Kaila v. Baker, 2026 ONSC 4206

CITATION: Kaila v. Baker, 2026 ONSC 4206

COURT FILE NO.: FS-26-00001829-0000

DATE: 20260720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. SANJEEV KAILA

Applicant

– and –

MICHELLE ANNE BAKER

Respondent

A. Mazinani, Counsel for the Applicant

F. Hudani and J. Galifi, Counsel for the Respondent

– and –

S.

Child

K. Junger, Counsel for the Office of the Children’s Lawyer

HEARD: July 6-8, 2026

REASONS ON HAGUE CONVENTION HEARING

WASSENAAR J:

1This proceeding arises from the removal of a 15 year old child from Puerto Rico to Ontario. The child’s father seeks her return to Puerto Rico. The proceeding is grounded in Articles 3 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).

Hague Convention Proceedings

2The Court of Appeal for Ontario described the Hague Convention as follows in Kirby v. Woods, 2025 ONCA 601 at paras. 46-47:

The Hague Convention is implemented as part of Ontario’s domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are “(1) to treat the interests of children as paramount in matters relating to their custody; (2) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’; and (3) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’”: A.M.R.I., at para. 47, citing the preamble of the Hague Convention.

To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child’s habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests.”

3Article 12 of the Hague Convention states, in part, that:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

4Prompt return is vital in order to:

• protect against the harmful effects of wrongful removal or retention;
• deter parents from abducting a child in the hope that they will be able to establish links in a new country that might ultimately award them custody;
• ensure speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues.

Office of the Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 25-27

5At the same time, the “forthwith” requirement in Article 12 imposes obligations on courts hearing such proceedings. The Court of Appeal for Ontario stated in Leigh v. Rubio, 2022 ONCA 582 at para. 2 stated:

Courts have a duty to resolve applications quickly and efficiently for the return of a child under the Hague Convention. Delay imposes hardship on the child, frustrates appellate review, and breaches our international obligations. To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called “parenting orders” under Canadian and Ontario law) are for another day.

6Family Law Rule (“FLR”) 37.2 states, in part,

(2) For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.

(3) An international child abduction case shall be disposed of promptly, and not later than six weeks after the case is commenced if Article 11 of the Convention on the Civil Aspects of International Child Abduction applies to the case.

7The Supreme Court of Canada has emphasized the importance of ensuring that Hague Convention proceedings are determined “using the most expeditious procedures available”. The Court has stated:

Judges seized of Hague Convention applications should not hesitate to use their authority to expedite proceedings in the interest of the children involved. Unlike much civil litigation in Canada, Hague Convention proceedings should be judge-led, not party-driven, to ensure they are determined expeditiously.

OCL v. Balev, at para. 89

8The Court of Appeal for Ontario set out the framework for approaching Hague Convention proceedings in Ludwig v. Ludwig, 2019 ONCA 680 at paras. 21, 40. The live issues in the case at bar are a threshold question of whether the Hague Convention applies and, if so, whether two exceptions to mandatory return apply.

Summary of my Decision

9I have determined that:

• the Hague Convention does not apply because S. is 16;
• if the Convention does apply, S. has expressed a genuine desire not to be returned to Puerto Rico and I would not exercise my discretion to override her clearly expressed views.

Background and Facts

10The applicant father (A/F), Dr. Sanjeev Kaila, seeks an order for the return of his child, S., to Puerto Rico, pursuant to the Hague Convention. The respondent mother (R/M), Ms. Michelle Baker, asks that the application be dismissed. The Office of the Children’s Lawyer (“OCL”) also says that the father’s application should be dismissed.

S. and her Parents

11The A/F and R/M met in 1999 in Ontario. At some point the relationship became a romantic one. They never married. S. was born on June 27, 2010 in Ontario.

12S. and her parents moved to Atlanta in 2012. In 2023 they moved to Puerto Rico. Around that same time, the R/M was diagnosed with cancer.

13There was a great deal of evidence about the relationship between the A/F and the R/M. I will summarize some of the evidence about their relationship to provide context for the events at issue in this proceeding.

14The A/F described the relationship as “on again/off again” and complicated by the R/M’s “serious mental health issues”. He described the R/M as volatile, full of rage and highly manipulative. The A/F said the R/M engaged in narcissistic conduct. The A/F vehemently denied being abusive or controlling.

