Chawla v. Marakani, 2024 ONSC 6307

OSHAWA COURT FILE NO.: FC-24-00001326-0000 DATE: November 14, 2024

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: HITANSHU CHAWLA, Applicant AND: ANISHA RAO MARAKANI, Respondent

Counsel: Kristy Maurina, for the Applicant Farrah Hudani/Katherine Allen, for the Respondent

HEARD: November 6, 2024

Application under The Hague Convention on the Civil Aspects of International Child Abduction

JUSTICE L. E. FRYER

I. Introduction

[1] The court heard the Applicant (Father)’s application under The Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89, Can TS 1983 No 35 [“the Convention”].

[2] The Father is seeking the return of the parties’ child: Miraya Devi Chawla born May 12, 2024, to Champaign, Illinois, USA on the basis that this is her habitual residence, and she has been wrongfully retained by the Respondent (Mother) in Ontario since September 16, 2024.

[3] Miraya was born in Champaign, Illinois. The parties were residing with Miraya in a home that they purchased in March 2024 until August 28, 2024, when they came to Canada for a visit with family. They intended to return to Champaign on September 16, 2024, as the baby had a medical appointment.

[4] The parties’ marriage had been difficult. The Respondent (Mother) alleges that she was subjected to emotional, physical and financial abuse throughout, and that the Father’s abuse had escalated to include Miraya.

[5] The parties discussed separating on September 10, 2024. On September 12, 2024, the Father called the police to his parent’s home where the parties were staying. The Mother left with Miraya and has since refused to return with her to Illinois.

[6] The Father was criminally charged by the Peel Regional Police on October 11, 2024, with assaulting the Mother and the child. The Father was not permitted contact with the Mother or the child except through subsequent order of the Family Court. He was permitted to return to the U.S. where he works as a doctor.

[7] The Mother’s position is that Miraya’s habitual residence is Ontario and Champaign, Illinois is only a secondary residence. The Mother asserts that it has always been the plan for her and Miraya to live in Ontario.

[8] The Mother argues in the alternative that if it is found that Miraya’s habitual residence is in Illinois, the child should not be returned to that State as the child will be at grave risk of being exposed to physical or psychological harm from the Father and/or that Miraya will be placed in an intolerable situation if the Mother’s immigration status in the U.S. is terminated.

II. Background

[9] The parties are both Canadian. They grew up in the Greater Toronto Area (GTA).

[10] They met in 2021 and started dating.

[11] The Father has been working in the U.S. as a doctor since 2013. The Father also works with medical students at the University of Illinois.

[12] The Mother works for TD Bank Group (TD) in Toronto as a business process analyst. She is currently on maternity leave until May 2025.

[13] The Mother had an apartment in Toronto which she gave up in 2020 at the beginning of the COVID-19 pandemic. When the parties started dating, the Mother was living between her sister’s home in Claremont and her parents’ home in Pickering.

[14] The Father also has family in the GTA including his parents who live in a home owned in part by the Father in Brampton.

[15] The Father generally works seven days on and seven days off at the hospital. He would come to Ontario on his weeks off to spend time with the Mother when they were dating. Around October 2021, the Mother started to spend time with him in Illinois.

[16] The parties married on September 7, 2022. They later learned that their officiant was not properly licensed, and they applied to the court in Ontario to have their marriage validated. Following what the parties referred to as their religious marriage, the Mother started spending more time in Champaign. She was able to work remotely, and the Father suggested that her employer was likely not aware that she was not located in Toronto.

[17] The Mother was stopped at the border in June 2023 and flagged. On the advice of their U.S. immigration lawyers, the parties went through a civil ceremony at the City Hall in Champaign on July 3, 2023. The Mother obtained a U.S. spousal visa.

[18] There is some evidence that in 2022 and late 2023, both parties were dissatisfied with life in Champaign and were discussing options.

[19] In the summer of 2023, the parties briefly looked at condominiums in Toronto. The Mother stated that they had agreed that Toronto would be their home as it was closer to her office at TD even though she was still working remotely at that time.

[20] In September 2023, the parties started to look at buying a home in Champaign.

[21] In October 2023, the parties announced that they were pregnant with Miraya.

[22] The parties’ marriage continued to be troubled. In early December 2023, the parties had some disagreement. Neither party provided details of what transpired but the Father was recently criminally charged in relation to two incidents, one of which took place on December 1, 2023.

[23] On December 6, 2023, the Mother told the Father that she was “done”, would be heading back to Canada, and that she would be “continuing to work in Canada going forward”. On December 10, 2023, the Mother advised that she would be seeing out the balance of her pre-natal care in Canada as she did not feel “loved or safe” with the Father. The Father stated: “we can go see a divorce attorney and please feel free to live anywhere in the world you want, Anisha….with the baby, we also need to figure out more”.

[24] The parties appear to have repaired their relationship after this and continued to investigate purchasing a large home to host family and friends in Champaign. In March 2024, the Father purchased the house at 4405 Trostshire Circle, Champaign.

[25] Miraya was born on May 14, 2024.

[26] The Father took a six-week leave from work.

[27] The maternal and paternal grandmothers were present for the birth and stayed on to help the parties. The grandmothers created tension that led to serious conflict in the home. The Mother’s sister, Sirisha Marakani, was also present around the time of Miraya’s birth.

[28] Miraya had some issues with maintaining her weight and she was seen regularly by her pediatrician in Illinois.

[29] The parties travelled to Ontario on August 28, 2024, so that the rest of the family could meet Miraya with a plan to return to Illinois on September 16, 2024, in time for a doctor’s appointment on September 18, 2024.

[30] The parties’ relationship deteriorated during the trip culminating in their separation. The Father called the police on September 12, 2024, and the Mother left with Miraya for her parents’ home where they have remained.

III. Analysis

1. General Principles Applicable to the Convention

[31] The Convention has been adopted into the law of Ontario by virtue of s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Since “the purpose of that section is to implement the underlying convention, this Court must adopt an interpretation consistent with Canada’s obligations under it: see Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, at para. 51.”: Office of the Children’s Lawyer v. Balev, [2018] 1 S.C.R. 398, 2018 SCC 16, at para. 31.

[32] Article 1 of the Convention states:

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.

[33] Article 3 of the Convention states:

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.

[34] The “rights of custody” are defined in Article 5 of the Convention as including “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” The “rights of access” include “the right to take a child for a limited period of time to a place other than the child’s habitual residence.”

[35] Article 12 of the Convention directs that:

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.

[36] Article 13 of the Convention sets out certain limited exceptions that apply after a finding that a child is habitually resident in a Contracting State and has been wrongfully removed/retained:

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.

[37] The role of the court in an application under the Convention is in:

…enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence: see Article 1; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access: Balev, at para. 24.

[38] Articles 2 and 11 of the Convention require that the Contracting States adopt procedures for the expeditious return of children. If the judicial authority has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State can request a statement of the reasons for the delay.

[39] The normal practice is to make the necessary order based on a summary application: Korutowska-Wooff v. Wooff, 2004 ONCA 5548, 242 D.L.R. (4th) 385 leave to appeal to SCC ref’d [2005] SCCA No. 132, at para. 19; and Katsigiannis v. Kottick-Katsigiannis, 55 O.R. (3d) 456, 2001 ONCA 24075, at para. 59.

[40] The Convention directs that Contracting States use the most expeditious procedures available to implement the objects of the Convention. Speed is the goal, not protracted proceedings: Beairsto v. Cook, 430 D.L.R. (4th) 26, 2018 NSCA 90, at para. 85.

[41] In this case, Leef J. as the case management judge set out conditions limiting the volume of affidavit evidence to be filed by each party. She set deadlines for the materials and fixed a time limit for cross-examinations such that this case could proceed in a timely manner consistent with the court’s obligations under the Convention.

[42] The Mother did not comply with these directions and filed materials exceeding the page limits. The parties re-attended before Leef J. who issued revised directions including that the Mother was not permitted to rely on certain affidavits.

2. Where was Miraya habitually resident immediately before the removal/retention?

[43] The court must first make a finding with respect to ‘habitual residence’ as this is the “sole connecting factor triggering the child’s return”: Jackson v. Graczyk, 86 O.R. (3d) 183, 2007 ONCA 388, at para. 27.

