COURT FILE NO.: FS-24-24220

DATE: 20240812

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jenny Garcia Neris

Applicant

– and –

Elimanuel Pena Lajara

Respondent

Michael J. Stangarone and Tiffany Guo, for the Applicant

Sarah A. Weisman and Morgan E. Nasr, for the Respondent

Kimberly Doucett, for the Office of the Children’s Lawyer

HEARD: April 29, May 2 and May 3, 2024, with written submissions provided thereafter

ruling on application

hebner j.

[1] The applicant mother and the respondent father have two children, LMPG, and ESPG. LMPG is currently 14 years of age and ESPG is currently eight years of age. Until August of 2023, the children lived in the Dominican Republic with the applicant. With the applicant’s consent, the children traveled with the respondent to the United States on June 2, 2023, for the summer holidays. They were to return to the Dominican Republic on August 30, 2023. The respondent refused to return the children and instead kept them with him at his home in Windsor, Ontario.

[2] The applicant brought her application on January 26, 2024, for the return of the children to her under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The Dominican Republic is a signatory to the Hague Convention and is therefore a contracting state with Canada. The applicant seeks a declaratory order under Article 3 that the children are being wrongfully retained in Ontario and an order under Article 12 that the children be returned to her in the Dominican Republic. The respondent opposed the application.

The Relevant Hague Provisions

[3] The objects of the Hague Convention are set out in 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.

[4] Article 3 sets out the meaning of the term “wrongfully removed”:

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.

[5] Article 12 provides for the return of children wrongfully removed:

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.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

[6] Return of wrongfully removed children is mandatory subject to the exceptions set out in 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.

[7] A review of the Hague Convention was undertaken by the Court of Appeal in A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, at paras. 47-49:

The Hague Convention, to which Canada is an original signatory, is implemented as part of Ontario's domestic law under s. 46 of the CLRA. Its overarching principles, as stated in the preamble, are: (1) to treat the interests of children as paramount in matters relating to their custody; (2) “to protect children internationally from the harmful effects of their wrongful removal or retention”; and (3) “to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”.

Article 1 expresses the important objects of the Hague Convention: (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.

To accomplish these objects, the courts of the country of refuge -- the state in which an abducted child is found – “give effect to the custody orders made by the courts of the place of the child's habitual residence by directing that the child be returned to that place”: A. (J.E.) v. M. (C.L.), [2002] N.S.J. No. 446, 2002 NSCA 127, at para. 23. As explained in A. (J.E.), at paras. 23-27, “Other than in exceptional circumstances, the best interests of children in custody matters should be entrusted to the courts in the place of the child's habitual residence” and the interests of children who have been wrongfully removed are “ordinarily better served by immediately repatriating them to their original jurisdiction”: see, also, art. 16 of the Hague Convention; Cannock v. Fleguel, 2008 ONCA 758, [2008] O.J. No. 4480, 242 O.A.C. 221 (C.A.), at para. 21; Katsigiannis v. Kottick- Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456, [2001] O.J. No. 1598 (C.A.), at para. 32; Finizio v. Scoppio-Finizio (1999), 1999 1722 (ON CA), 46 O.R. (3d) 226, [1999] O.J. No. 3579 (C.A.), at para. 41; W. (V.) v. S. (D.), 1996 192 (SCC), [1996] 2 S.C.R. 108, [1996] S.C.J. No. 53, at para. 38; Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, [1994] S.C.J. No. 6, at pp. 577-80 S.C.R. This court has accepted that “[a]dhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown”: Cannock, at para. 23.

Positions of the Respondent and the Ontario Children’s Lawyer

[8] The respondent does not dispute that the children’s habitual residence was the Dominican Republic at the time he refused to return the children to the applicant. The respondent does not dispute that his retention of the children in Windsor, Ontario falls within the Hague definition of wrongful retention.

[9] The respondent relies on two of the exceptions set out in Article 13, namely that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation and that the children object to being returned and have attained an age and degree of maturity at which it is appropriate to take their views into account. The respondent asserts that, based on these exceptions, the requested order for the return of the children to the Dominican Republic should not be made.

[10] The Office of the Children’s Lawyer (“OCL”) supports the position of the respondent.

The Evidence

[11] The affidavit evidence filed is voluminous. The applicant’s evidence consists of affidavits dated March 6, 2024; March 19, 2024; and April 24, 2024. The applicant was cross-examined on her affidavits.

[12] The applicant filed an affidavit of her mother, Dinora Neris Garcia, dated April 24, 2024; an affidavit of her friend, Estenyi Rodriguez, dated April 24, 2024; and an affidavit of her friend, Leticia Taveras, dated April 24, 2024. All three were cross-examined.

[13] The applicant filed an affidavit of Christian Maldonado, lawyer for the Central Authority of the Dominican Republic. Mr. Maldonado was cross-examined on his affidavit.

[14] The respondent’s evidence consists of affidavits sworn March 21, 2024, and April 2, 2024. The respondent was cross-examined on his affidavits.

[15] The respondent filed an affidavit from his wife, Raquel Cecilia De Mesa, dated March 28, 2024. Ms. De Mesa was cross-examined on her affidavit.

