COURT FILE NO.: FS-22-000039-0000
DATE: 2022 06 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vanessa Routley v. Marco Antonio Sanchez Palomera
BEFORE: Fowler Byrne J.
COUNSEL: S. Lawrence Liquornik, for the Applicant
Adele Crossley, for the Respondent
HEARD: May 17, 2022 and June 8, 2022
E N D O R S E M E N T
[1] The Applicant Mother has brought a motion seeking a finding that the parties’ child, CP, who is 12 months old, is habitually resident in the Province of Ontario, and that the child has been wrongfully retained by the Respondent Father in Mexico within the meaning of the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, 1343 U.N.T.S. 89 reprinted in 19 I.L.M. 1501 (“Hague Convention”). The Hague Convention is incorporated into the law of Ontario by s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). She seeks an order that the child be immediately returned to Ontario and that the police enforce the order.
[2] The Motion was originally brought on an ex parte basis. The orders resulting from the original Motion were granted on a temporary basis until which time the Respondent Father was served and had an opportunity to respond. The Respondent Father has now filed his responding materials and seeks a finding that the habitual residence of the child is Mexico, and that the Mexican court is the appropriate forum in which to decide issues of custody and access. He seeks that my prior orders be set aside.
[3] Originally, the application was argued before me on affidavit evidence alone, which was not tested by cross-examination. Upon reviewing these affidavits and upon hearing submissions of counsel, I found that there were issues of credibility and that viva voce evidence was required. I ordered that the matter proceed by way of a hybrid hearing, where the affidavits filed to date would be considered the parties’ evidence in chief, and that each party was to be cross-examined on those affidavits, in person.
I. Issues
[4] There are a number of preliminary issues in addition to the substantive issues to be decided.
[5] The preliminary issues are as follows:
a) Did the Applicant make all necessary disclosures in her original ex parte motion?
b) Should the Respondent’s sur-reply evidence be admitted?
c) Are some of the communications produced by the Mother protected by solicitor and client privilege?
[6] The substantive issues to be decided are:
a) Was the child habitually resident in Mexico or Ontario immediately prior to her alleged wrongful retention in Mexico?
b) If I find that Ontario was the child’s habitual residence, should I order her immediate return?
II. Facts
[7] The Applicant Mother was born in Ontario and is a Canadian citizen. In 2020, she was living in Winnipeg, Manitoba, where she met the Father. At that time, she was practicing immigration law in the Province of Manitoba. She was also licensed to practice in the Province of Ontario and has had an office in Oakville, Ontario, since 2011.
[8] The Respondent Father was born in Mexico but left when he was approximately 12 years old. From that time, he lived and worked in the United States of America, from January 1992 to January 2020. While in the U.S.A., he finished high school and obtained a degree in mechanical engineering in Los Angeles. At times he was an undocumented immigrant but was seeking legal status through the assistance of his step-father. He had a work permit and was working towards a “green card”. Unfortunately, he had not yet obtained his green card when he decided to come to Canada. Given that his step-father is now deceased, he assumes his application will not proceed.
[9] The Father first entered Canada in January 2020 on a study permit, with the intention of obtaining a certificate in project management at the Manitoba Institute of Technology. By March 2020 though, he was offered a job with Jacobs CH2M Hill Canada Group (“Jacobs”) as a mechanical engineer in Winnipeg. His new employer was able to obtain a work permit for him that is valid until March 8, 2023. He advises that his particular job is one that was covered by the North American Free Trade Agreement (as it was known then), which eases the ability of his employer to obtain such a work permit. The Father continues to be employed at the Winnipeg office of Jacobs as a mechanical engineer. The Father maintains an apartment in Winnipeg and has since early 2020. He also keeps his Corvette and his truck there.
[10] The parties first met when the Father retained the Mother to help him obtain a visa to study in Canada prior to January 2020. They soon after became romantically involved. The parties agree that on or about April 2, 2020, the Father signed a document signifying the end of their solicitor and client relationship. In his affidavit, the Father alleges that the Mother continued to act as his lawyer until the end of their relationship, and that any documentation she has in her possession with respect to his immigration plans is privileged and should not have been disclosed. Nonetheless, during cross-examination, the Father contradicted that evidence and admitted that he formally terminated the Mother’s retainer as his lawyer when he signed the document in April 2020. Afterwards, she assisted him as his common law partner only, just as he assisted her with Mexican immigration matters.
