SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nuno Miguel Freitas Raposo, Applicant
AND:
Mariana Medeiros Raposo, Respondent
BEFORE: The Honourable Mr. Justice J.P.L. McDermot
COUNSEL: Nicole Alexandra Meringolo, for the Applicant
Darlene Rites, for the Respondent
HEARD: December 23, 2022
ruling on motion
Background
1The Applicant Father and the Respondent Mother are from Ponta Delgada on São Miguel Island in the Azores. They lived together in that city for four years, between 2016 and July 8, 2020 when they separated. They have one child, a daughter Leticia, who is four years old.
2Early this year, Ms. Raposo brought family law proceedings in the Family and Juvenile Court of Ponta Delgada, a division of the Judicial Court of the Azores. On March 3, 2022 by order of that court, the parties settled their parenting issues concerning their daughter. Ms. Raposo was awarded primary residence of the child and Mr. Raposo was granted parenting time two times during the week on Tuesdays and Thursdays as well as every second weekend from Friday at 6:00 p.m. to Sunday at 7:00 p.m. As well, the parents agreed to what would be referred to in Canada as joint decision-making: both parties were to exercise decision-making about travel abroad and medical issues as well as other matters “of particular importance for the life of the child”. Ms. Raposo retained the right to decision-making over educational issues.
3However, when that order was granted, it appears that Ms. Raposo was already planning to relocate to Canada. She had visited this country in December, 2021, leaving the child with her stepmother and her father. She brought the matter back to court on April 6, 2022, barely a month after the initial agreement, because she represented that she wanted to travel to Canada between April 14 and 27 for a wedding and a christening. She was forced to ask the court’s permission because of the father’s decision-making right over “overseas travel” and as well because Mr. Raposo was fearful that Ms. Raposo “would not return to the island of São Miguel”.1 The parties consented to an order that the Respondent could go to Canada between April 14 and 27 and the order indicated that Mr. Raposo was satisfied that the Respondent would return to Ponta Delgada at the end of that period of time. The child’s return time from Canada was later extended on consent to May 5, 2022.
4Mr. Raposo appears to have been prescient when he was fearful that Ms. Raposo would stay in Canada. She did remain in Canada and is still here now. On June 4, 2022, the court in Ponta Delgada made an order for the return of Leticia to her home in Ponta Delgada.
5The Azores fall under the jurisdiction of Portugal which is a signatory to the Hague Convention.2 The Applicant Father has brought proceedings under the Hague Convention for the return of Leticia and the Ponta Delgada court made a referral to the Portuguese Central Authority when it ordered Leticia’s return on June 4, 2022. There was some delay while Mr. Raposo attempted to obtain Portuguese speaking counsel in Simcoe County but these proceedings were finally commenced in Canada on November 10, 2022. Pursuant to an order of Justice Krause made on November 16, 2022 as amended by myself on November 23, the mother has deposited her passport and that of the child with her lawyer, Ms. Rites, on her undertaking not to release it without permission of the court. The matter was argued on December 23, 2022 and both parties filed affidavit evidence. I asked both parties whether there were credibility issues which would require cross-examination or viva voce testimony and both counsel answered in the negative. The matter was therefore argued on affidavit evidence only.
Result
6For the reasons set out below, I have ordered Leticia’s return to Ponta Delgada in the Azores pursuant to the Hague Convention.
Analysis
7The Hague Convention is intended to provide an expeditious route for the return of children who have been wrongfully abducted or retained in a signatory State. The purpose of the Convention is set out in Article 1:
Article 1
The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
8However, to have access to the remedies contained in the Convention, an applicant must qualify as a claimant according to its terms. The Respondent Mother says that the Applicant Father has failed to demonstrate compliance with the Convention and has no right of return under it. The issues raised by the Respondent in this application relate to Articles 3, 4, 5 and 13 of the Convention which read as follows:
Article 3
The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
9The Respondent Mother raises the following issues concerning compliance with the Hague Convention:
a. The Respondent Mother says that Leticia was habitually resident in the home in which she lives with her mother. She therefore says that Leticia was habitually resident in Canada when the child was wrongfully withheld (Article 4).
b. The Respondent Mother says that the Applicant Father has no rights of custody within the meaning of the Convention and therefore no standing to bring this application (Articles 3, 5 and 13(a)).
c. The Respondent Mother says that the Applicant Father has consented to or acquiesced in the removal of Leticia from Portugal (Article 13(a)).
d. The Respondent Mother says that any return of the child would result in a “grave risk” that the child would be exposed to physical or psychological harm or other intolerable situation (Article 13(b)).
10The analysis in this case therefore loosely follows the analysis suggested by the Court of Appeal in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517.
Was Leticia habitually resident in Portugal when she was withheld by the Respondent Mother?
11Under Article 4 of the Hague Convention, it applies to any child who was “habitually resident in a Contracting State immediately before any breach of custody or access rights.” There is no definition of “habitual residence” in the Hague Convention. The definition of that term comes from the case law.
