Court File and Parties

Court File No.: FC-20-732-0000 Date: 2020-10-13 Superior Court of Justice - Ontario

Re: Archie James Rainey, Applicant And: Kathryn-Renee Arlene Summers, Respondent

Before: Madam Justice R.S. Jain

Counsel: L. Kirwin, Counsel for the Applicant D. Friend, Counsel for the Respondent

Heard: October 1, 2020

Reasons for Judgment

Introduction

[1] The Applicant brought a motion under the Hague Convention seeking an order declaring the habitual residence of the child Archie James Rainey ("Archie" and/or "the child") born August 21, 2012 to be Drexel, Missouri, USA and further declaring that the proper jurisdiction to deal with issues of custody and access to the child is Drexel, Missouri, USA. The Applicant further requested an order directing the Respondent to return the child immediately to the Applicant by making the child available to the father to pick up at the Respondent's home in Tiny Township, Ontario within 5 days of making the order. If necessary, the Applicant seeks an order for police enforcement of the order to locate, apprehend and deliver the child to the Applicant.

[2] This motion originally came before me on September 10, 2020. The Respondent requested an adjournment which was denied at first. However, after hearing submissions from the Respondent regarding allegations of risk of physical or psychological harm to the child if returned to his father's care in Missouri, I reconsidered her request. I granted her a short adjournment to obtain legal counsel and file responding materials.

[3] The Respondent objects to the Applicant's motion and filed a responding motion seeking an order dismissing the Applicant's motion and an order finding that the jurisdiction for issues of custody and access to the child is the Ontario Superior Court of Justice – Family Court in Barrie. She further seeks a comprehensive order regarding custody and access to the child (including holiday sharing).

[4] The issues in this motion are as follows:

(a) What is the child's habitual residence and does this court have jurisdiction to determine the custody and/or access for the child?

(b) Was the child wrongfully retained by the Respondent?

(c) Should the court exercise its discretion under Article 13 of the Hague Convention to not return the child to Missouri?

Decision:

[5] For the reasons set out below the Applicant's motion is granted. The court agrees that Archie's habitual residence is Drexel, Missouri, USA and that the Respondent wrongfully retained him. There shall be an order declaring the child's habitual residence and a further order declaring Drexel, Missouri, USA the proper jurisdiction to deal with issues of custody and access to the child. There shall also be an order directing the Respondent to return the child immediately to the Applicant and for police enforcement (if necessary).

Analysis:

Habitual Residence, Jurisdiction and Wrongful Retention

[6] The parties resided together in Missouri, USA from approximately 2011 until 2015. There is one child of the relationship, Archie James Rainey born August 21, 2012 (hereinafter "Archie" or "the child"). There is a final court order that deals with the custody of Archie. The "Judgment of Paternity, Custody and Support" dated August 8, 2016 and the attached Parenting Plan dated August 10, 2016 was registered and filed with the Circuit Court of Jackson County, Missouri.[^1] In this Judgment and Parenting plan it clearly states that the parties have "joint legal and joint physical custody" of the child with the father's "address designated for educational and mailing purposes." That court made findings that Archie was born in Jackson County Missouri. That court made further findings that "Missouri is the home state of the minor child" and that the Missouri court "has jurisdiction to enter orders affecting the child."

[7] It is acknowledged by both the father and mother that approximately one year after the above judgment and parenting plan was finalized, the mother moved back to reside in Tiny, Ontario, Canada in 2017. The parties then entered into travel agreements in 2018 and 2019 so that Archie could visit his mother. When the mother returned to live in Canada, the child commenced residing primarily with his father in Missouri.

[8] In this matter, both parties are seeking declarations of jurisdiction and other relief as set out in the Hague Convention. The primary purpose of the Hague Convention, as stated in the preamble, is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence.[^2] The specific Articles of the Hague Convention that are relevant to this matter are Articles 3, 4, 12 and 13.

Article 3 provides:

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 the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

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

Article 4 provides:

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 provides:

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 concerns shall order the return of the child forthwith.

Article 13 provides:

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposed its return establishes that:

(a) the person, institution or other body having the care of the person of the chid 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 chid 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.

[9] According to the Hague Convention, the retention of a child is considered "wrongful" if 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."[^3] The Hague Convention applies to any child that is "habitually resident" in a Contracting State "immediately before any breach of custody or access rights."[^4]

[10] The Respondent says that since the parties have "joint custody" and since the child is currently physically here with her in Ontario, the "balance of convenience" is for the Ontario Superior Court of Justice – Family Court to take jurisdiction.