[44] There is no definition of ‘habitual residence’ in the Convention. In Balev, the Supreme Court of Canada confirmed that the approach to determining habitual residence is a hybrid one that focuses not just on parental intention but on the child’s factual connection to the countries in question: Balev, at paras. 64-65.

[45] The Court in Balev set out some of the following principles applicable to the determination of habitual residence using the hybrid approach:

• The focal point is on the child’s life – the family and social environment in which its life has developed immediately prior to the removal or retention: para. 43. [emphasis added]
• Considerations include the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State: para. 44.
• No single factor dominates the analysis; the entirety of the circumstances shall be considered: para. 44.
• The age of the child is a relevant consideration. Where the child is an infant, the child’s environment is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of: para. 44.
• The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: para. 45.
• Parental intention cannot, as a general rule, be crucial to the determination of the habitual residence of the child but constitutes an indicator capable of complementing a body of other consistent evidence: para. 45.
• There is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child: para. 46.
• The court must consider the entirety of the child’s situation rather than attempting to “overlay factual concepts of habitual residence with legal constructs”: para. 47.

[46] Habitual residence is determined immediately prior to the wrongful removal or retention per Articles 3 and 4 of the Convention: Balev, at para. 67; Korutowska-Wooff, at para. 13.

[47] The Court of Appeal in Ludwig v. Ludwig, 437 D.L.R. (4th) 517, 2019 ONCA 680, set out a helpful analytical framework to implement the hybrid approach per Balev, that I have followed below.

Step 1: Date of Wrongful Removal/Retention

[48] The first step is to determine the date of the wrongful removal/retention and then assess where the child(ren) were habitually resident immediately prior to that date: Balev, at para. 36; Ludwig, at para. 23.

[49] This date is “central to the analysis because the court assesses in which country the child was habitually resident immediately prior to this date. A child’s attachment to a country that is developed after the date of alleged wrongful removal or retention is only relevant to the Article 12 “settled in” exception: Balev, at para. 67”: Ludwig, at para. 24; Ellis v. Wentzell-Ellis, 102 O.R. (3d) 298, 2010 ONCA 347, at paras. 27 and 30-35.

[50] The parties do not dispute that the date for this analysis is September 16, 2024, when the parties were scheduled to return to Illinois with Miraya.

Step 2: Determining Habitual Residence

[51] The Father’s position, again, is that immediately prior September 16, 2024, Miraya’s habitual residence was in Champaign, Illinois.

[52] The Mother’s position is that Miraya’s habitual residence is intimately tied to her as the child’s primary caregiver and that her primary place of residence has remained Ontario whereas Illinois was only a secondary residence.

(a) Miraya’s Links to and Circumstances in Champaign, Illinois

[53] Miraya was born in the hospital in Champaign. She is a U.S. citizen and has a U.S. passport. She also has Canadian citizenship by virtue of her parents pursuant to the Citizenship Act, R.S.C., 1985, c. C-29, s. 3.

[54] In her affidavit sworn October 25, 2024, the Mother stated: “I planned to remain in Ontario as of December 2023 so I could have the baby at home.” In cross-examination, the Mother denied wanting to ensure that the baby was born in the U.S. She said that this was something that the Father was passionate about. I did not find the Mother’s evidence on this point credible.

[55] It was clearly important to both parties that Miraya be born in the U.S. In two different text exchanges with friends, the Mother described racing to get back to the U.S. at 35 or 36 weeks pregnant to make sure Miraya was born in the U.S. The Mother stated in one text exchange that Miraya would be “the first American Citizen in both our families” followed by a smiley emoji. The Father noted as part of one of these same conversations “[n]o waiver or visas needed!”.

[56] Miraya lived from her birth, in Champaign with both of her parents in a home purchased by the Father earlier in March 2024.

[57] Since Miraya’s birth, the Mother has been on maternity leave and was actively, if not primarily, caring for Miraya.

[58] The Father took a six-week leave to be home with the Mother and child. Although the Mother asserts that he was primarily focused on himself, going to the gym etc., I find that he was also involved in Miraya’s care. In a group text message exchange the Mother states that the Father has “[b]een stepping into this like he’s done this his entire life!”.

[59] The maternal and paternal grandmothers were also staying with the family which led to conflict.

[60] Miraya’s pediatrician is in Illinois. The Mother initially denied this fact under cross-examination but later clarified that in October 2024, she arranged for a pediatrician in Ontario for Miraya. Miraya was being monitored on a monthly basis by her doctor in Illinois in relation to concerns about low weight.

[61] Miraya has a nursery set up in the home in Champaign.

[62] The Mother stated that the Father outfitted the nursery against her wishes. The Mother stated that it was unnecessary for Miraya to have a nursery in Champaign as she would have a fully furnished nursery at the maternal grandparents’ home in Pickering which was her “primary residence”. The Mother’s sister was going to hand down items from her children’s nursery. The Mother did not introduce pictures of the arrangements at her parents’ home. When cross-examined, the Mother stated that both her sister’s home and her parents’ homes were being baby proofed for Miraya suggesting that she did not have one fixed home for Miraya in Ontario.

[63] The Father introduced pictures of a fully furnished nursery in the home in Champaign. He produced a text exchange between the parties on December 18, 2023 (after the early December argument) wherein the Mother gives him a lengthy list of items to purchase for the baby’s arrival including a crib, bathtub, changer, diaper caddy and other items. In cross-examination, even having received the Father’s reply affidavit with this evidence, the Mother continued to insist that he purchased items against her wishes including a crib and dresser. She stated that she was not “ privy to any of these items that he purchases from a financial standpoint, nor do I have any ability to comment on what he purchases .” This last comment is not supported by the text exchange. The Mother continued to insist that these items were not for the home in Illinois and provided a lengthy, somewhat rambling explanation.

[64] I find that the parties had established a nursery for Miraya at their home in Champaign.

(i) Circumstances of the Parents including Parental Intentions

[65] In Balev, the court noted that parental intention may have greater significance in cases involving very young children. Again, the focus is on the circumstances preceding the wrongful retention/removal.

[66] The Mother states that she has “always been and continues to be resident in Ontario”.

[67] The Mother used to have an apartment in Toronto that she gave up in 2020 at the beginning of the pandemic. After that time, when in Ontario she would stay at either her sister’s home or her parents’ home in one of their bedrooms.

[68] The Mother’s position was that the parties had been planning on living in Ontario. She pointed to the fact that the parties had looked at condominiums in Toronto in the summer of 2023 as she did not want a long commute to her job at TD bank and, according to her, the Father agreed that “this could be [their]home”. This is denied by the Father who states that on one day they looked at some condominiums as a possible investment property. His evidence is that the Mother felt there was “no point” wasting money on a condominium as they were intending to live long term in the U.S. There is no evidence that the parties were considering acquiring property in Canada after June 2023.

[69] The Mother was spending time with the Father in Champaign in his rental apartment. The Father added her name to his lease. She spent increased time in Illinois following the parties’ religious marriage in September 2022.

[70] The parties were working with immigration lawyers in the U.S. in relation to the Mother’s status. In an e-mail dated June 22, 2023, the Father advised the lawyers that the Mother had been living in Canada since the (religious) wedding and he was in the U.S. and that they “have both been commuting across borders, on [their] non-working days to spend time together”. This correspondence was written around the same time that the Mother was stopped at the border and questions regarding her status were raised.

[71] The parties were married in a civil ceremony in Illinois on July 5, 2023, and the Mother obtained an H4 spousal visa.

[72] The Mother still regularly spent time in Canada with her family without the Father. The Mother stated that “ it was always a battle for me to spend time at my parents’ or my sister’s house ”. However, she did not elaborate on this and there was no independent evidence to support the contention that the Father had objected to or interfered with the Mother spending time in Canada with her family.

[73] In 2023, the Mother may have spent more time in Canada than she did in the U.S. According to an I-94 printout showing entry and exit to the U.S., the Mother was in Canada from March 20-28, 2024, and then from April 10-May 3, 2024, prior to giving birth to Miraya.

