Court File and Parties
Court File No.: FC-23-58-001 Date: 2023-03-08 Superior Court of Justice - Ontario
Re: George W. Dieffenbacher IV, Applicant And: Alexandra D. Baril Dieffenbacher, Respondent
Before: Justice M. Tweedie
Counsel: Katerina Svozilkova, Counsel for the Applicant Juliet Montes and Gloria Ichim, Counsel for the Respondent
Heard: March 1, 2023
Endorsement
1This is an application brought by the Applicant father (“the father”) under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983 No. 35 (“the Convention”) for an order directing the return of the parties’ son, George Winston Dieffenbacher, born March 23, 2022.
PART ONE - PRELIMINARY EVIDENTIARY ISSUES
2The parties agreed before Justice Piccoli on February 6, 2023, that the matter would proceed virtually and by affidavit evidence.
3At the start of the hearing, both parties sought orders excluding certain evidence filed by the other. The parties agreed that, in the interests of time, I would hear arguments about the admissibility at the start of the hearing and would include my ruling on those issues in my reasons for decision.
A. Audio and Video Recordings Filed by the Mother
4The respondent mother (“the mother”) sought to file audio recordings and doorbell video recordings (from the family’s front door) with the Court as evidence to support her allegations regarding the father’s drinking, driving while impaired, admissions regarding caregiving to the child, and weapons threats. The father states he was not aware he was being recorded and objected to the admission of these video recordings because they are not probative.
5Two recordings had not been provided to the father in advance of the hearing date. I stood the matter down for 20 minutes to allow the father and his counsel to review the recordings prior to argument on admissibility.
6There is a general principle that audio/video recordings between parents should be strongly discouraged and generally inadmissible: Whidden v. Ellwood, 2016 ONSC 6938, Hameed v. Hameed, 2006 ONCJ 274, Turk v. Turk, 2015 ONSC 3165. In Van Ruyen v. Van Ruyven, 2021 ONSC 5963, at para. 41, Justice Kurz writes:
The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.
7The recordings were attached as exhibits to a stand-alone affidavit sworn by the mother in support of a motion seeking to admit them. This affidavit referred to paragraph numbers in her responding affidavit matching the recording with the event attested to. However, the paragraph numbers were incorrect. During argument, counsel walked the Court through each recording and which paragraph in the responding affidavit to which it related. I note, however, that none of the paragraphs in the mother’s responding affidavit adequately lay the necessary foundation for the recordings. Despite this lack of foundation, I am considering the recordings because of the seriousness of the allegations and because the father, in submissions, acknowledged the recordings were made as the mother purports them to have been made.
8Recording from October 22, 2022: This is an audio recording of a discussion between the mother and the father where the mother tells the father that she is the primary caregiver to the child and he responds, “for now.” It starts abruptly and ends abruptly while the father is still speaking. It is a recording of a portion of a conversation, not an accurate reflection of the conversation in its entirety and is unreliable. This recording is not admitted.
9Voicemail message left by father for mother at 10:08 p.m. December 26, 2022: The mother seeks to admit this recording as evidence in support of the fact that the father has an unaddressed alcohol addiction. She states that he is drunk in the voicemail but in submissions did not state how she formed this opinion. This is not a surreptitious recording as the father clearly knows that a voicemail is a recorded message. This recording is admitted. However, I give it little weight. It is impossible for the Court to confirm that the father was intoxicated during the recording. Even if it were clear, one drunk voice mail is not evidence of an alcohol addiction.
10Recording from date unknown: This is an audio recording of a discussion between the mother and father where the mother’s voice is clear, and she mentions “drinking and driving.” There is a significant amount of noise in the background, and I am unable to accurately discern the father’s response as it appears he is further away from the recording device. This recording has no probative value and is not admitted.
11Recording from February 12, 2023: This is an audio recording of the father’s virtual parenting time with the child. The father was not aware he was being recorded. The mother states that the father was “under the influence” and at a Superbowl party. I am unable to determine whether the father is intoxicated during this recording. This recording has no probative value and is not admitted.
