Gallardo Bazan v. MacDonald
Between Maria Elizabeth Gallardo Bazan, Applicant, and
Bradley D. MacDonald, Respondent
Bradley D. MacDonald, Respondent
[2011] O.J. No. 5408
2011 ONCJ 600
Brampton Registry No. 1552/10
Ontario Court of Justice
M. Pawagi J.
Heard: May 4, 2011.
Judgment: May 20, 2011.
Brampton Registry No. 1552/10
Ontario Court of Justice
M. Pawagi J.
Heard: May 4, 2011.
Judgment: May 20, 2011.
(47 paras.)
Court Summary:
Conflict of Laws -- Custody of or access to child -- Return of wrongfully retained child -- Custodian's consent to retention -- Child (now almost 3 years old) was born in Peru where his custodial mother resided -- He had twice before been brought by his Canadian father on brief visits to Canada and been promptly returned -- Then, about 14 months ago, father took him to Canada for third time, with mother's consent but evidence was murky about purpose of this third journey -- Father maintained that parents had agreed that child have advantages of being raised in Canada and that, under Article 13(a) of (Hague) Convention on the Civil Aspects of International Child Abduction, mother had consented, or subsequently acquiesced, to child's permanent move to Canada -- In her application under convention for child's return, however, mother insisted that third visit was temporary and was to end within 6 weeks and that child would again return to mother's care in Peru -- Court's review of evidence (including e-mail messages) showed some of it supported father's position whereas other portions backed up mother's position -- Court noted that onus rested on father to establish, on balance of probabilities, that mother had consented or acquiesced to child's removal to and retention in Canada -- Moreover, case law was quite firm that test for such "consent" and "acquiescence" required high standard and, even though proof did not have to take form of written or express statement, court did need to have "clear and cogent" evidence" of "unequivocal" consent or acquiescence -- In this case, father had some evidence to support his position that mother had consented or acquiesced to child's move to Canada but none of it met high standard of demonstrating "clear and cogent" evidence of "unequivocal" consent or acquiescence -- Father failed to meet onus -- Mother's application allowed and child ordered to be returned to Peru.
Cases cited:
Conflict of Laws -- Custody of or access to child -- Return of wrongfully retained child -- Custodian's consent to retention -- Child (now almost 3 years old) was born in Peru where his custodial mother resided -- He had twice before been brought by his Canadian father on brief visits to Canada and been promptly returned -- Then, about 14 months ago, father took him to Canada for third time, with mother's consent but evidence was murky about purpose of this third journey -- Father maintained that parents had agreed that child have advantages of being raised in Canada and that, under Article 13(a) of (Hague) Convention on the Civil Aspects of International Child Abduction, mother had consented, or subsequently acquiesced, to child's permanent move to Canada -- In her application under convention for child's return, however, mother insisted that third visit was temporary and was to end within 6 weeks and that child would again return to mother's care in Peru -- Court's review of evidence (including e-mail messages) showed some of it supported father's position whereas other portions backed up mother's position -- Court noted that onus rested on father to establish, on balance of probabilities, that mother had consented or acquiesced to child's removal to and retention in Canada -- Moreover, case law was quite firm that test for such "consent" and "acquiescence" required high standard and, even though proof did not have to take form of written or express statement, court did need to have "clear and cogent" evidence" of "unequivocal" consent or acquiescence -- In this case, father had some evidence to support his position that mother had consented or acquiesced to child's move to Canada but none of it met high standard of demonstrating "clear and cogent" evidence of "unequivocal" consent or acquiescence -- Father failed to meet onus -- Mother's application allowed and child ordered to be returned to Peru.
Cases cited:
Friedrich v. Friedrich (1996), 78 F. 3d 1060, 64 USLW 2603 (U.S.C.A., 6th Cir., Ohio).
Re. H. and Others (Minors)(Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225, [1997] 2 W.L.R. 563, [1997] 2 F.C.R. 257, [1997] 1 F.L.R .872, [1997] Fam. Law 468, [1996] H.L.J. No. 43 (H.L.).
Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075, 55 O.R. (3d) 456, 144 O.A.C. 387, 203 D.L.R. (4th) 386, 18 R.F.L. (5th) 279, [2001] O.J. No. 1598, 2001 CarswellOnt 2909 (Ont. C.A.).
P. v. P. (Abduction: Consent or Acquiescence), [1997] 3 F.C.R. 550, [1998] 1 F.L.R. 630 (Eng. Fam. Div.); affirmed at Re P. (A Minor) (Abduction: Acquiescence), [1998] EWCA Civ 414, [1998] 2 F.L.R. 835 (Eng. C.A., Civ. Div.).
Pesin v. Osorio-Rodriguez (1999), 77 F. Supp. 2d 1277 (U.S. Dist. Ct., S.D. Fla.); affirmed at Pesin v. Rodriguez (2001), 244 F. 3d 1250 (U.S.C.A., 11th Cir., Fla.).
Statutes and Regulations cited:
Statutes and Regulations cited:
Children's Law Reform Act, R.S.O. 1990, c. C-12 [as amended], section 46.
Convention on the Civil Aspects of International Child Abduction, [1983] Can. T.S. No. 35, 1343 U.N.T.S. 89, 99 U.S.T. 11, 19 I.L.M. 1501. Article 13 and Article 13(a).
Family Law Rules, O. Reg. 114/99 [as amended], rule 20.
Reasons for Judgment
M. PAWAGI J.:--
1: NATURE OF CASE
1 This is the mother's application for the return of the parties' two-year-old son to his home state of Peru pursuant to the (Hague) Convention on the Civil Aspects of International Child Abduction, [1983] Can. T.S. No. 35, 1343 U.N.T.S. 89, 99 U.S.T. 11, 19 I.L.M. 1501. The father opposes the application and raises the defence that the mother consented, or subsequently acquiesced, to the father's moving the child's residence to Mississauga, Ontario.
2: OVERVIEW OF THE FACTS
2 The mother, Maria Elizabeth Gallardo Bazan, age 35, resides in Lima, Peru and is a citizen of Peru. The father, Bradley MacDonald; age 50, resides in Mississauga, Ontario and is a citizen of Canada. They met in July 2007 and became romantically involved. Their child, Aaron Bradley Gallardo MacDonald, was born in Lima, Peru on 3 July 2008. The parties obtained both Peruvian and Canadian citizenship and passports for the child.
3 The child was in his mother's care and custody in Peru since his birth on 3 July 2008, until the disputed move to Canada on 12 March 2010, which occurred when he was 20 months old.
4 Prior to the disputed move, the child had two visits to Canada with his father. The first was for about two weeks from 13 to 29 May 2009 when the child was 10 months old; and the second was for about six weeks from 4 September to 19 October 2009 when the child was 14 months old.
5 The mother's position is that, when the father took the child to Canada on 12 March 2010, this was meant to be another visit that was only supposed to last for one month, until 27 April 2010. The father's position is that the parties had agreed all along that it would be best for the child to be raised in Canada and that the mother only changed her mind about four months after the move because she was upset that the father did not take the child back to Peru for a visit in August as was originally contemplated.
3: ANALYSIS
3.1: Procedural Issues
6 The mother's Hague application, begun in Peru on 13 September 2010, was issued in Canada on 10 March 2011. The child has been with his mother on an access visit since her arrival in Canada on about 5 April 2011, pursuant to temporary court orders. The current temporary order, dated 4 May 2011, provides that the child shall spend Monday to Friday with his mother and weekends with his father pending the final resolution of the Hague application.
7 The mother's Hague application was originally scheduled to be heard on 27 April 2011. The parties were given filing deadlines for their affidavit material, as well as leave to conduct out-of-court examinations of the other party pursuant to rule 20 of the Family Law Rules, O. Reg. 114/99 [as amended].
