Court File and Parties
COURT FILE NO.: FS-24-113 DATE: 2024 12 10 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HENRY JUNIOR VALDEZ CEBALLOS Applicant M. Stangarone and T. Guo, for the Applicant
- and -
ALMA ETHEL ALDANA CASANOVA Respondent S. Harvey and A. Khattak, for the Respondent
HEARD: November 18, 2024
HAGUE APPLICATION
REASONS FOR DECISION
L. Shaw J.
Overview
[1] The applicant father seeks the return of his son to Mexico pursuant to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”). The respondent mother opposes the child’s return and requests that the application be dismissed. The child, who I will refer to as R, was born January 3, 2019; he currently resides with the respondent in Ontario.
[2] During the hearing, counsel for the respondent advised that there is no dispute about the following:
a) The child was habitually resident in Mexico at the time of his wrongful removal and retention;
b) The father did not acquiesce to the child’s move to Canada, nor did he delay in commencing this proceeding;
c) The father was exercising parenting rights in Mexico at the time of the wrongful removal and retention.
[3] The issue to determine is whether an exception to an order requiring R to return to Mexico applies. The respondent argues that the exception in Article 13(b) of the Hague Convention applies as R faces grave risk of harm or an intolerable situation if he returns to Mexico as a result of the applicant’s abusive conduct. The applicant denies all allegations of abuse.
[4] This hearing was conducted on a paper record. In addition to affidavits filed by the parties, they each filed several supporting affidavits from family and friends as well as two experts. Both counsel advised that there was no issue with respect to the qualifications of either expert. The parties declined to conduct cross-examinations on the affidavits either prior to or during the hearing.
[5] For the reasons that follow, I find that the exception in Article 13(b) of the Hague Convention does not apply; R is ordered to return to Mexico by no later than December 31, 2024. I will discuss the issue of undertakings at the end of these reasons.
Background
[6] The parties and R are Mexican citizens. They were living in Playa del Carmen, Quintana Roo, Mexico at the time the respondent left for a trip to Europe in August 2023 with R. She then travelled to Canada, without the applicant’s knowledge, and since October 2023 has refused to return R to Mexico.
[7] R was enrolled in school in Playa del Carmen. He has only left Mexico twice. He only speaks Spanish.
[8] The parties commenced a relationship in 2011 and began to live together in 2012. They did not marry. The relationship ended in February 2021; they have since lived separate and apart. The applicant works in the real estate industry. The respondent worked as a masseuse before she left Mexico.
[9] R is the only child of their relationship. They both have children from prior relationships. The applicant’s two other children live in Austria and the respondent’s daughter lives in Canada.
[10] The parties initially lived in the applicant’s home in Playa del Carmen. They moved to a new home in Playa del Carmen after R was born. When the parties separated in 2021, the applicant moved out of that home. The uncontested evidence is that the respondent continues to own that home, and a vehicle, in Playa del Carmen.
[11] After they separated, neither party commenced court proceedings, nor did they sign any sort of separation agreement. The parties agreed on a parenting schedule. There is no dispute that R spent time with both parents. There is a dispute about the frequency and duration of the time that he spent with the applicant. While the respondent disputes that it was a shared parenting relationship, her evidence is that after the parties separated, the parenting schedule was flexible, and she never opposed the applicant spending time with R. Despite the dispute regarding how much time R spent with the applicant, there is no dispute that he was exercising parenting rights in Mexico.
[12] On August 13, 2023, the respondent told the applicant that she intended to travel with R to Europe for three weeks to visit friends and family, including the applicant’s daughters. The applicant consented to the trip. It was his understanding that the respondent and R would return in September in time for R to begin school. He was enrolled in grade one at a school in Playa del Carmen.
[13] At the end of the three weeks, the applicant asked the respondent when she was returning; the respondent said she was not ready to return. On October 7, 2023, the respondent advised the applicant via a WhatsApp message that she was in Canada, would be staying, and had no intention to return to Mexico with R. The applicant then sent several messages to the respondent trying to persuade her to return with R to Mexico.
[14] The applicant learned, after the respondent left Mexico, that she unilaterally deregistered R from his school in July 2023. She did not inform the applicant of her decision to do this.
[15] The applicant notified the Prosecutor’s office in Playa del Carmen when the respondent refused to return with R. After some delay, an “amber alert” and “yellow alert” were issued by Interpol. The applicant continued his unsuccessful efforts to persuade the respondent to return voluntarily until she terminated communication with the applicant.
[16] The applicant learned of his rights under the Hague Convention in or about January 2024. That same month, he filed his Return Application and administration forms with the Mexican Central Authority seeking the return of R. Those documents were forwarded to the Canadian Central Authority in March. In or about September 2024, the applicant retained a lawyer in Canada to launch this application. This application was commenced on September 26, 2024, less than one year after the respondent told the applicant that she was not returning to Mexico with R.
