Superior Court of Justice – Ontario – Family Court
NEWMARKET COURT FILE NO.: FC-22-125-00
DATE: 20221202
RE: E.A., Applicant
AND:
E.Y., Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: K.E. Snider, Counsel for the Applicant A. Iyathurai, Counsel for the Respondent
HEARD: November 23-25, 2022
ruling on motion
[1] E.A. brings an Application seeking an Order that the child, P.A., born in 2020 be returned to his habitual residence in Cyprus pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).
[2] E.Y. and P.A. are physically in York Region, Canada, and she asks the court for:
(a) a declaration that P.A.’s habitual residence is Ontario;
(b) a declaration that if P.A. was wrongfully removed, that the Court exercise its discretion to permit P.A. to reside in Ontario pursuant to Article 13 of the Hague Convention; and/or
(c) that the Ontario Courts should assume jurisdiction over P.A. pursuant to the Children’s Law Reform Act.
Decision
[3] For the reasons that follow, P.A. shall be returned to his habitual residence in Cyprus on a date to be arranged by counsel pursuant to Article 12 of the Hague Convention. Alternatively, if there is no agreement on a date, E.A. may return this matter to my attention on short notice and I will schedule the date for P.A.’s return to Cyprus.
Background
[4] E.Y. was born in Iraq, moved to Canada in 1996, and moved to Cyprus in November 2018.
[5] E.A. was born in Iraq and has resided in Cyprus since 2006.
[6] The parties, for all intents and purposes, had an arranged marriage.
[7] The parties were married in Cyprus on December 26, 2018.
[8] Following their marriage, the parties resided together in Cyprus.
[9] There is one child of the marriage, namely P.A., born in 2020.
[10] P.A. was born in Cyprus and lived in Cyprus until he left the country, in the care of E.Y., on June 6, 2021.
[11] The parties agree that on June 6, 2021, P.A.’s habitual residence was in Cyprus. The court confirms this. P.A. was born in Cyprus and, as of June 6, 2021, had always lived in Cyprus.
Overview of the Relocation/Removal
[12] On June 6, 2021 E.Y. and P.A. left Cyprus enroute to Canada.
[13] E.A. testified that E.Y. was travelling with P.A. to visit her parents in Canada. The maternal grandparents, due to Covid, had not yet met their grandson, and E.Y. would remain in Canada for one month returning to Cyprus July 7, 2021. E.A. testified that he consented to the trip but he never consented to a permanent move.
[14] E.Y. testified that on June 6, 2021 she left Cyprus permanently, with P.A., and that E.A. consented to the permanent move. In the alternative, she argues, returning P.A. to Cyprus would result in grave risk that his return would expose P.A. to physical or psychological harm or otherwise place P.A. in an intolerable situation. The basis for the harm, she argues, is E.A.s’ violence towards her.
Hague Convention
[15] The Hague Convention is an agreement of signatory nations with the objective of securing the prompt return of children whose parents have removed them from the country that is their habitual residence bringing them to another jurisdiction.
[16] Both Canada and Cyprus are signatory nations.
[17] The relevant articles of the Hague Convention state:
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.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Analysis
[18] As stated, all parties agree that P.A. was habitually resident in Cyprus on June 6, 2021 when he left for Canada.
[19] E.A. commenced his Application to have P.A. returned to Cyprus, pursuant to the Hague Convention, within one year of P.A.’s departure. Consequently, Article 12 is instructive. P.A. must be returned to Cyprus unless one of the two exceptions set out in Article 13 applies.
Exception under Article 13(a)
[20] In order to trigger the Application of Article 13(a) there must be clear and cogent evidence of unequivocal consent or acquiescence.[^1]
[21] E.A. testified that the parties had a normal relationship and that he never discussed P.A. moving permanently to Canada. He testified that E.Y. and P.A. were attending Canada to visit the maternal grandparents for one month. E.Y. and P.A. were scheduled to depart Cyprus on June 6, 2021 and they were scheduled to return to Cyprus on July 7, 2021. E.A. testified that E.Y.’s father bought a return ticket for E.Y. and P.A.. He testified that he saw the return ticket. Further, E.A. testified that he participated in the preparation of the trip by obtaining P.A.’s passport and by signing a travel consent letter.
[22] E.Y., by contrast, testified that her relationship with E.A. was horrible from the beginning of the marriage. She described being the victim of constant verbal abuse, screaming and controlling behaviours. E.Y. testified that in May/June 2021 E.A. was angry with her, called her a ‘shit’, told her he was divorcing her, and told E.Y. to return to Canada and to bring P.A. with her. E.Y. testified that her father bought her a one-way ticket to Canada.
[23] It is noteworthy that there was no objective evidence presented that E.A. at any time consented to a permanent move.
