minicounsel

Court File No.: FC-14-663-02 Date: 2018-10-11 Corrected Date: 2018-10-15 Ontario Superior Court of Justice

Between: BILAL AHMED MALIK, Applicant – and – HIBBA TUL HAQ, Respondent

Counsel: Matthew Giesinger, for the Applicant Emma Bender, for the Respondent Lori Aylwin, for the Office of the Children’s Lawyer

Heard: September 10, 17, 20 and 21, 2018

Corrected decision: The text of the original decision was corrected on October 15, 2018 and a description of the corrections is appended

F. GRAHAM J.

Introduction and Issue

1The parties are the parents of six year-old T.

2The parties and T resided together in New Jersey from December 27, 2017 until May 24, 2018 when Ms. Haq removed T to Ontario without the knowledge or consent of Mr. Malik.

3Mr. Malik applies pursuant to Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (Hague Convention) for an order for the immediate return of T to New Jersey and certain ancillary orders.

4Ms. Haq seeks a dismissal of Mr. Malik’s application.

Factual Background

5Mr. Malik is a resident of New Jersey and an American citizen. Ms. Haq is a Canadian citizen.

6The parties married in New Jersey in 2010 and resided there following their marriage.

7T was born in New Jersey on January 31, 2012. He is a dual citizen of the United States of America (U.S.A.) and Canada.

8According to Mr. Malik, Ms. Haq experienced some mental health issues following T’s birth. He says that as a result of a suggestion made by friends, the parties decided that it would be in the best interests of Ms. Haq and T for them to stay with Ms. Haq’s family in Ontario for two months. He says that he took Ms. Haq and T to Maple, Ontario for that purpose on April 12, 2012, but Ms. Haq refused to return with T to New Jersey at the end of the two months.

9According to Ms. Haq, Mr. Malik slapped her across the face once while she was pregnant and once after T was born. She says that she did not report the assaults because of the possible consequences to herself, T, and Mr. Malik. She says that the parties and T left New Jersey on March 14, 2012 to visit her family. She says that Mr. Malik abandoned her and T in Ontario and that Mr. Malik made no effort to have access with T for several years. She says that she and T stayed with her family for a few months and then moved to an apartment across the street from her parents’ home.

10Mr. Malik says that he did not abandon Ms. Haq and T. He says that he and Ms. Haq engaged in a religion-based reconciliation effort from 2012 until 2014 until he finally realized that Ms. Haq was not serious about reconciliation. At that point, he commenced a divorce action in New Jersey.

11Shortly thereafter, in August 2014, Ms. Haq commenced a custody, access, and support action in Barrie, Simcoe County, Ontario. At that time, she and T were residing in Bradford, Simcoe County.

12Under the auspices of the Ontario action, in April 2015, Ms. Haq obtained, on consent, a without prejudice temporary order for care and control of T and child support. In October 2015, Mr. Malik consented to pay spousal support on a temporary without prejudice basis. Mr. Malik has been, and is, steadily employed. Ms. Haq has been, and is, a full-time caregiver except while T is in daycare or school.

13Also under the auspices of the Ontario action, Mr. Malik secured gradually increasing access with T pursuant to a number of consent temporary orders.

14In April 2015, access commenced on alternate weekends for three hours on Saturday and three hours on Sunday at a supervised access centre. In June 2015, access was expanded to alternate weekend unsupervised day access in Simcoe County for five hours on Saturday and five hours on Sunday. In October 2015, unsupervised access in Simcoe County was expanded to alternate weekends from Saturdays at 12 noon until Sunday at 3 p.m. In February 2016, access was expanded to alternate weekends from Friday at 6 p.m. until Sunday at 12 noon (to commence on April 8, 2016) with telephone access three times per week and additional summer access from July 30, 2016 to August 10, 2016.

15In February 2016, the parties were divorced on an uncontested basis in New Jersey.

16T attended junior kindergarten in Bradford during the 2016-2017 school year.

17Commencing in December 2016, the parties reconciled to some degree while Ms. Haq and T were residing in Ontario and Mr. Malik continued to reside in New Jersey. The parties became intimate again and, in Mr. Malik’s view, the parties and T were a family again.

