DEPORTATION COMPLICATES CUSTODY OF MINOR CHILD

The case below illustrates the complexities of allowing child custody to interfere with immigration law. Note that the mother was in Canada without status for a very long time and that she managed to delay deportation for over a decade even after she was ordered deported. lost her claims, reviews and every proceeding, and was even charged with a criminal offence that triggered her most recent detention.

M.A.W. v. J.A.W.

Between M.A.W., Applicant, and
J.A.W., Respondent
The Minister of Public Safety and Emergency Preparedness,
Interested Party

[2013] O.J. No. 456

2013 ONCJ 34

Court File No. D53955/11

 Ontario Court of Justice
Family Court - Toronto, Ontario

S.B. Sherr J.

Heard: January 28, 2013.
Judgment: January 31, 2013.

(52 paras.)

---

REASONS FOR DECISION

S.B. SHERR J.:--

Part One - Introduction

1     The parties have one child together (the child), a daughter, who is five years old.

2     The respondent (the mother) is subject to a deportation order to Jamaica. She seeks orders for: sole custody of the child, that the father have reasonable access to the child on reasonable notice (whether she resides in Canada or Jamaica), child support, and dispensation of the father's consent for her to obtain travel documents for the child and for her to travel with her outside of Canada.

3     The applicant (the father) brought an application seeking sole custody of the child and an order that the child not be removed from Canada (a non-removal order). In his opening statement, he changed that position to ask for joint custody of the child, with specified access to himself and a non-removal order. By his closing statement, the father was agreeable to orders that: the child reside with the mother, whether in Canada or Jamaica; he would have reasonable and generous access to the child in either country on reasonable notice (non-specified access) and he would pay child support of $400 per month to the mother.

4     In her closing submissions, the mother was agreeable to an order that the father pay child support of $400 per month, starting on February 1, 2013. She opposed the father's request for a joint custody or a non-removal order.

5     The Minister of Public Safety and Emergency Preparedness (the Minister) was added on consent as an interested party, was permitted to participate in the trial and make full submissions. The Minister's intention is to deport the mother to Jamaica shortly after the conclusion of the trial. The Minister opposes any order for specified access or that prevents the child's removal from Canada as such orders may legally interfere with the Minister's plan to deport the mother.

6     By the end of the trial, the remaining issues were:

 

·        a) 

Whether the court should make a sole or joint custody order. 

·        b) 

Whether the court should make a non-removal order. 

·        c) 

Whether the court should dispense with the father's consent for the mother to obtain travel documentation for the child and for her to travel with the child outside of Canada. 

Part Two - Background facts

7     The mother is 44 years old and lives in Toronto, Ontario with the child and a 19-year-old child from another relationship. The mother was born in Jamaica and came to Canada in 1998. She has lived in Canada since then. The mother has a third child, age 15, who has been raised by her relatives in Jamaica. The mother owns and runs a hair salon in Toronto.

8     The father is 47 years old and lives in Brampton Ontario. He is a Canadian citizen. The father has seven children (including the child) from four different mothers. He is divorced and single. Two of his grown children live with him, together with one grandchild. The father works full-time at a car wash and has worked part-time as a music producer.

9     The parties had an off/on relationship from 1999 until 2006. They never cohabited or married.

10     The child is a Canadian citizen.

11     The parties agreed that the father has always financially supported the child. Recently, they orally agreed that the father would pay the mother $400 per month for child support.

Part Three - Mother's immigration status

12     It is highly unlikely that this case would have come to court if not for the risk of the mother being deported. The father testified that he has not been involved in court proceedings with any of the mothers of his other children. He issued this application because he was concerned about the child's welfare if the mother was deported to Jamaica.

13     The mother does not have legal status in Canada. She was arrested and detained by the Canada Border Service Agency (CBSA) in October of 2001. In May of 2002, she made a refugee claim and was issued a conditional deportation order. In October of 2003, her refugee claim was denied. Her application for leave for judicial review was denied in January of 2004. The mother's application for a pre-removal risk assessment was denied in December of 2004. In January of 2006, the mother submitted an application to remain in Canada on humanitarian and compassionate grounds (H and C application). In October of 2007, the mother was arrested again by the CBSA, but was released because the child was sick. Shortly after, she was served with a direction to report for deportation. The mother then submitted a request for deferral of her removal based on the medical needs of herself and her children. This was denied. In November of 2007, the mother brought a motion for a stay of her removal. This was dismissed. On November 2, 2007, the mother failed to report for removal and an arrest warrant was issued. The warrant was not executed until May 1, 2011 (at a routine traffic stop) and the mother was placed in detention.