12As set out in Article 3(a) of the Hague Convention, the case law confirms that the time to determine habitual residence is immediately prior to the removal or retention of the child: see Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 at para. 67.
13Under Balev, the Supreme Court of Canada determined that the court should adopt the “hybrid” approach to determining habitual residence. That approach was described as follows [at para. 43]:
On the hybrid approach to habitual residence, 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;3 see also Jackson v. Graczyk (2006), 2006 52861 (ON SC), 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.
14The hybrid approach is clearly a wholistic approach. Balev did away with the test that had been previously applied in Canada, being the “parental intention” test. Citing Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013), McLachlin C.J.C. described the hybrid approach as being “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”; she later stated that the factors that the court is to take into account in determining habitual residence are “not closed” [para. 47]. Of particular importance to the present case, where the Respondent Mother took matters into her own hands and unilaterally moved to Canada, McLachlin C.J.C. also stated that “there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child.” [para. 46].
15Ms. Rites, on behalf of the Respondent Mother, suggested that when Leticia and Ms. Raposo moved to Canada, this country and in particular, Toronto, Ontario, became Leticia’s habitual residence. She suggested that the fact that Leticia had her primary residence with Ms. Raposo and she was Leticia’s primary caregiver meant that Leticia’s primary residence was changed from the Azores to Canada along with Ms. Raposo’s primary residence. In her factum, Ms. Rites says that the court should take into account the fact that Leticia is now settled into a new and stable home in Toronto with the Respondent Mother and her partner, Paolo.
16That is not what either the Hague Convention, or Balev says. It must be recalled that Balev was a case of wrongful retention when both parents had lived in Canada together and the father then moved back to the parties’ previous home in Germany. The issue there was whether the mother wrongfully retained the children in Canada when he demanded their return. That is not the case here, which is more akin to a wrongful removal as shall be discussed below. And nothing can detract from what Article 4 says which is that habitual residence is to be determined “immediately before any breach of custody or access rights.” The approach is best explained by Pawagi J. in Andegiorgis v. Giorgis, 2018 ONCJ 965 [at para. 39]:
The Supreme Court is clear that while the child’s circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The Court is clear that the child’s circumstances following the wrongful removal or retention can only be considered when the Hague Application is not brought within a year of the wrongful removal or retention [emphasis hers].
17In the present case, the application under the Convention was commenced less than one year after the removal of Leticia from Portugal. Therefore, the issue of whether the child is “now settled in its new environment” within the meaning of Article 12 is not relevant to this case.
18There are, in any event, only two possible dates when Leticia’s removal or retention took place. The first is when she initially left Portugal for Canada on April 22, 2022 for a temporary visit when she had no intention of returning to the Azores. The second date would be when the Respondent refused to return to the Azores contrary to the court order which provided that she would return on April 27, 2022, extended by agreement between the parties to May 5, 2022. At the very latest, this would be the date of the text message when the Respondent Mother said that she would not be returning to Portugal for at least six months, presumably when her visa ran out. That text message was undated, but was sent sometime prior to the June 5, 2022 court date as it was entered into evidence at that hearing. Either way, the dates are not far apart and there is no evidence as to the circumstances of the Respondent Mother or any change in her circumstances between the time she left Ponta Delgada on April 22, 2022 and the later date of June 5, 2022.
19In the present case, the Respondent Mother also does not deny that she came to Canada to remain with her partner, Paolo, who is a fugitive from justice in his home State of Portugal and was, when he and the Respondent Mother came to Canada, facing incarceration in Portugal of two years on a drug trafficking conviction. In her affidavit, she does not outline when she decided to remain in Canada or whether, in fact, she had determined that she was not returning to the Azores when she obtained permission from the court to spend only two weeks in Canada. She provided in her materials no details of the wedding and christening that she was supposedly coming to Canada for. The Respondent Mother is the only person who has access to this information as it was her decision to come to Canada and to remain here contrary to the order of the Portuguese family court.
20I note that this case is being determined on affidavit evidence only. Neither party wished to cross-examine on the affidavits or enter oral testimony. I have to accept that the affidavits are the “best foot forward” by both parties and that it is the totality of the evidence that would have been entered had there been a trial. I cannot speculate on anything beyond what is contained in the affidavits. As Ms. Raposo has failed to explain herself or her actions in removing Leticia from her home in the Azores, a home that she had known her whole life, I have no choice but to draw an adverse inference against the Respondent Mother in determining when the removal or retention took place. Because of the lack of explanation by the Respondent Mother, I have to assume the worst.
21I therefore conclude it to be probable that the Respondent Mother, when she requested permission to go to Canada, did not intend to return. She has, as pointed out, failed to explain her intentions when she came to Canada in December, 2021, when she “scoped out” the country, prior to commencing the Portuguese family court proceedings. Her partner, Paolo Melo was facing drug trafficking charges when she left Ponta Delgada and the Applicant Father was concerned that the Respondent Mother would not return from Canada as indicated by the court endorsement; it was only at the hearing that he received assurances that the Respondent Mother would be returning with the child to Ponta Delgada. It is much more likely that the Respondent’s actions constituted a wrongful removal from the child’s home than a wrongful retention later in Canada.
