Newmarket Court File No.: FC-19-58978-01

Date: 2019-10-16

Ontario Superior Court of Justice

Between:

Gary Howard Vantriet Applicant

– and –

Hope Jemimah Ogutu Respondent

Counsel: Michael J. Stangarone / Meghann Melito, Counsel for the Applicant Inna Tsinman / Geoffrey Wong, Counsel for the Respondent

Heard: September 18 and October 4, 2019

Ruling on Motion

Jarvis, J.

[1] This is an application brought by the father, Gary Howard Vantriet (“the father”), under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, (entered into force 3 September 1953) [Convention], against the mother, Hope Jemimah Ogutu (“the mother”), seeking the return of the parties’ two infant children, (“the children”) from Ontario to Nevada.

[2] The mother has also brought a motion asking that the father’s application be dismissed and that she be awarded temporary care and control of the children. In the alternative, if an Order is made for the return of the children to Nevada, the mother asks that directions be given dealing with housing and support for the children and her, including non-harassment and supervised access by the father.

[3] The parties filed 13 affidavits (to which were appended numerous exhibits), facta and extensive briefs of authorities. In addition to the parties’ own affidavits, there were filed affidavits from family members, friends and Nevada attorneys. Copies of pleadings and affidavits from an ongoing court proceeding in Nevada were also filed and made available to the court. Notwithstanding my Order dealing with filing deadlines, the mother sought, and the father objected, to her filing further affidavits from her mother (sworn September 17, 2019) and from herself (sworn September 18, 2019). I overruled the father and allowed the mother to file and rely on those affidavits.

[4] After the motions were argued on September 18, this court requested copies of pleadings filed in the Nevada divorce court proceedings to which the parties had referred. Further evidence was filed by the parties and submissions heard on October 4.

[5] For the reasons that follow, I allow the father’s application and order that KOV and AOV be returned to Nevada. The mother’s motion is dismissed.

Background

[6] What follows is the relevant, mostly procedural, background to this Ruling. These are the undisputed facts:

(1) There are two children who are the subjects of this Application: KOV born March 19, 2017 and AOV born September 7, 2018. Both children were born in Ontario;

(2) The parties met in Hawaii in 2016. The father is an American citizen and the mother is a Canadian citizen;

(3) The parties married on August 10, 2017;

(4) The parties last cohabited in Nevada on or about April 6, 2019;

(5) On April 8, 2019 the mother obtained an order without notice to the father from the Second Judicial Court of Nevada (Family Division) for protection and was granted temporary primary custody of the children. Domestic violence was alleged;

(6) On April 10, 2019 the father filed the Ontario equivalent of an Application requesting a divorce and, among other relief requested, he asked that custody of the children be awarded pursuant to the children’s best interests;[^1]

(7) Both parties were represented by lawyers in Nevada;

(8) On April 30, 2019 the Nevada Family Court (“the Nevada court”) heard a motion by the father for access. The mother was ordered to surrender her passport and those of the children. She complied with that Order. Nominal visitation was ordered for the father. A Case Management Conference was scheduled for August 16, 2019;

(9) On May 3, 2019 the mother filed an Answer and Counterclaim to the father’s divorce complaint. In addition to requesting primary custody of the children, the mother sought child and spousal support and a division of the parties’ community property;

(10) On May 6, 2019 the father filed a Motion to consolidate the domestic violence proceeding with the divorce proceeding. The mother did not oppose that request and so an Order was made consolidating the two proceedings and a Case Management Conference date set for July 23, 2019;[^2]

(11) On May 30, 2019 the mother moved without notice to the father for an order asking that the father's access be supervised. She alleged that the father was not caring properly for the children. She also brought a motion for permission to relocate to Ontario. It does not appear that the mother’s lawyer was aware of the mother’s motions;

(12) On May 31, 2019 the Nevada court denied the mother's request to further limit the father's access. A Notice attached to the issued Order stated that a parent wishing to relocate must first obtain the other parent’s written consent, or failing that, a court Order. The court confirmed the July 23, 2019 Case Management Conference date. The Order also set out the penalty for child abduction and referred to the Convention;

(13) The mother did not seek an expedited ruling on the issue of relocation;

(14) On or shortly after June 9, 2019 the mother and children were evicted from the family residence and went to live in a shelter;

(15) On June 28, 2019 the mother and the children entered Canada. No Order had been made permitting her to relocate the children;

(16) On July 2, 2019 the mother emailed her Nevada lawyer that she had relocated to Ontario. The lawyer had no prior knowledge of the mother’s plans or actions and so advised the father’s lawyer;

(17) On July 3, 2019 the father moved the Nevada court for an Order requiring that the children be returned to Nevada and placed in his physical custody. This Order was served on the mother’s former Nevada lawyer;

(18) On July 4, 2019 the mother started an Application in this court for custody and child support. She brought an emergency motion without notice to the father asking for custody and to restrain the father from contacting the children and her. She referenced the domestic violence that had led to the protection Order made in Nevada and she appended to her affidavit the Orders made there on April 6 and 30, 2019, but not the Order made on May 31, 2019;

(19) In her affidavit the mother said that she and the children had been evicted from the matrimonial home on June 9, 2019 and were undocumented immigrants in the United States. She could not work legally and was unable to access social services because she did not have an American social insurance number;

(20) On July 4, 2019 MacPherson J. dismissed the mother’s motion. Due to the ongoing proceedings in Nevada, he was not persuaded that this court had jurisdiction to grant the relief sought;