18On January 20, 2017, the Ontario action concluded by way of a consent final order. Ms. Haq was granted sole custody of T. Mr. Malik’s access was expanded to alternate weekends from Friday at 6 p.m. until the commencement of school, or 10 a.m. on non-school days, on Monday. Additional access could be arranged between the parties. Access was restricted to Ontario without advance written consent from Ms. Haq for access outside of Ontario. Mr. Malik was ordered to pay child and spousal support. In addition, the consent order stipulated; all previous orders issued in the U.S.A. were deemed null and void, neither party could proceed ex parte in the U.S.A. or Canada, and Mr. Malik would provide 30 days’ notice before bringing an application for custody or access in the U.S.A.

19Mr. Malik says that he consented to Ms. Haq having sole custody of T because he understood that the final custody order would be null and void if they fully reconciled.

20According to Mr. Malik, in August 2017, the parties and their parents met at Ms. Haq’s parents’ residence in Ontario to discuss their reconciliation. He says that Ms. Haq became angry with her parents and his parents and, as a result, as far as he was concerned, the reconciliation was over, which was fine with him.

21T attended senior kindergarten in Bradford from September to December, 2017.

22Mr. Malik says that in September Ms. Haq begged him to reconcile again and he agreed. As a result, he paid for Ms. Haq and T to fly to New Jersey on December 27, 2017.

23Ms. Haq agrees that she and T flew to New Jersey on December 27, 2017 and that it was her intention to reconcile with Mr. Malik and reside with him and T in New Jersey on a permanent basis.

24T attended senior kindergarten in Edgewater Park, New Jersey from January to May 2018.

25The parties arranged to be, and were, re-married on the first date available in Edgewater Park which was February 27, 2018.

26About two weeks later, Mr. Malik took Ms. Haq to see his lawyer, Mr. Khalid, about commencing an immigration application for Ms. Haq. Mr. Khalid says that Ms. Haq was upset and did not want to proceed with an immigration application, so the parties left.

27He says that a few days later, Mr. Malik told him over the telephone that the parties wanted to proceed with an uncontested divorce. Soon thereafter, the parties returned to his office and Ms. Haq told him that she did not want to stay with Mr. Malik. She repeatedly asked Mr. Khalid to change Mr. Malik’s attitude. Mr. Khalid says that Mr. Malik wanted to stay together with Ms. Haq. Mr. Khalid says that he tried to persuade Ms. Haq to work on the marriage. He says that she agreed to try and the parties left.

28Both parties describe their relationship in New Jersey as “toxic”.

29According to Mr. Khalid, a number of weeks later, the parties re-attended his office, both stating that reconciliation was not working and they wanted a divorce. He said that they discussed terms of separation including that T would stay with Mr. Malik and have access with Ms. Haq on alternate weekends in Edgewater Park and in Buffalo. He said that they discussed Ms. Haq paying for half of the cost of access. He said that he felt that was fair, although he knew nothing about her financial situation, because his client, Mr. Malik, paid all of the cost of access when T lived in Ontario and because Mr. Malik was not seeking child support. Mr. Khalid said that Ms. Haq cried throughout the meeting. He said that he told her that she could obtain independent legal advice but she insisted on continuing the discussion. At the end of the meeting he told the parties that he would draft an agreement within a few days for them to review. He said that the next day, Mr. Malik informed him that Ms. Haq had left with T. He advised Mr. Malik that he had not started to draft the agreement.

30Ms. Haq returned to Ontario with T on May 24, 2018.

31Mr. Haq obtained an ex parte order in New Jersey on June 7, 2018, requiring T’s return to New Jersey, granting Mr. Malik sole custody on temporary basis, and allowing Ms. Haq supervised access pending a mental evaluation. In his supporting affidavit for that proceeding, Mr. Malik mentioned the consent temporary orders in the Ontario action that provided him with increased access with T but he did not mention the consent final order of January 20, 2017.

32Ms. Haq says that she left New Jersey because life became intolerable at Mr. Malik’s parents’ home. She said that his mother controlled everything and Mr. Malik discussed their private marital matters with his mother. She says that she told him that they needed to have their own home and that he needed to listen to her rather than his mother but he would not change. She says he treated her “like a maid”. She says that Mr. Malik and his mother often verbally harassed her and his mother threatened violence to her and T. She says that T started wetting his bed while they lived in New Jersey.