[16] The respondent filed an affidavit from Gregoria Peguero Cuello, a lawyer in the Dominican Republic, sworn April 11, 2024. Ms. Cuello was cross-examined on her affidavit.

[17] The OCL filed affidavits from a clinician, Jonathon DeLuca, sworn March 21, 2024, and April 9, 2024. Mr. DeLuca was cross-examined on his affidavits.

[18] There were 35.1 affidavits filed by both parties, affidavits relating to 14B motions filed by both parties and the OCL, and many Evidence Act notices filed by both parties.

[19] I have reviewed all of the evidence filed. I have not referred to it all in this decision. It is voluminous. I have considered all of the evidence in coming to my decision in this case.

The Facts

Background

[20] The applicant and respondent began to live together in April of 2007 in the Dominican Republic, where they were both citizens. They were married in 2013. LMPG and ESPG were both born in the Dominican Republic.

[21] The respondent has a son from a previous relationship, JG, born in December 2003. JG is currently 22 years of age. JG began to reside with the parties in 2008.

[22] The respondent was a medical doctor in the Dominican Republic. He details difficulties in his career because he refused to take part in a fraudulent surgery referral scheme. Eventually the respondent obtained employment providing ultrasounds in 2014.

[23] In 2014, the parties decided to immigrate to Canada. They came to Canada in March of 2015 so the respondent could take an English Assessment Exam. They stayed with the applicant’s relatives in North York, Ontario. After two months, the applicant returned to the Dominican Republic and the respondent went to visit his sister in New York. The respondent failed the English Assessment Exam and returned to Canada to write it again in May of 2015.

[24] The respondent returned to the Dominican Republic on May 23, 2015, after the applicant called him alleging that JG had molested LMPG. JG was 11 years of age at the time. The parties took LMPG to a psychologist who found nothing of concern and the respondent asserts that the allegation was fabricated.

[25] The parties returned to Canada in September of 2015 and the respondent intended to make a refugee application. Conflict ensued between the parties, and they separated with the applicant and LMPG travelling to New York. A divorce order was obtained in the Dominican Republic on December 30, 2015, with the cause identified as “Mutual Consent”.

[26] The parties returned to the Dominican Republic on January 30, 2016, and stayed together given the impending birth of ESPG.

[27] The parties’ relationship did not improve, and the respondent left for Canada in May of 2016. He traveled back and forth for a period of time while pursuing immigration. The respondent moved to Canada permanently in July of 2017, taking JG with him. The children remained in the Dominican Republic with the applicant.

[28] The applicant filed evidence of legal proceedings in the Dominican Republic in 2019 whereby the applicant had initiated a claim for sole custody of the children. She produced her court application along with a copy of a child support order from the Dominican Republic, dated January 29, 2020, requiring the respondent pay child support for their children. The proceedings remain outstanding, and it appears as though there was a court date scheduled for March 11, 2024.

[29] Thereafter, contact between the respondent and the children was generally by way of phone or tablet. The respondent asserts that the applicant took steps to terminate any relationship by interfering with communications and moving the children without providing addresses.

[30] For three months in 2019, from March to May, the applicant left the children with her mother, Dinora, in the Dominican Republic when she travelled to New York. A cousin, Emanuel, also lived with Dinora and there are allegations of abuse that occurred during this time period.

[31] Through communications, the respondent became aware of allegations of violence against the children. On August 23, 2019, he contacted the local protection agency to file a complaint. Eventually he was told that an investigation had occurred and if the respondent insisted on pursuing the matter, the children would be taken away and placed in foster care.

The Children’s Travel to Canada

[32] In the spring of 2023, the parties agreed that the respondent would take ESPG and LMPG to visit their paternal grandparents in Florida and then travel to Canada to spend time with the respondent in his home in Windsor, Ontario. The applicant provided a notarized letter of consent to travel allowing the respondent to travel internationally with the children and return to the Dominican Republic by August 30, 2023.

[33] On June 2, 2023, the respondent traveled with the children from the Dominican Republic to Florida. The respondent then made his way to his home in Windsor with the children.

[34] The respondent asserts that the children disclosed neglect, physical abuse, verbal abuse and psychological abuse that they suffered while in the applicant’s care in the Dominican Republic. LMPG said that she did not want to return. The respondent said he decided to “strike while the iron was hot” and keep the children with him in Canada.

Family Violence and Neglect

[35] There was violence in the parties’ marriage substantiated by various documents. In February of 2016, the applicant was required to appear before the Victim Assistance Unit for having exercised domestic violence against the respondent.

[36] The respondent asserts that the applicant was abusive to JG with an assault reported in February of 2016.

[37] The respondent asserts that the applicant assaulted him on December 30, 2017.

[38] In March of 2019, LMPG contacted the respondent to tell him that something happened with ESPG. The respondent called the applicant who advised that the following had occurred: ESPG was being naughty; she grabbed ESPG by the arm to whip him with a flip flop; ESPG pulled backwards; and his arm was injured.

