Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dimitrije Sibanic, Applicant
AND
Chloe Marie Genevieve Dupuis, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Evan Corey, Counsel for the Applicant Michael J. Stangarone/Meghann Melito/Tiffany Guo, Counsel for the Respondent
HEARD: November 14 and 15, 2023 by video conferencing
REASONS FOR DECISION
M. Smith J
1This matter deals with an Application under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). The Applicant Father seeks the return of his two year old child, from Ottawa, Ontario to Perth, Australia.
2The Respondent Mother opposes the Application and has brought a motion seeking a declaration that the child’s habitual residence is in Ontario. Alternatively, she invokes the defences set out in the Hague Convention.
3For reasons that follow, the Father’s Application is dismissed. The child’s habitual residence is in Ontario, and the Father acquiesced to the child remaining in Ontario.
BRIEF FACTS
4The Father is a dual citizen of Australia and Serbia. The Mother is a dual citizen of Canada and France.
5The parties met in Thailand and began cohabitating in late 2018. They relocated to Perth, Australia in May 2019, initially residing in the Father’s home, until they purchased the matrimonial home in November 2020.
6The parties married in February 2021. Their child was born in April 2021, in Perth, Australia.
7On May 5, 2022, the Mother and child travelled to Ottawa, Ontario, and resided with the maternal grandparents. The Father provided his consent for this trip to Canada.
8On October 31, 2022, the Mother advised the Father that she would not be returning to Australia with the child.
9The child obtained her Canadian citizenship in November 2022, effective April 2021.
10On March 11, 2023, the Father filed a Hague Application through the Australian Central Authority.
11The Mother acknowledges notice of the Hague Application on July 17, 2023.
12On August 17, 2023, the Father filed a Hague Application in the Ontario Superior Court of Justice.
13On September 15, 2023, Audet J. scheduled this two day hearing, to proceed virtually.
14Both parties filed extensive affidavit materials, which included affidavits from friends and family. The Father and Mother testified at the hearing.
LEGAL PRINCIPLES
15The Hague Convention is an international treaty, signed by numerous contracting states, including Canada and Australia. Its purpose, as set out in Article 1 of the Hague Convention, is to secure the prompt return of children wrongfully removed and to ensure that rights of custody and access of the contracting states are respected.
16The analytic framework for a Hague Convention application is summarized at para. 40 of the Court of Appeal decision Ludwig v. Ludwig, 2019 ONCA 680, following the Supreme Court of Canada’s analysis in Office of the Children’s Lawyer v. Balev, 2018 SCC 16:
40 For ease of reference, I will summarize the governing analytical framework for Hague Convention applications below.
Stage One: Habitual Residence
On what date was the child allegedly wrongfully removed or retained?
Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach:
a) The court's task is to determine the focal point of the child's life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention.
b) To determine the focal point of the child's life, the court must consider the following three kinds of links and circumstances:
i) The child's links to and circumstances in country A;
ii) The circumstances of the child's move from country A to country B; and
iii) The child's links to and circumstances in country B.
c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:
i) The child's nationality;
ii) The duration, regularity, conditions and reasons for the child's stay in the country the child is presently in; and
iii) The circumstances of the child's parents, including parental intention.
End of Stage One: Two Outcomes
If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply and the court should dismiss the application.
If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies and the court should proceed to stage two of the analysis.
Stage Two: Exceptions
At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:
The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
The child of sufficient age and maturity objects to being returned (Article 13(2));
a) Has the party opposing return met the threshold to invoke the court's discretion to refuse return?
i) Has the child reached an appropriate age and degree of maturity at which the child's views can be taken into account; and
ii) Does the child object to return?
b) Should the court exercise its discretion to refuse to return the child? In considering whether to exercise its discretion to refuse return, the court should consider:
i) The nature and strength of the child's objections;
ii) The extent to which the objections are authentically the child's own or the product of the influence of the abducting parent;
iii) The extent to which the objections coincide or are at odds with other considerations relevant to the child's welfare; and
iv) General Hague Convention considerations.
The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or
The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
THE POSITION OF THE PARTIES
17The Father says that this is a case of child abduction and wrongful retention. On consent of the Father, the Mother visited Canada with her child, and contrary to her representations, she refused to return home to Australia. The Father immediately objected and began seeking legal assistance in Australia to have his child return home. He says that Ontario has never been the child’s habitual residence and that any links that the child may have to Ontario were established unilaterally by the Mother, after the wrongful retention. He argues that pursuant to the Hague Convention, the child should be returned to Perth, Australia.
