Superior Court of Justice - Ontario

COURT FILE NO.: FS-22-30398-0001

DATE: 20220919

RE: Jessica Deirdre Bonnycastle Thompson, Applicant

AND:

Paul James Thompson, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Steven M. Bookman and Gillian H. Bookman, for the Applicant

Angela I. Marchese, for the Respondent

HEARD: September 12, 2022

Endorsement

Overview

1. The primary focus of this motion is to determine whether the parties’ two children, aged 8 and 5 respectively, should be returned to Florida under the Convention of the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”). I must determine whether the father wrongfully removed the children from Florida and brought them to Toronto and, by necessity, determine the habitual residence of the children at the time of the alleged wrongful removal. If I find the children to have been habitually resident in Florida, I must consider whether any of the exceptions to the return of the children under the Hague Convention apply.

2. The parties signed a separation agreement on November 24, 2021, which, among other things, sets out that they have joint decision-making responsibility for their two sons; shared parenting time; and are to temporarily relocate to Florida by December 10, 2021, which move was to be reviewed in six months. The parties’ agreement that the family would relocate to Florida temporarily was based on the two conditions that (1) the mother would succeed in obtaining an E2 visa for herself, the father, and the children; and (2) the mother would obtain U.S. health insurance for the children by the review date, failing which the parties were to return to Toronto.

3. The parties relocated to Florida in late November and early December 2021. The review date for the Florida move was May 27, 2022, six months after the mother arrived in Florida.

4. The father and children returned to Toronto on June 6, 2022, since neither of the two conditions were met by the mother, namely, she failed to obtain an E2 visa for herself, the children and father and she failed to secure U.S. health insurance for the children by the review date. The mother’s position is that the father wrongfully removed the children from Toronto and continues to wrongfully retain them in Toronto. She seeks their return to Florida pursuant to the Hague Convention, claiming that their habitual residence is Florida. The father’s position is that the children are habitually resident in Toronto, the mother consented to their return by virtue of the terms of the parties’ separation agreement, and that the Hague Convention does not apply to this case.

5. For the reasons that follow, I find that the children were not wrongfully removed from Florida and nor are they being wrongfully retained in Toronto. The parties mutually agreed to temporary relocate to Florida. The father’s consent to the temporary relocation was predicated on two conditions being met. The mother consented to the children returning to Toronto if those two conditions were not met. The conditions were not met, and therefore, the mother cannot revoke or vitiate her consent to the children’s return to Toronto, such that their removal or retention in Toronto becomes “wrongful”. Accordingly, the mother’s application for the return of the children is dismissed.

Background

6. The parties were married on June 8, 2013.

7. They have two sons, aged 8 and 5 respectively.

8. The family resided in Etobicoke until December 2021.

9. The parties and children are Canadian citizens.

10. They separated on June 8, 2021, but agreed for purposes of their separation agreement that their date of separation was November 1, 2020.

11. Parenting issues arose between the parties in the Spring of 2021. At that time, the mother moved to rental accommodation with the children in Oakville.

12. The parties attended mediation with Rosanna Brietman to resolve the outstanding issues arising from their marriage breakdown.

13. On November 24, 2021, they entered into a separation agreement which provided, among other things, that the parties would have joint decision-making responsibility for important decisions about the children; and that they would temporarily relocate to Florida by December 10, 2021, subject to the following terms:

i) The children’s relocation in Florida was to be reviewed in six months, following the date on which they arrive in Florida (“the review”);

ii) Whether the children remain in Florida at the time of the review was to be conditional on whether the mother had succeeded in obtaining an E2 visa for all four members of the family and on whether the mother had secured U.S. health insurance for the children. If the mother was unsuccessful in obtaining an E2 Visa and was unsuccessful in obtaining U.S. health insurance for the children, the children and both parents were to return to the Greater Toronto Area at that time to reside, unless the Visa application was still being processed and they agreed to extend their stay in Florida pending that outcome, in which case they were to confirm their agreement in writing (Emphasis added);

iii) If, at the time of the review, the mother had obtained an E2 Visa and U.S. health insurance for the children, but the parties still did not agree on whether the children should be permitted to continue residing in Florida, either party could invoke the Dispute Resolution clause and neither party was to unilaterally change the children’s residence from Florida while the Dispute resolution process was ongoing;

iv) If, at the time of the review, the parties agreed that the children should remain in Florida, they were to confirm their agreement in writing. At that time, the parties may agree that the children’s residence in Florida was to be subject to further reviews every six months, or they may agree that the children were permitted to reside in Florida indefinitely;

v) The mother was to submit the E2 Visa application after 90 days of arrival in Florida. The father was to be included in her E2 visa application and the mother agreed not to remove his name from the application. The parties agreed that the move to Florida was predicated on both parties being included in the Visa application and both parties attempting to re-establish themselves in Florida, and the parties’ agreement with respect to moving to Florida was to be null and void if the father was not included on the Visa application or is his name was removed. [Emphasis added].}

vi) The mother, upon her arrival in Florida, was to lease and prepare temporary housing for the family, adequate to house all four family members.

vii) The parents, while residing in Florida, were to share parenting time on a 50/50 basis, following a 3/4/4/3 schedule;

viii) During the initial six-month period, the children were to be home-schooled by the mother, who was to design and deliver a curriculum to ensure that the children’s academic, social and disciplinary needs were met in stimulating, supportive and age-appropriate manner; and

ix) If a parenting dispute arose, the parties were to retain and jointly share the fee of a parenting coordinator who was to be granted arbitral decision-making power to make parenting decisions on issues in dispute.

