COURT FILE NO.: FS-18-0063
DATE: 2018-05-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Neil A. Singh, Applicant
AND:
Bonita P. Ramotar, Respondent
BEFORE: Van Melle, J.
COUNSEL: M.J. Stangarone and K. Maurina, for the Applicant
J. Mohammed, for the Respondent
HEARD: May 8, 2018
ENDORSEMENT
[1] The applicant father seeks an order pursuant to the Hague Convention on the Civil Aspects of International Child Abduction compelling the return of Noel Alexander Singh, born May 5, 2017, to Manheim, Pennsylvania, U.S.A, on the basis that Noel’s habitual residence is Manheim, Pennsylvania.
[2] The mother opposes the application. She takes the position that Pennsylvania is not Noel’s habitual residence and therefore the Hague Convention does not apply. If it does apply the mother relies on Article 13 of the Convention to resist the father’s application for Noel’s return to Pennsylvania. She takes the position that the father acquiesced to her and Noel being in Brampton and thus Brampton is the appropriate jurisdiction for legal proceedings relating to Noel. In the alternative she relies on Article 13(b) of the Convention and submits that there is a grave risk that returning Noel to Pennsylvania would expose him to physical or psychological harm.
[3] The father takes the position that the child was abducted from Pennsylvania and that I should order his return forthwith and that Pennsylvania is the appropriate jurisdiction for court proceedings.
BACKGROUND
[4] The father and the respondent mother commenced a long-distance relationship through social media in May 2014. In September 2015 the mother stayed with the father and his family while she completed an internship in Pennsylvania. The relationship was on and off. During one of the periods that the parties were together, the mother got pregnant and subsequently gave birth to the parties’ child.
[5] The parties agree that the mother resided in Pennsylvania with the father from September 2015 to August 2016; in October and November 2016 and from May 2017 (three weeks after Noel’s birth) to January 2018. At the time of Noel’s birth the mother was in Brampton and Noel was born there.
[6] The father is an American citizen and the mother is Canadian. Noel has a Canadian birth certificate and passport. An application for US citizenship, on his behalf, had been commenced.
[7] On January 5, 2018 while the father was at work, the mother packed up her and Noel’s belongings and went to Brampton.
[8] The father started a custody application in Pennsylvania on January 30, 2018. On February 14, 2018, he obtained, on notice to the mother, an Order from the Court of Common Pleas of Lancaster County, Pennsylvania. The Order grants him shared legal custody of Noel. It allows the mother to retain primary physical custody of Noel, provided she returns him to the jurisdiction of the issuing court by March 12, 2018. If she fails to return Noel by March 12, the father shall have sole physical custody of Noel. The order contains some other provisions which are not material to this Application.
[9] The father commenced proceedings under the Hague Convention on February 28, 2018 in the U.S. and on March 20, 2018 in Brampton.
[10] Despite the mother’s failure to follow the order of the Pennsylvania Court, the father to his credit, is not seeking that Noel be turned over to his primary care. In fact, he has undertaken to find and pay for an apartment in Pennsylvania for the mother, until this matter has been determined in Pennsylvania.
THE LAW
[11] The Hague Convention (which is implemented in Ontario by s. 46(2) of the Children’s Law Reform Act) was enacted to ensure the automatic return of children wrongfully removed from a Contracting State to another Contracting State, and to ensure that rights of custody and access under the law of one Contracting State are respected in the other Contracting State.
[12] The recent Supreme Court of Canada case of Ontario Children’s Lawyer v. Balev, 2018 SCC 16, paragraph 32, confirms that the Hague Convention provides for the automatic return of abducted children 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. Thus there is a presumption that the interests of the child who has been wrongfully removed from the originating State are better served by repatriating them immediately to the originating jurisdiction, where the custody and access issue ought to have been determined.
[13] The deciding court is not to consider the “best interests of the child” in deciding a Hague Convention proceeding. Thomson v. Thomson 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C.). The decision to return a child should not be based on a determination of who should have custody.
NOEL’S HABITUAL RESIDENCE
[14] The mother argues that Manheim, Pennsylvania is not the habitual residence of the child. She says that she was only in Manheim on a trial basis and that she made it clear to the applicant that if things did not work out between them she would return to Brampton. Where a child is born outside their habitual residence, a court will consider the amount of time the child has resided in their home. In the present case, Noel lived in Pennsylvania with both parents, from 3 weeks of age (May 2017) to January 2018.
[15] Both parties rely on Office of the Children’s Lawyer v. Balev, supra in support of their respective positions regarding Noel’s habitual residence. Both agree that Balev creates a hybrid approach which combines the settled parental intention approach with the child-centred approach in analyzing “habitual residence.” In the instant case the mother accuses the father of attempting to create an artificial intention that the mother planned to live in Pennsylvania. The mother’s submission that she always had it “in her mind” that she would return to Brampton does not help her in this regard. It suggests that she was aware of her actions in removing Noel from Pennsylvania in the way that she did.