[74] The parties have medical and dental professionals in both jurisdictions. They both continue to have coverage under OHIP. They have access to medical and dental care in Canada.

[75] The mother primarily accessed medical care in Illinois during her pregnancy and she is covered under the Father’s Blue Cross plan. The Mother’s OB-GYN was in Champaign. The Mother was part of a mid-wifery clinic in Illinois starting in September 2023.

[76] The Mother stated that the plan was “always” to stay at her parents’ home with Miraya where they had a nursery set up and as it was easier for her to commute to Toronto for work. However, when the parties came to Toronto on August 28, 2024, they did not plan to and did not stay at all with the maternal grandparents.

[77] The parties began looking for a home to purchase in Champaign as early as September 2023. The Father stated that the parties wanted a large home where they could host friends and family after the baby arrived.

[78] On November 24, 2023, in a chat conversation with her mother-in-law, Shipra Chawla, the Mother says that they don’t need a house as they can just “ rent a two bedroom in Champaign for a little more space when the baby comes…he likes to provide, I understand…but not at this cost ”. The cost was in the context of the EB5 investment visa that the Father had been considering which could cost $1 million CAD. The Father stated that they stopped pursuing the EB5 visa after they got legally married in favour of purchasing a home for their family. The Mother’s message supports the contention that the plan was for the child to live in Champaign.

[79] On December 6, 2023, the Mother and Father had a text exchange in which the Mother stated that after she saw the doctor in Champaign she was “done” and would be “heading back to Canada”. She stated that she did not “want to be part of the EB5” and would be “continuing to work in Canada going forward”. The Father told her to spend time with her mother “whom [she] came to see” and they would discuss the visa and other things once he was back.

[80] A few days later, in a WhatsApp chat dated December 10, 2023, the Mother told the Father that she would not be returning to the U.S. and planned to “see the rest of [her] care out in Canada”. The Mother outlined a number of concerns with the Father including that he had repeatedly lied to her, drove in an unsafe manner and made poor financial decisions. She goes on to say: “I will no longer reside with you in America”. The Father responded that “[w]e can go see a divorce attorney and please free to live anywhere in the world you want, Anisha. With the baby, we need to figure out more.”

[81] The parties did not separate after this argument, rather they continued to plan their lives together.

[82] In a group chat exchange with friends two days later on December 12, 2023, the Mother stated “we are committed to a lifetime in chambana”. It was not disputed that “chambana” is slang for the combination of Champaign and the nearby city of Urbana, Illinois.

[83] The parties put in an offer on a home in Illinois on January 15, 2024, that was not accepted. In March 2024, the parties purchased a large home on Trostshire Circle in Champaign.

[84] The Mother asserted that she only went along with the purchase of the home as she wanted to minimize stress during her pregnancy. The evidence suggests otherwise.

[85] The Father paid for the home and title is in his name alone, but the Mother participated in the process. The Mother initially stated that the Father was responsible for creating a chat group with their realtor but then admitted that she created a Whatsapp chat group for her, the Father and their real estate agent, Kimberly Clark, as this was the Mother’s preferred method of communication.

[86] In a Whatsapp chat dated March 8, 2024, addressed to Ms. Clark, the Mother says:

Thank you so much for everything! In less than a month we found our dream home and though our dream realtor. Love how everything came full circle from you finding Hitanshu his first place in Champaign to now our forever home….[o]nce we are settled, we shall celebrate soon”.

[87] The Mother had a convoluted explanation as to why this message did not contradict her narrative that she never intended Champaign to be her home including that the Father directed her not to offend the real estate agent who lived locally and that she was really more excited about the candle that the real estate agent bought them as a gift.

[88] The Father introduced an affidavit from a friend of the couple, Roukaida Senthil who lives in Ontario which included an excerpt from a group chat dated May 16, 2024, in which the Mother says “why don’t you guys plan a visit and better yet, a permanent move to America”. Ms. Senthil and her husband also messaged the Mother about to set a date for dinner during their recent trip to Ontario; the Mother confirmed that they were planning to head back to Illinois on September 16, 2024. There is no mention of a plan to return to Ontario thereafter.

[89] The maternal grandmother, Sunita Marakani stated that the plan was for her “to stay in Champaign only until Anisha and Miraya were able to travel back to Ontario as I was going to take care of them at my home.”

[90] The Mother did not produce any contemporaneous corroborating evidence such as text messages or e-mails for the period after December 2023 to support her position that her primary residence and that of Miraya would be in a location other than in Champaign.

[91] Sirisha Marakani refers to having a conversation with the Mother about living in her home or at maternal grandparents’ home in December 2023 which would be consistent with the Mother’s messages to the Father on December 6 and 10, 2023. Sirisha Marakani and Amol Chiplunkar, do not confirm the Mother’s position that she planned to return to live in Ontario after Miraya’s four-month vaccination.

[92] The Mother stressed that she always intended to return to work at TD at the end of her maternity leave in May 2025 and that this supports her proposition that Ontario is her habitual residence and therefore Miraya’s as well.

[93] The Mother has worked at TD bank since 2014. She was on short term disability leave from TD when she met the Father. She returned to work remotely in November 2021 to June 14, 2023, which enabled her to work while staying with the Father in Illinois. The Mother went back on to short term disability from June 14, 2023, to September 26, 2023. She then received an accommodation to work remotely due to complications of her pregnancy that carried forward to February 2024. She then went back on short term disability due to issues with the pregnancy until she started her maternity leave.

[94] She is currently on maternity leave and receiving top-up pay from the bank.

[95] Amol Chiplunkar attests to conversations that he had with the parties about how they were going to juggle their respective work commitments. One such conversation was in June 2023 and the other on October 31, 2023, when they announced that they were pregnant with Miraya. Amol Chiplunkar was surprised to learn in December 2023 that the Father was looking for a large home to purchase in Champaign so there would be space for friends and family to visit.

[96] The Mother’s close friend Shaira Rahimi swore an affidavit. Ms. Rahimi also works at TD bank with the Mother. Ms. Rahimi stated that she “ understood that the Mother would be returning to her position at TD ” and that the Mother never mentioned that staying in the U.S. was a permanent plan.

[97] Despite her stated commitment to her job in Canada, the Mother applied for a work visa in the U.S. on March 22, 2024, with the help of immigration lawyers.

[98] The Mother suggested that the Father was the one primarily engaging with the immigration lawyers. In cross-examination she stated that she had only applied for the work visa “ under duress ” as she “ never had any intention to work in the U.S. ”. However, the Father introduced an e-mail exchange over a number of months between the Mother and the two immigration lawyers starting on February 5, 2024, in relation to the Mother’s work visa. On May 31, 2024, the Mother e-mailed Jyoti Kaur asking about the current status of her application and wondering if “there’s a way to expedite the process”. The Mother stated that this e-mail was actually sent by the Father from her account.

[99] In a WhatsApp chat message with Roukaida Senthil on May 2, 2024, the Mother says: “I need that green card”.

[100] I prefer the Father’s evidence that the Mother was actively pursuing a permit to work in the U.S. rather than planning to return to her job at the TD bank. It was not surprising that the Mother was maintaining her employment with TD and taking the position that she intended to return to the bank as she is receiving maternity leave top-up benefits.

[101] The Father has practiced medicine in the U.S. since 2013. He has lived in Champaign, Illinois since 2020. He works as an internal medicine physician at the OSF Heart of Mary Medical Centre in Urbana, Illinois. He also works with associate faculty at the University of Illinois Urbana-Champaign.

[102] The Mother asserts that the Father had looked into practicing medicine in Canada as part of their plan to raise Miraya here. The Father opened an application in Canada at a time when Canada was permitting foreign licensed doctors to work to address shortages. He went through a criminal background check for the license in December 2023. However, he did not take further steps to obtain his qualifications in Ontario.

[103] The Father had also explored options to work in Dallas, Texas and in Indiana.

(b) The circumstances of the child’s move from the U.S. to Canada

[104] The Mother’s position is that there has been no “move” as the child has always been habitually resident in Canada.