15The R/M asserted that the A/F was abusive and controlling. She described being in a cycle of abuse, for many years, and recounted several specific incidents. The R/M provided text messages from the A/F in support of some of her allegations. For example: “Your [sic] not mentally stable. Neither is Amanda you both are sick people.”; “You both are just complete disasters in life.”; “I want to be away from both you lunatics.”; “You and Amanda are just trash.”; “Amanda is a selfish asshole and you are a complete moron.”; “Your [sic] just an idiot.” There was also a text exchange in which the R/M attached photos of injuries to her face and arm that she says were caused by the A/F. During cross-examination at the hearing, the A/F said that he may have called the R/M “trash”, explaining that every relationship has its ups and downs. He agreed that he had called her “not mentally stable”.

16Evidence of the relationship between the A/F and Ms. Amanda White provides additional context. The A/F is the father of Ms. White’s two children, whom I will refer to collectively as “the two girls”, born in 2017 and 2018. Ms. White’s 2026 affidavit stated that she was no longer in an amorous relationship with the A/F. She also stated that her “platonic relationship with [the A/F] seemed to threaten [the R/M]”. In cross-examination at the hearing, Ms. White said her relationship with the A/F started toward the end of 2011 or early 2012.

17In his affidavit, the A/F stated that he was not in a relationship with the R/M and Ms. White contemporaneously. In cross-examination, the A/F said that his relationship with Ms. White started in 2012 and ended in 2019. The A/F’s affidavit also stated that he and the R/M “jointly consented that we were going to reside with Amanda in a blended family arrangement”. This was not an open relationship, but an agreement “to live collectively for the sake of our children”. The A/F also stated in his affidavit that the R/M “became enraged with jealousy when Amanda joined the parties in Atlanta, Georgia”, but later asserted that the A/F’s relationship with Amanda “added no chaos to the family dynamic”. The A/F told the OCL that Amanda was “a close family friend” and when the R/M could not have any more children, the R/M “agreed that Ms. White would be a ‘surrogate’ for [the A/F] to have more children”. In cross-examination at the hearing, the A/F said the description of Ms. White as a surrogate arose because Ms. White signed a surrogacy agreement at the request of the R/M. The agreement was signed when the children enrolled in the same private school in Puerto Rico, to provide an explanation that would make the R/M feel more secure. The A/F said that he did not refer to Ms. White as a surrogate when he spoke with S. about the situation.

18When the R/M became sick with cancer, the A/F brought Ms. White and the two girls to Puerto Rico for the ostensible purpose of assisting the family while the R/M was undergoing treatment.

19On February 7, 2026, there was an altercation between the A/F and the R/M that led to the R/M leaving the house. The R/M went to the police station with a friend, Mr. Colin Bengall. The A/F went to the police station at some point with S. and Mr. Jose Santos.

20The R/M obtained a protection order on February 8, 2026. The order was amended on February 24, adding a condition that prohibited the removal of S. from Puerto Rico.

21On February 20, 2026, the A/F commenced a custody proceeding in Puerto Rico. His petition was served on the R/M on February 24, 2026.

22On March 24, 2026, there was a hearing regarding the continuation of the protection order. The order was lifted.

23On March 25, 2026, the R/M and S. left Puerto Rico by plane. The R/M said that it was her understanding that the non-removal order in the protection order was no longer in place when she left. The R/M also said that she was unaware of a new non-removal order made on March 25, 2026, as part of the custody proceedings in Puerto Rico.

Brief Procedural History in Ontario

24On March 28, 2026, the A/F filed a Hague Convention application with the United States Department of State through the U.S. Central Authority. Shortly prior to April 10, 2026, the A/F asked Ontario’s Central Authority (Ontario’s Ministry of the Attorney General) to process his application. The A/F appeared before Justice Stevenson on an urgent motion without notice on April 15, 2026. The A/F’s application is dated April 29, 2026, and was issued on May 1, 2026. The parties appeared before Justice Stevenson on May 4, 2026, for their “First Meeting” (FLR 37.2). The OCL was also in attendance. The OCL had been served with notice of the Hague Convention application. Neither party objected to the OCL’s participation. An order was made for the OCL to provide such services as the OCL deemed appropriate for S.

25In his May 4 endorsement, Justice Stevenson noted the six week schedule in FLR 37.2(3) and the interests of procedural fairness. Justice Stevenson case managed the matter over several weeks, issuing various orders and endorsements, and a ruling on a motion.

