COURT FILE NO.: 8721-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Medic, Applicant
AND:
Anita Medic, Respondent
BEFORE: The Honourable Madam Justice C. Lafrenière
COUNSEL: K. Humphrey - Counsel, for the Applicant
M. McCarthy - Counsel, for the Respondent
HEARD: October 15, 2020
ENDORSEMENT
1AS A RESULT OF COVID-19, this endorsement is made pursuant to the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media from the Chief Justice of the Ontario Superior Court of Justice, issued May 13, 2020 and the Notice to the Profession, Litigants, Accused, Media and Members of the Public from the Chief Justice of the Ontario Superior Court of Justice, issued June 25, 2020.This endorsement is also made pursuant to the Protocol regarding Family and Child Protection Matters in Central South Region from Regional Senior Justice Arrell, issued April 7, 2020 and the Notice to the Profession in Central South Region from Regional Senior Justice Arrell, issued June 26, 2020.The Notices and Protocol can be found at the Ontario Superior Court of Justice’s website (ontariocourts.ca/scj) and/or at the Hamilton Law Association’s website (hamiltonlaw.on.ca). As referenced in the above Notices, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020 and until further notice. Electronic materials were filed through the Courthouse email address. Upon the resumption of Court operations all materials shall be duly filed by the parties in the physical record at the Courthouse.
Matter before the Court
2I heard the Respondent mother’s application pursuant to the Hague Convention on October 15, 2020 and reserved my decision. This is my decision.
3For ease of reference, I will identify the parties as the father and the mother.
4I have carefully reviewed all of the case law provided by the parties. Both counsel provided a very helpful Statement of Law and Book of Authorities for which I thank them. Both counsel made thoughtful and reasoned argument at the hearing and, again, I thank them.
Final Order
5The mother’s application is allowed. The mother’s application deals only with the parties’ younger child, Luca. The mother has agreed that the parties’ older son, Sebastian, can remain in Ontario and reside with the father.
6I am satisfied the child Luca’s habitual residence is Naples, Florida and that he has been wrongfully detained in Ontario by the father.
7Luca is to be returned to Naples, Florida as soon as possible.
8I am satisfied that the mother agreed that Luca could visit his father in Ontario, and she did not consent or acquiesce to a change in residence for Luca from his home in Naples to his father’s home in Ontario.
9The proper jurisdiction to determine issues relating to Luca is Naples, Florida.
Background Facts
10I find the background facts are as follows:
i. The parties married on November 21, 2001;
ii. They have two children: Sebastian, born December 14, 2005 and Luca born September 21, 2008;
iii. The parties separated in October 2019;
iv. The parties had resided in Naples, Florida with their children since 2014 at the time of their separation;
v. The habitual residence of both children was Naples, Florida at the time of separation;
vi. After the family re-located permanently to Naples, Florida in 2014, the father resided two weeks of each month in Ontario where he continued to operate a business and two weeks of each month with the mother and children in Florida;
vii. After the parties’ separation, the father continued to divide his time between Ontario and Florida as he had done during the marriage;
viii. The children both attended school in Naples from 2014 until the end of the 2019-20 school year;
ix. Luca has an independent learning program (“IEP”) at his school, St. Ann’s in Naples; and,
x. Luca has attended St. Ann’s in Naples since he began Junior Kindergarten.
11I note the mother commenced litigation in Florida on September 17, 2020 and the father commenced litigation in Ontario on September 18, 2020.
The Law
12I set out below the law related to the Hague Convention and the pathway that I have followed in reaching my decision.
The Hague Convention
13The primary intention of the Convention is to preserve whatever child custody arrangement existed immediately before an alleged wrongful removal or retention thus deterring a parent from crossing international boundaries in search of a more sympathetic court.
14The court hearing a Hague Convention application does not determine issues of custody of the child or consider the child’s best interests. The Court’s primary obligation is to ensure the child is returned to the place where those best interests ought to be determined.
15I agree with Justice Turnbull’s observation in Solem v. Solem 2013 ONSC 1097, that the principal objective of the Hague Convention was well articulated in Medhurst v. Markle (1995) 1995 9273 (ON SC), 26 O.R. (3d) 178:
. . . is to prevent the harmful practice of unilateral removal or retention of children from their habitual residence and to require that what is in the best interest of the child be determined by the jurisdiction of the child’s habitual residence at the time of the removal or retention. An application under the Hague Convention is not an application for custody. The welfare of the child, on a Hague application, is relevant only to the question of whether the return of the child would expose him or her to grave risk of physical or psychological harm as provided in art. 13 (b). I believe the intention of the Hague Convention to severely limit the discretion of the court in the country to which the child has been taken or in which the child is retained to do other than order the return of the child once it is found that the threshold conditions have been met. . .