12Three doorbell video recordings from December 26, 2023: This is video from the parties’ doorbell camera. The camera is by the front door of the father’s own home, and he is aware of its existence. I find that this is not a surreptitious recording, and it is therefore admitted. I will refer to this evidence later in this decision.
B. Various Affidavits Filed by the Mother
13The father seeks to strike a number of affidavits filed by the mother. These affidavits are sworn by family members and friends of the mother and much of the content of these affidavits is repetition of information told to them by the mother regarding discussions or events relating to her relationship with the father. The affiants had no personal knowledge of these events or discussions. However, some information in these affidavits is within the personal knowledge of the affiants. I have admitted the affidavits as evidence for this hearing, but place little weight on the information that is not within the personal knowledge of the affiants.
C. Reply Evidence
14The mother sought an order striking reply evidence filed by the father.
15The mother sought to strike the affidavit of Barbara Gaston sworn February 26, 2023, and the affidavit of Brandon Bolivar sworn February 27, 2023, on the basis that they were not proper reply evidence, and that they were served late, and the mother did not have the opportunity to respond to them.
16In her affidavit sworn February 22, 2023, responding to the father’s application, the mother attests that the father, who works the night shift as a corrections officer, would leave for work at 8:15 p.m., return home at 7:00 a.m., sleep from 7:00 a.m. to 8:00 p.m. and then leave for work, never having any interactions with or providing care to the child. Ms. Gaston is a next-door neighbour to the family. Her affidavit accounts a meeting she had with the mother and father in an attempt to facilitate discussions about their relationship. Ms. Gaston attests that one of the issues discussed was that the father was upset that the mother would not let him sleep even 6 hours during the day, and the mother said that she wished the father to be awake because she felt alone. I find that this is proper reply evidence.
17Also, in her February 22, 2023 affidavit, the mother attests that she viewed a text exchange on the father’s phone between the father and his friend Brandon Bolivar. The father was complaining about the mother and Mr. Bolivar replied that he knew where to hide a body and not get caught. Mr. Bolivar’s attests in his affidavit sworn February 27, 2023, that he did make that comment in a text to the father and that it was a joke in poor taste. I find that this is proper reply evidence.
18The mother also sought to strike certain passages of the father’s reply affidavit on the basis that they are not proper reply evidence.
19Having reviewed the passages sought to be struck, I find that they are all in direct response to allegations raised by the mother in her responding affidavit and are therefore proper reply evidence.
PART -TWO THE LAW
A. Objectives
20Canada and the United States are both Contracting States to the Convention. The objects of the Convention are stated in Article 1 as follows:
A. To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
B. To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.
21The Ontario Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680, described the objectives of the convention, at paras. 19 and 20:
[19] The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained: Balev, at para. 24; Hague Convention, Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.
[20] The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned
B. Relevant Provisions of the Convention
22The articles of the Convention most relevant to this case are Articles 3, 5, 8, 12, 13, and 20. These articles are as follows:
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.
Article 5
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain –
a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
b) where available, the date of birth of the child;
c) the grounds on which the applicant's claim for return of the child is based;
d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by –
e) an authenticated copy of any relevant decision or agreement;
f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
g) any other relevant document.
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.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
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.
C. Analytical Framework
23The Ontario Court of Appeal in Ludwig sets out the analytical framework for Convention Proceedings, summarized as follows at paragraph 40:
[40] For ease of reference, I will summarize the governing analytical framework for Hague Convention applications below.
Stage One: Habitual Residence
On what date was the child allegedly wrongfully removed or retained?
Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach:
a) The court’s task is to 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 removal or retention.
b) To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances:
i) The child’s links to and circumstances in country A;
ii) The circumstances of the child’s move from country A to country B; and
iii) The child’s links to and circumstances in country B.
c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:
i) The child’s nationality;
ii) The duration, regularity, conditions and reasons for the child’s stay in the country the child is presently in; and
iii) The circumstances of the child’s parents, including parental intention.
End of Stage One: Two Outcomes
If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.
If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.
