COURT FILE NO.: FS-20-0207
DATE: 2021 01 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Eva Miklendova v. Pavel Kadlcik
BEFORE: MANDHANE J
COUNSEL: Allan Morrison and Vibhu Sharma for the Applicant
Richard An for the Respondent
HEARD: January 22, 2021
REASONS FOR DECISION
[1] The Applicant/Mother seeks return of the child, Eliska Nikol Kadlicobova (D.O.B. September 29, 2009) to Zlin District, Czech Republic pursuant to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (“Hague Convention”). Canada and the Czech Republic are both signatories to the Hague Convention.
[2] For reasons that follow, I order that the child be returned to the Czech Republic forthwith.
Facts
[3] The Applicant/Mother and Respondent/Father were involved in an on-again-off-again relationship that resulted in one child. The child was born in the Czech Republic and lived there with the Applicant/Mother from birth until August 3, 2020.
[4] I reject the Respondent/Father’s submission that the child’s life in the Czech Republic was characterized by the Applicant/Mother’s psychological control and abuse. While there is some evidence to suggest that the Applicant/Mother may be over-protective or even over-bearing, I do not accept that she has psychologically abused the child or harmed her in any way. To the contrary, the child has repeatedly described her life in the Czech Republic as “happy.” Moreover, I note that the Respondent/Father has never attempted to obtain sole custody of the child or otherwise have her removed from the Applicant/Mother’s care over concerns about abuse or mistreatment.
[5] The Respondent/Father has generous access to the child, and in the last few years has travelled with the child to Canada with the Applicant’s permission and consent. The Respondent/Father estimates that the child spent about 1/3 of her time in Canada in 2016 and 2017.
[6] The Respondent/Father claims that the parties long planned for the child to eventually immigrate, study and live in Canada. He says that their initial plan for the child to immigrate in 2015 fell through because the Applicant/Mother developed breast cancer. In 2016, the Applicant/Mother signed a declaration in support of the Respondent/Father’s application for permanent residency for the child. The Applicant/Mother, who does not speak English, says that she did not understand the implications of signing the declaration.
[7] The Applicant/Mother and child travelled to Canada in February 2017 and again in June 2017. The Respondent/Father states that the parties’ intention was for the child to remain in Canada with him, and for the Applicant/Mother to return to the Czech Republic. However, for whatever reason, both Applicant/Mother and child returned to the Czech Republic in August 2017. The Respondent/Father says that he and the Applicant/Mother eventually agreed to the child returning to Canada for Grade 5 in 2020.
[8] Most recently, the parties agreed that the Respondent/Father would have access to the child from August 1 through September 1, 2020. The Applicant/Mother says that access was supposed to be exercised in the Czech Republic and that she retained the child’s passport so that it would be impossible for the child to be removed.
[9] On or around August 3, 2020, using a second passport that he obtained for the child without the Applicant/Mother’s permission, the Respondent/Father took the child from the Czech Republic to Canada. He did this without the Applicant/Mother’s consent or knowledge.
[10] At first, the Respondent/Father promised to return the child to the Czech Republic on or around August 29, 2020. However, on that date, he advised the Applicant/Mother that he intended to file an application in Canada for custody of the child. He enrolled the child in school in Canada.
[11] Upon receiving this correspondence in late August, the Applicant/Mother immediately communicated her lack of consent to the child remaining in Canada and threatened legal action if the child was not returned. She also notified the relevant authorities in the Czech Republic and in Canada.
[12] The child was not returned by the Respondent/Father to the Czech Republic. She remains in Canada and is currently enrolled in Grade 6.
The Proceedings
[13] The Applicant/Mother filed an urgent motion with this court on November 20, 2020 seeking that the child be returned to the Czech Republic pursuant to the requirements of the Hague Convention.
[14] On December 3, 2020, Justice Chown agreed that this application should be heard urgently and put it over to the week of December 7 or 14, 2020.