14. On November 27, 2021, the mother went to Florida alone on a B2 Visa, valid for 180 days, expiring on May 23, 2022. The children entered into the U.S. on November 28, 2021, on a B2 Visa, valid for 180 days, expiring on May 27, 2022. The father arrived in Florida on December 12, 2021, also on a B2 Visa, valid for 180 days. Before going to Florida, the father moved his belongings and those of the children from the matrimonial home to a storage facility. The review date of whether the family was to continue to reside in Florida was to take place on May 27, 2022.

15. Despite the terms of the separation agreement,

i) the mother did not lease temporary accommodation for the family as the separation agreement contemplated. Rather, the mother and children lived in six different short-term rentals when they were in Florida; and

ii) the mother did not apply for her E2 Visa 90 days from when she arrived in Florida, which would have been on February 25, 2022. The mother did not submit an application for the E2 Visa until 3 months later, on May 25, 2022; and

16. The parties left the bulk of their clothing and belongings in Toronto in their matrimonial home; at the mother’s rental home in Oakville; and in storage.

17. According to the father, beginning in December 2021, he became concerned about the lack of stable temporary housing for the children. There were emails exchanged between the parties on this topic and the father clearly felt the children ought to return to Toronto if the mother was unable to locate permanent housing for herself and the children. The father deposes that the mother and children were living out of her car for a few weeks, and she sent him a picture of herself and the children in a car packed with their belongings, asking him, “Where should I Go”. The mother does not deny this in her material.

18. The parties’ oldest son was scheduled for dental surgery in Toronto on February 1, 2022. The surgery in Toronto was cancelled because the mother refused to get a proper time-stamped PCR test for him. Ultimately, the mother consented to having the son’s dental surgery conducted in Florida.

19. Beginning in March 2022, the father deposes he became further concerned about the status of the children’s U.S. health insurance and the E2 Visa application. Despite making inquiries of the mother about these issues, she did not respond to him.

20. On April 22, 2022, the father returned to Toronto to close the sale of the parties’ matrimonial home and to remove the balance of his personal belongings into storage. On April 23, 2022, he made further inquiries of the mother regarding the E2 Visa status for the children and U.S. health insurance, to which the mother did not respond.

21. The father deposes that in April 2022, he asked the mother to retain a parenting coordinator in accordance with the dispute resolution clause of their separation agreement to address his ongoing concerns about the lack of health insurance and to take the next step to resolve these issues. The father had reached out to a parenting coordinator, named Israel Apter, for this purpose and advised the mother. On May 10, 2022, Mr. Apter confirmed that the mother had not reached out to him regarding parenting coordination.

22. On May 10, 2022, the father was advised by the mother’s immigration counsel that his Visa submission was cancelled because he had returned to Toronto for the closing of the sale of the parties’ matrimonial home. The father deposes that he was not aware that leaving the U.S. on April 22, 2022, automatically cancelled his E2 visa submission process. The mother deposes that the father was aware of that fact.

23. It is noteworthy that paragraph 4.3(e) of the parties’ separation agreement states that if the father’s name is removed from the mother’s E2 visa application, the parties’ agreement with respect to the move to Florida was to be null and void.

24. On May 11, 2022, the mother’s immigration counsel offered an alternative visa option for the father, namely, that he returns to Toronto and for the mother to sponsor him as a dependent on her Visa. The mother did not advise the father whether she was willing to do this. The mother did not communicate with the father between May 11, 2022, and May 23, 2022.

25. On May 23, 2022, the father retrieved the children from the mother in Florida for his scheduled parenting time with them.

26. According to the mother, on May 25, 2022, the day before the father was scheduled to return the children to her, he informed her that she could not speak to the children and that all communication was to go through counsel. The mother deposes that the father further advised her that he had no intention of returning the children to her. The father does not deny this.

27. On May 26, 2022, the mother indicated that she was agreeable to involving a parenting coordinator, only after the father had revoked his consent to the children being included on her E2 visa application, and she was advised that he did not intend to return the children to her.

28. The mother argues that she was unable to speak to the children for two weeks when they were in the father’s care. She claims she wrongly assumed that the children were staying with the father at the paternal grandfather’s vacation home in Port Charlotte, Florida. The mother commenced a Petition for Dissolution of Marriage in Florida and attempted to serve the father at his father’s Florida home, unsuccessfully on June 3, 2022.