33Ms. Haq also says that she and T became afraid because she saw two small guns under Mr. Malik’s bed and some syringes and a bottle of liquid in his bedroom. She says that she was worried about their safety because Mr. Malik had assaulted her in the past and had threatened to kill her and T. She says that she felt trapped because she had no legal right to stay in the U.S.A. She says that T told her that he did not want to stay with Mr. Malik’s parents, so she decided to return to Ontario with T for their safety and wellbeing. She says that she believed that the final custody order remained in force and that she had the right to take T with her, particularly since there was no term in the order restricting her mobility with T. She says that she removed $480 from the parties’ joint account and obtained a ride from a friend to a bus station in New York and then took a bus to Ontario and eventually to Bradford where she and T are now living with her sister and her sister’s two children.

34Ms. Haq says that if T is returned to New Jersey she fears that Mr. Malik will disappear with T, or he will completely restrict her access with T, or he and his mother will punish T in an effort to punish Ms. Haq for trying to take T away from them.

35Mr. Malik says that Ms. Haq’s mental health deteriorated significantly in mid-March 2018 and she became increasingly hostile and combative and demanded a divorce.

36Mr. Malik says that he has strong concerns about T’s physical and mental wellbeing in Ms. Haq’s care. He says that T broke each of his arms within a year while in Ms. Haq’s care, T’s oral and body hygiene is terrible, and T is significantly delayed academically. He also says that Ms. Haq will not put a structure into place for T and she always feeds him fast food or hot dogs. He filed T’s New Jersey school reports to show that T did not know the alphabet, or numbers, and could not write individual letters or sound words out. He says that he enrolled T in tutoring (Kumon) in New Jersey. He also said that he arranged for T’s teeth to be cleaned in New Jersey but he could not improve other aspects of T’s care because Ms. Haq would not allow him to co-parent T. He says that she co-slept with T every night in New Jersey. He says that T wet his bed when he lived in Ontario but stopped when he was in New Jersey.

37He says that he took Ms. Haq and T to parks, restaurants, and hikes every weekend while they were in New Jersey and in April 2018 the family had an enjoyable trip to Seattle. He said that T has a best friend next door, and pets T loves, in New Jersey.

38He confirmed that Ms. Haq left with T the day after their final meeting with his lawyer. He found out that she had left when T’s school contacted him about T being absent.

39Mr. Malik says that when he first saw T again, in Ontario in August 2018, T had a large cut across his face. He also says that when he saw T in September 2018, T had burn marks on his face and was afraid to tell his father how he got them.

40He says that his father takes insulin injections and that Ms. Haq must have seen his father’s needles and insulin. He denies leaving any guns under his bed. He is a hunter but he keeps his guns locked in safes. He denies assaulting Ms. Haq.

41Suzanna McCarthy is a social worker clinician and investigator engaged by the Ontario Office of the Children’s Lawyer (OCL). She carried out an investigation in this case for the purpose of submitting a Voice of the Child Report (VOCR) and to assist counsel for the OCL. She did not carry out the more thorough investigation that is required for a full assessment of T’s best interests. She interviewed T on five occasions: once with OCL counsel present, once at T’s aunt’s home where he currently resides, once at the Bradford library with his father present, and twice at his school. She observed T interact with each parent. She reviewed various records provided by the parties.

42At each meeting, T was appropriately dressed, clean and well groomed. Ms. McCarthy found that he was an engaging and bright six year-old with a keen sense of humour. Ms. McCarthy reviewed T’s Ontario School Record (OSR) for junior and senior kindergarten and found that there were no developmental, health or hygiene concerns noted. At one meeting, T had a lunch packed by his mother. The lunch contained various healthy options including fruit and vegetables. At another meeting, T had some pink lipstick on his cheek, later determined to be the result of his mother kissing him goodbye. Mr. Malik asked him about the mark, saying, “Did you burn yourself, T?” T replied that there had been hot metal on his cheek. When Mr. Malik pressed him about what happened, T said that he did not know.

43T talked about living in Bradford before going on a trip to New Jersey. He said that he had friends in Bradford. He said that he was “mad” that it took so long to return from the trip to New Jersey because he missed his friends in Bradford.

44T referred to his cousins in Bradford as his brothers and sisters and recounted many stories about playing with them. He said that he loves his brothers a lot and that he “needs his brothers”. T mentioned that he has regular contact with his uncles in Bradford and that his aunts “just love” him. He said that he enjoys attending mosque in Ontario and that he likes to play basketball near the mosque.