[17] The applicant did not know where the respondent and R were living until an initial conference was held on October 3, 2024.
Issues to be Determined and Position of the Parties
[18] The applicant’s position is that R’s habitual residence is in Mexico and that he has been wrongfully retained in Ontario. He seeks an order under Article 12 of the Hague Convention that R be returned forthwith to Mexico. He also argues that none of the exceptions to an immediate return found in Article 13 apply.
[19] The respondent argues that Article 13(b) of the Hague Convention applies, and that R faces grave risk of harm or an intolerable situation if he returns to Mexico. Her position is that the applicant was physically and psychologically abusive during their relationship and he exerted coercive control over her after they separated. She also argues that the applicant consumes alcohol to an excess and has placed R at risk as he has driven him in a car while impaired.
[20] The respondent also argues that there is expert evidence that the justice system in Mexico will not protect her or R in the event she returns with R to Mexico.
Applicable Legal Principles
[21] Mexico and Canada are signatories to the Hague Convention. Article 1 sets out the purpose of the Convention as follows:
i) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
ii) To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.
[22] Pursuant to Article 12, where a child has been wrongfully removed or retained, and a period of less than one year has elapsed from the date of the wrongful removal or retention, the child shall be returned forthwith to their home or originating state. In this case, that is Mexico.
[23] The purpose of the Hague Convention is to protect against the harmful effects of wrongful removal or retention, deter parents from abducting a child to try to establish links in a new country that might award them custody, and to ensure a rapid resolution of the merits of custody or access in the forum of the child’s habitual residence: Ludwig v. Ludwig, 2019 ONCA 680, 30 R.F.L. (8th) 21, at para. 19.
[24] The purpose of this hearing is not to determine the merits of custody unless the court determines that the child is not to be returned. The decision whether to return a child is not based on who should have custody, parenting time or decision-making responsibility; Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (Ont. C.A.) at paras. 25-27 and Thomson v. Thomson, [1994] 3 SCR 551 at pp. 576 – 581.
[25] The Hague Convention presumes that the interests of children who have been wrongfully removed are better served by immediately returning them to their original jurisdiction where the merits of their best interest will be determined. If the return order is made, it restores the status quo which existed before the wrongful removal or retention.
[26] Article 13 of the Hague Convention sets out certain exceptions to the presumption that a child wrongfully removed or retained should be returned pursuant to Article 12. If one of those exceptions applies, the court may not order the return of the child.
[27] The applicant relies on the exception set out in Article 13(b) which states as follows:
Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requesting State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
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
[28] As Article 13 is an exception to the general rule that a wrongfully removed or retained child must be returned to their country of habitual residence, it should not be read so broadly that it erodes the general rule: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 76.
Review of the Evidence
a) The Evidence of the Respondent and Her Supporting Witnesses
[29] Given the sole issue to determine on this application, I will review the evidence that is relevant to the issue of whether Article 13(b) applies.
[30] The respondent describes her relationship with the applicant as abusive and tumultuous. She describes him as loud and aggressive. She says that the applicant often drank alcohol to an excess during their relationship. Her evidence is that he denied that he abused alcohol or that he needed treatment. According to the respondent, the applicant would lose control when he drank. He became angry, belligerent, and moody, and would belittle her. Her self-esteem suffered as a result of the applicant’s behaviour.
[31] The respondent described an incident in 2017, before R was born, when the applicant came home after drinking and wanted to be intimate. Her daughter was watching television with her in her bedroom which upset the applicant. He became enraged and threw the television at them. The respondent left the house for a few days after this incident.
[32] The respondent described another incident when the respondent came home, impaired, in February 2019, when R was just one month old. The applicant wanted to wake up R, but she refused. She said they argued several times about this. During one of these arguments, the applicant pulled a knife on her and said he would kill her if she took R away. That same month, he wrapped his hands around her neck in a threatening manner.
[33] In early 2020 and 2021, there was an incident when the applicant was drinking at home. He punched her daughter’s bedroom door and broke it. The applicant’s friend told the respondent not to call the police and left the home with the applicant.
[34] The respondent alleges that the applicant forced her to have sex, without her consent, on several occasions.
[35] On one occasion in May 2023, the applicant brought R home while he was under the influence of alcohol.
[36] The respondent never reported the applicant’s conduct to the police as she was afraid of what he would do if she filed a report.
[37] According to the respondent, she was primarily responsible for R both prior to and following their separation and made all decisions for him. After they separated, the respondent alleges that the applicant participated very little in R’s care. On one occasion in 2022 when she took a trip, she left R with the applicant, but he brought R to her mother’s house part way through the week. After that, R stayed overnight with the applicant very sporadically.
[38] The respondent’s evidence is that the applicant decided when to see R, but he was not consistent and at times did not follow through with plans he made with R. On one occasion in 2023, the applicant was to look after R when the respondent worked but he did not, and the nanny had to be called on an urgent basis.