26In his June 26, 2026 endorsement, Justice Stevenson confirmed that the hearing would proceed on July 6 and 7, 2026. Justice Stevenson also set out the procedure for the hearing and timelines, including that the parties should serve and file factums by 3 pm on July 3, 2026. Justice Stevenson was clear that the witnesses would be cross-examined “subject to strict time limits to ensure this hearing is completed by 4.30 pm on July 7, 2026”.

27In addition to her arguments pursuant to the Hague Convention, the R/M also sought relief pursuant to the Children’s Law Reform Act (“CLRA”). In her Answer, the R/M asked that the Ontario Court take jurisdiction of the parenting issues related to S. Her Answer also included a request for “[a]n order that the respondent may amend her pleadings to seek further and other relief following the Hague proceeding, once determined”. In her factum, one of the R/M’s requests was for “[a]n Order that this Court has jurisdiction to address the parenting issues pertaining to [S.] pursuant to Article 16, or in the alternative, pursuant to section 23 and 43 of the Children’s Law Reform Act”.

28The A/F included in his factum an alternative request that “if this Court finds that Article 4 bars the Convention claim, the Applicant seeks return pursuant to sections 40, 41, and 45 of the CLRA, and seeks leave to amend the Application accordingly.” On the first day of the hearing, the respondent and OCL opposed any amendment. They had only been made aware of the amendment when they received the A/F’s factum on the afternoon of Friday July 3, before the hearing was to begin on Monday July 6.

29Two days were set aside for this hearing. I determined that it would not be possible for me to hear arguments on the amendment issue and make a determination, and still complete the hearing by 4:30 on the Tuesday, as Justice Stevenson had directed. I decided that we would complete the evidentiary portion of the hearing and limit submissions to the Hague Convention issues. Counsel would be able to make submission on any CLRA relief, and the amendment issue, after I released my reasons on the Hague Convention issues. (The Hague Convention is in force in Ontario pursuant so s. 46 of the CLRA. When I refer to CLRA relief, I mean any relief under the CLRA other than s. 46.) I bifurcated the submissions in that manner in an effort to complete the proceedings in a timely way consistent with Canada’s international obligations, and mindful of the Supreme Court’s direction in Balev that “Hague Convention proceedings should be judge-led, not party-driven, to ensure they are determined expeditiously”.

30This hearing began on Monday July 6. The evidentiary portion was completed on Tuesday July 7. Submissions on the Hague Convention issues were made on Wednesday July 8.

Positions of the Parties on the Hague Convention

31The A/F takes the position that the Hague Convention applies despite the fact that S. is now 16. The applicant also takes the position that none of the exceptions relied on by the R/M and the OCL apply to prevent S.’s return to Puerto Rico.

32The R/M asserts that the Hague Convention does not apply because S. is now 16. The R/M also takes the position that if the Convention does apply, two exceptions to the mandatory return provision are made out. First, S. is a mature child who has expressed her genuine desire not to return to Puerto Rico. Second, S. is at grave risk of harm if she were to be returned Puerto Rico. The respondent accepts that S.’s habitual residence was Puerto Rico and that the A/F was exercising rights of custody when they lived there.

33The OCL takes the position that the Convention does not apply but, if it does, the two exceptions relied on by the R/M prevent S.’s mandatory return.

Analysis

Whether the Hague Convention Applies given the Age of the Child

34Article 4 of the Hague Convention states:

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

35S. was born on June 27, 2010. There is no disagreement over the fact that she turned 16 on June 27, 2026.

36The A/F makes two arguments. First, he asserts that the operative date to consider in relation to my jurisdiction under the Hague Convention is the date of removal or the date of the A/F’s application, not the date of the hearing or the date of my decision. Second, he argues that the R/M intentionally delayed these proceedings and that, as a result, she should not be permitted to rely on the fact that S. is 16 to avoid the application of the Convention.

37The wording of Article 4 is clear: the Convention ceases to apply when the child is 16. Article 4 does not include any exceptions or qualifications. This is an issue of whether I have jurisdiction under the Convention. It is not a discretionary matter about whether it would be appropriate for me to exercise my jurisdiction.