[24] I found E.A.s’ evidence clear and balanced. It made sense. His evidence was corroborated by the testimony of his sister, C.R., who testified that E.Y. was going to Canada on a one-month holiday. C.R. spoke affectionately about both E.A. and E.Y.
[25] E.Y.’s evidence, by contrast, was unclear, unbalanced, and, sometimes, required a leap of common sense to accept.
[26] E.Y. testified that E.A. was controlling and abusive. She testified that E.A. told her in 2018, shortly after their marriage, that she was not going back to Canada. Suddenly, the narrative takes a necessary turn when, in May 2021, he is alleged to have told her to leave Cyprus permanently with P.A.
[27] Both parties testified that E.A., in May 2021, applied for and obtained P.A.’s passport for travel. Both parties testified that E.A. drove E.Y. and P.A. to the airport.
[28] E.A. testified that enroute to the airport they stopped at the home of his sister, C.R., to say good-bye. E.Y. testified that they did not stop and say good-bye to his sister. C.R. confirmed the testimony of E.A. C.R. also testified that she asked E.Y. if she would bring some things for some of her relatives in Canada. She testified that E.Y. declined as she was travelling with very little luggage. Indeed, E.Y. testified that she was travelling with very little luggage, consistent with C.R.’s testimony. The evidence of E.A. makes sense. C.R. lived 20 minutes away. C.R. and her husband spent every weekend or every other weekend with E.A. and E.Y. It is entirely believable that they stopped and said good-bye. That is what families do. E.Y.’s suggestion that she never said good-bye yet she was leaving Cyprus permanently would be unusual. How would C.R. know that E.Y. was travelling with a small quantity of luggage?
[29] Both parties testified that a travel letter was prepared.
[30] E.A. testified that when they arrived at the airport, he escorted E.Y. and P.A. to the gate and kissed them both good-bye. E.Y. testified that E.A. did not kiss them good-bye. It is a modest point. However, to accept E.Y.’s narrative, then, why would E.A. escort her to the gate instead of dropping her off at departures. In testimony E.Y. explained that he escorted her to the gate because she did not know where to go. Why would someone described as he is by her, take such good care to ensure her trip went smoothly? Why would E.A. have to show E.Y. where to go in the airport when she had been in the airport previously? It is noteworthy that, for 20 years, E.Y. worked in security at the Pearson Airport. Airports are her bailiwick.
[31] E.Y. argues that E.A. signed the travel letter and it is indicative of his consent because it does not indicate a date of return. E.A.s’ evidence is that when they got to the airport the travel letter was required and so, E.Y. wrote it out and E.A. signed it. I prefer E.A.s’ testimony in this regard. Travel letters are often demanded when only one parent travels with a child, internationally, from the child’s country of residence. There would be no necessity to have a travel letter to return to the country of origin and, so, it is not exceptional that there is no return date. P.A. had a passport from Cyprus. He was a citizen of Cyprus. If I am to accept E.Y.’s testimony that the travel letter was a consent to a permanent move, there is one thing missing and it is glaring: the consent does not indicate a permanent move.
[32] E.A. testified that E.Y.’s father purchased a return ticket for E.Y. and P.A. and they were to depart Cyprus for Canada on June 6, 2021 with a return flight on July 7, 2021. He testified that E.Y. showed him the return ticket before she left. E.Y. testified she had only a one-way ticket. A copy of the ticket was not provided. E.Y. testified that her phone was broken and she could not get the ticket. When asked, she confirmed that she made no attempts to obtain a duplicate ticket. There was no third party records motion, no email to the flight carrier to request a duplicate, no mention why, when her sister bought the ticket for her (using her father’s account), that the sister did not have a record of it. E.Y. never called her sister to testify. E.Y. provided the court with 44 exhibits including the travel consent and screenshots of conversations, but made no attempts to get a duplicate copy of the ticket. I accept the evidence of E.A. that there was a return ticket.
[33] E.A. testified that E.Y. telephoned him from Greece where she had a layover, enroute to Canada. He testified that she also called him after her arrival in Canada. That is all indicative of two parties whose relationship is cordial, not evidence E.Y. was escaping a violent marriage. Surprisingly, E.Y. testified, that she could not remember if she made those calls.
[34] E.A. testified that on June 10, 2021, E.Y. advised his parents that she was not returning to Cyprus. Prior to that, he received no indication that E.Y. was not returning. E.Y. and E.A. testified that her father then called E.A. and asked him to consider moving to Canada. E.A. testified that he thought about it. He considered it. He wanted to save his marriage. But ultimately, he declined as he would lose money on the apartment he owned in Cyprus and because it would be difficult to find a job. The narrative makes sense. I cannot accept the narrative offered by E.Y. She testified that she was escaping an abusive relationship where, only a few days earlier, E.A. told her to leave Cyprus permanently because he was divorcing her. Why, with this backdrop, would her father, a few days later, approach E.A. about moving to Canada to join them? Why would E.Y. allow such a thing?
