Endorsement
COURT FILE NO.: FS-24-110315
DATE: 2025-01-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.K., Applicant
AND: B.K., Respondent
BEFORE: M.T. Doi J.
COUNSEL: Farrah Hudani and Katherine Allen, for the Applicant
B.K., self-represented Respondent
HEARD: December 17 and 20, 2024
Overview
[1] The Applicant father seeks a chasing order for declaratory relief that the child, F.K. (born ***, 2022), is habitually resident in the City of Brampton, in the Province of Ontario, pursuant to ss. 22(1)-(3) of the Children’s Law Reform Act (“CLRA”), and articles 3 and 15 of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). In addition, the father seeks an order for F.K.’s return to his habitual residence under ss. 40 and 46(5) of the CLRA and article 12 of the Hague Convention.
[2] For the reasons that follow, the relief sought is granted.
The Record
[3] To arrive at a fair and just determination, the motion was heard with a strict application of the hearsay rule to ensure accurate fact-finding in assessing the child’s best interests. To this end, I declined to give any weight to the hearsay messages between the maternal grandparents that the mother sought to lead in her affidavit evidence after finding these uncorroborated messages to be unreliable hearsay that should not be admitted into evidence. In arriving at this finding, I found that the maternal grandparents are siding with the mother in this matter and share a strained relationship with the father due to poor family dynamics resulting from the adult conflict between the parties.
Objections to the Mother’s Harm-Related Evidence
[4] In her evidence, the mother raised various allegations that the father had engaged in abusive conduct towards herself and the child, all in an apparent effort to establish a grave risk of harm to establish a defence to the return procedure under article 13 of the Hague Convention. During the hearing, the father objected to the mother’s harm-focussed evidence as irrelevant and inadmissible, and I reserved my decision on the objection.
[5] For the reasons set out below, the objection is overruled.
[6] Among other things, the father is seeking a return order under s. 40 of the CLRA and article 12 of the Hague Convention. As with any decision affecting a child, the court is to consider the best interests of the child in exercising its s. 40 powers but without embarking on a detailed analysis of the best interests factors under ss. 24(3) of the CLRA as s. 40 orders are not custody orders on the merits: F. v. N., 2022 SCC 51 at para 97; Pengelly v. Lynas, 2024 ONSC 6269 at para 164. A return order is to properly protect the child’s interests: F. v. N. at para 98.
[7] I accept that the District Court in Poland considered the mother’s harm-related evidence or allegations and found that she did not establish that the father engaged in physical or psychological violence against F.K., that returning the child to Canada would be contrary to his best interests, or that returning him to Canada would expose him to physical or psychological harm or an intolerable situation. That said, the record on this motion did not clearly show what evidence on this motion was or was not before the District Court in that proceeding.
[8] Taking this all into account, and mindful of this court’s need to assess the best interests of the child on the best available record, I find that the mother’s harm-related evidence should be admitted to ensure that the court may fulsomely consider F.K.’s best interests in exercising its powers under s. 40 of the CLRA and articles 12 and 13 of the Hague Convention, despite the attenuated best interests analysis on a motion for a return order: F. v. N. at para 97; Pengelly at para 164. Accordingly, the objection is overruled.
Background
[9] The applicant father has resided in Canada since 1986 when he immigrated to Canada from Poland with his parents when he was about 4 years old. The respondent mother has resided in Canada since 2012 after completing legal studies in Poland. The parties married on August 16, 2013. They have one child of the marriage, F.K., who was born on ***, 2022 in Brampton, Ontario. The child holds dual Canadian-Polish citizenship.
[10] The mother claims that the father promised her before they married in 2013 that they would relocate to Poland as her family and relatives all reside in Poland. In addition, she claims that this purported decision to live in Poland was informed by the fact that the paternal grandmother owns a house in Wielowies, Poland, and the paternal grandfather has an apartment in Warsaw, Poland. After the parties celebrated their wedding at a church in Poland in 2014, the mother claims that they held a celebratory party with about 50 members of the father’s family in Jaworzno, Poland. Pointing to all of this, she claims that the parties agreed to relocate to Poland, and that this alleged relocation to Poland was “always [just a] matter of time.” The father denies ever agreeing to move to Poland and claims that the mother’s evidence on this is fabricated.
