Court File and Parties

COURT FILE NO.: FC484/23 DATE: June 15, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Isaac Rodrigo Diaz Garcia Applicant

Bayly Guslits, for the Applicant

- and -

Ma. Yazmin Reyna Cruz Respondent

Sahar El-Kotob and Entisar Bukair, for the Respondent Kimberly Doucett, for the Office of the Children’s Lawyer

HEARD: June 1, 2, 5, 6, and 8, 2023

SAH J.

REASONS FOR DECISION

Overview

[1] The applicant father (the “father”) seeks an order under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”), for the return of the parties’ seven-year-old son, David Caleb Diaz Garcia (the “child”), to Mexico.

[2] The respondent mother (the “mother”) seeks a dismissal of the application. She opposes the child’s return, relying on two exceptions set out in the Hague Convention. First, she claims the child faces grave risk of harm or an intolerable situation if returned. Second, she claims the child resists being returned and has reached an age and maturity level at which it is appropriate to consider his views.

Background Facts

[3] The child subject to this hearing is seven years old. His parents cohabitated for ten years in Mexico and were never married.

[4] Both parties have extended family in Mexico, many of whom testified at the hearing.

[5] The parties described their relationship very differently. The mother described an abusive relationship alleging verbal, financial, emotional, sexual, and physical abuse at the hands of the father. She also alleged that the father physically disciplined the child.

[6] The father conceded that the parties had arguments, as all couples do, but denied any allegation of abuse. Further, he denied claims that he abused the child.

[7] On December 16, 2022, the father drove the mother and child to the child's friend’s home for a party. They did not return as expected.

[8] The father attempted to contact the mother by phone and on social media. He contacted the police to report them missing. He eventually noticed the child's passport, birth certificate, computer, cell phone, Nintendo switch, vaccination records, clothes, and suitcase were missing.

[9] In the middle of the night, the father was contacted by the mother on WhatsApp. She informed him that she had gone to the US-Mexico border to request asylum and to stay with her sister who lives there. She sent him another message at approximately 7:00 a.m. to advise that she was at the border town of Tijuana, trying to get into the United States.

[10] The mother and child traveled in the company of the maternal grandparents and the mother's brother.

[11] The father did not know where the child was. In the month that followed, he had some phone calls with the child, but when asked of their location, the mother told the father they were in Chicago; on another occasion she said they were in Japan.

[12] It was not until January 26, 2023 that the mother advised the father that she was in London, Ontario.

[13] Three days after arriving in Canada, the mother married Thavaris Havaris. She and the child live with him. Mr. Havaris’ children from his previous union, Nicholas and Olivia (nine years old and six years old, respectively), attend for parenting time with their father every Monday, and every other Thursday to Tuesday.

[14] Pursuant to r. 37.2(4) of the Family Law Rules, O Reg 114/99 (“FLR”), I actively case-managed this file from the first meeting until the conclusion of the hearing.

[15] At the first meeting, on consent of both parties, I made an order requesting the involvement of the Office of the Children’s Lawyer (the “OCL”).

[16] The OCL accepted the referral and Ms. Doucett was assigned as legal counsel. Mr. Reid was assigned to provide clinical assistance.

[17] It was agreed that evidence in chief would be submitted through affidavits and each affiant was subject to cross-examination.

[18] Each party swore and filed two affidavits in support of their position. The OCL filed the clinician’s affidavit.

[19] In addition, the father relied on the evidence of his parents, nephew, brother, two neighbours, the child’s school principal, the child’s Bible school teacher, and a lawyer.

[20] The mother relied on the evidence of her three sisters, brother, two co-workers, a friend, her current spouse, and her current mother-in-law.

[21] A total of 23 affidavits were marked as exhibits.

[22] The mother attempted to tender evidence of a participant expert – specifically, a jurist – who she proposed be qualified as an expert in domestic abuse in Mexico City and all incidents relating thereto, specifically on resources, laws, policy development, and trends.

[23] After a voir dire, I delivered oral reasons and I declined to qualify the jurist as a participant expert.

[24] On the first day of the hearing, the parties advised they agreed to the following:

a) The date of the child’s wrongful removal and retention is December 16, 2022. b) The child's habitual residence at the time of the wrongful removal and retention was Mexico. c) The father was exercising custody rights at the time of the wrongful removal and retention of the child. d) The father did not consent to the removal of the child.

[25] The focus of the hearing was on the two defences raised by the mother in opposition to the application.

Summary of Decision

[26] The father’s application for an order directing the return of the child to Mexico under the Hague Convention is granted.

[27] There is no grave risk that the return of the child to Mexico would expose him to physical or psychological harm, or place the child in an intolerable situation.

[28] The child has not reached an appropriate age and degree of maturity at which his views can be considered.

[29] The child shall be returned to Mexico.

[30] The undertakings set out below provide for a suitable transition plan for the child until the appropriate court in Mexico takes charge of his best interests.

Issues to be Determined

[31] The issues to be determined are:

a) Is there grave risk that the return of the child to Mexico would expose him to physical or psychological harm, or place the child in an intolerable situation? (Article 13(b)). b) Has the child reached an appropriate age and degree of maturity at which his views can be considered, and does he object to the return? (Article 13(2)). c) What undertakings, if any, are appropriate if an order is made for the return of the child?

General Legal Principles and Framework

[32] The Hague Convention is an international treaty, signed to date by numerous contracting states including both Canada and Mexico. Article 1 sets out its purposes, which are:

a) To secure the prompt return of children wrongfully removed to, or retained in, any contracting state; and b) To ensure the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting states.

[33] The Ontario Court of Appeal described the purposes of the Hague Convention in paras. 19-20 of Ludwig v. Ludwig, 2019 ONCA 680, as follows:

[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.

[34] The Convention process is meant to restore the status quo that existed before the wrongful removal or retention. Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access: see Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 SCR 398, at paras. 22-30.

[35] All signatories to the Hague Convention are presumed to make decisions based on the child’s best interests: Leigh v. Rubio, 2022 ONCA 582, at para. 45.

[36] The Hague Convention contains its own code and rules: see generally, Thomson v. Thomson, [1994] 3 S.C.R. 551.

[37] The Court of Appeal in Ludwig sets out the analytical framework for Hague Convention proceedings at para. 40. Stage One is not relevant to this proceeding; only “Stage Two: Exceptions” applies to this case.

[38] Article 13 of the Hague Convention is relevant to this case. It states:

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

Issue #1: Article 13(b) Exception – Grave Risk of Harm or Intolerable Situation

Legal Considerations

[39] There is a high threshold to prove “grave risk” of physical or psychological harm: see Thomson, at para. 81; Ellis v. Wentzell-Ellis, 2010 ONCA 347, at para. 37.

[40] The burden rests with the parent opposing the return of the child to establish a grave risk or an intolerable situation. see: Gourgy v. Gourgy, 2018 ONCA 166, at para 10.

[41] Any interpretation short of a vigorous one with the few exceptions set out in the Convention would rapidly compromise its efficacy: see Kommineni v. Guggilam, 2022 ONCJ 66, at para. 93; Knight v. Gottesman, 2019 ONSC 4341, at para. 84.