Stage Two: Exceptions
At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:
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));
a) Has the party opposing return met the threshold to invoke the court’s discretion to refuse return?
i) Has the child reached an appropriate age and degree of maturity at which the child’s views can be taken into account; and
ii) Does the child object to return?
b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider:
i) The nature and strength of the child’s objections;
ii) The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent;
iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and
iv) General Hague Convention considerations.
The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or
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).
PART THREE – SUMMARY OF DECISION
24For reasons set out below, I find the following:
a. The date of the child’s wrongful removal was January 5, 2023.
b. The child’s habitual residence at the time of the wrongful removal was New York State, United States.
c. The father was exercising custody rights at the time of the wrongful removal of the child.
d. The father did not consent to the removal of the child.
e. There is no grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation.
f. The child shall be returned to New York State.
g. The father will be subject to undertakings which he proposed during submissions.
PART FOUR - BACKGROUND FACTS
25The applicant father is 28 years old and an American citizen.
26The respondent mother is 30 years old and holds dual Canadian and American Citizenship. She was born and raised in Kitchener, Ontario and resided in Canada until November or December 2020, when she went to live with the father in New York State.
27The parties met in New York State in 2018 and were married on June 25, 2020, in New York State.
28The mother obtained her American citizenship on February 4, 2021.
29The parties’ child, who is subject of this proceeding, is George Winston Dieffenbacher, born March 23, 2022, in New York State. The mother is currently pregnant with the parties’ second child.
30It is not disputed that the parties lived together, with the child, in New York State until January 5, 2023. The mother and child travelled to Canada twice, for approximately one week each time, to visit maternal family and friends in Ontario.
31It is not disputed that in the early morning of January 6, 2023, the mother, without the father’s knowledge, took the child while the father was working the night shift and went to Kitchener, Ontario.
32The father, with the assistance of police, located the mother and child in Kitchener Ontario.
33The father commenced divorce and custody proceedings in New York on or about January 13, 2023.
34The mother filed a Motion to Dismiss in Family Court of the State of New York County of Herkimer dated January 18, 2023, seeking to dismiss the father’s petition. In support of that motion, she also filed an affidavit dated January 18, 2023, attesting to the same concerns regarding the actions of the father, her relationship with the father, and the father’s care of the child as she sets out in the materials filed in the within application.
35On January 20, 2023, the Herkimer County Family Court made an order giving the father sole legal custody and primary physical residence of the child and the mother supervised only contact with the child. The order further states that the Court has jurisdiction over the respondent “by virtue of the Summons and Orders to Show Cause of January 13, 2023, personally served upon the Respondent on January 18, 2023, and Affidavit of Service having been filed with the court on January 19, 2023.”
36The father also filed a Hague Application with the US Department of State on or about January 23, 2023.
37The mother commenced an Application (issued January 15, 2023) in the Superior Court of Justice (Family Branch) in Kitchener, Ontario. She then filed an ex parte motion dated January 26, 2023, seeking urgent relief. The motion was heard in Chambers by Justice Walters on February 2, 2023. Justice Walters ordered the motion materials to be served on the father, set timelines for the father to file responding materials, and then adjourned the matter to February 6, 2023.
38On February 6, 2023, Justice Piccoli ordered on the consent of the parties that the father’s Hague Convention Application would be heard on March 1, 2023, and that it would proceed virtually and by affidavit evidence. Further, on consent of the parties, the father was granted regular daily video parenting time. Prior to this order, the mother did not permit the father to have any contact with the child nor did she provide information to him regarding the child.
PART FIVE – ANALYSIS
A. Date of Removal
39The father submits that the date of the child’s removal was in the middle of the night spanning January 5 and 6, 2023. The mother’s factum for this proceeding did not address the issue of the date of removal, but in oral submissions stated that the date of retention was February 6, 2023, the date that the Hague application was first heard. No further submissions were made on behalf of the mother’s position.
40It is undisputed that the mother left with the child in the middle of the night between January 5 and 6, 2023, without notice to father. I find that the date of removal is January 6, 2023.
B. Habitual Residence
41The next step in the analysis is determining the child’s habitual residence at the time of the removal.