[35] It is puzzling why, if E.Y. was returning to Canada permanently with P.A. and with the consent of E.A. after living in Cyprus for over two years, the parties never discussed child support, visitation, or property division.
[36] E.Y. testified that E.A. never called P.A. in July and August of 2021. E.A. stated that he could not call P.A. because E.Y. changed her telephone number. E.Y. did in fact change her phone number from one in Cyprus to a number in Canada.
[37] E.Y. argued that E.A.s’ lack of immediate action to have P.A. returned is indicative of his consent. It is not. First, if I accept the evidence of E.Y., her father was attempting to have E.A. move to Canada and he testified that he was thinking about it. By August, E.A. testified, E.Y. told him that she did not want him to come to Canada. In August 2021, E.Y. also served E.A. with court documents commencing a proceeding in Cyprus.
[38] E.A. testified that he then signed a document in Cyprus in September 2021 to return P.A. from Canada. He does not know what the document was. That document has not been provided. However, it is noteworthy that it is standard practice to commence a Hague Convention Application by submitting it to the Central Authority. Thereafter, E.A. retained counsel in Canada and signed his Application on December 18, 2021. It is noteworthy that E.Y. was served in February 2022 and she filed her Answer in May 2022.
[39] It is also noteworthy that the Newmarket Court prioritized this matter, calling it to trial in May 2022. Unfortunately, counsel for the Applicant had a personal issue that precluded proceeding with the trial. Both parties consented to the matter being adjourned and proceeding at the next available date. This matter was then prioritized and called the first week of the November trial sittings.
[40] I have concluded, based on the evidence before me, that E.Y. decided, at some point, to change P.A.’s habitual residence to Canada. She cannot do so unilaterally. She needs the unequivocal agreement of E.A. E.A., through his actions, has consistently maintained that P.A. was attending Canada for one month only. Trips abroad, for specified purposes, like holidays or visiting relatives do not alter the habitual residence of a child.
[41] I conclude, on all the evidence, that there was no clear and cogent evidence of unequivocal consent or acquiescence by E.A. To the contrary, the evidence is persuasive and compelling that P.A. was attending Canada with E.Y. for the purpose of a one-month holiday and they were to return July 7, 2021.
Exception under Article 13(b)
[42] Is there credible evidence of a grave risk that P.A.’s return to Cyprus would expose him to physical or psychological harm or otherwise place him in an intolerable situation?
[43] As stated by Laforest J. writing for the majority of the Supreme Court of Canada:
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. Examples of cases that have come to this conclusion are: Gsponer v. Johnstone (1988), 12 Fam. L.R. 755 (Fam. Ct. Aust. (Full Ct.)); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.); Re A. and another (Minors) (Abduction: Acquiescence), [1992] 1 All E.R. 929 (C.A.); Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401 (Eng. H.C. (Fam. Div.)); Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413 (Eng. H.C. (Fam. Div.)); Director-General of Family and Community Services v. Davis (1990), 14 Fam. L.R. 381 (Fam. Ct. Aust. (Full Ct.)); and C. v. C., supra.
In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
. . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words `or otherwise place the child in an intolerable situation.'[^2]
[44] The evidence must be credible and must meet the very high test of “grave risk.”
[45] E.Y. testified that from the very beginning of her marriage, E.Y. was moody, fast tempered, and controlling. When asked to describe his moods, E.Y. testified that E.A. would get upset by anything. In terms of controlling behaviour, she testified that he took away her passport and her driver’s licence. It is noteworthy that E.A., according to her testimony, did not take away her phone nor did he take away her bank card.
[46] E.Y. testified that she was not allowed to drive or go to the store alone. She states she was not permitted to work or go outside, alone or even walk on to the balcony of their apartment. She testified that every day he yelled and screamed.
[47] E.Y. described three incidents of physical abuse.
[48] The first incident was in April 2019 when she and E.A. went to a friend’s baptism. E.A., she said, became angry because men were looking at her at the baptism. On the drive back she states that she was terrified because he was driving so quickly, on winding roads, and she feared for her life. During this drive she says, he reached over to the glove compartment of the vehicle, took out the passport, and threw it at her. He also pushed her head with two to three of his fingers and she hit her head on the window. There were no injuries, and the police were not contacted. E.Y. testified that she telephoned C.R. to come over. When they got home, E.Y. remained outside (although she testified that she was never allowed to be alone outside) until C.R. arrived. C.R. testified that she did come over as the parties had an argument. C.R. testified there was no violence and she spoke to her brother about his jealousy and that was it.
[49] Both E.A. and C.R. denied E.Y.’s narrative. E.Y. testified that she called C.R. many times to speak about E.A. Her testimony was inconsistent with the testimony of C.R. who said it was a single time. I found this testimony of E.Y. to be primarily broad stroke allegations void of detail and I do not accept her evidence of E.A.s’ abusive behaviour.