38In C. v. M., 2026 ONSC 892 Justice Diamond was case managing a Hague hearing that commenced when the child was 14. Justice Diamond stated in his endorsement at para. 17:

This Hague Convention application is now eight months old. The parties’ child is now 15 years of age, and will be 16 years of age in September 2026 (rendering the child outside the application of the provisions of the Hague Convention).

39Although this jurisdictional issue was not being argued before Justice Diamond, C. v. M. confirms my understanding of the plain wording of Article 4. In my view, Article 4 makes clear that I no longer have jurisdiction under the Hague Convention, because S. turned 16 on June 27.

40In case I am wrong, I will address the A/F’s two arguments.

41The A/F argues that the operative date is the date of the removal or application, not the date of any decision. Article 4 could have specified that jurisdiction would be based on the date of the application: see, for comparison, MacLean v. Hill, 2019 ONSC 6697 at para 16. The plain meaning of the words of Article 4 is also consistent with the purpose behind Article 4: 40 Pérez-Vera, Elisa, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction. Madrid: Hague Conference on Private International Law, 1981, at para. 77. As a child ages they gain autonomy and independence from their parents. Finally, there are U.S. cases that have considered this issue and rejected the A/F’s interpretation: Bordelais v. Bordelais, 844 F. App'x 910 (7th Cir. 2021) at p. 3; Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016). And there are Canadian cases touching on this issue that undermine the A/F’s suggested interpretation: C. v. M. at para. 17; Thompson v Thompson, 2017 ABCA 299 at paras. 8-9, 19; Pitts v. De Silva, 2008 ONCA 9, at para. 41.

42In my view, I would exercise whatever jurisdiction I have under the Hague Convention at the time of the making of an order. S. had already turned 16 when this hearing began.

43The A/F also argues that the R/M intentionally caused the delay in an effort to circumvent the Hague Convention by ensuring that application could not be heard prior to S.’s 16th birthday. Again, my understanding of the jurisdictional issue is that my jurisdiction under the Hague Convention is premised on the child being under 16. If she is over 16, I have no jurisdiction, regardless of the reason for the hearing taking place after her 16th birthday.

44Moreover, I do not accept the A/F’s characterization of the R/M’s conduct. In his June 2, 2026 endorsement, Justice Stevenson stated at para. 14:

If the Father was not ready to go forward promptly, he couldn’t later insist on requiring the Respondent to unreasonably expedite her responding affidavit(s). It is the Father’s own conduct which has meant this Application cannot reasonably be dealt with in the ideal 6-week timeframe.

45I agree with the A/F that I am not bound to accept this determination regarding the cause of at least some of the delay. Justice Stevenson actively case-managed this matter. Throughout that process he expressed his awareness of the time constraints for Hague Convention cases, as well as the need for procedural fairness. No aspect of the procedural history as I understand it undermines Justice Stevenson’s assessment on June 2 of the reason for the delay, and I adopt it as my own. Moreover, the fact remains that S. and the R/M left Puerto Rico 3 months before S. turned 16.

46I do not accept that the mother intentionally delayed the matter to ensure it was heard after S.’s 16 birthday. Even if I did accept that interpretation of the history of this matter, it would not confer on me a jurisdiction that I do not have.

47I reject both of the A/F’s arguments about why the Convention should apply despite the fact that S. is 16. The Hague Convention does not apply.

Do any of the Exceptions to the Hague Convention’s Return Provision Apply?

48In case I am wrong on the issue of whether the Convention applies, I will turn to the two exceptions asserted by the R/M and the OCL.

Whether there is a Genuine Objection by the Child

49Article 13 of the Hague Convention states, in part:

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. [emphasis added]

50The A/F takes the position that the views expressed by S. are the result of alienation and manipulation by the R/M. The A/F also asserts that the court has a discretion as to whether to return S. to Puerto Rico, notwithstanding an established objection.

51This issue requires me to consider the June 25, 2026 affidavit of Mr. Jonathon DeLuca, filed by the OCL. As noted previously, there was no objection to the OCL’s participation in this proceeding. Nor were there any hearsay concerns raised by either party with respect to Mr. DeLuca’s affidavit. The A/F’s father’s position on the affidavit as articulated in his factum at para. 55 was as follows:

On June 25, 2026, OCL clinician Jon DeLuca filed an affidavit reporting that [S.] strongly objects to return to Puerto Rico. The Applicant does not dispute that [S.] has expressed such objections. However, those objections must be assessed in the context of over five months of complete isolation from her father and sustained exposure to only the Respondent’s perspective on these events. These objections are not genuine, and rather the result of a prolonged campaign of alienation and manipulation.