18The Mother says that because the child’s habitual residence is in Ontario, and that this court has jurisdiction over the parenting issues. Alternatively, the Mother invokes the defences that are set out in Articles 13(a) and (b) of the Hague Convention, namely that the Father consented or acquiesced to the child’s removal and that there is a grave risk that the return to Australia would expose the child to physical or psychological harm or place the child in an intolerable situation.
ANALYSIS
Credibility findings
19This case requires, in large part, an assessment of the parties’ credibility because there are numerous conflicts in the evidence. There was a remarkable difference between the testimony of the Father and the Mother.
20The Mother’s testimony was measured and candid. She provided fulsome answers to the questions asked, on both direct and cross-examination. The Mother was consistent, forthright, and responsive. She did not equivocate, nor was she impeached. Her narrative was coherent. I saw no signs whatsoever to raise any concerns regarding her overall credibility, and her testimony is supported, for the most part, by the documentary record.
21Conversely, the Father’s testimony was not credible. He was often evasive when responding to questions in cross-examination, refusing to answer simple questions. Also, his answers were replete with “I don’t recall”. While I can accept that with the passage of time, witnesses can forget certain events of a general nature, there are some key moments or important events in one’s life that would not, or should not, generate a “I don’t recall” answer. I find that the Father repeatedly avoided to give evidence, but when his evidence was given, it was non-responsive and vague. The Father’s evidence did not have a genuine ring of truth, nor was it consistent with other parts of the evidence, making it unreliable.
22As such, where there is a conflict in the evidence, I prefer the Mother’s evidence.
Stage One – Habitual Residence
23The first step of stage one is to determine when the alleged wrongful removal or retention took place.
24I find that the date of the alleged wrongful removal or retention is November 1, 2022. On this day, the Father received a letter from the Mother indicating that she was not returning to Australia with the child because of his abusive behaviour.
25The Mother had been in Ottawa, Ontario since May 4, 2022. The Father had originally consented to the Mother taking the child to Canada on a time-limited vacation until September 1, 2022, which was later extended to November 5, 2022.
26The second step is to determine in which jurisdiction was the child habitually resident. In my view, at the time of the alleged wrongful removal or retention, the child’s habitual residence was Ottawa, Ontario. I disagree with the Father’s position that the Mother took unilateral and surreptitious actions to bolster her jurisdiction case. I find that the evidence, set out in the text that follow, conclusively demonstrates that Ottawa, Ontario became the child’s habitual residence, as of August 17, 2022.
27The uncontroverted evidence is that the focal point of the child’s life and her environment has always been, and is, at present, with the Mother, her primary caregiver. As noted below, the Father’s role in his child’s life, by choice, has been limited. The evidence overwhelmingly demonstrates that the Mother was and is the focal point of the child’s life.
28The Father has filed three supporting affidavits from friends and colleagues, all of whom depose that he takes an active and loving parenting role in the child’s life. Also, these affiants all opine, as opposed to providing factual evidence, that the Mother is controlling regarding the child’s care. This evidence does not alter my conclusion regarding the Mother’s primary care function vis-à-vis the child, nor her parenting abilities to properly care and meet all the child’s needs.
29The child was born in April 2021, in Australia. It is undisputed that since the child’s birth, the Mother has been her primary caregiver. I find that the Mother has always properly cared for the child and there is no evidence to the contrary.
30When living in Australia, the Father’s job was demanding, and he was working long hours. He did not spend much time with the child, and it is not solely because of his employment. Rather, the Father enjoyed his personal extra curricular activities, which did not include the Mother and child. The evidence shows that the Father would often attend social events without the Mother and child. He preferred engaging in sporting activities such as golfing and surfing. Also, he would regularly attend bars with his friends, returning late at home (2h00 – 3h00 am), intoxicated. I do not accept the Father’s evidence that these were irregular occurrences.
31The child’s connection to Australia is very limited. The child has a passport and is enrolled in Australia’s Medicare. The child was enrolled in a swimming activity and was generally accompanied by the Mother. Regarding the child’s family support, it was mostly limited to the Mother, given that the Father was either working or engaged in other activities. There is no doubt in my mind that the Mother shouldered the vast majority of the childcare responsibilities while living in Australia, and subsequently when living in Canada.