16The objects of the Convention are expressed in Article 1 as follows:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
17Under Article 3 of the Hague Convention “the removal or retention of a child is considered to be wrongful where:
(a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
18Article 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 obtains the age of 16 years.
19Under Article 5 of the Convention “rights of custody” are defined as including the right to determine the child’s place of residence.
20Article 12 of the Hague Convention provides that where a child has been “wrongfully removed or retained” within the meaning of Article 3 of the Convention, and a period of less than one year has elapsed from the wrongful removal or retention until the commencement of the proceeding under the Convention, the authority concerned shall order the return of the child forthwith.
21Article 12 further provides that the judicial or administrative authority shall also order the return of the child even where the proceeding has been commenced after the expiration of the one-year period referred to above, unless it is demonstrated that the child is now “settled in its new environment.”
22Article 3 of the Hague Convention provides that a removal or retention of a child is to be considered “wrongful” if:
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.
23By virtue of these provisions, the determination of a child’s “habitual residence” is a key element to determining if there has been a wrongful removal or retention within the meaning of the Hague Convention.
24The Hague Convention sets out a number of exceptions to the general rule that a child must be returned forthwith to their country of habitual residence if they have been wrongfully removed or retained and the application has been commenced within one year. Article 13(2) outlines one of these exceptions. It permits the Court to refuse to order the return of a child to their country of habitual residence if 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.” The Supreme Court of Canada addressed the proper approach to determining whether the elements of this exception have been established and outlined some considerations which judges should weigh in exercising their discretion under the exception.
Habitual Residence
25The Convention mandates the return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights.
26The term “habitual residence” is not defined in the Convention. It is not intended to be a technical term, but rather the Court should read the term broadly within the context of the Convention’s purpose to discourage unilateral removal of a child from the place in which the child lived when removed or retained. It is akin to the child’s ordinary residence.
27Habitual residence is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or retaining the child.
28The determination of “habitual residence” is a fact-based determination. The Court must look at the facts, the shared intentions of the parties, the history of the child’s location and the settled nature of the family prior to the facts giving rise to the request for return.
29In some cases, courts have looked to the definition of habitual residence set out in Children’s Law Reform Act (“CLRA”) to consider whether or not the child is habitually resident in Ontario.
30An Ontario court may exercise jurisdiction to make a custody or access order under the CLRA in certain circumstances. The first is that the child is habitually resident in Ontario as provided at s. 22(a). Another is that, where the child is not habitually resident in Ontario, the six criteria set out at s.22 (b) are met. A third circumstance is provided at s.23 which allows the Ontario court to exercise jurisdiction if the child is present in Ontario and the court is satisfied there is risk of serious harm to the child, if the Court does not intervene.
31Habitual residence is defined in the CLRA at s. 22 (2):
(2) HABITUAL RESIDENCE – A child is habitually resident in the place where he or she resided:
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time.
whichever last occurred.
32In the matter before me, s.22 (b) and s. 23 are not engaged.
33In Kurotowsaka-Wooff v. Wooff (2004) 2004 5548 (ON CA), 5 R.F.L. (6th) 104 (ONCA), the Ontario Court of Appeal stated, at paragraph 8:
The term “habitually resident” is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562 (H.L.) and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.). See Chan v. Chow (2001) 2001 BCCA 276, 199 D.L.R. (4th) 478 at paras. 30-34 (BCCA); Kinnersley–Turner v. Kinnersly-Turner (1996) 1996 1100 (ON CA), 94 O.A.C. 376 at paras. 19-20. The principles that emerge are:
the question of habitual residence is a question of fact to be decided based on all of the circumstances;
the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
a child’s habitual residence is tied to that of the child’s custodian.