[11] By the fall of 2020, the Mother was pregnant. When she was three and a half months pregnant, she decided to move to Toronto, Ontario, as she was unable to obtain an ultrasound in Manitoba and she was concerned about monitoring for a particular condition. The Mother rented an apartment in Toronto. The Father supported this decision. The Mother left Winnipeg on January 23, 2021 and had her first appointment with her doctor on January 26, 2021. While the Father remained in Manitoba, he maintains he was involved in the medical process and attended at least two or three times for the ultrasounds. There is no suggestion by either party that they had broken up during this time.
[12] The child was born in Toronto on May 27, 2021. The Father was present for the birth.
[13] In May 2021, the Father applied for a Canada Revenue Agency business registration number. It appears from correspondence between the parties that this was to hire a nanny in Canada, so they could make tax and payroll remittances. In submissions, the Father’s counsel denied that it was for a nanny for him and the Mother, but that he did it for a friend of the Mother, so the friend could hire a nanny. This issue was not addressed by the Father when he was giving evidence or in his affidavit. Ms. Vanessa Marinho, has sworn an affidavit that the Mother asked her to work as a nanny for the child before the Mother left for Mexico in June 2021.
[14] Shortly after obtaining the child’s Canadian passport, the Mother, the Father and the child all traveled to Mexico on or about June 21, 2021. In preparation for this trip, the Mother’s belongings and her car were put into storage in Burlington, Ontario, and she gave up her apartment. The Father maintains that she was being evicted and would have had to store her belongings anyway. The Father maintained his apartment in Winnipeg. He also maintains two vehicles there. One of his vehicles – a truck – was previously leased, but he had just obtained financing and purchased it outright around the end of February 2022. The Mother indicated that they travelled to Mexico with only one suitcase each. This was not refuted by the Father.
[15] When the parties arrived in Mexico, they moved in with the paternal grandmother, Maria del Carmen Sanchez Leon (“the Grandmother”), in Zempoala Hidalgo. The Father does not, and never has, owned any real property in Mexico.
[16] In early September 2021, the Father’s parental leave ended and he returned to his job in Winnipeg. The Mother remained with the child and the Grandmother at the Grandmother’s house. It appears at that time that the Mother was grateful for the Grandmother’s assistance. The parties agree that the Mother returned to Canada for a couple of weeks in September 2021, at which time the child was left with the Grandmother. Both parties state that the purpose of the trip was to gather the paperwork necessary to apply for Mexican citizenship for the child and to obtain a temporary resident card for the Mother in Mexico. The parties agreed that a temporary resident card was necessary to allow the Mother to purchase property in Mexico. The Father states it was also the first step in their plan to obtain permanent resident status for the Mother in Mexico, which the Mother denies. No evidence of the Mother applying for permanent resident status was presented.
[17] The Father returned to Mexico on December 4, 2021. For approximately two weeks, starting on December 22, 2021, he and the Mother vacationed with the child in Acapulco, Mexico. The Mother claims she was having difficulties living with the Grandmother in such close quarters and they decided that she needed her own space, especially is she wanted to continue to work remotely. When the vacation ended, the Mother moved into a hotel and the Father returned to the Grandmother’s home. The child stayed with the Father at the Grandmother’s house for a few days before he and the child returned to stay with the Mother. Around this time, the parties temporarily rented a home near the Grandmother. A nanny was hired for a few weeks until she contracted COVID and had to leave. The Father returned to Winnipeg for his job on January 24, 2022.
[18] In the fall of 2021, the Father had started the necessary work to become a permanent resident of Canada. There is evidence that, in January 2022, he asked his employer to write a letter confirming his full-time employment status with them. In cross-examination, the Father admitted that, when the Mother told him in March 2022 that she would no longer assist him with this, he submitted an application himself.
[19] In addition, although the Father has worked as a mechanical engineer, he has never obtained his professional designation. He started that process in Canada last year. In April 2022, he wrote a test towards this accreditation. The Father is very proud of his profession and qualifications and insists that he is a very valued employee for Jacobs. Internal email communication from Jacobs between the Father and his colleagues confirms this.
[20] The parties’ evidence diverges on their intentions when they moved to Mexico. The Mother indicates they went to Mexico only on a temporary basis because the pandemic allowed her to work remotely. The Father also had parental leave until September 2021. They intended to stay as long as the pandemic allowed her to work remotely. During this time, they would have the assistance of the Grandmother, especially when the Father had to return to work in Manitoba in September 2021. While there was no medical evidence, the parties agree that the Mother has a condition affecting her hands and arms. The Grandmother’s assistance was helpful in that regard. In fact, the Mother complained that the Grandmother was a bit too protective, not allowing her to leave the house with both the child and her handbag on her arm at the same time.
