NEWMARKET COURT FILE NO.: FC-19-58086-00
DATE: 20190813
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marie-France Caroline Trottier
Applicant
– and –
Christopher Kyle Streeter
Respondent
Matthew Giesinger, Counsel for the Applicant
Rose Faddoul, Counsel for the Respondent
HEARD: August 6, 8 and 9, 2019
RULING ON MOTIONS
MACPHERSON J.:
Relief Requested
[1] Mr. Streeter brings an Application seeking an order that the children, E. born in 2005 and S. born in 2008, be returned to their habitual residence in Orlando, Florida, U.S.A pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).
[2] Ms. Trottier and the children currently reside in York Region and she asks the court to exercise its discretion to permit the children to reside in Ontario pursuant to Article 13 of the Hague Convention.
Decision
[3] For the reasons that follow, E. and S. shall be returned to their habitual residence in Orlando, Florida, U.S.A. on or before August 18, 2019 pursuant to Article 12 of the Hague Convention.
Background
[4] Ms. Trottier is a Canadian citizen who moved to Orlando, Florida in 1992. Mr. Streeter is a citizen of the United States and has resided in Orlando, Florida since childhood.
[5] The parties were married on July 10, 2004 in Orlando, Florida and separated in April 2010.
[6] There are two children of the marriage: E. born in 2005 (14 years old) and S. born in 2008 (11 years old).
[7] The parties were divorced by order of Circuit Judge Timothy R. Shea of the Ninth Judicial Circuit Court of Florida on October 24, 2012. The parties and the children were residing in Florida at the time of the separation and continued to reside in Florida following separation.
[8] On April 16, 2012 the parties negotiated a shared parenting agreement where the children would spend 60% of the time with Ms. Trottier and 40% of the time with Mr. Streeter. This agreement was incorporated into an order dated October 24, 2012. The arrangements set out in the October 24, 2012 order were amended by the Parenting Plan dated July 10, 2015 and resulted in a 50 / 50 shared parenting arrangement including shared parenting responsibility. In addition, the parties agreed to a provision that precluded either parent from travelling with the children for more than two weeks without the prior written consent of the other parent. Further, the parties agreed that any relocation of the children must be sought pursuant to Florida Statutes. The Parenting Plan was not ratified by the courts but was signed by both parties and both parties complied with the conditions until 2018.
The Relocation
[9] On February 27, 2018 Ms. Trottier was evicted from her apartment in Florida and spent some time with various friends. The children, E. and S., started residing full time with Mr. Streeter. In or about March 2018 Ms. Trottier was unable to continue residing with friends and Mr. Streeter took her into the home as well. They all remained living in the home together until July 21, 2018.
[10] On July 21, 2018 Ms Trottier, without the knowledge of Mr. Streeter, drove the children from Florida to Canada. She did so without insurance and with a suspended driver’s licence. Ms. Trottier did not advise Mr. Streeter that she was leaving. Mr. Streeter states that he was exercising his custodial rights under the Parenting Plan at the time Ms. Trottier and the children relocated to Ontario, Canada. He states that at no time did he consent to Ms. Trottier and the children moving to Canada. Ms. Trottier did not advise Mr. Streeter that she and the children were in Canada until July 23, 2018 when she sent him an email.
[11] The email states, in part: I’m sorry it had to be this way, but I felt that I had to get the children as far away from you as possible” “I explained to E. that he was legally old enough to make his own choice, and it took him a few weeks to finally decide he’d had enough. I talked about it openly with S. as well, and she didn’t feel comfortable around you now that she is becoming a young woman. They both kept saying on the drive up that they felt less guilty for leaving the further away we got.” Ms. Trottier did not disclose her address in the email.
Florida Orders
[12] Following receipt of the email, Mr. Streeter immediately took steps in the Florida Courts to have the children returned and for an order of contempt against Ms. Trottier. On September 12, 2018 Circuit Judge Tanya Davis Wilson made an order that the children be returned to Mr. Streeter within three days, that the children had been unlawfully removed from the court, and that Ms. Trottier violated the relocation statute and removed the children without a court order.
[13] On September 17, 2018 Circuit Judge Tanya Davis Wilson made an order finding Ms. Trottier in contempt and made an order that the children reside with Mr. Streeter 100% of the time until further court order.
