DATE: 20220805

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAVIINDER SINGH PARMAR

Applicant

– and –

PARMINDER KAUR FLORA

Respondent

Kirsten Humphrey & Gurveer Gill, for the Applicant

Farrah Hudani & Jessica Luscombe, for the Respondent

HEARD: May 2, 2022

M. D. FAIETA j.

Reasons for Decision

[1] The Applicant father brings this motion for the return of his three-year-old daughter, born February 18, 2019, (“DK”), to the United States of America.

[2] Specifically, the Applicant seeks the following orders:

a) A declaration that DK is being wrongfully detained in Ontario by the Respondent mother within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the "Hague Convention").

b) An order for the return of DK to her habitual residence located in the City of Seminole Florida, United States of America, forthwith, pursuant to Article 12 of the Hague Convention; and

[3] The Respondent mother submits that Ontario was DK’s “habitual residence”, within the meaning of the Hague Convention, at the relevant time and that, in any event, the Applicant’s motion should be dismissed on the grounds that:

a) The Applicant father consented and/or acquiesced, within the meaning of Article 13(a) of the Hague Convention, to DK living in Toronto.

b) There is a grave risk of harm, within the meaning of Article 13(b) of the Hague Convention to DK if she is returned to Florida.

BACKGROUND

[4] The Applicant father, age 37, was born in the United States of America and is an American citizen. He is an anesthesiologist and a pain physician.

[5] The Respondent mother, age 40, was born in Toronto and is a Canadian citizen. She has a Ph.D. in Kinesiology from the University of Saskatchewan. The Respondent is a behavioral scientist and conducts research in health psychology. In addition, her father, Daya Singh Flora, states that the Respondent helps him manage the 40 rental units that he owns in Toronto.

[6] The parties met online in 2006 and then in person in January 2007. At that time, the Respondent was living in Toronto and the Applicant was living in the United States. The parties re-connected in 2012. The Respondent did not want to pursue a relationship with the Applicant because she did not want to leave her family in Toronto. For many years the Applicant has lived in a house with nine relatives including her parents, aunts, and uncles.

[7] The Respondent states that she started dating the Applicant in August 2014 after the Applicant promised that he would move to Toronto if their relationship became serious. Their long distance was maintained by telephone and video calls as well as each of them periodically travelling to visit the other. The Applicant lived in a few different cities throughout their relationship and eventually settled in Florida.

[8] The parties were engaged to marry in April 2016. Before she accepted his marriage proposal, the Respondent states that the Applicant agreed to move to Toronto. This allegation is denied by the Applicant as he states that the parties kept their options open as to where they would live once they married. To that end, the Applicant states that he looked for work both in Florida and Ontario in order keep their options open. He also states that the parties discussed that the Respondent would move to the United States. The parties discussed immigration options for the Respondent in March 2017 with an attorney.

[9] The Applicant took the Canadian Medical Board exams in May and June 2017. He states that it was never his intention to move to Toronto in the short-term. In any event, the Applicant failed these exams two months prior their wedding and refused to write these exams again.

[10] On September 2, 2017, the parties were married in Toronto despite not resolved where they would live together as a married couple. The Applicant continued to work and reside in Florida and the Respondent continued to work and reside in Toronto. They visited each other and travelled around the world.

[11] Their daughter DK was born on May 18, 2019, in Toronto, Ontario. For the first nine months of her life, the Applicant visited the Respondent and DK on weekends either every weekend or every other weekend. On occasion, the Respondent and DK would visit the Applicant in Florida.

[12] The parties lived together in Florida from February 28, 2020, until the Respondent and DKI returned to Toronto on July 18, 2021, where they have remained.

ANALYSIS

[13] The Hague Convention is in force in Ontario pursuant to s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[14] Articles 3 and 12 of the Hague Convention state:

3. The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

12. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. …

[15] The leading case in Canada on the Hague Convention is the Supreme Court of Canada’s decision in Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398. In Ludwig v. Ludwig, 2019 ONCA 680, the Ontario Court of Appeal provided guidance on the application of the Hague Convention and Balev in Ontario.

[16] In Ludwig, the Ontario Court of Appeal stated:

19 The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained: Balev, at para. 24; Hague Convention, Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.

20 The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned.

[17] The Hague Convention is not concerned with determining rights of custody on the merits. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned”: Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24.

[18] In Ludwig, at para. 21, the Ontario Court of Appeal stated:

There are two stages to a Hague Convention application: 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 return applies. 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: see Balev, at para. 36.

ISSUE #1: WHAT WAS THE HABITUAL RESIDENCE OF THE CHILD IMMEDIATELY PRIOR TO HER WRONGFUL REMOVAL OR RETENTION FROM THE U.S.A.?

[19] In Ludwig, the Ontario Court of Appeal stated:

22 Habitual residence is central to the Hague Convention because it defines when a removal or retention of a child is wrongful. As Article 3(a) of the Hague Convention provides, the removal or retention of a child is only wrongful if 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” (emphasis added). For example, in this case, the application judge’s finding that the children were habitually resident in Ontario immediately prior to the date of the respondent’s retention of the children in Ontario led her to conclude that this retention was not wrongful, as it did not breach custody rights under Ontario law. Conversely, if the application judge had found that the children were habitually resident in Germany immediately prior to the date the respondent retained the children in Ontario, the application judge would have had to find the retention was wrongful. It would have been in breach of the appellant’s custody rights under German law for the respondent to retain the children in Ontario.