14     The father applied for custody of the child on May 11, 2011, while the mother was in detention.

15     The mother was released from detention on June 7, 2011. On September 21, 2011, she was charged with assault with a weapon and uttering a threat to cause death or bodily harm. The mother's removal to Jamaica is currently stayed pursuant to section 50 of the Immigration and Refugee Act (Canada) due to these outstanding criminal charges. The Minister plans to ask the Crown to stay the charges to permit them to proceed with the mother's removal from Canada.

16     On January 25, 2012, the mother's H and C application was refused.

17     The Minister agreed to defer the mother's removal from Canada until after the completion of this hearing. The Minister is not prepared, subject to court order, to defer her removal from Canada any further.

18     The mother has applied for judicial review of the refusal of her H and C application and this application is scheduled to be heard by the Federal Court of Canada on February 21, 2013.

Part Four - Primary residence

19     The mother has been the child's primary caregiver since birth. The child has thrived in her care. She has responsibly taken care of the child's physical and emotional needs. The child was described as smart and happy. She has a very close relationship with her mother and her older sister. The evidence indicates that the child is safe and secure in the mother's care.

20     The mother testified that it would be in the best interests of the child if both of them could continue to live in Canada. She believes that the child would have a better future here. Her plan for the child, if she is deported to Jamaica, remains murky. She is unsure where she could afford to live. She is worried about a former violent boyfriend learning that she has returned to Jamaica and will want to live far away from where he might be (she testified that her fear of him and his associates is the reason she initially fled from Jamaica). If required to return to Jamaica, she hopes to be able to open a hair salon and rent an apartment for her and her children. She has made no specific arrangements for any of this.

21     The mother testified that the child has a close relationship with her father and is very sad about the possibility of moving away from him. It appears it will be very difficult for the child if the mother is deported and she moves with her to Jamaica. Canada is the only home the child has ever known and she would be separated from her family and friends.

22     The mother testified that, even with the deficits involved in moving to Jamaica, it would still be in the child's best interests to reside with her, as she has been the parent who has always provided for her needs and the child has a closer bond with her than with the father. She strongly believes that it is best for the child to live with her, wherever that may be.

23     The father testified that he preferred that the child live with the mother, whether she lived in Canada or was deported to Jamaica. He said that young girls should be with their mothers. He agreed that the mother should arrange for schooling and medical care for the child if she is deported. He agreed that the child was doing well in the care of the mother. He testified that he can't take the child by himself on a full-time basis.

24     The court finds that it is in the best interests of the child to live with the mother, whether she lives in Canada or is deported. The court is satisfied that the mother will be able to positively parent the child if she is deported to Jamaica. She is fully committed to the child and selflessly looks after her best interests. She has proven to be resourceful and the court is satisfied that she will be able to financially support the child, ensure that her medical and developmental needs are met, and that she is kept safe.

Part Five - Access

25     The child sees the father frequently, including most weekends. She also enjoys telephone access with him. The father is an important part of the child's life. The parties agreed that they have, for the most part, been able to work out access arrangements between them.

26     The mother testified that she would facilitate access to the father, whether she lives in Canada or in Jamaica. She is agreeable to permitting the father contact with the child by Skype and by telephone if she is in Jamaica. She said that she would facilitate access for the father in Jamaica on reasonable notice. She expressed some concern that the father might try and take the child back to Canada if she gave him unsupervised access.

27     The father testified that if the mother is deported he will make arrangements to visit the child in Jamaica. He agreed that the child is too young to travel to Canada to see him at this time.

28     The parties both submitted (in closing submissions) that they would prefer a final access order that was flexible and worded as "reasonable access on reasonable notice, whether in Canada or Jamaica". The court is content that such an order is in the best interests of the child. The evidence indicates that a specified access order is not required. It is highly unlikely that the issue would have even been before the court, if not for the possible deportation of the mother. The reality is that the mother may be removed shortly from Canada, and the court should not make a specified access order just to frustrate the deportation process, when the terms of access are not in dispute (see my comments in Canabate v. Ayala 2010 ONCJ 54, paragraphs 58-60 and Ffrench v. Williams, 2011 ONCJ 406), paragraphs 119-123.