[39] According to the respondent, due to the applicant’s lack of responsibility, his intimidation of her, and his conduct that put R at risk, she decided to move to Canada to be closer to her older daughter who moved to Canada two years earlier.
[40] The respondent believes that the applicant wants her to return to Mexico to control her. She said that in 2023, he frequently sent messages belittling her or intimidating her about money.
[41] According to the respondent, when she arrived in Canada, she tried to facilitate calls between R and the applicant, but R resisted. At the end of June or August 2023, she changed her WhatsApp number but before that, the applicant knew the phone number to use to contact R.
[42] According to the respondent, she commenced a refugee claim in Canada on October 4, 2023 based on the abuse she suffered at the hands of the applicant; her son is also a claimant as the respondent says he was exposed to a toxic environment.
[43] The respondent filed a supplementary affidavit attaching two documents in connection with her refugee application. The first document titled “Refugee Protection Claimant Document” confirms that the respondent and R submitted refugee claims and on April 9, 2024 were entitled to coverage of their health-care costs. The second document is entitled “Confirmation of Referral and Notice to Appear” from the Immigration and Refugee Board of Canada. That document indicates that the claims for refugee protection were referred to the Refugee Protection Division of the Immigration and Refugee Board of Canada. There was no date set for a hearing and the application is still pending.
[44] The respondent filed as evidence a letter from the lawyer representing her in the refugee claim. That letter dated October 22, 2024, addressed to the Immigration and Refugee Board letter attached claim-specific evidence including transcribed voice messages from the applicant in May 2023 and February 2024, a psychotherapist report dated July 18, 2024, and the affidavits of the respondent’s daughter and mother that were filed for this hearing. Also attached were two articles written about the Hague Convention.
[45] The letter from the psychotherapist is addressed to the Immigration and Refugee Board. According to that letter, the therapist saw the respondent 10 times between March and May 2024 to deal with anxiety due to a history of psychological abuse in Mexico. The respondent reported to the therapist that when she left the applicant, he continued to manipulate her, told her he was going back to Dominican Republic with R, sexually abused her when he was drunk, threatened her with a knife, put his hands on her neck, and bit and bruised her. She reported feeling anxious, and on edge, and had difficulty sleeping. She reported feeling depressed and angry since she was seven. Through treatment, she reported improvement with her depression and PTSD but she still experienced high anxiety.
[46] The respondent did not file a copy of her original refugee claim.
[47] In her affidavit, the respondent set out details of R’s life in Canada and why it would not be in his best interest to remove him from Canada where he has been going to school and making friends. As I will discuss in these reasons, I do not consider R’s current status in determining whether he should be returned to Mexico following his wrongful retention in Canada. If I decide R should be returned to Mexico, it will be for the court in Mexico to determine if is in R’s best interest to reside in Canada with his mother.
[48] Ms. Alma Rosa Casanova Gutierrez, the respondent’s mother, filed an affidavit. Her regular domicile is in Mexico; she is presently in Canada as a visitor.
[49] While she lived in Mexico, Ms. Gutierrez visited her daughter and R four to five times per year. She witnessed how the applicant treated the respondent and R.
[50] According to Ms. Gutierrez, the applicant could be charming, but his personality would change when he drank, which she said he did daily to an excess. When he drank, he would become irritable, aggressive, and prone to anger. He would raise his voice at the respondent, insult and swear at her, which R witnessed. She said that her granddaughter called her once in 2017 as she was upset and told her about the incident involving the television.
[51] According to Ms. Gutierrez, the respondent was R’s primary caregiver. The applicant would be gone all day and come back in the middle of the night, inebriated. She spoke to the applicant in 2020 about getting help for his alcohol abuse but he denied that he had a problem.
[52] After the parties separated in 2021, Ms. Gutierrez stayed with her daughter more often. On several occasions, the applicant did not show up for his parenting time with R. He would see R, at most, once per week and rarely overnight. In 2023, she saw the applicant visibly drunk while driving R. She heard the applicant threaten to take R to the Dominican Republic, where he is from, or to New Jersey, where his mother lives.
[53] The respondent’s daughter, Chiara Sofia Chacon Aldana, who is 18 years of age, filed an affidavit in support of her mother. She has lived in Canada since 2021 with her father; she is now a permanent resident.
[54] Before moving to Canada, she primarily lived with her mother in Mexico. She was eight when her mother moved in with the applicant. She said the applicant was constantly drunk, even during the day. She said she would lock herself in her room as he would be rowdy and become aggressive. She described the incident in 2017 when she and her mother were watching television in her bedroom. The applicant came home drunk, and was upset that she was in their bedroom with her mother. She said he aggressively knocked the television to the floor. She called her grandmother as she was scared.