23 I would endorse the two-step approach to habitual residence that the application judge took in this case. Under this approach, the first step is to determine when the alleged wrongful removal or retention took place, and the second step is to determine in which state the children were habitually resident immediately prior to that removal or retention. [Emphasis added]

Step One: Date of Alleged Wrongful Removal or Retention of the Child

[20] In Ludwig, at paras. 24 & 25, the Ontario Court of Appeal stated:

24. The first step of analysis is for the court to determine the date of the alleged wrongful removal or retention. This date is central to the analysis because the court assesses in which country the child was habitually resident immediately prior to this date. …

25. Identifying the date of alleged wrongful removal or retention does not imply a finding that there has been a wrongful removal or retention. At this first step of the analysis, the wrongfulness of the removal or retention is merely an allegation. All that is required at this step is to fix a date to conduct the habitual residence analysis.

[21] The wrongful removal involves “… the removal of a child away from the normal social environment in which he lived in the care of a custodian (or institution) who exercised over him a legal right of custody” whereas the wrongful retention of a child arises when there is “… a refusal to return the child after a sojourn abroad, where the sojourn has been made with the consent of the rightful custodian of the child's person.”

[22] The Applicant father submits that the date of the alleged wrongful removal or retention of DK was September 9, 2021, when the Applicant sent a text message asking whether the Respondent was returning to Florida, whereas the Respondent mother submits that it is March 14, 2022, which she asserts is the date that the Applicant commenced this Hague Application. In fact the Hague Application was commenced on February 28, 2022.

[23] When the Respondent travelled to Toronto with DK on July 18, 2021, with the Applicant’s consent, he failed to disclose to the Applicant she had no intention of returning DK to Florida. Text messages sent June 29, 2021, state:

Applicant: Can we confirm the dates that I need to clear out? Confirm the dates we will travel there and back. …

Respondent: We said that we would go to Toronto on the 18^th from Chicago and you would come the following Friday 23^rd for a week and you said you would try to come for 2 weeks but that you could only commit to one week. How is it looking for you to come to Toronto for 2 weeks?

Applicant: Depends … How long will you be staying in Toronto? …

Respondent: Wanna stay a while, it’s been forever since we’ve seen my family. I would like for you to also spend time there. I really wish that you would try to make it work to come as well. …

Applicant: I want to make it work as well, which is why I reached out this morning to figure out and confirm plans.

[24] In mid-July 2021, the parties went with DK to a wedding in Chicago. The Respondent mother and DK then flew from Chicago to Toronto. The Respondent returned to Toronto with DK on July 18, 2021. The Applicant was under the impression that the Respondent was making an “extended visit” to see her family and that she and DK would return to Florida. When she left, the Respondent took a copy of the home keys, the home gate clicker and the home pedestrian gate access and left several of her personal possessions, including clothing, books, and artwork.

[25] The Respondent denies that the Applicant was under the impression that her trip with DK to Toronto would be temporary however offers no basis for this assertion. The Respondent’s answer in the above message exchange which states that she would be in Toronto “a while” does not imply that she and DK will not be returning to Florida. Further, it is also inconsistent with the Applicant’s text message to the Respondent on July 25, 2021 which asked for her views on their previously discussed “idea of spending summers in Toronto”.

[26] The Applicant travelled to Toronto on six occasions: August 10-15, 2021, September 3-6, 2021, October 14-17, 2021, October 22-24, 2021, November 12-15, 2021, and December 17-19, 2021. The Applicant states on every trip he would argue for DK’s return which would lead to fights. He states that the Respondent refused to provide a direct answer regarding when she planned to return to Florida with DK.

[27] A text message exchange between the parties on November 29, 2021, shows that the Applicant offered to close his business in Florida and move with the Respondent and DK to another location and asked that, in the interim, the Respondent and DK visit him in Florida. Although there is no evidence of her reply, the present circumstances indicate that the Respondent did not respond favorably to this offer.

[28] The Applicant states that in December 2021 he realized that the Respondent did not intend to return to Florida with DK.

[29] On December 10, 2021, the Applicant sent a text message to the Respondent:

I’m not perfect and have flaws that I need to continue to work on. It doesn’t mean that it’s okay to take [DK] away from Florida and not let her visit her father. Especially without communicating to me that was your intent.

[30] On the same day, the Applicant filed a Petition for Dissolution of Marriage in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, in the State of Florida for, amongst other things, an order for the return of DK to Florida on an emergency basis.

[31] The Respondent’s position that DK was allegedly wrongfully retained in Canada only started with the filing of this Hague Application in Ontario ignores the proceeding that the Applicant commenced in Florida for DK’s return several months earlier.

[32] I find that the date of DK’s alleged wrongful retention is December 10, 2021 as although the Respondent took DK on a trip to Canada in July 2021 with Applicant’s consent, it only became clear to him on December 10, 2021 that the Respondent would not be returning DK to Florida.