[14] On September 21, 2018 Circuit Judge Tanya Davis Wilson made an order that the Sheriffs of Florida or other authorized law enforcement agency assist Mr. Streeter in obtaining custody of the children and placing the children in Mr. Streeter’s physical care.
[15] On January 17, 2019 Circuit Judge Tanya Davis Wilson made an order finding Ms. Trottier in contempt and made an order for show cause.
[16] Mr. Streeter filed an application pursuant to the Hague Convention. The Ontario Central Authority for the Convention formally accepted the case in writing on October 11, 2018.
[17] On June 19, 2019 the Office of the Children’s Lawyer was appointed to represent the interests of the children in the Hague Convention proceeding.
Agreement
[18] The parties agree that Orlando, Florida is the children’s habitual residence and that Ms. Trottier brought the children to Canada without Mr. Streeter’s consent.
Law
[19] The Hague Convention is an agreement of signatory nations to secure the prompt return of children whose parents have removed them from the country that is their habitual residence bringing them to another jurisdiction.
[20] Both Canada and the United States of America are signatory nations.
Article 3
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.
Article 4
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.
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.
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 opposes 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. 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.
Analysis
[21] In Office of the Children's Lawyer v. Balev, 2018 SCC 16, the Supreme Court of Canada makes the following observations at para. 28:
The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful: (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention.
[22] The threshold considerations, therefore, are whether Mr. Streeter has satisfied the conditions for the return of the child under Articles 3 and 4 of the Hague Convention. If these conditions are satisfied then Articles 12 and 13 of the Hague Convention are relevant to this proceeding.
[23] The parties concede, through agreement, that Orlando, Florida is the habitual residence of S. (11) and E. (14). Further, there was a joint parenting plan dated July 10, 2015 that resulted in: a) a 50 / 50 shared parenting responsibility; b) neither parent was permitted to travel with the children for more than two weeks without the prior written consent of the other parent; and, c) any relocation of the children was to be sought pursuant to Florida Statutes. The children were residing with and in the home of Mr. Streeter at the time they were removed from the United States. Accordingly, the requirements under Articles 3 and 4 of the Hague Convention are established.
[24] Article 12 of the Hague Convention requires the judge in the requested state to order “the return of the child forthwith”.
[25] Ms. Trottier requests the court to exercise its discretion not to return the children to the United States pursuant to Article 13 of the Hague Convention. The central dispute in this case is whether the exceptions set out in Article 13 are made and, if so, should the court exercise its discretion to refuse to return the children on these grounds.
[26] The exceptions can be summarized as follows:
Article 13 (a): There is grave risk that returning the children to Florida would expose the children to physical or psychological harm or place the children in an intolerable situation; and
Article 13 (b): The children are of sufficient age and maturity and object to being returned.
Article 13 (a) Is there a grave risk that returning the children to Florida would expose the children to physical or psychological harm?
[27] Ms. Trottier has the onus of establishing that a return of the children to Florida would expose them to a grave risk of harm.
[28] In Andegiorgis v. Giorgis, 2018 ONCJ 965, Justice Pawagi stated that the threshold for the test is very high.
[29] In Jabbaz v. Mouamman, (2003), 2003 37565 (ON CA), 38 R.F.L. (5th) 103 (Ont. C.A.), the court referred to an intolerable situation as “an extreme situation that is unbearable; a situation too severe to be endured.”
[30] Ms. Trottier states that Mr. Streeter was mentally abusive to the children and, on occasion, slapped E.. Her statements are non-specific, broad generalizations. She indicates that Mr. Streeter would yell in the home and, she concedes, that she also yelled at the children in the home. Mr. Streeter denies ever hitting E. or S. for that matter. He concedes that he raised his voice with the children, from time to time, as part of his parenting strategy.
[31] Ms. Trottier also alleges that Mr. Streeter is an alcoholic. During cross-examination, however, she described him as a social drinker up until he lost his job in 2018.
[32] Mr. Streeter denies being an alcoholic.
[33] Mr. Streeter worked for much of the time the children were in his care. There is no evidence that alcohol consumption in any way interfered with his employment. There is no evidence of criminal activity associated with alcohol consumption. There is no corroborating evidence from third parties or service providers that Mr. Streeter has an alcohol addiction. Indeed, despite the fact that the family was living with very tight resources and with the children present in the home, Ms. Trottier states that she would purchase beer for Mr. Streeter from time to time. Further, Ms. Trottier voluntarily placed the children in Mr. Streeter’s care in February 2018. I am not convinced, on a balance of probabilities, that Mr. Streeter has an addiction to alcohol. Nor am I convinced that his alcohol consumption in any way placed the children at risk.