8 The hearing was adjourned on consent to 4 May 2011 and the filing deadlines were extended, as the father changed counsel.
9 The parties filed the following material that was considered for the hearing:
the mother's Hague application, dated 4 March 2011;
the mother's affidavit in support of a claim for custody or access, dated 4 March 2011;
the mother's affidavit sworn on 4 March 2011;
the affidavit of Danielle Henderson (assistant to mother's counsel) sworn on 9 March 2011;
the father's responding affidavits sworn on 20 March 2011 and 23 April 2011; and
The paternal grandmother's affidavit sworn on 23 April 2011.
10 The father had neglected to file an answer, but parties agreed that this was not a fatal defect and that the father's responding affidavits should be deemed to be his answer as they contained essentially the information that would have been in his answer.
11 The mother provided her reply material to the court on the day of the hearing (she had been able to serve it, though not file it, in accordance with the deadlines). There were no objections regarding two of her affidavits:
affidavit of the mother's aunt and uncle, sworn on 2 May 2011 (regarding the issue of access pending final resolution of the application); and
affidavit of the father's former counsel sworn on 29 April 2011 (regarding United States immigration information that maternal grandmother sent to father's former counsel in error rather than to mother's counsel).
12 Father's counsel objected to much of the mother's 104-paragraph affidavit sworn on 2 May 2011, on the basis that it did not constitute proper reply. I heard submissions from both counsel and gave a paragraph-by-paragraph ruling prior to the commencement of the hearing, with the exception of paragraph 54, on which I reserved. For ease of reference I have listed below the paragraphs of the affidavit that were struck and the reasons:
paragraphs 3-6, 9, 16, 23, 35, 36 (with the exception of the last two sentences), 41, 42, 44-57, 59-65 repeat what was provided in an earlier affidavit;
paragraph 25 is argument;
paragraphs 38, 39, 40, 75 ought to have been provided in the mother's initial affidavit;
paragraphs 70-74 are not relevant; and
paragraphs 80, 81, 83 are summaries of previous court orders.
13 I further find that paragraph 54 is proper reply as it answers information provided by the paternal grandmother in her affidavit sworn on 23 April 2011 regarding telephone calls between the grandmother and the mother.
14 The parties did not end up conducting out-of-court examinations and did not request cross-examination on the affidavits in court. Hague Convention applications are typically heard on affidavit evidence only. As the Ontario Court of Appeal noted in Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075, 55 O.R. (3d) 456, 144 O.A.C. 387, 203 D.L.R. (4th) 386, 18 R.F.L. (5th) 279, [2001] O.J. No. 1598, 2001 CarswellOnt 2909, at paragraph [59],
· [59] ... Although a Hague Convention application does not determine custody having regard to the child's best interest, the child's best interests should be taken into account by ensuring that Hague Convention applications are disposed of expeditiously. That consideration militates in favour of Hague Convention applications being decided on a written record, that is by affidavit evidence. ...
3.2: Legislation
15 The Hague Convention is a self-contained code to determine not which parent ought to have custody, but rather, to determine in which jurisdiction the issue of custody ought to be decided. The purpose of the Hague Convention is to deter parents from moving their children to another jurisdiction without the consent of the other parent. The Hague Convention's underlying rationale is that it is in the interests of the child to have the question of custody determined by the court where the child habitually resides. The purpose and object are set out in the preamble and in Article 1 of the Hague Convention, which in Ontario is incorporated into section 46 of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended.
16 The Hague Convention directs that the court shall return a child who has been wrongfully removed or retained to the state where he was habitually resident, pursuant to article 12, unless the Hague proceedings were commenced more than one year after the alleged wrongful removal, in which case the court shall return the child unless it is demonstrated that the child is now settled in his new environment.