[11] The parties are Canadian citizens. Both lived in Ontario for years. The mother completed paralegal studies in Toronto in 2016 and began full-time employment in 2017 as an associate at PearTree Financial, a Canadian-based financial brokerage, earning an annual income of about $80,000.00 until about September 30, 2024 when her employment ended. Until July 2022, the father was employed by IBM. Since January 2024, he has consulted part-time for Reconal, a Polish company, on its expansion into North America, earning about $1,800.00 per month.
[12] The parties have accounts and credit cards at bank branches located in or around Brampton. They have an RESP for F.K. that has a current balance of about $10,000.00.
[13] During the marriage, the parties occasionally took extended trips to Poland to visit relatives and friends. In 2017, they went to Poland for several weeks. In 2022, the mother took an extended trip to Poland from August to November 2022, as further discussed below.
[14] In 2017, the parties jointly purchased the matrimonial home on Dorset Drive in Brampton. They renovated the home in the Fall of 2017 and took occupation in January or February 2018.
[15] F.K. has his own room in the matrimonial home, replete with clothes and toys. From birth until March 2024, F.K. regularly saw the paternal grandmother at least a couple of times each week, and spent time with the paternal grandfather at least every other weekend. F.K. regularly saw his paternal aunt during the first few months after his birth, and then less frequently as she was often travelling. In addition, F.K. had a relationship with a paternal cousin. The mother had no maternal family members in Ontario. She regularly attended church in Brampton and was the godmother to three children in Ontario. The parties variously spoke with F.K. in the Polish, English, and French languages, respectively.
[16] Since June 2022, F.K. has been registered for medical care with the children’s clinic at Rutherford Medical Centre in Vaughan, Ontario, and was treated by Dr. Shirley Sit. On October 2, 2023, F.K. began to attend daycare at le Petite Kangaroo in Brampton at 17 months of age. The mother withdrew F.K. from daycare on December 29, 2023. Thereafter, on Saturdays, the father took F.K. to the EarlyON Child and Family Centre, a free daycare program near the family home.
[17] On August 21, 2022, the parties and F.K. travelled to Poland to visit relatives and to have the child baptized. On September 3, 2022, F.K. was baptized at a church in Nowa Sarzyna, Poland. During this trip, the father signed an affidavit of consent before a Polish notary public for the mother to obtain a Polish passport for F. after the father’s return to Canada on September 11, 2022. Both maternal grandparents then received cancer diagnoses. In turn, the mother claims that the parties mutually agreed to relocate to Poland. As the father had lost his job at IMB in July 2022, the mother claims that he began online searches for work in Poland and for a rental apartment in Poland with the intention of permanently residing in that country. The father also completed an international certificate in teaching English for the purpose of finding work in Poland as an English instructor. Ultimately, however, she claims that the parties chose to return with F.K. to Brampton so the maternal grandparents could better rest and recuperate while undergoing cancer treatment.
[18] The father claims that the mother advised shortly after his return to Canada on September 11, 2022 that she wanted to stay in Poland for an extended period of up to two years. He agrees that they discussed her preference to stay in Poland but denies agreeing that she and F.K. could relocate to Poland on a permanent basis. He acknowledged inquiring into what a relocation to Poland might look like for the family at the time, but denies ever agreeing to relocate there as he ultimately felt that the mother’s wish to move to Poland lacked planning, was impractical for the family, and would not serve F.K.’s best interests. In the end, the mother and F.K. returned to Brampton on either November 14 or 15, 2022.
