Court File and Parties

COURT FILE NO.: FS-23-133 DATE: 2024 11 21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Shaun Ford Schweitzer v. Thais Quintino Da Silva

BEFORE: MANDHANE J

COUNSEL: Paul Cooper for the Applicant Edwardo Barbosa, for the Respondent

HEARD: November 15, 2024

REASONS ON HAGUE APPLICATION

INTRODUCTION

[1] The Central West Region of the Ontario Superior Court of Justice is at the epicentre of international migration into and out of Canada. The A. Grenville and William Davis Courthouse, where this application was heard, is about twenty kilometers west of Toronto Pearson International Airport and serves a highly diverse immigrant population. Within this community, it is common for parents to have ties to different countries, and for their children to have family, cultural, and social connections that cut across national boundaries. When a child’s diverse connections are nurtured, they are more likely to grow up with a grounded sense of their identity. However, in the face of marital breakdown and fluid migration, international child abduction risks severing the child’s connection to their community, with long-term negative impacts on their family relationships and their identity.

[2] This case revolves around five-year-old C. (she/her) (“Child”). Her parents come from different countries and fundamentally disagree on where she should be raised. The Applicant/Father, Shaun Ford Schweitzer (he/him), is Canadian but wants to return to Brazil to pursue economic opportunities there; he wants to take the Child with him. The Respondent/Mother, Thais Quintino Da Silva (she/her), is Brazilian and is living with her intimate partner in Canada; she wants to raise the Child here. The Child has connections to both Brazil and Canada. She has spent most of her life in Brazil but has been living in Canada and attending school here since September 2023.

[3] The Father now brings this Hague Application asking for an order that the Child be immediately returned to Brazil because the Mother has wrongfully retained her in Canada contrary to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). As contracting parties to the Hague Convention, Canada and Brazil have agreed to give the child’s best interests paramountcy when determining parenting matters, to respect the parenting rights granted in their respective jurisdictions, and to require the prompt return of children wrongfully removed from or retained in their respective jurisdictions.

[4] I refuse to order the Child’s return to Brazil because she was habitually resident in Canada immediately before the Mother’s alleged abduction. In arriving at my conclusion, I interpret the Hague Convention consistently with Canada’s international human rights obligations under the United Nations Convention on the Rights of the Child (“Child Rights Convention”). In my view, interpreting the Hague Convention consistently with children’s rights is a practical antidote to the problems that arise when courts are tasked with determining the child’s habitual residence on an evidentiary record framed entirely by the parents.

[5] I propose that courts stay laser focused on the child’s links and circumstances in each country on the date of the alleged abduction when determining “habitual residence.” Probative evidence of the child’s links and circumstances will include evidence about: the child’s family history, the parent’s intentions when migrating, the child’s cultural identity, the child’s education and social connections, the child’s age and stage of development, and the child’s views and preferences. On the other hand, a parent’s current preferences or parenting abilities will generally not be relevant to determining the focal point of the child’s life immediately before the alleged abduction. At a procedural level, staying laser focused on the child also means affording children participatory rights in Hague proceedings.

OVERVIEW

[6] The Mother is Brazilian and came to Canada as an international student in February 2019. She met the Father and started living with him in March, and soon learned she was pregnant. The parents were married in Toronto on June 26, 2019, and had the Child five months later, on November 2, 2019. The Child was born in Canada, is a dual Canadian and Brazilian citizen, and carries a Canadian passport.

[7] Before the parents separated, the family travelled back and forth between Canada and Brazil regularly. When the Child was one month old, the Mother returned with her to Brazil, while the Father worked in the United States. During this time, the Mother was the Child’s primary caregiver. When the Child was ten months old, the Mother and Child reunited with the Father in Canada; he was visiting his family in Ontario at the time. When the Child was 13 months old, on December 13, 2020, the family returned to Brazil, where they remained throughout the pandemic.

[8] In 2021, when the Child was around two years old, and while the family was still in Brazil, the parents separated. After separation, the Child lived primarily with the Mother and her extended maternal family in the maternal grandfather’s home. She attended a private, English-language daycare. The Father remained in Brazil but did not have a Brazilian work permit. At one point, the Father was evicted from his rental housing and moved into the maternal grandfather’s home temporarily.

