COURT FILE NO.: FS-22-00028116-0000 DATE: 20220411

SUPERIOR COURT OF JUSTICE

BETWEEN:

Maarouf Ahmadi, Applicant

– and –

Aazadah Basir Ahmad, Respondent

Counsel: Michael J. Stangarone, Kristy Maurina, for the Applicant Dilani Gunarajah, for the Respondent

HEARD at Toronto: April 5, 2022

Reasons for judgment

C. HORKINS J.

Introduction

[1] The Applicant Maarouf Ahmadi (the “father”) brings an application for an order directing the return of the child, Asma Ahmadi (the “child”) to her habitual place of residence in Saint-Pierre-du-Mont in France under 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 (the “Hague Convention”).

[2] On July 4, 2021, the Respondent, Aazadah Basir Ahmad (the “mother”) and child left the family’s home in Saint-Pierre-du-Mont, France. The father was unable to contact them. On September 22, 2021, the mother and child left France and traveled to Toronto, where they remain today. The father did not learn about the mother and child’s whereabouts until November 17, 2021, when he was served with the Application the mother commenced in this court.

[3] When the mother refused to return the child to France, the father commenced proceedings in France on November 22, 2021, with the Ministère de la Justice in the Republic of France seeking the child’s return. On December 20, 2021, he commenced an Application pursuant to the Hague Convention seeking Asma's return to her habitual residence of Saint-Pierre-du-Mont, France.

[4] It is the father’s position that the child was habitually resident in France when the mother and child left France on September 22, 2021, and the removal was wrongful.

[5] It is the mother’s position that in July 2021, the family was in France on vacation and the child was habitually resident in Canada when she and the child left France on September 22, 2021. Further, she argues that the child should not be returned to France because there is “grave risk” that return of the child “would expose [the child] to physical or psychological harm or otherwise place [the child] in an intolerable situation.”

The Legal Framework

[6] The Hague Convention is law in Ontario, pursuant to s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12. The Hague Convention sets out the rules that apply to the parental abduction of children across international borders.

[7] The Hague Convention “ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 22. There are more than 90 contracting states, including Canada and France.

[8] The Hague Convention seeks to remedy the serious harms caused by international child abduction. At para. 23, the Court in Balev stated:

International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

[9] Article 1 of the Hague Convention explains that the Convention is aimed at “enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence.” An order for return of a child is not a custody order. It is “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”: Balev, at para. 24.

[10] Article 3 of the Hague Convention sets out the circumstances in which the removal or retention of a child is wrongful. First, the removal or retention must breach the “rights of custody” given to a parent (in this case, the father) “under the law of the State” where the child was “habitually resident immediately before removal or retention.” Second, at the time of removal or retention, the father must show that his rights were exercised or would have been but for the removal or retention.

[11] Article 8 provides that “any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.”

[12] Article 12 provides that if, under Article 3, a child has been wrongfully removed or retained, and less than one year has elapsed since the wrongful act, the court shall order the return of the child forthwith, subject to the exceptions in Article 13.

[13] In this case, it is less than a year since the alleged wrongful removal. Therefore, if the child was wrongfully removed on September 22, 2021, the court shall order the return of the child to France forthwith, unless an exception is triggered.

[14] The mother relies on two exceptions: the grave risk of harm if returned to France (Article 13(b)) and the “Settled In” exception (Article 12).

[15] As explained below, the mother’s evidence of alleged harm does not meet the high threshold necessary to trigger Article 13(b) and the “settled in” exception is not available on the facts of this application, because less than one year has elapsed since the mother removed the child from France on September 22, 2021.

Analytical Framework

[16] The analytical framework for deciding a Hague application is set out in Balev. There are two stages: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering a return applies.

[17] If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions.

[18] The first step is to decide the date of the alleged wrongful removal or retention. The date is critical to the analysis because the court must assess in which country the child was habitually resident immediately prior to this date. A child's attachment to a country that is developed after the date of alleged wrongful removal or retention is only relevant to the Article 12 "settled in" exception: Balev, at para. 67.

[19] In this case, the parties agree that the alleged wrongful removal of the child from France was on September 22, 2021. On this date the mother and child left France and flew to Toronto.

[20] The second step is to decide where the child was habitually resident immediately before September 22, 2021, the date of the alleged wrongful removal or retention.

