer. Mother does not. Mother has child benefit and no access to family finances. Mother describes father as mentally controlling. Trifa has been in Canada for several months with Kochyar and was drawn back to the UK by Father telling her that they needed to work on their relationship. However he has found a new partner but remains in the family home with Trifa. The new partner is 6 weeks pregnant. Trifa would like to return to Canada with her son.

• The wider family and environment:

Father has local family. Mother is socially isolated. Her family are in Canada.

• Describe the response request of Children’s Services and any action you intend to take

I should like social care to keep the Mother and Kochyar safe by investigating the allegations made by Mother this morning in front of the Health Visitor. Mother says that all the previous allegations made to social care in the past were true but she was threatened by her partner telling her ‘not to say a word.’ And that ‘he would speak for her.’

62Under the heading of “Previous social care involvement”, the record reiterates that the events for 2016, which included the following: “Trifa disclosed 20+ incidents of violence; Uadgar has held a knife to client after beating her and told her that he could easily kill her. He has thrown furniture at client causing her injury to her leg in which she said she found it difficult to walk on for a week. Kochyar has witnessed some of the violence and aggression.” It also states that Trifa and Kochyar were placed in a refuge, and “Trifa made contact with Yadgar the next day.”

63Concluding on the 2016 file opening, the file states:

The Local Authority’s concerns remained, either the domestic abuse did happen and Trifa was covering up, which would have an ongoing impact on Kochyar and he may be at risk of significant emotional and physical harm. Or, if the allegations are untrue, there were concerns about Trifa’s emotion wellbeing due to the enormity of the allegations that were made up to ‘teach Yadgar a lesson’, and also due to her feeling isolated which she stated under oath in court. A child protection plan was put in place on 26th of April under the category of emotional harm.

64In other words, the Local Authority was unable to reach a conclusion in 2016 as to which of those options was the operative one. Regardless, they put a plan in place to protect the child from the risk of emotional harm. As I have already indicated, the GCC was permitted to withdraw its application from court on May 31, 2016. There is no further evidence, either from the GCC file or from the parties, as to any involvement by the GCC with the family between the April 26 plan and August 5, 2016, when Ms. Hassan and Kochyar left the UK for their visit to Canada.

65Under the heading of “Details of Child/Young Person’s Education and Learning”, it seems clear that the author spoke to someone at Kochyar’s nursery, and it was noted that there were: “No concerns raised regarding his presentation”; “when the couple are together it seems amicable”; and “when [Kochyar] speaks there is no resemblance of actual words which questions if he is learning two languages.”

66Under the heading of “Details of Child/Young Person’s: Emotional & Behavioural Development, Identity, Family & Social Relationships, Social Presentation and Self care Skills”, the document’s author wrote: “I have observed on several occasions interaction between Kochyar and his parents and it is clear that both show love and affection towards him.”

67Under the heading of “details of Parent/Carers Capacity the following is noted: “ During the assessment process, Yadgar moved out of the property and Trifa spoke directly to the landlord to ensure that he did not give a spare set of keys to Yadgar due to the risks he poses, which was agreed. I asked Trifa what she would do if Yadgar become [sic] violent towards her and she said without hesitation call the police.”

68Under the heading of “Narrative analysis and conclusion of information gathered during the single assessment” the following is recorded:

Kochyar’s primary carer is Trifa although he does have contact with Yadgar, which currently Trifa feels she is able to manage. Trifa is well aware of the detrimental impact of domestic abuse on Kochyar’s development. She has shown to be protective by calling the police following an incident in April, something she has not done previously; she also had a PIN put on her address to increase police response should she feel at risk. Trifa has assured that she would not hesitate to contact the police should she feel fearful of Yadgar in the future.

Taking everything within this assessment into consideration, I am of the opinion that whilst it has taken Trifa some time to separate from Yadgar, she has now, and as such has shown her ability to prioritize and protect Kochyar from further violent and aggressive episodes. This family can therefore continue to be monitored and supported by community services, although agencies are aware of the need to refer should further concerns arise.

Gloucester Domestic Abuse Support Services (GDASS) Records

69Ms. Hassan’s counsellor, Foena Lowe, provided the records of GDASS. In her covering letter, Ms. Lowe indicated that she completed a risk assessment with Ms. Hassan based on the information Ms. Hassan gave her. The result of her risk assessment is that Ms. Hassan was considered to be at high risk of domestic violence.