[9] After separating, the parents were in constant conflict over parenting and financial issues. In February 2022, the Mother brought an application before the Brazilian courts for custody and child support.

[10] In May 2023, the Mother travelled with the Child within Brazil without notifying the Father of her whereabouts. When he did not see the Child for a few days, the Father involved the Canadian and Brazilian Central Authorities to seek return of the Child to Canada pursuant to the Hague Convention; he alleged that the Mother was wrongfully retaining the Child in Brazil. He did not file a Hague application before the Brazilian courts, presumably because the Mother returned with the Child a few days later.

[11] In August 2023, the Mother approached the Father to settle the Brazilian litigation. On August 16, 2023, the parties signed a Custody, Support, and Visitation Agreement, that was converted into a final Brazilian court order on November 1, 2023 (“Brazilian Order”). The Brazilian Order states that, ““The parties hereby agree that custody will be exercised on a shared basis, from the moment the parties are on Canadian soil…” It also states that:

• “The minor shall have her mother's residence as her home of reference when she is living in Brazil, and her father's residence as her home of reference when she is living in Canada.”
• “It is prohibited to change the residence of the minor to another location far from Toronto/CANADA or Barra Mansa/BRAZIL, without the prior consent of both parents.”
• “The parents undertake to authorize or sign a travel consent letter for the minor, including to travel abroad, as long as she is accompanied by one of them.”

[12] On September 3, 2023, the Brazilian authorities issued an arrest warrant against the Father because he had not been paying child support since June 2022. The warrant was vacated after he paid off the arrears.

[13] Later in September 2023, when the Child was just over three years old, the parents travelled separately to Canada. The Mother paid for the flights, while the Father travelled with the Child. They bought one-way tickets.

[14] Upon arriving in Canada, the parents immediately enrolled the Child in school in Mississauga. The Mother and Child started living with the Mother’s new intimate partner, Mr. Justin Derry, in his home in Mississauga, while the Father moved into rental housing in the same neighbourhood. Pursuant to the Brazilian Order, the Mother had primary parenting time with the Child, while the Father had the Child on weekends. This parenting schedule remains in place.

[15] In December 2023, the Father says that he asked the Mother for her consent to return to Brazil with the Child at the end of August 2024. The Mother refused. She brought an emergency ex parte motion and Justice McGee made a non-removal order effective December 28, 2023.

[16] On April 22, 2024, the Mother brought an application seeking sole decision-making authority, primary parenting time, and child support (“Parenting Application”). The Father refused to attorn to the jurisdiction of Canada and did not file an Answer; instead, he argued that Brazil had jurisdiction because the Brazilian Order addressed identical issues. On August 7, 2024, Justice André held that Canada had jurisdiction over the Parenting Application. The Father did not appeal Justice André’s Jurisdiction Decision and did not file an Answer to the Parenting Application.

[17] On September 5, 2024, the Father filed this application seeking return of the child to Brazil pursuant to the Hague Convention (“Hague Application”). The Father says that the Mother has been wrongfully retaining the Child in Canada since obtaining the ex-parte non-removal order on December 28, 2023. He says that the Child must be returned to Brazil immediately because the parents always intended to return to Brazil permanently in September 2024. The Father says that the Mother is wrongfully retaining the Child in Canada to further her application to stay in the country.

[18] The Mother says that I should dismiss the Hague Application. She says it is an abuse of process because the Jurisdiction Decision addresses identical issues. On the substance, she denies wrongfully retaining the Child in Canada and resists any return of the Child to Brazil. She says the parties always intended to stay in Canada, and that the Child is now settled here. She worries that the Father is using the Child to gain legal status in Brazil, and that he cannot provide for her there. While the Mother admits that she has no legal status in Canada, she says that she is in a committed relationship, is working cash jobs, and taking steps to regularize her status here.

