Court File and Parties

COURT FILE NO.: FS-20-18138 DATE: 20210226

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph Salvatore AND: Suelyn Gomes Medeiros

BEFORE: J.T. Akbarali J.

COUNSEL: Esther Lenkinski and Adrienne Novak, for the Applicant Erin K. Crawford and Stephanie Garbe, for the Respondent Jane Long, Office of the Children’s Lawyer, for the child

HEARD: February 16, 2021

Endorsement

Overview

[1] The primary focus of this motion is to determine whether the parties’ child, who is seven years old, should be returned to Los Angeles, California under the Convention of the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”). This requires me to determine the habitual residence of the child, and, if I find the child to be habitually resident in California, to determine whether any of the exceptions to the return of the child under the Hague Convention apply.

[2] If the child is habitually resident in Ontario, or if I order that the child should remain in Ontario on a temporary basis, the applicant father seeks interim parenting orders, including an order that (i) the child shall continue to remain in Ontario, (ii) the applicant shall make all major decisions for the child, (iii) the respondent mother’s parenting time shall be supervised, and (iv) the respondent shall remove an Instagram account and other social media accounts for the child, and images of the child from the internet.

Background

[3] The parties met around 2011. They dated for about 18 months. Towards the end of their relationship, the respondent became pregnant. The parties’ son is now seven years old.

[4] There is no dispute that, on June 22, 2020, the child was habitually resident in Los Angeles, California, where he lived with the respondent, who holds American and Brazilian citizenship. The applicant, who is Canadian, travelled to Los Angeles multiple times each year to have parenting time. The applicant purchased a condominium in Los Angeles where the respondent and child lived, and where he stayed while in Los Angeles. The child went to school in Los Angeles.

[5] The child also had regular parenting time with the applicant in Ontario. He spent winter and summer holidays in Ontario. When he was younger, the respondent would accompany him to Ontario, but in recent years, he has spent summer and winter holidays in Ontario without the respondent present.

[6] He is close with his paternal family. His paternal grandparents travelled to Los Angeles regularly, twice per year, to see the child. He is also close with his paternal aunt and uncle, and his cousins.

[7] When they were not physically together, the applicant and child would speak on FaceTime nightly.

[8] The parties disagree about how much time the applicant and the child spent together, but on any measure, it was significant. The applicant clearly made efforts to be an engaged and involved parent despite living in Toronto for work while the child lived in Los Angeles.

[9] On June 22, 2020, the child travelled to Ontario with the applicant father to spend the summer. The plan was for the child to return to Los Angeles at the end of August for school. On July 19, 2020, the mother texted the father to say she was “moving to Brazil for a while”, and that she was not well. She said it was best if the child stayed with the applicant “until the new year”, and, at another point in her text, “until she was better”.

[10] After that time, despite efforts to contact her, neither the applicant nor the child heard from the respondent for a month. The applicant commenced these proceedings seeking an urgent, temporary custody order, which was granted on August 27, 2020.

[11] The applicant enrolled the child in a private school, attended to the child’s medical and dental needs, and extra-curricular activities, as best as he could in the middle of a pandemic.

[12] The respondent returned to California on October 12, 2020. She argues that, as of her return to Los Angeles, the applicant no longer had her consent to keep the child in Ontario, and he should have been returned to Los Angeles then, or at the very least, by January 1, 2021. She seeks the child’s immediate return.

[13] Proceedings have been commenced in California, and as I understand it, a jurisdictional motion is scheduled to be heard there in late March 2021.

[14] The respondent argues that she never consented to anything other than a temporary stay for the child in Ontario, and the child’s habitual residence never changed to Ontario. She states he must be returned to Los Angeles, where the California court can address the parenting issues.

[15] The applicant argues that the focal point of the child’s life shifted to Ontario at some point in the summer of 2020, such that the child is habitually resident in Ontario. In the alternative, the applicant relies upon the exceptions to the Hague Convention operate to prevent the child’s return to California, and specifically, the exceptions that (i) the applicant was not exercising custody or consented to the retention of the child in Ontario; (ii) there is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable solution; and (iii) the child is of sufficient age and maturity and objects to being returned.

[16] The Children’s Lawyer acts for the child. It has adduced evidence indicating that the child wants to remain in Ontario. It argues that the child was not wrongfully retained in Ontario, and that the child’s habitual residence is Ontario.