70Included in the records was a document entitled “Individual safety and Support Plan-Action Plan”, which contains a chronology of GDASS’s contact with Ms. Hassan. This document confirms in action #1 that Ms. Hassan applied for independent housing but was refused on the basis that she was not homeless. There is an entry at 31/05/17 which states: “Trifa would be supported to private rent, however she is unsure at the moment if she wants to move as AP is not turning up anymore.” However, there is another at 28/06/17 which states: “Discussed safety planning as I am alarmed that the AP [alleged perpetrator] is still maintining [sic] control by turning up at the clients gym session to ‘watch’ and forcing himself into her home. Advised client to be firm with her request for him not to do this and report any other possible stalking or harassment to the police.”

71Under the agreed action #2 “to apply for non-molestation”, there are two entries, one on 17/05/17 and another on 31/05/17 that suggest that the lawyers to whom Ms. Hassan and the GDASS were speaking did not think there was sufficient evidence for Ms. Hassan to apply for a non-molestation order, noting on the later date “now he is not approaching the home that their [sic] would not be enough evidence to persue [sic].” There is a note on 28/06/17 as follows: “Further discussed this issue due to recent events. Client advises that the police are speaking with the AP tomorrow. Client will Keep a log of further harassment.” There is no information in the record, or Ms. Hassan’s affidavits, as to what the “recent events” referred to in June 28, 2017 post were.

72For his part, Mr. Garib denies that he ever forced himself into the home post-separation. His evidence is that he would contact Ms. Hassan and ask permission to come over to see Kochyar, or that she would contact him to come and spend time with them or pick up Kochyar. He also stated that Ms. Hassan would text him to bring groceries for her, and he attached two such texts, from May 28 and June 5, 2017, to his affidavit in support of this contention.

73There is a next agreed action #3 “Trifa to apply for legal aid and instruct an international solicitor ensure custody of her son.” This is an illustrative category, as it confirms that Ms. Hassan had access to legal aid and that she was instructing counsel to deal with the issue in England. The notation at 31/05/17 states: “Trifa has completed a statement for the solicitor with her wishes to take her son back to live in Canada and putting forward reasonable ideas for AP to continue to have contact with his son.” The entry at 28/06/17 states: “Trifa reports that she now has citizenship for her son and can make plans to return to Canada, Solicitor is drawing up papers for client to look at and then will present to AP for signature.” Mr. Garib says no such papers were presented to him prior to Ms. Hassan’s departure with Kochyar on July 15, 2017.

Police Records

74Ms. Hassan filed a copy of Mr. Garib’s criminal record which demonstrates that he had one conviction for “Assault Occasioning Actual Bodily Harm” from January 30, 2008. Mr. Garib acknowledges this and states that it was as a result of a fight he had with a man outside a pub in 2007. There is a reference in the GDASS records, in the MARAC Research Form (the risk assessment completed by Ms. Lowe) that “Trifa states that AP has previously assaulted a police officer”, however, there is no such allegation in Ms. Hassan’s affidavits.

75The remainder of the records from the Gloucestershire Constabulary are with respect to complaints made by the parties. The first entry is from March 3, 2016, when a call is received from the child protection services who are seeking assistance in removing a female and young child from their address “due to the domestic violance [sic] from her partner as per the OPI.” There is a later call from Mr. Garib asking where his wife and child have gone. In fact, Mr. Garib called a number of times on March 4 and 5, and he was told that Ms. Hassan had been spoken to and was safe.

76The next record is on March 8, 2016 regarding Ms. Hassan having gone back to the home and Mr. Garib subsequent to having been taken to the safe house on March 4, 2016. Concern is expressed to the police by the child protection services because of the emergency hearing which is scheduled for the following day. Based on all the information available, it is at this point that the police make the decision to arrest Mr. Garib for domestic assault. The police attend the parties’ home, and Mr. Garib is indeed arrested and charged with common assault and threats to kill. Interestingly, Ms. Hassan is not present; the police place a call to her and are told by her that “she is at a friends but heading home.” Mr. Garib was taken into custody but released at around midnight and told not to return home until after the hearing the next day.