[19] Because it is uncontroversial that both parents have custodial rights over the Child in both Canada and Brazil, the only questions that I must answer are:

a. Why was the Hague Application delayed? b. Should the Hague Application be adjourned? c. Should the Hague Application be dismissed because it is an abuse of process or vexatious? d. Has the Mother wrongfully retained the Child in Canada? i. What is the date of the alleged wrongful retention? ii. Was the Child habitually resident in Brazil or Canada immediately prior to the wrongful retention? e. If the Mother wrongfully retained the Child in Canada, do either arts. 13(a) or (b) of the Hague Convention apply such that the Child need not be returned to Brazil?

[20] I would answer these questions as follows:

a. The Hague Application was delayed so that the Mother could participate in the hearing. b. It is not in the interests of justice to adjourn the Hague Application. c. The Hague Application is not an abuse of process because it does not address the same issues as the Jurisdiction Motion. It is also not vexatious, though the Father’s repeated resort to the Hague Convention is relevant to assessing his credibility. d. The Mother has not wrongfully retained the Child in Canada because the Child was habitually resident in Canada (not Brazil) immediately prior to the alleged abduction in August 2024. e. Because I am not ordering return of the Child to Brazil, I do not need to consider the exceptions to mandatory return under the Hague Convention.

[21] At the hearing on the merits on November 15, I refused the Father’s adjournment request and dismissed the Hague Application. These are my reasons for doing so.

ANALYSIS

[22] In 1980, the Hague Convention offered a practical, private international law solution to the emerging problem of children being taken across national borders, and jurisdictional boundaries making it difficult for them to be returned home. A decade later, the U.N. General Assembly adopted the Child Rights Convention, ushering in a new era where children are recognized as individual rights-holders rather than an extension of their parents.

[23] The Child Rights Conventions starts from the presumption that child abduction is harmful to children and requires States Parties to take measures to combat it, including signing multi-lateral treaties. The Child Rights Convention also protects children’s substantive rights at the intersection of international migration and family law, for example, by granting children the right to maintain relationships with their parents across jurisdictional boundaries, and the right to maintain their cultural identity. The Child Rights Convention also affords children the procedural right to express their views and have them given due weight on all matters affecting their interests. Together, these rights implicitly recognize that a child is uniquely vulnerable and powerless in the face of one parent’s unilateral decision to migrate from the child’s habitual residence. Afterall, children generally cannot travel freely across national boundaries themselves.

[24] With the benefit of hindsight, the Hague Convention focuses on parents’ procedural and “custodial” rights to the near complete exclusion of children’s rights. While the Hague Convention and Child Rights Convention both reference the child’s best interests as paramount, they are fundamentally different in how they conceive of the harm that flows from international child abduction, and the importance they place on children’s substantive and procedural rights. Moreover, while “habitual residence” is meant to be a child-focused analysis, there are practical limitations to making this a reality. The parent-centric approach persists because Hague applications proceed in a summary fashion under strict timelines, because parents frame the issues in dispute, because the child’s best interests are not relevant, and because there is no meaningful opportunity to consider the child’s views and preferences. In the end, the trier of fact is often tasked with making an extraordinary decision on a distorted evidentiary record that effectively excludes the child from the analysis.

[25] Still, in the face of ever-increasing global migration, the Hague Convention and Child Rights Convention work hand in glove to protect children’s rights. While the Child Rights Convention grants children the right to maintain regular contact with each parent across jurisdictional boundaries, it is the Hague Convention that practically deters one parent from unilaterally depriving the child of that right through child abduction, and promotes resolving parenting issues in the jurisdiction that is most central to the child’s identity.

[26] Because the Hague Convention is one of the ways Canada implements its binding human rights obligations to children, it follows that the convention should be interpreted consistently with the Child Rights Convention. I propose that courts stay laser focused on the child’s links and circumstances in each country when determining their “habitual residence” on the date of the alleged abduction. Probative evidence of the child’s links and circumstances will include evidence about: the child’s family history, the parent’s intentions when migrating, the child’s cultural identity, the child’s education and social connections, the child’s age and stage of development, and the child’s views and preferences. On the other hand, a parent’s current preferences or parenting abilities will generally not be relevant.