[55] Her evidence is that the applicant initially tried to be home after R was born but shortly retuned to his old habits of being gone all day and coming home drunk. He drove her when he was impaired.
[56] She described an incident in late 2020 or early 2021 when the applicant was drinking at home. He started to harass her and she told him to “fuck off”. He became angry, chased her to her bedroom and broke her door. His friend took him away.
[57] She said after the applicant left the home in February 2021, he would pick up R about once per week and usually bring him back the same day; he never kept R for more than one night.
[58] According to Ms. Aldana, she saw her mother in Italy in the summer of 2023. When her mother told her she was afraid to go back to Mexico, Ms. Aldana encouraged her to move to Canada.
[59] Isadora Cortes Aburto, is the respondent’s friend; she has known her for over 15 years. She often witnessed the applicant drunk. In 2017, the respondent told her that the applicant threw a television on the floor.
b) The Evidence of Applicant and his Supporting Witnesses
[60] The applicant denies all claims that he was abusive towards the respondent or that he has a substance abuse problem. He denies ever threatening the respondent or forcing her to be intimate with him.
[61] According to the applicant, his separation from the respondent was amicable; no court proceedings were commenced, nor did they sign a separation agreement. He and the respondent agreed on a flexible and shared parenting schedule. R spent three to four overnights with him each week. When R was with him, he brought him to and from school to doctor’s appointments, and playdates.
[62] Prior to August 2023, R had only travelled outside of Mexico twice; once in April 2023 when he travelled with the parties to New Jersey to meet the applicant’s mother and sister, and once to Canada to see the respondent’s daughter.
[63] According to the applicant, he and the respondent rarely argued, but there were issues with her daughter, Ms. Aldana. The police were never involved with their family or any child protection services.
[64] The applicant denies that he consumes alcohol daily or that he is prone to anger. He does not dispute that he speaks loudly.
[65] The applicant denies threatening to take R to Dominican Republic. in 2022, the applicant asked the respondent if he could take R on a trip to the Dominican Republic. She did not think it was a good idea and the trip did not occur.
[66] The applicant recalls the television incident. He asked Ms. Aldana to leave the bedroom so he could change but she refused. He tried to unplug the television but if fell. He denies throwing it in anger.
[67] He denies all allegations made by Ms. Aldana. His evidence is that he tried to teach her house rules, but she did not listen to him. He says that she did not see him as a parental figure who had authority to tell her what to do. He denies her allegations that he drove while impaired. He recalls a verbal altercation with her about long showers, but he denies ever breaking her bedroom door.
[68] According to the applicant, R stayed with him for an entire week when the respondent visited her daughter in Canada. He recalls only once when he had to cancel plans with R due to work but he called the respondent and told her in advance.
[69] Rather than having a difficult post-separation relationship, the applicant’s evidence is that he and the respondent spent time together. For example, at times she shared meals with him at his home when she picked up R. When she was renovating her home, she and R stayed with him as R is allergic to dust. They also traveled to New Jersey together in April 2023 to visit his family. None of this was denied by the respondent.
[70] The applicant acknowledges that he and the respondent had disagreements about finances and how to pay for R’s expenses after they separated.
[71] The last time the applicant spoke with R was in mid-July 2023. He has since been unable to contact him.
[72] William Neil Tancre, the applicant’s friend, filed an affidavit in support of the applicant. The applicant lived with him and wife for two years when the applicant was in enrolled in a program in the United States. They grew close; Mr. Tancre considered the applicant to be a son. He and his wife purchased a home in Playa del Carmen and now live there part-time. Mr. Tancre knows the respondent and had frequent contact with her even after she and the applicant separated. He and his wife also have a close bond with R. Mr. Tancre describes the applicant as a loving father. Mr. Tancre recalls conversations with the respondent years ago that she wanted to live in Canada.
[73] Ms. Marjorie Tancre filed an affidavit agreeing with Mr. Tancre’s evidence.
[74] Nicolas Lauras is the applicant’s friend. They met in 2010. When R was born, Mr. Lauras lived in the same neighbourhood as the applicant. He and his child spent time with the applicant and R. He saw the applicant drive R to and from school. He had more limited interaction with the respondent and only saw her a few times at social events.
c) The Expert Evidence
[75] The applicant relies on the evidence of Ricardo Flores Lune, a lawyer who has practiced in Mexico for 15 years. He was asked to prepare an opinion on the following three issues:
a) Whether Mexican courts determine parenting issues in accordance with the best interests of the children;
b) Whether Mexican courts, law enforcement, and child protective services are equipped to properly investigate and address allegations of domestic/family violence and allegations of child abuse; and
c) Setting out Mexican law with respect to "rights of custody" as defined under Article 3(a) of the Hague Convention, specifically that a natural biological parent of a child has "rights of custody" including in the absence of a court order or formal separation agreement between the parties. For context, the parties were never married, there were no family law proceedings concerning the parties and the child in Mexico, and there is no separation agreement. Up until the wrongful retention, the parties were exercising a flexible, shared parenting schedule, based on verbal agreement only.