22To determine habitual residence prior to either of these dates, the major issue would largely be decided by the child’s connection to her home in Ponta Delgada prior to her removal. At that time, the only home the child had known was in Ponto Delgado. Her family and extended family lived there as did the Applicant Father. She was attending day care there and the Applicant provided pictures of family events which included Leticia in Ponta Delgada. As set out in Balev, the focal point of her life in April, 2022 was Ponta Delgada in the Azores and there can be no other choice of Leticia’s habitual residence.
23From the child’s perspective, Canada was then an unknown, at most a place that she was to travel to with her mother. Her post removal circumstances outlined in the Respondent’s affidavit are not relevant to habitual residence as the court can only look at the totality of the circumstances immediately prior to the removal.
24I note that the March 3 court order provides that the “habitual residence” of Leticia will be with the Respondent Mother. As noted, the Respondent says that her residence dictates Leticia’s habitual residence. However, immediately prior to the removal of Leticia from Ponto Delgado, the child had her habitual residence with her mother in that city. Moreover, the Hague Convention is intended to address the wrongful removal of children from a home country by a parent. It is difficult to reconcile that with the suggestion that the Respondent Mother who removed the child can then dictate the “habitual residence” of the child by changing her own geographic location. That could only apply, as in Balev, where there was a wrongful retention rather than a wrongful removal. Whatever the court order says, it only makes sense that the habitual residence under the Convention refers to the location where the child resides prior to removal rather than being later determined by the parent with whom the child resides.
25I therefore find that Leticia’s habitual residence at the time of her removal was Ponta Delgada in the Azores.
Did the Applicant have rights of custody within the meaning of the Hague Convention and was he exercising those rights of custody at the date of the removal?
26Under Article 3 of the Hague Convention, a removal of a child is only wrongful where it is in breach of an individual’s rights of custody over the child. Under Article 13(a), the claimant must be exercising his or her rights of custody at the time of the removal. The term, “rights of custody” is defined in Article 5(a) of the Convention as including “rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence”.
27Under the final order agreed to by the parties, the Respondent Mother has primary residence of the child. But her rights are not in issue; the question is whether the Applicant Father has rights of custody under the Convention. Without having any rights of custody, assuming that the Applicant was a parent who only had limited parenting time or access without more, the court would have to find that the removal was not wrongful and would not attract a remedy under the Hague Convention: see Thompson v. Thompson, 1994 26 (SCC), [1994] 3 S.C.R. 551.
28The parties’ custodial rights are set out in the first two paragraphs of the final order made on March 3, 2022 which read as follows:
The minor shall be under the custody and care of her mother, with whom she shall have her habitual residence and who will exercise parental responsibilities over her in everyday matters, being responsible for her education, being obliged to keep the father informed of the minor’s schooling.
On matters of particular importance for the life of the child, including travel abroad, medical, and surgical interventions, and of judicial and patrimonial representation, parental responsibilities will be exercised jointly by both parents.
29Paragraphs 3 to 7 inclusive of the March 3 order provide the Applicant Father with specific parenting time, including Tuesday and Thursday evenings and every second weekend as well as a division of major holidays. The remainder of the order addressed communication between the parties, child support and extraordinary medical expenses. The order constitutes a comprehensive parenting plan.
30Ms. Raposo contends that the Applicant did not have rights of custody within the meaning of the Hague Convention. She says that he had parenting time or access only and that he never visited Leticia consistently, spending time drinking with his friends rather than seeing his child. She asserts that Mr. Raposo only exercised his parenting time sporadically and still does not exercise his virtual parenting time often. She says that if the order provides for rights of custody in favour of the Applicant Father, he was not exercising it at the time of the removal of the child from the Azores.
31However, parenting time alone does not constitute rights of custody. Article 3(a) of the Convention makes it plain that these rights go beyond primary residence of the child as expressed in the first two paragraphs of the order. In the parlance of the Hague Convention (which predate the 2021 amendments to the Divorce Act), the arrangement of the parties was for joint custody of the child with primary residence to the Respondent Mother. The Applicant Father had secondary residence, with joint decision-making over all major decisions other than educational decisions which were left to the Respondent Mother solely.
32In Thompson, the Supreme Court considered a provision in a temporary order made by a court in a contracting State which prevented removal of a child from the jurisdiction. The Supreme Court said that this resulted in the rights of custody under the Convention being retained by that court under Article 3(a). In deciding this, La Forest J. cited C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465 (C.A.) at p. 472 with approval, which confirmed that the requirement of consent by the court for removal of the child conferred rights of custody to a non-primary residence parent:
I am satisfied that this right to give or withhold consent to any removal of the child from Australia, coupled with the implicit right to impose conditions, is a right to determine the child's place of residence, and thus a right of custody within the meaning of arts 3 and 5 of the convention. I am further satisfied that this conclusion is in accordance with the objects of the convention and of the 1985 Act. Until last August this child was habitually resident in Australia. In 1986 the Family Court of Australia made orders relating to his custody, which included an agreed provision that he should not be removed from Australia without the father's consent. In my judgment, the enforcement of that provision falls plainly within the objects which the convention and the 1985 Act are seeking to achieve.
