NEWMARKET COURT FILE NO.: FC-22-2046-00 DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Linda Virginia Mar, Applicant AND: Yangfeng Wu Wu (Not Present), Respondent
Counsel: K.A. Maurina/M. Stangarone/J. Valencia, for the Applicant
HEARD: January 10, 2023
Ruling on civil aspects of international child abduction
A HIMEL J.:
Overview
[1] The Applicant (“mother”) commenced this Application on November 28, 2022, seeking a declaratory order that the child, Vivian Wu (age 12) has been wrongfully retained by the father in Mexico City since August 14, 2022. The child was not returned to the mother’s care following her parenting time with the Respondent (“father”) in July 2022.
[2] The mother requests relief pursuant to Articles 3 and 15 of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or the “Convention”). She also requests relief pursuant to sections 40 and 46(5) of the Children’s Law Reform Act (or “CLRA”) and Articles 7, 8 and 12 of the Hague Convention.
[3] In accordance with Family Law Rule 37.2(5), a first meeting was convened within seven days, on December 6, 2022. The father did not attend the virtual court (“Zoom”). I scheduled a hearing to address this matter, including the issue as to whether the Ontario Court has jurisdiction to make what is commonly known as a chasing order.
[4] I am satisfied that the father had notice of yesterday’s hearing, including the mother’s request for an order for letters rogatory, yet he failed to attend Zoom court or to file any responding materials.
[5] For reasons that follow I grant the relief requested including the order that Vivian be returned forthwith to her habitual residence of Markham, Ontario.
[6] The parties clearly disagree as to the parenting time plan that is in Vivian’s best interests, and the child likely has her own views and preferences that must be considered. Vivian has a right to a meaningful relationship with each parent. Given my finding that Vivian is habitually resident in Ontario, it is this Court’s role and responsibility (rather than the Court in Mexico) to assist the parents to devise a parenting plan on consent, or to make a decision in accordance with Vivian’s best interests, as is required by the CLRA.
[7] As soon as Vivian is returned to Ontario, either party may contact the Court to arrange an urgent Case Conference by Zoom. At that time we will address the issue of the pleadings, and the appointment of a lawyer from the Office of the Children’s Lawyer to represent Vivian (and Joy (age 14), if the father intends to seek parenting time with his older daughter). The Court will request assistance of duty counsel to support the father during that Case Conference. Any Application for parenting time and other relief will be expedited to ensure that a child-focused plan (primary residence, holiday and vacation time) is implemented quickly.
Background Facts
[8] The uncontradicted evidence is as follows. Vivian and Joy travelled to Mexico City in July 2022, for a one-month vacation with their father, who relocated to Mexico in 2011 after the parties’ separation, and to spend time with the maternal grandparents who reside in Mexico. Both children were born and raised in Ontario. Prior to 2022, the children never travelled without the mother to Mexico.
[9] On July 26, 2022 the father advised that the children would not return to the mother. However, Joy left the father’s home and went to the maternal grandparents’ residence. She returned to Ontario on July 29, 2022. On August 11, 2022, the mother travelled to Mexico for approximately one month and had limited contact with Vivian. The mother returned to Mexico again from December 5 to 15, 2022, however she had no contact with Vivian. The only communication between the mother and child since August 2022 was a conversation on October 28 and December 25, 2022. The mother has concerns about the child’s well-being.
The Hague Convention
[10] The Hague Convention is implemented in Ontario by s. 46(2) of the Children’s Law Reform Act. The Convention seeks to secure the prompt return of children wrongfully removed or retained in a Contracting state to the state of their habitual residence. It attempts to ensure that rights of custody and access of one Contracting state are respected in the other Contracting states (Article 1). The Convention presumes that the interests of children who have been wrongfully removed are better served by immediately repatriating them to their original jurisdiction where the merits of custody should and, but for the abduction, would have been determined. The return order is not a custody determination (Article 19). It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction.
[11] The strong policy of the Convention in favour of ordering the immediate return of children is intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. The foundation of the Convention is the rapidity of the mandatory return process and the principle that the merits of issues related to the custody of children who have been wrongfully removed or retained are to be determined by the courts of their habitual place of residence: A v. M, 2002 CarswellNS 425 (N.S.C.A.), para. 28; Thomson v. Thomson, [1994] 3 S.C.R. 551 supra, para. 44.