[21] The Mother also points to the fact that, the whole time they were in Mexico, the Father was working with his employer to either be able to work from home in Ontario or transfer there all together. In support of her position, the Mother provided email communications which show that, in July 2021, the Father had indicated to his employer that he wanted to be able to work partially from home in the Toronto area with his family, or else transfer to his employer’s Toronto office. There was discussion about keeping the Father in Winnipeg until the end of a particular project and that January 2022 may be an appropriate time to make the transfer. There is further communication in November 2021 to this same effect. In fact, in cross-examination, the Father admitted that the transfer was now not possible until after May 2022. From this, I infer that his inquiries into the transfer are ongoing. He states that Jacobs has offices in Kitchener and Toronto. The internal email communication confirms that Jacobs wanted to retain the Father as an employee and wanted to assist him now that he had new family obligations.
[22] The Mother was adamant that neither she nor the Father would want to stay in Mexico on a long-term basis when they had a more privileged and affluent life available in Canada for their daughter. This position was not shaken under cross-examination.
[23] The Father maintains that after they arrived in Mexico, the Mother “changed her mind” and decided to stay until the child was six years old, allowing the Father to fly back and forth to his job in Canada. When pressed on cross-examination, the Father would not confirm the original intention of a temporary visit but kept insisting that the Mother changed her mind and wanted to stay until the child was six years old. He was not clear on when this change of heart occurred. I infer from this evidence that the original intention was for the visit to be temporary. He stated she also changed her mind about where she wanted him to work in Canada – Winnipeg, Ontario, or Vancouver. It was not settled.
[24] The Father provided evidence that, in August 2021, the Mother was trying to hire a virtual receptionist for her immigration practice based in Oakville. Her law practice had a Canadian web address and she maintained a Toronto area phone number. She was recruiting though in Mexico, as one of her emails to a prospective employee quoted wages in pesos.
[25] Although the advertisement was asking for a long-term commitment, the Father admits that the Mother continued to operate her Ontario law practice remotely from Mexico and that she maintained an office and staff in Ontario. No employee in Mexico was ever hired.
[26] Both parties also provided evidence that the Mother applied for and received a temporary resident card for Mexico, which was valid from October 6, 2021 to October 5, 2022. The Father indicates that this is evidence of the Mother’s intention to settle on a more permanent basis. The Mother indicates it only allows her to stay in Mexico longer than an ordinary tourist, but that it does not allow her to work in Mexico. She also states it was necessary in order to purchase property in Mexico, which the parties wanted to do as detailed below.
[27] Sometime in February 2022, the Mother apparently purchased a 400 square foot property. She stated it would be where they would stay when they visited Mexico, as she recognized that the Grandmother was an important part of the child’s life and wanted to be able to visit. It was planned that she could use the property also as her remote office when in Mexico. She was adamant that it would not be her intention to make a 400 square foot home in Mexico her permanent home. The Mother has produced text messages from November 2021 between her and the Father, who was inquiring about having a property in Mexico and also in Canada. They discussed that, when the Mother “organized another good transaction”, they would buy something in Canada, in the Father’s name, due to her personal exposure as a professional. It is clear that the plan was to have property in both jurisdictions – Mexico and Ontario.
[28] Unfortunately, there appears to be a problem with the title to the Mexican property, and the Mother has not yet been given possession, nor is she on title. She has obtained counsel in Mexico to sort it out. She has invested approximately $45,000 in this property.
[29] On or about February 26, 2022, the Father returned to Mexico from Manitoba. It was around this time that the relationship broke down, but the Mother is not certain of the exact date. She thought they were only having an argument. In or around February 28, 2022, the Father took the child to stay with the Grandmother, with her consent. The Mother understood that the Father had to return to Manitoba on March 4, 2022, and that she would pick up the child at that time. Unfortunately, this did not occur. When the Mother went to retrieve the child, the Grandmother and Father would not agree to give the child back to the Mother. The Mother became quite hysterical and some neighbours called the police. The Father maintains it was never his intention to deny the Mother the child, but that she was acting so erratically, that he feared for the safety of the child.
[30] Needless to say, a great deal of angry and hurtful emails and texts were exchanged, where the Mother demanded the return of the child. Afterwards, the Mother received no communication about the Father’s whereabouts. She believed he had to go back to Winnipeg for his job and had no idea if the child remained with the Grandmother. He would not respond to her communications, nor would they allow give her the child when she went to the Grandmother’s house. While still in Mexico, the Mother retained counsel in Ontario who wrote to the Father on March 7 and 8, 2022, about opening a dialogue. There was no response. The Mother returned to Ontario on or about March 13, 2022, without the child, to start these proceedings.