33This was confirmed in W. (V.) v. S. (D.), 1996 192 (SCC), [1996] 2 S.C.R. 108 where L’Heureux-Dube J. noted that the two provisions contained in the definition of “rights of custody”, rights relating to the care of the child on one hand, and rights to determine the residence of the child on the other, “are susceptible to severance” [para. 32]. This implies that the right to determine where the child lives can stand alone as a “right to custody” in favour of an access parent.
34Neither of these cases specifically endorses the fact that a non-removal clause gives a party a right to custody under the Hague Convention. In fact, in Thompson, the court stated that a non-removal clause that was ancillary to the claimant’s access rights only is not a “right of custody” under the Convention. However, lower courts throughout Canada have confirmed that joint custodial rights which include a right to consent to travel or relocation constitute rights of custody giving a non-primary residence parent status to bring an application for return of a child.
35Ontario cases have confirmed that a right to determine the residence of a child is a right of custody within the meaning of the Hague Convention. In Toiber v. Toiber, 2005 63821 (ON SC) as aff’d by 2006 9407 (ON CA), 208 O.A.C. 391 (C.A.), the parties lived in Israel with their children and had agreed in a consent order that “The partners commit themselves not to take the children abroad, only on agreement of both partners before hand and in a written form.” The parties agreed, as in the present case, to an order that the mother, who had primary residence, could take the children to Czechoslovakia. Contrary to that agreement, the mother then took the children to Canada and made a refugee claim.
36In ordering the return of the children to Israel, Hoillet J. cited and quoted from C. v. C., supra and stated:
Consistent with the foregoing observation, it is perfectly reasonable, in my view, given the proper context, to construe the right of choosing a child's residence as limited to a city, Province or State, or, at the very most, the country of which the child is a citizen. Such a construction does no violence, in my view, to the rights of custody. As I earlier observed, paragraph (2) of the Decision granting permission to take the children abroad could not be any more explicit concerning the court's intention that custody rights should vest in the Israeli courts.
37In R. (B.) v. Y. (J.A.), 2009 NSSC 411, Williams J. considered a clause in a U.S. court order4 which provided that 60 days’ notice be provided by either party of any intention to relocate more than 50 miles from the other. Outside of this provision, the mother who moved to Nova Scotia with the child had primary residence of the child and the parties had “joint legal custody of the minor child”. Although there was a right of consultation regarding major decisions, the mother had final decision-making authority in the event of a disagreement that could not be resolved.
38Williams J. determined that the father of the child, or alternatively the court in the United States, retained rights of custody sufficient to provide standing under the Hague Convention. He cited four different grounds for this, one of which was that:
The relocation clause was a custodial right as it related to B.R. The notice provision provides him with an opportunity to contest or to object to a proposed move and to engage in discussions regarding a very significant change in the child's circumstances. The right to have an opportunity to be heard, to argue the issue, to put the matter before a court is, in my view, a fundamental right. The right to oppose or initiate a judicial review of an intended move is a right to determine or have determined a child's place of residence. I conclude it is a right of custody as defined by the Convention. [para. 14]
39As noted above, courts in other jurisdictions have also found that a right of non-removal constitutes a custodial right under the Hague Convention. For example, in Abbott v. Abbott, 560 U.S. 1 (2010) the United States Supreme Court considered a wrongful removal of a child from Chile. The mother who had removed the child had primary residence of the child and the husband had parenting time only. However, the husband also had ne exeat rights5 under Chilean law and under the court order containing their parenting plan. The Supreme Court held:
Adopting the view that the Convention provides a return remedy for violations of ne exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., at 7. Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, id., at 11, but does allow the courts of the home country to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. [p. 20]
40The consensus is therefore that a provision giving a parent a right to consent to relocation or travel is sufficient to give that parent rights of custody which provide him or her with standing to bring an application for return of the child under the Hague Convention. The only exception is where, as in Thompson, the provision is solely for the purpose of maintaining that parent’s access rights: in that case, it is not an incident of custody or a custodial right enforceable under the Convention.
41That is not the case here. The provision that the Applicant relies upon is not related to his right to parenting time under the Portuguese court order. It is the provision that gives him the right to jointly determine with the Respondent “matters of particular importance” to the child, including the right to overseas travel. That provision is part of a parenting plan which gave the Respondent primary residence of the child, and decision-making authority over educational decisions concerning the child. Other major decisions, including “overseas travel” were to be jointly decided by both parties. The Respondent specifically acknowledged those rights when she returned the matter to the Portuguese Family Court on April 6, 2022 because the Applicant was concerned that she would not return Leticia to Ponta Delgada and he was therefore refusing to consent to her travelling to Canada. In consenting to the order on April 6, the Applicant exercised the rights of custody that he had under the final order. He further exercised those custodial rights when he signed a travel consent extending the date for the return of the child on April 12, 2022. Both parties understood that the Respondent needed the Applicant’s consent to go to Canada with Leticia and the Applicant exercised his rights of custody on two occasions leading up to the Respondent’s departure from Ponta Delgada.