[19] On October 2, 2023, F.K. began to attend daycare in Brampton. F.K. had some difficulty adjusting to this environment and only sporadically attended daycare in November and December 2023 before illness and Covid-related issues effectively resulted in F. withdrawing from daycare. Around this time, the maternal grandmother visited the parties in Ontario and helped to care for the child until she returned home to Poland on March 8, 2024.
[20] The mother claims that the parties mutually decided that F.K. would return to daycare in Poland after relocating there. The father denies making any such decision.
[21] On March 15, 2024, the parties and F.K. went to Poland to spend time with the maternal family over the Easter holiday. The mother and F.K. left many personal items at the matrimonial home. Among other things, she left behind a closet full of clothes and the child left various toys and belongings in his room in the matrimonial home. The parties and F.K. had booked tickets for their return flight to Ontario. The father returned to Brampton on April 1, 2024 as scheduled, and the mother and F.K. were scheduled to return on April 7, 2024.
[22] While in Poland, the mother took the father to a notary on March 26, 2024 where he signed a notarized affidavit. She claims that he signed the affidavit with the intention of transferring F.K.’s custody or primary residence and decision-making responsibility to her. The father claims that he signed the affidavit at her request so that she would be authorized to make temporary medical decisions for F.K. in Poland until the child returned to Ontario. He claims that she confirmed this purpose of the affidavit to him in the notary’s presence and denies ever agreeing to assign his parenting rights permanently to her. The mother heavily relies on this authorization to show that the father mutually agreed to have F.K. permanently reside in Poland with her. The father strenuously denies the mother’s account, states that he did not appreciate the nature of the affidavit (i.e., as it was a legal instrument drafted in Polish) when he signed it, and claims that he signed the authorization because he trusted the mother’s explanation and wanted her to be able to make medical decisions for F.K. in Poland after the father flew back to Ontario. In addition, the father claims that the mother advised him, in the notary’s presence, that only a court could limit parental authority. Subsequently, by letter dated September 2, 2024, he revoked the authorization after consulting with a lawyer.
[23] The mother claims that the father did not visit F.K. in Poland from April 1, 2024 to August 24, 2024 (i.e., a period of about 5 months) as the cost of travel was too expensive for him. The father denies this and claims that he was in regular communication with the mother who continued to assure him that she and F.K. would return to Canada in April 2024 before extending her stay in Poland to May 2024 and further extending her stay to September 2024, as further discussed below.
[24] On April 12, 2024, the paternal grandmother retired from employment as it was anticipated that she would provide childcare to F.K. in Brampton starting on April 15, 2024 (i.e., shortly after the child was to return from Poland). By retiring, the paternal grandmother voluntarily gave up a significant amount of income, including a $6,000.00 bonus, to be available to care for the child.
[25] Upon returning the matrimonial home in Brampton on April 1, 2024, the father discovered a forwarding notice from Canada Post to have the mother’s mail forwarded to Poland. When he asked her about the notice, she denied arranging for her mail to be forwarded to Poland. The father reported the matter to Canada Post that launched a fraud investigation into the forwarding notice.
[26] On April 8, 2024, the mother informed the father that she and F.K. would not be boarding their return flight to Canada as she had extended their stay in Poland to May 29, 2024 for F.K. to see a neurologist about sleep difficulties. The father initially disagreed with the extended stay and suggested that F.K. could see a specialist in Ontario but the mother refused. After further communications, he acquiesced to her and F.K. extending their stay in Poland on the understanding that they would return to Ontario on May 29, 2024. The airline sent a confirmation that F.’s return flight was scheduled for May 29, 2024.
[27] On May 27, 2024 (i.e., two days before the scheduled return), the mother advised that she was again extending the stay in Poland because she wanted F.K. to spend the summer in Poland. The father did not agree with her proposed extended stay and did not consent to F.K. remaining in Poland any longer. On May 30, 2024, he wrote to the mother stating, “I never consented for [F.K.] to remain in Poland for such a long period of time and extend both of your stays 3 times already.” On June 1, 2024, he messaged her with, “I did not agree to the extension of the stay until May 29 and I am very concerned about your wish to extend it to September 2.” He further stated, “I plead with you to come back as soon as possible.”