Issues:

[17] The issues I must determine on this motion are:

a. Which is the proper forum to determine the issues of custody and access – Ontario or California? This requires me to determine whether the child is habitually resident in Ontario, and if not, whether any exceptions to his return to California under the Hague Convention apply.

b. If I find that this court has jurisdiction over the parenting issues, what parenting orders are appropriate with respect to decision-making, the child’s primary residence, and parenting time? In particular, the applicant seeks the following:

i. An order that the child continue to reside in Ontario on a temporary basis, and that the applicant shall make all major decisions about his education, health and welfare pursuant to s. 28(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12.

ii. A declaration that the applicant is the parent of the child under s. 13 of the Children’s Law Reform Act.

iii. An order that the respondent’s access to the child shall be subject to her following all federal and provincial COVID guidelines and recommended hygiene protocols both when she is alone and with the child, failing which her parenting time shall be by video only.

iv. An order that the respondent’s access to the child shall be supervised by Brayden or another supervising facility at the applicant’s expense until the respondent has a demonstrated history of stability.

v. An order that the respondent shall release all information with respect to the health, education, and welfare of the child to the applicant pursuant to s. 28(1) of the Children’s Law Reform Act.

c. If I find that this court has jurisdiction over the parenting issues, should I order the respondent to immediately remove from the internet the Instagram account the respondent maintains for the child and any other social media accounts, together with all videos or images referable to the child? Should I order that she not post to the internet any writing, videos or images referable to the child going forward?

d. What costs should be ordered on this motion?

Preliminary Issue – Motion to Strike

[18] The applicant brought a motion to strike certain paragraphs and exhibits from the respondent’s affidavit on the basis that they were not proper reply. We discussed this motion at the outset of the hearing, and the applicant advised that he would withdraw the motion if the respondent limited her use of the evidence in the impugned paragraphs and exhibits to challenge credibility only. The respondent agreed, and on this basis, the motion to strike was withdrawn.

The Hague Convention

[19] The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.

[20] Article 3 of the Hague Convention provides that 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: Balev, at para. 28.

[21] If the requirements of article 3 are made out, the court must order the return of the child forthwith, unless certain exceptions, set out in article 13 of the Hague Convention, apply. As I have already noted, the exceptions the applicant relies on here are: (a) the parent seeking return was not exercising custody or consented to the removal or retention; (b) there is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation; and (c) the child of sufficient age and maturity and objects to being returned: Balev, at para. 29.

[22] Here, there is no allegation that the child was wrongfully removed. The respondent alleges that the child has been wrongfully retained in Ontario.

[23] For article 3 of the Hague Convention to apply, the child must have been habitually resident in California immediately before the wrongful retention. The applicant challenges the application of the Hague Convention on the basis that immediately before the alleged wrongful retention, the child was habitually resident in Ontario. In Balev, at para. 37, the Supreme Court of Canada held:

The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.

[24] The Court endorsed a hybrid approach to determining a child’s habitual residence. The hybrid approach does not focus primarily or exclusively on either parental intention, or on the child’s acclimatization in a given country. Rather, using the hybrid approach, the court determines the “focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to the removal or retention”: Balev, at paras. 40-43.

[25] The judge considers all of the child’s relevant 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: Balev, at para. 43. These 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.

[26] The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.

[27] The framework for dealing with Hague Convention proceedings was helpfully described in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.l.R. (4th) 517. There, the court described a two-stage analytical framework arising out of Balev, which I summarize briefly here:

a. Stage One – habitual residence of the child.

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

ii. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident, having regard to the approach set out in Balev?

b. Stage Two – if the child was habitually resident in the country of the parent invoking the Hague Convention, the Hague Convention applies, and the court proceeds to this stage, in which it shall order the return of the children unless one of the exceptions applies.

[28] There is no minimum period required to establish habitual residence. It can be established in as short a period of time as one day: Unger v. Unger, 2016 ONSC 4258, 88 R.F.L. (7th) 64, at para. 79.

Stage One – Habitual Residence

[29] The respondent alleges that the wrongful retention began when she returned to California on October 12, 2020, because she states she was better by then, and able to care for the child again. The question is therefore where the child was habitually resident immediately before that date.

[30] As noted, the child travelled to Ontario on June 22, 2020 for what was then expected to be a stay until late August 2020, when the child was expected to return to Los Angeles in time for the new school year. However, on July 19, 2020, those plans changed abruptly as a result of unilateral actions taken by the respondent, which were communicated to the applicant in the form of series of text messages. They read, in part:

[The respondent’s sister Raquel] has been taking care of me and cooking for me….She’s in a good place and really took care of me this week. I really needed it. …

Thank you. I’m sorry. Please tell [the child] I love him more than anything forever.

Raquel was homeless so I told her she can stay at the [condominium owned by the applicant] since she can’t go to Brazil right now due to court dates etc.… I’m moving to Brazil for a while. I’m not well. I’m healing and grieving with my mother Marcia and family. I think it’s best for [the child] to stay with you guys until the new year. I am not well and can’t take care of anyone right now. I just can’t. I need to heal and get better. Can [the child] stay their with you guys until I’m better?

If so you should cancel your flights to LAX and get your money back now.

Marcia and my mom are alone they need me and I need them. Going to go visit my grandmother and uncle Orland tomorrow.