42The Respondent Mother suggests that the consent over the right to veto “overseas travel” referred only to travel and not relocation, which the Respondent Mother was free to do. That is not my reading of the order. Travel can include travel for a holiday or it can include travel to another destination for relocation purposes; the clause in the order does not restrict the purpose for which overseas travel was to be jointly decided by both parties. And it is difficult to believe that the parties did not intend to include relocation of the child to another country as a matter “of particular importance for the life of the child”: what could be more important to a child than a permanent move to a country far away from a city where she has spent her entire life and where her father and extended family live?
43I therefore find that the Applicant has rights of custody and that the move by the Respondent Mother is in breach of those rights of custody and is therefore wrongful. Mr. Raposo exercised those rights leading up to the removal of the child from the Azores. Alternatively, by making the order permitting the Respondent to travel with the child temporarily, the Azores court retained rights of custody over the child which was confirmed on June 4 when this matter was referred by that court to the Central Authority. There is jurisdiction and standing to bring this application under the Hague Convention for the return of Leticia to Ponta Delgada in the Azores.
Did the Respondent Father acquiesce in or consent to the removal of Leticia from the Azores?
44Under Article 13(a) of the Hague Convention, it is a defence to an application where the claimant has “consented to or subsequently acquiesced in the removal or retention” of the child.
45The Respondent Mother says that the Applicant did this on two occasions:
a. Mr. Raposo signed a travel consent after the April 6 order because the Respondent Mother was unable to obtain a passport for Leticia on time for her travel which was to take place between April 14 and 27, 2022. She left the Azores for Canada on April 22 rather than April 14. The travel consent signed by the Applicant did not contain a return date.
b. Mr. Raposo emailed the Respondent Mother on Facebook Messenger on November 11, 2022 after these proceedings were commenced and after he had retained counsel; the message reads:
I myself will ask the judge to let you live there [in Canada], but just because I know you’re really in the shit but him from those first 15 days Mariana you play with the fire did you know the police would get in there.6
46The issue of consent or acquiescence was addressed by the Court of Appeal in Katsigiannis v. Kottick-Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456 (C.A.). In that case, the father consented to the mother travelling to Canada to visit her parents. Upon the father being served with a claim for custody of the children, he promptly began proceedings under the Hague Convention.
47At para. 43 of the decision, Osbourne A.C.J.O. stated that consent or acquiescence must be unequivocal in nature:
… the court must determine whether, as a matter of fact, the applicant parent intended to and did give unconditional consent to the removal of the child. In P. v. P., 7 the Court of Appeal held, at p. 555 F.C.R., that although consent does not have to be evidenced in writing or expressly stated, it must "amount to clear and cogent evidence of an unequivocal consent". I see no reason not to require acquiescence to meet the same standard.
48The court also cited U.S. case law which stated that acquiescence requires “an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time."8 Osborne A.C.J.O. concluded that:
47"Consent" and "acquiescence" are related words. "To consent" is to agree to something, such as the removal of children from their habitual residence. "To acquiesce" is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.
48Subject to this observation, I agree with Lord Brown- Wilkinson's approach and analysis in In re H, supra. 9 When Lord Brown-Wilkinson said that "[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world's perception of his intentions", he was, it seems to me, really speaking of the wronged parent's consent to a child's removal or retention based on evidence falling short of actual stated consent. That is what acquiescence is -- subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child's removal or retention.
49To establish acquiescence in the Article 13(a) Hague Convention context -- "subsequently acquiesced in the removal or retention" -- the mother must show some conduct of the father which is inconsistent with the summary return of the children to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence. In my opinion, the evidence on which the mother relies does not meet that test.
49It is, in other words, a fairly high bar that must be crossed to show acquiescence or consent. There must be some formal indication of consent or acquiescence or alternatively actions or statements which unequivocally indicate the subjective intention of the wronged party to permit the child to remain in the location to which she was removed.
50This high bar has continued to be the law in Ontario. For example, in Yunus v. Mohammed, 2020 ONSC 8227 the court found that a statement made in anger and quickly retracted by the father was not “clear and cogent evidence of his unequivocal consent to move the children’s habitual residence” [para. 25]. In Webb v. Gaudaur, 2015 ONSC 6956, Shelston J. stated [at para. 87] that:
…the mother must show some conduct of the father that is inconsistent with the summary return of the children. In other words, it must be clear and cogent evidence of unequivocal consent or acquiescence as was held by in Katsigiannis v. Kottick-Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at para. 43.