(21) On July 5, 2019 the Nevada court ordered that the mother attend and produce the children at the scheduled July 23, 2019 Case Management Conference. The court declined at that time to issue a warrant for the mother’s arrest. The court noted that the mother had filed a notice to discharge her Nevada lawyer but that request was rejected by the court and directed to be addressed at the July 23rd conference;

(22) On or about July 11, 2019 the mother, acting on her own, filed a motion in the Nevada court to reconsider its July 5th Order and asked that the court decline jurisdiction on the basis that Nevada was an “inconvenient forum”;

(23) Two additional Orders were made by the Nevada court on July 18 and 19, 2019 requiring the mother to personally attend court on July 23, 2019 and to produce the children. These Orders were served on the mother;

(24) The mother did not attend the Nevada court on July 23, 2019 but her lawyer did attend and requested permission to withdraw as her lawyer, which request was granted. The children were not produced. An Order was made (signed on July 25, 2019). The court noted both parties had acknowledged in their court filings that Nevada was the children’s home State. The father was granted temporary custody of the children. A warrant for the mother's arrest was issued and a tracing (or police enforcement) Order made;

(25) The Nevada court noted the mother’s earlier motion requesting that the court decline jurisdiction on the ground that Nevada was an “inconvenient forum”. That motion was adjourned to August 19, 2019 to give the mother an opportunity to appear and file proper evidence;

(26) A trial was scheduled to proceed on November 7, 2019 in Nevada;

(27) On August 19, 2019 the mother withdrew her Application issued in this court. She also attended the Nevada court by teleconference that day for the hearing of her “inconvenient forum” motion. The court ordered that written submissions be filed. When the matter before this court was argued the parties confirmed through counsel that they had recently filed their submissions. The Nevada court has since confirmed that it will hold its decision in abeyance pending this court’s decision;

(28) The father started this Application on August 21, 2019. He brought an emergency motion before me without notice to the mother. Among other terms of the Order made that day, the mother was required to surrender the children's birth certificates and travel documentation. Email service was ordered and the mother was directed to appear before this court on August 28, 2019. Service of that Order was effected on August 22, 2019;

(29) On August 28, 2019 the parties appeared before me, the father not present but represented by counsel and the mother in person. She told the court that the children's birth certificates had been provided to the father's lawyer (which he confirmed) and that she had consulted, and would be retaining, a lawyer. Directions were given with respect to the father's Application proceeding by way of affidavit evidence on September 18, 2019, peremptory to both parties.

Discussion and Analysis

[7] The Convention deals with the wrongful removal of children and has been adopted into Ontario law by s. 46(2) of the Children’s Law Reform Act.[^3] The threshold issues involve determining where a child was habitually resident when removal is alleged to have occurred and, if the removal was wrongful, whether an exception to the children’s return should be made. In Ludwig v. Ludwig,[^4] the Ontario Court of Appeal summarized the governing analytical framework for Convention applications:

Stage One: Habitual Residence

1. On what date was the child allegedly wrongfully removed or retained?

2. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach:

a) The court's task is to determine the focal point of the child's life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention.

b) To determine the focal point of the child's life, the court must consider the following three kinds of links and circumstances:

i) The child's links to and circumstances in country A;

ii) The circumstances of the child's move from country A to country B; and

iii) The child's links to and circumstances in country B.

c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:

i) The child's nationality;

ii) The duration, regularity, conditions and reasons for the child's stay in the country the child is presently in; and

iii) The circumstances of the child's parents, including parental intention.

End of Stage One: Two Outcomes

1. If the court finds that the child was habitually resident in the country in which the party opposing return immediately resided before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.

2. If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.

Stage Two: Exceptions

At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:

1. The parent seeking the return was not exercising custody or consented to the removal or retention (Article 13(a));

2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3. The child of sufficient age and maturity objects to being returned (Article 13(2));

a) Has the party opposing return met the threshold to invoke the court's discretion to refuse return?

i) Has the child reached an appropriate age and degree of maturity at which the child's views can be taken into account; and

ii) Does the child object to return?

b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse to return, the court should consider:

i) The nature and strength of the child's objections;

ii) The extent to which the objections are authentically the child's own or the product of the influence of the abducting parent;

iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child's welfare; and

iv) General Hague Convention considerations.

4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or

5. 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).

(a) Habitual residence

[8] It is this court’s view that the children were wrongfully removed from the United States to Canada on June 28, 2019. They were habitually resident in the State of Nevada immediately before their removal. The father was exercising custodial (i.e. visitation) rights and did not consent to the children’s removal.

[9] The mother claims that the children were never wrongfully removed and that they had been resident in Ontario since late January 2018. In advancing this claim the mother argued that the focal point of the children’s lives, namely their family and social environment in which their lives had developed immediately before their removal, was Ontario. This is the hybrid approach to determining habitual residence that the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev[^5] said should be adopted in Canada and upon which the court in Ludwig relied in framing the above analysis. I do not accept the mother’s claim that the father was not exercising visitation rights at the time of the children’s removal from Nevada. Her evidence, and the evidence before this court when viewed in its entirety, does not support her claim about Ontario being the focal point of the children’s lives immediately before their removal. Nor do I believe her.

[10] Some background is in order.