[34] Ms. Trottier describes Mr. Streeter as having narcissistic personality disorder. In her affidavit filed she states: “I struggled to make sense of the Respondent’s (Mr. Streeter’s) accusations in his affidavit. The disjointed facts and distant memories, peppered with bold claims is indicative of Narcissistic Personality Disorder, and such behaviour is the driving force behind the request to permit relocation with a restraining order against the Respondent.” Mr. Streeter denies the allegation. Ms. Trottier is not a medical doctor and there was no evidence that Mr. Streeter was ever diagnosed with narcissistic personality disorder. Further, Ms. Trottier did not offer evidence to establish grave risk of harm to the children in the event Mr. Streeter has such a diagnosis.
[35] Ms. Trottier stated in her affidavit that the children were present on many occasions when Mr. Streeter and his cousin got into fist fights. Under cross-examination, however, she testified that there was only one occasion where Mr. Streeter and his cousin almost became physical. Indeed there was no evidence that law enforcement officers ever attended the home, and no evidence of child protection authorities ever attending the home. It is contradictory for Ms. Trottier to claim that the children are at grave danger in the home of Mr. Streeter when she placed the children there, on her own volition, for months, and moved in herself.
[36] In her affidavit sworn July 29, 2019 Ms. Trottier states as follows: “I had to take the very difficult and calculated risk in leaving the Respondent, as it became evident that he would not agree to allowing relocation of the children even though it would be in their best interests. The Applicant (Ms. Trottier) began making enquiries about how to safely get to Canada in mid-April.” … “As the Applicant had no financial means to retain an attorney, there was no feasible option to obtain a court order requesting permission to the relocation.”
[37] After considering the evidence I cannot conclude that the children would be at risk of harm if returned to Florida. Therefore I cannot conclude that Ms. Trottier has even come close to the very high threshold of establishing the children would be at grave risk of harm if returned to Florida. The children did not identify concerns about being abused by their father. There were no police reports of abuse. There were no medical reports of abuse. There was no corroborating evidence of the abuse. Indeed Ms. Trottier’s statements are broad and terribly lacking in specificity. Her evidence amounts to no more than bold allegations, unsupported by any corroborative evidence.
Article 13 (b) Should the court exercise its discretion to refuse to return the children to Florida if the children object to a return and have attained an age and degree of maturity at which it is appropriate to take into account their views?
[38] In Andegiorgis v. Giorgis, supra Justice Pawagi states:
Courts differ on whether only “exceptional” circumstances will qualify, but it does not appear to be disputed that the reasons must at least be “substantial”. As MacKinnon J. noted in Garelli v. Rhama, 2006 13555 (ON SC), 2006 CarswellOnt 2582 (Ont. S.C.J.), in cases where effect was given to the child’s objections, the reasons for the objection were substantial, “important psychological, language and educational factors, or were related to parental misconduct by the parent seeking the return of the child.”
[39] E. is 14 and S. is 11.
[40] The Office of the Child’s Lawyer (“OCL”) has been involved since the order of Justice Kaufman dated June 19, 2019. Given the urgency of the matter and the tight timelines, the OCL process was truncated. The parents were interviewed by telephone and the children were interviewed three times in 10 days. All three interviews with the children occurred at Ms. Trottier’s home. The OCL did not obtain information from collateral sources, save and except for the children’s report cards for the 2018 – 2019 academic year. Accordingly, no other family members were interviewed, and no teachers or medical professionals were contacted.
[41] The OCL found that E. and S. had been influenced by Ms. Trottier but still found their statements independent.
[42] The children’s views and preferences must be examined within the context in which they were received. The children had no contact with Mr. Streeter from July 2018 until he started having Skype access in June 2019 – a period of 11 months.
[43] Ms. Trottier testified that she involved both E. and S. in the decision to move to Canada before they left. This was kept secret from Mr. Streeter by all three. The children struggled with this and, as stated in Ms. Trottier’s affidavit, began to feel less and less guilty the further they were away from Florida.
[44] Ms. Trottier indicates that she disparaged the father to the children. Indeed, S. told the OCL that she asked her mother and E. to stop speaking negatively about Mr. Streeter at the dinner table. In testimony, quite shockingly, Ms. Trottier stated that she acceded to S.’s request and only spoke disparagingly of Mr. Streeter to the children at places other than the dinner table which was “sacred”.