Step Two: Determining the Child’s Habitual Residence

[33] In Ludwig, the Ontario Court of Appeal stated:

26 The second step of the habitual residence analysis requires the court to determine where the child was habitually resident immediately before the date of the alleged wrongful removal or retention. As I will explain, in Balev the Supreme Court changed the approach that Ontario courts had previously employed to determine habitual residence.

27 Prior to the Supreme Court’s decision in Balev, Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132 (S.C.C.), a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev v. Baggott, 2016 ONCA 680, 133 O.R. (3d) 735 (Ont. C.A.), at paras. 39-40, 42, rev’d 2018 SCC 16, [2018] 1 S.C.R. 398 (S.C.C.).

28 In Balev, the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev. Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev, at para. 41.

29 Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention: at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65.

30 The aim of the hybrid approach is 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”: at para. 43. To determine the focal point of the child’s life, the majority required judges 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.

31 The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. 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. However, 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.

32 Certain factors may be more relevant where the child is an infant or is very young. Where a 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”: Balev, at para. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children: para. 45.

33 Balev establishes that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination of habitual residence is subject to deference. The court specifically stressed that the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: at para. 47. The application judge must consider the entirety of the child’s situation and no one factor necessarily dominates the analysis: at paras. 44, 47. [Emphasis added]

[34] I now turn to consider the relevant links and circumstances prior to the date of her alleged wrongful retention in Canada in order to determine the focal point of the DK’s life having regard to her family and social environment in which her life has developed.

[35] The Respondent’s written submissions do not follow the structure described above. Rather than frame her analysis in the manner directed in Ludwig, the Respondent’s analysis provides a description of: 1) DK’s Links to Toronto; 2) The Circumstances of the DK’s Time Spent in Florida; and 3) DK’s Links to Florida. The Respondent’s approach fails to recognize that the Applicant’s allegation is that DK’s habitual residence is in the U.S.A. and that she has been wrongfully retained in Canada since December 10, 2021. As a result, in this case, Country A is the U.S.A, not Canada as suggested by the Respondent.

The Child’s Links to and Circumstances in the U.S.A.

[36] DK was born in Toronto on May 18, 2019 and is both an American and Canadian citizen.

[37] The approximate number of days that DK has lived in each country is as follows:

Days in Canada

Days in the U.S.A.

May 18, 2019 to February 28, 2020 (from birth to age 9 months)

286 days

February 28, 2020 to July 18, 2021 (about age 26 months)

508 days

July 18, 2021 to December 10, 2021 (about age 31 months)

145 days

Totals

431 days (about 14 months)

508 days (about 16 ½ months)

[38] DK resided in the United States from February 28, 2020, until for about 506 days until July 18, 2021. Accordingly, she arrived in Florida when she was about 9 months old and returned to Canada when she was about 2 years and 2 months old.

[39] During this period of about 16 ½ months, DK resided with both of her parents.

[40] DK resided more than one-half of her life in the United States by the time she was allegedly wrongfully retained in Canada

[41] The Applicant states that the Respondent moved to Florida on February 28, 2020, with a settled intention to do so and relies on the following evidence:

a) Starting in about September 2016, the Respondent was in contact with a friend, Dr. Bhavik Shah, about research job opportunities for her at a hospital that he worked at in Florida and later in Georgia after he moved there in 2018. On two occasions she provided her CV to the Dr. Shah. Ultimately, he was unable to help the Respondent find a job in her field in Florida or Georgia.

b) After their wedding on September 2, 2017, the parties started the process for the Respondent to obtain a permanent residence card in the U.S.A. in about October 2017.

c) The parties signed a lease for an apartment in Seminole, Florida on June 26, 2019. She asked the Applicant: “Are they gonna let us hang pictures?”

d) On October 21, 2019, in a text message exchange with the Applicant, the Respondent expressed her frustration with how long it was taking for the approval of her application for Lawful Permanent Residence status (commonly referred to as a “Green Card”). She stated “Yeah, it just really sucks. I’m not holding my breath. It’s been 1.5 years since we applied. …”

e) To obtain the immigration visa, the Respondent would have had to state under oath that she intends to live together with the Applicant as a married couple. (See paragraphs 17 -18 of the Affidavit of Dilipkumar Patel, sworn March 17, 2022). Similarly, their lawyer, Kash Bhavsar, also confirmed that the immigration process that the Respondent went through “absolutely entailed an immigrant intent to live in the U.S.”.

f) The Respondent obtained her Lawful Permanent Residence status in the U.S.A. which grants authorization to live and work in the U.S.A. on a permanent basis in October 2019.

g) After the Respondent received her Green Card, the parties began ferrying several of the Respondent’s belongings from Toronto to Florida.

h) In a text message to the Applicant on November 4, 2019, the Respondent stated:

Applicant: I know you are scared and not so much looking forward to moving here. I understand that. I’m really trying hard to make it a good experience so that we are both happy.