[21] The child’s habitual residence is decided using the hybrid approach set out in Balev. This requires the court to look at “all relevant considerations” including parental intention and the circumstances of the child. This approach is used to determine 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 para. 43. To determine the focal point of the child's life, Balev directs the court to consider the following three kinds of links and circumstances:

1. The child's links to and circumstances in country A;
2. The circumstances of the child's move from country A to country B; and,
3. The child's links to and circumstances in country B.

[22] Balev identifies relevant factors courts may consider in assessing the links and circumstances. The considerations include the child's nationality and “the duration, regularity, conditions, and reasons for the [child's] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. The list of relevant factors is not closed, and the application judge must consider the “entirety of the child's situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child's connections to a given country: at para. 68.

[23] Balev explains that where the child is an infant, the child's environment 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”: at para. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children: at para. 45.

[24] Finally, the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev, at para. 47. The application judge must consider the entirety of the child's situation, and no one factor necessarily dominates the analysis: Balev, at paras. 44, 47.

The Facts

[25] Much of the evidence is not disputed. Where there is a dispute that is relevant, it is noted.

[26] It is the mother’s evidence that the father and her mother-in-law physically abused and threatened her. On two occasions, she left the father and went to a shelter, where she reported the alleged abuse. The father disputes the alleged abuse. This issue is addressed below.

[27] The parties were married in Afghanistan on October 7, 2013. They were both citizens of that country. In 2013, the father was living in France and the mother was living in Afghanistan. A marriage contract was signed, and the mother moved to France to live with the father in his family home.

[28] The father is a French citizen, and the mother became a permanent resident of France in June 2014. At this point, the father was also a permanent resident of Canada. Before the marriage, he had worked in Canada and purchased a co-op unit in Scarborough, Ontario. The mother asked the father to sponsor her in Canada. He began this process on May 23, 2014.

[29] In April 2014, the father found employment in Toronto at SAP, a software company. The parties had talked about the father applying for work in Canada and agreed that it made financial sense for him to accept the SAP offer. The father moved to Ontario and stayed at his Scarborough residence. He returned to France frequently to see the mother and his family. He also sent the mother money. In December 2014, the father lost his job at SAP. He was not able to find a new job.

[30] The child was born in Mont-de-Marsan, France on January 2, 2015 and is a French Citizen. The father was excited to have a child and returned to France in March 2015 to help care for the child and to be part of her life with his family. The father worked various jobs in France to support the family.

[31] The mother states that the father returned to France in 2015 because her mother-in-law was physically abusing her and they had a bad relationship.

[32] Unfortunately, the father injured his leg and could not work from approximately October 2015 to June 2016. His inability to work exacerbated the growing problems in the parties’ relationship.

[33] In October 2015, the mother took the child and disappeared from their home in France for 19 days. The mother says that she called the police and went to a shelter because the father and his mother were physically abusing her, and the father was threatening to take the child and send her (the mother) back to Afghanistan. There is no evidence of the police attending and no evidence that the father or his mother were charged.

[34] A letter from a shelter states that in November 2015 the mother was referred to the shelter by the Women’s and Family Rights Information Centre as a “victim of domestic violence.” A hospital Status Report dated November 4, 2015, refers to the mother’s admission in the emergency department late on November 4 and being released the next day. The record does not include any information about why this admission was required or any treatment that was given. There is no evidence from the mother explaining this hospital report. It was simply attached to her affidavit.

[35] The father was relieved when the mother and child eventually returned to their home in France.

[36] In June 2016, the parties agreed that the father would return to Canada to find employment. The family needed his income. In October 2016, the father obtained a job at SAGE Accounting Services in Ontario. He then obtained a new job at JONAS Software in October 2018, also in Ontario. The father sent money to the mother and child, who remained in France. While the mother disputes that money was sent, there is evidence of this happening. The father also frequently returned to France to be with his family. The parties applied for a visitor’s visa for the mother to visit the father in Canada, but it was denied.

[37] On August 2, 2018, the father became a Canadian Citizen and then successfully sponsored the mother and child to become permanent residents in Canada. They agreed that the mother and child would eventually join the father in Toronto.