[15] In his answer dated December 9, 2020, the Respondent/Father conceded that he removed the child from her habitual residence in the Czech Republic. However, he opposed return of the child based on the defence in Article 13(2) of the Hague Convention, namely that the “child objects to being returned” and wishes to remain in Canada.
[16] The matter was put before Bloom J. on December 15, 2020 for an urgent hearing. Bloom J. ordered that the matter be adjourned to today’s date to facilitate the parties obtaining an independent assessment of the child’s views.
[17] The assessment of the child was completed by Ms. Janet Claridge, and her “Views of the Child” report dated January 14, 2021 was before the Court. In short, Ms. Claridge concludes that the child wishes to return to the Czech Republic to live with the Applicant/Mother, while continuing to have generous access with the Respondent/Father. The child worries about maintaining a good relationship with both parents and feels caught between the two of them.
[18] The parties appeared before me today seeking a final determination of the Application on an urgent basis. I have reviewed the voluminous materials filed by both parties.
[19] The Applicant/Mother argues that I should order a return of the child pursuant to the Hague Convention, on the basis that:
a. The child was habitually resident in the Czech Republic prior to August 3, 2020;
b. The child was abducted and taken to Canada by the Respondent/Father without her prior authorization or consent;
c. The child wishes to return to the Czech Republic; and
d. The Applicant/Mother has de facto custody, and any outstanding issues related to custody and access can be determined by the Czech courts in the proceeding she has already commenced there.
[20] The Respondent/Father opposes the Applicant/Mother’s application. Despite his earlier admission before Justice Bloom, he now says the child’s habitual residence as of August 3, 2020 was Canada (not the Czech Republic). He also says that his removal of the child was not wrongful because the Applicant/Mother had consented to her studying in Canada.
[21] The Respondent/Father abandons his defence based on Article 13(2) of the Hague Convention since it now clear that the child wishes to return to the Czech Republic.
Analysis
[22] The Hague Convention sets out the rules that apply to the parental abduction of a child across international borders and seeks to remedy the serious harms caused by international child abduction: Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 23-24. The Hague Convention is aimed at enforcing custody rights and securing the prompt return of children to their country of habitual residence.
[23] Articles 3 and 4 of the Hague Convention require the Applicant/Mother to satisfy three conditions prior to me ordering the mandatory return of the child, namely, that:
a. the child was habitually resident in a contracting state immediately before any breach of custody or access rights;
b. she has custody rights to the child; and
c. the child was wrongfully removed or retained.
[24] If those 3 conditions are satisfied, Article 12 of the Convention mandates an order for the return of the child forthwith to the place of his or her habitual residence (save for the enumerated and narrow exceptions that are not applicable on the facts of this case).
[25] While “habitual residence” is the sole connecting factor triggering the child's return, the term is not defined in the Convention. The Supreme Court of Canada in Office of the Children's Lawyer v. Balev and Baggott, 2018 SCC 16, [2018] 1 S.C.R. 398, held that “habitual residence” should be determined through a hybrid approach that considers “all relevant considerations” including but not limited to the parents’ intentions and the child’s interests: Balev, para. 42. The judge must determine the focal point of the child’s family and social environment immediately prior to the removal:" Balev, paras. 43 and 67. Indeed, the Court cautioned against “over-reliance” on parental intention.
[26] The Court of Appeal for Ontario recently had an opportunity to weigh in on the proper interpretation and application of Balev in Ludwig v. Ludwig, 2019 ONCA 680. The Court of Appeal endorsed a two-step approach to determining habitual residence: first, the Court must determine the date of alleged wrongful removal; then, it must go on to consider where the child was habitually resident immediately before the date of the alleged wrongful removal.
[27] In Ludwig, the Court of Appeal reiterated that Court may consider a variety of factors when determining habitual residence, such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on. The Court of Appeal emphasized that there is no one dominating factor and the judge must consider the "entirety" of the child's situation.