29. On June 6, 2022, the father and children arrived in Toronto by car. The mother deposes that she was not aware that the father had planned to return the children to Toronto and that he removed them from Florida surreptitiously. The mother had the children’s passports, and she does not know how the father was able to cross the Canadian border without them. Despite the separation agreement setting out that the father was to retain the children’s passports, the mother had them in her possession and the father used the children’s birth certificates to cross the border into Canada.

30. The father’s lawyer emailed the mother’s immigration counsel on May 25, 2022, advising that “the children will be returning to Canada”, and the mother emailed the father that same date stating: “If their application does not go in with mine, that means you are leaving with them tomorrow”. These emails make it clear that the mother was aware that the father intended to return with the children to Toronto, although the date was not necessarily clear to her.

31. According to the father, the mother has had regular telephone and video parenting time with the children at least three times a week since June 7, 2022. The mother disputes this.

32. On June 22, 2022, the mother initiated a Hague application through the Central Authority in the U.S. The Central Authority in Ontario accepted and confirmed the application.

33. On July 29, 2022, a consent agreement was reached and incorporated into the order of Faieta, J. which, among other things, requires the father to provide the mother with information about the whereabouts of the children; prohibits the father from removing the children from Ontario; requires the father to ensure the mother has telephone access to the children four times a week; and places the children’s passports in safekeeping pending the outcome of this motion.

34. The father argues that he did not wrongfully remove the children from Florida. He submits that Toronto is the habitual residence of the children and that the Hague Convention does not apply to this matter. He argues that the mother consented to the children being returned to Toronto based on the terms of the parties’ separation agreement. She cannot now revoke her consent. Alternatively, he submits that the focal point of the children’s lives has always been Ontario, given that the mother had not complied with the conditions of their temporary relocation to Florida by her failure to apply for and secure the E2 visa and obtain US health insurance by the review date, May 27, 2022. In the further alternative, the father relies upon the exceptions to the Hague Convention to prevent the children’s return to Florida, and specifically, the exception that there is a grave risk that return would expose the children to physical or psychological harm or place the children in an intolerable solution.

35. The mother argues that the children’s habitual residence was in Florida immediately prior to when the father wrongfully took them to Toronto. On that basis alone, she asks for the children to be immediately returned to Florida given that the father has been wrongfully retaining the children in Ontario since June 3, 2022.

Issues:

36. The issues I must determine on this motion are:

i) Did the father wrongfully remove the children from Florida?

ii) Which is the proper forum to determine the issues of custody and access – Ontario or Florida? This requires me to determine whether the children are habitually resident in Ontario, and if not, whether any exceptions to their return to Florida under the Hague Convention apply.

iii) If I find that this court has jurisdiction over the parenting issues, what temporary parenting orders are appropriate with respect to decision-making, the child’s primary residence, and parenting time?

iv) What costs should be ordered on this motion?

Preliminary Issues - Motion to Strike

37. The mother brought a motion to strike the father’s second reply affidavit, sworn on September 7, 2022 (“sur-reply affidavit”), on the basis that this affidavit was not proper reply. She also made submissions that various paragraphs in the father’s factum ought to be struck because they refer to evidence which was not on the record before the court and/or they contained argument.

Sur-Reply Affidavit

38. The father argues that it was necessary for him to serve and file the sur-reply affidavit because the mother had improperly raised a new issue in paragraph 52 of her reply affidavit, sworn on September 6, 2022, and his sur-reply affidavit was simply to respond to that new allegation.

39. The new issue raised in paragraph 52 of the mother’s reply affidavit was centred on an incident that took place on August 25, 2022, when the oldest child was on Facetime with the mother. The mother alleges that the father coached the child to write the words “Liana Shanti” on a piece of paper and hold it up to the mother, thereby demonstrating that the father is trying to negatively influence the child against her. The mother attached a screenshot image of the child holding up the sign during a Facetime call as an exhibit to her reply affidavit.

40. Liana Shanti is the name of the woman who runs the organization Lemurian Light Affiliates, about which the father refers throughout his affidavit materials as an “Occult” to which he claims both the mother and her sister are members.

41. I find that the incident raised in paragraph 52 of the mother’s reply affidavit sworn on September 6, 2022, was not a new issue as the father suggests. Rather, the father raised the mother’s involvement with Liana Shanti and the Lemurian teachings in paragraphs 10-20 in his initial affidavit, sworn on August 12, 2022, and again in paragraphs 37-41 in his responding affidavit, sworn on August 30, 2022. The mother responded to these allegations in paragraphs 47-54 of her reply affidavit, sworn on September 6, 2022. The incident in question occurred on August 25, 2022. The father had an opportunity, therefore, to address this incident when he swore his responding affidavit on August 30, 2022. He chose not to. He does not get another chance to do so in a sur-reply affidavit.