[45] Ms. Trottier also stated that she spoke openly and freely with the children about the court process and the possibility of her being arrested upon return. Indeed, E. was so upset by the possibility of Ms. Trottier being arrested in the United States, that on September 24, 2018 he had a panic attack that required evaluation at Trillium Health Partners.
[46] Ms. Trottier also told the children that Mr. Streeter would grope her in the home. She testified in cross-examination that groping amounted to him slapping her on the buttocks from time to time.
[47] Ms. Trottier stated to S., in response to Mr. Streeter advising S. that he would get a bigger house that he was simply trying to bribe her. Further, Ms. Trottier advised E. that Canada would be safer than Florida.
[48] In reviewing S.’s reasons for wanting to stay in Canada, she stated: her mom told her that she suggested to her dad that he compromise by letting her and E. stay in Canada and visit their Dad in Florida sometimes; she wants her Dad to be a better person and accept seeing them for one or two weeks as opposed to not at all; the only thing that would make her want to return to Florida would be if her Dad changed and looked her Mom in the eye and apologized, and; her Dad has to say sorry to her Mom for saying she kidnapped them.
[49] In reviewing E.’s reasons for staying in Canada he stated: he is very concerned his mother will be arrested if she returns to the US and be charged with kidnapping.
[50] There is no doubt that Ms. Trottier influenced the children’s views and preferences. It is under that backdrop, that it is necessary to look at the children’s reasons for their objection to returning to Florida.
[51] S. stated that she loved and missed her father and her paternal grandparents in Florida. However, when describing her life in Florida, and the reasons she wanted to stay in Canada I was able to summarize her objections to returning to Florida, U.S.A. as follows: a) her worst memory in Florida was having to mow the lawn; b) before they left, they had a family meeting and her dad said they couldn’t go to the Science Centre or movies anymore because they cost money; c) when their dog Domino died, Mr. Streeter was not sympathetic and told them it wasn’t a big deal; d) when they lived together their dad yelled at their mom most of the time; e) her dad would yell at E.; f) her dad used to drink and smoke a lot; g) her dad needs to take responsibility for his addictions; h) on Saturdays, from the time her dad got up, he would have a beer in his hand and be smoking a cigarette; i) they had a toxic relationship with their dad because of the smells and him smoking cigarettes; j) their dad would sometimes smoke in the house and she would sometimes get a scratchy throat; k) her dad would be drinking and, sometimes, would be tipsy, unable to solve a math problem, unable to think clearly and would sometimes lose his balance when he was trying to walk; l) she and her dad never really had conversations; m) sometimes her dad and his cousin would get into verbal fights; and, n) she feels safe in Canada.
[52] E. described his life in Florida and his reasons for wanting to stay in Canada and I was able to summarize his objections to returning to the US as follows: a) he has anxieties about going to school in the US because of school shootings; b) there were a number of vicious dog attacks near where they lived; c) the neighbourhood was sometimes chaotic; d) there was a high level of crime; e) when they all lived together it was a toxic situation; f) his dad smoked a lot and would sometimes light up in the house; g) he thought his father was an alcoholic; h) his dad sometimes lied; i) he had a lot of chores to do; j) his dad played a lot of video games which was toxic; k) his father had not been a good father figure; l) his father was not making good use of his money; m) his dad was being manipulative; n) they were in poor living conditions; o) there were cockroaches in the house and it smelled; and, p) his dad and his cousin would sometimes argue and one time got into a fistfight.
[53] Both children had positive things to say about their father. S. stated that her second choice, after living in Canada, would be for the entire family to live in a larger house in Florida. She described the 50 / 50 parenting arrangement they previously had as the “perfect balance”. E. described his father as carrying his own weight with respect to chores, and that he was sensible and ambitious. E. indicated that if returned to Florida he would be upset but would go with resignation. When Ms. Trottier asked E. if he wanted to live in Canada he stated yes, because it’s Canada: “you know snow, maple syrup, moose”.
[54] E. is described as a typical 14 year old boy. I believe he has the maturity for his views and preferences to be considered in this Hague Convention Application. S. is described as a typical 11 year old, perhaps a little more mature than her stated age. I believe she has the maturity for her views and preferences to be considered in this Hague Convention Application.