[16] While the Supreme Court in Balev advocates a child centred approach to the issue of habitual residence, given the age of… All the evidence supports the father’s position that Noel’s habitual residence was Pennsylvania. If one applies the child-centred approach, it is clear that Noel’s home, his father, relatives, doctor, day-care were all in Pennsylvania.
[17] The mother has attached many text messages to her affidavit to demonstrate that she was only in Pennsylvania on a trial basis. I have reviewed the text messages many of which relate to the time prior to her final return to Manheim. There is nothing in the messages to support her contention that she was in Manheim on a trial basis. The text messages support her evidence that the relationship was rocky and that the father told her that if she did not like what was happening she should leave, as well as the mother herself threatening to return to Canada. None of these messages can be taken as the father’s consent or acquiescence to her returning to Canada. In fact, the mother co-signed a lease which had a one year term from May 2017; had an American bank account and had a doctor for Noel in Pennsylvania, all indicia of an intention to remain in Manheim.
[18] Even if I accept that she was in Manheim on a trial basis, the case of Schroeder v. McCormack, 2016 ONSC 5725 (Ont.Div.Ct.) stands for the proposition that the fact that a family resides somewhere on a trial basis, one party cannot unilaterally remove the children. The fact that a move may have been made conditionally is only one of the factors to be taken into account. In the instant case, there is some discussion that at one time the father agreed to move to Canada, it was simply a discussion. Subsequently the father made it clear that he would not move to Canada.
[19] The mother submits that the father, somehow “manipulated the Hague Convention.” She says that when the father found out the mother was pregnant, he came to Brampton to speak with her to determine her intentions. When she advised him that her intention was to have the baby in Brampton he and his mother berated her. He called her immature and incompetent and “harassed her dignity.” Despite this alleged behaviour, three weeks later, she returned to Pennsylvania with the child.
[20] The mother says that the applicant forced her to go to and to stay in Pennsylvania. She says he was controlling and stopped her from seeing his family. She says that she was told by the police in November 2017 that if the applicant started legal proceedings in Pennsylvania she would be unable to leave with Noel until there was a custody order in those proceedings. She says that she was told if there were no proceedings she could leave and return to Brampton.
[21] There is no independent corroboration of this submission. However, even if it is true, a misunderstanding of the law does not excuse the mother’s actions.
[22] The mother submits that this case resembles Jackson v. Graczyk, 86 O.R. (3d) [2007] (ONCA) affirming Jackson v. Graczyk 2006 CarswellOnt 9048 (SCJ). In that case the Court of Appeal upheld Justice Czutrin who found that the child’s habitual residence was not Florida. (The father in that case wanted the child returned to Florida or Texas.) Justice Czutrin found that the father did not exercise custodial rights so Article 3 of the Convention did not apply. The Court of Appeal, while acknowledging that the threshold for establishing custody rights was low, determined that the father was not involved in the child’s life in a way that demonstrated the “stance and attitude” of a parent.
[23] In the case at bar, the father lived with the mother and Noel. The fact that he was employed and went to his place of work every day, does not change his custodial rights. Unlike the Jackson case, the father provided financial support. He had a relationship with Noel. He also obtained an order from the Pennsylvania Court and had custodial rights pursuant to that order.
[24] I find that when the mother returned to Manheim, Pennsylvania, three weeks after Noel’s birth, she intended to reside in Manheim with Noel and with the applicant. There is no evidence to support her position that she was manipulated into moving to the United States. Even if there was, the fact that Noel was resident with the parties, who lived together in Pennsylvania, for ten months prior to the removal to Brampton, is determinative. Thus, Manheim, Pennsylvania is the habitual residence of the child.
FATHER’S CONSENT OR ACQUESIENCE TO NOEL’S REMOVAL
[25] The mother argues that article 13 (a) of the Hague Convention is engaged. The mother says that the father took too long to bring proceedings under the Hague Convention and thus he acquiesced. I give no weight to this submission. Article 12 of the Convention stipulates that the proceedings must be commenced within a one year period. The proceedings were commenced within a few weeks of the removal, thus this cannot be relied upon to prove acquiescence.
[26] Interestingly, the mother states in her affidavit that she called her mother to help her return to Brampton because “based on past experience, I knew that the Applicant would not allow me to go back home with the baby.” She went on to say: “Before I left, I wrote a lengthy note which I also emailed to the Applicant explaining why I had no choice but to leave him.”
[27] In order to establish acquiescence or consent, the mother must prove that she had the consent of the father to move when she did so. When one has removed a child secretly it is very difficult to establish consent or acquiescence. See: Schroeder v. McCormack, supra; Solem v. Solem, 2013 CarswellOnt 1096 (C.J. Gen.Div) and Cannock v. Fleguel, 2008 ONCA 758, 2008 CarswellOnt 6633 (Ont.C.A.)
[28] I find that the father did not consent or acquiesce to the mother and Noel leaving Manheim and returning to Brampton.