[38] The mother and child joined the father in Toronto on February 12, 2020. Shortly after their arrival, the COVID-19 pandemic started. The resulting lockdowns that occurred made it difficult for the mother and child to make friends.

[39] According to the father, the mother did not enjoy her life in Toronto. She complained about the cold weather and the lack of friends and family. While she says that she enjoyed Toronto, it is a fact that they had no family in Canada and there is no evidence that the mother and child established any friends before going back to France on June 30, 2021.

[40] In total, the family lived together in Toronto for 18 months. Initially the mother attended ESL classes. For a short period of time, the child attended school in person until online classes were required during COVID. The father took the child to and from school until online classes started. He helped her participate in the virtual school and helped her with homework.

[41] The father says that their stay in Canada was never intended to be long-term. He wanted to return to France even before the mother and child arrived. After the mother arrived in Toronto, the father says they agreed they would go back to France. The mother disputes this evidence.

[42] There is evidence that is consistent with the father’s wish to return home. As early as August 2020, he tried to sell his co-op unit with the intention of the family returning to France. It was listed for sale again on February 10, 2021, and the listing was later terminated. After that, the father tried to sell his shares in the co-op privately. The mother was aware of the attempts to sell the co-op unit and she looked for accommodations in France. In August 2020 the mother searched for apartments in Paris and emailed an apartment listing to the father on August 12, 2020.

[43] The Father enrolled in Sorbonne University for the September 2020 academic year. He thought this would help him find more lucrative employment in France when they moved back. He attended school online for the 2020/2021 academic year (and returned to in person learning after moving back to France).

[44] The Father lost his employment in Toronto on March 1, 2021. While the mother argues that this is not true, it is documented in a termination letter that the father had to sign and have witnessed. It was the mother who witnessed his acceptance of the termination. She knew that he had lost his job.

[45] The family struggled financially. In Toronto they could not afford daycare or babysitters and there was no family in Canada to help them. They struggled to try and figure out how they could continue the classes they were taking, find work and take care of their child. The mother applied for various jobs, took courses to improve her English and worked towards her grade 12 diploma.

[46] At some point after she returned with the child to Toronto, she completed grade 12. Her evidence that she could not read English when she witnessed and signed the termination letter and other documents, before going back to France, is not credible given her success in achieving a grade 12 education.

[47] While living in Toronto, the mother says that the father physically, emotionally, and sexually abused her. He restricted her communications with her family, threw stuff at her face, pulled her hair, spat on her, and squeezed her throat. On one occasion a shoe he threw hit the child on her face. The mother says that in May 2021, the father tightly pressed her throat, beat her and she was bruised. As already noted, the father denies these allegations. There is no corroborating evidence of this abuse and in particular, no photographs of the bruising.

[48] According to the father, the parties agreed to permanently relocate to France where they would have financial stability and would live close to his family. The father says that they planned to have the child finish the school year in Ontario and move back to France at the end of June.

[49] For many years the father’s family had a rental apartment in Saint-Pierre-du-Mont France that had two separate units. They still have the apartment. His mother lives in one unit. The father, mother and child lived in the second unit before moving to Toronto. This unit was available for them to use again, and this is where they lived on their return in 2021. The two units are separated by a staircase and a door that locks. The family’s unit has three bedrooms, one bathroom, a kitchen and a living room.

[50] The mother denies such a plan. It is her evidence that they went to France on June 30, 2021, only for the summer holidays. The evidence does not support the mother’s position.

[51] The parties took steps to return to France. The Mother closed her bank accounts with RBC in Ontario, the utilities in Ontario were cancelled, and they wrote a letter to Canada Revenue Agency (CRA) stating that they were no longer entitled to continue to receive the Canadian Child Benefit, as they were relocating to France.

[52] The mother states that she thought she was closing her bank account to avoid bank fees and that they would open a new account at a different bank when they got back from France. She says that this is what the father told her to do.

[53] The letter to the CRA to cancel the benefits was signed by the mother and father and it stated:

DEAR SIR,

OBJECT: STOP CHILD BENEFIT PAYMENT

I AM WRITING TO INFORM YOU THAT MY HUSBAND MAAROUF AHMADI AND MYSELF MZADAH BASIR AHMAD AS WELL AS OUR DAUGHTER ASMA AHMADI WILL LEAVE THE COUNTRY TO GET CLOSER TO OUR FAMILY BACK HOME DUE TO COVID 19 SITUATION.