[11] After KOV was conceived, the mother returned to Canada to give birth. Several months later the father followed. The parties lived with the mother’s parents in Maple, Ontario. About five months after KOV was born, and shortly after they married, the parties left Ontario to reside in Incline Village, Nevada in a residence owned by relatives of the father.

[12] In December 2017, around the time that the mother discovered that she was pregnant with AOV, her U.S. Visa was nearing its expiry. The mother and KOV left for Ontario on January 28, 2018. In early June 2018 an Ontario lawyer retained by the mother wrote a letter to an unidentified third party to the effect that the parties had separated and that the parties were negotiating a Separation Agreement. There is no evidence that any such letter or similar letter was sent to the father or his Nevada lawyer inviting negotiation. The father has no recollection of receiving this kind of correspondence.

[13] AOV was born on September 7, 2018. The father travelled to Ontario in late October 2018. The next day he, the mother, and their children flew to Nevada and resumed living in their Incline Village home. The mother claims that this was supposed to be a two-week trip only and that she was unaware that the father had only purchased one-way tickets for her and the children until she arrived in the United States. These allegations are disputed by the father. There is no credible evidence that the mother took any steps after two weeks to return to Canada. In fact, the mother filed an Application for Permanent Resident Status with U.S. Citizenship and Immigration Services for herself on December 24, 2018. In addition, in mid-February 2019 the parties engaged a counsellor to help them improve their inter-personal communication skills and to respect the other more. There is no suggestion in the counsellor’s notes produced by the mother that her and the children’s residency in Nevada was a short-term visit or that, as she alleged, and the father denied, she was being held against her will in Nevada.

[14] The mother’s evidence about her return to Nevada and the children’s residency immediately before they left there for Canada is not credible. It is inconsistent and contradictory. Her representations to the Nevada court and to this court are impossible to reconcile. Examples of the mother’s lack of credibility include the following:

(a) The mother claimed that when she brought her motion for a Temporary Protection Order (“TPO”), which would have been on or about April 8, 2019, she was unrepresented and did not understand the legal significance of her confirming to the court that the children had lived in Nevada for the preceding six months. She said that had she known the legal significance of what she had told the court then she would have tried to correct the record sooner. She never did before she left the United States;

(b) The mother was represented by a lawyer (Bordner) on April 30, 2019 when the TPO was varied to grant the father access. The court recorded that the mother “asserted that she had no intention of leaving the United States”;

(c) In paragraph 12 of her Answer and Counterclaim filed on May 3, 2019 with the Nevada court by her lawyer, the mother stated that she had “been and is now an actual, bona fide resident of and domiciled in the State of Nevada, and has had and still has the intent to make the State of Nevada her home, residence and domicile for an indefinite period of time”. In paragraph 14 of that pleading the mother stated that “the State of Nevada is the home state” of the children;

(d) Somewhat inconsistently, the mother denied that she had misled the Nevada court about her residency and domiciliary intentions, then stated that “I did intend to stay in Nevada”, and followed that by qualifying those statements by saying that they were made under a mistaken belief that they were needed to preserve her parental rights;

(e) On April 17, 2019 the mother signed a U.S./Canada Transport form for shipping her car from her parent’s address in Ontario to her residence in Nevada. In a letter from the mother’s Nevada lawyer to the father’s lawyer dated May 23, 2019, the mother’s lawyer wrote that the mother “would appreciate assistance from [the father] regarding shipping her car from Canada to Incline Village…[A]ll that’s required is assistance regarding using [the father’s] name and SS#.[^6] My client would appreciate your client’s assistance in finalizing the boys’ naturalization paperwork”. In addition, the lawyer wrote that the mother “would like access to her passport for the sole purpose of finding employment and housing”;

(f) In her July 11, 2019 Motion to the Nevada court the mother represented that before the parties’ separation she had initiated and filled out prescribed forms for the children’s US naturalization and had given them to the father to submit on March 28, 2019. As noted in the preceding subparagraph, the mother maintained this hope after separation;

(g) In her affidavit sworn on September 30, 2019, after her receipt of the pleadings in the divorce and custody proceedings in Nevada, the mother raised for the first time an allegation of ineffective representation by her Nevada lawyer dealing with his advice about her parental rights in Nevada.[^7] No reference to ineffective legal representation or to any misunderstanding about the correlation between residency status and legal standing impacting parenting rights in Nevada can be found in any of the pleadings filed by the mother in this court in the Application she started, then withdrew, or in her 26 page Motion for Reconsideration and Inconvenient Forum that she filed with the Nevada court on July 11, 2019 (see paragraph 6 above).

[15] Although both children were born in Canada and had been in Nevada for 8 months before the end of June 2019, KOV had spent almost one-half of his life in that State and AOV lived there for all but the first 2 months of his life before the mother took the children to Canada (AOV was 10 months old then). KOV and his mother were issued library cards for the local public library in Incline Village and the mother and children were covered under the father’s employment health benefits as of late 2018.

[16] The evidence is overwhelming that the focal point of the children’s lives immediately before their removal to Canada was Nevada and that the children had little meaningful connection with Canada apart from their nationality and their maternal grandparents residing there.

(b) Exceptions

[17] The mother must return the children to Nevada unless she can establish that one of the exceptions under the Convention applies, Article 13 of which (together with Articles 12 and 20, which do not apply to this case) 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 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 or 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.

