J.M.S. v. G.F.S.L., 2011 ABQB 520

Court of Queen ’ s Bench of Alberta Citation: J.M.S. v. G.F.S.L., 2011 ABQB 520 Date: 20110818 Docket: FL03 27532 Registry: Edmonton In the Matter of the International Child Abduction Act , R.S.A. 2000, c. I-4 Between: J.M.S. Applicant - and - G.F.S.L. Respondent Corrected judgment: A corrigendum was issued on August 25, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction

[ 1 ] This is an application by the Applicant father under the Hague Convention On The Civil Aspects of International Child Abduction (the “ Hague Convention ” ) which has been enacted and adopted in Alberta by the International Child Abduction Act, R.S.A. 2000, c. I-4 . [ 2 ] The Applicant father is a resident of Clifton, New Jersey, U.S.A. He is in attendance in Edmonton for this application. The Respondent mother now resides in Edmonton, Alberta with the son of her marriage to the Applicant, M.S., born December 24, 2009. [ 3 ] The Applicant seeks the return of the child with him to Clifton, New Jersey.

He says that the Respondent has wrongfully retained the child in Alberta. The Respondent says that she left the United States, returned to Canada and retained custody of the child with the consent or acquiescence of the Applicant. [ 4 ] The Applicant is represented by counsel. The Respondent is unrepresented at this time though she had been represented by counsel until very recently. II. General Background [ 5 ] The Applicant and Respondent met in Edmonton, Alberta on October 10, 2007. The Applicant was a U.S. citizen, living in Arizona at the time and working for his father.

The Respondent has always been a Canadian citizen and was living in Edmonton. [ 6 ] Shortly after the parties met, the Respondent moved with the Applicant to his home in Arizona. They were married on July 30, 2008. [ 7 ] In August 2009, the Applicant and Respondent moved to Clifton, New Jersey and their child, M.S., was born on December 24, 2009. [ 8 ] On July 13, 2010, an “ Order of the Immigration Judge ” was issued which provided that the Respondent was subject to removal from the U.S. but had made an application for a voluntary departure in lieu of removal.

The Order then provided, in part, that: IT IS HEREBY ORDERED that the Respondent be GRANTED voluntary departure in lieu of removal, without expense to the Government on or before 11/10/2010 or any extensions as may be granted ... [ 9 ] On October 30, 2010, the Applicant drove the Respondent and their child to Toronto, Canada. On October 31, 2010, the Respondent and the child took a bus from Toronto to Edmonton. [ 10 ] The Respondent has indicated that she will not be returning to the United States nor will she voluntarily return the child to the Applicant in the United States.

She says that the Applicant agreed that she could take the child to Canada and remain there with him. She further states that a criminal record prohibits her from returning and the Applicant knew this when she left on October 30. The Applicant says that there was never any such agreement and that the Respondent had agreed to return to the United States within two months or, if she did not do so, arrangements would be made for the child to return to the Applicant in the United States.

He also says that he never knew that the Respondent had a criminal record that would prevent her return to the United States. [ 11 ] The Respondent has also advised the Court that she will soon be entering the Poundmaker Lodge in Edmonton for treatment of addiction issues. She anticipates that her program will begin in two to three weeks and she will remain there, receiving treatment and counselling, for a period of 42 days.

[12] Additional facts and allegations contained in the affidavits will be referred to below with respect to specific issues. III. Procedure [13] The Applicant issued an Originating Application on May 6, 2011. It alleges that the Respondent has wrongfully removed thechild from his habitual residence without the consent or acquiescence of the Applicant who had, and was exercising, rights of custody atthe time of the removal.

The Applicant seeks an order directing the return of the child to the U.S.A. and whatever other orders may benecessary to effect that return. [14] This matter has been case managed by Justice A. Moen. On May 6, 2011 an ex parte Order was obtained by the Applicantallowing for service of the Originating Application and his supporting affidavit of April 29, 2011 on the Respondent.