[42] A test for severity of harm was set out by the Court of Appeal in Rayo Jabbaz v. Rolim Mouammar (2003), 226 D.L.R. (4th) 494 (Ont. C.A.), at para. 23, as "an extreme situation, a situation that is unbearable; a situation too severe to be endured".

[43] An assessment of risk involves not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring: see Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 55; Ojeikere v. Ojeikere, 2018 ONCA 372, at para. 62; F. v. N., 2022 SCC 51, at para. 71.

[44] The 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. The Court cited Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (Ont. C.A.), for the proposition that “[r]eturning 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”.

[45] As summarized in Al-Hadad v. Al Harash, 2020 ONCJ 269, at para. 16, some Article 13(b) claims that allege grave risk of harm to a child because of domestic violence directed towards a primary caregiver have failed in Canadian court:

• Sometimes the court is simply not satisfied on the balance of probabilities that domestic violence occurred.

• Sometimes the court finds that the assault alleged was minor or a one-time occurrence.

• Sometimes the court notes that, despite the violence alleged, the victim of the assault expressed no fear of the assailant… or that the violence alleged is not the reason that the abducting parent declines to return with the child to the requesting state.

[Citations omitted.]

[46] The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the child is to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547, aff’d 2012 ONCA 469.

[47] In Hassan v. Garib, 2017 ONSC 7227, at para. 10, Engelking J. set out three questions to be considered when determining whether a child would be at grave risk of being exposed to physical or psychological harm or an intolerable situation where domestic violence is alleged:

1. Has the alleged past violence been severe and is it likely to recur?

2. Has it been life-threatening?

3. Does the record show that the alleged perpetrator of the violence is not amenable to control by the justice system?

Evidence and Analysis

[48] The mother deposed that the father was physically, financially, verbally, and sexually abusive towards her for most of their relationship. She also claimed he was physically, verbally, and emotionally abusive to the child.

[49] In determining this issue, I will first review the evidence in relation to the allegations of abuse against the mother, in turn, and will apply the three questions set out in Hassan.

Allegations of Sexual Abuse

[50] The mother deposed that the parties separated in or around September 2019. She claimed that any period of intimacy between her and the father thereafter was the result of him forcing her to be intimate. She offered no details or particulars of allegations of this type of abuse.

[51] The father denied forcing the mother to be intimate. He maintained his belief that they were in a loving and committed relationship until the day she left for Canada.

[52] In support of his belief, the father relied on text messages sent between the parties sent after September 2019 demonstrating love and affection. He also provided evidence of their family vacation, just the parties and the child, to Acapulco in September 2022, and a vacation with the paternal grandparents and the father’s nephew in November 2022.

[53] He claimed that the parties were intimate up to her departure on December 16, 2022. He deposed that on the morning the mother left for Canada, she kissed him in an expression of affection.

Allegations of Financial Abuse

[54] The mother deposed that in or around November 2017, the parties were filling out her nursing professional papers and she asked the father to help pay for her education. He refused.

[55] Further, she claimed that the father quit working in June 2018 and insisted that she leave her pay cheques at his disposal.

[56] She alleged that the father insisted her plentiful renumeration was the result of her promiscuity.

[57] In September 2019, the mother deposed that the father, the paternal grandparents, and the child went to Canada. She did not travel with them. During this trip, the father incurred credit card debt of just under CAD$1,300 and he told the mother to pay for him. The mother took out a loan from work to pay off this debt.

[58] In November 2019, the father incurred almost CAD$1,000 in credit card debt. The father would not ask the paternal grandparents to pay for the debt and this upset the mother. She confronted him about his irresponsible spending, to which he responded by grabbing her arms and squeezing them “really hard”.

[59] In December 2019, the mother deposed that the father incurred credit card debt of approximately CAD$610.00. He forced the mother to pay off this debt.

[60] The father denied that he was financially abusive. According to his evidence, he stopped working as a cook in 2018 when the mother started working 24-hour shifts as a caregiver for a wealthy elderly couple.

[61] He claimed that when the mother worked 48- or 72-hour shifts, she was absent for days and would return and sleep for a whole day. He claimed that as a chef, he would be required to work 12-hour shifts, six days a week with one day off. The father deposed that he made the decision to change his career and start working as an Uber driver to be able to take care of the parties’ son.

[62] The father deposed that when the pandemic started, all restaurants were closed but he still worked occasionally as an Uber driver.

[63] The father deposed that he also started cooking and delivering meals to neighbours. The father deposed that the parties agreed to split all bills 50-50. He claimed that he did not earn a lot of money but that it was enough to pay for part of the child's tuition and utilities.

[64] The father disputes ever controlling the applicant’s money. When she received approximately CAD$4,200 to $6,600 as severance from her employer, she used that money to pay for her maxillofacial surgery in 2021. He did not interfere with her choice to spend this money as she wished.

[65] The father described the surgery to be major and cosmetic in nature. The mother disputed the procedure was cosmetic and submitted that it was required to ease considerable pain in her jaw. Despite this disagreement, the mother did not dispute that she was able to spend money she received freely for the surgery and admitted in cross-examination that the cost of her retaining a lawyer in Mexico to engage in the legal system was approximately one fifth the cost of surgery.

[66] Regarding her relationship with her current husband, Mr. Havaris, the mother went into significant detail in her affidavit. However, she did not comment on the extent of his financial generosity.

[67] On cross-examination, Mr. Havaris testified that he has sent the mother approximately CAD$25,000 since September 2020. He also paid for the cost of five flights to Canada – for the mother, the child, the maternal grandparent, and the mother's brother.

Allegations of Verbal Abuse

[68] After becoming pregnant with the child in 2015, the mother deposed that the father continued to abuse her, claiming he would “destroy” her.

[69] The mother further deposed that the father has threatened to kill her, himself, and the child.

[70] The mother reported to the OCL that the father would get mad, yell at her, and call her names such as “mother fucker”, “stupid”, and “dumb”.

[71] The father disputes and denies all allegations that he was verbally abusive towards the mother. He conceded that they argued, as all couples do, but not at the level described by the mother.

[72] The child disclosed to the OCL that when his father got mad at his mother, he would use bad words. He did not describe the words. When asked if this happened a lot, the child responded “yes, but not always” and stated that it made him feel sad and scared every time it happened.

[73] Two of the father’s neighbours testified that they never heard or observed any arguments, yelling, or fighting. The paternal grandparents, who live next door to the apartment where the parties resided in Mexico, also support the father’s position.

[74] The paternal grandmother testified that the parties had a loving relationship towards one another, and one of respect. She conceded that sometimes they did not agree. She denied seeing the father ever shout at the applicant or the child.

[75] The mother’s sister, Sandra, provided evidence of her time in the parties’ home. She lived with the parties for six months in 2018, when she was 16 years old.

[76] Sandra deposed she heard the father threaten to kill her sister many times.

[77] The mother’s other siblings deposed of incidents and occurrences that they were made aware of by the mother herself.

[78] It is not surprising that each party’s respective family members and witnesses would support their positions.

Allegations of Physical Abuse

[79] In her affidavit, the mother describes the many alleged incidents of physical abuse; each of these incidents are examined below.