Jurisdiction to Make a Chasing Order
[12] The mother filed a Hague Convention Application with the Central Authority in Ontario on or about October 20, 2022. To the best of her knowledge it has been forwarded to the Central Authority in Mexico, but has yet to be forwarded to the Court in Mexico. Given that Hague Convention Applications must proceed expeditiously this delay is concerning.
[13] With respect to the Ontario Court’s jurisdiction to make a chasing order, the mother relies on Articles 14 and 15 of the Convention, which provide that:
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
[14] The mother also relies on the decision of Thomson v. Thomson, whereby the Supreme Court of Canada defined a chasing order as an order “made solely to bolster an application under the Hague Convention.” The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful.
[15] In her article, The Application of the Convention - From the Practitioner’s Perspective on the Hague Convention, Phyllis Brodkin, provides the following list of reasons for obtaining a chasing order:
a. A chasing order gives an unequivocal message to the judge hearing the Hague Application in the requested state. Counsel in the requested state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the requested state for such a declaration;
b. A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child's return. On the other hand, it will delay the return if counsel is forced to obtain such an order as a condition precedent to the return, after the application has been heard;
c. Seeking a chasing order in the requesting state creates a proceeding in which to obtain custody when the child is returned; and
d. A chasing order enables the parent seeking the child’s return to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction.
[16] I agree with the mother’s interpretation of the Convention, the caselaw and Ms. Brodkin’s sage comments.
[17] The Ontario Court has the necessary jurisdiction and is, in fact, obliged to assist Mexico to facilitate a resolution of the Hague Convention Application, and to ensure that a wrongfully retained child is returned to Ontario as quickly as possible. As noted above it has been over two months since the commencement of the Hague Convention Application, yet the Application has not been received by the Court in Mexico.
[18] Unfortunately, according to the 2022 Annual Report on International Child Abduction by the Department of State, the competent authorities in Mexico “delayed taking appropriate steps to locate a child after a Convention application was filed. The average time to locate a child in Mexico was 137 days. Mexico has a long history of non-compliance. Beginning in 2004, the Annual Report stated that: “Mexico remains the destination country of the greatest number of children abducted from or wrongfully retained outside of the US by parents or other relatives…the number of resolved cases is quite small and the Mexican Central Authority lacks adequate resources.” Mexico maintained their non-compliance designation in 2004, 2007, 2008, 2009, and 2010.
[19] Vivian’s return must be dealt with and addressed as promptly and efficiently as possible and the chasing order improves the likelihood that Vivian will be returned to her home in Markham, Ontario.
[20] Before turning to the merits of this Application, I note the following two procedural matters.
[21] First, I hereby validate service of the Application and the materials for this hearing. The father was served by email, with a second copy emailed to a family law legal counsel in Mexico who had previously acted on his behalf. The father has not responded to the emails. However, the mother’s brother, Miguel Mar, provided oral evidence at yesterday’s hearing of a telephone discussion that took place on January 2, 2023. During that call the father acknowledged receipt of documents from Canada that were sent by the mother. He advised Mr. Mar that there was a hearing scheduled for January 12, 2023. The father requested that Mr. Mar speak with Vivian, which took place on January 4, 2023. I find that the father is well-aware of these proceedings and has sufficient notice of this hearing.
[22] In any event, even if the father has not had sufficient notice of the hearing, given the serious nature of the issues before the Court, the concerns about delay, avoidance of service and safety issues, a chasing order can proceed on a without notice basis: Benditikis v. Benditikis, [2007] O.J. No. 4815, 46 R.F.L.(6th) 438 (S.C.J.).
[23] Second, before the chasing order can be granted the moving party must commence a Hague Application through the Central Authority in the requesting or requested state or contact the Central Authority: Caruso v. Caruso at paras. 1, 3-6, 8, 11, 15-16. In the case before this Court, the mother has complied with this requirement. Her materials include evidence that she commenced a Hague Convention Application on or about October 20, 2022.