52I have considered any hearsay dangers in relying on Mr. DeLuca’s affidavit, in the context of the role of the OCL, the positions of the parties and the nature of a Hague Convention proceeding. In my view, the affidavit meets the necessity requirement. It would be completely inappropriate to subject S. to cross-examination in order to test the validity of her beliefs. The role of the OCL and Mr. DeLuca’s professional qualifications and experience provide procedural safeguards. Threshold reliability is met because there is other evidence in this proceeding to support aspects of the affidavit, in particular the reasons S. expressed for not wanting to return. Therefore, Mr. DeLuca’s affidavit is admissible and I am prepared to rely on it to the extent articulated below in my analysis. See: J.S.R and H.S.R and The Children’s Aid Society of Ottawa, 2024 ONSC 4717, at para 33-34; Simcoe Muskoka Child, Youth and Family Services v. J.M.W., 2024 ONSC 3060 at paras. 38-39; DCAS v. H.C.T.N., 2025 ONSC 4480 at paras. 125-134; R. v. Charles, 2024 SCC 29.

53Mr. DeLuca met once with each of the parents. He met with S. on multiple occasions, privately. He considered and assessed whether she was being unduly influenced. S. denied being influenced. In addition, she was not completely negative about the A/F. S. said that he was very smart and can be fun. S. said she loved him “a long time ago”. S. was also able to express negative feelings about the R/M. S said she was angry with her mother for not pushing to stay in Canada on a previous occasion. S. said that her mother worries about her too much, is a clean freak, and always wants S. to make her bed. S also said she was aware that her father thinks her mother is brainwashing her, but that that is not true. Mr. DeLuca attached a handwritten note from S. that she gave to her mother’s lawyer in Puerto Rico. In it she said she wished to be with her mother “in all regards”. Although the letter is not dated, I infer that it was written at an earlier date. Thus, it appears that S. has expressed this view repeatedly over time, as opposed to on one isolated occasion.

54At the time Mr. DeLuca met with S., she was 15, in grade 10, and attending a high school in London, Ontario. S. expressed a strong objection to returning to Puerto Rico. She articulated a number of reasons why she did not want to return, including:

• S. recounted verbal, emotional and some physical abuse by the A/F against her and the R/M. S. recalled her father calling her a “retarded idiot” when she was learning math. He used to hit her on the forehead or temple when she had difficulty doing homework. S. said in 2020 the A/F locked her in a dog cage and left the home with Amanda White and her two children. S. reported that incident and CPS became involved. S. recalled an incident in Atlanta when her parents got into a physical argument after the R/M demanded that Ms. White move out; the A/F pushed the R/M’s head into the door frame and she began to bleed. In her handwritten letter, S. stated: “I am scared of my father and do not wish to live with or under him again.”
• S. described Amanda White as the A/F’s girlfriend. She said in the past her father had described Ms. White as a “surrogate”. Various aspects of that situation over the years had been confusing and weird for S. S. told Mr. DeLuca: “we are not Mormon”. S. said that Ms. White did not like S. at all. There is considerable conflict between S’s mother and Ms. White. S. also experienced conflict between the A/F and Ms. White. S. stated that the A/F treats S’s two younger sisters better than he treats her.
• S. said the A/F tries to control everyone.
• S. said she did not want to move to Puerto Rico, and that she told her father that at the time.
• S. said she hates her school in Puerto Rico.
• S. said she was worried about her and her mother’s immigration status in Puerto Rico. In her handwritten letter, S. said that Canada was their “home country…where we are legal”.
• S. said her mother has primarily cared for her, and her father was often away travelling.

55There was support in the record for some of the reasons S, articulated to Mr. DeLuca, including:

• The R/M said the A/F was physically, emotionally and verbally abusive to S.
• The R/M said the A/F was abusive to the R/M. The incident described by S. where her mother was left bleeding appears to co-relate to the photos of injuries in text messages attached to the R/M’s affidavit.
• The evidence on the nature and status of A/F’s relationship with Ms. White was unclear, inconsistent and confusing, including in terms of the extent of any temporal overlap with the A/F’s relationship with the R/M. There were times when the A/F, the R/M, S., Ms. White, and the two girls were living in the same household.
• Although S. may be eligible for U.S. citizenship, she did not have U.S. citizenship at the time she left Puerto Rico.