PLEASE STOP ANY CHILD BENEFIT PAYMENT FROM THE 1ST OF JULY 2021.

IF YOU HAVE ANY QUESTIONS, PLEASE FEEL FREE TO CONTACT US.

THANK YOU.

YOURS TRULY.

[54] While the letter does not say that the family was moving back to France permanently, it does say that they are “leaving the country”. If it was simply a vacation, the letter would not be required, and the family would continue to receive this child benefit.

[55] The mother’s signature is on the letter sent to CRA. She claims that she did not understand what she was signing because of her limited English. She says the same about the father’s termination letter that she signed and witnessed. However, the mother’s texts show that she could converse in English and she finished her grade 12 education shortly after going back to Toronto with the child in July 2021. It is not credible to say that she could not read and understand this letter.

[56] The father's family, (his mother, father, sister, brothers, cousins, and uncle) were aware that they were moving home. The father's brothers, Massoud Ahmadi and Tayeb Ahmadi, and his mother, Sima Ahmadi, filed affidavits confirming their understanding that the family was moving back to France.

[57] The father purchased one-way tickets to fly to France. The father did not sell the co-op apartment before returning to France. He sold the kitchen table on Kijiji. Other furniture was left in the co-op because it had been there for years. The father hoped to sell the contents with the co-op unit. He thought it would help “show” the unit for sale. The co-op was cleaned up so it could be sold and items they no longer needed were removed. His efforts to sell the co-op unit continued after the return to France.

[58] The family packed many bags to take to France. In total, they checked 10 bags each, with a weight of 23 kg, plus three more that weighed 12 kg each. A separate taxi was necessary to transport all this luggage to the airport. This amount of luggage is not consistent with a family taking a vacation. The mother denies that they took this much luggage to France. There is no corroborating evidence to support either version on this motion.

[59] On June 30, 2021, the family flew home to France on their one-way plane tickets. They arrived home on July 1, 2021. The parties moved back into their residence in Saint-Pierre-du-Mont. The father obtained health insurance and social security rights certification, and set up internet in the home in France. The parties also purchased a new refrigerator on July 3, 2021 (the mother says that this was purchased for her mother-in-law).

[60] On July 2, 2021, the father registered the child for school at Ecole Primaire Publique Jules Ferry to commence on September 2, 2021. This is the school that the child attended before she moved to Toronto.

[61] The father did not notify the school in Toronto that they were moving to France. However, in the fall when the Toronto school contacted the father, he explained that the family had moved.

[62] The father says that they told the child they were moving back to France where her family and friends were located, to her old neighbourhood, old room and that she would be going to her old school. According to the father, the child was very excited to return to France. The mother disputes this evidence. She insists that they were simply going back to France for a holiday, and this is what she understood.

[63] The mother may not have liked the idea of moving back to France. Whether she agreed or not with the decision, the evidence shows that this is what they were doing. Such evidence is not consistent with going to France for a holiday (one-way tickets, the amount of luggage they took, selling furniture, the cancellation of bank accounts, the internet and the Child Benefit, enrolling the child in school in France, purchasing insurance and setting up the internet).

[64] The child has always had a good life in France. She was born there and has spent most of her life in France. The child is fluent in French and has many friends in their neighbourhood and at the school she attended. The parties have a nice apartment, and support from the father's family. The child also has close and loving relationships with her family in France. The father's parents and many other family members live in France. In particular, the child has a great relationship with her cousins and grandparents. She talked to her cousins online frequently while living in Toronto.

[65] There are many photographs of the child’s life in France depicting her bedroom in the apartment, birthday celebrations with friends and family, school events and playing in the parks with family and friends.

[66] On July 4, 2021, the parties argued, and the mother locked herself in the bathroom. She says that the father and her mother-in-law stood outside the bathroom door and were threatening to kill her. She called the police. The police arrived and spoke to the parties. The parties were advised to stay in separate rooms. The police left without laying any charges. The mother says that the police transferred her to a safe place while the father says she left on her own.

[67] That day when the mother decided to leave with the child, the father was under the impression that she wanted some time to calm down and that they would talk in the morning.

