Luongo v. Luongo, 2023 ONSC 6013

COURT FILE NO.: FS-23-00037353-0000 DATE: 20231025

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Luongo Applicant – and – Anthony Luongo Respondent

Counsel: Farrah Hudani, Jessica Luscombe Veronica-Ann Mallari, for the Applicant Oren Weinberg, Kenneth A. Fishman for the Respondent Patric Senson for the Office of the Children’s Lawyer

HEARD October 16, 2023

L. Brownstone J.

Overview

1The applicant mother, Ms. Michelle Luongo, and the respondent father, Mr. Anthony Luongo, were married for 14 years and have two children, ages 13 and 12. The family lived in Toronto until October of 2022. At that time, they went to Guanacaste, Costa Rica, where the maternal grandparents, Mr. and Mrs. Gagnon, owned property.

2In May 2023 the family returned to Toronto to spend the summer at the Gagnons’ cottage in Honey Harbor, as was their usual practice. Two months prior to their return, the mother had purchased tickets for the family to return to Costa Rica on August 11, 2023, in time to attend a welcome picnic at the children’s school. A few days before their travel to Ontario in May, the mother told the father she wished to separate. In July, the father advised the mother that he opposed the children’s return to Costa Rica.

3The mother started this application under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, seeking a declaration that the children’s habitual residence is in Costa Rica and that they are being wrongfully retained in Canada. She seeks an order that they be returned to Costa Rica.

4The father takes the position that the parties went to Costa Rica on a time-limited basis, as a trial, to see whether it would be good for the parties and specifically for their elder child who had been having difficulties at school in Toronto. He argues that the children’s habitual residence is Ontario, and the family’s temporary stay in Costa Rica does not displace that fact. The mother argues that the move to Costa Rica was a permanent one, or at least a move of open-ended duration, that the children are habitually resident there, and that there should be an order returning them to their home.

5To decide the application, the court must determine where the children were habitually resident at the time of the alleged wrongful retention. The father argues that the Hague Convention does not apply, and that this determination should be made under the Childrens Law Reform Act, R.S.O. 1990, c C.12.

6For the reasons that follow, I find that the Hague Convention applies, that the date of the alleged wrongful retention was August 11, 2023, and that the children were habitually resident in Costa Rica on that date. Because there are no applicable exceptions to the children’s return, the mother’s application is granted, and the children shall be returned to Costa Rica.

Background Facts

7The parties were married in and lived in Toronto with their two children until October of 2022. They spent summers at the maternal grandparents’ cottage in Honey Harbor. The parties’ children, and particularly their elder child, faced some difficulties at school in Toronto. She was managing, but not thriving, academically, and was encountering social difficulties. The parents agree that she was being bullied, although they differ on how extensive that bullying was. The younger son was also not thriving academically, at least in the eyes of the mother.

8In February 2022, the parties removed their daughter from school and arranged for her education to be provided virtually. They began discussing alternative educational possibilities for her.

9The maternal grandparents, with whom the parties and the children had a close relationship, purchased property in Guanacaste, Costa Rica. The parties decided to join them there.

10The mother is, and has been since birth, the children’s primary caregiver. She did not work outside the home, and was responsible for interacting with the children’s school, planning their activities, and arranging for their medical and dental care. Both children are very close to their mother.

11In August 2022, the mother submitted a Notice of Intent to Provide Home Schooling to the Toronto District School Board, so the children could continue to be homeschooled pending their registration in an academic program in Costa Rica. The children were removed from school and a private tutor home-schooled them virtually.

12Mr. Luongo quit his job. The family cancelled their long-term membership at an Ontario ski club. The family flew to Costa Rica with their dog on October 8, 2022, on one-way tickets.

13After their arrival, they tried to enroll the children in school in Costa Rica but were unable to obtain spots for the 2022-2023 academic year. Therefore, their on-line tutoring continued. In February, they went to tour private schools in Costa Rica for the next school year. The parties chose one of the schools that both they and the children liked, and the children were admitted and enrolled there for the 2023-2024 school year. The children have been attending that school virtually since the start of the school year.

14While they were in Costa Rica in 2022-2023, the children were enrolled in several activities. Together with their parents they volunteered at an animal rescue centre three times a week. The family joined a sailing centre The younger child went fishing regularly with his grandfather. The daughter took surfing lessons and both children took aerial silks lessons.

