Court File and Parties

COURT FILE NO.: 4665/20 DATE: 2021-03-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREN GONZALEZ VILLARREAL Applicant – and – KYLE RAY KEEGAN KELLY Respondent

Counsel: Michael J. Stangarone/Kristy A. Maurina, for the Applicant Lindsay D. Marshall, for the Respondent

HEARD: February 19, March 5, 2021

Varpio J.

Reasons on Motion

[1] This application was brought by the mother to have the child returned to her care in Costa Rica pursuant to the Hague Convention. The father currently resides in Sault Ste. Marie and the child has been in Sault Ste. Marie since September 2020.

[2] As will be seen below, this case turns on my findings regarding the child’s habitual residence.

FACTS

[3] The parents met in 2014. They became romantically involved and had an “on again – off again” relationship for a number of years. The parties dispute the exact times when the relationship would “turn off” but for the purposes of this decision, that fact is ultimately immaterial.

[4] On September 14, 2015, the mother gave birth to a daughter who is the subject of this Hague Convention application.

[5] During the course of the relationship, the parties lived in a number of places. Sometimes the parties would be together and would apparently move for the father’s work. Sometimes the mother and the child would move by themselves. The relationship appears to have had an element of fluidity that defined the child’s movements. The relevant particulars of the child’s timetable are as follows:

1. September 2015 to July 2017: Costa Rica;
2. July 2017 to December 2017: Alberta;
3. December 2017: Costa Rica;
4. December 25, 2017 to August 6, 2018: British Columbia;
5. August 6, 2018 to October 24, 2018: Costa Rica;
6. October 24, 2018 to April 10, 2019: British Columbia;
7. April 10, 2019 to September 21, 2019: Costa Rica;
8. September 21, 2019 to March 10, 2019: British Columbia;
9. March 10, 2020 to September 2020: Costa Rica; and
10. September 2020 to present: Sault Ste. Marie.

[6] In their affidavits, the parties minimized the import of the stays in the other’s respective home countries. For example, the mother would effectively describe stays in British Columbia as “visits” while the father would do likewise for stays in Costa Rica even though the duration of these “visits” was several months. The only three stays that are truly relevant to the instant application are:

1. The Sept 2019 to March 2019 Burnaby, British Columbia stay;
2. The March 2020 to September 2020 Heredia, Costa Rican stay; and
3. The current stay in Sault Ste. Marie, Ontario.

[7] The British Columbia stay was approximately 6 months. The father deposed that he had a full-time job and the mother deposed that she was in Canada on a tourist Visa. The parties dispute the niceties of the relationship as it existed at that time, but it is clear that the parties appeared to have leased an apartment, although the mother deposed that she did not sign the lease. The child had a doctor and a dentist in Burnaby and attended school for some portion of her stay there.

[8] The Heredia, Costa Rica stay also lasted approximately 6 months. The mother deposed and showed evidence that the child was to be enrolled in school, that she had a doctor and a dentist in Costa Rica, and that the child was enrolled in ballet. I also note that the parties have not provided me with any objective evidence of parental intentions regarding the child’s stay in Costa Rica. Equally, the father did not bring a Hague Application in order to have the child returned to Canada while the child was in Costa Rica.

[9] In September 2020, the child travelled to Sault Ste. Marie. The child had been to Sault Ste. Marie on one prior occasion to visit the maternal grandmother. In discussing the visit ahead of time, the maternal grandmother texted the mother: “If she [the child] wants to come for a visit I will come get her. And I will bring her back to you”.

[10] The child and the mother travelled by plan from Costa Rica to Fort Lauderdale, Florida in early September 2020. The mother is in a relationship with a man who lives in Jacksonville, Florida and the father submits that the mother’s trip to Florida was a pretense to enable her to see her new partner. The maternal grandmother met the child in Fort Lauderdale. The child and the maternal grandmother flew to Sault Ste. Marie. The mother had signed a travel letter to permit the maternal grandmother to take the child across international borders. The letter stated that the child was travelling to Canada “to visit with her family”.