[39] On March 20, 2019, the applicant contacted the respondent to tell him that ESPG had ingested a full bottle of vitamins and vomited them up.

[40] On December 29, 2019, the applicant dislocated ESPG’s arm such that he required hospitalization and a cast.

[41] ESPG suffers from eczema and has had several foot infections as a result. It is apparent from photographs taken by the applicant in the Dominican Republic that the infections were severe and painful. The respondent asserts that the applicant did not properly treat the condition.

[42] The children were hospitalized several times in 2021 and 2022: ESPG in February of 2021 for an injury requiring stitches; ESPG in July of 2022; LMPG in September of 2021; and LMPG in March of 2022. In January of 2023, LMPG was admitted to hospital for anemia due to iron deficiency. The respondent asserts that the cause was malnutrition.

The Children’s Lawyer

[43] Mr. DeLuca, an OCL clinician, met with the children on four separate occasions. He interviewed both of the parties. He obtained information from the Windsor-Essex Children’s Aid Society and their counterpart in the Dominican Republic, the Children and

Adolescents National Council (“CONANI”). Mr. DeLuca provided a helpful, child-focused chronology of events as follows:

a) The applicant and respondent began living together in the Dominican Republic in April 2007.

b) The applicant and respondent were married in the Dominican Republic on July 15, 2013.

c) The child, LMPG, was born in Monsenor Nouel, Dominican Republic, on August 26, 2010.

d) The child, ESPG, was born in Monsenor Nouel, Dominican Republic, on April 25, 2016.

e) The parties were legally divorced in the Dominican Republic by Order issued December 30, 2015.

f) The respondent permanently moved from the Dominican Republic to Canada in 2017. The respondent married Raquel Cecilia DeMesa Pena on November 4, 2017, in Windsor, Ontario.

g) The respondent father had frequent contact with the children through video calls and visits and maintained a positive relationship with the children following his move to Ontario.

h) The applicant and the children, LMPG and ESPG, resided at Nagua No. 7, Resparto Yuna Bonao, in Monsenor Nouel, Dominican Republic until June 2, 2023.

i) The children were enrolled in and attended school at Colegio Juan Pablo Duarte, in the Dominican Republic.

j) The applicant mother continues to reside at Nagua No. 7, Resparto Yuna Bonao, in Monsenor Nouel, Dominican Republic.

k) The respondent father, LMPG, and ESPG are currently residing in Windsor, Ontario with Raquel Cecilia DeMesa Pena; Raquel’s son, born May 2, 2008; the respondent's son from a previous relationship, JG, born December 8, 2003; and the respondent and Raquel's child, born October 22, 2018. LMPG and ESPG are enrolled in, and attending, grades 8 and 2, respectively, at St. Angela's Catholic School.

l) LMPG is active and engaged at school, playing school sports including volleyball, and playing the saxophone.

m) ESPG is also engaged in his schooling in Ontario. Both children are described as good students.

n) LMPG and ESPG attend for counselling through Hiatus House in Windsor, Ontario with Celeste Tremblant, a Registered Social Worker.

o) The respondent father is a Canadian Citizen, and the children, LMPG and ESPG, have Permanent Residence Status in Canada. The children are also citizens of the Dominican Republic.

p) The applicant mother is a citizen of the Dominican Republic and has Visitor's Status in Canada.

q) LMPG and ESPG attend for weekly ESL (English as a Second Language) support through Windsor-Essex Catholic District School Board.

Information from LMPG

[44] Mr. DeLuca said that LMPG presented as a mature, intelligent and articulate girl. The interview took place with the assistance of a translator and LMPG’s occasional use of English. Mr. DeLuca said that LMPG used age-appropriate language and her answers were thoughtful and insightful. LMPG maintained that nobody told her what to say.

[45] LMPG strongly and consistently objects to going back to the Dominican Republic. She described the importance of staying in Windsor as 10 out of 10. She said that she would feel imprisoned if she would have returned to the Dominican Republic because when her mother is alone with her, she turns “nasty”.

[46] LMPG expressed her fear of her mother when she yells and hits LMPG. LMPG said she would be blamed if ESPG misbehaved or if anything happened to ESPG. LMPG said that her mother hit her using a slipper, a belt or tree branches. LMPG said that her mother would often hit her on the feet, pull her up by the arms, and continue to hit her on the legs and torso.

[47] LMPG said that her mother would yell at her and hit her regularly and frequently and would belittle her and call her names, telling her she is “good for nothing”.

[48] LMPG said that her mother and her maternal grandmother taunted and made fun of her when she had head lice and were derogatory to her, including calling her “pata do loba” (that she had the foot of a wolf) because she has an extra toe. LMPG said that her maternal grandmother yelled at her, hit her and made her feel rejected. LMPG said she was mistreated by Emanuel who hit her, taunted her and would “tease her in a bad way” by locking her in the bedroom or bathroom, taking her phone, and on New Year’s Eve 2022, telling her that her mother had gotten into an accident and died.

[49] LMPG described times in 2018 and 2019 that the applicant left the children and went to New York with her partner “for five months”. LMPG said that she and ESPG stayed with their maternal grandmother who would “not treat us well and would scream at us most days for 20 to 30 minutes at a time”.