[105] It is not disputed that the family travelled to Ontario on August 28, 2024, for a time limited trip to introduce Miraya to friends and family, and that they intended to return to Champaign on September 16, 2024, as Miraya had an appointment with her pediatrician due to issues with weight gain.

[106] The parties brought the baby and what they needed with them for a limited time stay. The Mother states that they intended to return to Champaign to pack up the remainder of the home for their stay in Canada. There was no corroborative evidence (such as e-mails or texts) to support this contention.

[107] When the parties arrived in Ontario they first stayed with the Mother’s sister, Sirisha Marakani at her home in Claremont. On September 6, 2024, the parties went to stay at the paternal grandparents’ home in Brampton as planned.

[108] The parties’ relationship started to deteriorate, the details of which shall be discussed further below.

[109] On September 10, 2024, the Mother told the Father that she wanted to amicably separate.

[110] On September 12, 2024, the Father called the police to his parents’ home. The police interviewed both parties. No charges were laid at that time. The Mother took Miraya to her parents’ home.

[111] The Mother refused to return Miraya to Illinois on September 16, 2024, as originally planned.

[112] The Father commenced proceedings in the court in Illinois shortly thereafter. The Mother responded and filed a request for an emergency order permitting her to re-locate with Miraya to Canada.

[113] The Father commenced this application under the Convention on September 27, 2024.

(c) Miraya’s links to and circumstances in Canada

[114] Miraya is a Canadian citizen by virtue of her parents. She does not have a Canadian passport.

[115] Miraya’s only other connections to Canada are through her parents.

[116] The parties both grew up in the Greater Toronto Area of Ontario. The Mother’s sister, Sirisha Marakani lives in Claremont with her husband, Amol Chiplunkar and two children. The maternal grandparents live in Pickering. The Father’s parents live in Brampton. Both parties have other extended family living in Ontario.

[117] The Mother and Father maintain close connections to Ontario.

[118] The Mother remains employed by the TD Bank Group in Toronto.

[119] The parties both maintain their Ontario drivers’ license and have OHIP coverage.

[120] The Mother continues to have a Toronto area cell phone number. The Father asserts that this is because she does not want her employer to know that she is not living in Canada.

[121] The Mother has bank accounts in Ontario.

[122] The Father has an interest in the home where his parents reside in Brampton.

(d) Summary of Habitual Residence

[123] I find that Miraya’s habitual residence is in Champaign, Illinois.

[124] The Mother and Father both wanted to ensure that Miraya was born in the U.S. rather than in Canada and she is consequently a U.S. citizen.

[125] The focal point of Miraya’s life immediately prior to the wrongful retention was her Mother and her Father who were living together at their home in Champaign, Illinois along with her two grandmothers for a period. I find that both parents were actively participating in Miraya’s day to day care albeit with the Mother taking on a greater role. Both parents were actively involved in Miraya’s medical care.

[126] The parties have both spent time in Ontario throughout their relationship. The Mother in particular spent significant periods of time in Ontario in 2023. At certain points in time, the intentions of the parties in terms of a permanent residence were unclear. This was illustrated by the conversations initiated by Amol Chiplunkar who queried how they were going to make things work.

[127] In early December 2023, some sort of serious incident took place. Neither party provided details but the Father was criminally charged in relation to something that occurred on December 1, 2023. The Mother told the Father on December 10, 2023, that she did not intend to return to America. However, the parties repaired their relationship, and the evidence overwhelmingly supports a finding that they intended to and did make Champaign their home thereafter.

[128] The Father purchased a home large enough to host their large family and friends. The Mother described this as her “dream home”. The Mother encouraged their friends from Oakville, Ontario to visit them or even consider moving.

[129] The Mother applied for a work permit with help from lawyers. The Mother told a friend that she needed “that green card”.

[130] The Mother filed an Answer in this proceeding dated October 11, 2024. In the initial pleading, she does not assert that she or Miraya are habitually resident in Ontario. Her claim was based on the Article 13(b) exception and her experience of abuse. I granted leave for the Mother to file an Amended Answer in which she essentially withdraws the earlier admissions. However, I did not find the Mother’s evidence credible that Champaign was simply her “secondary” residence and that she had always intended to live with her parents in Pickering as soon as Miraya was vaccinated.

[131] Miraya was habitually resident in Champaign, Illinois and travelled to Canada for a time limited trip with her parents. The parties intended to return to Illinois on September 16, 2024, with Miraya as she had a doctor’s appointment two days later.

[132] I find that when the parties separated, the Mother’s intentions about living in Champaign changed.

[133] The Mother referred me to a number of decisions involving the determination of the habitual residence of very young children in support of her case. Per the principles set out in Balev, the hybrid analysis is fact specific and does not rely on presumptions. However, I have addressed some of these decisions below and noted how they are distinguishable from the case before me.

[134] In Beairsto, the parties lived together prior to the child’s birth in Washington State where the child was born. When the baby was approximately one month old, the mother left the matrimonial home after an incident of domestic violence with the father pushing the mother while she was holding the baby. There was a risk that the father would be charged which could impact his employment. The parties agreed that the mother would take the child to Nova Scotia where she was originally from. There was no set return date. The Nova Scotia Court of Appeal found that the trial judge had erred by dismissing the father’s application solely on the basis that the removal was not wrongful as he had consented to it rather than engaging in the hybrid analysis per Balev. The Court of Appeal undertook the hybrid analysis and found that the date of the wrongful retention was June 2017 at which point the mother and child had been residing in Nova Scotia for six months – the majority of the child’s life.

[135] In Parmar v. Flora, 2022 ONSC 3079, aff’d 2022 ONCA 869. The mother lived and worked in Toronto and the father lived and worked in Florida. The parties travelled back and forth during their relationship. The child was born in Toronto and spent the first nine months of her life there. The mother travelled with the child to Florida to visit the father and was there when the COVID-19 pandemic hit, and quarantine restrictions were put in place. The mother opted to “shelter in place” in Florida and as soon as the restrictions were lifted, she returned with the child to Toronto. The father’s Hague application was dismissed.

[136] In Ow v. Ling, 2024 ONSC 6043, a recent unreported decision, the parties were both from Singapore. They came to Canada with their oldest child in 2022. They parties were both employed in Canada although the mother was on short term disability and the father was initially on short term disability and later left his job. The parties agreed that they would benefit from family support and returned to Singapore where their daughter was born. Daurio J. dismissed the father’s application finding, among other factors, that even though the youngest child had never been to Canada, Canada was the habitual residence of the children as the parties’ older child was an anchor to this jurisdiction for his baby sister.

[137] All of the above cases can be distinguished on their facts from the case at hand.

[138] The Father stressed that the Mother had attorned to the jurisdiction of Illinois. However, “attornment to a jurisdiction cannot confer jurisdiction to this court on matters relating to a child if that child is habitually resident in another jurisdiction”: Singh v. Wander, 2018 ONSC 1206, at para. 26; Ow, at paras. 159 and 162-164. See also Husid v. Daviau, 2012 ONSC 547, aff’d 2012 ONCA 655, at paras. 126-127.

[139] The evidence with respect to the entirety of the circumstances on a balance of probabilities supports the finding that Miraya’s habitual residence just prior to the retention was Champaign, Illinois.

3. Were the Father’s custody/access rights breached under the law of the State of habitual residence (Illinois)?

[140] In Thomson, it was held at para. 48:

Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. The breach of rights of custody described in art. 3, it will be remembered, are those attributed to a person, an institution or any other body by the law of the state where the child was habitually resident immediately before the removal or retention. Article 3 goes on to say that custody may arise by operation of law. The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any formal order or other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement.

[141] I did not receive expert evidence with respect to the law of Illinois, but the parties agreed that the Father had custody rights under the State of Illinois.

4. Was the Father exercising his custody rights at the time of the removal/retention?

[142] The court should approach the analysis of whether custody rights are being exercised liberally, bearing in mind that the court is not deciding the merits of a custody claim: Wedig v. Gaukel, 38 R.F.L. (6th) 60, 2007 ONSC 13522, at para. 63, citing Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).