15The grandparents, with input from the parents, renovated one of their apartment properties for the family to live in. There was some dispute in the evidence as to how engaged the father was in this process. However, it was clear that the property was being renovated for the purpose of providing a comfortable home for the family. They moved into that renovated home on December 10, 2022.

16In January 2023, the father travelled to Toronto to ready their house for rental. In April 2023, they rented their Toronto home for one year, with the possibility of extension. Prior to their return to spend the summer at the cottage in Honey Harbor, they had purchased tickets to return to Costa Rica on August 11, 2023, about a week before school started, to attend the welcome picnic at the children’s new school.

17The parties do not have permanent residency status in Costa Rica, and so would travel across the border to Nicaragua every 90 days. At the mother’s request, the grandmother began the process of looking into obtaining permanent resident status in Costa Rica. The mother’s evidence was that they planned to obtain necessary Canadian documents while they were vacationing in Canada during the summer, and continue the process of obtaining status in Costa Rica upon their return there.

18Until separation, the father had been willing to return to Costa Rica with the family. The Toronto house had been rented, the children had been enrolled in school in Cost Rica beginning in August 2023, and one-way airline tickets to return to Costa Rica were purchased.

19In July 2023, the father advised the mother he would not agree to the children returning to Costa Rica. The mother started this application under the Hague Convention.

Threshold issue - Does the Hague Convention apply?

20The father raises a threshold issue. He argues that the Hague Convention does not apply to this case, and that the mother is seeking to do an “end-run” around the provisions of the Children’s Law Reform Act. The mother argues that this is a classic Hague Convention case, the exact kind of situation the Hague Convention was meant to address.

21As the Supreme Court of Canada notes in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 SCR 39 at para. 36, “the purpose of habitual residence in Article 3 is to define the children to whom the Hague Convention applies”.

22Under s. 46 of the Children’s Law Reform Act, the Hague Convention is in force in Ontario and the provisions of the Hague Convention are law in Ontario. Where there is a conflict between s. 46 and any other enactment, s. 46 prevails.

23In this case two jurisdictions, both contracting states to the Hague Convention, are claimed to be the children’s habitual residence. In this situation, the analysis should proceed in accordance with the Hague Convention definition. This is the mother’s application under the Hague Convention. If the children’s habitual residence is Costa Rica, the Hague Convention applies; if it is Ontario, it does not. Determining whether the children’s habitual residence is Costa Rica under the Hague Convention must be the starting point where two countries that are contracting states are involved.

24There are two steps to determining habitual residence. First, the court determines the date of the alleged wrongful removal or retention. Then, the court determines where the children were habitually resident immediately prior to the removal or retention: Ludwig v Ludwig, 2019 ONCA 680 at para. 23.

Step One - What was the date of the alleged wrongful retention?

25While the parties disagree about the applicable date of the alleged wrongful retention, they agree that the difference in their positions has no practical or legal effect.

26The mother takes the position that the date of the wrongful retention is July 11, 2023, the date on which the father advised he would not consent to the children travelling to Costa Rica: Beairsto v Cook, 2018 NSCA 90 at para. 98. The father places the date as August 11, 2023, the date on which the children were scheduled to travel.

27On July 21, 2023, the parties appeared before Shore J. who held that “ until August 11, 2023, the children have not been withheld and are here with consent.” I agree with Shore J. and shall therefore consider August 11, 2023, to be the applicable date of the alleged wrongful retention. I note that the analysis below would be the same even if the applicable date were July 11, 2023.

Step Two - Where were the children habitually resident on August 11, 2023?

Governing Law and Principles

28The objects of the Hague Convention, set out in Article 1, are two-fold: to ensure the prompt return of children wrongfully removed or retained, and to ensure that custody and access rights under the law of one contracting state are respected in other contracting states.

29The relevant articles of the Hague Convention are as follows:

Article 3

The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention

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 (in relevant part)

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.

Article 12 (in relevant part)

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

30Article 13 provides some exceptions – circumstances in which the authorities are not bound to return the child under Article 12. The analysis under the Hague Convention is a two-step process. First, the court determines the habitual residence of the child. Then, if the child is found to be habitually resident in the applicant’s country, the court determines whether an exception to ordering the child’s return exists. The parties agree that no exceptions exist in this case and Article 13 need not be considered.

31For the mother to establish that the children should be returned to Costa Rica under Article 3 of the Hague Convention, she must establish that at the time immediately before the alleged wrongful retention the children were habitually resident in Costa Rica: Balev at para. 36.