Settled Intention
34In A.H. v. F.S.H.(C) 2013 ONSC 1308, Justice Kruzick considered the meaning of “settled intention” at paragraph [52] and “habitual residence” at paragraph [54]:
52For the meaning of “settled intention” counsel for the mother referred me to R. v. Barnet London Borough Council, [1983] 2 A.C. 309 at 344 (H.L.), cited in Chan v. Chow, 2001 BCCA 276, [2001] B.C.J. No. 904, at para. 33. In these cases, “settled intention or purpose” is explained in the following manner:
[T]here must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
54In Chan, at paras. 31- 32, the British Columbia Court of Appeal set out the following points with respect to habitual residence:
31For the purposes of the Convention, the best and most useful definition of “habitually resident” can be found in Re J. (A Minor) (Abduction: Custody Rights), supra, where Lord Brandon stated:
The first point is that the expression “habitually resident” as used in Article 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances or any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet become habitually resident in country B. The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.
32I accept this definition, particularly, the following points:
1)The question is a question of fact to be decided by reference to all the circumstances of the case.
An "habitual residence" is established by residing in a place for an appreciable period of time, with a "settled intention."
A child's "habitual residence" is tied to the habitual residence of his or her custodian(s).
35The British Columbia Court of Appeal in Chan, at paragraph [34] referred to the useful discussion with respect to the concept of settled intention in Cheshire and North’s Private International Law, 13th ed. (London: Butterworths, 1999) at pp. 166-167:
There must be a degree of settled intention or purpose. This is not concerned with being settled in a country. Instead it describes one’s purpose in living where one does. The element of “animus” required is less than that for domicile. There is no need to show a person intended to stay there permanently or indefinitely. The settled intention can be for a limited period, a period limited by the immediate purpose such as employment. Thus a person can be habitually resident in a country even though he intends at some future date to move to another country
36In A.E.S. v. A.M.W. (2012) ABQB 753, Justice P. R. Jeffrey considered the meaning of “habitual residence”:
The terms “habitual residence” are not expressly defined in either the ICAA or the Hague Convention. This Court in Proia v Proia, 2003 ABQB 576 at paras 20 and 21 respectively, cited with approval the following comments from learned writers in the field of international child abduction laws:
The concept of “habitual residence” refers to that place that is the focus of the child’s life, where a child’s day-to-day existence is centred.
...The concept of habitual residence is not meant to be susceptible of rigid definition. In fact, the [Hague] Convention assumes the concept is well understood to be a fact driven issue. Most cases interpreting the term have deemed the question to be a factual inquiry which depends upon the particular circumstances of each case.
37Justice Jeffrey continued:
The most frequently cited description of “habitual residence” is from the English case of In Re Bates (1989), No CA 122-89, FamD (UK), where that Court stated:
[T]here must be a degree of settled purpose. That purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does have a sufficient degree of continuity to be properly described as settled.
38Justice Jeffery noted that with regard to the child in the matter before him:
Given the young age of A, his habitual residence is determined by reference to his parents’ common intentions, if any, and the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind: Mozes v Mozes, 239 F (3d) 1067 (9th Cir2001) at 1075; Whiting v Krassner, 391 F (3d) 540 (3d Cir 2004) at para 7.
39With respect to the issue of settled intention and changing habitual residence, Justice Jeffery refers to the Ontario Court of Appeal in Ellis v Wentzell-Ellis, 2010 ONCA 347, which stated at para 17:
Settled intent to change habitual residence is determined just prior to the physical move to the new habitual residence... . As here, where the parties no longer agree that they had a shared intention, the Court should not take the representations made by them at face value. Instead, the Court should determine, based on all the evidence, whether the parent had already agreed to change the child’s habitual residence...
40Justice Jeffery states at paragraph [76]:
Duration of stay in a jurisdiction is not determinative of habitual residence, though it is a relevant consideration. In Proia, at para 21, this Court refers to a comment based on a US decision as follows:
The Convention does not require a minimum period of time for a child to remain in a country in order for that country to become the child’s habitual residence. It has been suggested that the time necessary to establish a habitual residence may be as short as one day.
41The Ontario Court of Appeal provided a useful summary from the case law on how habitual residence is to be determined, restated in Ellis at para 22:
As the application judge correctly notes at para. 39 of her reasons, this court held in Korutowska-Wooff that habitual residence involves an intention to stay in a place “whether temporarily or permanently for a particular purpose, such as employment, family, etc.” The principles to be considered when deciding the issue of habitual residence are specified by Feldman J.A. at para. 8 in Korutowska-Wooff and have been repeatedly restated in the jurisprudence:
· the question of habitual residence is a question of fact to be decided based on all of the circumstances;
· the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
· a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
· child’s habitual residence is tied to that of the child’s custodian(s).