Part Six - Child support

29     At the start of the trial, it appeared that child support would be a contentious issue. The father was maintaining that he was only earning $15,000 per annum and the mother was maintaining that his income was much higher. The analysis was complicated by the fact that the father was in serious breach of multiple financial disclosure orders, hadn't updated his financial statement since April of 2012 (despite court orders) and hadn't provided satisfactory documentation of his financial affairs.

30     As the evidence unfolded, the mother agreed that the father had always supported the child to the best of his ability. The mother believed that the father would continue to do so. The parties agreed that the father historically gave the mother support somewhere in the range of $400 per month. They both testified that they had orally agreed to have the father regularly pay this amount two months ago, and he was honouring this agreement. They agreed that there should be an order that the father continue to pay this amount on an ongoing basis.

31     It is necessary to fix the father's annual income at $44,300 to correlate with a child support guideline table payment of $400 per month. The evidence supports making such a finding as:

 

·        a) 

The father works full-time (40 hours each week) at a car wash earning $13.23 per hour. 

·        b) 

The father has worked part-time in the music business earning cash. There was inadequate disclosure of this cash income. 

·        c) 

The father owns and maintains three homes. He rents two of them. 

·        d) 

The father is able to help support five children (he also has two grown children who live with him). 

·        e) 

The father has been earning sufficient income to pay child support at close to this level in the past, despite his income tax returns showing marginal income. 

·        f) 

An adverse inference is drawn against the father for his failure to provide complete financial disclosure and comply with court orders. 

·        g) 

There was no evidence of any medical limitation that would prevent the father from earning this level of income. 

·        h) 

The father appeared to be intelligent and resourceful and capable of earning a comfortable income. 

·        i) 

The father has agreed that $400 per month is a fair amount to pay for child support and he has the ability to pay this to the mother. 

32     This leads to the issues that remained in dispute at the end of the trial.

Part Seven - Non-removal order

33     Presently, there is a temporary order that the child not be removed from Ontario. The father sought a continuation of this order. The mother opposed this.

34     The case law sets out that for the court to exercise its jurisdiction to make a non-removal order, there must be a genuine lis between the parties. The purpose of non-removal orders under the Children's Law Reform Act is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to immigration legislation, but to prevent parents from removing children from the jurisdiction in contested family law proceedings. Non-removal orders are not to be made lightly and must be carefully examined on their facts. See: J.H. v. F.A. 2009 ONCA 17; Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 2004 CanLII 19764 (Ont. S.C.J.).

35     The evidence is clear that there is no genuine lis between the parties with respect to the issue of non-removal. No evidence was led that either party has any intention of voluntarily removing the child from the jurisdiction, save and except through the operation of the deportation order itself. See: Martin v. Royal, 2012 ONCJ 202. In fact, the mother is fighting very hard to remain in Canada and has no desire to go to Jamaica with the child.

36     The temporary non-removal order will be terminated.

Part Seven - Custody

7.1 Legal considerations

37     The Ontario Court of Appeal in Kaplanis v. Kaplanis [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

 

·        1. 

There must be evidence of historical communication between the parents and appropriate communication between them. 

·        2. 

It can't be ordered in the hope that it will improve their communication. 

·        3. 

Just because both parents are fit does not mean that joint custody should be ordered. 

·        4. 

The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 

·        5. 

No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis. 

·        6. 

The younger the child, the more important communication is. 

38     Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy [2006] O.J. No. 1872 (Ont. C.A.).

39     Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. Griffiths v. Griffiths 2005 CarswellOnt 3209 (O.C.J.). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop, 2009 CanLII 6423 (Ont. S.C.J.).

40     Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. Geremia v. Harb 2008 CanLII 19764 (Ont. S.C.J.).

41     The Ontario Court of Appeal's decision in J.H. v. F.A., supra, makes it clear that it is not this court's function to deal with the mother's immigration issues. This court's sole focus is on the child's best interests. The issues raised by the Minister are factors to be considered by immigration officials and if necessary, the Federal Court of Canada. See: Canabate v. Ayala, supra.

42     In J.H and F.A. and The Minister Of Citizenship And Immigration And the Minister Of Public Safety And Emergency Preparedness 2008 CanLII 7748 (Ont. S.C.J.) wherein it is was suggested that the best interests of the child should be considered with the deportation of the mother in mind, the court wrote at paragraph 56:

 

·        Not every interest of the child can be satisfied in an order, so judges must evaluate the best interests of the child in the factual and legal circumstances before them and limit their orders to matters over which they have jurisdiction. 