2014

[80] Prior to the birth of the subject child, the parties suffered a miscarriage. In early 2014, the mother deposed that the father slapped her and pushed her head against a breakfast counter in the kitchen. The next morning, she deposed she woke up with blood in her pyjamas. She attended the hospital and was informed that the child was dead. She blames the miscarriage on the alleged abuse by the father.

[81] The father described the miscarriage to be one of the toughest moments in his life, that is until the mother left with the child for Canada. He claimed the miscarriage was no one’s fault and denies that it was the result of any violence from him.

[82] He claimed that after the miscarriage, his father gifted the parties a trip to Acapulco. His affidavit contains a photograph of the parties on the beach, in which he claims the mother shows no bruises.

[83] No objective evidence was tendered to correlate the loss of a child to the alleged incident that occurred the day before the miscarriage.

[84] The mother deposed that during a confrontation in September 2014, the father struck her with his fists, grabbed her aggressively, and caused a cluster of bruises on her arm. Attached to her affidavit is a photograph she took of her left upper arm.

[85] It is the father's evidence that in a dispute about going to the movies with a friend, the mother started hitting him and scratching him. He deposed that he put his arm up to shield himself and he did not hit her.

[86] The mother deposed that the father pushed her into a wall, causing a bruise on her shoulder in October 2014. She attached a photograph of her back. Though she deposed she took the photograph, it is impossible to accept this given it was taken from behind her and her arms are by her side.

[87] The father deposed that he took the photograph. He described that the parties were on vacation in Cancun with the paternal family. It is his evidence that the mother hit her shoulder on a cave-like structure above the pool and that this caused the bruise.

2015

[88] In or around February 2015, the mother deposed that the parties were in an altercation which led to the father punching her in the face, inflicting bruises on her. She claimed he choked, kicked, punched, slapped, and pushed her, causing bruises and contusions. Her affidavit attaches the photograph that she took of the parties while in bed together, which shows a bruise under her right eye. She admits that she does not recall the exact altercation that led to the alleged punch in the eye.

[89] The father denies that the mother was ever in danger and denies giving her the bruise in the photograph.

[90] The child, a subject to the Hague application, was born in November 2015.

[91] In the days prior to his birth, the mother alleged that the father taunted her, jabbed his fingers into her back, and insulted her under his breath. She claimed that he eventually grabbed her arms, shook her, yelled at her, and forcefully pushed her against the wall. The mother deposed that her water broke almost instantly.

[92] The next day, she was examined by the paternal grandfather, a physician, who noted nothing out of the ordinary. She eventually went to see a gynecologist who confirmed that the water had broken the night before. She claimed that this assault caused her water to break and prompted the premature birth of the child.

[93] The father denies this allegation He admits that he was “kind of mad” but maintained that he never hit her. He acknowledged a disagreement and further acknowledged that he “lacked maturity” in the situation.

[94] There is no objective evidence showing a correlation between the premature birth of the child to any abuse.

2016

[95] The mother deposed that the father pushed her into a chair causing the chair to break in February/March 2016. She claimed that she was holding the child in her arms at the time, the father forcibly took the child, and threatened to throw him out of the fourth-floor window.

[96] The father deposed that he did not threaten the child or the mother.

[97] In or around May or June 2016, the mother deposed that the father grabbed her arm, squeezed it hard, and forced her down to her knees. This all is alleged to have occurred in an argument that followed the father arriving home late. According to the mother, the paternal grandparents arrived after their altercation and examined the mother. They did not reprimand the father. She claimed that this incident was followed by an incident of sexual abuse as the father claimed that she would feel better after they make love.

[98] The father denied this incident ever occurred. He claimed that, at this time, he left for work at 8:00 a.m. and did not return until 6:00 or 7:00 pm. every day, only having one day off.

[99] The mother alleged that the paternal grandparents, both doctors, provided her with assistance and advice. She claimed the paternal grandfather, on more than one occasion would prescribe her medication, specifically anti-inflammatories, to aid with the injuries sustained at the hands of the father.

[100] She also claimed that the paternal grandmother advised her on how to avoid future altercations, suggesting that she not rebel against or contradict the father. The paternal grandparents both denied these allegations.

[101] In or around July 2016, the mother deposed that the father hit her hard with a closed fist on the back after he broke down a door to get to the mother. The mother alleged she was in the fetal position holding the child when this occurred. At this time, the mother alleged that the father threatened that he would hit her where it hurts most, by which she believed he was referring to the child.

[102] The father denied this occurred, deposing that he never hurt or would hurt the child. He deposed that either his neighbours or his parents, who live next door, would have heard if he had broken a door, and claimed that police would have been at his door.

2018

[103] The mother’s sister, Sandra, came to live with the parties in or around April 2018. Sandra was sixteen years old at the time. The mother claims Sandra witnessed an assault in October 2018, which she deposed was the result of a misunderstanding.

[104] The mother deposed that she told the father that he “chose his nephew over her”. She claimed the father heard her say that he “has sex with his nephew”. As a result of this alleged misunderstanding, the mother deposed that the father hit and choked her until she was unconscious. She claimed that her sister tried but could not stop the abuse and that the child was present during this incident.

[105] The mother deposed that the paternal grandparents arrived after this incident and prescribed her medication for her injuries.

[106] The mother went to work two days later in fear that she would lose her job.

[107] The mother deposed that she took photographs of her injuries, but she succumbed to the manipulative tactics and pleas of the father and deleted the photos on promises that he would not hit her again and that he would change.

[108] Sandra deposed she witnessed the father suffocate the mother and saw blood streaming out of one eye. She further deposed that her sister fell unconscious and the father continued to kick her. She claimed that she ran to the paternal grandfather’s apartment who arrived, examined the mother, and prescribed some medication. The paternal grandfather sent the nephew out to go buy this medication.

[109] Another sister, Elvia, deposes that the mother confided in her about this incident.

[110] The mother’s co-worker and friend, Julia, deposed that the mother told her about this October 2018 incident.

[111] The father described this incident entirely differently. He claimed that there was no fight between him and the mother. Instead, he claimed that he was watching an NFL game with his nephew. He claimed the mother returned from work, slept, and then left the apartment again.

[112] He claimed that when she returned, she had bruises on her face, and she told him that she had been robbed in the street. He conceded that none of her personal belongings were taken in the robbery.

[113] The father's nephew supported his claims. He deposed that he was watching an NFL game with his uncle when the mother came back to the apartment, covering her face with a bruise under her left eye. He claimed the mother told them she was robbed, and someone hit her in the street. He confirmed that the paternal grandfather arrived and that he, the nephew, was sent out to get medicine.

[114] The paternal grandfather’s evidence supports the father’s position on this issue, and he deposed that the mother told him that she was robbed and assaulted in the street. However, on cross-examination, the paternal grandfather’s recollection of events was less than forthcoming, suggesting that his advanced age may result in memory issues. His memory was selective, as he was able to recall the fact that the mother returned to work two days after this incident.

[115] After this incident, the mother sought the assistance of Integral Family Development (“DIF”) at the behest of a friend. She described this to be a government institution created by the Mexican government to help families with domestic issues.

[116] The mother deposes that the DIF minimized her abuse, suggesting it was not serious enough to make a report on her behalf, and encouraged her to speak to the police department near her apartment. The mother conceded she did not go to the police. She was fearful about the potential fallout if her complaints to the police were made known to the father and his family.