I’ll be staying with Marcia and My mother we will take care of eachother for now.

Please tell [the child] and explain in the best way you can for his age and knowledge.

Please tell [the child] I love him [1]

[31] The applicant does not know who Marcia is.

[32] On July 20, 2020, the applicant received a text message from the respondent indicating that she had landed safely in Sao Paulo and was on her way to Rio De Janeiro.

[33] Two days later, he received a text message from the respondent asking for help in securing a flight from Brazil to Canada “today.” The respondent suggests the applicant hacked her phone and sent the text. He denies having done so. It is unclear what he could have gained by having done so.

[34] The applicant attempted to contact the respondent by phone, but she did not respond. He did not know where the respondent’s mother was in Brazil, and so could not attempt to contact her through her mother.

[35] Several days after receiving the text messages, the applicant saw a news article that reported the respondent had been stopped on a beach in Brazil by police because she was acting erratically and was not wearing a mask, contrary to COVID-19 protocols. She was reported to have had drugs in her possession. According to the article, the respondent had been admitted to a hospital that focuses on mental health care. The applicant tried to contact the hospital, but it would not confirm if the respondent was a patient there.

[36] The applicant made efforts to contact the respondent at the phone number he regularly used to communicate with her, and by email, but received no response.

[37] The applicant had some contact with the respondent’s sister Raquel on August 3, 2020, August 12, 2020, and August 19, 2020. Raquel indicated that she had been in touch with the respondent, but despite being asked, did not tell the applicant where the respondent was. Raquel indicated the respondent was in Brazil with her mother, and had poor cell service, but that she did not know her address. Raquel stated that she messaged the respondent or her mother to tell them to call the applicant.

[38] On August 12, 2020, the applicant swore an affidavit in support of an urgent motion for temporary custody of the child. At that time, the respondent had not been in touch with the child since July 20, 2020, when she had contacted him by FaceTime. The applicant deposed that she seemed to be drunk during that call. After the call ended, the child told the applicant that he had thought the respondent was dead, because she was in Brazil, and COVID-19 is in Brazil.

[39] In his motion, the applicant sought an order for substituted service, and to that end, had served a copy of his materials on the respondent’s sister Raquel.

[40] On August 18, 2020 and August 19, 2020, the applicant noticed posts to the respondent’s Instagram account, including photos and a video in which the respondent said she was doing wonderfully, eating healthy, training and playing volleyball every day. [2]

[41] Then, on August 19, 2020, the respondent called the applicant on FaceTime from an unknown number. She refused to tell the applicant where she was, apart from confirming she was in Brazil. She stated she was in Sao Paolo on a ranch but refused to provide the address. She claimed to have no wifi and said her phone had been stolen.

[42] When the applicant asked about her plans with respect to the child, the respondent confirmed having received the applicant’s emergency motion materials from Raquel. She told the applicant that she had been arrested and hospitalized in Brazil.

[43] According to the applicant, the respondent supported his decision to enroll the child in school in Canada. I accept this evidence; it is consistent with the text message that the respondent sent to the applicant before she left for Brazil. Given her request that he keep the child until she got better, or until the new year, she must have intended for the child to attend school in Canada.

[44] The parties planned for the respondent to speak to the child on August 20, 2020.

[45] On August 20, 2020, the respondent and the child had a brief conversation via FaceTime. Thereafter, the respondent sent the applicant text messages from a new number, proposing that the parties’ plan the child’s upcoming birthday party, for his late October birthday, in Canada. The respondent also communicated with the applicant through a new email address.

[46] An email she sent to the applicant attached a handwritten letter, which included a strange explanation of what had occurred on the beach in Brazil that led to the newspaper article. She stated that she had been robbed by two children, was knocked down by police, and kept in a cell, but it was a misunderstanding. She stated that she was released, she bought a new phone, and then went swimming in the ocean while police officers watched her belongings. After swimming, she did not feel well, so police took her to a hospital where she was given a shot that made her feel blurry and put her to sleep. When she awoke, her mother and a woman named Marcia were with her. She then went to a family ranch in a remote area with limited wifi.

[47] On August 27, 2020, Czutrin J. made a temporary, without prejudice order granting custody of the child to the applicant and restraining the respondent from taking the child from Toronto without the applicant’s consent or a court order. He also sought the involvement of the Office of the Children’s Lawyer, which initially took steps to complete a s. 112 report, and subsequently assigned counsel for the child.

[48] After receiving the order for temporary custody of the child, the applicant took the following steps:

a. Enrolled the child in a private school where, by all accounts, he has been thriving, and attending in person except for those times when schools have been ordered closed due to the pandemic;

b. Registered the child for intramural activities at school, which were to begin in accordance with COVID-19 safety protocols when safe;

c. Took the child to an optometrist to assess his vision, and, on the optometrist’s recommendation, enrolled the child in vision therapy;

d. Took the child to a pediatric dentist, who concluded that the child had eight cavities and a cap. The applicant has ensured that the child’s cavities and cap have been looked after. The applicant has also taken the dentist’s advice to work with the child on improving his oral hygiene;

e. Took the child to a pediatrician who confirmed the child’s excellent health;

f. Took the child to a therapist who he has been seeing regularly,

g. Arranged play dates for the child with friends from school until COVID-19 prevented him from doing so.