[28] Subsequently, the mother told the father that she had discovered an irregular freckle that she needed to get medically examined for cancer. She advised that she had a medical appointment in Poland for early August and was extending her stay to September 2, 2024. She repeatedly assured him that she and F.K. were booked on a return flight to Canada for September 2, 2024. As electronic receipts were issued for the return flight, the father acquiesced to the further extension.
[29] The father booked off work for the end of August 2024 so that he could travel to Poland to help the mother and F.K. return to Ontario. He also arranged for them to visit Solina, Poland to vacation there for a week before returning to Ontario on September 2, 2024. But on August 22, 2024 (i.e., two days before the father was to fly to Poland), the mother advised that she had filed divorce proceedings in Poland. She also advised that neither she nor F.K. would vacation with the father, and that she would not permit him to share unsupervised parenting time with F.K. in Poland.
[30] On August 24, 2024, the father and the paternal grandmother flew to Poland. The mother refused to allow the father any unsupervised time with F.K. despite the father’s repeated requests for unsupervised parenting time with the child. On August 25, 2024, the father messaged the mother, “[c]an we go somewhere to talk?”, “all 3, me, you and [F.K.],” and “I want to see you two so much.” On August 27, 2024, the father arranged to meet the mother and F.K. at a restaurant. However, when he messaged the mother that he was on his way, she replied that the maternal grandmother had taken F.K. on a walk and that she would call the grandmother when the father had finished eating so that he could meet the child for a walk.
[31] On August 28, 2024, the father attended the maternal grandparents’ home where the mother and F.K. were staying to seek unsupervised parenting time with the child. An argument broke out with threats to call police. As a result, the father left to avoid escalating the conflict.
[32] On August 29, 2024, the father messaged the mother, “I still hope that you will decide to return to Canada with [F.K.] on September 2nd as you planned,” and further wrote, “I do not consent to [F.K.] staying in Poland [as F.K.’s] place is in Canada, his country of birth.” On August 1, 2024, he messaged her, “I hope you and [F.K.] will return to Canada by plane on Monday, September 2nd as we agreed. I do not consent to the child remaining in Poland. [F.K.’s] place is in Canada, his country of birth.” On September 1, 2024, he further messaged her, “I still hope that you will be at the airport tomorrow and that we will all go home together. I do not agree to [F.K.] staying in Poland.”
[33] On September 2, 2024, the father returned to Ontario as scheduled. The mother and F.K. remained in Poland.
[34] Outside of one trip to Poland from August to November 2022, F.K. had always resided in Ontario from the time that he was born on ***, 2022 until March15, 2024.
[35] On this motion, the mother has raised uncorroborated allegations that the father is abusive, controlling and neglectful towards herself and F.K. due to mental health and alcohol-related issues. The father denies that he was abusive or neglectful.
[36] On September 3, 2024, the father brought an application under the Hague Convention with the Central Authority in Poland.
[37] On October 31, 2024, the District Court in Poland heard the Hague Convention application, determined that F.K. was habitually resident in Canada, rejected the mother’s allegations that the father abused her and the child, found that F.K. would not face a serious risk of physical or psychological harm or an intolerable situation if returned to Canada, and ordered the mother to return F.K. to his habitual residence in Brampton within 14 days. The mother has appealed the decision of the District Court in Poland and has declined to return F.K. to Canada.
Legal Principles
[38] Both Canada and Poland are parties to the Hague Convention.