45T said that he lived in New Jersey when he was a baby and, after he turned five years old, he went back to New Jersey for a little while. He said that he lived with his parents and grandparents. He said that he was shy with his grandparents because he does not know them very well. T said that his parents screamed at each other all the time in New Jersey. He said that when his father was home, he would spend time with him, talking with him, and sometimes go toy shopping with him. He said that he was required to stay in his bedroom and do nothing when his father was not home. He said that he did not like his mosque or school in New Jersey. He also said that “fun stuff” happened in the U.S.A, but not in Canada. He said that he wished his father lived in Canada.

46Ms. McCarthy observed that at times T appeared to be trying to balance his own needs and wishes with those of his parents. She noted a lack of consistency in some of T’s positions about where he would prefer to live and it became clear to her that each parent had tried to influence T with their own views and statements. Nevertheless, Ms. McCarthy concluded that T was able to give an independent and candid account about his life in Bradford and in Edgewater Park when answering simple questions about what he liked and did not like and while describing daily experiences.

47The information set out above is from the affidavits and the cross-examinations of Mr. Malik, Ms. Haq, Mr. Khalid and Ms. McCarthy.

Law – Hague Convention – “Habitual Residence”

48The Hague Convention is law in Ontario pursuant to section 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. (CLRA). Section 46(8) of the CLRA stipulates that if there is any conflict between section 46 and any other enactment, section 46 prevails.

49The preamble of the Hague Convention states that the signatory countries are firmly convinced that the interests of children are of paramount importance in matters relating to their custody and that the convention results from a common desire to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedure to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.

50Article 1 of the Hague Convention states that the objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

51Article 2 states that Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention and for this purpose they shall use the most expeditious procedures available.

52Article 3 states,

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in the particular operation of the law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

53Article 4 states,

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

54Article 5 states,

For the purposes of this Convention:

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

55Article 12 states, in part,

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.

56Article 13 states, in part,

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which 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 in the removal or retention; or

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

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

57Article 16 states,

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged with a reasonable time following receipt of the notice.

58Article 17 states,

The sole fact that a decision relating to custody had been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.

59Article 18 states,

The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.

60Article 19 states,

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody order.

61Article 20 states,

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

62The U.S.A. is a signatory to the Hague Convention.

63The Supreme Court of Canada has recently considered and provided direction about applications pursuant the Hague Convention in Office of the Children’s Lawyer v. Balev, 2018 SCC 16.

64The majority of the court noted, at para. 28, that,

the heart of the Hague Convention’s prompt return mechanism is Article 3….Crucially…the concept of habitual residence is not defined in the treaty,

and further, at para. 29,

If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:

The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
The child of sufficient age and maturity objects to being returned (Article 13(2));
The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and
The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

65The majority considered three different approaches for determining a child’s habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.

66With respect to “the parental intention approach”, the majority noted that this approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.

67In relation to “the child-centred approach”, the majority observed, at para 41, that,

The child-centred approach determines a child’s habitual residence Article 3 by the child’s acclimatization in a given country, rendering the intentions of the parents largely irrelevant. It is backward-focused, looking to the child’s connections with the state, rather than the more forward-looking parental intention model.

68Concerning “the hybrid approach”, which was adopted, the majority stated,

[The] hybrid approach holds that instead of focusing primarily or exclusively on the either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case (para. 42).

[The] application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention…The judge must consider all relevant links and circumstances – the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B (para. 43).

Considerations include “the duration, regularity, conditions and reason for the [child’s] stay in the territory of [a] Member State” and the child’s nationality…No single factor dominates the analysis, rather, the application judge should consider the entirety of the circumstances…Relevant considerations may vary according to the age of the child concerned: where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of” (para. 44).

The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children…However, recent cases caution against over-reliance on parental intention…parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence”…It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child…but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”…The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case” (para. 45).

69The majority added,

It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal (para. 46).

The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions…It requires the application judge to look to the entirety of the child’s situation. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed. The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted (para. 47).

[As to] the question of whether under the hybrid approach a child’s habitual residence can change while he or she is staying with one parent under the time-limited consent of the other…Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement. But the judge also considers all other evidence relevant to the child’s habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot shift the child’s habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal (paras. 72 and 73).