[31] Unbeknownst to the Mother, the Father also commenced proceedings in Mexico wherein he sought custody of the child and child support. The Father provided no evidence that these legal documents were served on the Mother. The exact date of the commencement of these proceedings is not clear, but it may be as early as March 9, 2022, given the receipt stamp on the documents. The Father maintains there is some type of court order in Mexico preventing the child from leaving the jurisdiction, but upon a careful review of the translated documents, no such order can be identified, nor was jurisdiction over the matter assumed.
[32] The Mother commenced this Application on April 4, 2022, and brought an urgent motion without notice seeking the immediate return of the child. A temporary order was made by me, and as ordered, the Mother’s materials and my order were served on the Father, by email on April 4, 2022.
[33] It appears that shortly thereafter, the Father advised the Mexican court that the Mother had started these legal proceedings, and that he was notified of same by receiving documentation by email from her counsel Mr. Liquornik.
[34] While the reasons for the breakdown are not relevant for the purposes of this motion, it should be noted that the Father has made allegations that the Mother all but abdicated her parenting responsibilities to him or to the Grandmother and that she was acting in a disturbing, racist, angry, and erratic manner. He claims that she abandoned the child when she returned to Ontario on March 13, 2022.
[35] The Mother concedes she suffered from post-partum depression while in Mexico, but she says it was minor and that she sought treatment while there. She claims she is much better. In support of her ability to parent the child, she has submitted a psychiatric assessment by Dr. J. Rootenberg, dated March 24, 2022. Dr. Rootenberg, an experienced psychiatrist, opined that, while the Mother was under significant stress while in Mexico, her current mental health is much improved. She is not experiencing any symptoms of anxiety, depression, or psychosis, and will have no difficulty carrying out activities of her daily life. Dr. Rootenberg has no concerns about the Mother’s ability to safely parent the child. She is taking antidepressants and has more support in Canada.
[36] The Mother has also provided a report from Mr. Neal Solomon, a social worker, who is assisting the Mother through her separation and this high-conflict situation. He found that the Mother understands the need for the child to have a relationship with both parents, has insight into her post-partum issues, and is committed to ongoing therapy to assist.
III. Analysis
A. Ex Parte Motion
[37] The Father maintains that this matter should not have been brought on an ex parte basis and that the Mother did not make full and frank disclosure of all relevant facts.
[38] I disagree. The facts laid out relate to the involuntary separation of a very young child from one of her parents. The Father has not been regularly in Mexico since September 2021 and the Mother has been the primary caregiver of the child. I reject the Father’s position that the Grandmother was the primary caregiver. As of March 4, 2022, the exact whereabouts of the Father were not known, given his frequent movement between Mexico and Manitoba. He did not respond to the Mother’s emails about his whereabouts or the whereabouts of the child. The Father admitted in cross-examination that he was supposed to leave Mexico on March 4, 2022 but did not advise the Mother that his plan changed and he remained. The child was left in a foreign country with a grandmother who had no parental rights. Swift action was required.
[39] I also find that the Mother was forthright in her motion materials. She advised the court that she bought property in Mexico. She advised the court that she was working remotely from Mexico. She also disclosed that she was experiencing some challenges with her mental health and provided a detailed history of those challenges. During cross-examination, the Mother was confronted on her failure to advise this court on the existence of Mexican court proceedings when she commenced these proceedings. While there is an email from the Father that predates these proceedings indicating that he wanted to meet before he started any proceedings, there is no evidence that he ever told the Mother that proceedings were commenced and he took no steps to serve her at that time.
[40] Accordingly, I see no reason to set aside the ex parte orders on this basis.
B. Sur-Reply Evidence
[41] The Respondent served and filed an affidavit sworn May 13, 2022. He stated that it was in reply to the Applicant’s affidavit sworn May 12, 2022, which was in response to his Notice of Motion and affidavit, sworn May 3, 2022.
[42] When I heard this matter on April 19, 2022, by video-conference, the Respondent appeared. He sought an adjournment and wanted to file responding materials. His request was granted and a timetable was imposed which did not allow for sur-reply evidence. His responding materials were due on May 3, 2022, and the Applicant was given until May 12, 2022, to respond.
[43] Although I did not include it in my endorsement, the Respondent also brought a motion, returnable on this same day before me. Given the summary nature of these proceedings and the short timelines, I agreed to hear this motion. In his motion, the Father sought an extension of time to serve and file his materials and leave to serve and file pages in excess of what is allowed by the latest Notice to the Profession: Superior Court of Justice, Central West Region, Notice to the Profession and Parties (19 April 2022). In support of that motion, an affidavit was filed by the assistant to the Father’s counsel outlining the difficulties with service given a misspelling of an email address. Nothing substantive was addressed. I granted the relief requested.