42The Supreme Court of Canada set out a hybrid approach to this determination in Office of the Children’s Lawyer v. Balev, 2018 SCC 16; 1 S.C.R. 398. The Ontario Court of Appeal summarized this approach in Ludwig at paras. 30 to 33:
[30] The aim of the hybrid approach is to determine the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:
The child’s 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.
[31] The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.
[32] Certain factors may be more relevant where the child is an infant or is very young. Where a child is an infant, the child’s environment is “essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: Balev, at para. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children: para. 45.
[33] Balevestablishes that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination of habitual residence is subject to deference. The court specifically stressed that the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: at para. 47. The application judge must consider the entirety of the child’s situation and no one factor necessarily dominates the analysis: at paras. 44, 47.
43The father submits that the child was habitually resident in the United States at the time of removal based on the following circumstances:
a. The child was born and raised in New York State and is an American Citizen.
b. The child and both parents lived together in New York State prior to the child’s removal.
c. The father took four months paternity leave and regularly took care of the child.
d. The child spent significant time with paternal grandparents who lived nearby and had regular positive contact with the paternal family.
e. The paternal grandmother cared for the child during the week.
f. The child went to daycare until late 2022.
44The mother submits that the child’s habitual residence was Ontario based on the following circumstances:
a. The mother was and is the child’s “reference parent”, relying on paragraph 45 of Balev where the Court states:
…where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.”
b. The father was not involved in the child’s life and the mother was the child’s primary caregiver.
c. The mother’s roots are in Kitchener, Ontario.
d. The parties agreed that the mother was moving to New York to live with the father on a temporary basis to see if the relationship would work, on the condition that the father seek treatment for his alleged addictions. The relationship did not work and therefore she returned to Ontario.
e. The mother left belongings in Ontario when she moved to New York.
f. The child was too young to establish connections in New York, did not attend school and did not make friends. The child had no connections to New York “other than to his mother who was visiting New York.”
g. The child is “socially, culturally, and linguistically connected to Ontario” through regular family interactions, having a bond with maternal relatives in Ontario, and having a physician.
45I find that the focal point of the child’s life was and is New York State.
46The child lived with both parents in New York during his life. I find the child’s reference persons to be both his mother and his father. I dismiss the mother’s allegations that the father provided no care for the child. While the mother may have undertaken a greater proportional share of the childcare, both parents were caregivers to the child. The father took a paternity leave and provided details regarding his involvement with tasks of care for the child. The fact that he worked, and the mother was the child’s primary caregiver, does not negate his role as a parent in the child’s life.
47The child had medical care and attended day care in New York State.
48The child did not have much connection to Ontario other than two visits there with his mother. The mother’s family visited the father, mother, and child in New York State.
49I dismiss the mother’s assertion that the parties agreed that the mother’s residence in New York was temporary. Even if I accept the mother’s assertion that the father understood that the mother expected him to address his alleged addictions upon her moving to New York, I find that whatever the “trial period” might have been, it has passed, and the mother had an intention to stay in New York and build a life with the father there. The mother stayed in New York for over two years during which she held employment, made friends, connected with neighbours, built relationships with the father’s family, obtained her American Citizenship, and had a child with the father.
50Accordingly, I find the child’s habitual residence to be New York State.
C. Exception Article 13(a) – Applicant Not Exercising Custody Rights
51As this court has found that the child’s habitual residence is in New York, I must order the return of the child to New York unless the mother is able to establish one of the exceptions.
52The Supreme Court of Canada held in Balev at paragraph 76 that “exceptions to the rule that a child should be returned to the country of the child’s habitual residence are just that – exceptions. Their elements must be established, and they do not confer a general discretion on the application judge to refuse to return a child.”
53Article 13(a) establishes an exception to returning the child if the applicant was not exercising custody rights at the time of the removal.
54The mother claims that the father was not exercising custody rights at the time of removal because she was the child’s primary caregiver.
55The Supreme Court of Canada in Thomson v. Thomson 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 states as follows:
Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. … The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any form order of other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement.