[11] However, in this case, there are numerous undisputed material facts that support the court making the findings requested by the Applicant:

1. There is a Judgment of Paternity, Custody and Support and a Parenting Plan dated August 10, 2016 registered and filed with the Circuit Court of Jackson County, Missouri.[^5] In this Judgment and Parenting plan it clearly states that the parties have "joint legal and joint physical custody" of the child. It further states that "Missouri is the home state of the minor child" and that it is the Missouri court that "has jurisdiction to enter orders affecting the child."

2. The father and child have always resided in Missouri, USA.

3. It is acknowledged by both the father and mother that after the above judgment and parenting plan was finalized, the mother moved back to Canada.

4. After the mother returned to live in Canada, Archie resided primarily with his father in Missouri.

5. Archie is an American citizen.

6. Until now, Archie attended Drexel Elementary School in Missouri.

7. The mother and father signed travel agreements that clearly indicate the child resides with the Applicant and visits with the Respondent.[^6]

8. The mother acknowledged in her affidavit that she "intended" to return Archie to the father's care after the visit.

9. The mother acknowledged that she had retained a lawyer in Missouri to deal with the custody and access issues and to change the current final custody order and parenting plan.

10. The above mentioned final custody order and parenting plan has not been appealed.

11. The parties entered into a Travel Agreement on June 6, 2019 that set out the child's residence with his father in Missouri. It further acknowledged that it is both parties "mutual belief that the best interests of the child" will require "visits" with the mother in Ontario.

12. There is no expiry date contained in the June 6, 2019 Travel Agreement.

13. The father never acquiesced to Archie's residence changing or for him to remain in the mother's care in Ontario, Canada.

14. The mother registered the child for school in Ontario without the father's consent.

[12] Based on the above undisputed material facts, I find that there is overwhelming evidence to support the finding that Archie is habitually resident in Missouri, USA. I further find that the final Judgment of Paternity, Custody and Support and a Parenting Plan dated August 10, 2016 is deemed to be an "order of the court" and the subsequent Travel Agreements are deemed to be agreements that are "enforceable and have legal effect under the law." I find that the preponderance of convenience does not favour Ontario having the jurisdiction to determine the custody and access issues at this time.

[13] The father and child have always resided in Missouri and the evidence relevant to the custody and access dispute is mainly in Missouri. Any unfairness to the mother, which she has not shown, would be outweighed by unfairness to the father if forced to litigate in Ontario. Therefore, I find that the state of Missouri, USA is the proper jurisdiction to deal with the issues of custody and access to the child. As a result, I find that the mother did wrongfully retain Archie and therefore, this court must and shall order his return back to Missouri and into his father's care (unless the Respondent established one of the exceptions set out in art. 13).

Discretion under Article 13

[14] The language in art. 12 clearly and unequivocally states that if a child has been "wrongfully removed or retained in terms of art. 3" the court "shall order the return of the child forthwith" (emphasis added). However, according to art. 13, there are some limited exceptions to the requirement to order the return of the child. These exceptions include: acquiescence to the removal or retention of the child; and, grave risk of physical or psychological harm to the child if returned which would place the child in an "intolerable" situation. It is clear that Archie was residing primarily with the father immediately prior to the wrongful retention. It is further acknowledged that the father never acquiesced or consented to the wrongful retention. The only exception the mother could rely upon was art. 13 (b) alleging there was a "grave risk" to Archie that if returned to the father's care, he would be placed in an "intolerable" situation. When considering the risk of harm under art. 13 (b), the court must be satisfied that it is grave, weighty and severe, and that the "intolerable" situation is substantial and non-trivial.[^7] Additionally, the evidence to establish a risk of physical or psychological harm must be credible and meet a high threshold.[^8]

[15] In this matter, neither party requested an oral hearing on the issue of the alleged "grave risk" and "intolerable" situation. Both parties served and filed detailed affidavit evidence. On the basis of the affidavit evidence filed, and the material and/or undisputed facts, the court was able to determine this issue without the need to conduct an oral hearing.

[16] The Respondent served and filed an affidavit dated September 23, 2020 that outlined all of her concerns about returning the child to Missouri and the care of his father. Mr. Friend made submissions that the court should make a finding that considers all of the mother's concerns together as mounting up to a "grave risk" that if the child was returned to the care of his father he would be placed in an "intolerable" situation. The mother further says that due to all of her concerns, it is in the child's best interests to remain in her care in Ontario, Canada.