[27] At a procedural level, staying laser focused on the child when determining habitual residence means affording children participatory rights in Hague proceedings. While the Father took the position that the Child in this case was too young to provide her views and preferences, I disagree. Even pre-schoolers like the Child can answer simple questions about their connections to family, friends, and community in both countries. These are the kinds of questions children are asked everyday by their parents, teachers, and community members. The Committee on the Rights of the Child, which monitors compliance with the Child Rights Convention, has discouraged States Parties from imposing arbitrary age limits on the right of the child to be heard.

a. Why was the Hague Application delayed?

[28] The Family Law Rules, O. Reg. 114/99 require that I dispose of child abduction applications within six weeks. The Father’s Hague Application was filed on September 5 and I decided the matter at the hearing on November 15, which amounts to a delay of ten weeks from application to disposition. While the parties did not raise concerns about the four-week delay beyond the presumptive ceiling, I offer some reasons because I am mindful of my obligation under the Hague Convention to proceed expeditiously.

[29] The one-month delay was in the interests of justice because it was necessary to put the Mother on notice and allow her to participate in the hearing. The Mother had a clear interest in the outcome of the Hague Application because of her outstanding Parenting Application.

[30] While expediency is an overarching principle when dealing with Hague applications, in this case natural justice required a short delay to ensure that I could decide the Hague Application based on a proper record and with the Mother’s full participation. I would also add that, in appropriate cases, a court might be justified in delaying the adjudication of a Hague Application for a few weeks to allow for the child’s participation, for example, through appointment of the Office of the Children’s Lawyer (“OCL”). Given the summary nature of the proceedings and the expedited timelines, even a short letter from the OCL would be helpful.

b. Should the Hague Application be adjourned?

[31] At the outset of the hearing on November 15, the Father asked for a week’s adjournment to review the Mother’s immigration application, and to cross-examine her on it in court. The Father says that the Mother’s immigration application is relevant to her credibility and to ascertaining her intentions when she moved to Canada. The Mother opposed adjourning the matter, arguing that the immigration application was irrelevant.

[32] After hearing submissions from both parties, I refused to grant the adjournment because it was not in the interests of justice to further delay the hearing on the merits. First, I would note that the Father’s proposal to return in one week for cross-examination and a hearing was unrealistic given the lawyers’ respective court schedules, and the overwhelming demand on the court’s resources. The delay would have more likely approached a month.

[33] Second, while I recognize that the Mother disclosed the immigration application to the Father the day before the hearing, the Father’s own conduct contributed to her delay. The Father filed his affidavit late, and both counsels conducted cross-examinations one week after the court-ordered deadline. The Mother gave an undertaking at her cross-examination to disclose the immigration application. Had the parties followed the court-ordered timeline for cross-examinations, I am confident that the immigration application would have been disclosed earlier.

[34] Third, I have a duty to resolve Hague applications quickly and efficiently because delays breach Canada’s international obligations, impose hardship on the child, and frustrate appellate review. Because child abduction is harmful to the child, time is of the essence. Even a few weeks delay can be significant when it comes to repairing family and cultural ties severed through international child abduction, this is especially the case where the Child is young. If the Child is to be returned to another jurisdiction, justice favours doing so quickly. This is precisely why Hague applications proceed on a summary record.

[35] Fourth, the Mother’s immigration status application is only marginally relevant to my determination of the Child’s habitual residence. While the application shows that the Mother only attempted to regularize her status in Canada as of May 2024, the contents of the application are less relevant because they are unlikely to shed further light on the child’s links and circumstances in each jurisdiction. Finally, quite apart from the contents of the immigration application, I am satisfied that I have sufficient information to fairly decide the matter on the merits. The record before me includes two affidavits from each party, the Brazilian Order, text messages exchanged between the parties, photographs of the child, school records, and cross-examination transcripts.

c. Should the Hague Application be dismissed because it is an abuse of process or vexatious?