[44] Accordingly, the Father’s affidavit of May 13, 2022, is not in support of his motion and is properly characterized as sur-reply evidence.
[45] The admission of evidence is within the discretion of the judge hearing the motion. This includes the admissibility of sur-reply evidence that was not provided for in my scheduling endorsement of April 19, 2022. Before I consider admitting this sur-reply evidence, I must consider whether there would be any prejudice to the Mother.
[46] In Jet Wave Corp. v. IPsmarx Technology Inc., 2014 ONSC 4200, at para. 7, Justice Mew admitted sur-reply evidence that was not part of his scheduling order because no prejudice could be made out.
[47] I have reviewed the Father’s sur-reply evidence. There is little in it that is not a repetition of his same position in his original affidavit of May 3, 2022, albeit with a little more detail. I do not see that the Mother would be prejudiced if I allowed it to be filed, as the facts raised have already been addressed by the Mother.
C. Solicitor and Client Privilege
[48] Within this application, the Father has asked for an Order that the Mother “cease and desist” from disclosing confidential information that she became privy to as the immigration lawyer for the Father, and for which he has not waived privilege.
[49] As indicated, there are some communications presented by the Mother that show the Father was actively working towards transferring to Toronto shortly after the child’s birth. In his affidavit evidence, the Father claims these communications are privileged, and only provided to the Mother in her capacity as his legal counsel in his immigration application. He did not waive privilege, and thus, these communications should not be admitted as evidence in these proceedings.
[50] The parties agree that, when they met, the Mother was counsel of record for the Father to assist with immigration matters. They also agree that this retainer was formerly terminated by way of a document dated April 2, 2020. No one produced this document for the court. The Mother maintains that any subsequent communications were provided to her as the Father’s common law spouse and the father of her child, and not as his counsel.
[51] The Father also produced an email from the Mother to him, dated March 22, 2022, where she states, “Due to the breakdown of our relationship, I am unable to work on your immigration matter. Please seek alternate counsel to represent you for your permanent residency application.”
[52] While not specified, the following communications were included in the Mother’s materials, which may be the subject of the Father’s motion:
a) An email sent by the Father from his work email address to the Mother, at vanessa@immigration.manitoba.ca, dated July 19, 2021. There is no message in this email, but rather it forwards an exchange of emails dated July 14, 2021, to July 19, 2021, between the Father and various work colleagues regarding the Father’s desired intention to move east to be with his family, and his hope to get a work transfer (“July email exchange”);
b) An email sent by the Father from his work email address to the Mother, at vanessa.routley@icloud.com, dated November 9, 2021. The email contains a message stating, “This is the mail that Paul will send…”, and also attaches an email exchange between his work colleagues containing a draft letter requesting that he be allowed to work from home one week per month to be with his new family or that he be allowed to transfer (“November email exchange”); and
c) An email sent by the Father to his work colleague and copied to vanessa@immigrationmanitoba.ca, dated January 26, 2022, wherein the Father confirms his intention to pursue his permanent residency in Canada and the requirement of a letter confirming his full-time employment status with his employer in Winnipeg (“January email exchange”).
[53] Irrespective of whether the Father signed a termination of retainer, a solicitor and client relationship can exist without formality. That being said, at the hearing, the Father contradicted his affidavit evidence and made it very clear in his cross-examination that he did not consider the Mother his lawyer after April 2020. He believed they were both helping each other as partners, with immigration matters for their respective countries.
[54] In addition, it is not clear that the July email exchange or the November email exchange are even matters related to immigration. They deal with the Father’s desire to transfer to Ontario. He had a valid work permit at the time and I have received no evidence that this would be in jeopardy if he remained with the same company. Accordingly, even if it is found that the Mother was acting as the Father’s solicitor at that time, I do not find that this communication is in the nature of solicitor and client communications.
[55] With respect to the January email exchange, this is clearly with respect to immigration matters, but it is an email that the Father sent to his human resources colleague and copied to the Mother. By doing so, the Father has expressly waived his privilege over this communication.
[56] Accordingly, these emails will remain evidence in this hearing and the Order requested by the Father is dismissed.
D. Habitual Residence of the Child
[57] The Hague Convention is law in Ontario, pursuant to s. 46(2) of the CLRA. The Hague Convention sets out the rules that apply to the parental wrongful abduction or retention of children across international borders.
[58] The purpose of the Hague Convention, as set out in Article 1, is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. A prompt return is intended to achieve speedy adjudication of the merits of a custody or access disputes (as it was formerly known in Ontario) in the forum of a child's habitual residence. When an application is brought under the Hague Convention, the court is not being asked to determine issues of parenting, but rather in which jurisdiction the parenting issues should be determined.
