Court File and Parties

NEWMARKET COURT FILE NO.: FC-19-59416-00 DATE: 20200306 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: R.K. Applicant – and – M.A. Respondent

Counsel: Stephanie Di Federico, Counsel for the Applicant Washim Ahmed, Counsel for the Respondent

HEARD: February 26 and March 4, 2020

RULING ON MOTION

MACPHERSON J.:

Relief Requested

[1] M.A. brings an Application seeking an order that the child, U.M.A., born August 25, 2019, be returned to his habitual residence in Worcester, Massachusetts, U.S.A pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

[2] R.K. and the child currently reside in York Region. R.K. asks the court to make an order that the Hague Convention is not applicable and, if the Hague Convention is applicable, requests the court use the hybrid approach to determine that the child’s habitual residence is Canada. Alternatively, R.K. asks the court to exercise its discretion to permit the child to reside in Ontario pursuant to the exceptions found in Article 13 of the Hague Convention.

Decision

[3] For the reasons that follow, the Hague Convention Application is dismissed and the Ontario Court has jurisdiction to determine custody and access as U.M.A., born August 25, 2019, is habitually resident in Canada.

Background

[4] R.K. was born in Kenya and immigrated to Canada with her family at 9 years of age. She is a Canadian citizen.

[5] M.A. was born in Kenya and has been working in the United States since 2001 as a green card holder.

[6] The parties were married January 6, 2017 in Syracuse, New York. Following their marriage, the parties resided in Worcester, Massachusetts.

[7] The parties separated on July 29, 2019 and R.K. returned to Canada on that day. She has remained in Canada and has not returned to the United States.

[8] Following the separation M.A. remained in Worcester, Massachusetts.

[9] There is one child of the marriage, U.M.A., born August 25, 2019.

[10] U.M.A. was born in Toronto and experienced significant health issues at birth including seizures and low blood sugar. He spent one week in a Neonatal Intensive Care Unit.

[11] U.M.A. receives medical treatment in Canada. His pediatrician is Dr. Rosenburg.

[12] U.M.A. has never been to the United States.

[13] U.M.A. is a Canadian citizen.

[14] R.K. is breastfeeding U.M.A. and she is U.M.A.’s primary caregiver.

[15] R.K. and U.M.A. live in Toronto with the maternal grandparents, Mohamed and Zubeda. R.K. has a large, extended family in Canada.

[16] U.M.A. has spent his entire life in Canada. He has experienced medical issues since his birth.

[17] In November, 2019 M.A. commenced an application in Worcester, Massachusetts to deal with parenting issues.

[18] In January 2020 M.A. commenced an application under the Hague Convention requesting U.M.A. be ‘returned’ to the United States.

Hague Convention

[19] The Hague Convention is an agreement of signatory nations with the objective of securing 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.

[21] It is noteworthy that the preamble to the Hague Convention states the following: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions.” (emphasis added)

[22] The relevant articles of the Hague Convention state:

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.

Habitual Residence

[23] 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.

[24] The threshold consideration, pursuant to Article 4 of the Hague Convention, is whether or not U.M.A. was habitually resident in Worcester, Massachusetts.

[25] The Hague Convention mandates the return of a child to its habitual residence so that a custody determination may be made in the country where the child habitually resided.

[26] The Hague Convention does not define ‘habitual residence’.

[27] In considering habitual residence, the court is guided by the hybrid approach set out by the Supreme Court of Canada in Balev, supra, at paragraphs 43 and 44 of the majority opinion, which states:

On the hybrid approach to habitual residence, the application judge determines the focal point of the child’s life – “the family and social environment in which its life developed” – immediately prior to the removal or retention. The judge considers 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.

Considerations include “the duration, regularity, conditions, and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality.

[28] Balev instructs the court to consider the focal point of U.M.A.’s life immediately before the removal or retention.

[29] U.M.A. was not born in and has never been to the United States. Therefore, he was never removed from the United States.

[30] I adopt the reasoning in the English case of Re F (Abduction: Unborn child) [2006] EWHC 2199 (Family) where the court found that a foetus had no independent rights or status and stated that “it was not possible in law to abduct a foetus so as to constitute a wrongful removal under Article 3 of the Hague Convention. Habitual residence is a question of fact. The child had never been present in this country, and to say that she was habitually resident here in October 2003 would be wholly artificial.”