56“Exercising Custody” does not mean the same thing as being a primary caregiver: see Abib v. Abib, 2010 ONSC 5869, at para. 23. The threshold for the left behind parent to establish they were exercising custody rights is low: see Agboola v. Unoh, 2016 ONSC 6779, at para. 38.
57The parties were married and living together as a family at the time that the mother and child left New York State. While the mother may have looked after a large share of the childcare tasks, the father participated in the child’s life and took on the role as a parent to the child.
58I find that the father was exercising custody rights at the time of removal.
D. Exception Article 13(a) – Applicant Consented to Removal
59The mother asserts that the father consented to the mother and child moving to Canada in October 2022. The father denies that he consented at any time.
60The mother relies upon her own assertions that in October 2022, she and the father reached an agreement that she could move with the child to Canada. She also relies on text messages that she sent to her mother and the parents’ neighbour, stating that she and the father had come to that agreement. There is no other independent evidence about this alleged agreement.
61None of the texts that the mother sent to her mother and neighbour establish that the father consented to a relocation to Canada. Firstly, the mother cannot rely upon her own statements to others to bolster her position. Further, the mother does not state in these text messages that the father consented to the move to Canada. In her text conversation with Barbara Gaston on October 23, 2022, the mother merely tells Ms. Gaston “I’m leaving, he’s not going to fight me. I don’t love him anymore.” When Ms. Gaston asked where the mother was going, the mother wrote “To Canada, I’m going when the court order goes through.” In her text conversation with her mother, which is undated, but is claimed to have taken place in October 2022, the mother states “he told me I could take all the baby things.” There is no mention of moving to Canada.
62In the same text conversation with Ms. Gaston noted above, the mother alludes that it is her intention to obtain a custody order. Further, the mother attests that she consulted a lawyer on October 24, 2022, to “obtain custody and return to Canada” and then again on January 3, 2023, she retained a lawyer to “begin a petition for divorce and custody in Herkimer County Family Court.” These actions suggest that the mother was aware that she would require a court order from New York State prior to being able to move to Canada and that she did not have the father’s consent.
63If the father was consenting to the mother and child relocating, then the mother would not have had to leave in the middle of the night without notifying the father, would not have had to leave with minimal belongings, and the father would not have contacted the local police to advise that he came home from work to find his wife and child missing.
64Further, in December 2022, the mother was looking for houses in New York State for the family to move to, again suggesting that there was no agreed upon plan for the mother and child to relocate.
65I find that the father did not consent to the child’s removal to Canada.
E. Exception Article 13(b): Grave Risk of Harm or Intolerable Situation
66Case law, including that from appellate authorities, establish that there is a high threshold to prove grave risk of physical or psychological harm or intolerable situation: see Thomson, above, and Ellis v. Wentzell-Ellis, 2010 ONCA 347. The parent opposing the return of the child bears the onus to establish the exception: see Gourgy v. Gourgy, 2018 ONCA 166, at para. 10.
67The Ontario Court of Appeal in Ellis established, at para. 38, that “any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.”
68The Ontario Court of Appeal held in Husid v. Daviau, 2012 ONCA 655, at para. 23, that domestic violence directed at the parent who removed the child can be relied upon in arguing the exception under Article 13(b) of the Convention. “Returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm” [emphasis in original].
69The Ontario Court of Appeal in Jabbaz v. Mouammar, 2003 CanLII 37565, at para. 23 states:
The risk of physical or psychological harm or, as alleged in this case, an intolerable situation, must be, as set out in Article 13, “grave”. The use of the term “intolerable” speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.
70The exception does not need to be established by a single factor, but several factors, taken together, can reach the threshold: see Al Hadad v. Al Harash, 2020 ONCJ 269.
71In Hassan v. Garib, 2017 ONSC 7227, at para. 10, Justice Engelking sets out three questions to be considered when determining whether a child would be at grave risk of being exposed to risk of physical or psychological harm or an intolerable situation where domestic violence is alleged:
- Has the alleged past violence been severe and is it likely to recur?
- Has it been life threatening?
- Does the record show that the alleged perpetrator of the violence is not amenable to control by the justice system?