[59] In an application under the Hague Convention, the first question to be asked is whether there has been a removal or retention of the child from their habitual residence that is considered wrongful. Article 3 of the Hague Convention directs the court to a two-part test:
a) Is the removal or retention in breach of rights of custody attributed to a person 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 were those rights actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention?
[60] If the requirements under Article 3 are met, Article 12 requires the judge to order the return of the child forthwith, unless certain exceptions apply. These exceptions, under Articles 12, 13, and 20, include:
a) 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.
b) The parent seeking return was not exercising custody rights at the time of the removal or retention or consented or subsequently acquiesced to the removal or retention: Article 13(a);
c) 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);
d) The child is of sufficient age and maturity and objects to being returned: Article 13(2); or
e) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state: Article 20.
[61] On the facts provided, this court is being asked to find that the child was wrongfully retained. In order to determine if the retention was wrongful, the court must first determine the date of the alleged wrongful retention and then, determine where the child was habitually resident on that date. In this case, if the child was habitually resident in Mexico, then there is no wrongful retention and the Hague Convention has no application. If the habitual residence of the child is Ontario, then the Applicant Mother is able to avail herself of the Hague Convention to request that the child be returned to Ontario where the parties can litigate their parenting rights: Ludwig v. Ludwig, 2019 ONCA 680, at paras. 21, 24-25; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 36.
i. Date of Alleged Wrongful Retention
[62] The evidence was uncontradicted that for the week leading up to March 4, 2022, the child was with the Father, staying with the Grandmother in Mexico, with the Mother’s consent. It is also agreed that the Mother attended the Grandmother’s house on May 4, 2022, to retrieve the child, believing the Father was returning to Winnipeg to work the next day. While the parties disagree as to the reason, they agree that the Father refused to return the child to the Mother on that date. The subsequent correspondence by the Mother shows quite clearly that she did not consent to the child remaining in the Grandmother’s home at that time, and that the child was not returned to her thereafter.
[63] Accordingly, I find that the applicable date for our analysis is March 4, 2022.
ii. Habitual Residence of the Child
[64] There is no definition of “habitual residence” in the Hague Convention; it is a question of fact to be determined. The Supreme Court of Canada, in Balev, has provided some much-needed guidance. It has indicated that a “hybrid approach” must be taken in determining where a child habitually resided, which focuses not only on the parents’ intentions or the child’s circumstances but requires the judge to look at all relevant considerations arising from the facts of the case at hand: Balev, at para. 42.
[65] In adopting the hybrid approach, the application judge should determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the retention. The judge should consider all the relevant links and circumstances, including the child’s links, in this case, to both Mexico and Ontario, and the circumstances of the move to Mexico. The judge should consider the duration, regularity, conditions, and reasons for the child’s stay in Mexico, as well as the child’s nationality. No single factor should dominate the analysis, but the judge should consider the entirety of the circumstances: Balev, at paras. 43-44.
[66] The age of the child at issue is also relevant. If a child is an enfant, then the child’s environment is determined by reference to those with whom the child lives and by whom the child is looked after and cared for. When the child is an infant, the circumstances of the parents, and their intentions, are important. The parental intention though is not determinative, but it can be an indicator capable of complementing a body of other consistent evidence. It depends on the circumstances of the case: Balev, at para. 45; Ludwig, at para. 32.
[67] In Knight v. Gottesman, 2019 ONSC 4341, 147 O.R. (3d) 121, Justice Shore reviewed the decision of the Nova Scotia Court of Appeal in Beairsto v. Cook, 2018 NSCA 90, 17 R.F.L. (8th) 1, which was released after Balev. In Beairsto, the mother was the child's only caregiver at the relevant time. The appellate court found that the Mother’s place of residence dictated the child's place of residence. The Court of Appeal considered that the mother had no family or support network in Washington, which was the competing jurisdiction. It also considered that she was only in Washington on a six-month visitor's visa. They found that there was no permanency to her move to Washington. In these circumstances, the court found that Nova Scotia was the habitual residence of the child.
iii. Discussion
[68] I have considered all the facts in this case, having adopted the hybrid approach, and conclude that the child’s habitual residence is the Province of Ontario.
[69] I acknowledge that there are a number of factors that point to the habitual residence of the child being Mexico. These include the fact that the child lived in Mexico for eight of her nine months of life prior to the Father denying the child to the Mother. I also considered that the Mother tried to purchase a small property and had a temporary resident card in Mexico.