51The first “consent” signed by the Applicant after the court hearing on April 6, 2022 was stated in the Respondent Mother’s affidavit as being an open-ended consent. She says that there was no return date contained in the consent. However, it is common ground that the consent, which was signed on April 12, 2022, was to facilitate the Respondent Mother’s inability to obtain a passport for Leticia and was only to extend the consent order of April 6, 2022 which did have date for the return of the child to Porto Delgado. Although the consent did not have a date for the return of the child, it states on its face that it did have an expiry date, May 5, 2022.
52This travel consent therefore expired on a certain date and was temporary in nature. It is similar to the consent addressed in Katsigiannis which was, being temporary in nature, not an unequivocal consent to relocation of the child and did not constitute consent or acquiescence under Article 13(a) of the Hague Convention. It does not constitute a defence to the Applicant’s claim in this matter.
53The second consent is a text message sent by the Applicant to the Respondent on November 11, 2022. By this time this application was well underway and the Applicant was not represented by counsel. It is evident that the Respondent Mother knew that the Applicant was demanding the return of the child at this time.
54Neither party has provided the context in which this text message was sent and Mr. Raposo does not specifically address this text message in his reply affidavit. However, on the day prior to the text message, November 10, 2022, the Applicant had signed his affidavit in support of the motion under the Hague Convention. Five days after the text, on November 16, 2022, the Applicant was before Justice Krause of this court when she ordered that the Respondent deposit her passport and the child’s passport with the court. The next day the application under the Hague Convention was filed by the Applicant. Attempts to serve the Respondent were made and she retained counsel. On November 23, 2022, the parties appeared before me for a first meeting when the Respondent asked that the matter be traversed to Toronto. The matter was eventually adjourned before me for this hearing on December 23, 2022. In other words, in spite of the text message, this matter proceeded apace and it was inconsistent with the Applicant’s actions in these proceedings
55Often in family law matters, a responding party who finds herself before the court attempts to find a more sympathetic hearing by direct communication with the other party rather than by communicating through counsel. Often parties are told to keep their lawyers out of it because they just get in the way. Concessions or agreements to stop proceedings are often obtained. When the proceedings go ahead in the face of these concessions it is often seen as a betrayal, but the matter continues on.
56Concessions made by the party on the receiving end of such requests are very often unreliable. These parties sometimes respond positively because they want to placate their former spouse or to avoid conflict. They often will say anything to avoid contact with a former partner. Often a concession or agreement is made without legal advice. As stated in Freidrich, supra, a consent or acquiescence must contain some element of “requisite formality”, and there is good reason for this because a formal acquiescence indicates an unequivocal intention which may be lacking in direct communication between the parties. Therefore, where the concession is not actually confirmed by counsel, it is not necessarily an accurate indication of a party’s intentions.
57As set out in Katsigiannis, when determining whether there is consent or acquiescence under Article 13(a) of the Hague, the court must determine whether the November 11 text message from the Applicant to the Respondent was clear and cogent evidence of the Applicant’s “subjective intention” to waive his rights under the Hague Convention. I think not. No context was given by either party of the text messages to indicate whether they were part of a reasoned discussion between the parties leading to the Applicant’s text message of November 11. The text was not confirmed in any way by counsel and the litigation plowed ahead. The Applicant was active in preparation and signing of affidavits around the date of the text exchange and his lawyer attended in court five days after requesting delivery of the Respondent’s passports. The text message was inconsistent with the Applicant’s actions in proceeding with the litigation.
58When both parties are represented by counsel and the position of counsel conflicts with a response achieved through direct communication, the position of counsel is usually the position that should govern. A direct communication, such as that in the present case, cannot be seen as unequivocal or clear and cogent evidence of acquiescence when it is not backed up by confirmation by counsel or the court. A single text message in the context of ongoing proceedings which were commenced by the June 14, 2022 referral by the Azores court is not unequivocal or clear and cogent acquiescence as required under Article 13(a) of the Hague Convention.
59Finally, the Respondent has raised the issue of delay as evidence of acquiescence within the meaning of Article 13. Again, there was no unreasonable delay. The Applicant made the initial referral to the central authority under the Hague on June 14, 2022, soon after it was apparent that the Respondent was not returning as promised. He deposed that he had problems in obtaining counsel who spoke Portuguese which is understandable as he had thought that the matter had to be brought in Simcoe County where there are few lawyers who can speak that language. The reason that he brought this application in Simcoe County was a direct result of the Respondent Mother’s statements to the Azores court that she was going to be at an address in Stayner, something that has been since proven to be untrue as she moved to Toronto in May, 2022. The delay resulted partly from the Respondent’s misrepresentations as to her residence and she also deposed that she had difficulty in obtaining a lawyer who spoke her language even in Toronto.
60I therefore do not find that the Applicant Father has consented to or acquiesced in the removal of the child from Portugal to Canada as provided for in Article 13(a) of the Hague Convention.
Would there be a grave risk of harm to the child if she is returned to Portugal?
61The Respondent alleges that the Applicant was abusive to her and involved Leticia in the abuse. She says that the Applicant was dangerous when he drank to excess and that he was often verbally abusive to her, calling her names and swearing at her. She says that the Applicant assaulted her on several occasions when Leticia was present or in the middle of things. She says that, because of this, there would be grave risk of harm to the child to return her to the Azores.