32Despite the paternal grandparents living in Australia, the child never met them. The Father blames the Mother for this lack of relationship. There is no evidence to support the Father’s contention. The Father’s relationship with his parents was highly conflictual, making it an unbearable environment for the Mother and child.
33The Mother was financially dependent upon the Father. The evidence clearly shows that the Father was controlling every aspect of the finances and closely monitoring the Mother’s spending. When the Father believed that the Mother was spending too much money or that the spending was irrational, he would threaten to cancel the Mother’s credit card. Conversely, the Father would easily spend money on his personal activities, such as the purchase of a new surfboard or personal trips.
34While living in Australia, the Father’s behaviour towards the Mother was abusive, largely due to his alcohol and substance abuse. The Mother has been keeping a log of the Father’s conduct since July 2019, through an application called “ARC Domestic Abuse Log”. The events described by the Mother are multiple and include the following:
a. Physically pushed the Mother, resulting in a bruise.
b. Grabbing the child while intoxicated.
c. Impatient with the child and screaming.
d. Driving erratically at high speed with the child in the car.
e. Driving under the influence.
f. Belligerent and aggressive towards the Mother.
g. Extreme and continuous verbal abuse towards the Mother.
h. Engaged in physical altercations with friends.
i. Physically abusive towards the dog.
35During his testimony, the Father was asked numerous questions regarding some of the events described by the Mother. Surprisingly, most of his answers were “I don’t recall”, and he was evasive when confronted with difficult questions regarding the abuse. I disagree with the Father’s position that the Mother’s evidence mischaracterizes, exaggerates, or otherwise misrepresents the incidents between the parties. I find the Mother’s evidence on the family violence to be credible, supported by several months of contemporaneous notes outlining the unpleasant and abusive events.
36The Mother filed an affidavit from an Australian friend, Francisca Michea, who’s evidence supports the Mother’s allegations of abuse. Ms. Michea has been a witness to the Father’s emotional aggressive behaviour towards the Mother, as well as physical violence towards the family dog and her fiancé. During these incidents, the Father had consumed alcohol. Ms. Michea deposed that she adopted the family dog because she feared for his safety. The Father claims that Ms. Michea stole his dog, yet, he has taken no action to retrieve the dog. Ms. Michea and her fiancé have cut ties with the Father.
37I find that the Father has exhibited a long history of abusive and controlling behavior towards the Mother. He has been psychologically, emotionally, and financially abusive, which has led to at least one violent incident of abuse causing the Mother some physical injury. The Father’s behaviour towards the Mother can only be characterized as family violence.
38Shortly after the child’s birth, I find that there were discussions about a relocation to the Ottawa region. The Father’s employer has an office in Nepean, the west end of the city of Ottawa. When confronted with the Mother’s evidence that the parties contemplated moving to Ottawa in May 2021, the Father’s response was vague, and reverting mostly to “I don’t recall” answers. He did however acknowledge that the maternal grandparents had offered to convert one of their rooms to an office. The Father’s evidence regarding the relocation appeared to be disingenuous.
39The Mother’s version of the relocation is much more plausible. The Mother’s evidence and records clearly contemplate that there were serious discussions to relocate to Canada. Documentary evidence confirms those discussions with the Father, along with the maternal grandparents’ offer to convert a room in their home as an office. Also, shortly after this discussion (June 2021), the Mother made inquiries about obtaining the Canadian citizenship for the child. The Father consented to this application. His evidence that he was unaware that the Mother was going to submit the application is not believable. The evidence shows that the Mother felt isolated in Australia, she was close to her family in Canada, and she wanted her child to grow up in a bilingual environment. I find that the evidence shows that the parties were seriously considering moving to Ottawa, Ontario. However, given the restrictions imposed by Canada regarding unvaccinated travelers, the Father changed his mind. He was not vaccinated for Covid. The Father was not opposed to the Mother and child traveling to Ottawa, and he said that if the vaccine mandates were dropped, he would come to Canada “in a heartbeat”.
40The child’s links to Ottawa, Ontario are significant, and are consistent with the parents’ eventual relocation plans to Canada. Because of the Father’s financial abuse and control, the child’s habitual residence became Ottawa, Ontario, as of August 17, 2022.