32In Hague Convention cases, the court is required to take a hybrid approach to determining habitual residence of the children: Balev at para. 48. Instead of focusing solely on either parental intention or the child’s acclimatization, this approach requires the court to determine the focal point of the child’s life immediately prior to the retention. The court is to consider the child’s links to and circumstances in both countries, as well as the circumstances of the child’s move from one country to the other. The court undertakes a factual inquiry, looking at the entirety of the circumstances specific to the case at hand: Balev at paras. 42-47; Ludwig at para. 30. “The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country” Ludwig at para. 30, Balev at para. 68. There is no closed set of factors to consider, but the child’s nationality, the duration, regularity, conditions, and reasons for the child’s stay in the country and the parent’s intentions are some of the factors to consider in determining the links and circumstances of the case: Balev at paras. 44-45, Ludwig at para. 40.

33Retention is only wrongful if it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention: Hague Convention Article 3, Ludwig at para. 22.

34Custody as defined under the Hague Convention “is a broad term that covers the many situations where a person lawfully has the care and control of a child”: Thomson v Thomson, [1994] 3 S.C.R. 551 at para. 48. This includes situations in which parents are exercising the ordinary care and control of the child; no formal court order is required. The custody rights in question are those attributed to the person according to the law of the state where the child was habitually resident immediately before the retention: Thomson at para. 48.

35Costa Rican law, which I am entitled to consider without formal proof under Article 14 of the Hague Convention, provides that both parents exercise equal authority over children of the marriage, with equal rights and responsibilities: Codigo de Familia (y sus reformas) Ley n. 5476 de 21 de diciembre de 1973, art. 151.

Analysis

The parents’ intentions

36There is significant disagreement about the parents’ intentions, which is one factor among many that the court may consider in determining habitual residence. That is, parental intention may in some cases provide an indication of habitual residence, as it may complement a body of other consistent evidence: Balev at paras. 45 and 63.

37The mother’s position is that the parties intended to move to Costa Rica. They intended for the move to be long-term. She notes that they rented out their family home, took their dog with them, renovated a new home, and terminated their long-term membership at their Ontario ski club. Her husband quit his job. The parties discussed the move and agreed it was best for the children.

38The father states that the parties went to Costa Rica in 2022 as a trial period, and that it was never intended to be a permanent or long-term move. It was to be an extended vacation. He points to a text message exchange with Mrs. Gagnon in which she states that “nothing is permanent”, to the fact that the family does not have status in Costa Rica and are Canadian citizens, to social ties the family has in Ontario, and to the fact that they maintain property here. In this regard, I note the caution from the Supreme Court of Canada that the court is not to “treat a time-limited consent agreement as a contract to be enforced by the court”. Rather, time-limited consent, if it exists, may be evidence of parental intention: Balev at para. 73.

39With respect to their intentions, the mother has provided many affidavits from friends in Ontario and contacts in Costa Rica, who provide their understanding of the parties’ move. The father has also provided such an affidavit. To a significant degree, the affiants based their belief about the family’s move on conversations they had with one party or the other. Some conclusions in the third-party affidavits (for example R. Radley Smith, K. Guyatt) were acknowledged on cross-examinations to be based on assumptions. Much of the affidavit evidence relates the affiants’ impressions of the family.

40I find the affidavits to be of very limited use. They add very little to the parties’ own evidence. The differences in the parties’ “settled intentions” is clear from their own affidavits. The non-party affidavits do little to change, clarify or cast doubt on that evidence. Indeed, the difference between the parties is a good illustration of the perils of the previous “settled intention” approach to determining habitual residence. The parents may have had different understandings of or hopes for the move. I find the objective evidence more useful and more persuasive to assist in determining the focal point of the children’s lives as of August 11, 2023.

The children’s wishes

41The Office of the Children’s lawyer separately interviewed the children and the parents. The OCL found the children’s views, set out below, to be clear and consistent.

42The children wish to return to Costa Rica. The daughter believes schooling will be better there than what she experienced in Canada. She had had bad experiences in Canada with both teachers and other students, and was enthusiastic about the Costa Rican school, where the students engaged in project-based learning with small class sizes. In both countries, the daughter spent most of her time with her family, including her maternal grandparents, and did not have close friends in either place. She described life in Toronto as “pretty lonely”, as she had fallen out with the few children here with whom she had previously connected. She understood the family plan to be that the school years would be spent in Costa Rica, and they would visit the family cottage in the summers.