42. Further, it is contrary to the primary objective of the Family Law Rules for parties and counsel to file excessive material as this requires the court to spend extra resources, if only in dealing with the issues of whether those extra materials should be considered, rather than spending those resources on another case: Sloss v. Liscomb, 2022 ONSC 1396, at para. 23. The father’s sur-reply affidavit, sworn on September 7, 2022, shall be struck from the record.

Paragraphs in Factum

43. I agree with the mother’s argument that evidence contained only in the sur-reply affidavit, which I have struck, cannot be introduced through a factum.

44. Any reference(s) in the father’s factum which cannot be referenced to the admissible evidence on the record before me were given no weight in my determination on this motion.

The Hague Convention

45. The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.

46. The test for when the Hague Convention applies is set out in Article 3. It provides that the removal or retention of a child is considered wrongful where it breaches the custodial rights of the left behind parent in the State where the child was habitually resident immediately before the wrongful removal or wrongful retention. Said custodial rights can include joint custodial rights, and can arise from law, a decision, or an agreement that has legal effect: Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 21. And Balev, at para. 28.

Wrongful Removal Analysis

47. The mother alleges that the children are being retained in Toronto by the father in breach of her custodial rights and that such retention constitutes a wrongful retention of the children within the meaning of the Hague.

48. The court in Balev confirmed certain legal principles that are applicable to this case:

a) That a parent’s consent to a time-limited stay does not shift the child’s habitual residence, para. 42; and

b) Even where an extension is agreed to, the extension does not defeat the time-limited nature of the consent; see para. 48.

49. There is no doubt that the parties shared joint custody of the children and that the father was exercising his rights of joint custody at the relevant time. It is not clear, however, that when the father returned the children to Toronto that he breached the mother’s custodial rights given that she already consented to the children returning to Toronto if she had failed to meet the two conditions by the review date.

50. For the reasons set out above, it is clear to me on the evidence that the parties made a joint decision to temporarily relocate to Florida which was predicated on two conditions being met by the review date. The move to Florida was considered “temporary” by the parties, evidenced by the fact that they left the majority of their belongings, clothing and furniture in Toronto in storage. The mother consented to the children being returned to Toronto if she was not able to meet the two conditions.

51. The mother waited too long to secure her E2 visa application and did not have the visa in place by the review date on May 27, 2022. In fact, she only submitted the E2 visa application two days before the review date, on May 25, 2022, by which point she was unlawfully in the U.S. and the children were days away from being in the U.S. unlawfully. The mother provided no evidence as to why she waited to submit the E2 visa application until May 25, 2022, when she had agreed in the separation agreement to do so in February 2022. Finally, there was no evidence that the mother took any steps to secure the U.S. health insurance for the children.

52. Both parties were aware that they had agreed to the relocation on very detailed conditions. The mother did not meet these conditions. The terms of the agreement she consented to are clear that the children were to be returned to Toronto if the two conditions were not met. She cannot now change her mind and revoke her consent to the return of the children to Canada if she does not subsequently like the result of her decision to agree to the move to Florida on conditions she could not meet: deHaan v. Gracia, 2004 ABQB 74, at para. 46.

53. In Gadea v. Rath, 2022 MBQB 5, the parties made a joint decision to move the child’s residence from Costa Rica to Manitoba and for the mother and her other children to join the father and the child. Although the parties planned for the mother to come to Canada, they knew it would be the decision of the Government of Canada as to whether or not she and her eldest two children would be granted permanent residency and that that decision was beyond anyone’s control. The mother changed her mind and decided she no longer wanted a relationship with the father or to immigrate to Canada where the father and child lived. The court found that the father acted on the joint agreement of the parties when he brought the child to Canada and that there was no wrongful removal or retention of the child by the father. The mother argued that the father had wrongfully removed the child and her habitual residence was Costa Rica. The court disagreed and found that the Hague Convention did not apply to the child. Further, the court found that “a change in habitual residence is not contingent on a family reunification or immigration status” since in that case, the agreement for the child to move to Canada was not conditional on immigration status: at para. 86.

54. In this case, the parties’ agreement was conditional on the mother obtaining immigration status for herself, the children, and the father. Like in Gadea v Rath, I find that the father in this case acted on the joint agreement of the parties when he returned the children to Canada since the two conditions agreed to were not met.

55. I find that the culmination of the evidence in the present case confirms the parties’ joint intentions to return the children to Canada if the two conditions were not met. Accordingly, I find that the parties agreed to return the children to their habitual residence in Canada on May 27, 2022, once the two conditions were not met by the mother. As such, there was no wrongful removal or retention of the children by the father in Toronto.

56. The burden of proof is on the mother to demonstrate that she consented to the terms of the separation agreement and the temporary relocation to Florida by fraud or misrepresentation. The mother has not made any such clams.