[143] The Mother asserts that she has been the child’s primary caregiver since birth. Although the Father took a six week leave after Miraya’s birth, her evidence is that he spent the time on himself rather than the baby. The Mother also notes that since being criminally charged, the Father has not sought parenting time with Miraya. However, the Mother agrees that for the purpose of this analysis the Father was exercising his custody rights at the time of the removal/retention.

5. Did the person having care of the child consent or acquiesce to the removal/retention?

[144] The Mother does not take the position that the Father consented or acquiesced to Miraya remaining in Ontario nor does the evidence support that. The Father moved quickly to commence a proceeding in the court in Illinois and to commence this application.

[145] For all of these reasons, I find that the child, Miraya was habitually resident in Illinois and as of September 16, 2024, and that she has been wrongfully retained by the Mother in Ontario in breach of the Father’s custody rights.

[146] If it is determined that the retention of the child in Ontario was wrongful and none of the exceptions apply, it is not discretionary but mandatory that the child be returned to her habitual residence: Article 12 of the Convention; Balev, at para. 76; Zafar v. Azeem, 97 R.F.L. (8th) 3, 2024 ONCA 15, at para. 42.

6. Is there a grave risk or intolerable situation for the child if the child is returned?

[147] The Mother submits that the exception under Article 13(b) of the Convention is applicable on two bases. The first is that she and Miraya have been subjected to domestic violence at the hands of the Father and Miraya would be subjected to grave risk of harm if she was required to return to Illinois. The second is that she has uncertain immigration status as her spousal visa is tied to the Father and may be terminated if he obtains a divorce; this could lead to her being separated from Miraya and create an intolerable situation for the child.

[148] The onus is on the Mother to demonstrate that the Article 13(b) exception applies: Husid v. Daviau, 21 R.F.L. (7th) 336, 2012 ONCA 655, at para. 20, leave to appeal refused, Husid v. Daviau, [2012] S.C.C.A. No. 485.

[149] The high threshold for the application of Article 13(b) was set out in Thomson at para. 82:

It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word “grave” modifies “risk” and not “harm”, this must be read in conjunction with the clause “ or otherwise place the child in an intolerable situation”. The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of art. 13( b ) is harm to a degree that also amounts to an intolerable situation. Examples of cases that have come to this conclusion are: [Gsponer v. Johnstone (1988), 12 Fam. L.R. 755 (Aus. F.C.)], [Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.)]; [Re A. and another (Minors) (Abduction: Acquiescence), [1992] 1 All E.R. 929 (C.A.)]; [Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401 (H.C.)]; [Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413 (H.C.)]; [Director-General of Family & Community Services v. Davis (1990), 14 Fam. L.R. 381 (Aus.)]; C. v. C., supra. In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

... the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words “or otherwise place the child in an intolerable situation”.

See also Ellis.

(a) Risk of Harm Arising from Mother’s Immigration Status

[150] The Mother argues that her immigration status in the U.S. is tied to the Father’s. If the Father obtains a divorce, this will terminate her legal status to live in the U.S. and could separate her from Miraya.

[151] The Father submitted that while he has sought a divorce in the Illinois proceeding, this relief would not be considered until the conclusion of the case.

[152] The Father agreed to an undertaking that he would not pursue a divorce in Illinois subject to any order of the court in Illinois.

[153] In Paschel v. Paschel, 1 R.F.L. (8th) 404, 2017 ONCA 972, Pardu J.A. declined to stay the order of the Applications judge that the children (ages 1 and 11 months at the time of the appeal) be returned to Tennessee even though the mother was barred from entering the U.S. having resided there illegally. The father was barred from entering Canada as he had a dated criminal record. There was an ongoing proceeding in Tennessee and the Court of Appeal found that the mother could participate in that proceeding virtually. The Court specifically held at para. 18:

While the mother argues that her separation from the children will be traumatic for the children, this separation will have been caused, in part, by the precipitous actions of the mother. She should not [ sic ] allowed to frustrate the goals of the Hague Convention by unilaterally attempting to create a new status quo outside the country of the children's habitual residence.

[154] Even if I were to find that the risk to the Mother’s immigration status constituted a grave risk of harm to Miraya, this is mitigated by his undertaking not to pursue the divorce.

(b) Grave Risk of Harm due to Domestic Violence

[155] The Mother also argues that she has been subjected to longstanding and varied domestic abuse from the Father, that Miraya has been present for some of the abuse, and that the Father has abused the child.

[156] A grave risk of harm to a child’s mother can establish a risk to the child as well: Cannock v. Fleguel, 303 D.L.R. (4th) 542, 2008 ONCA 758, at para. 41; Zafar v. Saiyid, 421 D.L.R. (4th) 184, 2018 ONCA 352, at para. 18.

[157] In Hassan v. Garib, 2017 ONSC 7227, at para. 9 Engelking J. adopted the three-part test for determining if the high threshold under Article 13(b) has been met in situations of domestic violence as set out in Achakzad v. Zemaryalai, 2010 ONCJ 318:

In Achakzad v. Zemaryalai, 2010 ONCJ 318, Justice Murray did an extensive review of Hague Convention cases involving allegations of domestic abuse, and had this to say at paragraph 97:

A review of the case law indicates that return orders will be refused when past violence has been severe and is likely to recur; when past violence has been life-threatening; or when the record shows that the applicant for the return order has not been amenable to control by the justice system. Such an approach reflects a narrow construction of Article 13(b), while still giving appropriate meaning to the text of the Convention.

[158] The Mother cites a long history of domestic violence summarized in paragraph 5 of her affidavit sworn October 25, 2024:

Throughout our relationship, the Father has inflicted significant verbal, financial, and physical abuse against me, as will be described in further detail below. He has beaten, choked, and slapped me, pinned me against the wall, pulled my hair, slapped my stomach when I was pregnant, and told me that he will kill me.

[159] The Father, both in his affidavit evidence and under cross-examination, vehemently denied these allegations. He stated in cross-examination that “I have never touched or I’ve never physically assaulted any woman, my wife, my daughter or my mother-in-law. Any woman, any man ever. I’ve never laid hands on anybody ”.

[160] In his reply affidavit, the Father provided responding details to some of the specific allegations made by the Mother but did not always repeat the denial of the specific allegation. In this case, where there was a comprehensive umbrella denial, I do not draw an adverse inference from his failure to repeat the denial for each specific instance.

[161] I have outlined in some detail the allegations made by the Mother and the evidence she adduced in support, as well as the Father’s specific responses that were applicable.

(i) December 2021

[162] The Mother alleged that the Father demanded she undergo an abortion as he did not want to have a child out of wedlock. The Mother stated that she repeatedly told the Father she did not want to terminate the pregnancy, but he made the appointment at Planned Parenthood and drove her to the clinic. The Mother suffered psychological and physical complications from this process including bleeding, pain, postpartum depression and anxiety.

[163] The Mother included a text message dated December 30, 2021, in which she says “I don’t want to terminate. I won’t mentally be okay at the end of that”. The next message from the Father is 1.5 hours later simply includes details of a trip to Hawaii.

[164] The Father denies that the choice to have an abortion was anything but the Mother’s. He states that she pursued this on her own as she wanted more time focused on the two of them.

[165] Undergoing the abortion was a traumatic experience for the Mother and it led to significant emotional and physical repercussions for her. However, I am unable to find on the evidence that the Father forced her to undergo this procedure.

(ii) November 11, 2022:

[166] The Mother stated that she revealed to one of the Father’s colleagues, Dr. Alina Paul that she had an abortion but not about the other abuse as she did not want Dr. Paul to contact the authorities. The day after this, the Mother states that the Father came home and started choking her for sharing family information. According to the Mother, he said, “I will let you live this time”.

(iii) November 2022

[167] The Mother asserted that the Father engages in reckless, aggressive driving and that he drives while impaired. This is denied by the Father.

[168] Sometime in November 2022, the Mother says the Father went into a ditch while driving impaired. She called his family and colleagues as she wanted to determine his whereabouts. The Mother alleges that when he came home, he pinned her up against the wall and choked her because she had dared to speak about this to his family.