77The next entry of the Gloucestershire Constabulary is not until a year later, on March 18, 2017. The call is from Mr. Garib who states that he and Ms. Hassan had an argument the evening before and he is now unable to get into his house. During this call, Mr. Garib actually advises the police that he keeps Kochyar’s passport on his person as he fears that Ms. Hassan will take him out of the country. The police contact Ms. Hassan and she states that they had an argument the night before and Mr. Garib pushed her; she states that “he tried to hurt her yesterday and she will not let him back in the house because of this.” The contact ends with an entry that states: “Yadgar will not be able to access the address without forcing entry; Trifa has left the key in the door from the inside.” This police occurrence report supports Mr. Garib’s evidence that the date that he was locked out of the house, and hence the date of separation, was March 18, 2017.

78The next entry in the police occurrence reports is on March 28, 2017, when Ms. Hassan calls to complain of an altercation between her and Mr. Garib that morning at her home “resulting in caller pushing husband and him spitting at her.” Ms. Hassan also complained of an incident between them the previous Friday which was not reported. The police did not meet with Ms. Hassan that night due to a high volume of calls. They next spoke to Ms. Hassan on April 1, 2017, and she described the events of March 28, 2017 as blocking her exist outside the daycare, and Mr. Garib pushing her and her pushing him back earlier that morning at home.

79On April 1, 2017, the police receive a call from the social services to make them aware of the situation between Ms. Hassan and Mr. Garib “so that any calls coming to this address are treated as urgent.”

80On April 6, 2017, Ms. Hassan called the police to report that Mr. Garib came to her house claiming not to have sufficient diapers for Kochyar and then grabbed and kissed her on the mouth and face when she opened the door. She pushed him out and closed the door. Ms. Hassan declined to make a formal complaint about the incident, but appeared to be making a report to the police because GDASS had told her to report every incident.

81The next entry is Mr. Garib’s call to the police on July 15, 2017, reporting his concern that his wife may have taken his son out of the country. Ultimately, the police forced entry to Ms. Hassan home, and that indeed turned out to be the case.

82On July 29, 2015 Mr. Garib called the police to report that Ms. Hassan had fraudulently opened a Capital One account in his name and taken money from it on two occasions, July 11 and July 13, 2017.

Witness Statements

83In addition to the Gloucestershire Constabulary occurrence reports, Ms. Hassan included in her materials Witness Statements that she filed with the police on April 1 and April 12, 2017. The statement of April 1, 2017 is typewritten and signed by Ms. Hassan, and that of April 12, 2017 is handwritten and signed. In the statement of April 1, 2017, Ms. Hassan describes the event of March 28, 2017, both at home and later at the daycare. At the end of her statement regarding this incident, Ms. Hassan stated: “I’ve seen him since making this statement and there has been no further incidents.”

84On the second page of the statement, Ms. Hassan went on to describe the incident of April 21, 2017, wherein she alleged that Mr. Garib punched her right arm while they were in his car, causing bruising to it. After describing the incident, Ms. Hassan concluded the statement by saying that Mr. Garib “is controlling and abusive. I want him out of my life completely and for me to return to Canada. GARIB wants me to live here and be his possession. I don’t want this at all.”

85On April 12, 2017, Ms. Hassan made a further statement. In it, Ms. Hassan stated:

Further to the statement which I gave to the Police on 1st April 2017 regarding my ex-partner Yadar Garib assaulting me and not letting me out of his car I have after careful consideration decided to retract my complaint. Everything I told the Police was true and did happen. I did not sustain any physical injuries as a result of the incidents. I am retracting my complaint on my own free will and no one has asked or pressured me to retract my complaint.

The reason that I wish to retract my complaint is that I really have a lot to deal with right now. I am currently working with GDASS who are helping me find a new home with my 3 year old son. Ideally I wold like to move back to Canada but I am having to go through a family court in order for this to happen so that I can take my son out of the country to live.

In general things with my ex-partner Yadar are more civil. He collects our son for school and then brings him home. I really don’t want to affect the relationship that my son has with his father as I believe persuing [sic] this complaint will make things worse for my son. I am also aware that potentially Yadar could got to prison as I really don’t want this to happen.

I don’t have a close network of friends and family in the UK which is why I want to live in Canada so that I would have support.

86In the statement, Ms. Hassan goes on to confirm that she would consider calling the police to report any further incidents, and she confirms that she did receive a bruise on her arm during the April 21, 2017 incident and understands that the photograph she provided of it may be used in the prosecution.