[117] The mother’s friend, Alma, who accompanied her to DIF, deposed that the bruises were too distressing to ignore. She described the mother's face to be severely bruised. She felt compelled to intervene urging her to go to DIF, an agency that had helped her escaped domestic violence.

2019

[118] It is the mother's evidence, that the father yelled at her and punched her hard on her left thigh with a closed fist in July 2019. She claimed this was punishment for making him wait outside of her workplace. Attached to her affidavit is a copy of a photograph she took of her bruised left thigh.

[119] The mother’s sister, Isidra deposed she noticed a large bruise on the mother's leg when she visited to attend their brother’s graduation ceremony. Isidra deposed the mother revealed to her that the father had inflicted it.

[120] The mother’s brother, Fidel, deposed that he saw a bruise on the mother’s leg in 2019.

[121] The father deposed that he did not recall how the mother got the bruise but that it was not from him. He maintained that he is not the “monster” the mother claims him to be. He deposed that he fully supported her visiting her family, despite the mother's claims to the contrary, and was happy when she went to see her family for her brother’s graduation.

2020

[122] The mother described an incident that occurred in April 2020 when the father hit her in an argument about her money and her ability to pay for all expenses.

[123] The father did not deny this occurred and focused his response of the difficulties the COVID-19 pandemic had on his entire family, including those in the healthcare field: his parents, brother, and the mother.

2021

[124] In August 2021, the mother deposed that the father beat her after she refused his request for anal sex. She deposed that the father punched her jaw and threw her into an armchair causing the chair to break. She claimed the paternal grandparents witnessed her injuries as they celebrated the father’s birthday the day after. The mother attached to her affidavit photographs of the bruises on her face following this alleged incident.

[125] The father claimed that the maxillofacial surgery the mother underwent in June 2021 was an aggressive cosmetic procedure which led to a lot of bruising. He claimed the picture attached to the mother's affidavit depicts bruises as the result of the surgery. He denied abusing the mother as described by her.

[126] The mother maintained that her maxillofacial surgery took place on June 16, 2021. She claimed that the screws were removed at the beginning of July and that this procedure took less than 20 minutes. She testified that the screws were placed in the front of her mouth and maintained the pictures of bruising around her mouth are the result of the father's abuse.

[127] The maternal grandmother deposed that the maxillofacial surgery, laser skin treatment, and treatment and monitoring for her braces caused bruising around the mother’s mouth.

[128] In or around September 2021, the mother deposed that the father became irate after she received a package from a friend living in another country. This incident occurred in the presence of the child.

[129] The mother claimed he proceeded to call her a “whore” and pulled her head back by her hair. He opened the front door and forced her out the door. She claimed she was not fully dressed at the time, wearing only her underwear. The mother deposed the child was crying during this incident. As she was being kicked out of the apartment, the father’s nephew and the paternal grandmother came out of their apartment.

[130] The mother deposed that the paternal grandmother took the mother into her apartment and got her a blanket to cover herself, and then went to speak with her son. This incident was said to occur because of the father accusing the mother of infidelity.

[131] The mother’s co-worker, Silvia, corroborated the mother’s position. She deposed that the mother called her at 8:00 p.m. one evening, tearfully telling her that the father had thrown her out of the apartment earlier that day wearing only her underwear on the lower part of her body. She claimed the mother told her the child was crying and the neighbours saw her but did not help. She further alleged that the father's mother came out of the neighbouring apartment and helped her by letting her into her unit.

[132] It is the father’s evidence that this incident occurred in January 2022. He deposed that he was disappointed because he perceived the mother was lying to him about who the package was from.

[133] The father claimed that this incident took place early in the afternoon, that the mother was properly dressed, and that he asked her to leave as he needed time to think. He admitted to putting her in the hall.

[134] The father testified that he was unsure if the child saw him put her in the hall. He recalled a struggle but claimed there was no violence. He maintained that he needed time and attempted to diffuse the situation.

[135] The paternal grandmother did not recall this incident.

[136] The child reported to the OCL that on one occasion, his dad “almost kicked mom out of the house”. The child proceeded to describe the father to be using a lot of “bad words” and said that “dad put mom out of the door”.

2022

[137] In or around November 2022, the parties had a dispute about finding a dermatologist to treat warts on the child’s fingers. The mother alleged that the father slapped her near her eye.

[138] The father denied hitting the mother.

[139] The incidents of alleged domestic violence must be considered in their totality to determine if the Article 13(b) exception should apply.

[140] The nature of domestic violence evidence required to prove this exception was found to generally involve clear evidence, including some or all of the following circumstances: photographs of injuries, third-party evidence, police evidence of violence, medical evidence of injuries, the granting of, and in some cases breaching of, civil protection orders or probation orders, criminal charges or convictions for abusive conduct, inability of the efforts of police or authorities to restrain the abuser's behaviour, the abuser’s disregard for court orders, abuse of the children: see Mbuyi v. Ngalula, 2018 MBQB 176, at para. 65.

[141] The mother was not financially abused. I accept that she had access to and control of her finances, so much so that she was able to hide the $25,000 received from her current husband from the father. Her choice of spending, in my view, speaks to her priorities.

[142] It is harder to make findings in relation to the other allegations of abuse. Many of the mother’s allegations are vague and are countered by blanket denials. For example, the mother's allegations of sexual and verbal abuse consisted of general allegations and lack specificity. The father denied the allegations or offered alternate explanations. Each party relied on the evidence of third parties to support their respective positions.

[143] Similarly, while the extensive examples of physical abuse outlined above include photographs, the father alleged that many of the mother’s pictures are self-inflicted from accidents, or faked. There is a notable absence of corroborating evidence from a witness at arm’s length to the parties.

[144] There is no objective evidence to show a correlation between any alleged abuse and the miscarriage or premature birth.

[145] The existence of third-party evidence confirming they noticed bruising on the mother does not lead to a conclusion that it was the result of the father's actions. Equally, the father’s denials do not lead to a conclusion that the incident did not occur as alleged by the mother.

[146] In relation to the October 2018 incident, the evidence of the mother, her two sisters, and two coworkers lead me to conclude that it is more likely than not the incident occurred as described by her. Even though the father's position is supported by the paternal grandfather and his nephew, the circumstances he described which led to the injury are illogical.

[147] In relation to the incident that resulted in the mother standing outside the party's apartment, some force was used to remove her from the apartment, the extent of which is in dispute. Also in dispute is her attire at the time. If the 2021 incidents as described by the mother are accepted, this Court expresses serious concerns.

[148] The father relies heavily on the absence of police reports, hospital records, and/or legal documentation in support of his claims that he did not physically abuse the mother.

[149] The mother deposed that she received a referral for a lawyer in Mexico through an Uber driver.

[150] In May 2022, the mother deposed that she met with a lawyer and paid him approximately $760. She claims that this was for filing paperwork for custody in Mexico.

[151] However, on cross-examination, the mother admitted that the lawyer had only prepared a travel consent, and that she did not follow up with this lawyer to ask about the status of her claim until a year after, and after she was served with the Hague application.