Respondent: Ya I do have a lot of fears about everything. It’s a really big thing for me to leave my familiar comfortable place where I like my life To an unknown place with so many other unknown factors. But I also feel like you’ll be supportive of me and committed to building our family life together in a way that suits us. And I know there will be a lot of changes for you too with us being there. So I hope we can really focus on working in all of this. I do have a lot of anxiety about the changes. But I’m also glad to finally be able to move out of my parents’ house. I have been waiting to have my own family life and family home. So that is finally here and I’m excited about that.

i) In a text message to the Applicant on November 14, 2019, the Respondent stated:

Applicant: I really am trying hard to show you that I put you first. My parents, they live 2.5 hours away. They aren’t going to be over all the time. …

Respondent: Nope. That’s not it at all. I actually am excited that our family gets to be together. Regardless of how I feel about Florida, I have told you that I will move there. When I say I’m going to do something, you can bet your life on it that I’m going to do it.

j) In another text message exchange with the Applicant on November 17, 2019, the Respondent indicates an intention to live in Florida when she asked the Applicant about the financial consequences if they wish to end the lease on their apartment in Seminole and the impact on their daughter if they move from Seminole:

Respondent: If I got a job offer that required us to consider a relocation, it would not make sense to pay Jerry out in order for me to take a job that pays less, probably less than what Jerry would be owed.

Applicant: Finances aren’t everything.

Respondent: Is that what you are thinking about when you say just get the offer and we will look at the whole picture and see what’s best for our family at that time?

Applicant: It’s about being happy. …

Respondent: [DK] will be in school. No kids enjoy moving schools. That’s not really what should be making career choices for us. …. I know you’ve told me you are supportive of me working and want me to work and that if I’m not happy in Florida that we will move. But I’m having a hard time feeling like that would be possible because it’s contingent upon how thinks work for you and now also about [DK]. …

Applicant: What if you get a great job and like it here? …

Respondent: I just don’t think you really appreciate how big of a step I am taking for our relationship and for our family. And I don’t think you get how terrifying it is to try to make this decision knowing that I very often fell second to others. [Emphasis added]

k) In another text message exchange with the Respondent on December 17, 2019, the Applicant stated that he wanted to be together with his family:

Applicant: But I’ve been quite depressed not being a part of our child’s life, so the sooner we can work on being together, I’d appreciate that.

Respondent: I’m sorry you feel that way. But at the moment I just feel like what’s the point. I’m pretty depressed about moving and living in Florida and on top of that always being second. And I’m really worried about the novelty wearing off and just wonder if you’re even going to try to make it a good and exciting life for us. … [Emphasis added]

l) The parties moved into their apartment in Seminole, Florida on February 28, 2020.

m) When DK was born, they advised her pediatrician in Toronto that they would be moving to Florida and made arrangement for the Respondent and DK to have health insurance in Florida.

n) After the Respondent and DK moved to Florida the plan was for the Respondent’s family to visit them in Florida.

o) The Respondent arranged for her sister, Gurjit Mahalingam, to visit them in Florida in May 2020 with her husband and two children. These plans were later cancelled due to the COVID-19 pandemic.

p) The Respondent used her Green Card to secure two jobs in the U.S.A. as a professor performing online teaching at Creighton University and North Central University. The Respondent maintained both jobs under at least January 2022.

q) The Applicant bought the Respondent a 2020 Subaru Outback which was the car that she wanted as it was the same car that her sister owned.

r) The Applicant purchased U.S. health insurance for the Respondent and DK effective March 1, 2020, as before that time they only had travel insurance.

s) According to Dr. Ritika Oberoi-Jassal, a physician in Tampa, Florida, was friends with both parties. She described her family meeting with the parties and DK on three occasions (February 2020, September 2020 and June 2021) either at a party or over dinner. On the first two visits the Respondent expressed interest in finding employment at a hospital in Tampa. On the second visit, the Respondent asked about good daycare programs. On the last occasion, the Respondent stated that she was travelling to Toronto with DK but did not indicate that she would not be returning to Florida.

[42] The Respondent states that the parties lived apart throughout their entire marriage and have maintained separate home – the Respondent’s home is in Toronto and the Applicant’s home is in Seminole, Florida. She states that the parties never settled on a city in which to live together. The Respondent states she intended to return in April 2020 from her trip to Florida on February 28, 2020 with DK. The Applicant states that with the onset of the COVID-19 pandemic in mid-March, 2020, she had serious concerns about exposure to COVID-19 during a flight and decided to stay in Florida temporarily. In support of this position, the Respondent relies on the following evidence:

(a) The Respondent states that she submitted her application for a Green Card in May 2018 in order to placate the Applicant. The purpose of this application was to provide the parties with more options as to where to live together in the long-term. Any discussions that they had about the Respondent living in Florida were contingent upon her obtaining a job in her field in Florida.

(b) The Respondent states that she signed the lease on an apartment in Seminole, Florida because the landlord requested her signature and without any intention of moving to Florida.