Analysis

87Based on all of the evidence before me, I cannot find that the past abuse of Ms. Hassan was severe, but for the “beating” of February 19, 2016, if it occurred as is alleged by her. I do not know what occurred on that date, however, I am unable to conclude that it was severe because: 1) Ms. Hassan did not describe it in her affidavits of November 5 and 15, 2017; 2) it was not responded to by the authorities until March 3, 2016; 3) there was no physical or medical corroboration at that time; 4) Ms. Hassan returned to Mr. Garib within days of the authorities’ response; 5) Ms. Hassan retracted her allegations by mid-April, and again returned to Mr. Garib; and, 6) Mr. Garib acknowledged having kicked Ms. Hassan, and provided the alternative explanation that it was accidental.

88There is an allegation of a previous assault where Mr. Garib held a knife up to Ms. Hassan and grabbed her around the throat. If this occurred in the manner alleged by Ms. Hassan, it would also qualify at “severe”; again, however, I have no way of determining that it did in fact happen in the manner alleged by Ms. Hassan.

89Mr. Garib argues that the fact that other entities have written down what Ms. Hassan has alleged does not make them true. I agree. I would state that it is equally true, however, that Mr. Garib’s blanket denials do not make it less true that those incidents occurred. The records of GCC, GDASS and the Gloucestershire Constabulary are based for the most part on what Ms. Hassan was reporting to them. Those records, nevertheless, make it abundantly clear that their authors spotted a number of red flags and were all concerned about Mr. Garib being a perpetrator of domestic violence. I share their concern.

90Even, however, if I found that the alleged past violence perpetrated by Mr. Garib was severe; I would still have to assess whether it is likely to recur. If find that it is not for the following reasons:

• Mr. Garib left the home the evening of March 17, 2017. Ms. Hassan locked him out as of March 18, 2017, and he remained living elsewhere from that date until she left the country on July 15, 2017;

• There are only reports to the police about three incidents by Ms. Hassan between March 28 and July 15, 2017. The March 28 report complains about incidents on that date both at home (where Mr. Garib denies being) and at daycare (which Mr. Garib acknowledges, but has an alternate explanation for), and about the incident of March 21, 2017. No charges resulted from either, nor is there any information in the records that Mr. Garib was even spoken to in regards to them. On April 6, 2017, Ms. Hassan filed a complaint about Mr. Garib kissing her at the door. No charges resulted from that incident;

• Ms. Hassan confirmed in her statement of April 12, 2017, and repeatedly to GCC that she would call the police if there were any further incidents. There are no calls made by her to the police after April 6, 2017, which suggests that there were no incidents to report;

• In her statement to the police of April 12, 2017, Ms. Hassan stated that things were “more civil” with Mr. Garib in general, and that he was collecting Kochyar from home to take him to daycare and returning him home from daycare daily;

• Two lawyers appear to have been of the view that there was insufficient evidence in May of 2017 to seek a non-molestation order as Mr. Garib was not approaching the home; and,

• At the closing of the GCC file, Ms. Hassan reported that she felt she was able to manage Mr. Garib’s contact with Kochyar.

91Indeed, extremely telling to me is that the GCC was of the view at the end of its assessment that its file could be closed as of June 13, 2017, as evidenced by the statement: “This family can therefore continue to be monitored and supported by community services, although agencies are aware of the need to refer should further concerns arise.” In other words, the child was being adequately protected and no further, more intrusive intervention was required by child protection authorities.

92I cannot, thus, find that, even if severe violence did occur in the manner alleged by Ms. Hassan, it is likely to recur. The evidence, in fact, supports that it had stopped occurring as of at least March 21, 2017.

Issue #2 – Has past alleged violence been life threatening?

93For the reasons outlined above, I find that past alleged violence perpetrated by Mr. Garib against Ms. Hassan has not been life threatening. As indicated above, I am unable to determine with any certainty that Mr. Garib held a knife to Ms. Hassan’s face or grabbed her around the throat. These incidents, if they occurred, have the potential of being life threatening. The incident of February 19, 2016, even if it occurred in the manner alleged by Ms. Hassan, while severe, was not life-threatening, and there are no other incidents alleged which fall into this category.

Issue #3 - Does the record show that Mr. Garib is not amenable to control by the justice system?