[152] This Court must have a deeply understanding of the complex social dynamics around family violence. It is faced with the responsibility of cautiously weighing traditional credibility indicators with the reality that some allegations may be fabricated or exaggerated.

[153] In the context of the mother’s high onus required under Article 13(b), there is a notable absence of police and medical records and there is no evidence to show the mother took steps to address the issues she claims to have faced with child protection services or the courts in Mexico.

[154] If the mother’s evidence is to be believed it its entirety, this Court would find that there are serious problems with the parties’ relationship. There was mistrust, arguments, disagreements, and physical interactions. These incidents, and in particular the October 2018 incident, could be characterized as family violence as defined in provincial and federal legislation.

[155] However, evidence fails to meet the high evidentiary onus required by Article 13(b).

[156] The incidents described above do not match the situation described by the Court in Pollastro. This case outlines circumstances considered by Abella J.A. (as she then was) when declining to order the return of the mother and child to the contracting state: escalating physical violence, medically documented evidence of injuries, threats, and menacing phone calls by the father to members of the mother’s family, third-party confirmation harassment, and changes in the child's presentation.

[157] In this case, the evidence does not support that there is a pattern of escalating physical violence or that the nature and extent of the violence is comparable to what the courts have seen in cases were there was a refusal to return: see for example: Achakzad v Zemaryali, 2010 ONCJ 318, which not only involved an escalating pattern of physical abuse but some involving a father pointing a loaded shotgun at the mother.

[158] The court in Friedrich v. Friedrich (1996), 78 F. 3d 1060, a U.S. case of the Sixth Circuit Appeal Court, in relying on the Supreme Court of Canada in Thomson, stated:

A grave risk of harm for the purposes of the Convention can exist only in two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute --e.g. return the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

[159] If all the evidence of the mother is accepted, she still failed to demonstrate that the child is in imminent danger prior to the resolution of the custody dispute.

[160] The mother submitted that the danger presented by the domestic violence is so high that the presumption that the requesting state will be able to provide such protection does not apply. I disagree.

[161] The mother has not established on a balance of probabilities that the Mexican court, child protection organizations, and/or social service organizations are incapable or unwilling to protect the child from the risks she described.

[162] As discussed in more detail below, the mother led no evidence in support of her submissions, or to suggest that Mexico is incapable or unwilling to give the child adequate protection.

[163] Further, based on all the evidence before me, the answer to the three questions set out in Hassan is “no”.

[164] Without diminishing the subjective nature of the mother’s experiences, the record does not support that all incidents described have been severe, likely to reoccur, or life-threatening.

[165] I need not address the allegation of financial abuse for this part of the analysis given my earlier finding that the mother was not financially abused by the father.

[166] The mother’s description of the verbal and sexual abuse is broad and general in nature. It cannot be found to be severe or life-threatening.

[167] Most of the incidents of the physical abuse do not lead to a finding that these incidents are severe or life-threatening, save and except for the October 2018 incident.

[168] If this incident occurred as described by the mother and her sister Sandra, I would consider it to be severe. The presence of blood and falling unconscious, if true, denotes a level of gravity and harshness separating this incident from the others described.

[169] The evidence does not support that an incident of equal gravity or severity occurred in the years to follow. I do not find that this incident was life-threatening. The mother concedes she went to work two days after the incident. The DIF did not find her injuries to be serious enough to warrant making a report.

[170] The evidence does not support that the incidents of violence are likely to reoccur.

[171] Despite the dispute about when the parties actually separated, there is no dispute that the mother has re-partnered and is living in another country.

[172] The mother submitted that she will not return to Mexico. If this Court orders the return of the child, the mother submits she would remain in Canada due to a fear for her personal safety, and because she was advised by her immigration lawyer that her return would compromise her Canadian immigration status.

[173] I also find the father is amenable to control by the justice system given the undertakings he has indicated he is prepared to comply with.

[174] He informed the Court that he is prepared to submit to undertakings, if a return was ordered, including one that requires him to keep his physical distance from the mother and the child, on appropriate terms and conditions, subject to his parenting time.

[175] He is also prepared to have his parenting time supervised and is prepared to pay a temporary monthly payment to ensure the mother can secure independent housing if she returns to Mexico.

[176] The potential for exposure of continued risk of the alleged abuse re-occurring does not exists in these circumstances.

[177] In summary, even if the mother’s evidence about the abuse she suffered is to be believed, she has failed to meet the high evidentiary onus required by Article 13(b) of the Hague Convention.

Allegations of the father’s abuse on the child

[178] Article 13(b) does not require the court to make a finding of wrongdoing against the parent requesting the return of the child.

[179] Article 13(b) only requires that the grave risk anticipated will expose the child to harm of a physical or psychological nature, or otherwise place the child in an intolerable situation.

[180] The mother deposed that the paternal grandmother told her that she had witnessed the father beating and scolding the child very hard while the mother was at work. The mother alleged that the paternal grandmother cautioned the father about his behaviour and reassured her that she would keep a close eye on the child while she worked.

[181] The paternal grandmother denied this. She admitted to generally offering relationship advice and offering her apartment as a safe place for the parties to get some space from one other.

[182] The paternal grandfather testified that the father never shouts, hits, spanks, or calls the child names. He testified that to discipline the child, he explains things to him clearly and explains what the child's fault was. This is consistent with the way others and the father himself describe his discipline techniques.

[183] The mother alleged that in 2020, the father put the child under a crib as a form of discipline. She described the crib as adjacent to the bed. She described a very small gap of space under the crib/bed.

[184] The child reported to the OCL that on one occasion his father put him under the bed and that he felt trapped. He felt that he could not get out because his dad was blocking him. He reported that the father pushed him under the bed twice and then let him out. He was not sure why his father did this but thought it might be because he did not want to sleep. The child claimed this occurred in 2022 when the mother was at work.

[185] The father deposed that there was furniture under the child's crib He offered no alternate description of events. He denied ever abusing or hitting the child. He deposed that whenever the child needed to be disciplined, he would tell him to stay in the corner for a while and stay still.

[186] According to the mother, the father:

• Berated, poked, and yelled at the child, calling him “dumb”, a “fool”, “good for nothing”, and that he had “shit” in his head.
• Picked the child up from the back of his collar.
• Was neglectful of the child, leaving him unattended for long periods of time while the father played video games.
• Pinched the child’s cheek very hard when the child was fussy about food.

[187] Sandra, the mother’s sister, supported the mother’s allegations.

[188] The father denied the allegations, offering a different version of events. His family members supported his position in their evidence.

[189] The child did not report the incidents above to the OCL.

[190] In June 2022, the mother described an incident where the father, after the child vomited, put him in a hot shower causing the child to scream from the pain when the hot water touched his arm. The mother alleged the child’s arm was red after this incident.

[191] The father denied burning his child in hot water. He describes the incident differently, suggesting that he was disciplining the child who was attempting to vomit intentionally. The child did not report this incident to the OCL.

[192] The mother also claimed that the father engaged in behaviour tantamount to child sexual abuse. Specifically, she deposed that the father would watch pornography on his phone or computer while she and the child slept in the same bed. The father denied this. The child did not report an incident of this nature to the OCL.

[193] Other than the “trapped” under the bed incident, the only report of the physical discipline described by the child was that the father would “hit him on the head”, indicating that sometimes it was hard and other times it was not. He indicated tapping on top of his head when describing this and reported that it happened almost every day.