[17] The Applicant argued that the "best interests of the child" are not relevant for any of the purposes under the Hague Convention, including art. 13 (b). In my view, this argument is not correct. The interests of a particular child are not irrelevant for all purposes under the Hague Convention, including art. 13 (b). As stated by Abella J.A. in Pollastro v. Pollastro:

...it is difficult to see how the assessment required under art. 13(b) of risk, or harm, or of whether a situation is intolerable, can be made without reference to the interests and circumstances of the particular child involved in the proceedings.[^9]

[18] Therefore, the court cannot simply ignore evidence respecting the child's interests if such evidence shows that there is a grave risk of physical or psychological harm or that if returned to his father's care, the child would be placed in an "intolerable" situation.

[19] In the mother's affidavit, she attached letters from the paternal grandmother, paternal aunt and maternal grandmother that purported to support her claims.[^10] The letters were all unsigned and unsworn and contained hearsay. The letters described: historical conflicts with the father's wife; opinions about the father's wife doing most of the parenting for the child because the father is at work; different treatment of the children in the house, (the father's wife has a daughter from a previous relationship). The affidavit and letters also spoke about the father's parenting style and offered opinions and criticisms about the child's level of hygiene, haircuts and the amount and nutrition of the food given to the child when in the father's care. The mother says that the child has not grown or reached developmental milestones while in the father's care. The mother stated she had concerns about the father's wife (who does some of the parenting) having criminal charges and/or convictions. The mother further made allegations about her concerns regarding the COVID-19 pandemic and that it is not safe for Archie to return to his father's care or attend school in Missouri.

[20] The mother provided the court with no medical, educational or social service evidence of her allegations and concerns. She did not provide the court with any proof that Archie is not reaching his developmental milestones except to say that he doesn't know how to tie his own shoelaces at the age of 8 and/or he does not know his phone number. The evidence of the father's wife's criminal charge/s showed they were historical and are not related to the father or the child (the charges were from 2013 – many years prior to the final judgement and travel agreements).[^11] Despite the above allegations, the mother acknowledged that Archie is an intelligent little boy and that he does well in school, (she gave the father no credit for Archie's academic achievement or success).

[21] The father provided a copy of Archie's recent Student Information Report with an attached hand written note from the Assistant Principal Doug Chisam at Drexel Elementary School. The Report shows that Archie is a strong student with high grades in almost every subject. The unsworn note from the Assistant Principal says, "We saw no signs of abuse with Archie Rainey Jr."[^12] The father also provided a signed letter dated September 24, 2020 from Archie's kindergarten and grade one teachers that says, "We have not witnessed any evidence of abuse to Archie Rainey Jr. If we had we would have followed the mandatory reporting to the proper authorities."[^13]

[22] The father provided a signed letter from the Children's Division of the Missouri Department of Social Services dated September 25, 2020. This letter said that "at this point in time, having had no reports of concern since 2017, and the home being appropriate for any child, we are confident that the Rainey family is appropriate and prepared to care for a child."[^14] Although both the note from the Principal and the letters from the teachers and the Missouri Department of Social Services are hearsay, the court did consider them in making its decision, (as their information related to the social background of the child and came from a competent authority of the child's habitual residence - as required by art. 13).

[23] The Respondent may have good intentions to protect the child from exposure to the COVID-19 virus during the pandemic, but such intentions cannot be used by her to unilaterally change the child's habitual residence or the custody and access order, (especially when she took the risk of travelling to Missouri to pick up Archie in May 2020 – during the height of the pandemic). Ms. Kirwin stated that the father has been following all government protocols with respect to COVID-19 and that the Drexel school has implemented comprehensive safety protocols regarding COVID-19. The Applicant provided a copy of the "COVID-19 Return to School Plan" for the child's school in Drexel, Missouri.[^15]

[24] In my view, neither of the parents wish or intend to unnecessarily expose the child to COVID-19. Just as the Respondent was trusted to do her best to protect Archie from exposure to the virus during the travel and the visit, the Applicant will be given that same trust (so that the existing parenting arrangements and schedules continue). Archie must be returned to his habitual residence in Missouri.

[25] Additionally, I found the Respondent's behavior, statements and alleged concerns troubling as they were contradictory and conflictual. She signed a travel agreement dated June 6, 2019 that acknowledges the child resides with his father in Missouri and outlines the schedule for Archie's visits with his mother. During the height of the pandemic, she drove to Missouri to pick up the child in May 2020. From May 2020 until mid-August 2020 she acknowledged in texts and emails on multiple occasions that the child was supposed to return to the care of the father around the Father's Day weekend. When this did not work out, the mother advised the father on multiple occasions that she wasn't trying to keep Archie from his father. At first, she cited financial and work related reasons for why she could not deliver Archie back to his father's care. There was no mention of her so called concerns about the father's parenting.