[11] The father submits that the arrangement is for the child to decide where she wishes to live, which understanding is ostensibly confirmed by the following text messages:

a. Mother: “Kamila wants to go. So whatever she wants” b. Father: “So if I book a ticket she can come with me?” c. Mother: “She talked to me and she told me mom I want to go” d. Father: “OK” e. Mother: “And I said whatever makes you happy [name of child]” f. Father: “OK, she will have fun and be well looked after” g. Mother: “Thanks…. Whenever she wants to come back please bring her back” h. Father: “Yes”

[12] The mother takes the position that this text exchange is not evidence of an explicit agreement to move the child, but instead references the duration of a trip. The mother also notes, and the father does not deny, that the child arrived in Canada with a limited amount of clothing and a few personal affairs like toys and such.

[13] Once the child was in Sault Ste. Marie, the mother and father exchanged a number of texts. COVID-19 restrictions were put on travel such that the child’s travel became difficult. The mother and father had text exchanges regarding whether the child would return wherein the father stated: “Just so you know I’m keeping [name of child.. she is] in rolled [sic]” in school and that he would keep her for a year or “10 years I don’t know”. The mother responded with “Lol. Shut up.”

[14] The father also indicates that the following texts (which were exchanged on or prior to November 12, 2021) evidence an agreement to keep the child in Canada permanently, or at least until the end of the school year:

a. Father: “Until when? For a while how long?” b. Mother: “Until the school year is finished… for sure”.

[15] The mother submits that this exchange occurred after an overhold such that her text messages constitute an attempt by her to ensure the child’s return. It should also be noted, however, that the mother provided texts as between the father and mother that suggest that the Costa Rican school year begins in January.

[16] The father admits that some of his texts were intemperate. For example, he sent the following texts in the fall of 2020:

a. When the mother texted the father stating, “Your mom told me she was going to bring her back in 2 weeks, then I said 1 month”, the father responded “Haha”. The father added: “Trust me Karen she does not need you”; b. On October 21, 2020, the father texted: “Karen she’s not leaving Canada. By law. Get over it”; c. On October 28, 2020, the father texted that the mother was a “selfish piece of shit” and indicated that there was a “travel band [sic] connected to [the child]”; d. The mother accused the father of taking the child without permission to which the father responded: “Welcome to Canada. I have rights. Karen your tucked [sic].” The father then told the mother to: “get a lawyer”. e. On November 14, 2020, the father texted the mother stating: “Shut the fuck up. You stupid bitch. You say the stupidest shit.”

[17] The parties also submitted that each other had less than positive attributes. The mother indicated that the preceding texts demonstrate that the father was abusive, controlling and that his affidavit materials could not be trusted. The father, for his part, pointed to a Facebook post whereby on February 4, 2021 (well after the application date had been set), the mother removed a caption on a Facebook post dated March 26, 2020 that states, “wish you were here” with a heart whereby she “tagged” the father. Equally, on February 4, 2021, a Facebook post dated April 2019 showing the child was in an airport had an original caption of “Ready to visit family”. This caption was changed to “ready to go home”. The father thus submits that the mother altered evidence for the hearing.

[18] The father has alleged that the mother is involved in a “partying” lifestyle, traipsing around the globe with a number of men. The father has alleged that the mother cheated in the relationship and that he was the breadwinner. The mother has also alleged that the father is an addict (the father admits to having completed rehab).

POSITION OF THE PARTIES

[19] It is the mother’s position that the child’s habitual residence at the time the child travelled to Sault Ste. Marie was Costa Rica. She submits that the father overheld the child and that the Hague Convention demands that the child be returned to Costa Rica forthwith since none of the exceptions to the general rule exist.

[20] The father has a two-prong submission:

1. The child’s habitual residence has always been Canada and, as such, the Convention does not apply; and
2. If the child’s habitual residence was Costa Rica in September of 2020, then the parties agreed to have the child reside with the father for at least one year.

LAW

[21] In Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.J. No. 16, McLachlin CJ for a majority of the Supreme Court of Canada, dealt with the Hague Convention that governs extra-jurisdictional custody disputes and the test to be used to determine “habitual residence” for the purpose of the Convention. At paras 24, 28 and 29, McLachlin CJ described the Convention as follows:

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: see Article 1; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the "wrongful" parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.