56I also note that S. was born in Ontario, spent the first two years of her life there, and has relatives there. She only moved to Puerto Rico in 2023, from Atlanta. In addition, all witnesses agreed that S. was very intelligent. Although, the A/F also said that she was “emotionally immature and childlike”, a view also expressed by Ms. White.

57I must address evidence that S. has also expressed a desire to be with the A/F. I remind myself here that the issue is whether S. “objects to being returned”. It is not my role to assess whether S. loves one parent more than the other and, if so, which one.

58Mr. Santos’ affidavit stated that on February 7 he was at the police station and heard S. tell the police that she wished to remain with her father, rather than leave with her mother. Mr. Santos said on cross-examination that the A/F was not with him when Mr. Santos heard S. say that to the police.

59S. told Mr. DeLuca that she told the police she wanted to be with her father because he was within earshot and that was what he wanted her to say. She said her father was looking at her when she was speaking to the police officer. S.’s handwritten letter states that when the police asked her where she wanted to stay for the night, she told them with her father because she was fearful and he was within earshot.

60I accept that S. told the police that she wanted to go home with her father that night. However, S. is the only person who can explain what was in her mind when she said that, and her motivation for doing so. Moreover, the evidence appears to be that she said she wanted to go home with her father that night. I do not view that statement as undermining her repeated and clear expressions that she does not want to go back to Puerto Rico and she wants to live in Canada.

61Mr. Santos said that on February 8, S. provided him with a typewritten statement that she had prepared about the events of February 7, 2026. He stated: “[t]o the best of my knowledge, that statement was written by [S.] of her own free will. I did not observe any person force, pressure, direct, or coerce her to prepare that statement.” In cross-examination Mr. Santos said that when S. gave him the written statement, she said to please give it to the police if anything happened to her dad. He agreed that he was not present when she wrote the letter.

62While the typewritten statement did not say whether S. wanted to leave Puerto Rico, it did say that her father never laid a hand on her mother and her mother did not lay a hand on her father. Thus, it could potentially undermine the R/M’s narrative of the events of February 7-8.

63S. told Mr. DeLuca that her father sat her down and told her to write a statement saying that he had not hit her mother. He sat over her and told her what to write. S.’s handwritten letter stated that the typewritten statement was written at her father’s instigation and was not valid.

64The typewritten statement has S.’s name at the bottom as the “witness”. There is also a “witness signature”, and S. signed the letter. This strikes me as a curious thing for a 15 year old to do. The contents of the statement do not necessarily seem to be things that would be within S.’s knowledge. The statement discusses an email that her mother received from Ms. White, her parents’ practices in relation to the use of Amex cards, and the previous involvement of CPS. The statement says that the CPS case was inconclusive and had nothing to do with “domestic violence or the behavior of my father”. Some of the language in the statement does not seem to be typical for a 15 year old.

65The typewritten statement does not directly or indirectly undermine the genuineness of S.’s stated desire not to return to Puerto Rico.

66I accept that S. has expressed a genuine desire not to return to Puerto Rico. I would not exercise any discretion I have to override that genuine desire: Balev at para. 81. S. is 16 years of age, heightening the need to recognize her autonomy and increasing independence. Moreover, she has articulated various reasons why she wishes to remain in Ontario, as opposed to making a bare assertion.

Whether there is a Grave Risk of Harm

67Article 13 of the Hague Convention states, in part:

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(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. [emphasis added]

68Since I have determined that I do not have jurisdiction to make an order under the Hague Convention and that, if I did have jurisdiction, S.’s objections as a mature child are a valid basis for not returning her to Puerto Rico, I need not consider the issue of grave risk of harm.

Other Relief

69In his June 26, 2026 endorsement, Justice Stevenson left it to the hearing judge to decide if any parenting orders were appropriate, at the conclusion of the hearing. As noted, I bifurcated the submissions and only addressed Hague Convention issues in these reasons.

70The parties may seek an urgent case conference before me if they are pursuing any non-Hague relief and wish to schedule submissions on that portion of the proceedings, in light of this ruling.

The Honourable Justice B. Wassenaar

Released: July 20, 2026

CITATION: Kaila v. Baker, 2026 ONSC 4206