[68] The mother and child never returned, and the father began to worry. He saw that the mother had taken money from their account, and he was unable to reach her. A few days later he discovered that the mother had taken their passports and other important documents. He notified the police that his wife and child were missing and filed a report on July 6, 2021.

[69] On July 30, 2021, the police told him that the mother had filed a complaint against him for domestic violence. He was shocked and denied all such allegations. On January 26, 2022, the father learned that the complaint against him had been dismissed.

[70] The father commenced his proceedings under the Hague Convention on November 22, 2021.

[71] Until the mother left France, she and the child stayed in various emergency shelter locations in France. The mother left France with the child on September 22, 2021. When she arrived in Toronto, she was able to find housing. She receives social assistance and the child tax benefit. The child has returned to a French-speaking school and the mother is studying and hopes to find a job.

Analysis

The Child’s Habitual Residence

[72] A removal of a child is wrongful when it is in breach of the “rights of custody” given to a parent (in this case, the father) “under the law of the State” where the child was “habitually resident” immediately before removal or retention. The father was exercising his rights when the child was removed from their home on July 4, 2021. This is not disputed. He was not able to continue to exercise his rights because the mother and child could not be located and then they flew back to Toronto. To this date, the father does not know where they live in Toronto.

[73] I find that the child was habitually resident in France immediately before the mother removed her from France and returned to Toronto. I reach this conclusion following the hybrid approach in Balev. My reasons follow.

[74] Immediately before the mother removed the child she and the child were living in a shelter in France. The child’s attachment to France is grounded in the many years that she lived in France. The “entirety of the child’s situation” must be considered: Balev, at para 47.

[75] The child was born in France and has spent most of her life in this country. Her connections with France are numerous and well-developed. This is where her friends and many family members reside. There is a community for the child in Saint-Pierre-du-Mont, where she has enjoyed birthday celebrations, playing with friends and time with family. The child is particularly close to her paternal grandmother with whom she has a very good relationship. She was settled in school in France and would have gone back to this school had the mother not removed her from the country. The child knew she was moving back to France and was very excited.

[76] In contrast, the child’s links to Canada are limited to what she experienced during the 18 months the family lived in Toronto. There is no evidence that she acquired any friends and there was no family in Canada. The child’s experience was very limited because of the pandemic. Her time at school was mostly spent online. The family struggled in Toronto as explained above and when the father lost his job there were no friends or family to help. They decided to return to France where they had the support of family.

[77] Parental intention is only one factor to consider. In this case the evidence when viewed as a whole, shows on a balance of probabilities that the family intended to return to France to live. It was not a holiday.

[78] The mother has found a place to live in Toronto and says that she and the child are now settled. The assessment of the child’s habitual residence cannot consider the child’s circumstances after the wrongful removal. These are circumstances that the mother engineered after the wrongful removal: see Zafar v. Saiyid, 2017 ONCA 919 at para. 22. Such evidence is only relevant to the exception under Article 12 that is not triggered in this case because the father commenced his Hague application well within the one-year period following the wrongful removal.

[79] In summary, the child has strong ties to France. She was deeply assimilated into her life in France. For all but 18 months of her life, her family, friends and school existed in France and her roots developed in this country. There is no evidence that similar attachments had even begun in Toronto.

[80] I turn to the exception under Article 13(b) that the mother relies upon.

Article 13(b) - Grave Risk Exception

[81] The mother does not say in her affidavits that there is “grave risk” that return of the child to France “would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.”

[82] Article 13(b) is not mentioned in the mother’s written submissions. I accept that it was dealt with during oral argument and that her affidavit evidence includes the abuse that she says she was subjected to.

[83] There is a high threshold to prove “grave risk” of physical or psychological harm as confirmed in many appellate authorities. Any interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Hague Convention: Wentzell-Ellis v. Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 38-40; F. (R.) v. G. (M.), [2002] R.D.F. 785 (Que. C.A.), at para. 30.

[84] The burden of proof for establishing “grave risk” rests on the mother. As I have noted, the father denies the mother’s evidence of domestic abuse. It is not necessary in this case to assess the credibility of the parties on this issue. Even if the mother’s evidence is accepted as fact, it does not rise to the level of “grave risk” of physical or psychological harm. The following authorities support this conclusion.