[70] These factors though do not persuade me, in light of the other evidence, that Mexico was the child’s habitual residence.
[71] The child has just turned one year old. She is a citizen of Canada by birth, and a citizen of Mexico through her Father’s nationality as of December 16, 2021. She has a Canadian passport. I do not believe she has yet received a Mexican passport.
[72] From the time she was born, with the exception of short visits with the Grandmother, the child has always been with the Mother. The Father left the child in the Mother’s care when he returned to Winnipeg for three months in the fall of 2021 and for another month in February 2022. I acknowledge that the Grandmother played a significant role in childcare, but it cannot be concluded that family members helping out with an infant, especially when the Mother has strength issues in her hands, can amount to an abdication of a parenting role. The Father acknowledges that the Grandmother believes the child should be with her Mother.
[73] From January 2021 to June 2021, the Mother lived in Ontario, with the Father’s support. Her belongings and car are still there, in storage. The Mother cannot work in Mexico. She has a temporary visitor’s permit only. She is not licensed to practice law in Mexico but was able to remotely operate her Ontario practice from there in 2021 and early 2022 during the pandemic. She purchased a small property in Mexico (although title may not be sorted out), but her belongings remained in storage in Ontario. No efforts were made to move them to Mexico, even after she purchased the property. The Father indicated that they were in the process of having a friend drive her car to Mexico, but this was not in his affidavit, nor was the Mother questioned on this point in her cross-examination. Little weight can be placed on this evidence.
[74] The Mother also maintains a law practice in Ontario, with office space and staff. She maintains an Ontario website and phone number, and manages the finances of her practice through Ontario. While working in Mexico, she was operating her Ontario practice. No efforts were made to obtain a work permit in Mexico, or to find employment there. No inquiries were made about being able to practice law in Mexico. The Mother admits she cannot speak sufficient Spanish to speak to a doctor in Mexico about the child.
[75] The Father, despite his place of birth, is heavily connected to Canada. He can work as a mechanical engineer in either Canada or Mexico, but has never worked in Mexico. He has only sought his professional designation as a “P.Eng.” in Canada, as recently as April 2022. He remains employed with Jacobs. He has taken no steps to resign, take a leave, or otherwise look for other employment in Mexico.
[76] The Father admits that Jacobs has a policy that he may only work outside of the country for a maximum of 60 working days each calendar year, after which he would lose his job. He insists that he has not yet exceeded the 60 days and will not do so until August 2022. This appears inconsistent with his testimony that he has not left Mexico since his return on February 24, 2022. A simple calculation shows that, as of the day of the hearing, there have been 108 working days in 2022. We know that the Father returned for 20 days in February, so he is either using sick or vacation days (which he denied), or he has returned to Winnipeg for some period of time and left the child with the Grandmother. His continued presence in Mexico, relying on the Grandmother to help, is unsustainable unless he resigns and returns to live in Mexico.
[77] The Father claimed in reply evidence that he intends to remain in Mexico. This is not supported by any other evidence. He continues to be employed with Jacobs, which comes with residency requirements. He is actively continuing his efforts to remain in Canada as a permanent resident. He is actively pursuing his professional designation as an engineer in Canada. He maintains his apartment and vehicles in Winnipeg, with all his belongings. He has taken no steps to establish himself in Mexico, personally or professionally. He admitted on cross-examination that what he does next is pretty much dependent on what occurs in this litigation. His continued residency in Mexico is precarious, at best.
[78] I find that the initial move to Mexico was to be temporary, for the Father’s parental leave and because the Mother could work remotely during the pandemic. I do not find that the evidence supports a finding that this changed in any significant manner in the intervening months, and not by March 4, 2022. The parties maintained significant ongoing connections to Canada, especially the Father. It appears that the parties were keeping their options open with respect to a life in both Ontario and Mexico. Nonetheless, I do not find that, as of March 4, 2022, the combined intentions of the parties, the actions of the Father to further connect himself to Canada, the circumstances of the child, and the circumstances of their move to Mexico, show that the child was habitually resident in Mexico.
[79] The Father has relied on a number of cases in favour of finding that the child was habitually resident in Mexico. Unfortunately, they are not of assistance. The case of McLeod v. Peppe, 2018 ONSC 2364, is not a case determined under the Hague Convention. In that case, the father brought an application in Ontario under the CLRA asking that the court accept jurisdiction under s. 22 of that statute.