[194] The child reported several positive experiences with the father, which included going to restaurants, the beach, and the park.

[195] The child reported that he was in trouble a lot more with dad than with mom. This is consistent with the evidence borne out at the hearing, which supports that the father was more of a disciplinarian as compared to the mother.

[196] The OCL and mother request that this Court take a child-centered and individualized approach in determining if grave risk has been established.

[197] I agree that when determining whether the Article 13(b) exception applies, there must be reference to the interests and circumstances of the particular child.

[198] In this case, the child had no idea he was moving to Canada, or that the mother was getting married to a man he had not met, three days after his arrival to this country.

[199] There is no dispute that the father played an active, if not primary role, in the care of the child.

[200] The mother does not dispute that the father cared for the child when she worked and that he was involved with taking him to school, helping him with homework, making his meals, and facilitating his Bible studies.

[201] Despite her allegations that the father has anger issues and is violent, she left the child in the father’s care for one week in May 2022 when she was visiting her current spouse. Further, she left the child in the care of the father for 37 days in September/October 2022 when she travelled to Canada to spend time with her current spouse.

[202] After coming to Canada, the mother offered the father the opportunity to visit the child in Canada. She also suggested that the child could visit Mexico.

[203] This offer is borne out in evidence through text messages between the parties. Though the mother tried to maintain no temporal commitment in cross-examination, her text message to the father, if accepted at its face value, is clear. In it, she stated: “already told you can come visit [the child]. later on [the child] can visit Mexico. In summer.”

[204] The mother's actions prior to leaving Mexico, and upon her arrival to, do not support the conclusion that there is a grave risk that the child's return to Mexico would expose him to physical or psychological harm, or otherwise place him in an intolerable situation.

[205] The mother and the OCL request that this Court consider the mother's precarious residency status and the potential that the child's separation from the mother may result in risk of harm. It was submitted that given the mother's visitor status in Canada and her current application for permanent residency, she cannot realistically be expected to return to Mexico, creating a risk that the child will be separated from her.

[206] While a party’s precarious residency status has been recognized by some courts, that recognition was made on the backdrop of the parent being the primary caregiver of the children since birth and the potential for them to lose their primary caregiver status: see M.A.A. v. D.E.M.E., 2020 ONCA 486, a non-Hague case.

[207] The mother has self-created her primary caregiver status after she decided to leave Mexico and come to Canada. As outlined above, prior to coming to Canada, the father was actively involved in the care of the child. I cannot reasonably conclude that the mother was the primary caregiver for the child. The risk of being separated from the child stems from the mother’s actions and her decisions and does not create risk of harm.

[208] This Court does not condone the father’s actions, if he did what the child and mother allege. However, will the grave risk anticipated expose the child to harm of a physical or psychological nature or place him in an intolerable situation? The evidence does not support same.

[209] The mother attempted to portray the father and his family as one of great wealth and influence. She claimed that she was afraid to go to the police station near their apartment for fear that the family would learn of her plans. However, she was unable to demonstrate that the father’s family would be able to use their influence, had previously used such influence, or had any intentions to do so.

[210] The mother has not offered any evidence to support that she explored, let alone exhausted, avenues of police protection or protection through the court system in relation to the alleged abuse against the child and herself.

[211] The mother admitted in cross-examination that the father’s brother and his ex-sister-in-law had gone through the Mexican court system to pursue custody and support. The mother’s co-worker, with whom she visited DIF in October 2018, also testified she received support for domestic violence and sought relief through the courts. This suggests that the systems in place in Mexico, if pursued, could have help the mother.

[212] There is no evidence to support that there has been non-compliance with conditions or orders in this case. There is no evidence to support that the father is unwilling to comply with court orders. Such evidence would lean in favour of the mother's argument that there is a likelihood of a finding of grave risk.

[213] This Court does not discount the evidence of the child about being “trapped under the bed”, the father's hitting or tapping on his head, or the incident when the father “almost kicked [the mother] out of the house” when “[the father] put [the mother] out of the door”.

[214] However, this evidence does not support a finding that the child experienced or observed severe, significant, or prolonged forms of physical punishment or corporal punishment as experienced by those children in cases where a return was not ordered. See: MAA, wherein the children remained in Canada, the children disclosed being hit with a belt that had a buckle, threatened with a belt and a hot iron, describe the violence to be like a nightmare, witnessed the father grab the mother’s mouth and blood come out, and the father locking the door so the mother could not leave.

[215] This Court must be keenly aware that the Hague Convention stands for the proposition that wrongfully removing children can seriously disrupt relationships with parents, and that the courts in the country of habitual residence are generally best placed to deal with the issue of where and with whom the child should live.

[216] The purpose of the Hague Convention is to deter self-help attempts and discourage the abduction of children except in limited circumstances. For the reasons outlined above, this is not one of those circumstances.

[217] The mother’s evidence falls short of establishing that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

Issue #2: Article 13(2) – Child’s Resistance to Return

Legal Considerations

[218] Article 13(2) of the Hague Convention provides that a court may refuse to order the return of children “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”.

[219] As stated in Ludwig, at para. 39:

Even if the party opposing return can prove both of these elements, the court is not required to refuse to order the child’s return. Instead, the court has a discretion to do so. In Balev, at para. 81, the Supreme Court stated that the court should consider the following factors adopted from the House of Lords’ decision In re M (Abduction: Rights of Custody), [2007] UKHL 55, [2008] 1 A.C. 1288, at para. 46, when deciding whether to exercise its discretion:

1. The nature and strength of the child’s objections;

2. The extent to which the objections are authentically the child’s own or the product of the influence of the abducting parent;

3. The extent to which the objections coincide or are at odds with other considerations relevant to the child’s welfare; and,

4. General Hague Convention considerations.

[220] As stated in Balev, at para. 76, Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to her country of habitual residence, “and it should not be read so broadly that it erodes the general rule”.

[221] In M.L.E. v. J.C.E. (No. 2), 2005 ONCJ 89, the court dealt with a Hague application for the return of children aged seven and ten years old. For courts considering a child’s maturity, Glenn J. set out the following "earmarks of maturity" at para. 12:

1. whether this child had made good decisions of a substantial nature for herself in other situations;

2. whether she had the ability and opportunity to, and in fact had reasonably weighed the more important competing benefits and disadvantages in reaching her decision;

3. whether her decision was reached with a reasonable measure of independence;

4. whether her fears relating to returning to the home state appear reasonable, in the circumstances…

[222] These earmarks of maturity were applied by the Alberta Court of Appeal in S.(J.) v. M.(R.), 2013 ABCA 441, at para. 25.

[223] Discretion to refuse to return the child must be exercised in the context of the Hague Convention and not in the context of a custody dispute. It is only in exceptional circumstances that the court should refuse to order the immediate return of a child who has been wrongfully retained: see Vieira v. Dos Santos Trillo, 2016 ONSC 8050, at para. 81.

Evidence and Analysis

[224] The child turned seven years old the month before being brought to Canada.

[225] He is now seven and a half years old and has been in his mother’s primary care for six months. The OCL describes him as polite, articulate, and notes that he uses age-appropriate language and demonstrates some thoughtfulness in answering questions.