[39] In Mar v. Wu Wu, 2023 ONSC 281 at paras 10-11, A. Himel J. helpfully summarized the nature and purpose of the Hague Convention as follows:
[10] The Hague Convention is implemented in Ontario by s. 46(2) of the Children’s Law Reform Act. The Convention seeks to secure the prompt return of children wrongfully removed or retained in a Contracting state to the state of their habitual residence. It attempts to ensure that rights of custody and access of one Contracting state are respected in the other Contracting states (Article 1). The Convention presumes that the interests of children who have been wrongfully removed are better served by immediately repatriating them to their original jurisdiction where the merits of custody should and, but for the abduction, would have been determined. 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.
[11] The strong policy of the Convention in favour of ordering the immediate return of children is intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. The foundation of the Convention is the rapidity of the mandatory return process and the principle that the merits of issues related to the custody of children who have been wrongfully removed or retained are to be determined by the courts of their habitual place of residence.
[40] In Bayar-Mestiri v. Mestiri, 2020 ONSC 3620 at para 12, Faieta J. described a wrongful removal or retention of a child as follows:
The removal or the retention of a child is wrongful where: (a) it is in breach of rights of custody (whether arising by operation of law, by judicial or administrative decision or by agreement) attributed to a person 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 the removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention: See Article 3.
[41] The declaratory relief being sought on this motion is akin to an ex post facto custody order that is typically referred to as a “chasing order”: Bayar-Mestiri at para 14. In Mar at paras 13-16, A. Himel J. reviewed the court’s jurisdiction to make a chasing order pursuant to articles 14 and 15 of the Hague Convention as follows:
[13] With respect to the Ontario Court’s jurisdiction to make a chasing order, the mother relies on Articles 14 and 15 of the Convention, which provide that:
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
[14] The mother also relies on the decision of Thomson v. Thomson [1994 26 (SCC) at para 74] whereby the Supreme Court of Canada defined a chasing order as an order “made solely to bolster an application under the Hague Convention.” The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful.
[15] In her article, The Application of the Convention - From the Practitioner’s Perspective on the Hague Convention, Phyllis Brodkin, provides the following list of reasons for obtaining a chasing order:
a. A chasing order gives an unequivocal message to the judge hearing the Hague Application in the requested state. Counsel in the requested state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the requested state for such a declaration;
b. A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child's return. On the other hand, it will delay the return if counsel is forced to obtain such an order as a condition precedent to the return, after the application has been heard;
c. Seeking a chasing order in the requesting state creates a proceeding in which to obtain custody when the child is returned; and
d. A chasing order enables the parent seeking the child’s return to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction.
[16] I agree with the mother’s interpretation of the Convention, the caselaw and Ms. Brodkin’s sage comments.
[42] In deciding this motion, I adopt all of the above-reproduced legal principles: see also Bayar-Mestiri at para 12.
[43] Article 3 of the Hague Convention provides as follows:
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.
[44] There are two (2) steps in deciding the habitual residence of a child. The first calls for the date of the wrongful removal or retention to be established, and the second requires a finding as to where the children were habitually resident immediately before the removal or retention date: Mar at para 25; Ludwig v. Ludwig, 2019 ONCA 680 at paras 23-26; Office of the Children’s Lawyer v. Balev, 2018 SCC 16 at para 36. In deciding a child’s habitual residence, a hybrid approach is used to determine the focal point of the child’s life, being the family and social environment in which the child’s life has developed by considering all relevant links and circumstances immediately before the removal or retention: Balev at paras 42-43. Factors to consider include the duration, regularity, conditions and reasons for the child’s stay in the territory of a member state, and the child’s nationality, under a holistic review of all circumstances with no single factor dominating the analysis: Balev at para 44. Although the parents’ circumstances may be important, particularly in cases with infants or young children, and while parental intention may be taken into account where that intention is manifested by certain tangible steps such as the purchase or lease of a residence, jurisprudence cautions against an over-reliance on parental intention that, in general, cannot by itself be crucial to the determination of the child’s habitual residence beyond constituting an indicator capable of complementing a body of other consistent evidence: Balev at para 45. The role of parental intention in determining habitual residence depends on the specific circumstances to each individual case: Ibid.