[49] The applicant also began providing the respondent with weekly updates about the child’s health and wellbeing.

[50] The child spent significant time with his paternal aunt, uncle and cousins, until the families were no longer able to do so as a result of the COVID-19 protocols. The applicant, as a single parent, has bubbled with his own parents, so the child continues to see his paternal grandparents regularly.

[51] As noted, the child has made friends at school and settled in well.

[52] The clinician from the Office of the Children’s Lawyer delivered an affidavit on the motion in which he gives evidence about the child’s views and preferences, which are to remain in Ontario. The clinician perceives the child’s views and preferences as consistent, strong, and independent. The evidence indicates that the child is articulate for his age. The clinician’s affidavit sets out the child’s reasons for not wanting to return to California, and his links to and circumstances in Ontario.

[53] The links to and circumstances in Ontario include that he is enjoying his school, he enjoys playing with his father, he enjoys his relationship with his grandparents, and the fun things there are to do outside at his grandmother’s house. He has a lot of friends in Ontario, and no one has been mean to him in Ontario. He indicated he would like his mother to visit him in Ontario by herself.

[54] In contrast, the child has indicated that he did not have a lot of friends in California, and would play a lot on his iPad. He stated that his mother always smacked him. She agrees she smacked him but denies she always did so. He states his mother got drunk a lot in California, and was mean to him. He states he did nothing with his mother, and that California was “sad, lonely and boring.”

[55] The clinician also interviewed the child’s therapist. The therapist, in a letter attached to the clinician’s affidavit, described the child’s affect when talking about his life in California as reflecting anger and sadness. [3]

[56] The respondent raises concerns about the clinician’s evidence, arguing that the clinician did not seek out the child’s collateral contacts in California, did not afford her the same amount of interview time as he afforded the applicant, and did not observe a video call between her and the child before reaching his conclusions. The respondent argues that the child is being pressured to say negative things about her, and his life in California, and argues that the child’s memories may be unduly influenced by the restrictions in California that he was living with shortly before coming to Ontario in June 2020 due to the COVID-19 pandemic.

[57] The OCL points out that its involvement began as a s. 112 report, which was never completed, and rather, the OCL came on the record as counsel for the child. This explains some of the concerns raised by the respondent. In any event, I am satisfied that there is value in the affidavit of the OCL clinician, particularly in terms of establishing the child’s views and preferences, and the current situation of the child. However, the clinician’s affidavit is only part of the evidence on this application, all of which must be considered in addressing the issues raised herein.

[58] The clinician describes his concern, shared by the therapist, that the child has feelings about his life in California that he is perhaps neither ready nor able to identify and express. The clinician and therapist do not view the child’s reluctance to say positive things about his life in California as an indication that the child is being alienated or influenced, but rather, than the child is afraid that if he says good things about his life in California with his mother, this might be interpreted as meaning he should go back there.

[59] I have reviewed this evidence at some length, but in doing so, I am cognizant that some of it is more appropriately relevant to the second stage of the analysis – the exceptions – if I find that the child’s habitual residence immediately prior to the alleged wrongful retention was California. The focus at this stage is on the child’s links and circumstances to Ontario, and to California, and the circumstances around his move from California to Ontario.

[60] The record before me is lengthy, and I have not averted to all relevant evidence on these points. However, I place particular weight on the following:

a. The child holds American citizenship and is entitled to Canadian citizenship. The applicant has begun the process of obtaining Canadian citizenship for the child.

b. The child and the parents all shared the understanding on June 22, 2020 that the child would spend the summer in Ontario and then return to California;

c. On July 19, 2020, the respondent unilaterally changed the plan, indicating that she was moving to Brazil. She did not say she was travelling to Brazil, or planning to stay in Brazil, but used a word that indicated more permanence to her plan.

d. The respondent’s text was vague as to the length of time that she could not care for the child. It was “until the new year,” or “until she got better.” At the same time, she gave very little information about the nature of the problem she was struggling with. The applicant and child could only have been confused by what was happening.

e. The applicant’s efforts to contact the respondent were not successful. She was apparently able to be in touch with Raquel, but she did not call or text the applicant or child for about a month.

f. The applicant knew that something had happened to the respondent, by way of the newspaper article that came to his attention. When she eventually resurfaced, her explanation about what occurred was strange, and she remained unwilling to provide details about her location.