[76] His evidence, in summary, is as follows:
a) Local legislation in the state of Quintana Roo requires that best interests of children be considered when determining parenting issues;
b) The highest court in Mexico, the Supreme Court of Justice of the Nation has recognized that the best interests of children is a guiding principle;
c) A specialized police force has been created to deal with matters related to violence against women and children;
d) There are specialized prosecutors in Quintana Roo dedicated to the attention of crimes of family violence against women and against minors;
[77] The respondent relies on the evidence of Alicia Elena Perez Durartey Norona. Ms. Norona is a law professor in Mexico. She has written several books and articles on topics related to human rights and gender legal studies. She has an extensive CV. Much of her work has been in the area of human rights and the right of women to live free from violence.
[78] Her opinion is as follows:
a) The administration of justice reflects a misogynistic patriarchal culture in which the life, and physical, sexual, and psychological integrity and safety of women do not have a place as a priority issue on the public agenda;
b) She described two cases where women were murdered after their partner was released by the court;
c) Progress made to prevent and punish male violence against women suffered a setback when more than half of the federal judges who specialized in the administration of justice with a gender and human rights perspective were dismissed;
d) She fears that the effectiveness of the authorities in providing protection to the respondent and R that could lead to femicide.
Analysis
i) Does the Exception in Article 13(b) Apply?
[79] The only issue to determine is whether the exception in Article 13(b) of the Hague Convention applies. I will review the jurisprudence that has interpreted what constitutes a “grave risk” and an “intolerable situation” and whether the respondent’s evidence of the alleged abuse she suffered at the hands of the applicant meets the test.
[80] Before addressing that issue, I will address the respondent’s evidence about how well R is doing in Canada. While I accept that evidence, it would be an error for me to consider the evidence arising after the wrongful retention in determining if R should be ordered to return to Mexico: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at para. 27. The respondent cannot rely on evidence of R’s current best interest in Canada, which she created by her own wrongful conduct of unilaterally refusing to return R to Mexico, to argue that the principles of the Hague Convention do not apply or can be circumvented.
[81] While I do not consider evidence of R’s current best interest, I do consider his best interests when I determine whether there would be a grave risk of harm to him or an intolerable situation if I order that he return to Mexico.
[82] There is a high threshold to prove “grave risk” of physical or psychological harm: Ellis at para. 37. The onus is on the parent opposing the return to satisfy the court that the threshold has been met: Gourgy v. Gourgy, 2018 ONCA 166, at para. 10.
[83] In Thomson, at p. 597, La Forest J concluded that an intolerable situation must be a “weighty” risk of “substantial” psychological harm, “something greater than would normally be expected on taking a child away from one parent and passing him to another.” Both the risk and the harm must be substantial.
[84] In Rayo Jabbaz v. Rolim Mouammar (2003), 236 D.L.R. (4th) 494 (Ont. C.A.) the court found, at para. 23, that the use of the term “intolerable” in Article 13 speaks to “an extreme situation, a situation that is unbearable; a situation too severe to be endured.”
[85] In Friedrich v. Friedrich, 78 F.3d 1060 (U.S. C.A. 6th Cir. 1996), the Court of Appeal in the United States agreed with a restrictive reading of the grave harm exception referred to in Thomson and found that there are two situations where a grave risk of harm can exist. The first is where there is a grave risk of harm when the return of the child puts the child in imminent danger prior to the resolution of the custody dispute such as returning the child to a state of war, famine, or disease. The second grave risk is in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the originating State may be incapable or unwilling to give the child adequate protection.
[86] Friedrich has been cited with approval in several cases in Ontario including M.J.W. v. P.S.G., 2007 ONSC 13522, 38 R.F.L. (6th) 60 (Ont. S.C.), Paschel v. Paschel, 2017 ONSC 6952, 1 R.F.L. (8th) 379 and De Martinez v. Rios.
[87] In Hassan v. Garib, 2017 ONSC 7227, Engelking J. found that there are three questions to answer in determining whether there is a grave risk that returning the child to the originating State would expose them to physical or psychological harm or otherwise place them in an intolerable situation, at para. 10. Those questions are:
i) Has the alleged past violence been severe and is it likely to recur?
ii) Has it been life-threatening?
iii) Does the record show that the left behind parent is not amendable to control by the justice system?
[88] In Hassan, there were allegations of domestic violence that included swearing, denigrating name-calling, threats of harm and death, use of a knife to threaten, and physical violence causing injury. The allegations were denied by the opposing party who sought the return of the child to England.
[89] In Hassan, the court found that the allegations of a beating causing injury and the use of a knife in a threatening manner would be severe if they occurred. The court found that it was unlikely the past violence would recur and that the left behind parent was amenable to control and therefore ordered the child returned to England.