[50] LMPG said her mother frequently left her alone with ESPG in a caregiving role for two to three hours during the day but also in the nighttime, not returning until the following morning. LMPG said that the applicant would take them and leave them in the car for hours at a time in the parking lot of “places to drink alcohol”. LMPG was responsible for cleaning ESPG, showering him, cooking for him, feeding him, and cleaning house. If her mother came home and things were not done, she'd “smack” LMPG on her “whole body” using hands, belt, slippers and pieces of a tree branch.

[51] LMPG spoke of a time when she was home alone with ESPG and he was hungry. When her uncle came by, she asked for money for food. When her mother found out that she had asked for money, she took the money from LMPG and “smacked” her.

[52] LMPG felt it was better she stayed in Windsor because her father made her feel “good and safe”. LMPG described her home life in Windsor as “great, everyone gets along and are nice to one another”. She talked about making marshmallows in the backyard, making bread, pancakes, playing board games and bike riding.

Information from ESPG

[53] Mr. DeLuca said that ESPG presented as a quiet, intelligent and articulate seven-year-old boy. The interview took place with the assistance of an interpreter, although ESPG also spoke English. He maintained that no one told him what to say.

[54] ESPG said he did not want to return to the Dominican Republic. The importance to him that he remains him Windsor is 7 out of 10. ESPG strongly objects to being separated from his sister, LMPG. ESPG was adamant and expressive in stating that he did not want to be separated from his sister.

[55] ESPG remembered how his arm almost broke. He said he was at a mall with his mother and he did not want to leave so his mother “pulled him out”. ESPG had to wear a cast for two and a half months.

[56] ESPG said that his father did not talk to him about his mother, but his mother did talk about his father. He said, “but I don't remember what she said”.

[57] ESPG said he missed his mother and liked their phone calls. He enjoyed the time with his mother and cousins during the visits.

The Parenting Time in Ontario

[58] In February, the applicant was in Ontario staying at a relative’s home in the GTA. On February 14, 2024, I ordered that the applicant mother have parenting time with the children in person every weekend from Saturday at noon to Sunday at 7:00 p.m. commencing March 2-3, 2024. In addition, the applicant was to have daily virtual parenting time at 7:00 p.m., with LMPG's involvement to be at her discretion. The in-person parenting time was subject to the following:

1. The applicant was to be accompanied by her cousin or a member of her cousin’s family.

2. The pick-up and drop-off location was the parking lot of St. Alphonsus church in Windsor.

3. LMPG was to be encouraged to stay overnight with the applicant but was not required to do so.

[59] LMPG disclosed to Mr. DeLuca that on Saturday, March 16, 2024, while at a hotel in Windsor with the applicant and ESPG, the applicant cornered her in the bathroom and would not let her out. LMPG said when she tried to leave the bathroom, the applicant took her arm and twisted it insisting that LMPG listen to what she had to say. Eventually, LMPG managed to get out of the bathroom and texted her father asking him to come and pick her up.

[60] LMPG had her phone with her in the bathroom and was able to record some of her mother's comments. The recording was translated into English. The recording contains many derogatory comments made by the applicant towards the respondent. They include:

• “And that family of yours, on your father's side, they're a bunch of fake people; and liars, and enablers, and cover ups. They are all a bunch of useless people. Every single one of them.”

• “They are not honest. They live hiding everything, the problems, between them, so that no one finds out. They’re useless, all of them. Is that the family you want to stay close to? To your father's immoral family?”

• The applicant said that the respondent and his family were using LMPG as a “maid”.

• The applicant called the respondent a “scumbag”. The applicant said that the respondent “manipulated” LMPG and ESPG.

• The applicant said the respondent wanted “money”.

[61] Many of the comments were echoed by the applicant’s companion who accompanied the applicant pursuant to the terms of my order.

[62] ESPG told Mr. DeLuca that he remembered at the hotel he was sitting on the bed playing on his mother's phone when he heard yelling. He said he did not hear what was said and could not see the bathroom from the bed. The police came to the hotel room, and it made him feel “scared a bit”.

[63] After these events, the applicant’s parenting time with LMPG broke down and LMPG refused to attend.

The Expert Evidence

[64] The applicant called Cristian Maldonado, a practicing lawyer in the Dominican Republic for CONANI, which is the central authority of the Dominican Republic that implements The Hague Convention and the governing body within the administrative scope of the Dominican Republic's national child protection system.

[65] Mr. Maldonado testified that the respondent could initiate a custody application in the Dominican Republic should he choose to do so. Although he said this could happen with the respondent in Canada, in reality the respondent would be required to return to the Dominican Republic with the children.

[66] Mr. Maldonado talked about the nature of custody proceedings in the Dominican Republic, including that the parents can be represented by their respective lawyers and that the Crown, with the public prosecutor, has an impartial role in the proceedings. He said that the state prioritizes the best interests of the child along with family and society.

[67] In cross-examination, Mr. Maldonado confirmed that physical discipline of children has been a live issue in the Dominican Republic, specifically in rural areas. He said that the state has tried to improve and mitigate this issue with the assistance of non-governmental agencies and programs.