(c) The Respondent states that she did not want to give birth to DK in Florida as she did not have any family or friends in Florida, her doctor was in Toronto and her full-time job was in Toronto. She states “we ultimately decided that we would remain in our own cities and simply continue to travel frequently to spend time together”. The Respondent relies on an email sent by the Applicant dated November 19, 2018 which states:

Although I strongly disagree with how you would like to do things, I will support you. If you would like to have the baby in Toronto and stay there afterwards, I will try my best to be there and support you and our child. The most important thing is that our child has a happy household and if being here would stress you, I don’t want that for your or our child. …

Realistically all things considered if everything goes well, it will be a minimum of a few months after birth before you and the baby can come down to Florida. (Baby being old enough to travel, immigration for the baby). I will try my best to make it work and to visit often. We can’t go on in this marriage having these unhappy conversations and I definitely don’t want this to affect our child. I think this way you can get the support you need. I want you in the best possible position to care for our child, even it means I’m not around as much. The bond between mother and child is absolutely vital and I don’t want you feeling stressed or unhappy with being in Florida while you are forming this bond.

(d) The Respondent states that she told the Applicant that she was moving to Florida in two messages from November 2019, shown above, out of fear of losing him or making him angry.

(e) The Respondent states that she and DK traveled to Florida in November 2019, January 2020 and February 2020 to visit the Applicant.

(f) The Respondent’s close friend, Professor Candace Bloomquist, states that she and the Respondent have been close friends since 2007 and states that had the Respondent had not made any plans to move to Florida in February 2020 and that the Respondent would have told her had she decided to move to Florida.

(g) Another close friend of the Respondent, Sandra Meilie Ng Fuk Chong, met the Respondent about 8 years ago and states that the Respondent frequently travelled to various international destinations. Ms. Chong was a flight attendant and added the Respondent as her travel companion so that she could travel frequently, on standby, both with and without her. Ms. Chong states that the Respondent flew on a one-way standby ticket to Florida in February 2020 with DK. She states that the flight was one-way because the standby reservations system used by Westjet only allows a customer to make standby reservations up to two weeks in advance. Ms. Chong states that the Respondent was still on maternity and only intended to spend about one month in Florida. She states that the Respondent only checked one bag on her flight to Tampa. Ms. Chong states that she usually spoke with the Respondent daily and that the Respondent never told her that she had moved there with DK but rather, after the lockdown that resulted from COVID-19, that she felt trapped in Florida. She also states that the Respondent was extremely isolated as the Applicant told her that she could not do anything because of DK.

(h) The Applicant’s sister, Parmjit Flora, states that the Respondent never intended to move to Florida, does not like Florida, and it’s too far away from her family and life in Toronto. She states that the Respondent only stayed in Florida was due to COVID-19.

(i) The Respondent states that she checked one bag when she flew to Florida on February 28, 2020 and did not take any of her or the DK’s personal belongings. She also states that she did not pack or ship a single box.

(j) On March 2, 2020, the Applicant told the Respondent that Florida had just identified its first two cases of COVID-19. On March 20, 2020 they learned that the Canada/U.S.A. border was closed. They decided that it was safest for the Respondent and DK to remain in Florida with the Applicant. For the first several months, they did not leave the apartment except for essential outings or short walks to the park or beach.

(k) The Respondent relies on various messages that she sent to friends in late March 2020 which state:

“We are in Florida. Came for a visit and then everything kinda happened so now just here.”

“I’m in Florida. Was supposed to go back to Toronto but everything got shut down, borders closed etc so we are staying here for a bit”

“I would be terrified to get on a plane with the baby. I’ve committed to just staying put in apartment”.

“[DK] and I came over at the end of feb and enjoyed 2 weeks and then everything got crazy”.

“We are in Florida near Tampa. I was supposed to be here visiting for a couple weeks but couldn’t get back to TO safely so Ravi and baby and I are hanging out isolating together.

(l) In May 2020, the Applicant resumed seeing patients at the clinic. He insisted that the Respondent and DK stay indoors as much as possible to limit their exposure. The Applicant stopped providing any care to DK (no washing, dressing, feeding, etc.) because they both fear transmission. The parties also slept in separate bedrooms. The Respondent states that whenever she raised the possibility of returning to Canada, the Applicant suggested that travel would risk exposure to COVID-19. When the Respondent suggested that he rent an RV and drive the Respondent and DK back to Canada, the Applicant insisted that he could not take the required time off work.

(m) In December 2020 the Applicant was able to get fully vaccinated but the Respondent was not eligible for her second dose of the vaccine.

(n) The Respondent provided covering letters for various faculty positions that she applied for at universities in Oregon, Texas and Arizona in September 2020 and a faculty position at a college in Florida in December 2020. She also appears to have applied for a job with the Ontario Civil Service in December 2020. The Respondent secured two part-time contracts and, while in Florida, taught online courses at Creighton University and North Central University.

(o) The Respondent states that in February 2021 she plead with the Applicant to rent an RV and drive her and their daughter back to Toronto however he insisted that he could not take the required time off work.

(p) The Respondent received her second dose of the vaccine on April 13, 2021.

(q) The Respondent sent a message to a friend on April 15, 2021 which states:

“Unfortunately we are still stuck in FL and haven’t been able to go home to Toronto. Can’t believe it has been more than a year. It really sucks. But the border has still been restricted and the uncertainty and the mandatory hotel stay is so unbearably difficult and also risky. People have gotten sick in quarantine which is crazy.

(r) In May 2021, Professor Bloomquist drove to Florida to visit the Respondent and was shocked to find her visibly unhappy and lonely. The Respondent described having no adult social connection outside of the Applicant given that her only friend, her neighbour, had moved away.