41The child has resided in Ottawa, Ontario since May 2022, with her primary care giver, the Mother. This child has been living in Canada the majority of her life. She has developed strong bonds with the maternal grandparents, and extended family, including an uncle, an aunt and cousin who live close by. She has been able to develop and flourish her bilingual language skills, which was not a possibility in Australia.
42Without the Mother’s knowledge, the Father converted the matrimonial home to an Airbnb and have moved out of the matrimonial home. The Father claims that this was done on a temporary basis because he requires money to fund the litigation. There is no evidence before me that supports his contention. The child’s bedroom has been transformed to a guestroom, removing all personal items or connection to the matrimonial home. The Father has moved in with friends, thereby changing his residence.
43The Mother has been working full-time in Ottawa, Ontario, since September 13, 2022. I accept the Mother’s evidence that she was forced to obtain employment because the Father had unilaterally stopped financial support.
44The Father depleted the joint accounts and refused to provide the Mother with access to any of the joint funds. He testified that the Mother always had access to the credit card, however, the evidence shows that the credit card was either overdrawn or that it had minimal credit available. This behaviour is another example of the Father’s attempt to exert a control over the Mother.
45The child has been attending school / daycare since September 2022, leading to the establishment of roots and friendships in the community. The evidence shows that the child is involved in social and recreational activities in Ottawa, Ontario. Enrolling the child in daycare was not deceitful on the Mother’s part, it was a necessity. The Mother needed to return to work full-time because of the Father’s actions, thereby requiring daycare for the child.
46Although the Mother’s travel itinerary showed that she was to return in November 2022, I find that by August 17, 2022, her settled intention to remain in Canada crystalized and was accelerated, primarily because of the Father’s abusive conduct in ceasing to financially support his family.
47In sum, having considered all the evidence, I am of the view that by the time of the child’s removal in November 2022, her habitual residence was Ottawa, Ontario. With such a finding, the Hague Convention does not apply, and as such, the Father’s application is dismissed.
48If I am wrong and should have concluded that the child was habitually resident in Australia, I am of the view that Article 13(a) of the Hague Convention applies, and the child should not be returned.
Stage Two: Exceptions
49The Mother argues that two exceptions under the Hague Convention applies, namely: Article 13(a) because the Father consent or subsequently acquiesced in the removal or retention, and Article 13(b) because there is a grave risk that the child will be exposed to physical or psychological harm or place the child in an intolerable situation.
50The Father submits that none of the exceptions apply.
Article 13(a)
51Article 13(a) of the Hague Convention provides that the court shall not return the child if the parent seeking the return was not exercising custody or consented to the removal or retention.
52The Court of Appeal has defined the related words “consent” and “acquiescence”, at para. 47 of Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 2001 CarswellOnt 2909: “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.”
53In my view, the Father consented to or acquiesced to the child residing in Ontario, through his inactions and representations. They include the following:
a. Once the Mother informed the Father that she was staying in Ontario in November 2022, the Father set out his objections in a series of text messages. However, his subsequent actions, as noted below, strongly suggest that this objection was not genuine. More importantly, in a previous text exchange between the Mother and Father in May/June 2022, the Father clearly told the Mother that she was free to stay in Ontario. During cross-examination, he admitted sending these texts to the Mother. In his affidavit, he deposed that these previous text exchanges were dramatic because they were a cry for help and sent in the heat of the moment. The Father’s evidence at the hearing did not persuade me that he did not consent to the relocation. I find that the Father’s acquiescence that the Mother and child remain in Ontario is consistent with the relocation discussions that have been addressed earlier in this decision, along with the application for Canadian citizenship.
b. While the Father commenced his Hague Application within the 12 months period referred to in Article 12 of the Hague Convention, it took nine months after he obtained legal advice. During cross-examination, the Father was unable to provide any specifics as to what he did to advance the application process between November 2022 and March 2023, the month upon which the application was issued in Australia. He testified that he was working full-time and keeping busy. Then, between March to August 2023, he made no requests to have the child returned to Australia. Furthermore, during the March to August 2023 period, the Father leisurely vacationed to Indonesia with friends on a surfing trip. When the Mother asked that he change his plans, he summarily responded that the Mother was selfish, and he demeaned her inappropriately. I do not accept the Father’s explanation that he could not cancel this trip. His preference was undoubtedly to spend time with his friends.