57. Accordingly, I find that the father’s return of the children from Florida to Toronto was not “wrongful” because the mother had agreed and consented that the children were to return to Toronto if she had not met the conditions by the review date. That is not to say that the father went about the return of the children to Toronto in the correct manner. The father’s decision to drive with the children across the border and not tell the mother he was leaving was wrong and was self-help conduct. That does not, however, amount to a “wrongful removal” as referred to in the Hague Convention.

58. If I am incorrect and the return of the children to Toronto amounts to the father “wrongfully removing” them, then I have to consider whether the requirements of article 3 are made out such that the children must be returned subject to article 13 of the Hague Convention. As I have already noted, the exception on which the father relies is there is a grave risk that a return to Florida would expose the children to physical or psychological harm or place the children in an intolerable situation: Balev, at para. 29.

Habitual Residence Analysis

59. For article 3 of the Hague Convention to apply, I would have to find that the children were habitually resident in Florida immediately before the wrongful retention, which was June 6, 2022, according to the mother. The father challenges the application of the Hague Convention on the basis that the separation agreement dictates that the children were to be returned to Toronto if by the review date the mother had not met certain conditions. While the mother maintains that Florida was the children’s habitual residence, the father submits that the children’s habitual residence was Toronto and their time in Florida was always intended to be temporary unless and until the conditions were met by the mother.

60. The Balev decision sets out how an application judge should determine the question of a child’s habitual residence. The three possible approaches were discussed: the parental intention approach, the child-centered approach, and the hybrid approach. Until Balev, the parental intention approach dominated Canadian jurisprudence. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The hybrid approach is fact-bound, practical and unencumbered with rigid rules, formulas, or presumptions: Balev, at paragraphs 45-47.

61. In Balev, at para. 37, the Supreme Court of Canada held:

The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.

62. The Court endorsed a hybrid approach to determining a child’s habitual residence, which tasks the court with determining the “focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to the removal or retention”: Balev, at paras. 40-43.

63. The judge considers all of the child’s relevant links to and circumstances in country A, the circumstances of the child’s move from country A to country B, and the child’s links to and circumstances in country B: Balev, at para. 43. These considerations include the duration, regularity, conditions, and reasons for the child’s stay in the territory of a member state, and the child’s nationality.

64. The task of determining the children’s habitual residence is to consider how connected the children are to the jurisdictions involved, in this case both Florida and Ontario: K.F. v. J.F., NLCA 33, at para. 60. Such an inquiry must look at all relevant factors. Habitual residence is a question of fact. As set out in Bearisto v. Cook, 2018 NSCA 90, at paragraph 110, in relying on A.R. v. R.N. (2015), [2015] UKSC 35 (U.K.S.C.),

…It is the stability of the residence that is important, not its length or permanency…habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”

65. The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. However, the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: Balev, at para 45, also see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.

66. The framework for dealing with Hague Convention proceedings was helpfully described in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517. There, the court described a two-stage analytical framework arising out of Balev, summarized as follows:

(1) Stage One – habitual residence of the child.

(a) On what date was the child allegedly wrongfully removed or retained?

(b) Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident, having regard to the approach set out in Balev.

(2) Stage Two – if the child was habitually resident in the country of the parent invoking the Hague Convention, the Hague Convention applies, and the court proceeds to this stage, in which it shall order the return of the children unless one of the exceptions applies.

67. There is no minimum period required to establish habitual residence. It can be established in as short a period of time as one day: Unger v. Unger, 2016 ONSC 4258, 88 R.F.L. (7th) 64, at para. 79.

Stage One – Habitual Residence Analysis

68. The mother alleges that the wrongful removal of the children began on May 25, 2022, when the father had parenting time with the children in Florida and indicated that he would not be returning them to her.

69. The father alleges the habitual residence of the children is Toronto, to which the mother had consented based on the agreed upon terms in the separation agreement. While the parties had agreed to temporarily relocate to Florida at the end of November 2021, that agreement was conditional and if the mother was not able to meet those conditions on the review date, the children’s habitual residence was to remain Toronto.

70. On May 23, 2022, the father picked up the children for his scheduled four days of parenting time, at which time the mother told the father the E2 visa application process was underway. This was not, in fact, the case.

71. On May 25, 2022, the father’s matrimonial lawyer advised the mother’s immigration counsel/clerk that the father does not consent to the children continuing to be included on the mother’s E2 visa application. By this date, the father had been advised by the immigration clerk that the children’s visitors’ visa status in the U.S. would expire on May 27, 2022. The mother’s visitor’s visa status had already expired on May 23, 2022.

72. On June 6, 2022, the father and children returned to Toronto. The mother deposes that she did not know that the father was planning to take the children to Toronto, nor did she know the children’s whereabouts for close to a month and she needed to hire a private investigator.

73. The father’s position is that he had no choice but to return with the children to Toronto since they were unlawfully in the U.S. and the mother had failed to comply with the two conditions in place for the children to remain in Florida by the review date. Specifically, the terms of the separation agreement were clear that if, at the time of the six-month review (May 27, 2022), the mother had not both obtained U.S. health insurance and the E2 Visa for the children and father, the parties and the children “shall” return to Toronto. Further, the terms of the separation agreement set out that if the father’s name is removed from the mother’s E2 visa, which did occur in April 2022, the parties’ agreement that the family relocate temporary to Florida is null and void.