Wrongful Retention and Habitual Residence
[24] Article 3 of the Hague Convention states that a removal or retention is 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.
[25] There are two steps in the determination of habitual residence. The first is to establish the date of the wrongful removal or retention, and the second is to determine where the children were habitually resident immediately before the removal or retention date: Ludwig v. Ludwig, 2019 ONCA 680, paras. 23-26; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at para. 36.
[26] In Balev, the Supreme Court adopted the ‘hybrid approach’ to determining a child’s habitual residence. On the hybrid approach, the application judge determines 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: Pérez-Vera, at p. 428. A child’s habitual residence accordingly “corresponds to the place which reflects some degree of integration by the child in a social and family environment” and must be established “taking account of all the circumstances of fact specific to each individual case.” Considerations include the duration, regularity, conditions and reasons for the child’s stay in the Member State. No single factor dominates the analysis. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.” Relevant considerations may vary according to the age of the child concerned; 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”: O.L. v. P.Q. (2017) C-111/17, (C.J.E.U.), at paras. 43-45.
[27] The hybrid approach best fulfills the goals of prompt return under the Convention: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.
[28] Vivian was scheduled to return to Ontario on August 14, 2022. The mother did not consent to any extension of the return date. On the contrary, she travelled to Mexico on August 11, 2022 to ensure that the child returned to Ontario.
[29] Vivian’s habitual residence is unquestionably Ontario. Vivian was born in Ontario and has resided in Ontario with the mother and her sister Joy, for her entire life; she has never resided in Mexico. The focal point of Vivian’s life before the wrongful retention was in Ontario – her home, school, doctor, dentist, activities, friends, sister, mother and much of her family are all in Ontario.
[30] I declare that Vivian has been wrongfully retained in Mexico since August 14, 2022. The appropriate remedy is an order for Vivian’s immediate return to Ontario.
Letters Rogatory
[31] The mother’s legal counsel in Mexico has experienced difficulties effecting personal service on the father. The mother submits that personal service is not recognized in Mexico. As stated above, the father declined to acknowledge service by email, nor has the family lawyer (who previously represented the father) responded to any communications from the mother or the Court.
[32] The mother seeks letters rogatory to effect service upon the father in Mexico in a manner that will be recognized by the Mexican Court. The father was on notice of this request as it is included in her affidavit and statement of law.
[33] I accept the mother’s uncontradicted evidence that Mexico will only recognize service that is effected through the Mexican Court/Justice by letters rogatory from a justice in Ontario.
[34] Letters rogatory are requests from a judge to the judiciary of a foreign country for the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country’s sovereignty.
[35] In Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855, the Ontario Court of Appeal upheld the letters rogatory issued by the California Court requesting the production of documents in Ontario. Letters rogatory are used when the court in one country requests assistance from the court in another country for various purposes including effecting service and obtaining evidence.
[36] An Ontario court is entitled, at its discretion, to give effect to a request for letters rogatory if the purpose of this request could be achieved by the issuance of letters of request in Ontario. While Ontario can recognize service on the father, it appears that a letters rogatory is necessary to effect proper service upon the father in Mexico in a manner that Mexico will accept.
[37] Clearly the father must be served in a means that is recognized by the Mexico Court as the Hague Convention Application is proceeding in that jurisdiction. I am granting the requested relief.
ORDER TO GO
It is declared that the child, Vivian Wu, born September 24, 2010, is being wrongfully retained in Mexico by the Respondent, Yanfeng Wu Wu, from her place of habitual residence in Markham, Ontario, and that such retention constitutes a wrongful retention of the child within the meaning of section 40 of the Children’s Law Reform Act, Article 3 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”) and pursuant to Article 15 of the Convention.
The child shall be returned forthwith to her habitual residence and in Markham, Ontario pursuant to sections 40 and 46(5) of the Children’s Law Reform Act, Articles 7, 8 and 12 of the Convention.
Letters rogatory to issue.
Costs can be addressed at the Case Conference, or by 14B (to my attention) no earlier than 45 days from today. The Applicant may file 2 pages double space and a bill of costs. The Respondent may file 2 pages double space, within 7 days of receipt of the Applicant’s submissions. If no costs submissions are received within 60 days there shall be no costs.