17 An exception to the mandatory return of the child can be made pursuant to article 13 if it can be established that the custodial parent was not exercising his or her custodial rights at the time of the removal, or if he or she consented to or subsequently acquiesced to the removal; if the child would be at grave risk of harm if returned; or if the child objects to the move and the child is of an age and degree of maturity where it would be appropriate to take the child's views into account. I have reproduced the section in full below as it is the only section upon which the father is basing his opposition to the mother's Hague application:
· Article 13
· 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 that opposes its return establishes that:
the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
· The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
· In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
18 In this proceeding, the following is not disputed:
Peru and Canada are signatories to the Hague Convention;
this application was brought within one year of the alleged removal;
the mother was exercising her custodial rights and the child was habitually resident in Peru at the time of the alleged removal; and
the child would not be at grave risk of harm if returned to Peru.
19 The only dispute is whether the father can establish, pursuant to Article 13(a) that the mother consented, or subsequently acquiesced, to the move of the child to Canada.
3.3: Legal Test for Consent and Acquiescence
20 The test for finding both consent and acquiescence is the same and is high: What is required is "clear and cogent" evidence of "unequivocal" consent or acquiescence. The Ontario Court of Appeal in Katsigiannis v. Kottick-Katsigiannis, supra, at paragraph [43], followed an earlier decision, P. v. P. (Abduction: Consent or Acquiescence), [1997] 3 F.C.R. 550, [1998] 1 F.L.R. 630 (Eng. Fam. Div.); affirmed at Re P. (A Minor) (Abduction: Acquiescence), [1998] EWCA Civ 414, [1998] 2 F.L.R. 835 (Eng. C.A., Civ. Div.), where it found that, when considering whether a parent consented to the removal of a child under Article 13(a), the court must determine whether the parent gave unconditional consent to the removal of the child and that, although the consent does not have to be evidenced in writing or expressly stated, it must "amount to clear and cogent evidence of an unequivocal consent," and it found that that the test for acquiescence required the same high standard (at paragraph [43]).
21 The court followed the principles set out by Lord Brown-Wilkinson in Re. H. and Others (Minors)(Abduction: Acquiescence), [1998] A.C. 72, [1997] 2 All E.R. 225, [1997] 2 W.L.R. 563, [1997] 2 F.C.R. 257, [1997] 1 F.L.R .872, [1997] Fam. Law 468, [1996] H.L.J. No. 43 (H.L.), who stated that the test is entirely subjective; that is, that the answer to the question whether a parent has acquiesced in the removal or retention of a child will depend on that parent's state of mind -- not the outside world's perception of the parent's intentions. He found that attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child will not generally constitute acquiescence and he added that the trial judge in reaching a conclusion on the question of fact regarding consent or acquiescence "will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention" (supra, at paragraph [39]).
22 Lord Brown-Wilkinson carved out an exception to the subjective test, such that even where no acquiescence is found, "where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to a summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced" (supra, at paragraph [40]).
23 As Lord Brown-Wilkinson went on to note, the United States also followed the House of Lords approach. In Friedrich v. Friedrich (1996), 78 F. 3d 1060, 64 USLW 2603, the 6th Circuit Court of Appeals held that "We believe that acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time" (supra, at paragraph [44]).
24 Thus, the onus is on the father to establish, on a balance of probabilities, clear and cogent evidence of the mother's unequivocal consent or acquiescence to the child's removal and retention in Canada.
3.4: Assessment of the Evidence of Consent or Acquiescence
3.4(a): Evidence before the Disputed Move
25 The father deposes that the parties had agreed all along that the child would be raised in Canada by his father and that the second trip, in the fall of 2009, was for the purpose of acclimatizing the child to his new home. Father's counsel submits that, of course, any parent would want their child to have the advantages of being raised in Canada rather than a developing country such as Peru. The mother deposes that the trip of 12 March 2010 was not meant to be a permanent removal, but just another trip to Canada (the third such trip). Mother's counsel submits that, of course, a 35-year-old woman who has just one child would never agree to send that child away permanently. I find that both positions are assertions rather than evidence and I cannot take judicial notice of either of the counsel's assumptions. Although the paternal grandmother also deposes that there was an agreement that the child be raised in Canada, since her belief comes from her "many conversations with Brad [the father]," it does not add much to the father's assertions.