g. There was every reason to suppose – already from July 19, 2020 – that the child would have to enroll in school in Ontario. It was unclear when the respondent would be returning, and nothing the respondent did in the following weeks clarified her intentions, or the nature of her struggles.

h. The respondent now explains that she was at a ranch in Brazil where she attended a wellness program. She states she was out of touch for 15 days because she was not allowed access to her phone for that period of time. She states she saw a psychiatrist once a week, and three other therapists daily, including a spiritual therapist and a musical or artistic therapist. She states she did not want to share this with the applicant at the outset because she was afraid he would use it against her. She states she always intended the child’s stay in Ontario would be temporary.

i. The applicant, however, had no idea what the respondent intended. All he knew was that his co-parent had disappeared and left him to take steps to protect the child without giving him information about her plans, or the problems she was addressing. From his perspective, the child had many needs that had to be met, and the sole responsibility for meeting them fell to him.

j. The child commenced school in Ontario. He made friends in Ontario. He never asked to contact friends in California. He enjoyed his relationships with his paternal family.

k. The child got a pediatrician in Ontario. He child began vision therapy in Ontario. He received significant dental treatment in Ontario. (He also began therapy in Ontario but I do not consider this factor because he did not begin seeing his therapist until after the date of the alleged wrongful removal.)

l. The child had connections in California. He had attended school in California in the previous academic year. The respondent states he was happy there. This does not accord with the child’s own reporting. In any event, he has transitioned well and does not appear to be missing the connection to his previous school.

m. The respondent states that the child had a physician and was a patient at a dental clinic in California. There is no evidence about the child’s attendance at either the dentist or the doctor. What is apparent is that the child had eight cavities and a cap, and needed significant dental treatment. It is also apparent that the child required vision therapy that had not been attended to in California.

n. The parties have different narratives about the child’s social connections in California. The respondent indicates that the child had many friends and activities in California. The applicant states that the mother did not support the child’s friendships or extra-curricular activities. He alleges that the mother used the child’s birthdays as occasions to boost her social media profile, and held big, expensive events, for which the applicant paid, where her friends and their kids attended, but the child’s own friends did not. The photos from these parties show many adults, and not many kids. The child reports being lonely in California. The evidence suggests he has not expressed missing any friends from California or wanting to contact any friends in California.

[61] From all of this, I conclude that the focal point of the child’s life moved to Ontario before the alleged wrongful retention. This occurred in part as a result of the child’s links to Ontario, and circumstances in Ontario, as outlined above, and by the respondent’s own actions in disappearing from the child’s life without explanation or plan. Moreover, I find that the child’s links to and circumstances in California are not solid. I have doubts about how often he saw care providers in California. I am not satisfied that he had strong friendships or social relationships in California. A child his age can only have strong relationships that are cultivated by a parent or caregiver, and the evidence does not establish that the respondent took steps to cultivate relationships for him in California, except perhaps with her sister and mother. Her mother appears to no longer be in California in any event.

[62] I thus find that the child’s habitual residence immediately before the alleged wrongful retention was Ontario. The Hague Convention does not apply. Ontario has jurisdiction over the child-related issues.

Stage Two – Exceptions to Return

[63] Although it is not necessary to determine this issue, if I am wrong about the child’s habitual residence, I would find that the exceptions under the Hague Convention apply, and I would decline to order the child’s return as a result.

[64] I briefly describe the reasons for which I would have made this determination, were it necessary to reach this stage of my analysis.

[65] First, I consider the exception under s. 13(a) of the Hague Convention that “the parent seeking return was not exercising custody or consented to the removal or retention”.

[66] In evaluating whether the respondent acquiesced to the child staying in Ontario, the court asks whether “the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserted or going to assert her right to the summary return of the child and are inconsistent with such return”: Katsigiannis v. Kottick-Katsigiannis, 55 O.R. (3d) 456, (Ont. C.A.), at paras. 36 and 40.

[67] Put another way, to establish acquiescence, the applicant must show some conduct of the respondent which is inconsistent with the child’s summary return to California: Katsigiannis, at para. 49. In Jackson v. Graczyk, 2007 ONCA 338, 86 O.R. (3d) 183, at para. 52, such conduct included taking no real interest in the child’s life.

[68] In this case, the applicant consented to the child remaining in Ontario “until she got better” or “until the New Year.” It is not clear to me what “until the new year” means, or that it necessarily means until January 1, 2021. Rather, in my view, the focus of her text was on her need to address the challenges she was facing. The “new year” is not some artificial deadline by which time she will be “better.” Instead, she was seeking time to focus on her own challenges and wanted to leave the child in the care of the applicant while she did so. The only conclusion is that she consented to leave the child in Ontario until she got better, whenever that was.

[69] She now states that she is better, and the child should be returned to her. However, apart from her affidavit evidence that she attended at the wellness ranch and had weekly sessions with a psychiatrist, and daily sessions with three other therapists, there is no evidence to explain what happened. She has not been transparent about the nature of her struggles, except to say she was grieving the loss of family members. There is no evidence from the wellness ranch, or a medical practitioner, to support her argument that she is now able to care for the child, or has addressed whatever vaguely described mental health challenges she was facing.