72The mother alleges that the child will be exposed to a grave risk of physical or psychological harm or otherwise intolerable situation for the following reasons:
a. The father has an addiction to alcohol, cocaine, and marijuana.
b. The father drives while impaired and does so with the child in the vehicle.
c. The father has been intoxicated while the child was in his care.
d. The father does not care for the wellbeing of the child and has caused injuries.
e. The relationship is characterized by domestic violence due to the following:
i. The father isolates the mother.
ii. The father was not supportive of the mother during her pregnancy.
iii. The father is aggressive.
iv. The father is jealous and does not permit her to have friendships with men.
v. The father has forced the mother to have sex with him.
vi. The father has broken a bathroom drawer in anger.
vii. The father is rough when disciplining the family dog.
viii. The father has threatened her, and the risk is exacerbated by the fact the father owns firearms.
ix. The father is physically aggressive.
x. The father is controlling of finances.
f. The mother is pregnant and will not have adequate medical insurance in New York State and would come to harm if she were to return. (Although, this is not stated in her affidavit, nor did she provide evidence of this. The court was asked to infer this from the fact that the father has commenced a divorce petition and the mother’s health insurance is through the father’s benefits. The court is unable to make this finding without evidence.)
73The father denies all the mother’s allegations.
74I find that there is no evidence presented to establish that the father has driven while impaired with the child in the car. The mother made general statements to this effect and the presented the doorbell camera video to establish that the father was driving while impaired with the child on December 26, 2022. The video shows the father driving up to the house, leaving the car with the child in his arms, coming up the stairs to the front porch, entering the house, and then leaving again without the child. The mother submits that the father stumbled, and this stumble was evidence that the father was impaired. Having reviewed the video a number of times, I cannot see a stumble nor any evidence that the father was impaired. The mother provided no other descriptions of incidents where the father apparently drove while impaired with the child in the car.
75I find that there is no evidence to suggest that the father has negligently or intentionally harmed the child. The mother refers to one incident where the child fell off a bed while the father was caring for him. The father admits to this happening, but states that he put the child, who was not yet crawling, on the bed surrounded by pillows and then turned away to get clothes from the wardrobe, during which time the child fell from the bed. The mother provided no other instances where the father was neglectful of the child or harmed him.
76From the evidence of the parties, it appears that it was normal for both parents, at least prior to the mother’s first pregnancy, to drink to excess from time to time. The mother’s evidence suggests that drinking remains part of the social life of the father. The mother has attached text messages between herself and girlfriends, and between the father and his friends, which document that the father drinks during social events with his friends, sometimes to excess.
77The mother obtained the text messages between the father and his friends by going into his phone and then taking photos of various messages she found. These photos show a search bar at the top of the father’s phone where the word “drunk” or “drink” or “beer” is being searched.
78The mother filed photos of wastepaper trash bins full of empty beer cans as evidence that the father has an alcohol addiction. While the number of empty cans is concerning if they were consumed in one session, there is no evidence to establish over what timeframe the trash became full or who consumed the beer.
79The mother’s evidence regarding the father’s addiction to marijuana and cocaine, other than her general statement that he has such an addiction, is a photo of drug paraphernalia and a text message from a friend to the father that the mother suggests says the father does cocaine. Although the court was not directed specifically to a text regarding cocaine, and there is no specific mention of cocaine in the messages, there is one message where the father’s friend states to the father “rip a line while you’re there.” The father does not respond. Perhaps this is a reference to cocaine. Even if it is, it is not evidence that the father uses cocaine.
80The father admits to drinking, and to having used cocaine and marijuana on occasion. However, he denies that he has any addiction issues, or that he has cared for the child while impaired.
81While the evidence supports a finding that the father often binge drinks to the point of intoxication, I cannot determine from the evidence that he has an addiction or that his alcohol use puts the child or the mother at risk.
82Turning to the mother’s allegations regarding domestic violence, I do not find that the evidence filed by the mother meets the threshold required to establish a grave risk of harm.