[80] The Father also relied on Pinate v. Rodriguez, 2018 ONSC 2771. This case was an uncontested trial for the mother, where the court raised issues of jurisdiction after discovering a hearing had already been commenced in Florida, and an order already made. The mother had in fact earlier violated the Florida court order by bringing the child to Ontario. The judge found the child was habitually resident in Florida and declined jurisdiction under s. 22 of the CLRA. Again, the Hague Convention was not considered in Pinate, and I have no comparable evidence of any Mexican court assuming jurisdiction or making any relevant orders.
[81] Finally, the Father relied on Brown v. Pulley, 2015 ONCJ 186, 60 R.F.L. (7th) 436, which was decided prior to Balev, therefore having less relevance. Also, being a decision of the Ontario Court of Justice, it is not binding on me.
E. Should the Child be Returned to Ontario?
[82] Now that Ontario has been found to be the habitual residence of the child, I must determine if the retention of the Father in Mexico was wrongful, as defined in Article 3. In particular, I must decide (1) if the Mother was exercising her custody rights at the time of the child's retention and (2) if she would have exercised those rights but for the Father’s retention of the child.
[83] The answer to both these questions is clearly yes. Under Ontario law, in the absence of a court order, both the Mother and the Father had decision-making authority for the child, or “custody” rights as it was previously referred to: CLRA, s. 20(1). While the Father stressed the assistance of the Grandmother, the Mother was left alone in Mexico with the child the majority of the time between September 2021 and March 2022. The Father was scheduled to return to Winnipeg in March 2022. If the separation had not occurred, it was assumed that the Mother would continue her primary care role. The facts are uncontested in this regard.
[84] Given that requirements of Article 3 have been met, Article 12 requires me to order the return of the child forthwith, unless certain exceptions apply. I have outlined these exceptions above.
[85] The Father has argued that the Mother is unstable mentally and unable to care for the child, which could potentially put the child at risk and place her in an intolerable position.
[86] There is a high threshold to prove that a child would be exposed to such a risk: Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at para. 82; Ellis v Wentzell-Ellis, 2010 ONCA 347, at para. 37.
[87] The Father has placed no evidence before this court to show that the child is at risk. He was content to leave his child with the Mother for months at a time while he returned to Winnipeg to work, with only the assistance of the Grandmother or a nanny. The Mother has provided evidence that she is able to parent the child and has already secured the services of a nanny.
[88] None of the other exceptions are applicable. Accordingly, given my findings of habitual residence, the wrongful retention of the Father, and his failure to prove that one of the exceptions apply, the child shall be returned to Ontario, and to the care of the Mother, until which time an order of this court determines otherwise.
IV. Conclusion
[89] For the foregoing reasons, I make the following orders:
a) The ordinary and habitual residence of the child CP, born May 27, 2021, is declared to be the Province of Ontario, Canada;
b) The child CP, born May 27, 2021, has been wrongfully retained in Mexico by the Respondent Father within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), pursuant to Article 15 of the Hague Convention;
c) The child CP, born May 27, 2021, shall be forthwith returned to her ordinary and habitual residence, namely the Province of Ontario, Canada, in accordance with Article 12 of the Hague Convention, and the child shall reside in Ontario, with the Applicant Mother, pending further order of this court;
d) The Applicant Mother shall have primary parenting time with the child CP, born May 27, 2021; any parenting time exercised by the Respondent Father shall be supervised by the Applicant Mother, unless agreed to in writing by the Mother or by further court order;
e) The child CP, born May 27, 2021, shall not be removed from the Province of Ontario;
f) The Ontario Provincial Police, Royal Canadian Mounted Police, Toronto Police Service, Peel Regional Police, and any other Peace Officers in and for the Province of Ontario and in and for the Country of Canada shall assist in the enforcement of this Order by locating and apprehending the child CP, born May 27, 2021, and returning her to the care of the Applicant Mother Vanessa Routley;
g) The Ontario Provincial Police, Royal Canadian Mounted Police, Toronto Police Service, Peel Regional Police, and any other Peace Officers in and for the Province of Ontario and in and for the Country of Canada are hereby authorized to enter into any premises where the child CP, born May 27, 2021, is thought to be located for the purposes of apprehension between the hours of 6:00 a.m. and 11:30 p.m. on any day of the week;
h) The parties are urged to resolve the issue of costs as between them. If they are unable to do so, the Applicant shall serve and file written costs submissions, limited to four pages, double spaced and single sided, plus a Costs Outline, on or before June 27, 2022; the Respondent Father shall serve his responding written costs submissions, with the same size restrictions, plus a Costs Outline, on or before July 11, 2022; the Applicant Mother may file reply submission, if she chooses, to be served and filed no later than July 18, 2022; and
i) The remainder of the Mother’s motion and the Father’s motion is dismissed.
Fowler Byrne J.
DATE: June 13, 2022