[90] The allegations in Hassan were of a more serious and egregious nature than in this case. There were also several police records about complaints of domestic violence. Furthermore, the alleged abusing spouse had a criminal record for assault causing bodily harm. Nonetheless, the court found that the exception in Article 13(b) did not apply despite the allegations of serious domestic violence.
[91] Hassan was applied in Diaz Garcia v. Reyna Cruz, 2023 ONSC 3306. In that case, the father sought the return of his seven year old child to Mexico. The responding mother argued that there was a grave risk of harm to the child if returned to Mexico as she was abused physically, financially, verbally, and sexually by the applicant. She also alleged that the applicant was physically, verbally, and emotionally abusive to the child.
[92] The allegations in Diaz Garcia included sexual assault. The mother also alleged that the father called her names and threatened to kill and harm her and the child. She detailed many incidents of significant physical abuse over the span of several years including being slapped and punched causing injury, choking until unconscious, kicking, and pushing. The mother’s sister gave evidence that she witnessed some assaults. There were photographs of her injuries. The father denied all allegations.
[93] Despite allegations of domestic violence, the court found that the there was no grave risk of harm should the child return to Mexico nor would the child be placed in an intolerable situation. The court found that there was no evidence that the child experienced or observed severe, significant, or prolonged forms of physical harm.
[94] Similar to Hassan, the allegations of domestic violence were far more egregious, serious, and significant in Diaz Garcia than the allegations made by the respondent in this case.
[95] The applicant and respondent describe the nature of their relationship both pre- and post-separation in starkly different terms. It is difficult to make findings about whose evidence to accept based on the conflicting affidavit evidence. Unlike in Hassan and Diaz Garcia, there was no corroborating evidence such as police records, medical records, or photographs.
[96] With respect to the nature of the relationship pre-separation, the respondent and her daughter testified about two incidents where the applicant was allegedly violent in the home – when he threw a television and when he broke a bedroom door. The respondent also described one incident when the applicant threatened her with a knife and threatened to harm her. The respondent, her mother, and her daughter all testified about the applicant’s abuse of alcohol and his aggressive behaviour when he drank. While these allegations have all been denied by the applicant, for the purposes of this hearing, I will accept the evidence that during the relationship, there were incidents of domestic violence in the home and that the applicant abused alcohol.
[97] There is no evidence that applicant was physically, emotionally, or mentally abusive towards R.
[98] I put little weight on the report from the psychotherapist for two reasons. First, much of that report is based on the respondent’s self-reports. Secondly, unlike in Diaz Garcia where the doctor filed an affidavit, there is no such affidavit from the therapist. The therapist’s evidence is therefore not properly before the court.
[99] During submissions, counsel for the respondent conceded that after the parties separated, there was no physical abuse but rather argued that the applicant’s conduct was intimidating, and he attempted to exert control over the respondent. While the respondent was not at risk for her physical safety, counsel argued that the applicant exerted coercive control over the respondent by threatening to not financially support R after he learned that the respondent was in a new relationship. The respondent attached two messages from the applicant which appear to support that the applicant was upset with her.
[100] During the 3.5 years that the parties lived separate and apart in Mexico, the respondent’s evidence is that the applicant had “full freedom regarding his rights with R.” It was also her evidence that, “I never opposed him spending time with his son.” Her concern was that the applicant disappointed R by not following through with parenting time and R stopped asking when he could see the applicant. Those are concerns that go to R’s best interest and not on whether Article 13(b) of the Hague Convention applies.
[101] The evidence of post-separation coercive control exerted by the applicant over the respondent is quite limited and vague and non-specific. There were email exchanges which convey that there were disputes, as is not uncommon between separated spouses. In my view, there was nothing alarming or threatening in these emails. Being impolite and upset in a text message or using foul language does not make that controlling behaviour. Furthermore, there was no evidence of a pattern of behaviour such as repeated text messages or voice messages. The evidence presented was of isolated incidents of disputes between the parties over finances and forming new relationships.
[102] The respondent’s position that R would be at a grave risk of harm if ordered to return to Mexico is incongruous with her own evidence that despite the applicant’s alleged coercive control of her post-separation, she never opposed him spending time with R. I cannot reconcile the respondent’s position that R faces a grave risk of harm if he returns to Mexico when she never opposed R spending with the applicant after they separated. There is no evidence that she required the intervention of the police, courts, or any sort of child protection services for the 3.5 year that she remained living in Mexico after the separation.
[103] I also cannot reconcile the respondent’s claims of a grave risk of harm to R given the evidence, that she did not dispute, that during the 3.5 years that the parties were separated, she spent time with the applicant having meals with him and travelling with him in April 2023 to New Jersey. There is no evidence that the applicant’s conduct post separation led the respondent to fear for her or R’s safety. At best, she alleges that the applicant engaged in a pattern of coercive control of her after they separated by, amongst other things, threatening to not pay for R’s support.