94The record before me actually shows that Mr. Garib is amenable to control by the justice system for the following reasons:

• Mr. Garib stayed away from the home upon his release from custody at midnight on March 9, 2016, when he was dropped off at the address of his brother;

• Mr. Garib exercised supervised access to Kochyar pursuant to the temporary order of March 9, 2016 placing Ms. Hassan and Kochyar in the Mother-Baby placement;

• Mr. Garib stayed elsewhere after Ms. Hassan locked him out of the house on March 18, 2017; and,

• Mr. Garib left the scene on March 28, 2017, when Ms. Hassan threatened to or did call the police.

95I think that it is clear from the evidence, additionally, that all of the systems that had an interest in protecting either the mother or child were fully and capably engaged in those tasks, be it the GCC, the GDASS, the police and the Court. I can only assume that they will continue to be.

96The only independent evidence the Court has received with respect to Mr. Garib’s parenting capacity is from the GCC, and it suggests that Mr. Garib’s relationship with Kochyar is loving and attentive. While there was an effort on Ms. Hassan’s part to link Kochyar’s delayed speech development to the impact of exposure to domestic violence, there were also references in the GCC records, including from the daycare, which linked it to the fact that Kochyar was learning more than one language. Absent expert evidence on this point, I am unable to conclude Kochyar has been harmed in this manner.

97Additionally, there was one reference in the materials to Kochyar suffering a pulled elbow, which may have been “non-accidental”. I was provided with no medical evidence to this effect, and when Kochyar’s parents took him to the emergency department, no referral was made to child protection authorities. Ms. Hassan did not speak to any incident in her affidavits wherein Mr. Garib did any direct harm to Kochyar. I have no evidence beyond that Kochyar appears to have been treated at the emergency department for a not uncommon occurrence and released back into the care of his parents, and I cannot find that he was deliberately harmed by Mr. Garib as a result.

98Mr. Garib was having daily contact with Kochyar prior to his wrongful removal from England. Mr. Garib, according to both his and Ms. Hassan’s evidence, has continued to have frequent contact with Kochyar by skype and telephone. Additionally, Ms. Hassan expressed concern to various professionals about preserving Kochyar’s relationship with his father. Finally, in the application she filed in the Ontario courts seeking an order of custody of the child, Ms. Hassan proposed on-going access to Mr. Garib in the UK. All of these factors do not lead the court to the conclusion that sending Kochyar back to the UK would place him in an intolerable situation.

99For all of these reasons, I find that that Ms. Hassan has not met her burden of establishing a grave risk that returning Kochyar to England would expose him to physical or psychological harm or otherwise place him in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention, and as interpreted by the Supreme Court of Canada in Thomson v. Thomson.

100It is clear from the evidence that Ms. Hassan has been unhappy in her marriage and in England for some time, and that her plan has always been to live in Canada with Kochyar. That those services working with Ms. Hassan were supportive of this plan did not render her removal of Kochyar on July 15, 2017 lawful. It may be that this is the outcome which is ultimately in the best interests of Kochyar, but, pursuant to Articles 3 and 12 of the Hague Convention, it will be up to the court in England to make that determination (as ought to have happened in June or July of 2017).

Conclusion

101I heard no evidence with respect to proposed undertakings the court could consider in the event that Kochyar is ordered back to the UK. Indeed, in her affidavit evidence, Ms. Hassan has indicated that if Kochyar is ordered to be returned to the UK, she will not be accompanying him on the basis that she genuinely fears for her life. In the event that she does, however, decide to accompany Kochyar, she shall be permitted to travel to England with him and have primary care of him, as she has to date, pending a custody order of the English Court. Additionally, Mr. Garib shall be required to pay rent for suitable accommodations for Ms. Hassan and Kochyar in England, as he had done post-separation in March of 2017.

102In the event that Ms. Hassan chooses not to return to England with Kochyar, Mr. Garib is permitted to travel to Canada to collect him and take him back to England with him.

Order

103Kochyar Raouf Garib, born February 15, 2014, shall be returned to Cheltenham, England forthwith and in any event by December 23, 2017.

104Should Ms. Hassan take Kochyar back to England, Kochyar shall remain in her primary care pending any custody order by the English Court.

105Mr. Garib shall pay rent for suitable accommodations for Ms. Hassan and Kochyar upon their return pending any order by the English Court with respect to child and/or spousal support.

106Should Ms. Hassan decline to take Kochyar to England, Mr. Garib may travel to Canada to collect Kochyar and return him to England with him.