[55] I find, however, that the children’s views and preferences are not independent. They have been significantly influenced by Ms. Trottier. Surreptitiously co-opting them in the decision to return to Canada created the foundation of an “us versus him” mentality. Ms. Trottier’s disparagement of Mr. Streeter over the course of many months likely further fuelled the divide. The lack of contact between the children and Mr. Streeter served to undermine the relationship between the children and Mr. Streeter with one explicit goal. The children’s knowledge of the court process and concern that Ms. Trottier might be arrested if she returned to the US significantly impacted on the children’s objection. Accordingly, I do not find the children’s views and preferences in relation to their objection to be independent.
[56] Even if the children’s views and preferences are independent, they are but one factor to be determined in the context of the objection. Children need to have a voice but it is important not to confuse having a voice with having a choice. Further, the objection must be substantial. This is not a custody application, it is a Hague Convention Application. In my opinion it is in only exceptional circumstances that there should be a refusal to return the children.
[57] I was not left with the impression that there was grave harm or imminent risk in Florida. In the children’s disclosure to the OCL there was no identified emotional trauma and neither were expressing a fear of returning to Florida. I was left with a larger impression of why they had their desire to remain here – to please Ms. Trottier and because of the exceedingly relaxed parental rules that she has engaged since relocating to Canada. In fact Ms. Trottier was searching for jobs in Montreal and Toronto for months prior to leaving Florida which suggests that the reason had less to do with genuine concerns with the children being at risk and more to do with her lack of employment in Florida. The evidence in this case does not come close to establishing that the objections are substantial. Indeed the objections are relatively minor in nature or could easily be removed by providing assurances. For example, E. should have been reassured that the school shooting in Florida was 600 miles away from Mr. Streeter’s home.
[58] This is the type of case that the Hague Convention was meant to deter. In Office of the Children’s Lawyer v. Balev, the Supreme Court of Canada stated at para. 23:
… International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. …
[59] That is precisely what happened here. The children, who had previously only been to Canada once - for a week - were removed from their community, their schools, their father, and their paternal grandparents. The children were the unwitting participants in the scheme. It was contrary to a custodial arrangement and followed a period of time where Ms. Trottier, finding herself homeless and unemployed, was taken in by the kindness and decency of Mr. Streeter. The old saying goes ‘no good deed goes unpunished.’
[60] Rather, it was Ms. Trottier who put the children at risk and showed complete disregard for the law when she drove from Florida to Canada without vehicle insurance. She continues to drive the children despite her suspended licence and without vehicle insurance, contrary to the law. Over the course of many months Ms. Trottier thumbed her nose at court orders from Florida. The court order from Ontario regarding Mr. Streeter’s access to the children through Skype, made on consent, was not strictly adhered to. The children sometimes missed Skype or were late. Counselling, although ordered, was not followed. Ms. Trottier’s explanations for the missed Skype access included the children not wanting to have Skype as frequently and her explanation for one of the missed Skype access – we were trying to enjoy the beautiful day. Court orders are not suggestions.
[61] Finally, burdening the children in the decision to move to Canada without the knowledge of Mr. Streeter was unjust. Disparaging a parent is intolerable. Permitting 11 months to pass without any contact between the children and their father is unacceptable and these children will, over the course of time, no doubt, suffer from her actions.
Order
[62] There shall be an order as follows:
E. and S. shall be returned to their habitual residence in Orlando Florida on or before August 18, 2019 pursuant to Article 12 of the Hague Convention.
Mr. Streeter shall collect the children in Canada and return them to the United States.
Mr. Streeter shall advise Ms. Trottier of his travel plans and the date and time (on or before August 18, 2019) the children will be collected from Ms. Trottier’s care.
Any police force having jurisdiction shall have the authority to locate the children and place them in Mr. Streeter’s physical custody.
Ms. Trottier shall provide Mr. Streeter with the children’s passports and any necessary travel documentation to permit the children to travel to the US.
Costs
[63] If the parties cannot agree on the issue of costs, I shall consider the request for costs. Mr. Streeter shall serve on Ms. Trottier and file in the Continuing Record his written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. Ms. Trottier shall serve on Mr. Streeter and file in the Continuing Record his written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. Mr. Streeter’s Reply, if necessary, shall be within 5 days of the delivery of Ms. Trottier’s written submission and limited to one page. If no submissions are received within the time period set out herein, there will be no costs
Justice G.A. MacPherson
Released: August 13, 2019