[50] Similarly, when describing the second incident of abuse, E.Y. stated that E.A. slapped her and she went to her room and did not eat all day. She did not know why he was upset. There is no time frame or other details provided. There is no evidence of reconciliation.
[51] When describing the third incident of physical abuse, E.Y. testified that, following P.A.’s birth, E.A. would not assist her with the baby. When P.A. cried, E.A. would scream at her. On one occasion E.A. is alleged to have grabbed P.A. and threatened to throw him on the ground. E.Y. then testified that E.A. threatened to jump from the balcony. It is noteworthy that the parties lived on the second floor. Again, there is no time frame or other details provided.
[52] E.Y. provided no details of reconciliations, discussions after fights, or promises made. Once the allegation of abuse was provided, the narrative stopped.
[53] E.Y.’s testimony was, at times, evasive. For example, during her examination in-chief, E.Y. testified that in late 2019 she advised E.A. she was pregnant. E.Y. testified that at that time E.A. did not say a word to her, did not look at her, and did not say congratulations. In cross-examination her narrative changed. E.Y. testified that she discovered she was pregnant in July 2019 and when she told E.A. she was pregnant he told her not to tell her family. When pressed about the inconsistency, (on the one hand he said nothing at all, on the other hand he told her not to tell her family) her story changed. Now, and for the first time, she testified that she was pregnant twice. The first pregnancy ended in a miscarriage at the beginning of 2019, well outside the timeframe originally offered.
[54] Other incidents were described and they were very light on detail. For example, E.Y. testified that at 2:00 a.m. one morning E.A. told her to leave. She did not know why he was angry and so she left and went outside (again she testified that she is not allowed outside or on the balcony alone). According to her testimony, she remained outside, alone, for an hour or two and then came back in because he fell asleep. Again, there are no details of reconciliation, and not even any knowledge of why there was an argument.
[55] E.Y. testified that E.A. screamed and yelled at her every day. The parties lived in a condominium building. There was no evidence that the neighbours complained. There was no evidence that the neighbours called the police. E.Y. never called the police. She never called any social service agencies. She never told anyone of the abuse. E.Y. provided no medical evidence substantiating the abuse. There were no pictures of marks or abrasions. There are no counselling records. E.Y. was home all day alone while E.A. was away at work. E.Y. had access to funds and she had her own phone.
[56] It is noteworthy that, in 2019, E.Y. travelled to Canada with E.A. for her brother’s wedding. P.A. was not yet born and, at best, she may have been one-month pregnant. She told no one in her family about the allegations and she returned to Cyprus.
[57] Following her arrival in Canada on June 7, 2021, E.Y. never told her parents of the abuse until, according to her evidence, June 12, 2021. She did not tell her mother, she says, because her mother had medical issues. She did not tell her father because he was trying to fix her marriage.
[58] E.A., by contrast, testified that there was no domestic violence in the relationship. He testified that there was no screaming or yelling. He testified that no police or other social agency was ever called to the home.
[59] I am not satisfied, on a balance of probabilities, that there was any domestic violence in the relationship. To the contrary, I accept the evidence of E.A. and C.R. that the parties had an otherwise normal relationship. There were disagreements and there were pressures but there was no domestic violence.
[60] If I am wrong and there was some level of domestic violence, the evidence of E.Y. is not sufficient to make out the exception in Article 13(b). The three incidents of alleged violence together with the screaming do not reach the threshold set out in Article 13(b) that returning P.A. to Cyprus would result in grave risk of harm to him and one that is otherwise intolerable. Signatories to the Hague Convention are presumed to have sufficient protective serves in place to protect children and spouses of abuse. There was no evidence provided to the court that Cyprus is the exception.
[61] There is no credible evidence of a grave risk to P.A. should he return to Cyprus that would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
Order
[62] There shall be an Order as follows:
P.A. shall be returned to his habitual residence in Cyprus on a date to be agreed by counsel pursuant to Article 12 of the Hague Convention.
The Respondent’s request that the Ontario Courts assume jurisdiction pursuant to the Children’s Law Reform Act is dismissed for lack of jurisdiction.
If the parties are unable to agree on a date, I can be contacted and I will provide a date.
E.Y. is permitted to travel back to Cyprus with P.A. If she chooses not to, any police force having jurisdiction shall have the authority to locate P.A. and place him in the physical custody of E.A. so that he can return him to Cyprus. E.Y., in this case, shall provide E.A. with P.A.’s passport and any necessary travel documentation to permit Philp to travel back to Cyprus.
If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to five pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to five pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
Justice G.A. MacPherson
Date: December 2, 2022
[^1]: Katsigiannis v. Kottick-Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at para. 49.
[^2]: Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, at pp. 596-597.