The Respondent’s Lawyer

[68] The respondent provided evidence from his lawyer in the Dominican Republic, Ms. Cuello. The respondent testified that he could not go back to the Dominican Republic because the applicant could make false allegations of domestic violence against him. Ms. Cuello was questioned about the process in the Dominican Republic should such allegations be made. She said that the perpetrator of the violence is immediately incarcerated. After 48 hours there is an inquiry. The inquiry does not always happen within 48 hours. Many, many times the inquiry takes place later than that. The respondent could be incarcerated for three months or more after the time when the investigation is concluded before a trial takes place.

The New Evidence Motion

[69] After all the evidence had been heard, submissions made and the matter was under reserve, the respondent filed a motion seeking to file new evidence. The applicant opposed the motion.

[70] A week after the hearing took place, the applicant returned to the Dominican Republic. The applicant had not requested her court ordered parenting time for approximately five weeks. On Friday, June 7, 2024, the applicant’s counsel advised that the applicant had returned to Toronto and intended to exercise her court ordered parenting time. The letter said, “The parenting orders of Justice Hebner remain in effect pending the disposition of the Hague Convention hearing.” Of course, that statement was correct.

[71] Respondent’s counsel advised, by letter dated June 7, 2024, that the respondent and their children “will be out of town this weekend”. Counsel requested the reason why the respondent was provided with only a few hours notice. Counsel indicated they would provide some options for the applicant’s parenting time the following week.

[72] On June 13, the applicant attended, alone, at the children’s school bus stop. When the school bus arrived, the applicant spoke to the children. ESPG went with the applicant. LMPG did not. The applicant texted the respondent immediately and told him that she had ESPG. When the applicant did not respond to further text messages, the police were called and a parental abduction alert was issued. The applicant and ESPG were located at a gas station in Windsor near the 401 highway.

[73] The applicant has been charged with abduction of a child in contravention of a parenting order under s. 282(1) of the Criminal Code. She spent seven nights in jail and was released on conditions, including the use of a GPS monitoring device and a prohibition from contacting the respondent and the children except pursuant to a family law order made after the release date.

[74] In her affidavit, the applicant deposed that the respondent misled the police when he claimed that the applicant violated my order. She said, “[t]here is no existing court order or agreement with respect to parenting of our children.” The applicant claims that she was on her way to the applicant’s home with ESPG when police stopped her and she was charged. She makes the valid point that she could not have left the country with ESPG because his passport was being held by the OCL.

[75] Mr. DeLuca interviewed the children and filed an affidavit setting out the children’s disclosures of the event. LMPG said that when she and ESPG got off the school bus, the applicant was standing at the bus stop. The applicant approached her, tried to hug her, told her that she missed her and that she had plushies (stuffed toys) for her and ESPG. The applicant told LMPG that their father had said she could take them out to eat for 30 minutes. LMPG did not believe her mother and refused to go.

[76] LMPG saw her stepbrother, JG, walking down the sidewalk and the applicant took ESPG by the arm and left with him.

[77] ESPG said that when he saw his mother at the bus stop, she told him that his father said she could spend a few minutes with him. ESPG had not had video calls with his mother for a long time, although he did not know why. The applicant gave ESPG a plushy and “it looked nice”. They got into the applicant’s car. The applicant told ESPG that they were going to Toronto and ESPG became “worried and confused”.

[78] ESPG said he saw something on his mother’s phone to buy plane tickets and he was worried that his mother was going to fly with him somewhere and he was scared that he would not come back.

[79] ESPG said that he and his mother stopped to eat at a Tim Horton's because ESPG said he was hungry.

[80] Before I move on to the analysis of the Hague application, I must consider the respondent’s motion on the new evidence. The applicant opposes, suggesting that a consideration of the evidence would require further cross-examinations that would result in a delay. I am not prepared to delay this matter any further. There will be no cross-examinations on the affidavit evidence.

[81] The test for admitting fresh evidence is set out in the seminal case of R. v. Palmer, [1980] S.C.R. 759, and can be set out in the form of three questions: Is the evidence relevant? Is the evidence credible? Is the evidence capable of affecting the result?

[82] In R v. S.H., 2019 ONCA 669, [2019] O.J. No. 4438, at para. 72, the Court of Appeal explained the approach to take in an application to reopen a civil case thusly:

The law takes a more liberal approach to reopening in civil cases and in criminal cases where the accused seeks to reopen prior to the entering of a conviction. In civil cases, as Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst explain in The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at para. 16.237, the trial judge has a relatively wide discretion to permit reopening as long as it is the reasonable and proper course to follow.

[83] There is a dearth of cases where a motion was brought to reopen a case after argument and while the decision was under reserve, as is the case here. The situation arose in the Federal Court case of Varco Canada Limited v. Pason Systems Corp., 2011 FC 467, [2011] F.C.J. No. 575. Phelan J said that the law on reopening a case after reasons have been issued gives the court some guidance on the issues that must be considered. At para. 15, the court said:

The first point and an overarching aspect is that reopening is a matter of broad discretion but one which should be exercised sparingly and cautiously. Finality of a trial is a critical concept in our justice system — no one appreciates that concept more than a trial judge who is faced with the generally unpleasant task of reopening a case on which he or she has commenced writing.