42When the period of residence does not clearly indicate that it is a habitual residence for the child, the Court must look to the child’s parents’ intentions, particularly evidence supporting an intention to remain indefinitely or for a certain period of time in the new jurisdiction. The Court must enquire into the shared intention of the people entitled to change or establish the child’s habitual residence, usually the parents, at the latest time their intent was shared. The Court should consider actions, as well as declarations. Then, the Court must determine whether or not the evidence establishes that the child has settled in the new location to the extent that she has acquired a new habitual residence. See R. v. Barnet, supra; Christodoulou v. Christodoulou (2009) CarswellOnt 6275 (Ont. S.C.); Glitter v. Glitter 396 F.3d 124 (2nd Cir. 2005), Proia v. Proia, 2003 ABQB 576, 340 A.R. 363, 41 R.F.L. (5th) 371, [2003] A.J. No. 846, 2003 CarswellAlta 948 (Alta. Q.B.), and, Simpson-Campbell v. Stark-Campbell (2013) ONSC 1328.
Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (S.C.C.)
43The Supreme Court of Canada reviewed the main purposes of the Hague Convention and the harms which the treaty seeks to remedy. It emphasized that international child abductions have serious consequences for the children involved and the parents left behind. It highlighted that abduction can lead to children not only being removed from their familiar home environments and their families, but also to them being transplanted into a culture with which they have no ties, and with vastly different social structures, school systems and sometimes languages. Abduction may also lead to dueling child custody battles in different countries, resulting in harmful delay for the children in question.
44The Court reiterated that the purpose of the Hague Convention is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. It emphasized that a return order is not a custody determination, but rather is aimed at simply restoring the status quo which existed prior to the wrongful removal or retention, and to deprive the wrongful parent of any advantage that may otherwise accrue to them by taking or retaining the child unlawfully. The Court highlighted that the prompt return of children who have been unlawfully removed or retained serves three related purposes as follows:
a) First, it protects against the harmful effects of wrongful removal or retention.
b) Second, it deters parents from abducting children in the hope that they will be able to establish links in a new jurisdiction that might ultimately award them custody.
c) Third, it is aimed at ensuring speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence and eliminating disputes about the proper forum for resolution of custody and access issues.
45The Supreme Court outlined the three general approaches that have developed in the case law for determining a child’s habitual residence within the meaning of the Hague Convention, as follows:
a) The “parental intention approach,” which determines the habitual residence of a child by the intention of the parents who have the right to determine where the child lives. Pursuant to this approach, a child’s habitual residence cannot change to the new location if the parent in the original location gives a time-limited consent to travel and reside in the new location with the other parent.
b) the “child-centred approach,” according to which the Courts determine a child’s habitual residence by the child’s acclimatization in a given country. This approach focuses on the child’s connection to the state, and the intentions of the parents are largely irrelevant.
c) Finally, some Courts have adopted the “hybrid approach,” which involves the judge determining habitual residence by considering all relevant considerations arising from the facts of the case at hand. This approach determines the child’s habitual residence through a broader analysis, looking at all the relevant links and circumstances within the child’s life immediately before the removal or retention. The hybrid approach is fact-bound, practical, and unencumbered with rigid rules, formulas or presumptions.
46The Supreme Court noted that while Courts applying the hybrid approach tend to allude to factors and considerations that tend to recur, there is no legal test for deciding “habitual residence” under this approach, and the list of potentially relevant factors is not closed. The Court highlighted the following factors that may be relevant depending on the circumstances of the case:
The child’s links to and circumstances in country A;
The circumstances of the child’s move from country A to country B;
The child’s links to and circumstances in country B;
The duration, regularity, conditions and reasons for a child's stay in a jurisdiction;
The child's nationality; and
The parents’ circumstances, including their intentions, particularly where the children are young.
47The Supreme Court discussed in further detail the weight that should be given to the intentions of the parents under the hybrid approach. It noted that this is just one of the factors for the Court to consider, and that caution should be taken to avoid over-reliance on this consideration. According to the hybrid framework, parental intention cannot generally by itself be critical to determining a child’s habitual residence. The Court concluded that the weight to be accorded to the parents’ intentions under this approach depends on the unique circumstances of every case. It also stressed that under the hybrid analysis, there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of the child.