74. Upon his return to Toronto, the father issued proceedings in Ontario and the mother was served with his material. The mother issued a Hague application to have the children returned to Florida.

75. There is no dispute on the record that a) the mother did not secure a permanent residence for the children in Florida until June 4, 2022, after the children had returned to Toronto; and b) the mother did not obtain an E2 Visa until after the children had been in Toronto for two months. The date the mother obtained her E2 Visa was August 3, 2022, on which neither the children nor the father is named.

76. The mother relies on the Wirta v. Wirta, 2016 ONSC 3835 decision to support her argument that the father consented to the family relocating to Florida and he cannot now change his mind and revoke his consent if he does not like the result of that decision. In Wirta, the parties had agreed to leave their former habitual residence in Seattle and to establish a new habitual residence in Ottawa. The plan did not work out as expected and the father was barred from entry into Canada. He applied to the court for the children’ return to Seattle on the basis that their retention in Ottawa was “wrongful”. The court held that the father cannot revoke or vitiate his consent to the children’s relocation to Ottawa such that their retention in Ottawa becomes “wrongful”.

77. I agree with the decision in Wirta. However, I find that it applies in favour of the father in this case and not the mother, as she submits. While it is correct that both parties consented to the parties and children temporarily relocating to Florida in December 2021, that agreement was predicated on certain conditions being met by the mother by the review date on May 27, 2022. The parties, therefore, also consented and agreed that if, by the review date the mother had not succeeded in obtaining the E2 visa for her, the children and the father and she had not succeeded in obtaining U.S. health insurance for the children, unless agreed to otherwise, the children were required to be returned to Toronto. This consent is further emphasized in the parties’ separation agreement where it stipulates that if the father’s name is removed from the mother’s E2 visa application, his agreement for the family to remain in Florida becomes null and void. Since the evidence establishes that the parties consented to the relocation to Florida on specific terms, the mother cannot now revoke her consent to the return of the children to Toronto because events did not unfold as she had hoped, and she did not meet those terms or conditions. As referred to earlier in this Endorsement, I have found that the children’s return to Toronto by the father was not “wrongful”.

78. The mother argues that the court ought not to rely on the terms of the separation agreement as evidence of parental intention as to the children’s habitual residence because Balev calls for a hybrid approach to determine habitual residence and parental intention is only one factor to consider. I agree that the hybrid approach requires the court to consider all the relevant factors and circumstances of the children, one of which is the fact that these parties entered into a separation agreement, which clearly contemplated a temporary relocation to Florida and set out the exact process that was to be followed, the purpose of which was to avoid the kind of motion that is now before the court.

79. I place particular weight on the following evidence that was before me, despite not referring to all the relevant evidence on these points:

i) The children are Canadian citizens. The mother has obtained an E2 visa for herself. The children do not have any legal status in the United States;

ii) The parents both shared the understanding when they signed their separation agreement on November 27, 2021, that they would be temporarily relocating to Florida and that there would be a review within 6 months of the mother arriving in Florida as to whether they would remain in Florida. The agreement for the temporary relocation to Florida was predicated on the mother meeting two conditions: 1) applying for and obtaining an E2 visa for herself, the father and the two children; and 2) applying for and obtaining US health insurance for the children. Neither of the two conditions were met by the time of the review, on May 27, 2022.

iii) The children’s connection to Florida is centered on their link and bond to the mother. She homeschooled them. She moved with the children to six short-term rental accommodations over the 6 months. She did not attempt to settle with the children near where their paternal grandfather has a vacation home in Florida, as she had told the father she would do

iv) The children are not connected to a school, a community or neighbourhood in Florida;

v) Other than the dental surgery that was undertaken in Florida because the Toronto surgery was cancelled on account of the mother’s refusal to take a PCR test, the mother did not arrange for the children to see any medical/health care professionals while in Florida;

vi) The children were not enrolled in any regular, weekly organized extra-curricular activities, clubs, or lessons in Florida, except for the fact that the mother deposes the oldest child enjoys parkour.

vii) The mother gave no evidence as to the links the children have to Florida currently. She does not, for example, describe their friendships with peers; activities they enjoy doing separately, together, or as a family unit in Florida. She does not establish that the children are connected to anyone or any community in Florida except herself.

viii) The mother does not dispute the father’s claims that she and the children moved from short-term rental to short-term rental, in six separate locations during the six months they were in Florida.

ix) The children’s and family’s personal belongings, including clothing and furniture, remain in Toronto and did not travel with them to Florida.

80. In an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the stay, but also the children’s circumstances, including connections they form, during the agreed upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention: Andegiorgis v. Giorgis, at para. 40.

81. Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed upon temporary stay. Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year): Andegiorgis v. Giorgis, , at paras. 42-43.

82. My application of the hybrid analysis to determine whether the children’s habitual residence is Florida or Toronto is as follows:

Children’s Links/Circumstances in country A, Toronto, Canada.

i) The children were born and raised in Toronto. They have many links to Toronto, both that predate the temporary relocation to Florida and that exist since their return in June 2022. Their circumstances in Toronto are such that they have returned to the neighbourhood where the matrimonial home was located and where they grew up, but for the six months they were temporarily in Florida.

ii) The children have connections to extended family who reside in Toronto, including aunts, uncles, and grandparents. They are connected to the community where they attended school in Etobicoke. Their peers attended their school(s) and lived in their neighbourhood. Further, the children were involved in extra curricular activities in their neighbourhood and community, including various lessons such as hockey.

iii) In addition to having personal and family connections in Etobicoke, the third parties involved with the children are all located in Toronto, including their family doctor, their dentist and the younger son’s speech therapist.

iv) Initially upon the return to Toronto, the father and children stayed at his brother’s home in Bradford, Ontario, until he was able to secure housing for the children in Etobicoke. The father and children are living in a home that is a short walk from their school.

v) During the summer months, the children spent time at the mother’s family cottage with maternal grandparents, and at the paternal grandparent’s residence in Bobcaygeon, as was the family’s typical pattern prior to separation. The children enjoyed family time together, time with extended family, and time with family friends while they were visiting cottages in the summer.

vi) The children began attending St. Clements Catholic School on September 6, 2022. The father deposes that the children were ecstatic to be reunited with their friends after the Covid shutdowns.

vii) The father gave evidence that the children will resume their extra-curricular activities in Toronto, such as hockey and skiing and will be able to recommit to their hockey team in Humber Valley.

viii) The children’s personal belongings, including toys, equipment, and clothing, are in Toronto.

The circumstances of the children’s move from country A to country B: from Toronto, Canada to Florida, U.S.A;

ix) The parties did not arrange to pack their belongings, clothing, equipment, and furniture and move it from Toronto to Florida. Rather, the mother took the children’s summer clothing with her and left the remainder of their belongings and her belongings in Toronto. She left it to the father to pack these belongings and place them in storage, indicating that the mindset that the move to Florida was temporary at least until she could demonstrate that she would be able to meet the two conditions agreed upon by the parties.

x) Again, the mother submits that the father wrongfully removed the children from Florida and engaged in self-help. The father argues that she had already given her consent by signing the separation agreement which clearly lays out, in paragraph 4.3, that the agreement for the family to relocate to Florida was predicated on the mother meeting two conditions: 1) obtaining the E2 visa for the children, herself and the father and 2) obtaining U.S. health insurance for the children. Since neither of the two conditions were met by the mother at the time of the review, May 27, 2022, the father argues, he followed the clear terms of the agreement by returning the children to Toronto.

xi) The circumstances, therefore, of the move to Toronto from Florida, were clearly laid out in a detailed agreement the parties negotiated and signed on November 27, 2021, something to which the mother had consented.

xii) The mother failed to provide any reason as to why she waited until May 25, 2022, to submit her E2 visa application. She had agreed to do so by February 28, 2022. There were also no reasons provided by the mother as to why she did not take steps to secure health insurance for the children by the review date. The mother did not attempt to explain this. Instead, she asked the father to ensure that the children remained covered under his travel insurance through his credit card, which leads one to conclude that she had not taken steps to secure U.S. health coverage for the children. In her affidavit, the mother deposes that the children are now insured under National General Accident and Health. She provided no documentary proof that this insurance is in place. Again, this health insurance plan was not in place when the father and children returned to Toronto.

The children’s links to and circumstances in country B, Florida.

xiii) The children’s links to and circumstances in country B, namely, Florida, United States, are tenuous at best. The mother did not find a residence in a specific neighbourhood where the children laid down roots when she was in Florida. Rather, the mother moved herself and the children to six different short-term rental locations for the duration of the time they were in Florida. The children were not in attendance at school. Rather, they were being home-schooled by the mother. Their link to Florida, therefore, is to the mother, and not toa school, a community, or a neighbourhood.

xiv) The mother deposes that in addition to being homeschooled, the children were enrolled in a bricks and mortar school that held classes every Wednesday, the purpose of which is to provide additional arts and crafts, gym-related activities, and music programming. There are no details about this school. The name of the school was not provided by the mother. There were no details about the additional activities offered at this school and/or whether the children were engaged in these activities;

xv) The mother makes mention of the younger son making one close friend, with whom he would play while the older son attended his activities. This statement suggests that the 5-year-old son was not involved in any extra-curricular lessons or activities. She also deposes that the older son made a lot of friends at parkour, an athletic activity about which he is passionate. Again, there were no details provided about how often the older child attends parkour classes, whether he involved in this activity on a regular basis. It was incumbent on the mother to provide evidence to demonstrate the children’s links to Florida. It is noteworthy that in the mother’s affidavit, sworn on August 17, 2022, of a total of 94 paragraphs, she spent a mere 17 paragraphs describing the children’s lives in Florida, only 18% of the affidavit. In her 60-paragraph reply affidavit, sworn on September 6, 2022, there is no evidence about the children’s lives, links, or connection to Florida.

xvi) The continual moving of the children from short-term rental to short-term rental, is demonstrative of the fact that there was not a strong degree of continuity for the children for the purpose of living in Florida.