70The majority also stated,

The hybrid approach favours choice of the most appropriate forum. It focuses on the factual connection between the child and the countries in question, as well as the circumstances of the move – considerations that “mirror the closest connection test often used in determining the forum conveniens ”…This allows for custody and access disputes to be adjudicated in the most convenient forum with the best available evidence…The hybrid approach thus avoids the problem that a child may be found to be habitually resident in a country with which the child has little or no connection (para. 64).

There is no conflict between the hybrid approach and the “settled in” exception under Article 12…[which] comes into play only after habitual residence is determined, and functions to provide a limited exception to the requirement that a child wrongfully removed or retained be returned to his or her habitual residence. It may be that the hybrid approach habitual residence favours returning the child, but that the one year period and settling in indicate that the child should not be uprooted and returned to his or her place of habitual residence (para. 66).

Nor does the hybrid approach “ignor[e] the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention”…Habitual residence is determined immediately prior to the wrongful removal or retention… Subsequent links are relevant only to the exception under Article 12 (para. 67).

71The majority concluded,

In sum, the hybrid approach represents a principled advance on the parental intention and child-centred approaches. It recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary to consider parental intention in order to properly assess the child’s connections to a country (para. 68).

The application judge is best placed to weigh the factors that will achieve the objects of the Hague Convention in the case at hand. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi-factored hybrid approach (para. 70).

72Thus, this court has been instructed to take the hybrid approach to the determination of habitual residence by means of a factual contextual analysis.

Positions of the Parties

73Mr. Malik submits that the court should apply the definition of habitual residence found in section 22 of the CLRA.

74That section states,

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

(a) with both parents;

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

75He submits that the CLRA definition “survives” the Balev decision and suggests that the only place that falls within the section 22 definition of habitual residence in this case is New Jersey, under subsection (a).

76In the alternative, Mr. Malik submits that Ontario and New Jersey could both be T’s habitual residence.

77Mr. Malik also submits that none of the exceptions in the Hague Convention apply based on the evidence in this case – because some of T’s views were being influenced by both parents and because Ms. Haq’s allegations with respect to domestic violence, guns, and drugs were not credible or reliable.

78He also maintains that the consent final order of January 20, 2017 was rendered null and void by the parties’ reconciliation and re-marriage.

79Ms. Haq submits that T’s habitual residence is where Ms. Haq chooses to reside with T because she has sole custody on a final basis pursuant to the consent order of January 20, 2017. She submits that the fact that the parties subsequently reconciled and re-married does not render the final order null and void – particularly since the reconciliation was so brief. She argues, therefore, that T could not be wrongfully removed from New Jersey because Mr. Malik had no “custody rights” in New Jersey.

80Ms. Haq also submits that Ontario is T’s habitual residence given that he resided in Ontario for his entire life prior to May 24, 2018 other than two short exceptions; about 2 ½ months immediately after he was born, and about five months in 2018; for a total of about 7 ½ months. In comparison, she underlines, T resided in Ontario for about 5 years and 9 ½ months, between March 14, 2012 and December 27, 2017, and he attended junior and senior kindergarten in Bradford where he lived near various members of his mother’s family. On the other hand, she underlines, T has had only limited contact with his father’s parents which explains why T felt shy around them.

81Ms. Haq also submits, in the alternative, that if T’s habitual residence is New Jersey, the exception in Article 13(b) applies because returning T to New Jersey would involve a grave risk of harm to T and place him in an intolerable situation. She emphasizes her own evidence about domestic violence, guns, and drugs.

82OCL counsel submits that T’s habitual residence within the meaning of the Hague Convention immediately prior to his removal from New Jersey was Ontario. Counsel acknowledges that T’s parents intended to reconcile in New Jersey on a permanent basis commencing December 27, 2017, but submits that the attempted reconciliation failed and T’s well-established connections to Ontario, having lived there for more than five years, including his established relationships with his aunts, uncles, and cousins in Ontario, outweigh his parents’ intentions with respect to his five month stay in New Jersey.

Analysis

83The main difficulty with Mr. Malik’s reliance on section 22 of the CLRA for the determination of habitual residence is that in Balev the Supreme Court has specifically instructed judges to use the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and, as noted earlier, section 46(8) of the CLRA declares that in the case of a conflict between section 46 and any other enactment, section 46, i.e. the Hague Convention, prevails. In other words, this court is required apply the hybrid contextual approach when determining habitual residence within the meaning of the Hague Convention. As a result, the definition of habitual residence in section 22 of the CLRA does not apply.