It further providedthat upon service of the Order, the peace officer shall obtain the passports of the child and the Respondent and convey those passports tothe Clerk of the Court. [15] On June 30, 2011, Justice Moen granted an Order directing that this matter be heard in a Special Chambers hearing duringthe week of August 15, 2011.

She further directed that the Respondent’s affidavit be filed and served by July 5, 2011 and the Applicant’sreply affidavit be filed and served by July 19, 2011. [16] By Order of July 29, 2011, Justice Moen granted leave to the Respondent to file one further affidavit no later than August 8,2011 in response to statements made in the affidavit of N.V., the Applicant’s sister, of July 20, 2011. [17] The only evidence before the Court in this application were the affidavits of the Applicant sworn on April 29, 2011 and July14, 2011, the affidavits of the Respondent sworn on July 4, 2011 and August 2, 2011 and the affidavit of N.V. sworn on July 20, 2011. [18] The Hague Convention requires that these applications be handled as expeditiously as possible.

Evidence is generally byaffidavit alone. Cross-examinations on affidavits are not usually permitted and in this case did not take place. IV. Discussion A. The Hague Convention [19] The

preamble to the Hague Convention sets forth its purpose as being to protect children from the harmful effects of theirwrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence. (Also seeThomson v. Thomson (SCC), [1994] 3 SCR 551 at para. 1). The following Articles are considered in this application: [20]

Article 1 of the Hague Convention sets forth the following objects of the Convention: (

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the otherContracting States. [21]

Article 3 provides that:

The removal or the retention of a child is to be considered wrongful where: (

a) it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and (

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. [ 22 ]

Article 5 provides that for the purposes of the Convention : (a) “ rights of custody ” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child ’ s place of residence ... [ 23 ]

Article 13 of the Convention provides that the requested state is not bound to order the return of the child if the person who opposes the return establishes that: (

a) the person ... 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. B. Preliminary Issues [ 24 ] The real issue in this case is whether there has been a wrongful retention of the child by the Respondent mother in Canada. I will consider some of the other issues relevant to such applications only briefly. 1. Is the United States a Contracting State under the Hague Convention and is the child under the age of 16? [ 25 ] The requesting state, the United States, is a contracting state under the Hague Convention .

The child is under the age of 16 years. 2. Was the child habitually resident in the United States at the time of his removal and retention? [ 26 ] To determine the child ’ s habitual residence, the Court looks at whether the child ’ s presence in a particular place was for a greater part of the period in question.

It is a question of pure fact and does not depend upon the presence in a place for a long period or a short period but only whether it was for the greater part of the relevant period. [ 27 ] It is not in dispute that the child was a resident in Clifton, New Jersey from the time of his birth on December 24, 2009 to the date of his departure for Toronto on October 30, 2010. He was not only a resident for part of that period but he was a resident for the entire period.

Even if it could be argued that the intention to remain in New Jersey was not a “ settled intention ” after the Respondent received the Order of the Immigration Judge on July 13, 2010, the child was still an habitual resident for a greater part of the period following his birth to the time of his departure.

[ 28 ] The child was habitually resident in the United States at the time of his removal on October 30, 2011. 3. Were there existing rights of custody relating to the child in the United States? [ 29 ] The onus is on the Applicant to establish that he has custody rights at the time that the child was removed. [ 30 ] The Applicant and the Respondent were cohabiting as man and wife immediately prior to the removal of the child by the Respondent on October 31, 2010. To that point in time, there had been no custody order in place nor any agreement respecting custody.