43     Ultimately, the court must decide if a joint custody order is in the child's best interests and consider the factors set out in subsection 24(2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:

 

·        Best interests of child

 

·        (2) The court shall consider all the child's needs and circumstances, including, 

 

·        (a) 

the love, affection and emotional ties between the child and, 

 

·        (i) 

each person entitled to or claiming custody of or access to the child, 

·        (ii) 

other members of the child's family who reside with the child, and 

·        (iii) 

persons involved in the child's care and upbringing; 

 

·        (b) 

the child's views and preferences, if they can reasonably be ascertained; 

·        (c) 

the length of time the child has lived in a stable home environment; 

·        (d) 

the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; 

·        (e) 

any plans proposed for the child's care and upbringing; 

·        (f) 

the permanence and stability of the family unit with which it is proposed that the child will live; 

·        (g) 

the ability of each person applying for custody of or access to the child to act as a parent; and 

·        (h) 

the relationship by blood or through an adoption order between the child and each person who is a party to the application. 

7.2 Analysis

44     The Minister conceded (and the parties agreed) that there is a genuine lis with respect to the issue of whether the court should order joint custody to the parties or sole custody to the mother. Accordingly, the court must determine what order is in the child's best interests.

45     This is not a case where a joint custody order is required to preserve the father's relationship with the child. The mother appreciates the importance of the father's role in the child's life and has always facilitated their relationship. The court is satisfied that the mother would continue to do her best to facilitate the child's relationship with the father, even if she is deported to Jamaica.

46     The following evidence would support the father's claim for joint custody:

 

·        a) 

The parties have cooperated around access arrangements and have been flexible in changing them. 

·        b) 

Both parents have facilitated the child's relationship with the other parent. 

·        c) 

There have been no significant disagreements on major issues affecting the child. 

·        d) 

The father has financially supported the child. 

·        e) 

The child loves both of her parents and is thriving. 

47     Notwithstanding this evidence, the court finds that it is in the child's best interests to grant the mother sole custody of the child for the following reasons:

 

·        a) 

The evidence demonstrates that the mother has been the parent who has made the major decisions for the child. The father has shown no previous inclination to be involved with these decisions. He said that he plans to leave medical and schooling decisions about the child to the mother. His application for joint custody appears to be solely motivated by the mother's possible deportation and his fear of losing his relationship with his child. 

·        b) 

The mother has responsibly made major decisions for the child. 

·        c) 

The mother has always kept the father fully informed about major decisions for the child. Up until now, he has been content with this arrangement. 

·        d) 

The child has had some special medical needs. When she was younger, she had seizures that required hospitalization. This is now under control, but she often has breathing issues that require medical treatment. The mother has been the parent responsible for attending to the child's medical needs. 

·        e) 

The mother described her relationship with the father as very difficult at times. She said that he gets very argumentative and rude with her. The father was charged with assaulting the mother in 2012. I found the mother's evidence about their relationship credible. 

·        f) 

The mother said that the father has an alcohol problem. She says that a few times each year, he will call her up drunk. She says that she will withhold access from the father when he is in this condition. The father did not contradict this evidence. 

·        g) 

The father has, at times, demonstrated questionable judgment. The Peel Children's Aid Society was involved with the father in 2011 due to allegations of improper supervision of the child (the mother was in detention at the time). The father also spent time in jail in 2012 arising out of charges of drinking and driving and breach of condition. This reflects adversely on his ability to act as a parent. 

·        h) 

The father has demonstrated little regard for court orders in providing financial disclosure. He has also been difficult and obstructive in complying with undertakings given in his out-of-court questioning. This makes him a poor candidate for a joint custody order. 

·        i) 

The mother does not trust the father. She is worried that he is capable of absconding with the child from Jamaica. She feels this way because the father, on occasion, will act unilaterally and over-hold the child after access visits. She is also fearful because he aggressively opposed her taking the child to Jamaica until this trial started and he might change his mind again. 

·        j) 

The level of communication between the parties is not good enough to justify making a joint custody issue at this time. 

·        k) 

The father did not seem to appreciate what joint custody means. He seemed more concerned that any access order is enforceable and that he could be sure that his child was doing well. 

·        l) 

If the mother is deported to Jamaica, joint custody would not be workable with these parties, given the distance between them and the challenges in their relationship. It would not be in the best interests of the child to paralyze the mother from making decisions for her because the father might be unavailable or uncooperative. 

48     It is in the child's best interests that the father be consulted on any major issues about the child and to receive information from her school and services providers (if he wants such information).