84Although it is clear that both parents intended to reside permanently in New Jersey when Ms. Haq and T returned to New Jersey on December 27, 2017, their intention is only one factor in the contextual matrix.

85As it turned out, Ms. Haq and T resided in New Jersey for five months, during a failed reconciliation attempt, before returning to Ontario where T had resided for five years and 9 ½ months – almost his entire life – before going to New Jersey. His most important family connections, other than with his father, are in Ontario where he has meaningful connections with aunts, uncles and cousins. In comparison, he apparently does not have a close relationship with his paternal grandparents in New Jersey. T attended school in Ontario for sixteen months. In comparison, he attended school in New Jersey for five months. He has established friends in Bradford who he missed while he was in New Jersey. In comparison, he has not stated that he misses any friends in New Jersey. He enjoys going to mosque in Ontario. In comparison, he says that he did not enjoy going to mosque or to school in New Jersey.

86Despite being in a “toxic” domestic environment in New Jersey where his parents “screamed” at each other all of the time, T says that “the fun stuff” happened in the U.S.A. The court finds that he was likely referencing enjoyable weekend activities with his parents – away from his grandparents’ home. That explains, in part, T’s wish for his father to move to Ontario.

87Given the evidence of Ms. McCarthy, the court is not persuaded that Mr. Malik’s allegations about T’s physical safety, academic level, hygiene, or diet in Ms. Haq’s care, are reliable.

88The hybrid approach to determining habitual residence leads the court to find, after considering all of the circumstances immediately prior to T’s removal from New Jersey on May 24, 2018, including a parental intention to remain in New Jersey, that the focal point of T’s life and the family and social environment in which his life developed immediately prior to his removal from New Jersey was Ontario – not New Jersey.

89Accordingly, the court finds, on a balance of probabilities, that T’s habitual residence immediately prior to his removal from New Jersey was Ontario.

90Given the court’s conclusion about habitual residence, it is not necessary for the court to consider any of the exceptions in the Hague Convention. Thus, it is not necessary for the court to assess the reasonableness of Ms. Haq’s allegations about domestic violence, guns, drugs, or her concerns about T being hidden from her or punished for her actions.

91As well, it is not necessary for the court to determine whether the final custody order survived the parties’ re-marriage. Canadian cases about the effect of reconciliation on a final custody order are rare and none of those cases involve a re-marriage (see, for example, Ivan v. Leblanc, 2012 ONSC 4445). On one hand, it seems incongruent that a final custody order, predicated on the parties being permanently separated, could survive such a significant legal act as a re-marriage, which may imply a common intent of the parties that a final custody order is no longer valid, but, on the other hand, it may be implicit to the legal primacy of a child’s best interests in determining custody, that an unsuccessful reconciliation of relatively short duration, even including a re-marriage, might not render null and void a final custody order - particularly since it would be open to the non-custodial parent, either during or after the reconciliation, to bring a motion to change based on a material change of circumstances.

92Given that there may be at least some uncertainty about the current status of the final order of January 20, 2017, and given that, if this court had ordered T to be returned to New Jersey, Mr. Malik sought an order prohibiting the removal of T from New Jersey, and given the existence of the recent ex parte order in New Jersey, the court finds, based on the court’s parens patriae jurisdiction, that it is appropriate, and ancillary to the determination that T will not be ordered to be returned to New Jersey, to make a temporary without prejudice order prohibiting the removal of T from Ontario without advance written consent from Ms. Haq.

Decision

93Mr. Malik’s application under the Hague Convention for an order returning T to New Jersey and related orders is dismissed.

Costs

94If the participants are not able to resolve the issue of costs, any participant seeking costs may serve and file brief written submissions as to costs within 15 days, the other participants may serve and file brief written replies within 15 days of such service, and the participant seeking costs may serve and file a very brief written reply within 7 days thereafter.

Order

95On a temporary and without prejudice basis, T shall not be removed from Ontario without advance written consent from Ms. Haq. This order shall be issued forthwith without approval as to form or content.

F. GRAHAM J. Released: October 15, 2018

Corrections – October 15, 2018

Paragraph 79 now reads: “January 20, 2017”
Paragraph 89 now reads: “…the court finds, on a balance of probabilities, that…”

Malik v. Haq, 2018 ONSC 6047

Case Summary

Introduction and Issue

Factual Background