[45] The hybrid approach best fulfills the goals of prompt return by, 1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, 2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and 3) protecting the child from the harmful effects of wrongful removal or retention: Balev at para 59. In addition, the hybrid approach deters parents from attempting to manipulate the Hague Convention by discouraging parents from attempting to alter a child’s habitual residence by strengthening ties with a particular state, for two reasons: 1) parental intent is a relevant consideration under the hybrid approach; and 2) parents who know that the judge will look at all of the circumstances will be deterred from creating artificial legal or jurisdictional links: Balev at para 60.
Credibility
[46] Given the conflicting affidavit evidence sworn and filed by the parties on this motion that gave rise to credibility issues, I directed that the parties be cross-examined: Zafar v. Azeem, 2024 ONCA 15 at para 60. In assessing the evidence of the parties, I considered their credibility and reliability. In Kalra v. Bhatia, 2024 ONSC 1443 at para 35, Agarwal J. concisely explained the difference between credibility and reliability as follows:
[35] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue isn’t credible can’t give reliable evidence on the same point. Credibility, on the other hand, isn’t a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20, at para 82; R v HC, 2009 ONCA 56, at para 41.
[47] On balance, I found that the mother’s evidence was not credible nor reliable. Much of her evidence was uncorroborated. Despite relying heavily on the notarized affidavit signed by the father on March 26, 2024 to show that he permanently assigned his parenting rights to her, she led no evidence from the notary who drafted and notarized the affidavit. I find this omission to be telling. Furthermore, I found her evidence of the father’s alleged consent for F.K.’s permanent relocation to Poland to be unreasonable given the father’s subsequent messages in which he repeatedly asked her to return F.K. to Ontario. In addition, I am troubled by the mother’s unilateral decision to not let the father share unsupervised parenting time with F.K. in Poland (i.e., as she announced on August 22, 2024) without previously raising any concerns. After taking everything into consideration, I determined that her evidence should be treated with caution.
[48] The father testified in a thoughtful manner. He gave clear and straightforward evidence that was consistent with contemporaneous documents, he conceded evidence that did not support his position, he acknowledged the limits of his recollection due to the passage of time, and he took care to not misstate or overstate his evidence by giving fulsome and complete answers without seeking to minimize or deflect his conduct despite some issues with his recollection. Among other things, he admitted that he had argued with the mother in the past and conceded some her characterizations of their arguments or disputes. In my view, the father’s evidence was reasonable and consistent. I found him to be a credible and reliable witness.
Analysis
[49] As set out below, I find that F.K. has been wrongfully retained in Poland.
[50] I am satisfied that F.K.’s habitual residence is clearly Brampton, Ontario. F.K. was born in Brampton on ***, 2022. Thereafter until March 15, 2024, the child always resided at the matrimonial home in Brampton outside of one trip to Poland from August to November 2022. Having fully considered all of the evidence, I am satisfied that the focal point of F.K.’s life was in Ontario where his father, paternal grandparents and other paternal relatives, friends, home, church, daycare, doctor, and personal belongings, are all located.
[51] Following several extensions of his stay in Poland, F.K. was scheduled to return to Ontario on September 2, 2024. The father did not consent to any extension of this return date. Instead, he travelled to Poland on August 24, 2024 to accompany the mother and F.K. back to Canada on their scheduled return on September 2, 2024.
[52] Sometime after September 11, 2022, I accept that the parties discussed a possible relocation to Poland, and that the father made job inquiries, obtained a teaching certificate, and looked into renting an apartment in Poland to explore the possibility of relocating the familyto Poland on a permanent basis. That said, I am satisfied that the father did not agree to relocate permanently to Poland, and that the mother and F.K. returned to Ontario on either November 14 or 15, 2022 to resume their residence at the matrimonial home in Brampton.