[104] I am struck by the minimal evidence of coercive control in the 3.5 years after the parties separated, particularly as that conduct is relied upon by the respondent to justify her unilateral action of removing R from the only home he ever knew and moving him to another country.
[105] The respondent relies on Pollastro in support of her position that the exception set out in Article 13(b) applies. I will review the facts in Pollastro given her reliance on that decision.
[106] In Pollastro, the court found that Article 13(b) applied based on the violence in the home directed at the mother and declined to order the child returned to California.
[107] The court found the following in Pollastro:
a) The mother was the primary caregiver.
b) The father would disappear for days without letting the mother know where he was; he was unpredictable and unreliable when he was responsible for the child.
c) The father had a history of drug use and pled guilty to possession of methamphetamines.
d) Coworkers, friends, and a doctor saw bruises on the mother body shortly before and after she left California.
e) The father continued to threaten the mother and her family after she moved to Canada. There were many messages that were in evidence.
f) The father made threatening phone calls to the mother, her parents, and cousin after she moved to Canada,
g) Co-workers called the police due to the harassing and threatening telephone calls they received at work and at home form the father.
h) The father made death threats against the mother and threatened to harm her family.
i) There were recordings of disturbing messages left by the father saying, amongst other things, that he was going to hurt the mother and her family.
j) The father’s hostility towards the mother was palpable.
k) The father had difficulty controlling his temper.
[108] The court found that the threatening phone calls demonstrated a continuing inability of the father to control his temper or hostility and that the mother, who would accompany the child if ordered to return, would be returning to a dangerous situation. The court also found that the child was in danger if ordered to return. The court found that the potential for violence was overwhelming should the child be ordered retuned and that there was a grave risk that the child would be placed in an intolerable situation.
[109] The allegations of domestic violence in Pollastro are far more detailed and serious than in this case. There is no evidence of a pattern of physical abuse or threatening behaviour since February 2021 that is any way close to the findings made by the court in Pollastro. Even if I accept the respondent’s evidence that the applicant sexually assaulted her or threatened her with a knife and was physically violent in the home as described by the respondent and her witnesses, the evidence does not rise to the level of egregious conduct as in Pollastro.
[110] The jurisprudence is clear; the exception set out in Article 13(b) must be narrowly construed. The threshold is high as one of the purposes of the Hague Convention is to dissuade parents from wrongfully removing children from one country and unilaterally moving to another. In my view, a liberal interpretation of this exception runs the risk of compromising this international convention thereby encouraging parties to engage in self-help and take custody matters into their own hands by moving internationally.
[111] The Hague Convention also presumes that the interest of children who have been wrongfully removed form the originating State to a haven State are better served by returning them immediately to the originating State. It is in the originating State that the parenting issues ought to be determined, not in the Haven State: Thomson at p. 619.
[112] There is no evidence or allegations that the applicant has caused any harm to R, save and except for the allegations that he drove with R when he was drinking. The applicant proposes several undertakings should R be ordered to return including an undertaking that he will not to consume alcohol when he is with R. I am satisfied that will address concerns with his consumption of alcohol.
[113] If the applicant abuses alcohol and has driven R while impaired, that is an issue that goes to R’s best interest and not about whether Article 13(b) applies.
[114] When I consider the three questions from Hassan, even if I accept that there was domestic violence prior to February 2021, it has not recurred during the 3.5 years since the parties separated. There is no evidence that any of the applicant’s conduct prior to separation was life-threatening. I also do not accept the respondent’s evidence that the applicant has engaged in a pattern of coercive control since they separated. Lastly, there is no evidence that the applicant would not abide by court orders.
[115] I was not directed to any jurisprudence where the allegations of domestic abuse are dated as in this case. In all cases relied on by counsel, the parent who fled did so shortly after leaving an abusive relationship and did not wait several years, as in this case. Even if I accept the evidence of domestic violence during the relationship and the limited evidence of coercive control post separation, it falls far short of the high threshold required to establish that Article 13(b) applies.
[116] The respondent also argues that the court in Mexico will be unable to protect her or R and that will create an intolerable situation. She relies on Ms. Norona’s opinion to support that position.
[117] I prefer the expert opinion of Mr. Luna over that of Ms. Norona. Ms. Norona did not dispute that there are laws in Mexico that address domestic violence. Rather, her opinion is about how the law is applied. I find that Ms. Norona is more of an advocate for the respondent rather than an independent expert. She makes sweeping conclusions and goes so far as to say R’s return runs the risk of femicide without there being any evidence of domestic violence after the parties separated. That was an alarming conclusion without any foundation for it.
[118] Ms. Norona is clearly concerned with how women are treated in the justice system in Mexico, and she points to two tragic cases where women were killed by a spouse who was released from custody.