(iv) January 11, 2023:

[169] The Mother stated that the Father was calling her names. The Mother disclosed to the Father’s mother that she had an abortion in December 2021. When the Father’s mother asked him about this, the Father slapped the Mother. He then left and went to her Mother’s home and returned with Sunita Marakani.

[170] Sunita Marakani stated that the Father was using foul language to both her and the Mother. She and the Mother took an Uber to return to her home and on the drive the Mother told her that the Father had slapped her.

[171] The Mother’s sister, Sirisha Rao Marakani, described herself as having a close relationship with her sister: “we are each other’s confidantes”. The Father stated that the Mother, her sister and her brother-in-law, Amol Chiplunkar have a WhatsApp chat group called “Third Wheelin” that they use regularly to communicate.

[172] There is no reference to this incident in Sirisha Marakani’s affidavit.

(v) March 15, 2023

[173] The Mother states that the Father was leaving for work and took his passport, her passport and the condo keys. The Mother asked for her items including the condo keys so she could leave. The Father grabbed and pushed her and she was bleeding.

[174] The Father’s evidence is that the Mother would not let him leave to go to work. He “never once touched her”. He states that he ended up calling an Uber to go to work and left the car keys at home. In cross-examination, the Father denied ever taking the Mother’s things.

[175] The Mother included a text exchange with the maternal grandmother the same day at 3:42 p.m. The Mother was also speaking with her sister, Sirisha on the phone during this exchange. The Mother says she is emotionally hurt, and Sunita Marakani tells her “no human or woman should take abuse. You are an educated person. Live with respect. Please don’t waste time with Siri…”. The earlier part of the text exchange with the maternal grandmother was not included.

[176] The parties then exchanged text messages starting at 3:49 p.m. that afternoon wherein each accuses the other of being “physical”, calling names, and the other denying this.

[177] Later that evening, Sunita Marakani asks the Mother about her pain, she says that anxiety and stress are not good and tells her to come here (presumably Ontario) and that she will get the Mother a good gynaecologist. The Mother reports to her mother that the Father is home and has told her he will take her to the hospital.

[178] There is no mention of this event in the affidavit of Sirisha Marakani.

(vi) March 31, 2023:

[179] The Mother asserted that the Father had gotten extremely intoxicated and ended up sleeping at another woman’s home. When the Mother told his parents what had happened, the Father told her she was “deluded”, “a bitch” and “insecure” and punched her in the stomach.

[180] The Father acknowledges he was out drinking with a male friend and stayed at his friends’ apartment rather than driving. According to the Father, the Mother falsely accused him of staying at another woman’s apartment.

[181] The parties were both in Canada on March 31, 2023, according to the I-94 printout produced by the Mother.

(vii) June 10, 2023

[182] The Mother alleges that the Father again became so intoxicated while out that he did not know his whereabouts. He was at a friend’s home and the friend’s girlfriend sent a picture of the Father passed out on the stairs. The photo of the Father shows him sprawled along the stairs with someone I assume to be his friend pulling his arm as though trying to get him up.

[183] When the Mother showed the picture to the Father’s parents, he punched her and pulled her hair.

[184] The Father asserts that he was not intoxicated but rather became very ill during dinner (not due to intoxication) and his friend took him home by Uber and stayed with him. The Father says that his friend and his friend’s girlfriend tried to explain this to the Mother, but she accused him of having an affair.

[185] The parties were in Canada on June 10, 2023.

(viii) July 1, 2024

[186] The Mother describes the events of July 1, 2024, as follows:

On July 1st, 2024, my mother expressed to the Father that she no longer felt welcome in Illinois due to my mother in law, who was also staying with us at the time. My mother suggested that it was time for Miraya and I to come home to Canada. The Father started interrogating my mom, asking her why she felt unwelcome. His tone became aggressive, and he accused her of making things up. My mom started crying. I intervened and took the baby from my mom. I asked my mom to go upstairs and told her that I didn’t want her blood pressure to go up. In response, the Father started laughing and said, “I would love to see the day she dies from a heart attack… you should die of a heart attack”. The Father told me that this didn’t involve me and came over and pushed me aggressively, while I was holding Miraya. I told the Father not to touch me as I was holding the baby, however he pushed me again. My mother was scared and ran in between us. The Father shoved my Mother to the ground. When she got up, he pushed her down again, causing her to sustain bruises on her arms. I asked the Father to stop and told my mom to go upstairs, hoping to deescalate the situation. However, the Father grabbed Miraya from me and screamed at my Mother and I while holding her. When Miraya started crying, the Father started shaking her. I intervened and grabbed her out of his hands. The Father then pushed me while I was holding Miraya. He took Miraya from me and slapped me. Miraya was still crying, and the Father started tapping her face to get her to stop. My mother told me that we should leave. The Father told my mother that I wasn’t going anywhere and that she had to leave. He said “if you are not gone by the time I come back, I’ll kill both her and the baby.” The Father then left the house and did not return until the next day.

[187] Sunita Marakani also describes this incident in her affidavit sworn October 25, 2024. She states that the Father was withholding the baby from her and the Mother. The Father was upset when the baby started crying and he “ slapped and shook” the baby. When the Mother was finally able to extract the baby, he slapped her as well. The Father demanded that the maternal grandmother leave or she would “ never see [her] daughter and granddaughter alive again”.

[188] The Mother booked the next flight out for the maternal grandmother on July 3, 2024. The Father stayed home with Miraya while the Mother drove her mother to the airport.

[189] The Father states that the Mother’s description of these events is “entirely false”. The Father’s evidence is that the two grandmothers had an altercation while he and the Mother were out at a fundraiser on June 29, 2024. He tried to de-escalate things between them when they got home and ensure that the baby was alright. The maternal grandmother stayed in her room in retaliation until the Father’s family left the next day. The Mother sent, what the Father described as, a series of hurtful messages while he was at work. When he got home, the Mother and maternal grandmother became verbally aggressive and argumentative with him. He packed an overnight bag and left to de-escalate the situation. He specifically denied all of the allegations.

[190] The Father includes a text exchange later the same day in which the Mother apologizes for her rude and harsh messages. She states that she has “never thought” of keeping the child away from the Father and that he is a “very good one”. The Father says “ I completely trust your ability to be a mother. You’ve been a damn amazing one so far. Sorry I don’t say that enough ”. The Mother ends the exchange by saying “ I do have mental health issues, I tried my best to be honest about it. I am not currently fit to be watching her. I am not in the best state of mind. Neither is my mom. I don’t know where to go or what to do or who to even call. My phone won’t even work for any outgoing calls .”

[191] The Mother introduced a text exchange between the Father and her aunt and uncle that took place on July 2, 2024. The Father had advised them that he was going to bow out of an upcoming wedding due to his argument with Sunita Marakani who continued to blame him for her heart attack. Naresh says that he can speculate as to what happened and goes on to encourage the Father to work things out. The Father says in this same exchange:

Family for me starts with immediate family. My mother has been misbehaving with my wife and Mrs. Rao. And I also have not been able to provide a safe and peaceful environment for my wife and her immediate family. I just want to take some time and figure out how to work on that if I am able to.

[192] In support of her assertion that the Father had pushed the maternal grandmother to the ground, the Mother produced two undated photos attached as Exhibits to Sunita Marakani’s affidavit showing a diffuse round bruise about the size of loon coin, green at the edges on her mother’s shoulder and another similar bruise on what appears to be her inner arm although it is not clear from the photo. There were no details of when the photos were taken or by whom.

[193] The Father states that the maternal grandmother is on blood thinners following her heart attack. She began to notice bruises on her body while staying with them. The Father encouraged her to see a doctor, but she did not want to pay for appointments. Eventually, the Father made an appointment with her at the hospital on June 26, 2024, so that she could receive bloodwork and be evaluated.

[194] The Mother was cross-examined on this point. When asked if her mother was on blood thinners, the Mother responded that “she was not a doctor and could not speak to her mother’s meds” although she thought she was taking baby aspirin. When asked if the Father was concerned about her mother’s bruising as a side-effect of blood thinners in June 2024, the Mother responded “[n]o that never happened”. The Mother then agreed that they had taken her mother to the hospital on June 26, 2024, but denied that was because the Father was concerned about the bruising rather, she said it was because the Father was a “controlling person”.