[36] The Mother says that I should dismiss the Hague Application because it is an abuse of process. She says that Justice André already found that the Child’s habitual residence is Canada. She says that the Father is now trying to relitigate that issue under the auspices of this application. She says that there is nothing stopping the Father from seeking to relocate with the Child to Brazil in the Parenting Application, such that this proceeding is duplicative.

[37] Justice André held that Canada had jurisdiction over the Parenting Application. While he agreed that the Brazilian courts would usually retain jurisdiction over the parenting dispute because of the Brazilian Order, Justice André exercised his limited discretion to “supersede” the Brazilian Order pursuant to s. 42(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. In particular, he found that there had been a material change in circumstances affecting the Child’s best interests because the Mother was now in a committed relationship in Canada with Mr. Derry. Justice André further found that the Child was “habitually resident” in Ontario when the Mother commenced her Parenting Application on April 22, 2024, because she had been attending school here since September 2023.

[38] The task before me is entirely different than the one before Justice André. His sole task was to decide whether Brazil or Canada had jurisdiction over the Parenting Application; my sole task is to decide whether the Child should be returned to Brazil. In deciding that Canada had jurisdiction, Justice André found that the Child was habitually resident in Canada as of the date of the Parenting Application (i.e., March 2024). In contrast, I must consider whether the Child was habitually resident in Canada as of the date of the Mother’s alleged wrongful retention (i.e., August 2024). There is no risk of inconsistent findings of fact between the Jurisdiction Decision and the Hague Application because the relevant dates for determining “habitual residence” are five months apart.

[39] Moreover, the fact that the Father can seek to relocate with the Child to Brazil in the Parenting Application does not make the Hague Application abusive. The only order I can make on this Hague Application is return of the Child to Brazil. That is because a Hague application is focused on preventing the harmful practice of child abduction and defers determination of the child’s best interests to the jurisdiction of the child’s habitual residence. In practice, Hague applications are backward looking, with a focus on the date of the alleged abduction and the child’s habitual residence as of that date. That is why a Hague application must be heard before a parenting application. Parenting applications, on the other hand, allow the court to make wide-ranging orders so long as such orders are in the best interests of the child. This is because, in practice, parenting applications involve a wide-ranging inquiry into the child’s current circumstances and best interests, with a focus on what the child’s life should look like in the future. In this regard, the Parenting Application and Hague Application are not duplicative.

[40] Finally, the Mother argues that the Hague application is vexatious because the Father has a history of abusing child abduction procedures. The Father has previously alleged that the Mother abducted the Child from Canada to Brazil. In May 2023, the Mother traveled with the Child from Rio De Janeiro to Sao Paolo without informing the Father, though her extended family knew her whereabouts. After a few days, the Father contacted the Canadian and Brazilian Central Authorities and alleged that the Mother had abducted the Child from Canada to Brazil. He also created a website called “Save C.” seeking the public’s assistance with finding her. Under cross-examination, the Father admitted that he knew that the Child was not habitually resident in Canada in May 2023, but explained that he misled the Central Authorities because he was more concerned about ascertaining the Child’s whereabouts than being truthful. He never ended up filing a Hague application with the Brazilian courts because the Mother returned with the Child.

[41] Overall, while I am not willing to dismiss the Hague Application as vexatious, I am prepared to make a negative finding about the Father’s credibility because of his shifting and inconsistent positions on the Child’s habitual residence, and his willingness to lie to authorities when it suits his purposes and to get his way.

d. Has the mother wrongfully retained the Child in Canada?

[42] To be entitled to a remedy under the Hague Convention, the Father must establish that: (1) he has custody rights to the Child; (2) the Mother wrongfully retained the Child in Canada; and (3) the Child was habitually resident in Brazil immediately prior to the breach of his custody rights. If these conditions are met, I am generally required to order the Child’s return to their habitual residence.

[43] Hague applications proceed in two steps: (1) determine the habitual residence of the child; and (2) if the child is found to be habitually resident in the state of the applicant, then determine if one of the exceptions to ordering return applies. In terms of determining “habitual residence,” again I am to take a two-step approach: (1) determine the date of the alleged abduction; and (2) consider where the child was habitually resident immediately before the date of the alleged abduction.