83The mother submitted that domestic violence as defined by the United Nations and therefore applicable to this case, is different than domestic violence as defined by Canadian Courts. I disagree. Section 2(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), defines family violence as follows:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property
84The law of Ontario considers domestic violence to be a pattern of behaviour that takes on many forms. It does not need to take the form of physical violence and can include coercive and controlling behaviour. It can include, among other things:
a. Isolating the victim or monitoring their activities or movements;
b. Controlling the victim’s access to finances and how money is spent;
c. Repeatedly denigrating the victim and making them feel worthless;
d. Threats of violence against the victim, their loved ones or pets;
e. Other types of threats including reporting the victim to the police, publishing intimate photos, or reporting their immigration status;
f. Damaging the victim’s home or property;
g. Gaslighting.
85Much of the mother’s evidence regarding factors of domestic violence consists of broad, general statements, and there are few incidents detailed to support her general statements.
86Other than a general statement that the father has threatened her, the mother provided no details of any threats made and when they were made. The mother does not allege any physical violence by the father against her. The text from Mr. Bolivar to the father where Mr. Bolivar states he knows how to hide a body is not evidence of a threat of harm by the father to the mother.
87The mother alleges that the father isolates her from her family. She provides only a blanket statement that he does not allow her to speak to her family or have male friends. However, her affidavit and those of others submitted into evidence of the mother also details conversations she has with friends and family and times during which the maternal family visited in New York. The mother also visited Ontario on two occasions since the child’s birth. The father admits that he will no longer allow the maternal grandmother to come to his home, but states that he would not prevent the mother and child from seeing the maternal grandmother.
88In support of her allegation that he is aggressive, the mother refers to the following incidents
a. An argument on July 15, 2022, where he raised a fist and yelled at the maternal grandmother. The father denies that he was aggressive or threatening during this incident but agrees that he was angry and that he did not agree to the maternal grandmother staying in the family’s home after that.
b. An incident in January of 2021, where the father broke a drawer in their bathroom out of anger that the mother was out with friends. The mother was not present for the incident. The father states that he broke the drawer by accident.
c. An incident in 2019, recounted to her by the father, where he punched a hole in his bedroom door while intoxicated. The father’s materials do not respond to this allegation.
d. An incident in the spring of 2021, when the father admitted that he assaulted an inmate at the facility where he is a corrections officer. She provided no corroborating evidence other than lacerations that she observed on the father’s hand. The father denies this allegation.
89I do not find that these incidents support a finding that the father has been aggressive or threatening towards the mother or child.
90The mother recounts two incidents in 2021 where the father was jealous and yelled at her for being alone with male colleagues. The father states that it made him uncomfortable and told the mother, and she agreed that she would also not like it if the father was alone with female colleagues.
91The mother states that the father was not supportive of her during her pregnancy. He would not assist her with household tasks when she was not well, and he was late for some appointments. She alleged he would not consent to her having a recommended blood transfusion. The admits that he forgot about a routine prenatal appointment and almost slept through it. He admits that he was asked questions about potential complications with the transfusion, but states he did not object, and that in any event, it was the mother’s procedure to consent to. The mother alleges that the father made a rude comment regarding her physical appearance following the delivery of the child and would call her fat. The father does not provide a response to this allegation.
92The mother states that the father aggressively pushed their dog’s face into urine and into a chewed door frame. The father denies this.
93The mother makes a blanket statement that the father was controlling of finances. She provides one example where the father was upset with her for buying new tires. The father denies any financial control. He states that the family was under financial strain due to living primarily on the father’s income and that they had to be careful with money. He states that, for this incident, he was upset that the mother did not talk to him first because he knew where he could have obtained a better price.
94The mother states the father would force her to have sex. She recounted three instances. Once in November 2022, the father wished to continue having intercourse but the mother did not and so he yelled at her. He did not force her to continue. Once in late 2022, she declined his advances, and she states he coerced her and wore her down by demanding that she needed to show she loved him. She states that she gave in “for fear he would hurt me,” yet she provides no reason for the fear. Once in early December 2022, the father got angry when she declined his advances, but he did not force her to have sex.