Neither were necessary as the parents were still cohabiting as spouses and as parents to the child. They each had obligations to care for the child and they each had rights relating to his care and his place of residence. [ 31 ] I am satisfied on the facts before the Court that the Applicant did have a right of custody to the child in the United States at the time of his removal and retention, as contemplated by

Article 3 of the Convention. . 4. Was the Applicant exercising a right of custody at the time of removal? [ 32 ] There is no allegation by the Respondent that the Applicant was not exercising a right of custody at the time she removed the child from the United States. C. Did the Applicant Consent or Acquiesce to the Respondent ’ s Retention of the Child? [ 33 ]

Article 13 of the Convention provides that a requested state is not bound to order the return of the child if the person who opposes its return establishes that: (

a) the person ... 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. [ 34 ] The generally accepted approach in considering

Article 13(

b) is set out in Re A. (A Minor) (Abduction) , [1988] 1 FLR 365 (Eng. C.A.), where Nourse L.J. stated at p. 372: ... the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm.

That, as it seems to me, is the effect of the words ‘ or otherwise place the child in an intolerable situation ’ . ( Thomson at para. 80 ) [ 35 ] It can be expected that a child would suffer some psychological harm in being removed from his mother ’ s custody and placed into that of his father. However, this is not the harm necessary to invoke

Article 13(

b) which contemplates harm to a degree that also amounts to an intolerable situation. There has been no suggestion or allegation by the Respondent of any grave risk to the child if he were to be returned to the Applicant in the United States.

[ 36 ] The main issue to be decided then is whether the Applicant had consented to, or subsequently acquiesced, to the retention of the child by the Respondent in Canada, as contemplated by

Article 13(a). If he did, then there has been no wrongful retention by the Respondent. [ 37 ] The Applicant says that the Respondent made plans to travel to Edmonton in the fall of 2010 to visit her mother who was having medical issues at that time. They agreed that the Respondent would only stay in Edmonton temporarily and she would take their son for the visit. He says that they further agreed that if the Respondent needed to stay longer than two months, arrangements would be made for their son to return to the Applicant in the United States.

The Applicant alleges that the Respondent informed friends, family and doctors in the United States that she and the child would be returning after two months. [ 38 ] The Respondent denies ever agreeing to return the child and says that the parties agreed that she would continue to care for the child and that eventually the Applicant would join them in Canada. She says that they discussed his moving to Canada and getting a job. She always believed that he would do so and they would live together in Canada. [ 39 ] On October 30, 2010, the Applicant drove the Respondent and child to Toronto.

He says that the Respondent assured him that she would return within the agreed upon two-month time frame or would allow the child to return if she decided that she needed to stay longer with her mother. About two weeks after the Respondent left for Edmonton, she informed the Applicant that she would not be returning to the United States and that she would not return their son. [ 40 ] The Respondent says that the Applicant always knew that the Respondent was in the U.S. illegally and would be unable to return.

Accordingly, there was no reason why she ever would have agreed to return with the child after two months as the possibility simply did not exist. [ 41 ] On July 13, 2010, an Order was granted by an Immigration Judge allowing the Respondent ’ s voluntary departure in lieu of removal, on or before November 10, 2010.

The Respondent deposes that the Applicant had full knowledge of the Order and she refers to some email correspondence between the parties on September 14, 2010 wherein the Applicant wrote: It could be worse, I just know you will be leaving me soon and I want to spend as much time with you guys as possible. In response to that email, the Respondent wrote: ...as soon as we get everything figured out once I am there we will all be together again...very soon. I am not going to waste anytime about that once I get there.

I ’ ll have us a place and everything set up for you there as soon as I can!! [ 42 ] The Applicant states that this email chain is incomplete and does not include some of his responses. He is unable to access the responses himself because they were sent to his place of employment where he no longer works. He does say that it “ was never an option ” for him to move to Canada. [ 43 ] The Applicant says that he was unaware of the Respondent ’ s immigration status. He did not know prior to her leaving for Canada that the Respondent could not return to the United States and questions the accuracy of her statement.