48The Supreme Court concluded that the hybrid approach to determining a child’s habitual residence should be adopted in Canada. It reached this decision for two main reasons. First, it concluded that the principle of harmonization supports the hybrid approach. Second, it concluded that the hybrid framework best conforms to the text, structure and purpose of the Hague Convention. Dealing first with the principle of harmonization, the court described this as referring to the goal of establishing uniform practices to the interpretation and application of treaties in the adhering countries. It emphasized that the principle of harmonization is a prime consideration in interpreting treaties. Accordingly, the Court held that it should prefer the interpretation of the concept of “habitual residence” under the Hague Convention that has gained the most support in other Courts and that will therefore “best ensure uniformity of state practice across Hague Convention jurisdictions, unless there are strong reasons not to do so” (at para. 49).
49The Court concluded that the clear trend in the Courts of Hague Convention signatory states in recent years has been to adopt the hybrid approach to addressing the issue of habitual residence. The Court further concluded that there were no strong reasons for not following this trend.
50The second basis for the Court’s decision to adopt the hybrid approach was that this approach best conforms with the text, structure and purpose of the Hague Convention. The Court found that the hybrid approach best fulfills the goals of prompt return in the following ways:
a) It deters parents from abducting children in an attempt to establish links with a country that may award them custody;
b) It encourages the speedy adjudication of custody and access disputes in the forum of the child’s habitual residence; and
c) It protects the child from the harmful effects of wrongful removal or retention.
51The Court further concluded that the hybrid approach also promotes prompt custody and access decisions in the most appropriate forum, thereby offering the best hope of prompt return of the child. It emphasized that the parental intention approach in practice often leads to conflicting and detailed evidence as to the parents’ intentions, which can result in a protraction of the litigation.
52Given that the hybrid approach treats parental intention as one of the relevant considerations among many, the application judge may not necessarily have to come to a definitive conclusion as to which parent’s version of parental intent is more accurate (at para. 63).
53The Court found that the hybrid approach also favours choice of the most appropriate forum with the best available evidence, since it focusses on the factual connections between the child and the countries in question, as well as the circumstances of the move.
54Finally, the Court stressed that the hybrid approach best protects children from the harmful effects of wrongful removal or retention, since it allows for consideration of all relevant factors in a fact-based inquiry, without reliance on formulas or presumptions
55The Supreme Court specifically considered whether under the hybrid approach, a child’s habitual residence can change while staying with one parent in a country under a time-limited consent by the other parent. The Court held that it can. It stated that such a consent would be relevant regarding parental intention, which is a pertinent factor in the analysis, but that the Court should not treat a time-limited consent as a contract to be enforced by the Court in the determination of the child’s habitual residence. In this regard, the Court emphasized that “parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal” (at para. 73).
56The Supreme Court went on to consider the exception to the Court’s obligation to make a return order as set out in Article 13(2) of the Hague Convention. As noted above, this provision permits the Court to refuse to order a return if the application has been commenced within one year of the wrongful retention or removal, the child objects to being returned and the Court is satisfied that the child has attained an age and degree of maturity at which it is appropriate to take account of their views. The Court held that this exception should not be read so broadly that it erodes the general rule regarding return.
57The Court noted that the Court must engage in a fact-based, common sense approach to determining whether the elements of Article 13(2) have been established. It noted that the Hague Convention does not specify particular requirements or procedures to establish sufficient age and maturity and to assess a child’s objection. It held that in most cases, the object of Article 13(2) can be achieved in a single process in which the Court addresses the following three issues:
First, whether the child possesses sufficient age and maturity to make their evidence useful.
Second, the court must determine if the child actually objects to a return to the) original jurisdiction.
Finally, if the child objects to the return, the Court must exercise its discretion to decide whether or not the child should be returned.
58The Court noted that determining sufficient age and maturity is in most cases a simple matter of inference from the child’s demeanor, testimony, and circumstances. However, it acknowledged that in some cases, it may be appropriate to call expert evidence or have the child professionally examined to make this determination. In assessing whether the child objects to the return, and if so, how to exercise its discretion at the third stage of the analysis, the Court should avoid the imposition of formal conditions or requirements not set out in the text of the Hague Convention. However, the Court noted that in deciding how to exercise its discretion at the third stage, the Court should have regard for the nature and strength of the child’s objections, the extent to which they are authentically their own or the produce of influence by the abducting parent, the extent to which the objections coincide or are at odds with other considerations that are relevant to the child’s welfare, and the general considerations set out in the Hague Convention (at para. 81).