62The Respondent Mother details three incidents of abuse over a three-year period. Firstly, she says that in August, 2019, the Applicant became upset at her because she was telling his drunken friends to leave; she says that the Applicant head butted her while she was holding Leticia, an infant at the time, and she dropped the child as a result. She said that she responded by slapping the Applicant and then the Applicant punched her in the face. She says that she ended up with a goose egg on her forehead and a black eye as a result. She provided photographs in her affidavit.
63The second incident took place in June, 2020 and again, Leticia was present. According to the Respondent, the parties got into a fight and Mr. Raposo grabbed her by the hair and threw her against a fridge. The parties separated for about five days after that and eventually separated permanently on July 8, 2020.
64The final incident took place on April 21, 2022, a day before the Respondent was due to leave for Canada with Leticia. The Respondent deposes that Mr. Raposo removed the child from the daycare centre and that he called the Respondent to tell her that he had Leticia and was going to come to the Respondent’s home, kill her and her father and then himself and the child. The police found the Applicant with Leticia at his aunt’s home and he was apparently punching a car and threatening to kill himself. Apparently, if the Applicant was making death threats, no charges were laid by the police who supposedly witnessed this behaviour.
65The first two incidents were corroborated by an affidavit from the Respondent’s friend, Lisandra Freitas who says that she was present for the first two incidents. However, regarding the second incident, Ms. Freitas does not say that the Applicant grabbed Ms. Raposo by the hair; she says that her friend was shoved by the Applicant against the refrigerator.
66The Applicant Father denies that any of these incidents took place and denies that he was abusive. He notes that the photographs provided of the injuries are undated and should be dated if they were taken from a digital camera. He notes that Ms. Freitas said that she observed many instances of physical abuse, but only deposes as to the same two incidents noted by the Respondent in her affidavit.
67The Respondent in her factum says that this is a “best interests” issue and says that it would not be in Leticia’s best interests to be returned to Ponta Delgada in the Azores. That is not the purpose of this inquiry. The best interests of the child are presumed to be adequately addressed by the courts in the reciprocating State of Portugal, which has been determined to be Leticia’s habitual residence: see Thomson v. Thomson, supra and Katsigiannis v. Kottick-Katsigiannis, supra at para. 32. The only place where the court reviews anything close to the child’s best interests is set out in Article 13(b) which states that the court can refuse to return the child only when it finds “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.”
68As with consent or acquiescence, the case law makes it clear that this is a high bar. In Thomson v. Thomson, supra at pp. 596-597,10 La Forest J. spoke to this issue of grave risk as follows:
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. … In Re A. (A Minor) (Abduction), supra,11 Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
… the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree… that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words ‘or otherwise place the child in an intolerable situation’.
69My first difficulty with the Respondent’s contentions of family violence is that her evidence is simply not credible. In these proceedings, the Respondent initially lied to the court in Ponta Delgada, stating that she would be returning with the child after the wedding and the christening. She did not do so, and clearly had no intention of doing so. She was moving to be with her partner, Paolo, who is a fugitive from justice and is facing incarceration if he returns to Portugal. She also lied about where she was going to be living when in Canada, saying that she was going to live in Stayner and then almost immediately moving to Toronto; she has confirmed that the Stayner address was for immigration purposes only. I am concerned that the Respondent’s evidence of domestic abuse is also simply self serving similar to the undertakings to return to Ponta Delgada which she provided to the court in the Azores.
70The Respondent further did not mention anything about family violence to the court in the Azores. In fact, a review of the final order arrived at between the parties on March 3, 2022 discloses that the parties agreed to direct communication between themselves concerning the child and it even contains their respective telephone numbers. The Respondent entered into direct negotiations with the Applicant when she asked for the travel consent which was signed on April 12 and she again appears to have entered into direct negotiations with the Applicant when the parties exchanged text messages on November 11, 2022 wherein the Applicant was supposed to have “acquiesced” in the child remaining in Canada as discussed above. There does not appear to be any indication of fear of family violence or abuse other than what the Respondent Mother says in her affidavit.
71Moreover, the Respondent says that it would be dangerous to move with the child back to the Azores. However, the Respondent’s present situation in Canada also appears to be precarious at best. She is living with, as noted above, a convicted drug dealer who is simply attempting to avoid going to gaol if he returns to Portugal. She has not clarified either her partner’s immigration status or her own. It is difficult to see how an individual who was convicted of a criminal offence in his home State would be welcome for immigration in Canada. She does not disclose whether she somehow has obtained permanent residence status, has been sponsored or whether she is making a refugee claim. It is unknown on what basis she is applying to stay in this country or the status of her immigration application.