[119] While no evidence was led about the number of women killed by abusive partners in Canada, I am certain that there are experts, like Ms. Norona, who would share her view and opine that the Canadian legal system does not protect women who are victims of intimate partner violence. That does not mean that there are no laws and systems in place in Canada to protect women and children, as there are in Mexico. Many women who are victims of intimate partner violence in Canada might say that the laws in Canada provide them with minimal protection. That does mean, however, that the legal system would not be able to protect a spouse who was ordered to return to Canada under the Hague Convention.
[120] Furthermore, as a signatory to the Hague Convention, it is presumed that Mexico can properly determine the merits of the parties’ parenting dispute and consider R’s best interest in doing so. I find that Mexico can make any necessary orders to protect the respondent and R and determine R’s best interests.
[121] The respondent has failed to discharge her onus to prove the high threshold that there is a grave risk of harm to R or that he would be placed in an intolerable situation if he returns to Mexico. Even accepting her evidence of domestic abuse during the marriage and the applicant’s abuse of alcohol, I do not find that R would be an extreme situation that is too severe to endure if he returns to Mexico. Furthermore, I accept that there are laws in Mexico that can address the concerns raised by the respondent.
[122] The exception in Article 13(b) of the Hague Convention does not apply.
ii) What is the Impact of the Respondent’s Refugee Claim?
[123] While the respondent has filed a refugee claim in Canada on behalf of her and her son that is outstanding, that is not a basis to refuse to order R to return to Mexico. The respondent did not file any documentation confirming when she commenced the application. Furthermore, based on the letter from her lawyer, it appears that she only filed material in support of the application after the application in this matter was commenced. This suggests that there may have been a strategic basis to the refugee claim.
[124] Even if the refugee application was filed when she came to Canada, an order can be made for the return of the child under the Hague Convention while there is a pending claim on the child’s behalf for refugee status in Ontario. A refugee claim cannot defeat the purpose of the Hague Convention, which is to deal with international abduction cases expeditiously and for children to be returned to their home state promptly: Kovacs v. Kovacs, 2002 ONSC 49485, 59 O.R. (3d) 671 (S.C.), at paras. 73, 74, 75, and 124 and Toiber v. Toiber, 2006 ONCA 9407, 208 O.A.C. 391 (Ont. C.A.), at paras. 11-12.
[125] In a refugee claim based on domestic abuse, the alleged perpetrator is not served nor have a right to appear at the hearing before the Immigration and Refugee Board. This was addressed by the court in Singh v. Kaur, 2022 MBQB 46, 71 R.F.L. (8th) 198. At paras. 57 and 59, the court found that unlike an Immigration and Refugee Board proceeding, in a Hague proceeding the court has evidence from both parties and other individuals making it best placed to consider the evidence in its totality and determine if there is a grave risk that an order for the child’s return would, on the basis of the domestic violence allegations, meet the test set out in article 13(b).
[126] In A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, the court cautioned against the potential abuse of a refugee application being used to gain tactical advantage. The court also found that even if a child has been found to be a refugee, that is not dispositive of whether the grave risk of harm is established but gives rise to a rebuttable presumption that the exception was engaged: at paras. 73-74.
[127] In this case, there has been no such finding and therefore no such rebuttable presumption.
[128] I therefore find that the pending refugee claim does not prevent this court from making a determination under the Hague Convention. The refugee claim does not automatically stay this proceeding, nor was she a stay requested by the applicant.
Conclusion
[129] The applicant’s Hague application is granted. I find that R is wrongfully retained in Ontario and shall be returned to Mexico by no later than December 31, 2024.
[130] The applicant shall comply with the following undertakings:
a. He shall not be physically, verbally, or otherwise abusive towards the respondent or R;
b. He shall not consume alcohol when R is in his care;
c. He shall not leave R alone and unsupervised;
d. He shall not disparage or belittle the respondent, including in the presence of R;
e. He shall not take steps to deny the respondent entry into Mexico or to have her detained;
f. He shall not take steps to cause the respondent to be imprisoned or arrested in Mexico;
g. If the respondent does not return to Mexico with R, the applicant shall fly to Canada and return to Mexico with R;
h. If the respondent does not return to Mexico with R, R shall reside in Playa del Carmen with the applicant;
i. Should the respondent return to Mexico with R, R shall reside with her in Playa del Carmen.
[131] The applicant is entitled to his costs. If the parties cannot agree on quantum, the applicant is to serve, file and upload to Case Centre his bill of costs, offers to settle, and two-page cost submissions, double spaced, 12 pt font, by December 23, 2024. The respondent shall file her bill of costs, offers to settle and two-page cost submissions, double spaced, 12 pt. font by January 6, 2025. There shall be no reply.
L. Shaw J.
Released: December 10, 2024