[226] For the last six months, the child's contact with his father has been limited. The parties dispute why such contact has been limited; however, there is no dispute that the father has not had any in-person contact with the child to the extent his parenting time is virtual and inconsistent.

[227] The father submitted that the mother had ample opportunity to negatively influence the child against a return to Mexico since December 2022 and that the child’s young age and level of maturity should result in little to no weight being placed on his objection to the return.

[228] When the OCL first met with the child, he was asked what he understood their role to be. He answered with a question, “because my dad hits me?” The clinician testified that this suggests he had some information of the purpose of the interview ahead of time.

[229] The mother, her husband, and/or his extended family are the only source of information, and this information likely influenced the child.

[230] The child was consistent about his recounting of two events: the day the father “almost kicked [the mother] out of the house”, and the incident where he felt trapped under the bed. He mentioned these two incidents at each of the three interviews held.

[231] The clinician testified that the significance of a child repeating an incident at each interview speaks to the impact it had on him. I accept this explanation.

[232] In my view, the consistency of the child's statements ends there.

[233] The child’s other comments expressed to the OCL reflect general and inconsistent statements, for example:

• The child reported, “one time [the father] grabbed me a few times”;
• The child disclosed that when his father got mad at his mother, he would use bad words. When asked if this happened a lot, the child responded “yes, but not always”;
• The child reported that “100 things happened in Mexico”.

[234] The statements above also reflect the child’s lack of maturity.

[235] Relevant to the issue of seeing the father, the following inconsistent evidence was presented.

[236] When first asked, the child did not know how he felt about his father wanting to see him, but later reported that he would “feel good” about having some time with the father, then later indicated that he would not like to see his father. At another time, the child reported that it would “make [him] happy” to see the father and his paternal grandparents in Mexico, with the paternal grandparents being present as they “protect him too”. The child also reported that he would be happy if the father and/or the paternal grandparents came to see him in London.

[237] At one time, the child reported that he did not feel that he would see his father again “because I don’t know if he’ll be alive in 2050”.

[238] On occasion, when asked how he would feel if he had to see his father, the child responded that he would feel bad because of the internet, suggesting he would not be able to watch videos as there was no internet.

[239] The inconsistent nature of the child's views about seeing his father does not support a finding that his views are strong or unequivocal.

[240] The child reported to the OCL that he really wants to stay in Canada because of the house he lives in, because of his friends, and his brother. He also stated that he would like to stay at the house in London as it is cleaner, his mom cooks in London, and he got to buy his favourite video game stating that in Canada they have a lot of money.

[241] The clinician admitted that the child’s financial circumstance may be associated with his views.

[242] Although the child did report that he felt sad and scared every time his father got mad at his mother and used bad words, he did not report that he is fearful for his safety in Mexico, or that he wants to stay in Canada because of fear for his safety.

[243] The child reported two incidents of physical discipline: 1) when he was trapped under the bed, wherein his timelines are inconsistent with the mother’s; and 2) when the father would hit or tap him on the head. He did not link these incidents to an objection to being returned to Mexico.

[244] The child reported to the OCL that he would “feel bad” if he went back to Mexico for three reasons:

1. His mother wanted to be in Canada;
2. There is more internet in Canada; and
3. He did not want “bad things to happen”; describing “a lot of bad” in 2019, referring to his illness and COVID-19.

[245] The child did not comment on what those “bad things” were or could be. There is no evidence of a strong objection to returning to Mexico.

[246] The father submitted that the drafters of the Hague Convention intended Article 13(2) to apply to teenagers who may be objecting to return.

[247] The mother relies on an Ontario Court of Justice case, wherein the opinions of an eight-year-old child were accepted by the court as it was found that the child was bright, articulate, and able to express her views and preferences to the OCL: see Borisovs v Kubiles, 2013 ONCJ 85, at paras. 50-51.

[248] I do not find the seven-and-a-half-year-old child in this case has reached a degree of maturity to place much weight on the views expressed to the OCL.

[249] The OCL testified that the child’s level of maturity was well within normal for his age. I would agree. His ambiguous reference to “100 things” and the year 2050 speaks to his level of maturity. These comments, in my view, are not uncommon for a seven-year-old who cannot understand the complexity of life or his situation.

[250] In applying the earmarks of maturity referred to above, I find as follows.

[251] There is no evidence that this child has made good decisions of a substantial nature for himself in other situations.

[252] There is no evidence to demonstrate that the child has reasonably weighed the competing benefits and disadvantages when commenting about a return to Mexico.

[253] I have doubts about the independence of the child’s views given his opening comments to the OCL at their first meeting.

[254] The child has not expressed any fears about returning to Mexico. He states he would feel bad because the mother wants to stay in Canada, and he did not want bad things to happen.

[255] The child in this case is not mature enough to understand the intricacies of his situation.

[256] This child’s objections are not linked to his fear or his exposure to domestic violence but rather to keeping his mother happy, his newfound stepfamily, friends, his new home, school, and plentiful internet access.

[257] The child’s preference to live with one parent over the other is best dealt with by the courts in Mexico, where the child was habitually resident.

Issue #3: Undertakings

[258] After hearing the evidence of the father and his witnesses, the mother expressed heightened concerns for her personal safety. In addition, she has been advised by her immigration lawyer that her return to Mexico will compromise her Canadian immigration status. This position is different from what was originally pled. Her position advanced during closing submissions on undertakings are as follows:

a) An Order requiring that the return of the child shall not take effect until an Order is taken out in a Mexico City Court incorporating the orders as set out in (b)–(e) below. b) The child shall not be returned to Mexico until June 30, 2023, the day after his school term ends. c) The child’s maternal grandmother, Hipolita Cruz Diaz, maternal grandfather, Pedro Reyna Teran, and/ or the child’s maternal uncle, Fidel Reyna Cruz, shall come to Canada and accompany the child on his return flight to Mexico. d) The child resides with his maternal grandparents, Hipolita Cruz Diaz and Pedro Reyna Teran, until the appropriate court in Mexico determines otherwise. e) Until the appropriate court in Mexico determines otherwise, the father is to attend the maternal grandparents’ residence for supervised parenting time. f) The return of the child to Mexico shall not prejudice the mother’s ability to bring a relocation claim in a court in Mexico. g) All of the above terms will be without prejudice to the positions of either party with respect to any proceedings then brought in a court in Mexico.

[259] The father submitted that the mother has not presented sufficient evidence to suggest that the maternal grandparents would be appropriate interim caregivers to the child. I agree.

[260] The father did not suggest that he could or would come to Canada to retrieve the child. The mother’s proposed undertaking that third parties assist with the return of the child is appropriate as long as there is evidence to support that the child is comfortable with the individual.

[261] The maternal grandparents and the paternal uncle accompanied the mother and the child to Canada. The maternal grandparents returned to Mexico after 10 days, and the mother's brother stayed for an additional 11 days. The maternal uncle cared for the child when in Canada and while the mother was in hospital. On the record before me, he spent more time with the child than the maternal grandparents.

[262] The paternal grandparents travelled to Canada with the child and the father in 2019.

[263] The maternal grandparents did not file affidavit evidence. They live eight hours away from the father, the paternal grandparents, and the child’s school.