59The Supreme Court of Canada stressed the importance of avoiding delay in reaching a final resolution in Hague Convention cases. It highlighted that the Court decried a culture of complacency towards delay within the justice system in the criminal context in R. v. Jordan, 2016 SCC 27 (S.C.C.), and emphasized that delay will likewise not be tolerated in Hague Convention disputes. The Court commented that delay in Hague Convention proceedings imposes hardship, anxiety, and uncertainty on the children involved. It noted that Article 2 requires contacting states to use the most expeditious procedures available to secure the implementation of the Hague Convention’s objects, and that Article 11 specifically requires the judicial authorities of contracting states to act expeditiously in proceedings for the return of children. The Court sent a very strong and clear message that judicial authorities and Court administrators have a positive duty to ensure that Canada lives up to its obligation under the Convention to act expeditiously. To this end, it called upon Courts to consider whether further steps can be taken to ensure that proceedings under the Convention are determined as quickly as possible. It also gave a clear direction to judges hearing these cases that Hague Convention proceedings must be judge-led, not party-driven, to ensure that they are determined expeditiously (at para. 89).
Further Factual Findings and Discussion
60In my decision to allow the mother’s application, I am persuaded by the following factual findings I have made:
i. When the parties separated in October 2019, Luca had been residing and attending school in Naples since 2014;
ii. On March 6, 2020, the mother agreed Sebastian could visit his father in Stoney Creek during Sebastian’s school March break;
iii. Sebastian brought only one suitcase with him;
iv. The visit was extended when Sebastian’s school did not re-open but studies continued on line;
v. The mother eventually agreed Sebastian could transfer to school in Stoney Creek and reside with his father;
vi. On March 28, 2020 in person attendance at Luca’s school, St. Ann’s, was suspended and the mother agreed Luca would visit the father in Stoney Creek;
vii. Luca brought only one suitcase with him;
viii. Due to COVID-19 and the ensuing travel restrictions, the parties agreed Luca’s visit could be extended;
ix. Luca completed his school year at St. Ann’s, virtually in Naples;
x. The mother tried to arrange Luca’s return to her home in June 2020 and the father did not cooperate;
xi. The mother came to Ontario to pick up Luca and the father did not cooperate with Luca returning to the mother’s care and to Naples;
xii. The mother provided the materials Luca needed to attend school virtually at St. Ann’s in Naples;
xiii. When Luca began the 2020-2021 school year, the parties agreed he would attend St. Ann’s school in Naples virtually; and,
xiv. On September 4, 2020, St. Ann’s school de-registered Luca from the virtual learning program, advising that due to his particular circumstances he needed to attend school in person.
61I find that when Luca began his 2020-2021 school year, his habitual residence continued to be Naples, Florida and it continues to be to date.
62The father submits that when the Naples school decided Luca could not attend virtually and needed to attend in person, a critical situation developed because the decision had to be made whether Luca would attend in person in Stoney Creek or in Naples.
63The father submits that he has only wrongfully retained Luca in Stoney Creek since Luca was de-registered from the Naples school, but he further submits that by that time, Luca was habitually resident in Stoney Creek.
64I do not accept the father’s position.
65There is no evidence that would allow me to find the mother consented or acquiesced to Luca remaining in Hamilton for more than a visit until the end of the 2019-2020 school year or the beginning of the 2020-2021 school year. The mother attempted to have Luca returned to her care at the conclusion of his school year in June 2020.
66To make the finding the mother consented or acquiesced to Luca residing in Stoney Creek, the Court requires clear cogent unequivocal evidence of such consent or acquiescence. It is the father’s obligation to present such evidence. He has not done so.
67The mother made it clear in her text messages to the father that Luca needed to return to Naples before the beginning of the school year.
68The mother travelled to Stoney Creek on August 14, 2020 to pick up Luca so that he could return to Naples before the start of the school year. The father did not cooperate with the mother and facilitate the child’s return to his mother’s care.
69The fact that the mother brought Luca’s materials to assist in virtual attendance at the Naples school does not constitute evidence that she agreed or acquiesced to Luca residing in Stoney Creek.
70The mother took a child focused approach, I find, and provided the materials, when it became clear the father was not going to cooperate with her to have Luca returned to his habitual residence in Florida so that he could attend school from his home there.
71I find the mother has taken a child focused approach throughout this matter. She saw an opportunity for Luca to spend time with his father and agreed his stay could be extended because of the COVID-19 pandemic.