[70] At the same time, she admits that when she was detained by police in Brazil, she was in possession of cocaine, MDMA, and ecstasy. She states a friend gave the drugs to her for personal consumption, and while she thought about taking them, she did not. The police report from the incident describes her as “muddled.” There is evidence from the applicant that the respondent sounded drunk when she called the child, and there is evidence from the OCL clinician that the child reports that the respondent abused alcohol. The wellness ranch she attended advertises that it runs a substance abuse program, but the respondent denies participating in it. There is nothing from the wellness ranch to confirm what program she attended, what the result was, what ongoing recommendations might have been made, or even that she was there. The evidence about the respondent’s substance use is unclear and concerning. It was in her control to put evidence before the court from a physician, or from the wellness ranch, to show that she is mentally healthy and not abusing substances, but she did not.

[71] She did include three results from drug and alcohol tests she took voluntarily in California, using urine samples, and deposes that all have come back negative for any substance. However, I have some concerns about relying on these results. None of the test results indicate how the respondent’s identity was confirmed.

[72] The first two tests were from samples that appear to have been collected within about a week – the first on October 27, 2020 and the second on November 5, 2020. The October 27, 2020 results show negative for various drugs, including cocaine, MDMA and opiates. The sample collected on November 5, 2020 tested negative for alcohol use.

[73] The third report is particularly concerning. It was done at a different laboratory than the first two and, while it shows negative results for drugs and alcohol, it includes a note that “the date and/or time of collection was not indicated on the requisition as required by state and federal law. The date of receipt of the specimen was used as the collection date if not supplied.” There are thus questions about the reliability of the urine sample, and thus the reliability of the results.

[74] Therefore, notwithstanding the drug and alcohol test results provided by the respondent, I remain concerned about the respondent’s substance use. It was in her control to produce better evidence, and more evidence, including from the wellness ranch, to allow the court to better understand her situation. I draw an adverse inference from her failure to do so: Ganie v. Ganie, 2015 ONSC 6330 (S.C.J.), at para. 34.

[75] In these circumstances, I cannot find that the conditions of the consent that she gave for the child to remain in Ontario have expired. I am not satisfied that she is well enough to care for the child. [4]

[76] I also note that the respondent consented to the child attending private school in Ontario. In doing so, she must have intended him to spend at least the academic year at his school. Why else pay tuition for a school a child will attend for mere weeks? Why disrupt a child’s schooling mid-year in the middle of a pandemic?

[77] Moreover, even if she did not explicitly consent, I find that she acquiesced to the child remaining in Ontario. She disappeared from the child’s life for a month without sharing any information with the applicant or the child about to her plans. During this time, she was in touch with her sister in California. Once she resurfaced, she agreed to the child’s enrollment in a private school. She declined to otherwise take an active interest in the child’s affairs. Despite being provided with information, she did not contact the child’s medical or dental providers. She declined to get in touch with his therapist. She spoke to his teachers only once. Although the parties had discussed it, she never followed up with plans to come to Ontario for the child’s birthday, and sent him no cards or gifts for his birthday, Christmas, or any other celebrations. She has had FaceTime calls with the child, but until she raised jurisdictional questions beginning around mid to late October 2020, there was no indication that she sought the return of the child [5].

[78] I next consider the exception in s. 13(b) of the Hague Convention, that there is “a grave risk that return would expose the child to physical or psychological harm, or would place the child in an intolerable situation”.

[79] To decline to return a child based on a grave risk of harm, the Supreme Court of Canada held, in Thomson v. Thomson, [1994] 3 S.C.R. 511, at para. 82:

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…that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial psychological harm.

[80] The evidence to establish a risk of harm must be credible and meet a high threshold: Wentzell-Ellis v. Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at para. 40. The applicant bears the onus of demonstrating that the child’s return would place him in an intolerable situation: Gourgy v. Gourgy, 2018 ONCA 166, at para. 10. The situation must be “extreme,” “unbearable,” “too severe to be endured”: Jabbaz v. Mouammar, 38 R.F.L. (5th) 103, (Ont. C.A.), at para. 23. An assessment of risks requires an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring: Knight v. Gottesman, 2019 ONSC 4341, 147 O.R. (3d) 4341, at para. 84.

[81] In my view, there is a grave risk that return would expose the child to psychological harm, or would place him in an intolerable situation.