[85] Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.) is often referred to in Ontario decisions on the issue of grave risk. In Pollastro, there was ongoing physical violence causing the wife to be “bruised front and back.” The incidents escalated. When she came home from work one day the husband ripped her T-shirt, banged her head against the floor and later locked her in the bathroom. Two days later, the husband disabled her car, and she was forced to walk to work carrying their baby, frightened because the husband followed her most of the way. The next day she left the family home. When she returned home to retrieve some clothing, her husband started assaulting her and she had to escape through the bedroom window. The family doctor documented the bruises on the wife’s neck, arms, back, shoulders and thighs as well as the child’s agitated state. Her husband continued to harass her as well as some of her former co-workers. He harassed her mother, her father, and her cousin, calling incessantly, threatening his wife and her family. He talked about exacting revenge on his wife, and that if he could not have the child no one would. He made death threats and told her she would never see her son again. He acknowledged drug use and was often drunk. There was overwhelming evidence of the husband threatening to kill or harm his wife and/or the child. The husband could not control his temper and showed ongoing irresponsible and irrational behaviour. Based on the evidence, there was a “potential for violence to be overwhelming”: at para. 36.

[86] The mother’s allegations in this case do not come close to the severity of the risk described in Pollastro.

[87] In Mbuyi v. Ngalula, 2018 MBQB 176, at para. 65 (cited with approval by Jarvis J. in Vantriet v. Ogutu, 2019 ONSC 5784, at para. 33), MacPhail J. of the Manitoba Court of Queen’s Bench set out the following circumstances in which the Article 13(b) exception has been found to apply due to family violence:

Cases where the Court has found this to be the situation have generally involved clear evidence of domestic violence, including some or all of the following circumstances: photographs of injuries, third party (including police) evidence of violence, medical evidence of injuries, the granting of, and, in some cases, breaching of civil protection orders or probation orders, criminal charges or convictions for abusive conduct, inability of the efforts of police or other authorities to restrain the abuser’s behaviour, the abuser’s disregard for court orders, abuse of the children.

[88] An assessment of risk involves not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring: Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 55; Ojeikere v. Ojeikere, 2018 ONCA 372, at para. 62.

[89] On the question of severity, the court stated in Jabbaz v. Mouammar (2003), 226 D.L.R. (4th) 494 (Ont. C.A.), at para. 23, that the circumstances must be exceptional:

The circumstances in which a court may refuse to order the return of a child under Article 13 are exceptional. The risk of physical or psychological harm or, as alleged in this case, an intolerable situation must be, as set out in Article 13, “grave”. The use of the term “intolerable” speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.

[90] In Habimana v. Mukundwa, 2019 ONSC 1781, at para. 42, the court set out three questions to decide if the threshold has been met:

1. Has the alleged past violence been severe and is it likely to recur?
2. Has it been life-threatening?
3. Does the record show that the offending individual is not amenable to control by the justice system?

[91] In this case, the answer to each question is no. The third question refers to a line of reasoning that has been commonly adopted by courts in Ontario and which draws on Friedrich v. Friedrich, 983 F.2d 1396 (U.S. C.A. 6th Cir. 1993) a decision of the U.S. Court of Appeals for the Sixth Circuit. In that case, Boggs J. stated:

A grave risk of harm for the purposes of the Convention can exist only in two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute - e.g. return the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

[92] The reasoning in Friedrich reflects one of the basic assumptions of the Hague Convention, that state parties understand that all contracting states “are equipped to make, and will make, suitable arrangements for the child’s welfare”: Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.), at para. 34; Medhurst v. Markle (1995), 26 O.R. (3d) 178 (Gen. Div.), at 182. It would be contrary to this assumption not to recognize the safeguards present in a country of habitual residence when assessing an Article 13(b) argument.

[93] In this case, the safeguards of the Court in France are evident from the affidavit of Marine Caplanne, a lawyer in Paris, France. These safeguards have also been recognized and accepted in Batten v. Batten, 2021 BCSC 2507, at paras. 76-77 and C.B. v. B.M., 2021 ABQB 151, at paras. 135-138.