26 The consents that the mother signed for the father to travel with the child also do not assist as they are all open-ended (no start and end dates provided), both for the first two trips and for the disputed third removal. She signed Peruvian and English travel consents for the first two trips and only an English consent for the third trip. She submitted that, if the removal of 12 March 2010 was supposed to be permanent, she would have signed a different consent as required by the Peruvian government. However, since the open-ended consents also allowed the child (in all three cases, whether both Peruvian and English consents were signed, or just the English consent) to be removed to Canada with no difficulty, this is not determinative of the issue. Also not determinative is the fact that the parties prepared no formal agreement giving father custody and permission to move the child to Canada. The case law is clear that written consent is not required.
27 The mother deposes, and the father does not dispute, that the father did not take the child's medical records, including record of vaccinations, or the child's belongings when he left with the child on 12 March 2010 and that the mother still has the child's room in her home as it was with his toys, clothes, etc.
3.4(b): Mother's Gift to Child after the Disputed Move
28 The father deposes that, at the end of April or beginning of May 2010, he and Aaron met with a cousin of the mother who had been to Peru and brought back gifts for them from the mother:
· She sent a very light summer, jacket for Aaron, some t-shirts for Aaron, and 300 or 400 tea bags of the type of tea that is good for children. She sent a t-shirt for me so that we could take a photo of Aaron and I in Peruvian t-shirts and send it to her. She sent a number of other items as well. The Applicant told me she was sending this package and Aaron enjoyed the gifts. Nothing in this package, or in the comments of her cousin, suggested that the Applicant expected Aaron to return to Peru.
The mother does not dispute that she sent these gifts.
29 Although I agree that these gifts, particularly the tea bags since there were enough to last a long time, point to some degree of acquiescence, in themselves, they are not enough to amount to evidence of "unequivocal" acquiescence. In Pesin v. Osorio-Rodriguez (1999), 77 F. Supp. 2d 1277, the Florida Southern District Court held that a father had not acquiesced to the mother's removal of the children to Florida, even though he was providing his wife and children with monthly support payments and tuition for the children's private education in Florida: cited in Katsigiannis v. Kottick-Katsigiannis, supra, at paragraph [45].
3.4(c): The Mother's Demands for the Child's Return
30 The father deposes that the mother never demanded that he return Aaron to Peru until she changed her mind about the removal in September 2010. He is supported in this by the paternal grandmother who deposes that she had five or six calls with the mother between March and October 2010 and that the mother did not say anything about wanting Aaron to come back until October 2010. He points out that mother's position is that the visit was only supposed to be until 27 April and yet, she only started sending e-mails demanding the child's return when the August visit to Peru did not materialize.
31 The mother's position is that she made repeated requests for the child's return, first verbally and then by e-mail. She also pointed out that the father asked her in the summer to sign a letter confirming the child lives with him (so that he could obtain child tax benefits) but that she did not do so. She has filed copies of all the e-mails she sent. The existence of the e-mails is not disputed, but the parties have different interpretations of the contents. I have reproduced excerpts from the e-mails below and highlighted portions that support each party's interpretation.
32 I find that the highlighted sentences below support the father's position that the mother believes the child is living in Canada permanently and that she hopes to see him for a visit soon either in Peru or in Canada.
· e-mail of 14 July 2010 from mother:
· ... please tell to our little son aaron that mommy miss him a lot! love him and for shure i will see him soon ... my heart is whit him every single day since he is in canada ... im realy loking forward to see him brad ... u don't know how much i miss the babe is realy hard for me ... but i know that he has to spent time whit daddy too ... one day he will understand why we are not together and why mommy is in peru and cant go to canada! just want u to do me a favour ... talk to him about me every day and show him my pic i dont want he to forget me! that will be very sad for me!!
· ...