[84] The court in Varco, at para. 16, citing 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 SCR 983, identified that the factors on a motion to reopen after a judgment is released are “1. Would the evidence, if presented at trial, have changed the result? 2. Could the evidence have been obtained before trial by the exercise of reasonable diligence?”

[85] In the Divisional Court decision of Risorto v. State Farm Mutual Automobile Insurance Co., (2009), 70 CPC (6th) 390 (Ont.), at para. 35, the court said:

The policy reasons for the adoption of the two-pronged test are well-known, and have been discussed in a number of the cases to which I have referred. An orderly system of litigation requires that each party put his or her best foot forward. It contemplates that judgment will be rendered after each party has done so. Litigation by instalments is not to be encouraged. There is a strong interest in finality, which should only be departed from in exceptional circumstances. Parties make strategic decisions in the course of litigation, and except in narrow circumstances they must be held to those decisions. At para. 14 of her judgment in DeGroote, supra, Lax J. quoted with approval the following statement by Wilkins J. in Strategic Resources International Inc. v. Cimetrix Solutions Inc. (1997), 1997 12168 (ON SC), 34 O.R. (3d) 416, at p. 421:

After the trial is complete and judgment is rendered, it is always a simple matter, utilizing hindsight, to go about reconstructing a better method of presenting the case when one finds oneself in the sorry position of being a loser.

[86] Turning then to the case at hand, I use the two-pronged test set out by the Federal Court in Varco.

Potential to change the result

[87] Since there is no result to change, the relevant question is whether the new evidence is relevant.

[88] Given the lack of cross-examinations, I take the fresh evidence in the best light for the applicant. Accordingly, for the purpose of my analysis on the motion, I accept that there was no intention to leave the country with ESPG. I accept that the applicant simply wanted to see her children. I do not accept the applicant’s assertion that there was no order in place. The letter of counsel for the applicant clearly confirmed that the applicant was aware that my outstanding order remained in place. Accordingly, the applicant’s actions in attending at the children's bus stop without accompaniment discloses a willingness to disobey court orders.

[89] The applicant’s willingness to follow court orders, or otherwise, is a relevant consideration in determining a Hague application.

Due diligence

[90] The events that are the subject of the motion for fresh evidence took place after the hearing of the motion and the filing of written submissions. Accordingly, this is not a case where, had the applicant exercised due diligence, the evidence would have been available.

Conclusion

[91] The primary concern must be for the integrity of the trial process. Given that light in which I consider the respondent’s evidence, I do not see any significant prejudice to the applicant. This court now has knowledge that its order was ignored by the applicant, and it cannot turn a blind eye to the effect of that knowledge. Accordingly, I grant the motion only insofar as explained above and I will consider it in my analysis to that extent.

Hague Application - Legal Principles

[92] The framework for the analysis is set out in the Court of Appeal decision of Ludwig v. Ludwig, 2019 ONCA 680, [2019] O.J. No. 4437. Stage 1 deals with the determination of the children’s habitual residence immediately before the date of the alleged wrongful removal. That is not an issue in this case. Here the children’s habitual residence was clearly the Dominican Republic where the applicant had de facto custody of the children and the respondent concedes as such.

[93] The analysis in this case commences after stage 1.

Stage Two: Exceptions

[94] At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2. There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3. 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.

4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); or

5. 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).

[95] In this case there are two exceptions relied upon by the respondent and the OCL. The first is that there is a grave risk that a return of the children would cause physical or psychological harm or place the children in an intolerable situation. The second is that the children are of sufficient age and maturity and object to being returned. I consider each in turn.

1. First Exception — Grave Risk of Physical or Psychological Harm or Place the Child in an Intolerable Situation — (Article 13(b))

[96] The burden rests on the respondent and the standard of proof is on the balance of probabilities.

[97] The threshold for a party to prove there is a “grave risk” of physical or psychological harm is a high one: see Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551; see also Harley v. Harley, 2023 ONSC 2563, [2023] O.J. No. 2025. As set out in Thomson, at para. 80, the risk must 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. ...[N]ot 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”.

[98] The court in Thomson went on say, at para. 81, that the risk need not come from a cause related to the return of the child to the other parent as distinct from the mere removal of the child from the current caregiver. “As this court stated in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, from a child centered perspective, harm is harm. If the harm were severe enough to meet the stringent test of the convention, it would be irrelevant from whence it came.”

[99] The Ontario Court of Appeal upheld the Ontario Superior Court of Justice decision of Perkins J. in Landman v. Daviau, 2012 ONSC 547, [2012] O.J. No. 380, where he rejected the notion that children must be at grave risk of “being pushed beyond the limits of endurance before the court could decline an order for return”. The court instead adopted an approach focused on the circumstances and sensibilities of the child before the court, suggesting that the appropriate interpretation of an “intolerable situation” is a situation which a “particular child in these particular circumstances should not be expected to tolerate”: see para. 103.