(s) The Respondent denies that she could have travelled home whenever she wished as she feared for DK’s exposure to COVID-19. She states that they agreed that the Respondent could not leave for Toronto until: 1) quarantining at a hotel was no longer required; 2) the Respondent was fully vaccinated and two weeks had passed; 3) the Respondent’s entire household in Toronto were fully vaccinated and two weeks had passed.

(t) In June 2021, the Respondent and DK drove to Omaha to visit Professor Bloomquist and told her that she was wanted to go home to Toronto after an upcoming wedding in Chicago.

(u) The Respondent’s father, Daya Singh Flora, states that his full household was vaccinated by July 7, 2021. There are nine people in his household – his wife, his three daughters, one son-in-law, and three grandchildren,

(v) The Respondent states that she and the Applicant agreed that it was finally safe for her and DK to return to Toronto in July 2021. Fully vaccinated travelers were no longer required to quarantine at a hotel. As well, those living at her parents’ home in Toronto were fully vaccinated. When the Applicant suggested that she return to Toronto with DK, the Respondent “cried uncontrollably” and was “overwhelmed with happiness and relief by the prospect of returning home”.

(w) On July 18, 2021 after attending a wedding one day earlier in Chicago, the Respondent flew to Toronto with DK and the Applicant flew to Florida. She states that there was no discussion of when she and DK would be returning to Florida and there were no plans for them to return to Florida.

(x) In September 2021 the Applicant applied for a job with the Toronto Rehabilitation Institute.

[43] The Respondent relies on the evidence of an immigration lawyer, Heather Naomi Segal, who is licensed by both the Law Society of Ontario and the State Bar of California. She states that a permanent resident of the United States has, amongst other things, the right and responsibility to live permanently in the United States provided that such person does not commit any action s that would make them removable. While a permanent resident can travel outside of the country for brief travel, permanent resident status could be viewed as abandoned by a US Customs and Border Protection officer if that resident remains outside of the United States for more than six months particularly if resident has moved to another country and intends to live there permanently.

[44] There is limited evidence of the DK’s environment while they lived in the U.S.A. given the onset of COVID-19 in March 2020 and the Respondent’s fear of contracting COVID-19:

a) DK had a pediatrician, Dr. Timothy Vaughan, and ophthalmologist, Dr. Samantha Roland, in Florida.

b) DK received medical care from Dr. Vaughan on several occasions.

c) The Applicant states that the Respondent was fearful of COVID-19, and with its onset in March 2020, the parties did not enroll DK into any in-person activities until they enrolled her in swimming lessons at a local swimming pool that re-opened in the summer of 2021. Those lessons continued until DK left for Canada in July 2021.

d) The Respondent states that DK did not do any in-person activities in Florida because of COVID-19. The Respondent states that DK, while in Florida, was registered with the Toronto District School Board's EarlyON program however provided no evidence of same. Nor is there any evidence of the online activity in which she was enrolled and the frequency of her participation.

e) The Applicant states that when the Respondent started working, he stayed home on Thursdays with DK so that the Respondent could work.

f) The Applicant states that, after the Respondent and DK moved to Florida, he stayed home for a while until the parties felt it was safe for him to begin seeing patients in person. He states that during this period, they spent time with:

o his parents who live 2 ½ hours away.

o his brother, Jesspreet Parmar, and his wife, Amaya, who live about an hour away.

o their good friends in the community, Joshua Boyce and his wife Jessie Boyce, who have now moved to South Carolina.

g) The Applicant’s father, Dr. Kirpal Singh Parmar, is a retired dentist and lives with his wife in Naples, Florida. Dr. Parmar states that he and wife travelled to Toronto for DK’s birth in May 2019. They also travelled to Seminole, Florida to visit DK in November 2019. In February 2020, the parties and DK visited him and his wife in Naples to celebrate their wedding anniversary. On that occasion, Dr. Parmar presented the parties with a prepaid four-year university education in the State of Florida for DK. The Respondent appeared thankful for the gift and gave no hint that DK would not be remaining in Florida. Despite being fully vaccinated and cautious during the height of the COVID-19 pandemic, the Respondent minimized their contact with DK and came up with an excuse on the many times when they would try to see DK. Dr. Parmar states that he and his wife only visited the parties and DK at their apartment on three occasions in the 16 months that DK lived in Florida.

h) The Applicant’s brother, Dr. Jesspreet Parmar, is a dentist in Lakeland, Florida. He states that the Respondent was very afraid of COVID-19 and that on multiple occasions when he visited, they all work masks despite being fully vaccinated. Neither Dr. J. Parmar or wife, Amita Glamour, have ever contracted COVID-19. He states that the Applicant would not answer his or his mother’s telephone calls when the Respondent was home because she believed that their family unit should not spend much time with others in order to establish their own relationship. Despite these challenges, he states that they spent time by going to the beach on multiple occasions, Bok Tower Gardens, the pier, the Applicant’s medical clinic, Dinosaur World, his parent’s home and to his home in Lakeland. He has many photos of himself with DK and kept her photo as his background photo on his cell phone for over a year. Dr. J. Parmar states that DK still asks for him by saying “I want Chachaji” which is Punjabi for uncle when speaking with the Applicant on Facetime.