· do what you think is good but please i want to see aaron as soon as possible!! here in peru or canada hope u can understand me i miss aaron a lot and i think is time for mommy to see him too!!
33 The first highlighted sentence below supports the mother's position that the removal was not meant to be permanent. The second highlighted sentence can be interpreted as supporting both parties' positions: father's position that there was a visit back to Peru contemplated at the end of August, and mother's position that the child was to be returned home in August.
· e-mail of 4 August 2010 from mother:
· ... and like i say to you before i will trust you brad i dont want to be whit out aaron for ever you will killed me!! i need to belive in you!! i know that you will not hurt me that way you promissed me!!
· any way ... im so happy that u promissed me that aaron will be here the end of august!!!
34 The highlighted portions below again support both positions:
· e-mail of 23 August 2010 from mother:
· ... and the end of august is next week in 10 days and i dont have a date yet when are you caming back to peru whit him!! i cant do any thing i only have to wait and wait and wait till the day you dicede to come back!!
· ...
· you don't understand understand the paind i have in my chest when i think about the babe is terrible for me and hard not to b whit him nearly 6 month!! i only want you to understand me please ... is a mother who miss her son so much!! is painfull brad not to know when im going to see aaron ...
· ...
· i know the babe is whit you his father but we need to have communication to decide things about aaron together ... im the mother!! i dont like when you do things whit out me i fell like im nothing for you!
35 The highlighted portion below supports the mother's position that the removal was not meant to be permanent:
· e-mail of 27 August 2010 from mother:
· you didnet call me to let me know that you r on the computer ... why u are like that whit me brad? u know i die to se aaron!! yesterday was the worse day for me in my life!! i dont have tears in my eyes any more!! i know now that you want to keep aaron whit you!! u dont want me to see him ... you are bad!! i never though you will do this to me brad!! i trusted you brad!! i fell bad , sad i miss my son ... i dont think you will understand me never ... my heart is brokend but i know i have to b strong for me!! one day i remember you told me you never take aaron out of me cus what are you going to tell him when he grows ... now what are you goint to tell him? that mommy live him ... no brad is not true!! i die for my son and i know he will be whit me soon i belive i belive!! i dont know what is going through your min to do this to me! i never was bad whit you ... one day you will think carfully what you are doing to me is bad! no one deserve nothing like this!! im a mom who miss her son so much!! and i was a woman who belive in the father of my son the person who suppoused to love me!!!
36 The highlighted portion below supports the mother's position that the child is supposed to return to Peru as she reassures father that she will not prevent him from seeing the child once he is returned.
· e-mail of 28 August 2010 from mother:
· i dont understand brad why you not coming back to peru yet , knowing that i need aaron so much
· i dont understand till know why you dont want me to see my son im dieing little but little ... please from the deep of my heart come back whit aaron ... please come back i need him you know i need him!! i want to tell you aswell i dont want to think if you come back you will never see aaron againg no way i cant do that!! you know brad i always want aaron to b whit you too!!
· i know your intention is not to keep aaron for ever whit you!! you will not hurt me that way!!
37 The e-mails from September 6, 2010 on are clearly at the time the mother obtains legal advice and commences her Hague Application as evidenced by her first use of the formal legal phrase "without my consent." I note that, in her previous e-mails, she consistently misspells "with" as "whit" including in the phrase "whit out" but, in her e-mail of 6 September "without my consent" is rendered perfectly even while "with" earlier in the same e-mail is spelled "whit." Since the issue is whether there was consent or acquiescence prior to the Hague Application being commenced, I have not considered the e-mails from 6 September onwards.
· e-mail of 6 September 2010 from mother:
· I also know that time is passing and I see no intention to bring him to me. cus you dont tell me nothing of his return. I only said you take him for a month, and he is whit you almost six months. and is without my consent!!
3.4(d): Other Issues
38 The father raises two additional concerns: that the mother has commenced criminal proceedings against him in Peru for kidnapping and thus he could not return to Peru to contest the custody matter as he may be arrested and jailed in Peru; and that the mother may be planning to emigrate to the United States.