[94] Ms. Caplanne confirms that family disputes and those involving children are dealt with by the Family Affairs Judge under the French Civil Code. This judge has exclusive jurisdiction. The child’s best interests is the standard that the judge follows. It is the primary consideration in all decisions concerning a child. This affidavit provides considerable detail about how the standard is applied. The affidavit also explains how domestic violence is handled in France. There are criminal and civil remedies for victims of domestic violence to access, including ordering a Civil Protection Order in accordance with Article 515-9 of the French Civil Code. Ms. Caplanne explains that in France, intentional violence includes “any act or behaviour which causes the victim physical or psychological harm, represented by shock or psychological distress.”

[95] The mother does not challenge Ms. Caplanne’s affidavit in any way. She has not demonstrated that France is unable to protect her and the child.

[96] In summary, the authorities clearly show that the threshold for relying on Article 13(b) is very high. Even if the mother’s evidence is accepted as fact, it does not establish that “there is grave risk” that return of the children “would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.”

Conclusion

[97] In summary, I find that the child was habitually resident in France on September 22, 2021, when the mother wrongfully removed the child and took her to Toronto. Pursuant to Article 12, the child shall be returned to France forthwith, in accordance with the orders made below.

[98] At the conclusion of the motion, I urged the parties to agree on arrangements for the return of the child to France should the court make this order. Whether the mother intends to return to France is unclear and the child’s whereabouts remain unknown. It is not known if the parties have reached an agreement. As a result, it is necessary for the court to make detailed orders to ensure that the child is returned to France without delay.

[99] I make the following orders:

1. It is declared that the child of the marriage, Asma Ahmadi (“the child”), born January 2, 2015, has been wrongfully removed from her place of habitual residence of Saint-Pierre-du-Mont, France and is being wrongfully retained in Ontario by the Respondent, Aazadah Basir Ahmad. Such removal and retention constitute a wrongful removal and retention of the child within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and pursuant to Article 12 of the Hague Convention.
2. The child shall be returned to her place of habitual residence in Saint-Pierre-du-Mont, France pursuant to Article 12 of the Hague Convention within 20 days of this Order.
3. Unless the parties reach an agreement in writing by April 14, 2022, as to how the child shall be returned to her place of habitual residence of Saint-Pierre-du-Mont, France, the following orders shall apply.
4. The Applicant Maarouf Ahmadi or someone on his behalf is authorized to apprehend the child and return the child to her habitual residence in Saint-Pierre-du-Mont, France, pursuant to s. 36(1) of the Children's Law Reform Act. The Applicant shall advise the Respondent, through counsel, of the travel arrangements made for the return of the child.
5. The Respondent shall no later than April 15, 2022, deliver all government and travel documents for the child to the Applicant’s counsel. This includes all documents held pursuant to the Honourable Justice Shore's Order dated February 22, 2022. These documents shall be released to the Applicant or his designate for the purposes of facilitating the child's return to her habitual residence.
6. The Respondent shall fully cooperate with the child's return and deliver the child to the Applicant within 48 hours of the date of travel as identified by the Applicant and/or his counsel.
7. The police in the area where the child may be located, including but not limited to the Toronto Police, York Regional Police, Peel Regional Police, the Ontario Provincial Police or the Royal Canadian Mounted Police and all other police, security, and governmental forces and/or agencies having jurisdiction in any area where it appears that the child shall enforce this Order.
8. For the purposes of the travel as set out above, this Order and a copy of the child's passport shall be forthwith brought to the attention of the Canadian Border Services Agency, and/or the Immigration and Refugee Services Canada, to assist with the child's return to France.
9. Pending the child's return to her habitual residence, the Respondent, or anyone on her behalf, are restrained from removing the child from the City of Toronto.
10. The Respondent shall forthwith provide the Applicant with full particulars of the whereabouts and location of the child, including addresses and telephone numbers of all locations where the child is staying pending her return.
11. If the parties cannot agree on the costs of this motion, the Applicant shall serve and file brief written cost submissions by May 6, 2022, and the Respondent shall serve and file brief written cost submissions by May 17, 2022. Submissions shall not exceed 8 pages.

C. Horkins J.

Released: April 11, 2022

COURT FILE NO.: FS-22-00028116-0000 DATE: 20220411

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

Maarouf Ahmadi, Applicant

– and –

Aazadah Basir Ahmad, Respondent

REASONS FOR JUDGMENT C. Horkins J.

Released: April 11, 2022