i) The Applicant’s sister-in-law, Amita Glamour, is a nurse practitioner. She worked at a GI clinic during the time that the Respondent lived in Florida. She understood that the Respondent would be moving to Florida and Ms. Glamour’s father recommended an immigration lawyer for them to assist her. She and her husband travelled to Toronto for the DK’s birth. She states that the only time they travelled unvaccinated was in June 2020 when they went to visit her brother-in-law who was recovering from brain cancer surgery. She and Dr. J. Parmar were vaccinated in January 2021 and received a second dose in the following month. Ms. Glamour states that the Respondent did not permit the Applicant to answer their telephone calls when he was at home. Ms. Glamour and her husband found this upsetting as they wanted to watch DK grow and maintain their relationship with the Applicant. At about that time, Ms. Glamour observed that the Applicant looked unwell and believed that it was the result of marital strain. Ms. Glamour felt that the Applicant’s family’s relationship with the Respondent was straining the Respondent’s marriage and reached out to her on occasion and they had long conversations about her relationship with the Applicant’s parents as well as about DK, pregnancy and marriage. Ms. Glamour states that they when they did meet with DK, they were required to meet outdoors, wear a mask and keep some distance away from DK on the few occasions that the Respondent permitted them to visit DK. Ms. Glamour states that the parties and DK attended her sister’s wedding in Chicago in July 2021. At that time the Respondent mentioned that she would be visiting her family as she had not seen them for some time due to COVID. Ms. Glamour, like my many members of her family, were under the impression that the Respondent would be returning to Florida.

j) Joshua Boyce states that he is the Applicant’s close friend and neighbor until March 2021. They have known each other for two years and shared similar levels of caution when it came to COVID-19. He states that he walked with the Applicant every day and that he saw the Respondent and DK during the day between meetings. He also spent time with the Applicant and DK on Thursdays as the Applicant cared for DK while the Respondent worked. Mr. Boyce states that the parties allowed him and wife, Jessie Boyce, to care for DK alone at one point. He states that the Respondent often talked about her move to Florida, her citizenship status and what schools in which they could enroll DK. Mr. Boyce states that the parties bought bikes to go riding with him and his wife and also purchased a second car for the Respondent. Mr. Boyce and his wife returned to Florida in April 2021 to celebrate the Respondent’s 40^th birthday.

k) Jessie Boyce largely repeated her husband’s evidence. She also notes that throughout the COVID-19 pandemic, their time together with the parties and DK was spent outdoors. Ms. Boyce states that she felt honored that they were allowed to get close to DK as the Respondent, citing COVID-19 concerns, did not want the Applicant’s family to visit DK.

l) As noted above, the parties and DK visited Dr. Oberoi-Jassal, her husband and four-year-old son on three occasions.

The Circumstances of the Child’s Move from the United States to Canada

[45] As noted above, the Respondent mother longed to return with DK to live with her parents and siblings in Canada after having lived in Florida for about 16 months with the Applicant. Although married to the Applicant, her ties to her family were far stronger than they were to him. This fact, together with the Respondent’s desire to continue her career as a researcher in Canada, supports the view that the Respondent did not intend to move to Florida when she flew to Tampa in February 2020 notwithstanding that some of her earlier statements suggested otherwise.

[46] The Respondent’s intention at the time she travelled to the United States is not a complete answer to the parental intention approach to habitual residence which ties a child’s habitual residence to that of the custodian’s “settled intention” to stay in a place. As noted in Korutowska-Wooff v. Wooff, 2004 ONCA 5548, at para. 8, “a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family”. In this case, the Respondent demonstrated a settled intention to stay in Florida for a particular purpose – namely, to reside in Florida until she felt that it was safe for her and DK to travel and return to Toronto.

The Children’s Links to and Circumstances in Canada

[47] DK was born in Toronto and is a citizen of both Canada and the United States. She has a Canadian birth certificate, Social Insurance Number, a Canadian passport and an OHIP card.

[48] DK lived for the first nine months of her life in Canada and then again since July 2021 after the Respondent left the United States. Prior to the date of her alleged wrongful retention in Canada, DK resided about 431 days or about 14 months in Canada.

[49] During the 14 month period that she resided in Canada, DK lived with the Respondent mother, her maternal grandparents, her two maternal aunts, her uncle, and two cousins (ages 2 and 4). DK is active in Toronto’s Sikh community and attended a Toronto Sikh retreat last year. She regularly attended the EarlyOn Child and Family Center at White Haven Junior Public School from October 2019 until February 2020. She also attended these sessions virtually while in Florida. DK now attends once again in person. DK attends the YMCA daycare program in Toronto. She also attends gymnastics one a week in Toronto and regularly visits the library to read and borrow books.

[50] I adopt the view expressed in J.M. v. I.L., 2020 NBCA 14, at para. 27:

Balev instructs that relevant considerations may vary depending on the age of the child. Typically, an infant or a toddler's environment will be linked to the parent who looks after the child's every need:

[...] 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" [...]. [para. 44]

[51] The evidence is clear that the Respondent has been DK’s primary caregiver during her life and that she has been the focal point of DK’s life, from birth to the present time, including at the date of her alleged wrongful retention in Canada in December 2021.