c. From November 2022 until the summer/fall of 2023, the Father has been inconsistent in requesting contact with his daughter. At times, he would not make any contact for weeks. He was challenged during cross-examination that there were significant gaps in time where no requests for his child’s return were made. His answers were evasive and non-responsive, simply stating that he had previously stated his position to the Mother. The Father was unable to offer any explanation for these gaps in time.
d. The Father changed his residence and moved out of the matrimonial home in May 2023. The child’s room has been completely transformed and it is now listed on Airbnb. I do not find this to be behaviour of a Father that seeks to have the return of his child.
e. As described earlier in detail, the Father ceased to provide financially for his child and the Mother. His abusive behaviour was an obvious attempt to control the Mother, but it further shows that the Father was prepared to abandon his family, knowing full well that the Mother would have no choice but to find full-time employment to support her child.
54I recognize that to trigger the exception at Article 13(a) of the Hague Convention, there must clear and cogent evidence of unequivocal consent or acquiescence. In my view, the Father’s foregoing actions, inactions, silence, and representations clearly display his acquiescence to his child residing in Ottawa, Ontario, both before and after the alleged removal or retention of the child. In addition, the Father’s written words that the Mother remain in Canada were valid and informed, and any subsequent actions taken by the Father purporting to reverse his position, does not, in my view, invalidate his consent. The Father’s evidence was not credible or persuasive.
55I find the Father’s behaviour to be troublesome and it is not indicative of a Father seeking the return of his child. He has also been very inconsistent. Therefore, the evidence leads me to conclude that the Father acquiesced to the child’s relocation to Canada, and as such, the Father’s application should be dismissed.
Article 13(b)
56Article 13(b) of the Hague Convention provides that the court shall not return the child if there is a grave risk that the return would expose the child to physical or psychological harm or place the child in an intolerable situation.
57There is an abundance of evidence that the Mother has been subjected to verbal, emotional, and psychological abuse by the Father. On occasion, this abuse took place in the presence of the child.
58I am persuaded on a balance of probabilities that if the child was to be returned to Australia, she may be subject to the Father’s erratic and aggressive behaviour. While he acknowledges in his testimony that his behavior was inappropriate, there is no evidence before me that he has taken the necessary steps to deal with his mental health issues or his alcohol and substance abuse.
59The Father does not have an ability to control his anger. While there is no evidence that the child was physically hurt, he has been physically abusive towards the dog, and he has been involved in physical altercations with friends. He has resorted to physical violence in the past. Until such time as he deals with his anger and his mental health issues, I would be concerned for the child’s well-being while in the Father’s presence.
60Despite my findings of the risk, I do not believe that it rises to what would constitute the high threshold of “grave risk of harm.” In determining whether the risk is grave, the decision of Hassan v. Garib, 2017 ONSC 7227 is helpful. At para. 10 of that decision, Engelking J. proposed three questions that should be posed when reviewing the evidence: (a) Has the alleged past violence been severe and is it likely to recur? (b) Has it been life-threatening? (c) Does the record show that Father is not amenable to control by the justice system.
61Although I am concerned that the family violence would recur because the Father’s mental health and substance abuse issues have not yet been resolved, there is no evidence before me that any of the alleged events have been life-threatening or that the Father would not be amenable to control by the justice system. Accordingly, I do not find that there is a grave risk in returning the child to Australia.
Disposition
62For all these reasons, pursuant to the Hague Convention, I declare that the child’s habitual residence is Ontario, and I find that the Father acquiesced that the child relocates, with his Mother, to Ontario.
63I encourage the parties to settle the issue of costs. If they are unable to do so, the Mother shall file and serve her costs submissions, limited to three pages, excluding offers to settle and a bill of costs, within 30 days of these Reasons for Decision. The Father to respond, within 30 days thereafter, with the same page restrictions. Then, if required, the Mother may reply 10 days after receipt of the Father’s response, limited to one page.
M. Smith J
Released: December 12, 2023
COURT FILE NO.: FC-23-1491
DATE: 2023-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dimitrije Sibanic
Applicant
AND BETWEEN:
Chloe Marie Genevieve Dupuis
Respondent
REASONS FOR DECISION
M. Smith J
Released: December 12, 2023```