39 The mother deposes that the criminal proceedings that she commenced just mean that he would have to attend at court to answer her claims, not that he would be immediately arrested. On the basis of the evidence before me, I am unable to make a determination regarding what risk the father would face if he entered Peru. However, his ability to contest the custody matter and whether it would be hampered by the criminal proceeding is not relevant to a determination under the Hague application. The convention is a complete code and a parent's ability to contest custody in a contracting state is not one of the specified defences to a Hague application.
40 Similarly, the issue of whether the mother has future plans to emigrate to the United States is not relevant to a determination under the Hague application. The documents provided by the maternal grandmother, who resides in the United States, appear to show that the mother may apply to enter the United States. The second document notes at the end that "The approval of this visa petition [by maternal grandmother] does not in itself grant any immigration status and does not guarantee that the alien beneficiary [mother] will subsequently be found to be eligible for a visa for admission to the United States." The father is concerned that the mother has not definitively answered whether she has made any application to enter the United States, even though she says she has no plans to move there at this time. On the basis of the evidence provided, I am unable to make a finding regarding whether or not the mother will be moving to the United States. Again, however, a potential future move is not a relevant consideration in the determination of a Hague application. The Hague Convention directs that, absent a defence being made out, a child is to be returned to the state of his habitual residence. There is no dispute that Peru is the state of his habitual residence. Whether the mother in the future can move with the child to the United States is for the court dealing with custody to decide.
3.4(e): Has Father Met the Onus?
41 I find that, although the father has shown some evidence in support of his position that there was consent or acquiescence on the part of the mother -- for instance, her gift of clothing and teabags for the child; and her e-mail of 14 July 2010 about the child's one day understanding why he and his mother cannot be together -- he has not met the onus of demonstrating "clear and cogent" evidence of "unequivocal" consent or acquiescence.
42 The mother's many, emotional e-mails pleading for the return of her son and her fear that she will never see her son again support her position that the removal was not meant to be permanent. And although I agree that some of the e-mails can be read as either the child be returned to Peru for a visit, or returned permanently, they are sufficient to keep father's case from reaching the standard of "unequivocal."
43 The e-mails are also sufficient to prevent the father from demonstrating the exception to the test of acquiescence, that mother's actions or words are inconsistent with the summary return of the child.
44 There is that period of time from the removal on 12 March 2010 to the e-mails beginning in July 2010 where it is not clear whether the mother asked for the return of the child or not. The mother deposes she did, the father, supported by paternal grandmother, deposes that she did not. I am unable to make a credibility finding on this point on the competing affidavits, but I find that this three-month period where mother may not have made a request for the child's return does not constitute "a consistent attitude of acquiescence over a significant period of time."
45 I further note that, in all the case law provided by both of the parties, the person who had removed the children was the children's primary caregiver. In the case at bar, the person who removed the child was the access parent. Thus, the issue of what is being consented or acquiesced to here is not just a change in residence but also a change in the primary caregiver. Although this observation does not change the legal test, it militates in favour of applying the legal test strictly.
4: ORDER
46 Order to go as follows:
The child, Aaron Bradley Gallardo MacDonald (also known as Aaron Bradley MacDonald Gallardo), born on 3 July 2008, shall forthwith be returned to Peru in the care and control of his mother Maria Elizabeth Gallardo Bazan.
The father's consent for the child's travel to Peru is dispensed with.
The court shall release the child's passports to the applicant mother forthwith.
Previous orders of this court preventing the child from leaving the Region of Peel or Toronto are rescinded.
Police Officers in the Region of Peel, City of Toronto, the O.P.P., the R.C.M.P. and officers of any other law enforcement agency having jurisdiction are directed and authorized to enforce this order, if requested, and in doing so may enter any place, including a dwelling place, where they have reasonable and probable grounds to believe the child is located.
Court administration is directed to take out this order forthwith.
47 Submissions as to costs may be made in writing within 20 days.
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