[44] The date of the alleged wrongful retention is August 2024 because that was the date that the Father says that he meant to return with the Child to Brazil permanently. The Father requested the Mother’s consent to travel back to Brazil on December 9, 2023, but admits that he did not intend to travel back to Brazil until August 2024. Despite the Mother obtaining a non-removal order on December 23, 2023, I refuse to find that this was the date of the alleged wrongful removal. The Father did not intend to raise the Child in Brazil as of that date, and he did not file this Hague application until September 2024. The Father effectively admits that the Mother was not wrongfully retaining the Child in Canada in December 2023.

[45] I must determine “habitual residence” through a hybrid approach that considers “all relevant circumstances,” including the parents’ intentions and the child’s interests. I must determine the “focal point” of the child’s family and social environment immediately prior to the alleged abduction, which requires an analysis of the child’s links and circumstances in both countries and the circumstances of their migration. I must consider the "entirety" of the child's situation to determine their habitual residence. I may consider factors such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on. Evidence about the child’s views and preferences is admissible if it is relevant to assessing the child’s links or circumstances in each jurisdiction. That being said, evidence that goes solely to the child’s best interests will not be relevant because Hague proceedings start from the assumption that prompt return of the child to their habitual residence is in their best interests, and because a summary proceeding is not the proper forum for an individualized and detailed assessment of the child’s overall circumstances and needs.

[46] Because the child is the focus of the analysis, it makes sense to frame the inquiry around the child’s links and circumstances in both countries on the date of the alleged abduction. Probative evidence of the child’s links and circumstances in each country will include information about:

• the child’s birthplace, citizenship, travel documents, and government-issued identification;
• The child’s circumstances in the country, including the parents’ intentions at the time of migration;
• the child’s family, kinship, or ancestral relationships in each country;
• the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• the child’s social connections in each country;
• the child’s history of migration, residency, and care;
• the child’s history of education in each country;
• the child’s age and stage of development; and
• the child’s views and preferences, giving due weight to the child’s age and maturity.

[47] While these factors may overlap with the statutory factors that Canadians court must consider when deciding parenting, they do not mirror the “best interests of the child” factors. For example, I refuse to consider evidence about each parent’s plan for the Child’s future care, their respective abilities to care for the Child, or their inability to communicate and cooperate. This type of evidence tells me little about the Child’s links and circumstances in each country on the date of the alleged abduction: it is much more focused on parenting abilities into the future.

[48] Parental preferences are not generally relevant to determining the child’s links and circumstances in each country. Such evidence can distract from the narrow task at hand, bearing in mind the reality that each parent will have their own motivations for abducting a child across international boundaries, whether relational, economic, or otherwise. Here, for example, despite the parties’ extensive cross-examination on these topics, I find it largely irrelevant that the Mother wishes to stay in Canada to pursue her relationship with Mr. Derry, while the Father wishes to move to Brazil to pursue economic opportunities. I also find it irrelevant that each parent’s immigration status in their preferred country largely depends on who has primary parenting time with the Child.

[49] Suffice it to say, I must stay laser focused on the Child’s links and circumstances to each jurisdiction. Bearing in mind the relevant factors, I now assess the Child’s connection to Canada and Brazil as of August 2024. The Child was born in Canada, is a Canadian and Brazilian national, has a Canadian passport, has an Ontario Health Insurance Plan card, and speaks English. The Mother is Brazilian, can speak English and Portuguese, and does not have immigration status in Canada. The Father is Canadian, cannot speak Portuguese, and does not have immigration status in Brazil.

[50] As of August 2024, the Child was bonded with both of her parents because they were both living in Canada and regularly caring for her here. They had an established parenting routine here. The Child was also bonded with Mr. Derry and his extended family in Canada. The Child also has contact with the paternal grandmother, aunt, and cousin through her Mother. The Child had completed junior kindergarten at a public school in Mississauga and was enrolled in senior kindergarten. She had a regular school routine and a bond with her schoolmates. She participated in extracurricular activities with both her parents.