72The Respondent complains of the Applicant having made a death threat on April 21, just before she was about to fly to Canada. However, the Respondent is throwing stones while living in a glass house when she states this; when it was becoming apparent that the Respondent was intent upon remaining in Canada past her return date, she also threw out a death threat. In an undated text sent prior to the June 5 hearing for return of the child in Ponta Delgada, she said that “And I’m telling you, neither you nor anyone else can take my daughter away from me. Because I’ll go to jail, but I’ll kill whoever it is.”12 If the Respondent is to be believed, the parties seem to make these threats freely but under the circumstances, I have doubts of the seriousness of the threats made by either party.
73If there was, in fact, family violence, that would be something for the court in the Azores to address in determining the best interests of the child. The Respondent has, however, filed an affidavit signed by Ana Sofia Antunes das Neves, an associate professor at the University of Lisbon. She has written a paper, attached to the affidavit that concludes that the institutions for the protection of women in Portugal are inadequate to protect women from abuse or femicide. She deposes:
The results of the study reveal that protection systems in Portugal are ineffective at intervening with women victims of domestic violence who suffer death threats and attempts of femicide, and their children. Attached hereto and marked as EXHIBIT "B" is a copy of the study report, entitled "Death Threats and Attempted Femicide in the Context of Domestic Violence in Portugal".13
74However, the focus has to be on danger to the child, not to the Respondent. And although we know in Canada that family violence affects children and their best interests, the risk to children in Portugal from family violence remains undetermined. Ms. Neves provides no evidence as to the legal role that family violence plays in determining children’s best interests under Portuguese family law in parenting proceedings. She states in her affidavit:
Little or nothing is known about the real consequences that these experiences have on children's development. Moreover, the reality concerning children being confronting with death threats and attempts of femicide, or children becoming orphans in consequence of femicide, is yet to be known.14
75As noted above, the court presumes that the upon return, the Portuguese court is presumed to sufficiently address the issue of the child’s best interests including issues of family violence. In light of the inability of Ms. Neves in assessing the effects of family violence on children in Portugal, this has not been displaced her affidavit. It does not display grave risk of harm to the child if she is returned to Portugal.
76Finally, I note that the issue of family violence is a credibility issue. I offered a chance to lead viva voce evidence in this matter and it was declined by both parties. Neither party arranged to cross examine the other on their affidavits. I therefore had to make my determination as to family violence and alleged abuse on the part of the Applicant on the affidavit evidence only. The following statement made by Osborne A.C.J.O. in Katsigiannis [at para. 59] is particularly applicable to this issue:
Second, Hague Convention applications are typically heard on affidavit evidence. Although a Hague Convention application does not determine custody having regard to the child's best interests, the child's best interests should be taken into account by ensuring that Hague Convention applications are disposed of expeditiously. That consideration militates in favour of Hague Convention applications being decided on a written record, that is by affidavit evidence. In general, Hague Convention applications should be managed so that cross-examination on affidavits, if any, do not unduly delay the hearing of the application. If credibility is a serious issue, consideration should be given to having the evidence of witnesses whose credibility is in issue (usually the mother and father) heard viva voce.
77I therefore do not find that there is grave risk of harm to this child in returning her to her home in Ponta Delgada. The Respondent’s family remains there as indicated by the affidavit of her stepmother. And I simply do not find the Respondent’s evidence about abuse to be anything other than self serving at this hearing. Her own situation in Canada appears to be unstable and the Respondent has provided no clarity as to her immigration application or whether she will be permitted to remain in Canada. The Respondent was opportunistic when requesting permission to come temporarily to Canada and I do not see that anything has changed in that regard.
Result
78There shall therefore be an order for the return of Leticia to Ponta Delgada in the Azores as requested by the Applicant.
79If the parties wish to speak to costs, they may do so by written submissions not to exceed five pages in length not including Bills of Costs or Offers to Settle. The submissions shall be provided on a 10-day turnaround, the Applicant first and then the Respondent. There shall be no reply costs submissions filed.
MCDERMOT J.
Date: January 13, 2023
Footnotes
- Excerpt from the order of April 6, 2022 found at Ex. C of the affidavit sworn by the Applicant on November 30, 2022.
- The Convention on the Civil Aspects of International Child Abduction, October 25, 1980, adopted in Ontario under s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
- Pérez‑Vera, Elisa. “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction. Madrid: Hague Conference on Private International Law, 1981.
- The State that the parties had resided in was not specified in the decision presumably for confidentiality purposes.
- A provision preventing removal of a minor child without the consent of the other parent. This can be by operation of law or through a specific clause in a court order.
- Ex. D to the Respondent Mother’s affidavit sworn December 14, 2022.
- P. v. P. (Abduction: Consent or Acquiescence), [1997] 3 F.C.R. 550 (H. Ct. Fam. Div.), aff’d, unreported, March 6, 1998 (C.A.)).
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) at p. 1070.
- In re H. and others (Minors), [1996] H.L.J. No. 43
- As cited in Webb v. Gaudaur, supra at para. 97
- Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.).
- Affidavit of the Applicant sworn November 30, 2022, Ex. A.
- Affidavit of Ana Sofia Antunes das Neves sworn December 15, 2022, Paragraph 5.
- Ibid., Para. 14.