[18] In Balev, the Supreme Court of Canada emphasized the narrow, principled nature of the exceptions to returning a child to their country of habitual residence:

76. The exceptions to the rule that the child should be returned to the country of the child’s habitual residence are just that – exceptions. Their elements must be established, and they do not confer a general discretion on the application judge to refuse to return the child. Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to her country of habitual residence, and it should not be read so broadly that it erodes the general rule…This, however, does not preclude a fact-based, common-sense approach to determining whether the elements of Article 13(2) are established...[^8]

(i) Exceptions #1-Exercising rights/Consent

[19] Dealing with the Article 13(a) exception, there is no question that immediately before the mother came to Canada there were outstanding legal proceedings in Nevada in which both parties participated and were represented by lawyers. An Order had been made dealing with the father’s visitation rights to the children and further court events were scheduled. While the mother disputes the father’s evidence about how diligently he was seeing the children, the fact is that he was exercising his visitation rights pursuant to the court Order and never consented to the children’s removal to Ontario.

(ii) Exceptions #2-Grave risk of harm

[20] The mother’s exception submissions principally focussed on Article 13(b), namely that returning the children to Nevada would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The mother bears the burden of proof on a balance of probabilities. In Paschel v. Paschel[^9] the court considered what constituted a grave risk of harm,

iii. What Constitutes a Grave Risk of Harm?

83. Article 13(b) provides that a child should not be returned to the place of habitual residence only where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” This is a stringent test with a very high threshold.

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

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

iv. Best Interests of the Child May be Considered

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

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

[21] In Pollastro, a case upon which the mother relies, Abella J.A. (as she then was) declined to order the return of the mother and infant child to California in circumstances where there was evidence of escalating physical violence, medically-documented evidence of physical injuries to the mother and changes in the child’s presentation, third-party confirmation of harassment, and threats by the father and menacing telephone calls by the father to members of the mother’s family which Abella J. A. described as vituperative, irrational and reflecting the father’s violent temper.

[22] In Achakzad v. Zemaryali,[^10] another case upon which the mother relies and which followed Pollastro, the court carefully assessed the parties’ credibility and determined that the child should not be returned to California because there was evidence of a continuing, and escalating, pattern of physical abuse, as well as a violent assault resulting in serious injuries to the mother that was corroborated by contemporaneous photographs. The court found that there had been a total of 8 assaults, some taking place in the presence of the parties’ child and another involving the father pointing a loaded shotgun at the mother. The violence was severe and the court found that it was probable that the violence would continue if the mother was compelled to return to California.

[23] In this case, there is little evidence that is comparable in terms of the nature and extent of the domestic violence alleged to that described in Pollastro and Achakzad, most of which is based on the mother’s self-reporting and unconfirmed by independent third-party evidence.

[24] In Ojeikere v. Ojeikere,[^11] the Ontario Court of Appeal observed that the assessment of an Article 13(b) “grave risk” involved an assessment of the likelihood of future harm and the severity of future harm.[^12] Credibility is important. As noted in Brown v. Pulley:[^13]

163. The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547 (Ont. S.C.J.), affirmed at 2012 ONCA 469 (Ont. C.A. [In Chambers]).

[25] What is the credible evidence establishing the likelihood of future harm, and its severity, in this case? Again, some background is in order.

[26] The mother alleged, and the father denied, that the parties had an abusive relationship. The evidence is clear that the parties had communication difficulties and had separated on two occasions. The TPO was obtained by the mother after what she described was a “serious assault” on her by the father on April 1, 2019. On that occasion, it was the father who contacted the police. Both parties filed a copy of the local Sheriff’s Office Incident report for these proceedings. Four officers attended the parties’ residence. The parties were interviewed. While the mother reported scratches to her back caused by the father, none was observed by the investigating officer. The mother refused medical attention. Injuries to the father were observed on his neck consistent with fingernail scratches. Medical personnel attended but the father refused transport to the hospital. The mother alleged that the father’s injuries were self-inflicted. She also said that he had poured a cup of water on her. In her affidavit, sworn on July 4, 2019 in this court, there is no mention of that being done, but rather that the father had thrown two cups of water at one of the children.

[27] The officers were unable to determine a primary physical aggressor and so no charges were laid, but the local Child Protection Services agency was informed of the situation and attended the parties’ residence the next day. There is no evidence that formal child protection proceedings were ever started.

[28] The parties appear to have continued residing together until about two days before the mother obtained the TPO. She had gone to a shelter with at least one of the children. When, on April 8, 2019, the father was informed by the police about the TPO at least one of the children was in his custody. The father vacated the parties’ residence in compliance with the Order and delivered the child in his custody to the police as they had requested. It was noted by the police that the father was “very cooperative and understanding”.

[29] The mother filed a letter authored by a therapist from a local shelter where she was living with the children after they were evicted from the family home. The therapist indicated that she had held two sessions with the mother. She expressed an opinion about the veracity of the mother’s concerns about her safety, all of which were based on the mother’s self-reporting. There was no suggestion of any effort to contact the mother’s lawyer, the local child protection services, the police, or to access the court file at any time.

[30] The father objected to the admissibility of the therapist’s letter as not being sworn or being accompanied by any expert’s qualifications or acknowledgement of expert’s duty. In my view the letter is inadmissible and, even if admissible, is of little weight apart from confirming the (then) living circumstances of the mother and children and that the mother sought therapeutic help.