[195] The Mother’s close friend, Shaira Rahimi, stated that on one occasion in July 2024, the Mother had called her extremely upset as the Father had just pushed her while she was holding the baby. Shaira Rahimi stated that she was fearful for the Mother “as she had not described physical abuse to me much before this time, but with the baby and Hitanshu’s actions, I was worried for both their safety.”

[196] Sirisha Marakani was also present for the birth of Miraya. She said that the Father and his family made her, and the maternal grandmother feel unwelcome and that his mother in particular created a hostile environment.

[197] Sirisha Marakani states that the Mother did not tell her about “the full extent of the abuse until September 2024”.

(ix) September 8, 2024

[198] The Mother states that when they were at the paternal grandparents’ home in Brampton after September 6, 2024, the Father would only permit her to leave the home for food. He would aggressively scream at her often while she was holding Miraya. The Mother alleged that the paternal grandmother was in possession of her and the child’s passport.

[199] The Mother states that the parties were attending a wedding together on September 8, 2024, and started arguing. The argument escalated during the drive home and the Mother states the Father was screaming and yelling. He refused to pull over so that she could attend to the baby who was crying. When they got home, the argument continued with the Father continuing to berate her and calling her a “whore” and saying “you are only good for spreading your legs”. Later in the evening, the Mother was preparing a bottle for the baby and the Father shoved her into the kitchen island and grabbed the child. When the baby started crying, she shook her and shouted at her.

[200] The Father states that he disputes entirely these allegations which he is defending in the criminal proceeding.

[201] The Mother introduced an audio recording of the argument with the Father which sadly took place in the presence of Miraya who can be heard in the background. There was also a translation for those parts of the recording that were in the Hindi language. For much of the conversation, the Father repeats over and over again that the Mother should take the child and call 911. The Mother appears to try to engage the paternal grandfather who she calls “pappa” who was also present. The paternal grandfather interjects softly on occasion encouraging one or other of the parties to eat and to stop fighting. The Mother tries to engage the paternal grandfather asking if he has ever spoken to his wife like this. At one point the baby is heard crying briefly. The Mother says that her mother is ten minutes away and the Father responds by encouraging the Mother to leave or to call her mother and accuses the Mother of making empty threats. He calls her a “chickenshit”. The Mother says: “you are so insecure…look at you”. The Mother says to the Father toward the end of the recording words to the effect of “look at your face…look how angry you are”.

[202] The Father was using foul and demeaning language, but I do not find that he threatens the Mother in this conversation. He repeatedly tells the Mother to leave with the child and to call 911. The Mother’s tone in calling the Father insecure or pointing out how angry he is, did not, to my ear, indicate fear. The behaviour of both parties in exposing their young daughter to this level of conflict was concerning.

[203] According to the Father, the Mother told him on September 10, 2024, that she wanted to amicably separate, but later her behaviour changed. He indicates that Sirisha was also party to these conversations, and she also encouraged them to amicably separate.

(x) September 12, 2024

[204] The Mother does not provide specific details of what occurred on September 11 and 12, 2024, except that it was a continuation of the Father not allowing her to leave the home except for food. She also reported that the Father would scream at her aggressively while holding the child as she begged him to stop. Her mother-in-law held her passport.

[205] The Mother’s evidence was that her family were worried as they were not hearing much from her and on September 12, 2024, her sister and brother-in-law drove to the home to do a wellness check on her.

[206] Sirisha Marakani stated that she had conversations with the Mother on September 10 and 11, 2024, in which she could hear the Father yelling at the Mother in the background using foul language similar to that described above. The Mother put her sister on speaker phone and Sirisha Marakani told the Father not to treat the Mother that way and he should be letting her feed the baby. In a call on September 11, 2024, Sirisha heard the Father tell the Mother to “get back into the bedroom”, “you have no business stepping out” “stay where you belong”, “get the fuck upstairs”. The Mother according to her sister was begging the Father to stop screaming while he had the baby in his arms.

[207] The Father states that the Mother refused to leave her room and he cared for the child during the day while checking on her and bring food and water. Their friends, Richard and Rebecca came over for dinner later in the day. When they left he went over to Walmart to get more formula for Miraya.

[208] The Mother’s sister, Sirisha Marakani and brother-in-law, Amol Chiplunkar came to see her on September 12, 2024. When they arrived, the Father locked her out of the home with Miraya still inside and called the police.

[209] The police report filed by the Father states that “there were no threats or allegations made and no physical altercation occurred. There is a clear misunderstanding between the two parties… All parties stated they understood.” In her cross-examination, the Mother disputed the contents of this police report and said she had requested body cam footage from one of the attending officers.

[210] This was the first time that the police had been involved with the parties in any jurisdiction. It was not disputed that child protective services had not been contacted in any jurisdiction prior to this time.

[211] The Mother and Miraya have remained at her parents’ home since that time.

[212] The Father commenced a proceeding in the court in Illinois shortly thereafter seeking the return of Miraya to the State of Illinois. The Mother then filed a petition for “Emergency Motion for Temporary and Permanent Relocation of the Minor Child” in the Illinois proceeding.

[213] The Father commenced the within Application on September 27, 2024, and served the Mother on October 1, 2024.

[214] The Mother made a report to the Durham Children’s Aid Society on October 2, 2024, about Miraya being in the Father’s care. In a letter dated October 4, 2024, the Society indicated that it was still investigating, and it had concerns that there are “presenting concerns that this partner relationship is effecting [sic] what is best for Miraya”. The Father had not yet been interviewed at the time of the Society’s letter.

[215] The parties attended before Leef J. on October 7, 2024, who ordered on consent that the Father would have parenting time every day while in Canada for three hours. The parenting time was not required to be supervised (not on consent) although the Mother was permitted to have someone present.

[216] On October 11, 2024, the Father was charged by the Peel Regional Police with three counts of assault two allegedly occurring on September 8, 2024, and one on December 1, 2023. The Mother did not include details in her affidavit evidence of an assault taking place on December 1, 2023.

(xi) Isolating Behaviour

[217] The Mother alleges that the Father was controlling over all aspects of her life. She was not allowed to meet with certain people without him present. He also held onto her travel documents and demanded access to her phone. She was unable to document his behaviour due to his strict monitoring of her phone. If he found pictures she had taken of a bruise, he would “inflict more violence [on her] and he would delete the pictures”.

[218] The Mother’s friend, Shaira Rahimi, said that the Mother would “often call her from the closet or bathroom” from the parties’ condominium in Champaign and would whisper to her friend that the Father was yelling again, and she did not know what to do. Shaira Rahimi felt that the Mother was clearly fearful of the Father.

[219] The Father stressed that the Mother had a key to his condominium and the code for keyless entry to the house.

[220] I find the Mother’s assertion that the Father was isolating her from friends and family difficult to reconcile with the Mother’s frequent and lengthy trips to Canada some of which were without the Father. The Mother also kept in regular contact with her family via WhatsApp while in Champaign.

(xii) Financial Abuse

[221] The Mother also alleged that the Father was financially controlling of her. He would not allow her to view his finances and he immediately took control over her finances after marriage.

[222] The Mother’s own evidence to some degree contradicts this broad statement. In paragraph 24 of her affidavit, she outlines the various bank and investment accounts that she has at Canadian banks. She states that their wedding money was deposited into a joint account that she opened at RBC in Ontario and after she found out that the Father was taking money out without her knowledge, she closed the account and transferred the funds to her sole account.

[223] The Father confirms that the Mother transferred the wedding money into her own account after an argument.

[224] The Mother also stated that she was forced to rely on her Canadian debit and credit cards which caused her significant conversion fees after the Father drained her U.S. bank account through the ATM machine. However, she does not suggest that she was without access to funds.

(xiii) Summary of Article 13(b) Exception

[225] I am being asked to weigh these serious allegations in the context of relatively short affidavits followed by brief cross-examinations. Much of the parties’ evidence on the issue of abuse is completely contradictory.