[53] I am not persuaded that the father signed the notarized affidavit on March 26, 2024 with any intention of transferring F.K.’s primary residence and decision-making responsibility to the mother so that F.K. could relocate to Poland with her on a permanent basis. On balance, I accept that the father did not properly understand the nature of the affidavit (i.e., a legal instrument drafted in Polish) that he signed at the mother’s request for her to make medical decisions for F.K. in Poland until the child returned to Ontario, after she confirmed in the notary’s presence that this would be the purpose of the affidavit. Trusting the mother, who previously had studied law in Poland, the father believed her when she advised him that the affidavit was to be used for this purpose and that only a court could limit his parenting rights. Later, after consulting a lawyer, the father promptly revoked the authorization by letter dated September 2, 2024. In addition, he messaged the mother on multiple occasions after the notarized affidavit was signed to expressly inform her that he did not consent to F.K. remaining in Poland after September 2, 2024 when the child was scheduled to fly back to Ontario.
[54] I am satisfied that the father’s response to the mother’s divorce proceedings in Poland does not bear on the analysis of F.K.’s habitual residence under the Hague Convention. On this point, I agree with Daurio J.’s reasoning in C.O. v. P.G., 2024 ONSC 6043 at paras 159 and 162-164 that it would turn the Hague Convention on its head to determine jurisdiction under the hybrid approach based on which party brings a matter to court the soonest without regard to the circumstances of the child’s life to effectively force the other party to attorn due to the utmost importance of the issues at stake.
[55] I am satisfied that the mother has not established that F.K.’s return to Ontario would expose him to any risk of serious physical or psychological harm or otherwise place him in an intolerable situation. Her allegations of harmful conduct by the father are essentially uncorroborated. In any event, I find that she has not shown that child protection organizations, law enforcement, other social service organizations, or the court would be unable to protect F.K. from any such risks: Paschel v. Paschel, 2017 ONSC 6952 at para 89. Taking everything into account, I am not prepared to find that F.K.’s interests would not be properly protected if a chasing order were granted: F. v. N. at paras 97-98; Pengelly at para 164.
[56] Based on all of the foregoing, I find that F. has been wrongfully retained in Poland since September 2, 2024 and that it is appropriate to order the child’s immediate return to Ontario.
Outcome
[57] Accordingly, I make the following orders:
a. I declare that F. is being wrongfully retained in Poland by the mother from the child’s place of habitual residence in Brampton, Ontario contrary to s. 40 of the CLRA and articles 3 and 15 of the Hague Convention; and
b. F.K. shall be returned forthwith to his habitual residence in Ontario pursuant to ss. 40 and 46(5) of the CLRA and articles 7, 8 and 12 of the Hague Convention.
[58] Should the parties not resolve the issue of costs for the motion, the father may deliver written submissions on costs of up to 2 pages (excluding any costs outline or offer to settle) within 15 days from today, and the mother may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Date: January 28, 2025
M.T. Doi J.
[1] In Ontario, the Hague Convention is adopted pursuant to ss. 46(2) of the Children’s Law Reform Act. On October 22, 2024 Emery J. scheduled the father’s motion for substituted service of the underlying application and chasing order motion for October 28, 2024. During the October 22, 2024 attendance, the father advised of his application commenced on September 3, 2024 through the Central Authority in Poland under the Hague Convention for the return of the child that returned on October 18, 2024 before the District Court in Rzeszow, 1 Civil Division in Poland and was scheduled to continue on October 29, 2024. Emery J. subsequently granted the father’s motion for substituted service by consent order dated November 1, 2024 as the mother agreed on terms for substituted service. On November 12, 2024, Tzimas RSJ directed this matter to return for a case conference that came before Trimble J. on December 12, 2024 who conferenced the matter, timetabled the exchange of materials, and scheduled the motion for hearing on December 17, 2024. On December 17, 2024, I began to hear the motion before adjourning the matter to December 20, 2024 to permit cross-examinations on affidavits.
[2] A v. M., 2002 NSCA 127 at para 28; Thomson v. Thomson at para 44.