[82] In part, I reach this conclusion for the reasons described above, relating to my concerns about the respondent’s mental health and substance abuse, which she could have addressed by way of independent evidence but chose not to. [6]

[83] In part, I reach this conclusion relying on my concerns about the respondent’s ability to meet the child’s physical needs, including by ensuring he has proper dental and health care. The respondent put no evidence before me, although she could have, that the child has had regular medical, vision and dental check-ups in California. To the contrary, I am concerned about how a child (then six years of age) has eight untreated cavities and a cap if a parent is paying attention to their dental care. I am concerned that the child needed vision therapy and his needs had apparently gone unaddressed, and perhaps even unnoticed, by the respondent.

[84] In noting the absence of evidence on these points adduced by the respondent, I am not reversing the onus that lies on the applicant; rather, I find that it is appropriate to draw an adverse inference against the respondent for failing to adduce evidence, and in particular, independent witness testimony and documentary evidence that would have been in her control, that could have addressed her ability to care for the child, her history of caring for the child, the allegations of substance abuse, and the state of her mental health: Ganie, at para. 34.

[85] My conclusion that the child is at grave risk of psychological harm, or would be placed in an intolerable situation, is bolstered by the evidence from the OCL clinician and, through him, the child’s therapist. I note their assessment of the child, and his sadness, and unresolved feelings about the respondent, and his life in California. I also note the views the child has expressed himself. I appreciate that, at seven years old, his views are not determinative. However, I take note of the consistency with which he describes a lonely existence, on his iPad, with a mother who “smacks” him, and drinks too much. I also take note of the evidence that he wants to see his mother in Ontario on her own, suggesting that he wants to be the focus of her attention. All this evidence leads me to conclude that the risk of psychological harm to the child were he to be returned to California is great, and intolerable, and that his return would risk him being placed in an intolerable situation.

[86] Given the young age of the child, I would not rely solely on the exception in s. 13(c) of the Hague Convention that “the child of sufficient age and maturity objects to being returned.”

Parenting Orders

[87] On August 27, 2020, Czutrin J. made a temporary, without prejudice order, that the applicant shall have temporary custody of the child. He also ordered, on a temporary, without prejudice basis, that the applicant shall be restricted from removing the child from the City of Toronto, or the District Municipality of Muskoka (except that he may transport the child between Toronto and Muskoka). He ordered that the respondent shall be restricted from removing the child from the City of Toronto.

[88] The applicant seeks to continue these orders, albeit in a different form. The applicant seeks an order that the child continue to reside in Ontario, and that he make all major decisions about his education, health and welfare. He also seeks a declaration that he is the parent of the child under s. 13 of the Children’s Law Reform Act. The applicant seeks orders governing the respondent’s parenting time with the child, including that it be supervised and that she follow COVID-19 protocols. He seeks an order that the respondent shall release all information with respect to the health, education and welfare of the child to him, and he seeks an order requiring her to remove certain social media accounts and postings, and to restrain the respondent from making new posts including content or images of the child.

[89] This relief was not the focus of the motion, and no real argument was made about it. However, given the evidence that was before me, I can deal with some of the relief requested at this juncture.

[90] First, it is apparent, given my findings above, that the child’s needs are currently being met in Ontario. He has a stable home, a loving family, and his medical, educational and social needs are being tended to. In contrast, I have laid out my serious concerns about the respondent’s mental health, substance use, and lack of attention to the child’s medical and dental needs. In these circumstances, I find that it is the best interests of the child, on a temporary basis, pending the trial in this matter, that he continues to reside primarily with the applicant in Ontario.

[91] I am also concerned, given the respondent’s recent history, that requiring the parties to jointly make any major decisions that arise could become problematic, if the respondent were to disappear again. As a result, on a temporary basis, I conclude that it is in the child’s best interest that the applicant continues to make major decisions for the child. However, I order that the applicant shall consult with the respondent before making any major decision, although the final decision shall be left up to him. If the respondent does not respond to the applicant’s request for consultation within three days, he shall be entitled to make the decision without her input. In the event of a major decision that has to be made on an urgent basis, the applicant shall attempt to reach the respondent to consult with her, but if he is unable to reach her immediately, he shall be entitled to make the decision without her input.

[92] There is no debate between the parties that the applicant is the child’s parent. Accordingly, I have no difficulty declaring that the applicant is the parent of the child under s. 13 of the Children’s Law Reform Act.

[93] Given the temporary orders I have made with respect to parenting, it is sensible to also order the respondent to release all information with respect to the health, education and welfare of the child to the applicant pursuant to s. 28(1) of the Children’s Law Reform Act.

[94] However, there are two issues remaining about which the lack of argument is problematic. First, the applicant seeks orders governing the respondent’s parenting time with the child, including that it be supervised time if it takes place in person, based on his fear that she will abscond with the child. He also seeks an order that the respondent comply with COVID-19 protocols, both when she is alone and when she is with the child.

[95] I have difficulty with this relief, for several reasons. First, it is clearly necessary to consider the respondent’s parenting time with the child. He resided primarily with the respondent for most of his life. I do not doubt that she loves him, and that he loves her. He has expressed a desire to see her. However, it is not clear on the evidence before me what proposals for her parenting time are realistic, and will meet the child’s needs to have time with the respondent, in a safe way, that is as normal as possible.