Part Eight - Travel issues

49     The evidence indicates that it is in the child's best interests to grant an order dispensing with the father's consent for the mother to obtain travel documentation for the child, including passports, and to permit the mother to travel outside of Canada with the child for the following reasons:

 

·        a) 

The child must be able to travel with the mother if she is deported. 

·        b) 

The father has been resistant, up until the start of the trial, to the mother being able to take the child to Jamaica. There is a real possibility that he will shift his position again in the future and try to obstruct her from leaving Canada with the child. 

·        c) 

The father has not respected court orders. The court has little confidence that he would execute consents on a timely basis for the mother to obtain travel documents for the child or for her to travel with the child outside of Canada. 

Part Nine - Order

50     Cases like this are very difficult. In a perfect world, the child would be able to remain in Canada with her mother and continue her positive relationship with her father and his extended family. They are an important part of her life. However, this might not be possible. If the mother is deported, it will be very important that both parents make every effort to ensure that the child can maximize her contact with the father and his family.

51     A final order will go on the following terms:

 

·        a) 

The mother shall have sole custody of the child, whether she remains in Canada or is deported to Jamaica. 

·        b) 

The mother shall consult with the father about any major decision regarding the child. 

·        c) 

The mother shall execute any directions necessary for the father to speak to any school the child attends or any service provider for the child. 

·        d) 

The mother shall send the father copies of the child's report cards upon receipt. 

·        e) 

The father shall have reasonable and generous access to the child, on reasonable notice to the mother, whether the child resides in Canada or in Jamaica. 

·        f) 

If the mother resides in Jamaica, the father shall not remove the child from Jamaica without the written, notarized consent of the mother, or prior court order. 

·        g) 

If the mother resides in Jamaica, she shall ensure that the father can have Skype contact with the child, a minimum of twice each week and telephone contact, initiated by the father, a minimum of once each week. 

·        h) 

The mother may obtain all travel documentation for the child, including a passport, or a renewal of passport, without the father's consent. 

·        i) 

The mother may travel outside of Canada with the child without the father's consent. 

·        j) 

The existing order that the child not be removed from the Province of Ontario, dated December 12, 2011, is terminated. 

·        k) 

Based on a fixed income of $44,300 per annum, the father shall pay the mother the child support guideline table amount for one child of $400 per month starting on February 1, 2013. 

·        l) 

The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year. 

·        m) 

A support deduction order shall issue. 

52     If the mother chooses to seek her costs, she is to serve and file her written submissions by February 14, 2013. The father will then have until February 28, 2013 to serve and file any written response. Submissions are not to exceed three pages, not including any offer to settle or bill of costs.

S.B. SHERR J.

CHILD RETURNED TO MOTHER IN PERU AFTER CUSTODY FIGHT

A very interesting case involving the Hague Convention:

Gallardo Bazan v. MacDonald

Between Maria Elizabeth Gallardo Bazan, Applicant, and
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.

(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:

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:

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.

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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:

·       (a) 

the mother's Hague application, dated 4 March 2011; 

·       (b) 

the mother's affidavit in support of a claim for custody or access, dated 4 March 2011; 

·       (c) 

the mother's affidavit sworn on 4 March 2011; 

·       (d) 

the affidavit of Danielle Henderson (assistant to mother's counsel) sworn on 9 March 2011; 

·       (e) 

the father's responding affidavits sworn on 20 March 2011 and 23 April 2011; and 

·       (f) 

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:

·       (a) 

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; 

·       (b) 

paragraph 25 is argument; 

·       (c) 

paragraphs 38, 39, 40, 75 ought to have been provided in the mother's initial affidavit; 

·       (d) 

paragraphs 70-74 are not relevant; and 

·       (e) 

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: 

·       (a) 

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 

·       (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. 

·       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:

·       (a) 

Peru and Canada are signatories to the Hague Convention; 

·       (b) 

this application was brought within one year of the alleged removal; 

·       (c) 

the mother was exercising her custodial rights and the child was habitually resident in Peru at the time of the alleged removal; and 

·       (d) 

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:

·       1. 

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. 

·       2. 

The father's consent for the child's travel to Peru is dispensed with. 

·       3. 

The court shall release the child's passports to the applicant mother forthwith. 

·       4. 

Previous orders of this court preventing the child from leaving the Region of Peel or Toronto are rescinded. 

·       5. 

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. 

·       6. 

Court administration is directed to take out this order forthwith. 

47     Submissions as to costs may be made in writing within 20 days.