[264] The OCL did not discuss the maternal extended family with the child. The child’s views about being placed with these relatives were not canvassed.

[265] The paternal grandparents have played an active role in the child's life since birth and they are familiar with his schedule, activities, friends, and his life in general in Mexico. The child views them as protectors and expressed to the OCL that he would be very happy to visit with his Mexican grandparents, rating it a “12 out of 10”.

[266] If the mother does not return to Mexico, I find that the child would be adequately protected in the care of the paternal grandparent, until such time as a Mexican court orders otherwise. In fact, they are the only caregivers involved with the child on a constant basis, other than the parties.

[267] The maternal uncle, Fidel Reyna Cruz, has travelled with the child before, albeit with the mother. He would be a suitable travel companion if the paternal grandparents cannot accompany the child home.

[268] The applicant father is willing to submit to the following undertakings, on a without-prejudice basis, until a court in Mexico can assist with a long-term plan:

1. Paying for the return flights for the mother and child.
2. Paying a temporary monthly payment to ensure the mother can secure independent housing, if she does not wish to return to the home they shared together.
3. The child would reside in the mother’s primary care in Mexico City, if she returns with the child.
4. If the mother does not return with the child, that the child would reside with the father and/or paternal grandparents.
5. The father would keep a physical distance from the mother and child, on appropriate terms and conditions, subject to his parenting time.
6. If deemed appropriate by this court, that the father’s parenting time with the child would be in the presence of one of his parents and/or his brother.
7. Neither of the parties would remove the child from Mexico City until further court order.

[269] Moving to the mother’s request that this court’s order that the return of the child not take effect until an order is taken out in a Mexico City court on the term requested.

[270] The father does not dispute the request for a “mirror order” but does dispute the terms of the proposed order.

[271] I requested that the parties provide me with any authority they had in support of this court's jurisdiction to make a mirror order in a Hague Convention application.

[272] I was referred to the case of Czub v. Czub, 2012 ONCJ 566, wherein at para. 45 the court ordered the father to give the following undertakings to the court, to obtain and forward to Mother’s counsel a safe harbour order from the German court in the same terms:

• [The child] shall remain in Mother’s care and Father shall have reasonable access to the child until further order of the German court.

• Father shall pay for airfare for Mother and [the child], and, if Mother wishes… to travel to Germany.

• Father shall pay interim child and spousal support to Mother for a period of 3 months in an amount of 2,000 Euros monthly.

[273] Despite the orders made in the case above, I am not satisfied that it is appropriate for this court to order that the return of the child be contingent on the parties first obtaining a mirror order in Mexico City for the following reasons.

[274] It is entirely possible that the court in Mexico City would refuse to automatically grant orders that reflect the terms of an undertaking imposed by a foreign court.

[275] I would hesitate, if not outright refuse, if asked to sign an order which enforces terms set out in a foreign order when there has been no acknowledgement of the laws of Ontario, and no understanding of the legal tests to be applied to cases in Ontario. I would expect the same of my international colleagues.

[276] Requiring a mirror order be obtained in Mexico City as a condition of the return of the child has the real potential of delay and goes against the Hague Convention’s objective, which is to secure the prompt return of children wrongfully removed or retained (Article 1).

[277] Further, the court is required to take all appropriate measures and use the most expeditious procedures available to implement the objects of the Hague Convention (Article 2). Creating the potential for delay appears to fly in the face of this objective.

[278] I adopt the position taken by the court in Droit de la famille – 15751, 2015 QCCA 638, aff’g Droit de la famille – 142965, 2014 QCCS 5693.

[279] In this appeal case, the mother took the position that the children’s return should not have been permitted until the father obtained an order in Spain reflecting the undertakings.

[280] The Quebec Court of Appeal noted that neither Quebec family law legislation (nor the Hague Convention) addresses undertakings. The Court of Appeal indicated that obtaining mirror orders is not always possible and inevitably leads to delays and costs for the parent who was the victim of a wrongful removal.

[281] I must take care in not imposing extensive undertakings, keeping in mind that the purpose of undertakings in this Hague Convention case is to determine the details surrounding the child’s return to Mexico as well as some parenting issues, until the Mexican court has the opportunity to make determinations on these matters.

[282] I take guidance from Cannock v. Fleguel, 2008 ONCA 758:

[29] Once the child has been returned as ordered, it is the courts in the requesting State that take charge of the best interests of the child…

[32] Thus, despite the flexibility the Convention allows the judge making an order for return, the role of a court in an Article 13(b) case remains a limited one. Article 13(b) does not supply the court with jurisdiction to conduct the type of inquiry appropriate in a custody dispute. The court must consider only whether there should be a departure from the general rule mandating summary return of the child because the stringent test of Article 13(b) has been met, and if not, what should be the initial situation to which the child is returned. Thereafter, the best interests of the child vis a vis his or her permanent custody arrangement, are left to the courts of the requesting State. [Emphasis added.]

[283] Drafting of undertakings is an exercise of judicial discretion which can mitigate any risk of potential harm.

[284] After considering the submission of the parties, including the mother informing the Court that she would not be returning to Mexico with the child, the undertaking should include the following.

[285] The child should be given an opportunity to complete his academic school year and adjust to the reality of his return.

[286] The cost of the airfare should be borne by the father.

[287] If the paternal grandparents are unable or unwilling to assist with the return of the child, the maternal uncle, Fidel Reyna Cruz, will accompany the child back to Mexico.

[288] Once in Mexico, the child will reside with the paternal grandparents until the appropriate court in Mexico determines otherwise. Though the allegations of domestic abuse and child abuse, if accepted, do not rise to the level required to grant an exception to a return, there are sufficient concerns that require the child be protected until the court in Mexico can determine the veracity of the allegations.

[289] Accordingly, the father’s parenting time with the child shall occur in the presence of the paternal grandparents, and/or his brother, until a Mexican court orders otherwise.

Orders

[290] An order shall issue as follow:

1. The father’s application for the return of the child under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 shall be granted.
2. The child shall be returned to Mexico no later than July 1, 2023.
3. The following undertakings apply: I. The father shall be responsible for the cost of the airfare associated with the return of the child, including the cost of the third party attending to retrieve the child. II. The father will arrange for both or either of the paternal grandparents to accompany the child back to Mexico. If they are unable or unwilling to travel with the child, the father will arrange for the maternal uncle, Fidel Reyna Cruz, to accompany the child back to Mexico. III. Once in Mexico, the child will reside with the paternal grandparents until the appropriate court in Mexico determines otherwise. IV. The father’s parenting time with a child shall occur in the presence of the paternal grandparents, and or his brother, until the court in Mexico orders otherwise. V. The child’s return to Mexico shall not prejudice either party’s ability to bring any claims they wish before the court in Mexico.

[291] The Court thanks all counsel for their thorough presentation, and for assisting the Court with ensuring the prompt disposition of this case.

Costs

[292] The father is entitled to his costs of the Hague Application. If he wishes to seek his costs, he is to serve and file written costs submissions no later than July 14, 2023. The mother will then have until July 21, 2023 to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator.

“Justice Kiran Sah” The Honourable Justice Kiran Sah

Released: June 15, 2023