[96] I also have concerns about ordering the respondent, who is physically in the United States, to comply with COVID-19 protocols when she is alone. Which protocols? Ontario protocols do not apply in California. I am not at all convinced that I have jurisdiction to make such an order, or that such an order is clear enough that compliance with it can be measured.

[97] Accordingly, I adjourn the issue of the respondent’s parenting time with the child to a conference. Now that I have determined that the child shall remain in Ontario on a temporary basis, and the Hague Convention does not apply, the parties should be in a position to consider realistic parenting proposals for the respondent and address those at a conference.

[98] The last remaining issue is the order sought that the respondent take down the Instagram account she created for the child, along with any other social media accounts, and all postings she has made about the child on line, and refrain from making any new postings.

[99] The respondent did not engage in a significant way with this request for relief. I am aware that the Instagram account at issue has now been made private, but still has thousands of followers. I have some concerns about the child’s on line presence, but I did not hear argument about whether the applicant’s request is overbroad, or indeed, any real arguments about this issue at all.

[100] In my view, this issue would also benefit from being discussed at a case conference; accordingly, I adjourn it to be addressed at the same conference dealing with the respondent’s parenting time.

[101] The parties shall contact the family trial office and seek an expedited date for a conference to deal with these issues.

Costs

[102] At the hearing of the motion, I asked the parties to provide me with their bills of costs, and suggested that, after I wrote my reasons on the merits, I would review the bills of costs and determine costs without submissions. The parties each indicated they were agreeable to my proposal.

[103] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, [2005] O.J. No. 4345.

[104] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[105] Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. In setting the amount of costs, the court must consider the reasonableness and proportionality the factors listed in r. 24(12) as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.

[106] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[107] The applicant is the successful party and is presumptively entitled to his costs. His bill of costs discloses total fees and HST of $44,855.35. After an enquiry from me, his counsel advised that the bill of costs did not cover all of counsel’s time, and excluded correspondence with agents, [7] opposing counsel, and receiving instructions. She estimates that, had she included this time, her bill of costs would be about $90,000 on a full indemnity scale. The respondent’s full indemnity costs, after disbursements (of under $3,000) and HST is $78,941.80.

[108] In considering the quantum of costs in this case, I note the following factors:

a. Neither party made an offer to settle, which is not surprising given the nature of the issue;

b. As the successful party, the applicant is entitled to some measure of recovery;

c. The issues involved were very important to the parties;

d. The issues were factually complex, and the materials lengthy, detailed, and well-prepared.

e. The respondent’s costs, even on a partial indemnity scale, are higher than the applicant’s claimed costs, suggesting that the applicant’s costs are within the respondent’s reasonable expectations;

f. The applicant’s claimed costs do not reflect the entirety of his costs;

g. The time spent by applicant’s counsel, and the hourly rates charged, were reasonable in the circumstances. Moreover, significant work was delegated to less expensive timekeepers, which was cost-efficient and reasonable;

h. Neither party behaved unreasonably in the proceeding.

[109] In my view, in the circumstances of this case, the applicant’s costs are fair and reasonable, and within the reasonable expectations of the respondent. They are less than the respondent’s own partial indemnity costs. I thus order that the respondent pay the applicant costs of $44,855.35, all inclusive, within thirty days.

Summary of Order

[110] In summary, I order the following:

a. The child, Joseph Medeiros Salvatore Jr., born October 24, 2013, is habitually resident in Ontario, and the court in Ontario has jurisdiction to determine the issues of custody and access.

b. On a temporary basis, the child shall continue to reside primarily with the applicant in Ontario.

c. On a temporary basis, the applicant shall continue to make major decisions for the child. The applicant shall consult with the respondent before making any major decision for the child. If the respondent does not respond to the applicant’s request for consultation within three days, the applicant shall be entitled to make the decision for the child without her input. In the case of a major decision that has to be made on an urgent basis, the applicant shall attempt to consult the respondent, but if he is unable to reach her immediately, he shall be entitled to make the decision without her input.

d. The applicant is the parent of the child under s. 13 of the Children’s Law Reform Act.

e. The respondent shall release all information with respect to the health, education and welfare of the child to the applicant pursuant to s. 28(1) of the Children’s Law Reform Act.

f. The issues of the respondent’s parenting time, any conditions attached thereto, and the social media postings and accounts involving the child, both past and present, shall be adjourned to a case conference. The parties shall contact the Family Law Office to obtain an expedited date for the case conference.

g. The respondent shall pay the applicant his costs of $44,855.35, all inclusive, within thirty days.

h. This endorsement is an order of the court, enforceable by law from the moment it is released.

J.T. Akbarali J.

Date: February 26, 2021