[31] The father filed an affidavit from Robert Cerceo, a Nevada lawyer licenced to practice law in the State of Nevada. Mr. Cerceo has extensive experience in family law as a Board Certified Family Law Specialist, author and lecturer. He was asked by the father to express an opinion about, among other things, the laws of Nevada dealing with custody and access, whether the Nevada courts were equipped to deal with domestic violence issues, and what procedures were available in Nevada to combat domestic violence issues. Mr. Cerceo’s curriculum vitae and an acknowledgement of expert’s duty accompanied his affidavit.

[32] After confirming that there was an outstanding court Order dealing with the father’s access, Mr. Cerceo identified the legislative policy of the State of Nevada dealing with children’s best interests, the determining factors of which are little different from those set out in s. 24 of the Ontario Children’s Law Reform Act.[^14] There are special provisions in Nevada law where domestic violence is alleged and there are administrative and judicial procedures in place for immediate review of court applications. There is no evidence in this case that the courts or the authorities in the State of Nevada are unable to protect the children from exposure to physical or psychological harm, including protecting the mother from any domestic violence. Mr Cerceo identified the court in which the Nevada case was proceeding as being one of two specialized family courts in the State of Nevada and stated that it had excellent resources for victims of domestic violence.

[33] In Mbuyi v. Ngalula,[^15] MacPhail J. commented on the nature of domestic violence evidence required to prove Article 13(b) exception relief, observing that cases in which the exception was found

…have generally involved clear evidence of domestic violence, including some or all of the following circumstances: photographs of injuries, third party (including police) evidence of violence, medical evidence of injuries, the granting of, and, in some cases, breaching of civil protection orders or probation orders, criminal charges or convictions for abusive conduct, inability of the efforts of police or other authorities to restrain the abuser’s behaviour, the abuser’s disregard for court orders, abuse of the children. (See, for example, the situations in Callicutt v. Callicutt, 2014 MBQB 144 (Man. Q.B.); Lombardi v. Mehnert, 2008 ONCJ 164 (Ont. C.J.); Achakzad v. Zemaryalai, 2010 ONCJ 318 (Ont. C.J.); Pollastro v. Pollastro 1999 3702 (ON CA), [1999 CarswellOnt 848 (Ont. C.A.)], 1999 3702).[^16]

[34] In Paschel, Trimble J. noted that even if the court accepted that there was a grave risk of physical or psychological harm to the children in that case that the mother had

…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 services organizations will provide such protection, if required. The Mother has led no evidence in this regard.[^17]

[35] Similar observations were made by Hood J. in Usmani v Hassan,[^18]

43. The RM alleges that the AF has physically and emotionally abused her, and physically abused Ismael. These are allegations only and are denied by the AF. There are conflicting affidavits from multiple interested deponents. There is no corroborating independent evidence such as from doctors, the police, or a child protection agency.

44. The RM argues that there is a grave risk of physical harm if Ismael is returned. The allegations of physical violence as herein before set out are all disputed by the AF and have no independent proof. There is difficulty in a summary hearing such as this, based upon affidavit evidence, to meet the test under the Convention of being intolerable. However, while the onus is high, the test must still be met. I have concluded that the RM has not done so.

45. The issues of psychological harm and physical harm can all be dealt with by the California courts. There was no evidence presented that the California courts are unable to deal with the issues of custody and access. Under s. 3011 of the California Family Code, the California court would be able to consider all of these issues in making its determination as to the best interests of Ismael. Nor was there any evidence that the California court would be unable to protect the RM, if need be, from the AF while she argues custody and access there.

46. Nor was it argued before me that the California court would be unable to deal with issues of interim support for the RM. Unless there is evidence to the contrary, which there was not, I am entitled to assume that the law of California is the same as the law of Ontario, and the RM will be able to apply for interim support if she decides to make such a claim.

[36] There were no prior legal proceedings in Paschel or Usmani between the parents in the jurisdictions from which the children were removed. Unlike those cases, the mother in this case started and participated in legal proceedings in Nevada, obtained a TPO, had legal representation, and court dates had been scheduled. Child protection services had been involved and the mother had availed herself of social service assistance. There was no evidence whatsoever that the mother’s ability to access the Nevada family court for domestic violence protection, or the involvement of child protection services, had in any way been compromised before she decided to leave for Canada.

[37] As with my findings about the mother’s credibility dealing with habitual residence, her evidence is less credible than the father on the issue of risk, some examples of which include:

(a) The absence of any documented, or independently confirmed, history of abuse;[^19]

(b) The absence of physical injury when the mother reported what she described was a serious assault on April 1, 2019;

(c) The inconsistency between what the mother told the local Nevada police on April 1st involving water being thrown at her and what she told this court in her July 4, 2019 affidavit;

(d) The absence of any evidence about steps being taken by the local Nevada child protection authorities after being informed by the police of the April 1st incident between the parties, and later attending the family home and speaking with the mother;

(e) In her July 11, 2019 filing in the Nevada court for reconsideration of the court’s July 5, 2019 Order that she produce the children (and to have Nevada declared an inconvenient forum) the mother listed five examples where the father had allegedly violated the TPO, all occurring before her May 30th ex parte motion to restrict the father’s access. None of these alleged TPO violations appears to have been raised by the mother when she brought her ex parte motion. The mother was complaining then about the father’s care of the children.

[38] In finding that the mother’s evidence is less credible than the father, I do not discount that there were serious problems in the parties’ relationship or that there were incidents between the parties involving arguments and some physical interactions of an undetermined nature. Like Trimble J. in Paschel though, even if the mother’s evidence is to be believed she has failed to meet the high evidentiary onus required by Article 13(b) of the Convention.