[31] M.A. argues that U.M.A. was wrongfully retained in Canada at the moment of birth because M.A. did not consent to U.M.A. residing in Canada.

[32] There was no removal (from the United Sates) and there can be no retention (from the United States) if the child was never there.

[33] Even if I am wrong and there was retention at the moment of birth, there was no breach of rights of custody attributed to a person, an institution or any other body, in the United States.

[34] It is noteworthy that at the time of his birth, U.M.A. was a Canadian citizen, in a Canadian hospital with his mother and medical providers. The focal point of U.M.A.’s life at birth and since is Canada.

[35] Using the analysis set out in Balev, I could not conclude that the focal point of U.M.A.’s life is in the United States, a country he has never been to.

[36] I have considered the decision of Steinberg J. in Williams v. Elliot (2001), 21 R.F.L. (5th) 247 where it was determined that an infant born in Canada was habitually resident in the United States using the parties’ settled intention as rationale. That case is distinguishable from this case because there was an older child (habitually resident in the United States) that was an anchor to the infant and the case was decided prior to the Supreme Court determination in Balev that the hybrid approach was to be used to determine habitual residence.

[37] The Court in Balev reinforces that the focus of the analysis is on the child and cautions against over reliance on parental intention and states, at paragraph 64, “The hybrid approach avoids the problem that a child may be found to be habitually resident in a country with which he has little or no connection.”

[38] Regardless, in terms of settled intention, while M.A. intended for the child to be born and raised in the United States, R.K., following the parties’ separation, moved to Canada a month before the birth of U.M.A. and has remained here since. She has, since July 2019 demonstrated a settled intention that is different from that of M.A.

[39] For all of these reasons I find that U.M.A. is habitually resident in Canada and, accordingly, the Hague Convention does not apply.

Hague Convention - Article 13

[40] Even if U.M.A. was habitually resident in the United States I would not have returned him pursuant to Article 13.

Article 12

Article 13

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.

[41] U.M.A. has always resided in Canada with his mother, R.K. She is his primary caregiver. U.M.A. is breastfeeding.

[42] R.K. does not plan on relocating to the United States. She has abandoned her green card application and will not be pursuing it. She has no family, friends or supports in the United States.

[43] U.M.A. has seen M.A. one time since his birth. M.A. is a stranger to U.M.A.

[44] U.M.A. has significant medical needs. He has access to medical care. He has a medical team in Canada.

[45] Removing U.M.A. from the care of his mother, from the care of his physician and medical team and sending him to M.A., a stranger to U.M.A., would cause U.M.A. grave harm.

Children’s Law Reform Act - Analysis

[46] If I am wrong in determining that U.M.A.’s habitual residence is in Canada, then U.M.A. does not have any habitual residence. If he has no habitual residence, the Hague Convention would not apply.

[47] In that case, Section 22(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c C.12 (“CLRA”), is instructive and states,

22(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) …

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody or access to the child has been recognized by a court of Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[48] All of the listed factors are present in this case. U.M.A. is present in Ontario.

[49] U.M.A. has been present in Canada since his birth in August 2019. He is a Canadian citizen. Ontario is where he gets medical care for his medical issues. Ontario is where his maternal grandparents reside, and he and R.K. resides with them.

[50] While there is an application for custody to U.M.A. in the United States, it is not a jurisdiction where he is habitual resident.

[51] There is no extra-provincial order in respect of custody or access to U.M.A. that has been recognized by a court of Ontario.

[52] U.M.A.’s only connection, the only environment he has ever known, in terms of jurisdiction is in Ontario, Canada.

[53] The vast majority of the information and evidence in respect of the best interests of U.M.A. is in Ontario.

[54] For all of these reasons I find that U.M.A. was and is habitually resident in Canada.

[55] In the event he was not habitually resident in Canada, I find that U.M.A. has no habitual residence and, pursuant to section 22(1)(b) of the CLRA, the Ontario Superior Court of Justice assumes jurisdiction.

Children’s Law Reform Act – Section 25

[56] M.A. requests the Court to consider section 25 of the CLRA and decline jurisdiction.