[100] The evidence of Mr. DeLuca is compelling and, in my view, reliable. He met with the children separately on more than one occasion and articulated their disclosures in his affidavit evidence and in his viva voce evidence in cross-examination.

[101] LMPG spoke of physical discipline where her mother beat her with a slipper, belt or a tree branch on her feet, her arms, her legs and her torso. This, along with verbal abuse in the form of name calling and taunting by both her mother and her maternal grandmother, happened regularly.

[102] LMPG spoke of being left alone with ESPG, sometimes without sufficient food or money. She spoke of having to care for ESPG and was punished when she did not.

[103] ESPG carried physical evidence of abuse and neglect with injuries to his arm from attempts at physical discipline and severe eczema causing foot infections.

[104] In my view, the abuse and neglect described by the children is nothing short of horrific such that to put the children in the care of the abuser would constitute a “grave risk” of physical harm.

[105] I also find a grave risk of psychological harm to exist. The evidence of taunting and verbal abuse described above is something no child should have to endure. Moreover, the incident that occurred in the bathroom of the hotel during the applicant’s parenting time, when she should have been on her best behaviour, also constitutes psychological abuse. The applicant repeatedly berated LMPG after she cornered LMPG in the bathroom and twisted her arm, making repeated derogatory remarks about the respondent.

[106] LMPG is fearful of her mother and, given the applicant’s behaviour, the fear is justified.

[107] I find that the risk of returning the children to their mother in the Dominican Republic would put them in a situation they should not be expected to tolerate. I further find that to return the children to their mother in the Dominican Republic would put them at grave risk of physical and psychological harm.

2. Second Exception: children of sufficient age and maturity object to returning

[108] In Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, the Supreme Court discussed the exception in Article 13(2) of the Hague Convention. A fact-based, common-sense approach should be taken to determine whether the elements of

Article 13(2) are satisfied. McLachlin CJ, speaking for the majority, made the following comments:

• The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if the party opposing return establishes that: (1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account (at para. 77).

• Basically, it is for the application judge to determine, as a matter of fact, whether those elements are established. In most cases, the object of Article 13(2) can be achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make her evidence useful, decides if the child objects to return, and, if so, exercises his or her judicial discretion as to whether to return the child (at para. 78).

• Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony, and circumstances (at para. 79).

• As in the case of age and maturity, the child’s objection should be assessed in a straight-forward fashion — without the imposition of formal conditions or requirements not set out in the text of the Hague Convention (at para. 80).

• If the elements of (1) age and maturity and (2) objection are established, the application judge has a discretion as to whether to order the child returned, having regard to the “nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations” (at para. 81).

[109] The general Hague Convention considerations include the overarching objectives of the convention, namely, to secure the prompt return of wrongfully removed or retained children to their country of habitual residence and to ensure that custody rights are respected (Ludwig, at para 39).

[110] In this case, Mr. DeLuca said that LMPG presented as a mature, intelligent and articulate girl. LMPG is 14 years old. She has spent much of her life caring for her brother and, according to Mr. DeLuca’s evidence, continues to do so. When speaking to Mr. DeLuca, LMPG used age-appropriate language and her answers were thoughtful and insightful.

[111] LMPG strongly objects to going back to the Dominican Republic. She said she would feel like a prisoner if she had to return. She wants to stay in Windsor with her father and his family so much so that she described the desire as 10 out of 10. LMPG has been adamant, clear and consistent in her views.

[112] LMPG’s objections to returning to the Dominican Republic are grounded in her experiences of physical and emotional abuse when she lived there at the hands of her mother and her grandmother. She is afraid to return.

[113] LMPG told Mr. DeLuca that in Windsor with her father she feels “good and safe and I don’t want to go back because my mother was really bad with me”. LMPG likes living with her father; stepmother; ESPG; JG, her stepbrother; and her sister. She describes her home as “great” and speaks of going to parks and playing outside. LMPG is attending grade 8 at St. Angela’s school in Windsor and describes it as “so nice, people are so nice with you, I like that”. The description of her current life in Ontario is in stark contrast with her description of her life in the Dominican Republic.

[114] I find that LMPG has reached an appropriate age and degree of maturity at which her views can be taken into account. Indeed, her views must be taken into account and cannot be ignored.

[115] ESPG is just eight years of age. ESPG presented as a quiet, intelligent and articulate boy. He used age-appropriate language and demonstrated thoughtfulness and insight when answering questions.

[116] ESPG also strongly and consistently objects to returning to the Dominican Republic. The importance to him that he remains in Windsor, Ontario is “7 out of 10”. ESPG has stated that he misses the Dominican Republic “just a little, not that much stuff I liked in the Dominican Republic, kinda like nothing”. He stated that he did not like school in the Dominican Republic but really likes it at St. Angela’s in Windsor, Ontario, where he is in Grade 2.

[117] ESPG said he wants to stay with his father and family in Windsor and strongly objects to being separated from his sister LMPG. These two children have a very strong bond. LMPG cared for ESPG consistently and continues to do so. LMPG said that if ESPG had to return without her, it would be “really, really bad”. She said ESPG is “everything to me, more than just a brother” and, “I have always taken care of him”.