[51] As of August 2024, the Child had not visited Brazil since immigrating to Canada eleven months earlier. While the Child was likely quite bonded to her maternal family because she lived in a multi-generational household with them in Brazil, her only remaining connection to Brazil was phone or video calls with her maternal relatives facilitated by the Mother. Given her age, I doubt she has strong memories or friendships from her daycare in Brazil.

[52] The record is conflicting in terms of the parent’s intentions regarding child’s circumstances in the country. The Father says that the parents decided in December 2020 that the Child would be raised in Brazil, that they travelled to Canada in September 2023 so that the Child would have some “Canadian experience,” and that they intended to return to Brazil permanently in September 2024. While there are no written documents confirming these intentions, the Father points out that he has never bought property in Canada, that he can obtain permanent residency in Brazil based on family reunification with the Child, and that he plans to pursue business opportunities there.

[53] The Mother says that, despite separating while in Brazil, the parents made a joint decision in August 2023 to move to Canada permanently and raise the Child here. She points out that parties both travelled here in September 2023 on one-way tickets, enrolled the Child in school here, and arranged their lives so that they could abide by the parenting schedule outlined in the Brazil Order. This included the Mother moving into Mr. Derry’s home and the Father renting housing close to the Child’s school. The Mother says that nothing in the Brazil Order establishes a timeline or framework for returning to Brazil. The Mother says that she is currently regularizing her immigration status in Canada and is working cash jobs to make ends meet.

[54] On the date of migration, September 2023, I find that the parents both intended to change the Child’s habitual residence from Brazil to Canada. I specifically reject the Father’s evidence that the parents’ intention was always to return to Brazil permanently in August 2024. As I discussed above, the Father was not a credible witness, and I am reluctant to rely on his evidence without some corroboration. Here, none of the documents that he proffered support his claim about the parties’ intention was to return to Brazil. Indeed, given that both parties were represented by lawyers at the time that the Brazil Order was negotiated, I would have excepted it to reference a return to Brazil if that had been the parties’ shared intention. Instead, the Brazil Order is ambiguous. In my view, the parties never came to an agreement as to whether they would remain in Canada or go back to Brazil. On the record, I find that the parties intended to change the Child’s habitual residence to Canada when they immigrated, but that they left open the possibility of returning to Brazil at some point. This is consistent with Justice André’s finding that there was a material change of circumstances after the Mother decided that she wanted to stay in Canada permanently to pursue the relationship with Mr. Derry—thereby foreclosing any possible return to Brazil.

[55] Unfortunately, there was no direct evidence before me about the Child’s views and preferences, despite my request that the parties to make submissions on them. In the absence of such evidence, it is especially important for courts to consider the child’s age and stage of development as part of the assessment of her connections to each jurisdiction. In this regard, children ages three to five have a growing sense of independence, and social networks that include other children, teachers, and families, while finding security in their routines and requiring adult guidance, supervision, and support. Preschoolers are concrete in their thinking and egocentric, often believing that they are the “centre of the universe.”

[56] Overall, as of August 2024, I find that the “focal point” of the Child’s life was Canada. First, the parents intended to change the Child’s habitual residence to Canada when they migrated here in September 2023. Second, the Child was cared for by both her parents in Canada, was going to school in Canada, had friends in Canada, and is a Canadian citizen with a Canadian passport and OHIP card. Finally, despite her experiences as an infant and toddler in Brazil, the Child had very few remaining connections in Brazil as of August 2024, especially since preschoolers view their connections through the lens of their day-to-day routines, their experience with different caregivers, and their daily social connections in the immediate community.

[57] The Father has not satisfied me that the Child’s habitual residence as of the date of the alleged wrongful retention in September 2024 was Brazil. As a result, his Hague Application must fail.

e. If the Mother wrongfully retained the Child in Canada, do articles 13(a) or (b) of the Hague Convention apply such that the Child need not be returned to Brazil?

[58] Given my finding that the Child was not wrongfully retaining in Canada, I do not need to consider whether any of the exceptions under the Hague Convention apply.

CONCLUSION

[59] The Father’s Hague Application is dismissed.

MANDHANE J

DATE: November 21, 2024