[57] Section 25 of the CLRA states:

Declining jurisdiction

25 A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

[58] I decline the request as Massachusetts is not, in my opinion, a more appropriate place for jurisdiction to be exercised. Although the parties’ property issues are being determined in Massachusetts, the vast majority of the evidence with respect to parenting issues is Ontario.

Children’s Law Reform Act – section 10

[59] M.A. requests that I consider that U.M.A. was conceived by in vitro fertilization.

[60] Section 10 of the CLRA states:

Definitions

10 (1) In this section and in section 11,

“intended parent” means a party to a surrogacy agreement, other than the surrogate; (“parent d’intention”)

“surrogacy agreement” means a written agreement between a surrogate and one or more persons respecting a child to be carried by the surrogate, in which,

(a) the surrogate agrees to not be a parent of the child, and

(b) each of the other parties to the agreement agrees to be a parent of the child. (“convention de gestation pour autrui”) 2016, c. 23, s. 1 (1).

Application

(2) This section applies only if the following conditions are met:

The surrogate and one or more persons enter into a surrogacy agreement before the child to be carried by the surrogate is conceived.
The surrogate and the intended parent or parents each received independent legal advice before entering into the agreement.
Of the parties to the agreement, there are no more than four intended parents.
The child is conceived through assisted reproduction. 2016, c. 23, s. 1 (1).

Recognition of parentage

(3) Subject to subsection (4), on the surrogate providing to the intended parent or parents consent in writing relinquishing the surrogate’s entitlement to parentage of the child,

(a) the child becomes the child of each intended parent and each intended parent becomes, and shall be recognized in law to be, a parent of the child; and

(b) the child ceases to be the child of the surrogate and the surrogate ceases to be a parent of the child. 2016, c. 23, s. 1 (1).

Limitation

(4) The consent referred to in subsection (3) must not be provided before the child is seven days old. 2016, c. 23, s. 1 (1).

Parental rights and responsibilities

(5) Unless the surrogacy agreement provides otherwise, the surrogate and the intended parent or parents share the rights and responsibilities of a parent in respect of the child from the time of the child’s birth until the child is seven days old, but any provision of the surrogacy agreement respecting parental rights and responsibilities after that period is of no effect. 2016, c. 23, s. 1 (1).

Failure to give consent

(6) Any party to a surrogacy agreement may apply to the court for a declaration of parentage with respect to the child if the consent referred to in subsection (3) is not provided by the surrogate because,

(a) the surrogate is deceased or otherwise incapable of providing the consent;

(b) the surrogate cannot be located after reasonable efforts have been made to do so; or

Declaration

(7) If an application is made under subsection (6), the court may,

(a) grant the declaration that is sought; or

(b) make any other declaration respecting the parentage of a child born to the surrogate as the court sees fit. 2016, c. 23, s. 1 (1).

Child’s best interests

(8) The paramount consideration by the court in making a declaration under subsection (7) shall be the best interests of the child. 2016, c. 23, s. 1 (1).

Effect of surrogacy agreement

(9) A surrogacy agreement is unenforceable in law, but may be used as evidence of,

(a) an intended parent’s intention to be a parent of a child contemplated by the agreement; and

(b) a surrogate’s intention to not be a parent of a child contemplated by the agreement. 2016, c. 23, s. 1 (1).

[61] There is no surrogacy agreement. The parties did not intend to have a surrogacy agreement where the surrogate agrees not to be a parent. Indeed there is no surrogate. Section 10 of the CLRA has no application for married couples that use in vitro fertilization methods to start a family.

Order

[1] There shall be a final order as follows:

The Hague Application brought by M.A. is dismissed.
The Ontario Court has jurisdiction to hear the custody and access application regarding the child, U.M.A., as he is habitually resident in Canada and/or pursuant to section 22(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c C.12.

Costs

If the parties cannot agree on the issue of costs, I shall consider the request for costs. R.K. shall serve on M.A. and file in the Continuing Record her 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. M.A. shall serve on R.K. 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. R.K.’s Reply, if necessary, shall be within 5 days of the delivery of M.A.’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: March 6, 2020

R.K. v. M.A., 2020 ONSC 1465

Case Summary