She had repeatedly stated to him and other family and friends that she did not want to return to live in Canada. He posted a $5,000 bond for her to be able to stay in the United States after she was detained by immigration. He says that this would never have been necessary had she planned on returning to Canada or planned for the two of them to move there together. [ 44 ] Further, the Respondent ’ s lawyer in the United States had indicated that as long as she took certain steps in Canada, she would not have any problems re-entering the United States.

Attached to the Applicant ’ s affidavit are copies of email exchanges between

the Respondent and her U.S. lawyer. In discussing whether she should agree to an order for voluntary departure, her lawyer wrote to her on June 27, 2010 stating: ... if you get voluntary departure, you will have to admit that you entered illegally as you claimed to the officer according to his report ... which may affect your future.

Under the assumption you admit you entered illegally, it will have no effect on your future as long as that was your first entry to the U.S. and that all future entries are well documented as legal . ... (emphasis added) The Respondent then replied on June 28, 2010 indicating that she did “ not want to defend any longer ” and asking for a voluntary departure without a hearing. She then questioned how this would affect her future.

Her lawyer responded on June 29, 2010 stating: If you come to the U.S. the legal way with a passport etc., I see no problems but problems depend on application of laws, changes in the law, or

interpretations of the law in the future. Getting ordered deported will cause problems but being granted a voluntary departure ... will not cause the problems associated with being ordered deported . You may have unlawful presence issues and that problem can be solved with a waiver in Canada in the government ’ s discretion. (emphasis added) [ 45 ] Finally, on the day before the Respondent left for Canada, the Applicant went with her to the immigration office to obtain the paperwork necessary for her to have completed so as to return to the United States.

Again, he says this would have been unnecessary had the intention been for her to remain in Canada. [ 46 ] In answer to an allegation by the Respondent that he was aware of her being advised by an immigration officer at the border on October 30, 2010 that she would not be granted re-entry into the United States for 10 years as a result of her criminal record, the Applicant says that he never heard anything along those lines and after she returned from a private meeting with an immigration officer at the border, she returned to say that everything was “ fine. ” She only said that she needed to get some papers signed by someone at the U.S.

Consulate in Canada. [ 47 ] The Applicant says that it was always understood that it might take a little longer than two months in Canada for the Respondent to accomplish all of what she intended but if that were the case, the child would be returned within two months as he had medical treatments to follow. The Applicant attaches to his response affidavit a medical progress note dated October 29, 2010 which includes the following comments: 10-week followup with mom and dad.

Mom reports that they are moving to Canada tomorrow and today will be their last visit . [M.S.] was seen for exit photos, measurements, and Digital Surface Imaging. Mom is pleased with [M.S. ’ s] progress at this time. She is aware that [M.S.] does leave with residual cranial vault asymmetry. Mom would like to continue with a 2 nd DOC Band once they return from Canada . Final growth adjustment was given. Parents know to remove the band in 2 weeks. Mom will call when they return to the United States , to continue treatment with the 2 nd band.

Currently, [M.S.] is exited from band treatment. (emphasis added) [ 48 ] The Applicant states that he was advised by their doctor, in the presence of the Respondent, that the treatments for the child were to be concluded before he turned 18 months old. [ 49 ] The Applicant also points out that when the Respondent left for Canada, she packed very little clothing for herself and the child, as though she were going on only a short trip. She left most of her belongings in the United States and did not take any photo albums, personal jewelry or keepsakes that one would be expected to take if moving away.

Her mail still goes to her home in New Jersey. [ 50 ] The evidence of the Applicant is supported by the affidavit of his sister, N.V. N.V. says that she spoke with the Respondent in August or September 2010 and was told that she would be taking a trip to Canada because her mother was ill and the Respondent was concerned about her care. She says that the Respondent also indicated that she wanted her family to meet the child and that she would be visiting in Canada for a month or two.

In responding to N.V. ’ s affidavit, the Respondent simply indicates that N.V. does not refer to the fact that there was an order requiring her to leave the United States.