95The mother states that the court should be concerned because the father owns weapons. The father admits to owning weapons for which he has permits and stores properly. In a doorbell camera video submitted by the mother, the father admits this to the police officer that visits his home after he reports the mother and child missing. The father also tells the officer that he had a gun on his person at the time. The officer shows no concern and responds “OK, alright.” The legal ownership of firearms does not in and of itself, in the absence of any violence or threats of violence, give rise to a risk of harm.
96If the Court were to accept the mother’s versions of all the incidents she relies upon, the court would find that the relationship is characterized with some of the hallmarks of domestic violence. However, the behaviour of the father towards the mother would not meet the threshold that there is a grave risk the child will suffer physical or psychological harm or otherwise be in an intolerable situation.
97Turning back to the first two questions articulated in Hassan, the evidence does not establish that the alleged past violence was severe or was life-threatening.
98There is also nothing to suggest that the father is not amenable to control by the justice system, the third question articulated in Hassan.
99The mother alleges that the father is above the law and avoids consequence for illegal behaviour due to his role as a corrections officer. She also went as far as to claim that the father obtained his custody order in New York State due to his connections as a corrections officer. There is no evidence to support these blanket allegations.
100The father also followed the correct procedure once he learned of the mother and child’s absence. He contacted local police. Once he learned of the mother and child’s whereabouts, he did not attend Kitchener, Ontario in an effort to retrieve the child or convince the mother to return. He started the court application in New York State, the Hague Application, and the Application before this court.
F. Conclusion regarding Exception 13(b)
101The mother has not met the onus to establish that the child is at grave risk of physical or psychological harm or otherwise will be placed in an intolerable situation.
102This is not to say that the mother was not in a difficult situation at the time she left New York State. She was a stay-at-home mother, with a diagnosis of depression and anxiety since the age of 13, pregnant with her second child, whose husband worked the night shift and was often out having fun and drinking with his friends and, if her evidence is accepted, does not treat her with support and respect. The mother was unhappy and lonely, her marriage was breaking down, and her family and long-term friends resided in a different country. In her time of need, resulting from the breakdown of her marriage, she went to where she could best find support, and that was in Ontario.
103However, this cannot negate that the proper course of action for the mother was to retain counsel in New York state and seek custody of the child through the New York court system. The mother knew this much given that she twice consulted counsel prior to leaving New York State for Ontario.
104Lastly, there is a presumption, which the mother has not rebutted, that all signatories to the Convention are presumed to make decisions based on the child’s best interests: see Leigh v. Rubio, 2022 ONCA 582, at para. 45.
PART FIVE- ORDER
105I make the following order
a. Pursuant to the Convention, the child shall be immediately returned to his place of habitual residence, New York, in the United States.
b. If the mother fails to return the child as required by this order, the Waterloo Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, and all other peace officers in Ontario where the child may be, shall, locate, apprehend and deliver the child to the father, at his request. In doing so, they may enter any place, including a dwelling place, if they have reasonable and probable grounds to believe the child is located there, and seize the child’s passport, birth certificate and other identification or records pertaining to the child and deliver them to the father.
c. The following undertakings apply to the father:
i. Vacate the family home at 7575 East Street, Newport, NY, USA and provide the keys to the mother, giving the mother temporary without prejudice exclusive possession of the home;
ii. Ensure the mother is maintained on his medical insurance policy for as long as she qualifies for coverage under the policy;
iii. Not be under the influence of alcohol or non-prescription drugs while in a caregiving role to the child.
PART SIX – OTHER ISSUES
106The mother’s application remains outstanding. This decision should provide guidance regarding the next steps for that application. Counsel shall discuss this issue and may submit any consent for the withdrawal of that application by way of 14B motion. If they cannot agree, they shall contact the trial coordinator for an appearance before me.
107The father was successful in his application. The parties shall have meaningful discussions regarding the amount of costs. If they are unable to agree, the father shall serve and file his costs submissions no later than March 29, 2023. The mother shall serve and file her written response by April 12, 2023. The submissions should not exceed three pages, double space, not including offers to settle or bill of costs. Extensions will not be granted. The parties can send these to my attention at kitchener.SCJJA@ontario.ca
Tweedie, J.
Date: March 8, 2023