83. I am not persuaded that the childrens’ social or family environment developed and/or advanced over the six months they were in Florida. Rather, their family environment stagnated. They had some contact with the paternal grandfather in Florida, which was not new, as they also had that contact with him when they were in Toronto. Their social environments did not expand or develop in Florida. Rather, by being homeschooled, their social environment remained quite small, being the two children and the mother. If anything, the boys’ social environment diminished while they were in Florida.

84. Balev and Ludwig v. Ludwig, 2019 ONCA 680, guide the applicant judge to consider a number of relevant factors in assessing the links and circumstances the children have to both jurisdictions involved. In applying these factors to this case, I find that the father’s agreement to the children relocating to Florida was predicated on the wife meeting two conditions, neither of which were met, for that stay in Florida to continue. Given that parental intention is only relevant as a tool to assess the child’s connection to a given country (Balev, at para. 68), the focus of the inquiry must be the children.

85. Even if I am incorrect about whether the children were wrongfully removed from Florida to Toronto, I find that the focal point of the children’s life is in Ontario and their link to Florida was tantamount to an extended vacation Moreover, I find that the child’s links to and circumstances in Florida are not solid and are tenuous at best. I am not satisfied that the children had strong friendships or social relationships in Florida. Children aged 8 and 5 can only have strong relationships that are cultivated by a parent or caregiver, and the evidence does not establish that the mother took steps to cultivate relationships for the children in Florida, except perhaps enrolling the oldest son in parkour classes.

86. I thus find that the children’s habitual residence was Ontario. The Hague Convention does not apply. Ontario has jurisdiction over the child-related issues.

Stage Two – Exceptions to Return

87. It is not necessary to determine this issue given my finding about the children’s habitual residence.

Parenting Orders

88. Neither parent sought any specific parenting orders. The terms of the separation agreement remain in force, namely, that the parents are to share equal time-sharing with the children and have joint-decision-making responsibility.

89. It is unknown as to whether the mother will return to Toronto. If she does, I adjourn the issue of parenting time with the children to a case conference conference. Now that I have determined that the children shall remain in Ontario, and the Hague Convention does not apply, the parties should be in a position to consider realistic parenting proposals for the respondent and address those at a conference.

90. The parties shall contact the Toronto family trial office and seek an expedited date for a conference to deal with these issues.

Costs

91. At the hearing of the motion, I asked the parties to provide me with their bills of costs, and suggested that, after I wrote my reasons on the merits, I would review the bills of costs and determine costs without submissions. The parties each indicated they were agreeable to my proposal.

92. Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345.

93. Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

94. Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. In setting the amount of costs, the court must consider the reasonableness and proportionality the factors listed in r. 24(12) as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.

95. There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

96. The father is the successful party and is presumptively entitled to his costs. His bill of costs discloses total fees, disbursements and HST of $28,428.75. The mother’s bill of costs discloses total fees, disbursements and HST of $83,572.20.

97. In considering the quantum of costs in this case, I note the following factors:

a) Neither party made an offer to settle, which is not surprising given the nature of the issue;

b) As the successful party, the father is entitled to some measure of recovery;

c) The issues involved were very important to the parties;

d) The issues were factually complex, and the materials lengthy, detailed, and well-prepared.

e) The mother’s costs, even on a partial indemnity scale ($50,742.19), are higher than the father’s claimed costs, suggesting that the father’s costs are within the mother’s reasonable expectations;

f) The time spent by the father’s counsel, and the hourly rates charged, were reasonable in the circumstances.

g) Neither party behaved unreasonably in the proceeding.

98. In my view, in the circumstances of this case, the father’s costs are fair and reasonable, and within the reasonable expectations of the mother. They are less than the mother’s own partial indemnity costs. I thus order that the mother pay the respondent costs of $26,000, all inclusive, within thirty days.

Summary of Order

99. In summary, I order the following:

a) The children, James Paul Richard Thompson, born January 19, 2014, and Christopher David Alexander Thompson, born May 28, 2017, are habitually resident in Ontario, and the court in Ontario has jurisdiction to determine the issues of custody and access.

b) The parties shall contact the Toronto Family Law Office to obtain an expedited date for a case conference to address the parenting schedule.

c) The mother shall pay the father’s costs of this motion, fixed in the sum of $26,000 within 30 days.

d) This endorsement is an order of the court, enforceable by law from the moment it is released.

September 19, 2022

M. Kraft, J.