[28] In this case, despite the child’s regular visits to Ontario over the years, I have no trouble concluding that the child’s habitual residence immediately prior to her removal on August 3, 2020 was the Czech Republic. I rely on the following factors in support of my finding:
a. The child was born in the Czech Republic and holds Czech citizenship;
b. The child has always lived with the Applicant/Mother in the Czech Republic;
c. Prior to her removal, the child always attended school in the Czech Republic;
d. The child expresses a deep cultural, social and emotional connection to the Czech Republic;
e. The child wishes to return to the Czech Republic and identifies it as her home;
f. There was no evidence before me that the child has legal status in Canada; and
g. The child’s trips to Canada were sporadic and usually lasted for a few weeks at a time, with slightly longer stays occurring over the summer months.
[29] The only factor that potentially weighs against the Applicant/Mother is the Respondent/Father’s contention that the parties’ intended that the child to move to Canada permanently in 2020. While I accept that the parties may have discussed the child eventually residing permanently in Canada, the Respondent/Father has not satisfied me that the parties formed a shared intention for the child to relocate to Canada in 2020. I refuse to place any weight on the declaration signed by Applicant/Mother some four years ago. Even at is highest, the declaration simply establishes that the Applicant/Mother consented to the Respondent/Father applying for permanent residency for the child at that time. There is simply no evidence to suggest that the Applicant/Mother intended for the child to start living permanently with the Respondent/Father in August 2020 or anytime thereafter. Indeed, the Respondent/Father’s surreptitious activities in bringing the child to Canada suggest that he knew that the Applicant/Mother would not consent to the child relocating to Canada in August 2020.
[30] Having found that the child was habitually resident in the Czech Republic immediately prior to her removal, I must now consider whether the Applicant/Mother has custody rights to the child. As the biological parent to the child and her primary caregiver for many years, I have no doubt that the Applicant/Mother has custody rights over the child. Indeed, the Applicant/Mother has been the de facto custodial parent for the duration of the child’s life prior to her removal. I understand that Applicant/Mother has recently filed an application with the Czech courts to obtain sole legal custody of the child.
[31] Finally, I must consider whether the removal was wrongful. Pursuant to Article 3 of the Convention, the removal of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person either jointly or alone.
[32] Again, I have no trouble finding that the Respondent/Father’s conduct was wrongful based on the following facts:
a. The child lived exclusively with the Applicant/Mother prior to her removal;
b. The Respondent/Father obtained a passport and travel documents for the child without the Applicant/Mother’s consent;
c. The Respondent/Father removed the child from the Czech Republic without the Applicant/Mother’s explicit or implied consent;
d. The Respondent/Father bought a one-way ticket for the child;
e. The child was not aware that she would be moving to Canada permanently; and
f. The Respondent/Father refused to return the child to the Czech Republic after being threatened with legal action by the Applicant/Mother and receiving legal notices from law enforcement.
[33] In sum, pursuant to s. 12 of the Hague Convention, I find that the child must be returned forthwith to the Czech Republic. The child was habitually resident in the Czech Republic immediately prior to her removal, the Applicant/Mother’s custody rights were negatively impacted by the removal, and the removal was wrongful.
Costs
[34] The Applicant/Mother is entitled to costs for this application on a full indemnity basis. I would encourage the parties to resolve the matter of quantum between themselves without resort to this Court. However, if the parties are not able to resolve the issue of costs, they shall contact the Trial Coordinator on or before February 14, 2021 to book a 59-minute motion before me.
MANDHANE J
DATE: January 22, 2021
Miklendova v. Kadlcik, 2021 ONSC 577
COURT FILE NO.: FS-20-0207
DATE: 2021 01 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Miklendova v. Kadlcik
COUNSEL: Allan Morrison and Vibhu Sharma for the Applicant Richard An for the Respondent
REASONS FOR DECISION
MANDHANE J
DATE: January 22, 2021