[226] The Mother sets out a lengthy list of very serious incidents involving physical violence and threats. Few are supported by other contemporaneous evidence. I am mindful that people who are subjected to domestic violence can often be reluctant to share information even with those close to them due to fear, shame, cultural pressures, or a litany of other reasons. See Barendregt v. Grebliunas, 2022 SCC 22 at paras. 143-145. It is for that same reason that I would put little weight on the fact that neither the police nor child protective services was called before September 12, 2024.

[227] I have concerns about the Mother’s credibility arising from her evidence on the issue of habitual residence. I also have concerns with the credibility of some of her evidence and that of maternal grandmother on the issue of abuse. For example, I have concerns about the evidence of the maternal grandmother’s bruises being put forward as evidence of abuse. The Mother did not have details of the dates of the photographs or who took them. She belatedly agreed with the Father’s evidence that they had taken her mother to the hospital a few days before the alleged assault. Overall, I prefer the Father’s evidence that the maternal grandmother’s bruises were a result of her blood thinners rather than because she was thrown to the ground more than once by him. These concerns are such that I find I am unable to resolve the conflicting evidence in the Mother’s favour without some independent corroboration.

[228] I found the evidence of Sirisha Marakani and Amol Chiplunkar more balanced and careful. The Mother’s sister and brother-in-law have a close relationship with her. The Mother has lived with them and participated in caring for their children. Sirisha Marakani described herself as having a close relationship with the Mother – they are confidantes. The Mother and Father stayed in the Marakani/Chiplunkar home at times when they were visiting Ontario. It is for this reason that I have noted the absence of evidence from Sirisha Marakani to corroborate some of the Mother’s allegations.

[229] The evidence suggests that the Father has at times tried to extricate himself from conflict with the Mother. In the January 9, 2024, argument, the Father drove over to the maternal grandmother’s home and brought her back to his parents’ home. The Mother and maternal grandmother later left together. In the July 1, 2024, incident, the Father packed an overnight bag and left the home leaving the Mother and baby at home with the maternal grandmother. During the argument on September 8, 2024, while the Father made denigrating and foul comments to the Mother in the course of their argument, I do not find he threatened her. He repeatedly told her to call 9-1-1 and to take the baby.

[230] I do find that the Father used foul and demeaning language during arguments with the Mother.

[231] With reference to the test in Hassan, I am unable to find on the balance of probabilities, in what is necessarily a summary proceeding, that there has been severe or life-threatening past violence or that violence is likely to recur. There is no evidence that the Father has not been amenable to control by the justice system. The Mother did not suggest that he has failed to follow his criminal release terms or the family court orders.

[232] The Mother referred me to Husid in which the Ontario Court of Appeal upheld the trial judge’s decision not to return the child to Peru pursuant to Article 13(b). The trial judge had evidence that the father (who carried a gun) had threatened to kill the mother as had his cousin. There was evidence of physical injuries to the mother in the form of a legal medical certificate. The father had attempted to physically take the child from the mother in the presence of the police. It was also noted that the mother was at risk of being arrested upon her return to Peru which would suddenly remove the child from the care of the mother.

[233] As Fairburn, A.C.J stated in Zafar at para. 40:

…All parties to the Hague Convention share in the view that "the interests of children are of paramount importance in matters relating to their custody": Hague Convention, Preamble. See also Geliedan v. Rawdah, 446 D.L.R. (4th) 440, 2020 ONCA 254, at para. 37. When dealing with signatories to the Hague Convention, we take comfort from the fact that they, like Canada, are committed to making decisions based upon the best interests of children.

[234] In Paschel v. Paschel, 2017 ONSC 6952, aff’d 2017 ONCA 972, the application judge held at para. 89:

Accepting, for the moment, that the Mother has established that there is a grave risk of physical or psychological harm to the children, the Mother has not established on a balance of probabilities, by clear evidence, that the court, child protection organizations, or other social service organizations in Tennessee are or might be incapable or unwilling to protect the children from these risks. Absent such evidence, as a question of comity between jurisdictions, I must accept that the Tennessee court, child protection organizations and social service organizations will provide such protection, if required. The Mother has led no evidence in this regard.

See also Brown v. Pulley, 2015 ONCJ 186.

[235] In Thomson, LaForest J. held at para. 86:

Given the preamble’s statement that “the interests of children are paramount”, courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L., supra; C. v. C., supra; [P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155 (H.C.)]; and Re A. (A Minor) (Abduction), supra. Through the use of undertakings, the requirement in art. 12 of the Convention that “the authority concerned shall order the return of the child forthwith” can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child’s habitual residence, and any short-term harm to the child is ameliorated.

[236] The Father has undertaken not to pursue a divorce to the extent that will impact the Mother’s immigration status in the U.S.

[237] When the Father was charged, he flew back to Illinois (as permitted by his release conditions) leaving the Mother with the family car. In the court in Illinois, he offered to vacate the Trostshire home so that the Mother could reside there, and he repeated that undertaking before me. He also agreed to pay the carrying costs on the home, the car expenses and to pay the Mother a sum of money for ongoing support all without prejudice.

[238] These undertakings are appropriate to ensure that Miraya’s return to her habitual residence can occur in a manner that keeps both parties safe and minimizes this young child’s exposure to further conflict.

[239] There is already a proceeding before the court in Illinois. The parties have a date set for November 18, 2024. I accept that the court in Illinois along with the associated social services organizations in that state are capable of providing the Mother with the necessary protection and support.

[240] For all these reasons, I find that the Mother has not met the burden of demonstrating on a balance of probabilities that to order Miraya’s return to Illinois would expose the child to physical or psychological harm or otherwise place Miraya in an intolerable situation.

[241] As the Ontario Court of Appeal noted in Ellis at para. 50, I am not ordering that the Mother return to live with the Father. This would be contrary to the Father’s criminal release terms in any event. I am requiring the child to be returned to Illinois so that the court in that state can properly deal with the issues in the proceeding that has already been commenced there.

[242] The parties had raised the possibility of Leef J.’s temporary order for parenting time continuing pending further order by the court in Illinois. I have declined to make an order for parenting time to take place once Miraya is returned to Illinois as the court in Illinois can make the appropriate order. I have provided the Mother with a few days to get organized for the trip back to Illinois. Miraya must be returned to Illinois by November 17, 2024. If the Father is in Ontario prior to that time, Leef J.’s order shall apply so that he can continue to enjoy parenting time.

IV. ORDER:

1. The child, Miraya Devi Chawla, born May 14, 2024, shall be returned forthwith to her habitual residence of Champaign, Illinois forthwith and in any event by no later than November 17, 2024.
2. If the Respondent (Mother) takes the child, Miraya Devi Chawla, born May 14, 2024, back to Champaign, Illinois, the child shall remain in her primary care.
3. If the Respondent (Mother) fails to return the child, Miraya Devi Chawla, born May 14, 2024, to Champaign, Illinois by November 17, 2024, the Father may take the child to Champaign, Illinois.
4. The police in the area where the child may be located, including but not limited to all police, the Ontario Provincial Police, the RCMP and all governmental forces and/or agencies having jurisdiction in any area where it appears that the child may be are directed to enforce this order.
5. The following undertakings shall apply to the Applicant (Father) on a without prejudice basis and subject to any order subsequently made by the court in Illinois: a. The Applicant (Father) shall vacate the family home located at 4405 Trostshire Circle, Champaign, Illinois and give the Respondent exclusive possession of the home. b. The Respondent (Mother) shall continue to have the exclusive use and enjoyment of the Applicant (Father)’s car currently in her possession. c. The Applicant (Father) shall pay the carrying costs of the family home and shall continue to pay the insurance and registration of the car being driven by the Respondent (Mother). d. The Applicant (Father) shall pay to the Respondent (Mother) the sum of $1,500 USD per month commencing November 17, 2024, as an uncharacterized payment. e. The Applicant (Father) shall not seek an order for a divorce.
6. The temporary, without prejudice order of Leef J. dated October 7, 2024, shall continue to apply until Miraya is returned to Champaign, Illinois.
7. The parties shall obtain from the Trial Coordinator, a date in the upcoming trial sittings for a one-hour attendance before Fryer J. to make oral submissions with respect to costs of this Application. Each party shall file a bill of costs and a copy of any offer to settle.