GRAVE RISK OF EXPOSURE TO PHYSICAL OR PSYCHOLOGICAL HARM
[29] The threshold required by Article 13(b) of the Convention is extremely high. In Paschel v. Paschel, 2017 ONSC 6952, 2017 CarswellOnt. 18370, the mother removed the children from Tennessee to Ontario and asserted an Article 13(b) defence. Justice Trimble said:
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.
[30] The mother submits that if she returns to Pennsylvania there is a serious risk of grave risk that Noel’s return would expose him to physical and psychological harm. The mother details the abuse that she suffered at the father’s hands at paragraph 19 of her affidavit. She says:
a. He often told me to “be quiet and to follow my gender role”;
b. He spit, choked, grabbed, smacked, and pushed me when we argued;
c. He would not give me spending money and controlled how I spent my money;
d. He would scream and yell at me in front of his family;
e. He would punch objects when he became enraged;
f. He locked me out of our bedroom, gave me the silent treatment for hours;
g. He often demanded that I leave the house at late hours of the night and to go stay at a hotel;
h. He threw my belonging on the floor and demanded that I leave;
i. He called me a “bitch”, a “whore”, a “psychopath” and other hurtful names in private and in front of the family.
[31] The mother says the police were called on three occasions. The police involvement considered of an attendance at their residence in July 2017 after being called by the mother because there was an altercation involving her family; a call to the police by the father in September 2017 when the mother and the child went to New York city; and an attendance in November 2017 when a neighbour who was a police officer heard arguing and called the police.
[32] There were also no occasions when the mother left the residence to stay in a hotel.
[33] As well, when the mother commenced an Application in the Ontario Court of Justice in Brampton, in paragraph 8 of form 35.1, Affidavit in Support of Claim for Custody or Access, she made no mention of abuse despite the clear requirement for a description of any violence or abuse that the court should consider in assessing a person’s ability to act as a parent.
[34] The mother’s affidavit includes several blog posts that she wrote and posted on the internet. There is also a letter from Family Services of Peel confirming her attendance in counselling. She registered for counselling on December 13, 2016 in the Violence Against Women Program and attended her first session on January 11, 2017. She also attended on February 8, 2017, February 22, 2017, April 5, 2017, January 24, 2018, February 12, 2018, March 5, 2018 and March 26, 2018. The letter states in part:
“You stated at 4 months of pregnancy, that you had no plans of reconciling with your baby’s father, due to the alleged abused. You expressed being fearful of being away from all your family in Canada, with limited support and resources, and having the abuse continue.”
[35] She did however, return to live with the father after this statement. All the attendances for counselling took place when the parties were not together. The letter itself is not corroboration of abuse. The writer simply details what she was told by the mother.
[36] Even if I were I to accept everything that the mother says as being true, there is nothing to suggest that a Pennsylvanian Court will not protect her rights. In fact the opposite is true. The father filed an affidavit of Osvaldo Espinosa, an attorney practising in Lancaster, Pennsylvania who deposes to the fact that Pennsylvania law provides for both civil and criminal remedies in cases of domestic violence. Under the Pennsylvania Domestic Relations Code protection from abuse is available for up to 36 months.
[37] Mr. Espinosa also deposes to the fact that there are services available to victims of domestic violence and/or abuse. Finally, he states that the Domestic Violence Clinic in Lancaster County ensures domestic violence victims full access to the court system.
[38] After the hearing of the motion, I advised the parties that I was ordering the mother to return to Pennsylvania with the child. I made the following endorsement:
For reasons to be provided, the Applicant’s Hague Convention Application is granted. The child is to be returned to Pennsylvania where all legal issues regarding custody and access are to be dealt with. The Applicant has undertaken to secure an apartment for the Respondent and Noel in Manheim and to cover the rent of $725 US per month without prejudice to his claims in Pennsylvania. The mother and child will return to Pennsylvania by June 1, 2018. I will deal with costs in my written reasons. On a without prejudice basis the child is to stay in the primary residence of the mother pending a further Order of the Pennsylvania Court. The father is to have reasonable access.
[39] Father’s counsel provided a draft order. An order will issue in the form attached as amended by me.
[40] The father was successful on this application. The mother should not have removed the child from Pennsylvania without an Order from the Pennsylvanian Court permitting her to do so. The Applicant submits that his full recovery costs are $58,000; partial recovery $44,000. From the volume of materials used on this Application I am sure that is true, however, it is excessive in the circumstances.
[41] An order shall issue that the respondent pay the applicant costs in the amount of $17,000, payable $200 per month commencing September 1, 2018 until she is employed full-time at which time she will pay $500 per month until paid in full.
Van Melle, J.
Date: May 11, 2018
COURT FILE NO.: FS-18-0063
DATE: 2018-05-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SINGH and RAMOTAR
BEFORE: VAN MELLE, J.
COUNSEL: M.J. Stangarone and K. Maurina, for the Applicant
J. Mohammed, for the Respondent
ENDORSEMENT
Van Melle, J.
DATE: May 11, 2018