72The fact that the decision was made that Luca would attend school virtually in Naples for the 2020-2021 year is persuasive evidence that the parties were acknowledging he continued to be habitually resident in Naples and was only visiting his father in Ontario.
73The mother never consented to Luca attending school in Ontario. I reject the father’s argument that the mother agreed to Luca remaining in Ontario and only changed her mind when he could no longer attend the Naples school virtually. There is no evidence to support such a finding. When the father attempted to register Luca in school in Stoney Creek, he was taking unilateral action and not acting with the consent or acquiescence of the mother.
74I do not find that Luca’s habitual residence had become Stoney Creek by the time his Naples school decided Luca could not attend school virtually.
75To find where Luca’s habitual residence is the Court must consider the focal point of the child’s life. Apart from the child’s home or homes with his parents one of the most important indicators of the focal point of a child’s life is where he attends school. I find the fact that Luca began the 2020-2021 school year in Naples, albeit virtually, is clear, cogent, unequivocal evidence that his habitual residence continued to be in Naples.
76The father has wrongfully retained Luca in Ontario. I do not accept that the wrongful retention is only from the date when Luca was de-registered from virtual learning at his Naples school.
77The father has wrongfully retained Luca since the conclusion of his school year in June 2020, I find.
78There is evidence the mother consented to Sebastian registering for school in Ontario.
79I find the evidence is clear that the mother was repeatedly trying to arrange Luca’s return to Naples before the beginning of the school year. She was doing so from June 2020 when his school year had concluded. There is no evidence to support a finding that the parents’ intended that Luca would reside with his father. The intention was always that it was a visit and that visit was extended because of the global pandemic and the fact that Luca’s school in Naples suspended in person attendance in favour of remote learning.
80In the father’s materials, there is a suggestion he is relying on the grave risk of harm exception set out at Article 13(b). At the hearing of this application, counsel for the father advised he was not relying on that exception, only on the exception related to Luca’s objection to returning to Florida. Had the father relied on this exception, I would have found that the evidence before me does not satisfy the very high threshold required with respect to the “grave risk” exception. There is no evidence upon which I could find that if Luca is returned to his habitual residence in Florida he will suffer “grave harm.”
81The father submits that if the Court finds that Luca’s habitual residence is Naples, Florida, Luca should not be required to return to his habitual residence because of his objection to doing so.
82The father submitted the Court should delay this matter by seeking the input of the Office of the Children’s Lawyer.
83I find it is not in Luca’s best interests to delay this matter any further. He needs to be in school and has not been in school since September 4, 2020.
84I am not persuaded that Luca, at just 12 years old, has attained the age and degree of maturity at which it is appropriate to take account of his views. His views and preferences, if they can be ascertained, will be considered by the Court in Naples.
85I find that if Luca is afraid to return home because of the COVID-19 pandemic as the father submits, the father has not supported Luca adequately but has allowed a situation to develop in which the child believes he will not be safe in his mother’s care. The father has allowed Luca to believe that his mother cannot take the necessary precautions to keep him safe in his own home in Florida. I find allowing such a situation to develop is not in Luca’s best interests and does not demonstrate that the father is putting Luca’s needs first. I find the father is attempting to put Luca in the middle of a custody contest between his parents. Clearly the father is not acting in Luca’s best interests in so doing.
86I find the father is not taking a child focused approach. If he truly believes it is in Luca’s best interests to reside in his primary care, he can put his position before the Court in Naples, the place having the jurisdiction to make decisions about Luca.
87I find the father is attempting to take advantage of the global pandemic to gain an upper hand in the litigation. There can be no doubt and I find without hesitation the only reason Luca’s visit to his father was extended was because of the pandemic.
Final Order
88As noted above, the mother’s application is allowed. Luca is to be immediately returned to his habitual residence of Naples, Florida.
89Should the parties have any difficulty arranging Luca’s immediate return to Naples, Florida, a time before me may be arranged through the Trial Coordinator.
90The mother has been successful on her application and is presumptively entitled to her costs. If the parties cannot resolve the issue of costs, written submissions may be filed as follows:
a) The mother may serve and file written submissions of no more than 3 pages plus a Bill of Costs and any Offers of Settlement by November 6, 2020;
b) The father may serve and file written responding submissions of no more than 3 pages plus a Bill of Costs and any Offers of Settlement by November 20, 2020; and,
c) The mother may serve and file reply written submissions of no more than 1 page by November 27, 2020.
Date: October 22, 2020