The heart of the Hague Convention's prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is not defined in the treaty.

If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order "the return of the child forthwith" unless certain exceptions apply. These exceptions can be summarized as follows:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
3. The child of sufficient age and maturity objects to being returned (Article 13(2));
4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,
5. The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

[22] McLachlin CJ stated described the parameters of the Hague Convention at paras 36 and 37:

The father in this case applied under the Hague Convention for the return of the children. To establish a case for return under Article 3, the father had to show that at the time immediately before the alleged wrongful retention (i.e., upon the expiry of the father's consent on August 15, 2014) the children were habitually resident in Germany. Within the overall scheme of the Hague Convention, the purpose of habitual residence in Article 3 is to define the children to whom the Hague Convention applies. If the children were not habitually resident in Germany at the time of the alleged wrongful retention, the Hague Convention does not apply.

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.

[23] From this statement, it is not apparent whether the “habitual residence” is the state in which the child habitually resided, or whether it is a specific location. Initially, this distinction appeared important in the case before me since the child only visited Sault Ste. Marie on one occasion prior to her arrival here in September of 2020. However, as will be seen later in these reasons, the child’s movement between British Columbia and Costa Rica are such that the distinction is immaterial.

[24] In Balev, McLachlin CJ then described the how an application judge is to examine the hybrid test for determining habitual residence at paras 43 to 45:

On the hybrid approach to habitual residence, the application judge determines the focal point of the child's life -- "the family and social environment in which its life has developed" -- immediately prior to the removal or retention: Pérez-Vera, at p. 428; see also Jackson v. Graczyk (2006), 2006 ONSC 52861, 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33. The judge considers all relevant links and circumstances -- the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B.

Considerations include "the duration, regularity, conditions and reasons for the [child's] stay in the territory of [a] Member State" and the child's nationality: Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358, at para. 56. No single factor dominates the analysis; rather, the application judge should consider the entirety of the circumstances: see Droit de la famille -- 17622, at para. 30. Relevant considerations may vary according to the age of the child concerned; where the child is an infant, "the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of": O.L. v. P.Q. (2017) C-111/17, (C.J.E.U.), at paras. 43-45.

The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. However, recent cases caution against over-reliance on parental intention. The Court of Justice of the European Union stated in O.L. that parental intention "can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence": para. 46. It "cannot as a general rule by itself be crucial to the determination of the habitual residence of a child ... but constitutes an 'indicator' capable of complementing a body of other consistent evidence": para. 47. The role of parental intention in the determination of habitual residence "depends on the circumstances specific to each individual case": para. 48.

[25] At para 46, McLachlin CJ indicated that there is no rule that one parent cannot unilaterally change the habitual residence:

It follows that there is no "rule" that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal: see In re R. Children, [2015] UKSC 35, [2016] A.C. 76, at para. 17; see also A. v. A., at paras. 39-40.

[26] Finally, at para 47, McLachlin CJ synopsized the hybrid approach as follow:

The hybrid approach is "fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions": Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013), at p. 746. It requires the application judge to look to the entirety of the child's situation. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed. The temptation "to overlay the factual concept of habitual residence with legal constructs" must be resisted: A. v. A., at paras. 37-39.

APPLICATION TO THE FACTS

[27] First, it must be stated that both the mother and father have engaged in discreditable conduct during the course of the litigation. First, the father is clearly abusive and controlling. This behaviour causes me to believe that he is capable of presenting a position that is not based in truth. As such, his evidence must be discounted to the point where I cannot accept anything he deposes save and except where his contention is buttressed by objective evidence.

[28] Equally, the mother has engaged in discreditable conduct by tampering with evidence during the course of the proceedings. Under no circumstance can that conduct be countenanced or accepted. Frankly, such conduct destroys all her credibility. I will also not accept her evidence save and except where her contentions are buttressed by objective evidence.