(iii) Exceptions #3-Intolerable situation

[39] The mother described her return to Canada as an “escape from Nevada”,[^20] claiming that she was anxious because she was facing difficulty finding housing for the children and herself after their eviction, and because she had no U.S. Social Security number, no job, no credit, no ability to legally work and no means of transportation. She represented to the Canadian Consulate in Los Angeles that she was being held against her will. With the consulate’s assistance and financial assistance from her parents, the mother and children flew to Buffalo and crossed into Canada.

[40] In R.V.W. v. C.L.W.[^21] the Alberta Court of Appeal upheld a lower court’s Order requiring a mother to return an infant child to Texas. Both parents had earlier started legal proceedings in Texas which were underway when the mother left for Canada without the father’s consent. The chambers judge described the parties’ marriage as “very dysfunctional”.

[41] Like this case, the mother in R.V.W. argued that the father was abusive and had substance abuse issues that posed risks to the child and that, again like in this case, requiring her to return would, as the appellate court observed, “create an “intolerable situation” because she had no ability to work there, and no means of support”.[^22] This argument had been rejected by the chambers judge who viewed a removing parent’s difficulty in returning to the child’s habitual residence as undercutting the narrowly-construed, exceptional nature of Article 13(b). The issue before the Court of Appeal focussed on the interpretation to be given to “intolerable situation”.

[42] In Thompson v. Thompson,[^23] a case followed by the court in R.V.W., the Supreme Court of Canada confirmed that a mother should be required to return to Scotland with the parties’ infant child. There were ongoing proceedings in Scotland when the mother left for Canada to visit her family and later refused to return to Scotland. In a thorough review of the background to the Convention, the court discussed the exceptions to the return of a wrongfully removed child and, dealing with Article 13(b), observed,

…[i]t 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 art. 13(b) is harm to a degree that also amounts to an intolerable situation. Examples of cases that have come to this conclusion are: Gsponer v. Johnstone (1988), 12 Fam. L.R. 755 (Aus. F.C.); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.); Re A. and another (Minors) (Abduction: Acquiescence), [1992] 1 All E.R. 929 (C.A.); Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401 (H.C.); Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413 (H.C.); Direction-General of Family & Community Services v. Davis (1990) 14 Fam. L.R. 381 (Aus.); C v. C., supra. In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

… the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree … that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words “or otherwise place the child in an intolerable situation”.[^24]

[43] The Court in R.V.W. referred to an October 2017 “Draft Guide to Good Practice on Article 13(b) of the Hague Convention”. After reviewing other contracting states’ approaches to Article 13(b) the court confirmed that while most courts have held that the level of risk required to trigger an exception is high, not all states adopt a similarly conjunctive interpretation to the one expressed in Thompson, where the risk of ‘intolerable situation’ is interpreted together with the risks of ‘physical and/or psychological harm’. The court then confirmed that the draft Guide does list three different categories of risk that can be raised independently:

• a grave risk that the return would expose the child to harm;

• a grave risk that the return would expose the child to psychological harm; or

• a grave risk that the return would otherwise place the child in an intolerable situation.

[44] It was not necessary in R.V.W. to determine whether risk of an “intolerable situation” was to be interpreted conjunctively with its preceding clause, or if it was an independent category of exception, because the outcome would have been no different based on the insufficient evidence of requisite risk before the court. The same may be said with respect to the evidence in this case. I agree with the view expressed by the Ontario Court of Appeal in Jabbaz v. Mouanmmar[^25] that “the term “intolerable” speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured”. While the circumstances of the mother and children were difficult, the evidence in this case does not rise to the level of intolerability as required by Article 13(b).

[45] The circumstances in which a child’s welfare or best interests may be taken into account when considering whether an “intolerable situation” exception applies is very limited, as noted by the court in R.V.W.:

20. The welfare of children, especially infants, is often tied up with the welfare of their parents. Thus, “intolerable” circumstances faced by the parent who wrongfully removed the child, might well be a factor in determining if there is a “grave risk that return would expose the child to physical or psychological harm amounting to an intolerable situation”: Sampley at paras. 32-6; E. (Children), Re at para. 52; Pollastro v. Pollastro (1999), 1999 3702 (ON CA), 43 O.R. (3d) 485, 171 D.L.R. (4th) 32 (Ont. C.A.); E. (H.) v. M. (M.), 2015 ONCA 813 (Ont. C.A.) at paras. 124-5, 70 R.F.L. (7th) 350 (Ont. C.A.), leave to appeal refused [2016] 1 S.C.R. xiii (note) (S.C.C.). The Hague Convention, however, does not recognize a discrete exception for “intolerable” circumstances of the parent who wrongfully removed the child, such as immigration problems, or the inability to support himself or herself in the original jurisdiction. While courts have been reluctant to consider assertions of grave risk to the child resulting from separation because of the inability of the parent who wrongfully removed the child to return to the requesting state, courts have proposed mitigating measures to limit or eliminate the likelihood of this transpiring. Where the parent who wrongfully removed the child is not allowed to return to the requesting state, the court may consider the assertion of “intolerable circumstances” resulting from a separation of the child from that parent: Sampley at para. 48. (bolding added)

[46] Uncertain immigration or residency status may be an Article 13(b) concern. As noted by the court in Jabbaz:

26. In stating this, I do not suggest that uncertain immigration status can never be a concern under Article 13. For example, if because of their immigration status, the mother and child were deportable to another country in which the child would face grave risk of harm, then the Article 13 exception might be made out. Thus, if upon their return to the United States, there was a grave risk that the mother and child would be deported to some country in the midst of serious sustained armed conflict, this might well be an intolerable situation. But, that is hardly the case here. At worst, this mother and child, who are both Canadian citizens, would be deported back to Canada. Obviously, deportation is not a desirable situation but I cannot see how deportation to Canada could create an intolerable situation for the child.