43The son advised the OCL that he loves Costa Rica, and that being in Canada is “not even close” to how it feels to be in Costa Rica. Costa Rica feels safer and healthier to him, and he looked forward to the smaller class sizes and increased teacher involvement the children would have at their Costa Rican school. He understood the family plan to be to return to Costa Rica. He has some friends in Canada, with whom he keeps in contact virtually.

44The OCL takes the position that the children became habitually resident in Costa Rica in the period of time preceding August 11, 2023, the date of wrongful retention.

The Objective Factors

45Looking at the objective factors and applying the hybrid approach mandated by the Supreme Court of Canada in Balev and the Ontario Court of Appeal in Ludwig, I find that the parties intended to move to Costa Rica, and did move, largely for the benefit of the children, for an indeterminate amount of time. While the father had some trepidation about the plan, he agreed to it. He quit his job, rented out the parties’ home, engaged in the renovation process of their new home to some extent, and supported the choice of the school for the children in Costa Rica for the 2023-2024 school year.

46There was conflicting evidence about whether the father was going to work in Costa Rica. The mother states that the grandfather was looking into purchasing a business at which the father would work, but the father denies this. Certainly, he had quit his job in Toronto; he had not taken a leave of absence or an extended vacation.

47The family joined a sailing centre in Costa Rica. They arranged for the children to have medical and dental care there. They volunteered three times a week at the animal rescue centre. They engaged in the renovation of a property to meet their needs. They sought out and registered the children for school.

48The children themselves clearly expected to return to Costa Rica. They are enrolled in school there and have a home there. Their former home in Toronto is unavailable to them. It is being rented out to finance, in part, their life in Costa Rica. They had been living in Costa Rica for about seven months at the time of the wrongful retention. Their time in Canada over the summer was for a vacation at the family cottage. They left many belongings in Costa Rica.

49A significant reason for the move to Costa Rica was for the daughter’s benefit. She was removed from her Toronto school six months before the move. She was having social problems, as well as academic challenges in some subjects. She describes no social ties in Toronto and says that life here is “pretty lonely”. The parents wished to give the children a fresh start.

50From the children’s perspective, there was a settled family purpose for the move to Costa Rica. They abandoned their Toronto home, enrolled in school, took their family pet, engaged in community and extra-curricular activities in Costa Rica, and renovated their new home. The focus of their lives has become Costa Rica.

51I note that the views and preferences of the children are not determinative: Ludwig at para. 52. The father alleges the mother has influenced the children’s views. It is clear, however, that the children provided specific bases for and examples of their reasons for their views, which align with the objective facts. There is no doubt that the family plan was to return to Costa Rica on August 11, 2023, so that the children could start school and resume their lives there. Neither child had been thriving academically in Toronto. The older child had had social difficulties as well. The family had decided that they would move and give the children a fresh start. They took all the steps that are involved in moving. The children have embraced their new lives in Costa Rica.

52The question is not whether the children have ties to Canada. Of course they do. The children were born here and lived here until October 2022. They clearly have deep attachment to the cottage at Honey Harbor. The question for the court, however, is where the children were habitually resident on August 11, 2023.

53Based on the analysis set out above, I have concluded that the focus of the children’s lives and their habitual residence on August 11, 2023 was Costa Rica. Therefore, the Hague Convention applies.

Should the children be ordered to be returned to Costa Rica?

54Once the court determines the habitual residence of the children, it shall proceed to stage two of the analysis under the Hague Convention which is to consider whether any exceptions apply to ordering the children’s return. If none of the exceptions applies, the court shall order the children’s return: Ludwig at para. 40. The father conceded no exceptions apply in this case.

55Having found the children to be habitually resident in Costa Rica, and no exceptions being advanced, the children shall be ordered returned to Costa Rica.

Disposition

56The mother’s application is granted. The children shall be placed in her care and returned to Guanacaste, Costa Rica.

57The mother submitted a draft order which contained a number of ancillary terms, the necessity and appropriateness of which were not argued. If terms are required, the parties may arrange an attendance before me through the Family Trial Office.

58The parties are strongly encouraged to agree on costs. Should they be unable to do so, the applicant may provide costs submissions of no more than five pages double-spaced, along with a bill of costs and any offers to settle, within 7 days. The applicant shall have 7 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J.