Court File and Parties
Court File No.: 419/19 Date: 2022-01-26 Superior Court of Justice – Ontario
Re: Kelly Nina Campbell, Applicant And: Clayton Misener, Respondent
Before: Mr Justice Ramsay
Counsel: Jérémie Nadeau for the Applicant
Heard: January 26, 2022 at St Catharines by teleconference
Endorsement
1The Applicant moves under the Convention on the Civil Aspects of Child Abduction (the Hague Convention) for a declaration that the habitual residence of the children is Ontario and that their removal was wrongful and an order for their immediate return to Ontario.
2The children are 13-year-old twin girls, both born Christmas Eve 2008. The Applicant is their mother. The Respondent is their father.
3Under a separation agreement dated September 28, 2015 the parties both have custody of the children within the meaning of article 5 of the Convention. The children resided with their father in Niagara and visited their mother. The father began refusing access in July 2019 based on his contention that the mother’s husband had sexually abused the girls. A police investigation did not substantiate the allegations.
4On August 21, 2021 Gibson J. made a temporary order for access, which is now called parenting time, for the Applicant. This interim order did not invalidate the separation agreement. Shortly thereafter the Respondent took the girls to St-Pierre and Miquelon, French territory next to Newfoundland, where they are yet. This move breached the custody rights given to the Applicant by the separation agreement.
5On October 21, 2021 Walters J. found the Respondent guilty of contempt of court and adjourned sentencing.
6The Respondent was ordered extradited to Canada on January 19, 2022. He has 30 days to appeal. He is at liberty in St-Pierre on judicial release (“contrôle judiciaire”). The girls are placed with him. Initially they were placed in foster care, but they were unmanageable there.
7The Hague Convention is part of the law of Ontario, having been incorporated by s.46 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12.
8It provides:
Article 3
The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Habitual residence
9The analytical framework is summarized by the Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680.
10The children were removed from Ontario in September 2021. Before the children were removed from Ontario, they had lived their whole lives here with the consent of both custodial parents. They are Canadian nationals. They do not speak French. They have no legal right to stay in French territory. Their father will soon be extradited, or if not extradited, deported to Canada. They have not become acclimatized to their new situation. They have no friends, relatives or other contacts there. Their departure for St-Pierre was sudden and was designed by their father to avoid court orders that gave parenting time to the Applicant. France cannot be the habitual residence of these children. Ontario is the only other candidate. If I use the hybrid approach in Office of the Children's Lawyer v. Balev, 2018 SCC 16, the facts oblige me to declare that Ontario is their habitual residence.
Return
11Having made that determination I must proceed to the second stage of the analysis. The convention requires the return of children to the jurisdiction of their habitual residence subject to five exceptions (Ludwig, paragraph 34):
The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
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));
The child of sufficient age and maturity objects to being returned (Article 13(2));
The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,
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).
12The first, fourth and fifth exceptions have no possible application on the facts.
13I do not think that the second exception applies. The allegations of sexual abuse are not proven. In any event, Gibson J.’s order for parenting time provides that the Applicant’s husband shall not be present when the Applicant exercises parenting time. This also rules out any concern based on the fourth exception.
14The third exception merits comment. In proceedings undertaken in St-Pierre, the French court canvassed the girls’ views. They want to stay with their father and do not want to visit their mother. The court declined to place the children provisionally with their mother in St-Pierre. At thirteen, I have to think that these girls have sufficient maturity to object to being returned. But I am not sure that they do object to being returned. They want to stay with their father, but I have no reason to think that they want to stay in France.
15The Respondent will inevitably return to Canada sooner or later. The children will have to come with him. The present court order provides adequate protection for the children. There is no prospect of their exposure to their mother’s husband. I am not satisfied that the children object to returning to Canada. An order to return does not decide custody or residence. It only decides where custody should be determined.
16The removal of the children was not justified. I declare that the children were wrongfully removed from Canada and I order their return to Ontario.
17In view of the Applicant’s success and the Respondent’s contemptuous conduct I order him to pay her $1,500 in costs forthwith.
J.A. Ramsay J.
Date: 2022-01-26