[26] The father tried to negotiate ways to return Archie in July and August. The mother did not agree to any of the father's suggested meeting places for the exchange and further did not agree to allowing Archie to fly back home. She suggested that it was not "essential travel" for her to return the child to his father, but that it was "essential travel" if the father drove to Ontario to pick Archie up. So, on August 17th, 2020 the father drove 19 hours from Missouri to Tiny Township, Ontario to pick Archie up. I find that it was poor communication on the Applicant's part to not give the Respondent notice of his plan to drive to Ontario to pick up Archie. However, it is also understandable because the Respondent's vague responses and delays were beginning to indicate that she had no intention of returning Archie voluntarily. This intention was made crystal clear when the Respondent refused to cooperate on August 17th, 2020 and she did not allow the child to go home with his father despite the police being involved. It is concerning to the court that shortly after this event, the Respondent began planning to register Archie in school in Ontario and stopped communicating with the father all together.

[27] The court is not disregarding the Respondent's concerns about the father's parenting for Archie. I have no doubt that the Respondent sincerely believes that she is acting in Archie's best interests. However, even if all of the Respondent's concerns and allegations were found to be completely true and accurate, in my view, taken separately or together, they do not amount to a "grave risk of physical or psychological harm" or an "intolerable" situation as is required by art. 13 for a court to refuse to order the return of the child.

[28] Therefore, the court finds that Archie is not at grave risk of physical or psychological harm pursuant to art. 13 if returned to his father's care. After Archie is returned to Missouri, the parties may continue their dialogue and negotiations about the nature and extent of his contact with the Respondent and/or a change in the terms of custody and access, however, the law requires that those steps take place in Missouri. A decision under the Hague Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.[^16] For all the reasons set out above, order to go as follows:

Order:

[29] Order:

1. The habitual residence of the child Archie James Rainey ("the child"), born August 21, 2012, is declared to be Drexel, Missouri, USA and the proper jurisdiction to deal with the issues of custody and access to the child is Drexel, Missouri, USA.

2. The Respondent Mother, Kathryn-Renee Arlene Summers, shall return the child immediately to the Applicant Father Archie James Rainey by making the child available to the father to pickup the child at the Respondent Mother's home located in Tiny Township, on a date and time agreed upon by the parties but in any event within 7 days of making this Order.

3. If necessary, upon request of the Applicant Father and receipt of an original court order or certified copy of the order, pursuant to s. 36 of the Children's Law Reform Act, the police force having jurisdiction in any area where it appears that the child may be shall locate, apprehend and deliver the child to the Applicant Father.

4. For the purpose of locating and apprehending the child, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be at any time.

5. The Respondent Mother's approval of the Order shall be waived.

[30] Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, the Applicant is the successful party and is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant serving and filing his submissions on or by October 19, 2020, followed by the Respondent serving and filing her submissions on or by October 26, 2020, then the Applicant's reply submissions, if any, served and filed on or by November 2, 2020. Cost submissions shall be no more than 3 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by November 2, 2020, the issue of costs will be deemed to have been settled between the parties.

R.S. Jain

Date: October 13, 2020

[^1]: Exhibit "A" referred to in the Applicant's affidavit dated September 1, 2020. [^2]: Office of the Children's Lawyer v. Balev, 2018 SCC 16 [Balev]; Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, at pp. 579-81 [Thomson]; Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983, art. 1 [Hague Convention]. [^3]: Article 3, Hague Convention [^4]: Article 4 of the Hague Convention [^5]: Exhibit "A" referred to in the Applicant's affidavit dated September 1, 2020. [^6]: Exhibit "C" referred to in the Applicant's affidavit sworn September 1, 2020. [^7]: Thomson v. Thomson 1994 26 (SCC), [1994] 3 SCR 551 [^8]: Pollastro v. Pollastro (1999) 1999 3702 (ON CA), 43 O.R. 3rd, 485 (Ont. C.A.) [^9]: Pollastro v. Pollastro (1999) 1999 14782 (ON SC), 43 O.R. 3rd, 483 (Ont. C.A.) [^10]: Exhibits "B, C, and D" referred to in the Respondent's affidavit sworn September 23, 2020. [^11]: Exhibit "A" referred to in the Respondent's affidavit sworn September 23, 2020 [^12]: Exhibit "B" referred to in the Applicant's affidavit sworn September 1, 2020 [^13]: Exhibit "A" referred to the Applicant's affidavit sworn September 29, 2020 [^14]: Exhibit "D" referred to in the Applicant's affidavit sworn September 29, 2020 [^15]: Exhibit "C" referred to in the Applicant's affidavit sworn September 29, 2020 [^16]: Article 19 states, "A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."