[47] So too in Habimana v. Mukundwa.[^26] In that case the mother unsuccessfully resisted a father’s Convention application that the parties’ children be returned to their habitual residence in Hong Kong, arguing that her immigration status there was uncertain and precarious. Linhares de Sousa J. held that it was not at all clear to the court, however, that if the mother was required to return to Hong Kong with the children she would be later required to leave without them for reasons of her immigration status.

[48] Margo Chernysheva is an attorney licenced to practice in the District of Columbia and the States of California and Nevada specializing in, among other areas of expertise, immigration law. She has been recognized by the American Institute of Legal Counsel as one of Nevada’s best immigration lawyers (2017) and by the American Jurist Institute as one of Nevada’s top immigration lawyers (2019). The father filed an affidavit from Ms. Chernysheva proposing her as an expert dealing with the immigration and residency status of non-US citizens. A curriculum vitae and acknowledgement of expert’s duty accompanied Ms. Chernysheva’s affidavit.

[49] Ms. Chernysheva addressed issues involving travel to the United States by non-U.S. citizens, the permanent resident process, the rights of children of U.S. citizens born outside of the U.S., and parole requests to ICE (the US Immigration and Customs Enforcement service). It was Ms. Chernysheva’s opinion that as there did not appear to be any bar to the mother’s admission to the United States, she was entitled to use and apply for entry through what is known as a visa waiver program. An actual visa is not always required because admissibility is determined at port-of-entry and entry may be allowed on a parole basis by a U.S. Customs and Border Protection officer. Once admitted, eligibility to remain in the United States may be adjusted depending on the applicable immigrant category being requested. A special category involves victims of domestic violence (known as a VAWA petition)[^27] and does not require the alleged abuser’s knowledge or consent. There are other eligibility requirements. The mother can also apply for an advanced parole document for the specific purpose of attending a court hearing in the United States.

[50] The mother pointed to her receipt of a May 30, 2019 letter from U.S. Customs and Immigration Services denying her permanent residence application. The reason given for the denial was the parties’ failure to provide income tax and asset statements; information that the parties had known since mid to late January 2019 was required and that the mother accused the father of withholding. The father stated in his September 16, 2019 affidavit that an interview had been scheduled for August 14, 2019 regarding the mother’s application but that as she had left the United States at the end of June, the interview did not proceed. Ms. Chernysheva reviewed the May 30th letter to the mother and opined that the mother’s application could be referred to the Immigration court in Nevada and that during the time awaiting notification of an appearance date, the mother could submit a VAWA petition (as well as something described as a U-visa) which could lead to permanent residency.

[51] Ms. Chernysheva also stated that the children are admissible to the United States on the same visa waiver and parole basis as their mother. She recommended that the children be registered as U.S. citizens as soon as possible. The father had already paid $2,400 for the children’s citizenship applications and that process was underway in early June 2019 with respect to KOV until the mother left the United States.

[52] In my view, not only is the mother’s evidence insufficient to meet the high “intolerable situation” threshold irrespective of whether that phrase is interpreted conjunctively with its preceding clause or as an independent ground of the Article 13(b) exception, but there is also no credible evidence that the mother and children cannot return to the United States or that the mother cannot avail herself of the legal options open to her obtaining U.S. residency status. These issues are, in any event, already before the Nevada court dealing with the mother’s “inconvenient forum” motion, the determination of which is being held in abeyance pending this decision.

[53] As for the financial issues, the mother’s need for housing and support for the children and herself are also in evidence before the Nevada court. The April 30, 2019 variation of the TPO provided for modest child support and the parties’ divorce pleadings also contain claims for child and spousal support. The father is gainfully employed and he has filed with the court a written undertaking from the owners of the family residence (a condominium owned by his aunt and uncle) allowing the mother and the children to occupy the premises pending further Order of the Nevada court. There is no evidence that the Nevada court is incapable of dealing expeditiously with the family’s financial and housing needs.

Undertakings

[54] The father swore that if the children were returned to Nevada he would comply with the following undertakings on a without prejudice basis, several of which the mother requested in the event that the father’s application was granted:

(a) That the mother and children would have sole use and occupancy of the family residence pending further Order of the Nevada court pursuant to the undertaking of his aunt and uncle;

(b) That he would ensure that the mother have access to the residence including passwords to security codes or alarms and keys to the property;

(c) That he would agree, mutually with the mother, that neither would contact, or come within a certain radius of the other with the exception of arranging parenting time with the children through counsel, pending further Order of the Nevada court; and

(d) That he would not attend at the family residence except to facilitate transfers of the children.

[55] The mother suggested (a) and (b) but requested that the restraining Order only apply to the father and that the father be accompanied by a third party for access transfers. In an amended motion, the mother sought much broader relief but that should be addressed by the Nevada Court.