Conclusion

[52] Having considered the relevant links and circumstances prior to the date of her alleged wrongful retention in Canada, I find that the focal point of DK’s life having regard to her family and social environment in which her life has developed was in Canada. Accordingly, I find that DK was habitually resident in Canada prior to the date that she was allegedly wrongfully retained in Canada.

ISSUE #2: DO ANY OF THE EXCEPTIONS TO ORDERING THE RETURN OF THE CHILD TO THE UNITED STATES APPLY?

[53] Had I not concluded that DK was a habitual resident of Canada at the time of her alleged wrongful retention in Canada, I would have had to address the Respondent mother’s submission that DK should not be returned to the United States due to exceptional circumstances.

[54] In Ludwig, the Ontario Court of Appeal stated, at para. 34:

If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions 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));1

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).

[55] The Respondent submits that Articles 13(a) and 13(b) apply.

Did the Applicant father consent to the retention of the child?

[56] Article 13(a) states

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.

[57] In Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at paras. 46-49, the Ontario Court of Appeal stated:

46 The words "consent" and "acquiescence" as used in Article 13(a) of the Hague Convention should, in my view, be given their ordinary meaning so that they will be consistently interpreted by courts of Hague Convention contracting states. In any case, I can see no logical reason not to give those words their plain, ordinary meaning.

47 "Consent" and "acquiescence" are related words. "To consent" is to agree to something, such as the removal of children from their habitual residence. "To acquiesce" is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.

48 Subject to this observation, I agree with Lord Brown-Wilkinson's approach and analysis in H (Minors), Re. When Lord Brown-Wilkinson said that "[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world's perception of his intentions", he was, it seems to me, really speaking of the wronged parent's consent to a child's removal or retention based on evidence falling short of actual stated consent. That is what acquiescence is — subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child's removal or retention.

49 To establish acquiescence in the Article 13(a) Hague Convention context — "subsequently acquiesced in the removal or retention" — the mother must show some conduct of the father which is inconsistent with the summary return of the children to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence. In my opinion, the evidence on which the mother relies does not meet that test.

[58] The date of the wrongful retention of DK was December 10, 2021. The Applicant father had agreed for DK to travel to Toronto with the Respondent for a visit with her parents of underdetermined length. Although the Applicant father visited the Respondent and DK on numerous occasions for several days in each of August 2021, October 2021, November 2021, and December 2021, which included numerous discussions about the Respondent’s intentions, it was not until December 10, 2021 finally realized that the Respondent had no intention of returning to Florida with DK. As a result, the Respondent’s actions or inaction up to the date of the wrongful retention cannot form the basis for his alleged consent or acquiescence to DK remaining in Canada.

[59] After December 10, 2021, the Applicant continued to visit the Respondent and DK in Toronto. However, I find that he did not consent or acquiesce to DK remaining in Canada after December 10, 2021. In addition to commencing the proceeding in Florida for the return of DK, the Respondent also commenced this proceeding for the return of DK on February 28, 2022. I find that there is no clear and cogent evidence that shows the Applicant’s unequivocal consent or acquiescence to DK being retained in Canada after December 10, 2021, being the date of the wrongful retention. In fact, the opposite is true. The evidence shows that the Applicant father’s actions after December 10, 2021 clearly demonstrate that did not consent or acquiesce to DK be retained in Canada by the Respondent.

Is there a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation?

[60] Article 13(b) states:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[61] A court may refuse to order the return of a child under Article 13(b) when there is grave risk that the resulting physical or psychological harm to the child from their return would place the child in an intolerable situation. The risk must be a “weighty one”: Thomson v. Thomson 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at paras. 82-83.

[62] An intolerable situation “… speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.” In applying Article 13(b), the consideration of a child’s best interests is limited to this narrow perspective: Jabbaz v. Mouammar, 2003 CanLII 37565 (Ont. C.A.), at paras. 23-24.

[63] The burden rests with the parent opposing the return of the child to establish a grave risk of an intolerable situation: Gourgy v. Gourgy, 2018 ONCA 166, at para 10

[64] The Respondent submits that if DK is ordered to be returned to the United States, she will not be able to go with her because the Respondent has been absent from the United States for more than six months. Accordingly, given that the Respondent is DK’s primary caregiver, it would be deeply harmful to DK if the Respondent was not permitted re-entry into the United States.

[65] The evidence of immigration experts relied upon by the parties is that the Respondent’s intention to reside in the United States will be the key consideration in determining whether she is permitted entry. As such, the risk of being denied re-entry turns largely on the Respondent’s own actions. I find that the Respondent has not met the threshold for this exception.

CONCLUSIONS

[66] The Applicant’s motion is dismissed.

[67] The Respondent shall deliver her costs submissions by August 15, 2022. The Applicant shall deliver his responding costs submission by August 22, 2022. The Respondent shall deliver her reply submissions by August 29, 2022. Each costs submission shall be no more than three pages long excluding an outline of costs and any offers to settle.

Mr. Justice M. D. Faieta

Released: August 5, 2022