[29] With respect to allegations of the timing of relationships, marital infidelity and such, they are not relevant to my consideration save and except to inform where the child’s habitual residence was during the relevant times. With respect to the British Columbia stay, the mother’s position that the move was not permanent is not worthy of belief. As I indicated above, I cannot place any weight upon the affidavit evidence of the parties and, as such, I have no evidence worthy of belief to show parental intention. I must thus look to objective factors to guide my decision. All the hallmarks of permanence existed in the child’s life in Burnaby: a fixed residence, school, doctors, dentists and the like. While the mother’s immigration status as having a tourist Visa informs my analysis, the overwhelming objective evidence shows that the child’s permanent residence prior to leaving for Costa Rica in 2020 was British Columbia and I so find.

[30] The March 2020 to September 2020 trip to Costa Rica constituted a change in permanent residence for the child. The only evidence before me suggesting that the mother took the child against the wishes of the father come from the father himself. As noted earlier, I cannot accept the father’s evidence standing alone. An examination of the objective evidence demonstrates that the child’s stay in Costa Rica was such that Costa Rica became her habitual residence. Specifically, I note the following:

a. The length of time in Costa Rica (6 months) is substantial in the life of a young child; b. The mother was with the child in Costa Rica; c. The mother’s family appears from photos to have been involved with the child’s life; d. The child was enrolled in school and ballet in Costa Rica (as evidenced by photos); and e. Most importantly, the father has provided me with no evidence that he undertook any actions to get the child back to Canada. He filed no Hague Convention application, he filed no text negotiations with the mother asking for the child’s return or any other real time evidence to show that the child’s stay in Costa Rica was temporary. In fact, I infer that it was his understanding that the child would stay in Costa Rica for the foreseeable future.

[31] Accordingly, I am satisfied that the child’s habitual residence was Heredia, Costa Rica in September of 2020 when she came to Sault Ste. Marie to visit her paternal grandmother.

[32] With respect to the alleged agreement made by the mother and father to keep the child in Sault Ste. Marie, I do not find that such an agreement exists.

[33] First, while the paternal grandmother is not a party to this application and her statement does not necessarily provide an insight into the father’s thinking, it does affect how the mother undoubtedly viewed the child’s travel to Sault Ste. Marie. The text, “[w]henever she wants to come back please bring her back” does not provide any ring of permanence to the duration of the visit. Rather, it appears to suggest that the paternal grandmother and the mother viewed the trip as a temporary phenomenon.

[34] There is other evidence suggesting that the child’s travel to Sault Ste. Marie as a trip of limited duration, as opposed to a long-term visit or a permanent move:

a. The child arrived with few belongings; b. The travel letter indicated that the purpose of the trip was to “visit family”; c. The texts at paragraphs 11, 14 and 16, appear to suggest that the parties had not formalized any intentions; and d. The father’s text at paragraph 16 lead to the inference that he knew he was overholding the child against the mother’s wishes.

[35] Given the foregoing, I am satisfied that the mother and father had no agreement in place with respect to the specific length of time that the child would remain in Sault Ste. Marie but that it was clear that the trip was to be a visit of limited duration, as opposed to a long-term visit (of several months) or a permanent move.

[36] Once the child was in Canada, the mother appears to have agreed to have the child finish the school year in Canada. It is clear from the objective evidence that this concession was a negotiation tactic used to secure the child’s return. An examination of the texts reveals that the father pressured the mother using abusive tactics and that she offered this concession in order to get some finality to the situation. As per Katsigiannis v. Kotick-Katsigiannis (2001), 2001 ONCA 24075, 55 O.R. (3d) 456, this is not acquiescence by the mother since it was clearly made as a result of coercion.

[37] Therefore, as a result of the objective evidence before me, I find the following:

a. The child’s habitual residence in September 2020 was Costa Rica; and b. The parties did not agree to change the habitual residence or to have the child remain in Canada for a lengthy period of time.

[38] As such, section Article 3 of the Hague Convention applies to this case. The child will be returned to Costa Rica forthwith.

COSTS

[39] Rule 24 of the Family Law Rules states:

RULE 24: COSTS

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).

[40] In this case, it would be ludicrous to suggest that the mother has behaved reasonably given her tampering with evidence. Equally, the father’s abusive conduct and text messages are behaviour that would otherwise be noted in a costs order to justify heightened costs.

[41] In the result, therefore, neither party shall collect costs from the other.

[42] I thank all counsel for excellent submissions.

Varpio J. Released: March 18, 2021