Disposition

[56] Accordingly, the following is ordered:

(a) The father’s application is allowed. The mother is ordered to return the children to Nevada;

(b) The father shall advance to the mother the sum of $2,500 USD, on a without prejudice basis to be accounted for by the mother, to be used by her to cover the airline expenses and related expenses incurred for the return of the children and her to Nevada;

(c) The father shall apply forthwith to the Nevada court for permission to have the passports of the mother and the children delivered to his lawyers in Ontario. The passports shall be released to the mother by his Ontario lawyers upon satisfactory proof that the mother has purchased airline tickets for the return of the children and herself to Nevada and at least 24 hours before their scheduled departure date. The father’s Ontario lawyers shall notify the mother when they are in possession of the passports;

(d) The father must provide a written undertaking to this court, and file it in the Nevada court, confirming that:

(i) He will allow the children to reside with the mother, notwithstanding the Order made by the Nevada court on July 25, 2019, until the matter can be brought back before the court on an emergency basis forthwith upon the mother’s return to Nevada;

(ii) The mother and children can occupy 830 Oriole Way, Unit #25 (“the property”), pending Order of the Nevada court and that he has provided to the mother or made available for her to obtain from a person other than him passwords to security codes or alarms and keys to the property;

(iii) He will only contact the mother by text message regarding child-related issues including visitation exchange details, except for a medical emergency for which the father may telephone the mother;

(iv) He will not attend at the property except for access exchange purposes;

(v) He will deposit with his court attorney in Nevada the sum of $1,000 USD to be released forthwith to the mother upon her return to Nevada as and for without prejudice uncharacterized support for the children and mother pending further Order of the Nevada court and, subject to the direction of that court, to be taken into account when determining the financial issues between the parties.

(e) The Mother must return the children to Nevada within 15 days of the father complying with subparagraphs (b) to (d) above, and filing his undertaking with this court and the Nevada court;

(f) If the mother and children are denied entry to the United States then they shall return to this court for further directions. The Central Authority should be kept informed;

(g) The mother’s motion is dismissed.

[57] No Order is made at this time for temporary visitation or other parenting relief, including child and spousal support as this court expects that those issues can be addressed on an expedited basis by the Nevada court immediately upon the mother’s return with the children to Nevada.

[58] The following provisions shall apply to the costs of the Ontario proceedings if the parties are unable to agree:

(a) The father shall submit his submissions by November 30, 2019;

(b) The mother shall submit her responding submissions by December 13, 2019;

(c) Reply, if any, by the father to be delivered by December 20, 2019;

(d) All submissions shall be limited to five double-spaced pages with respect to (a) and (b) above and three double-spaced pages with respect to (c). These submissions shall be filed in the Continuing Record. Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall also be filed by these deadlines but not form part of the Continuing Record;

(e) Counsel are to advise the judicial secretary (Meghan.Billings@ontario.ca) when their material has been filed.

[59] A copy of these Reasons and the Order when issued shall be forthwith sent to the Nevada court and to the Central Authority.

Justice David A. Jarvis

Date: October 16, 2019

[^1]: In Nevada the pleading is called a “Complaint for Divorce (With Children)”. [^2]: The Order was signed on May 31, 2019. [^3]: R.S.O. 1990, c. C.12, as am. [^4]: 2019 ONCA 680. [^5]: 2018 SCC 16, 2018 CSC 16, at para. 48. [^6]: This would seem to be a reference to the father’s social security number. [^7]: The mother said that the statements made in paragraphs 12 and 14 of her Answer were made in desperation and that she did not appreciate or was not advised by her lawyer how those statements would impact her ability to return to Canada with the children (paragraph 6 of the mother’s affidavit sworn September 30, 2019). [^8]: Balev, supra note 5, at para. 76. [^9]: 2017 ONSC 6952, [2017] W.D.F.L. 5988, 1 R.F.L. (8th) 379. [^10]: 2010 ONCJ 318, [2011] W.D.F.L. 2. [^11]: 2018 ONCA 372. [^12]: Ibid, at para. 62. [^13]: 2015 ONCJ 186, [2015] W.D.F.L. 3439, 60 R.F.L. (7th) 436. [^14]: R.S.O. 1990, c. C.12 as am, s. 24. [^15]: 2018 MBQB 176. [^16]: Ibid, at para. 65. [^17]: Paschel, supra note 9, at para. 89. [^18]: 2016 ONSC 6453, [2016] W.D.F.L. 6247. [^19]: Many case involving domestic violence are either never reported or, even if reported, taken with the degree of seriousness they properly deserve. See Family Violence in Canada: A Statistical profile (December 5, 2018 report by the Canadian Centre for Justice Statistics). The above comment is made in the context of the high onus on the mother in Article 13(b) Convention cases when compared with those cases where harm has been found and findings made involving domestic violence. [^20]: See para. 59 of the mother’s factum. [^21]: 2019 ABCA 273, 435 D.L.R. (4th), 88 Alta L.R. (6th) 82. [^22]: Ibid, at para. 9 [^23]: 1994 26 (SCC), [1994] 3 S.C.R. 551, 119 D.L.R. (4th) 253. [^24]: Ibid, at para. 82. [^25]: 2003 37565 (ON CA), [2003] 226 D.L.R. (4th) 494 (Ont. C.A.) at para. 23. [^26]: 2019 ONSC 1781, 22 R.F.L. (8th) 98. [^27]: This is an acronym for a federal Violence Against Women Act.