[118] The bond between the two of them was evident to Mr. DeLuca who said that ESPG would fall asleep in his waiting room while LMPG had her interview and LMPG would wake ESPG up in a gentle and loving manner. Similarly, when they shared pizza following an interview LMPG fixed ESPG’s hair as he had just woken up and ESPG drank from LMPG’s bottle of water instead of his own.

[119] It cannot be said that ESPG has reached an appropriate age and level of maturity at which his views can be taken into account.

[120] However, the role that LMPG has played in ESPG’s life was so important and the bond they share so tight that to return ESPG to the Dominican Republic without LMPG would, in my view, create an intolerable situation for him. LMPG has consistently watched over ESPG and protected him from perceived harm. This sibling relationship is simply that important in this case.

[121] In Hurdle v. Hurdle, 1991 12850 (ON SC), [1991] O.J. No. 657, 31 R.F.L. (3d) 349, a non-Hague custody case, Granger J said, at para. 6:

In my view, a court whether on an interim motion or at trial, should strive to ensure that siblings are raised together in order that they can enjoy the company of their brothers or sisters. The evidence should be extremely compelling, before a judge should grant a judgment or order which would separate the children in their formative years.

[122] That sentiment is very apt here. ESPG needs his sister and must not be separated from her.

Do Safeguards Exist in the Dominican Republic?

[123] I am concerned about the ability of the Dominican Republic to protect the children from abuse and neglect.

[124] When he became aware of the abuse, the respondent contacted CONANI in the Dominican Republic without success. Based on his evidence, it appears as though the respondent’s concerns were not taken seriously, and ESPG continued to suffer abuse.

[125] The evidence of the applicant was that she received just two telephone calls: the first in 2019 as a result of a complaint that she was mistreating the children; and a call from the Office of Children’s Welfare when ESPG suffered an injury to his arm in December of 2019. There does not appear to have been a thorough investigation.

[126] Mr. Maldonado confirmed that physical discipline of children has been a live issue in the Dominican Republic.

[127] The United Nations Convention on the Rights of the Child released a report dated October 18, 2023, wherein it sets out concerns and recommendations in the Dominican Republic (the state). In paragraph 4, the committee draws the state’s attention to areas in which urgent measures must be taken, including violence against children. Many recommendations are made to address concerns with the legislation and implementation of children’s rights. Paragraph 24 sets out the violence against children concerns of the committee:

24. The Committee is seriously concerned about the significant challenges the State party faces in protecting children from all forms of violence, including the:

(a) DESPG in the enactment of a comprehensive law that addresses all forms of violence against children, in all settings, including violent forms of discipline in the home and within the family;

(b) Lack of a comprehensive national strategy to prevent and respond to all forms of violence against children, especially in the social, health, education and justice sectors;

(c) Lack of full harmonization of the criminal framework with the highest international standards on children’s protection from violence;

(d) Use of violence against children by police officers.

[128] In paragraph 26, the Committee specifically addresses the use of corporal punishment:

Corporal punishment

26. With reference to its general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, the Committee urges the State party:

(a) To prohibit explicitly and to eliminate corporal punishment in law and in practice in all settings, including the home, alternative care settings and day care;

(b) To establish policies, protocols and procedures to respond with appropriate action when corporal punishment takes place;

(c) To consolidate a national system of data collection and analysis of corporal punishment;

(d) To promote positive, non-violent and participatory forms of child-rearing and discipline.

[129] In light of theses concerns and recommendations, as well as the evidence in this case, I am not convinced that the Dominican Republic has sufficient safeguards in place to protect these children.

[130] The applicant suggests that the respondent could travel to the Dominican Republic and litigate the parenting issues there. I do not see that as a viable option. The respondent is fearful of false allegations being made against him in the Dominican Republic. Ms. Cuello confirmed this as a possibility. The respondent’s concerns are real, although there is no evidence that the applicant plans to make such allegations. Moreover, the applicant’s son JG, wife, and six-year-old child are in Windsor.

[131] The applicant asserts that the abuse is not likely to reoccur. I disagree. The applicant took the opportunity during court ordered parenting time in Windsor to verbally abuse and berate LMPG.

[132] I consider the applicant’s actions disclosed by the new evidence. The applicant has displayed a willingness to disobey a court order. Accordingly, even if the court in the Dominican Republic were to make orders protecting the children from violence, I am not satisfied that the applicant would follow them, nor am I satisfied that the applicant would follow any direction from authorities there.

Disposition

[133] For these reasons, I make the order requested by the OCL. I dismiss the applicant’s application and I order that this court exercise jurisdiction over parenting time and decision-making for the children in this matter.

[134] If the respondent or the Office of the Children’s Lawyer seeks costs, they shall serve and file written costs submissions within 14 days following the release of this decision. The applicant will then have a further 14 days to serve and file any written response. The submissions should not exceed five pages, not including any offer to settle or costs outline. The submissions should be filed with the court through the JSO portal.

Pamela L. Hebner

Justice

Released: August 12, 2024