[ 51 ] Applications involving the custody of children where both parents reside in the same jurisdiction are determined on the basis of a consideration of the best interests of the child. In an application under the Hague Convention , however, the Court must determine whether the child was wrongfully removed from the habitual residence or wrongfully retained by the abducting parent in the requested state. [ 52 ] The removal of a child is not wrongful if it is done with consent.

However, where the removal has been consented to, but only for a limited time, the retention of the child beyond the time period consented to is without consent. That is, a wrongful retention begins from the moment of the expiration of the period of access where the original removal was with the consent of a rightful custodian of the child ( Thomson at para. 74 ). [ 53 ] The onus is on the Respondent mother to establish an exception under

Article 13(

a) based upon the consent or acquiescence of the Applicant for the removal and the retention of the child. In this case, no clear precise date for the return of the child to the United States (his habitual residence) was ever agreed upon between the Applicant and the Respondent. However, if the Applicant ’ s submissions are to be accepted, then the return of the child was to be within two months of the Respondent ’ s departure from the United States and it is now clearly beyond that time.

The Respondent does not object to the child visiting with the Applicant in New Jersey but believes the child should then simply be returned to her. [ 54 ] The Respondent must establish the Applicant ’ s consent or acquiescence on a balance of probabilities. There must be clear and cogent evidence of unequivocal consent or acquiescence by the Applicant to the continued retention of the child by the Respondent in the requested state (Canada).

While the evidence must be clear, it may also be inferred from the actions of the parties. [ 55 ] The Respondent has not submitted any documentary evidence supporting her position that she cannot return to the United States either temporarily or permanently. Her counsel indicated in email correspondence that he saw no problems in her return if she did so “ the legal way with a passport etc. ” There is no indication as to whether she has attempted to comply with the legal steps necessary in order to return.

She has also not produced any documentary evidence to support her position that the Applicant knew that she could not return to the U.S. [ 56 ] While the medical progress note of October 29, 2010 indicates that the Respondent reported that they were moving to Canada the next day and that that would be their last visit, the note later confirms that the Respondent would like to continue with a treatment once they returned from Canada and that she would call when they did so.

These comments appear contradictory and I cannot say that they unequivocally support either the Respondent ’ s position or the Applicant ’ s position. However, there is no evidence of any steps taken to transfer the child ’ s medical records to Canada and given the particular condition from which the child suffers, one would have expected immediate steps to be taken to effect such a transfer, especially given that certain treatments were necessary within a few months. [ 57 ] Additional support for the Applicant ’ s position is found in the manner in which the Respondent prepared to come to Canada.

She seemingly only took enough clothes for a short visit and left most of her and the child ’ s belongings in the United States. She also left other personal items, such as photo albums, jewellery and keepsakes, that one would have expected her to take if she were planning a permanent move.

While the Respondent says she could not take much more as she had a large suitcase, a stroller and, of course, the child, there does not appear to have been any steps taken by her to retrieve those items or have them sent to her. [ 58 ] In considering all of the evidence submitted by the Applicant and the Respondent, it is my view that

Article 13(

a) of the Hague Convention does not apply. That is, the Respondent has failed to establish on a balance of probabilities that the Applicant had consented to or acquiesced to the retention of the child by the Respondent in Canada. V. Conclusion [ 59 ] The Respondent has failed to satisfy me on a balance of probabilities that the Applicant consented to the retention of the child by the Respondent in Canada beyond a period of about two months. The continued retention of the child by the Respondent is wrongful. [ 60 ] The child ’ s habitual residence was in the State of New Jersey, in the United States. The Courts of that jurisdiction are entitled

to consider issues relating to the child such as custody and access. The parties have lead some limited evidence on the merits regarding custody. I considered that evidence only in the context of

Article 13(

b) as the evidence is more properly relevant to the issues to be determined by the Courts in New Jersey. [ 61 ] Accordingly, there will be an order for a return of the child to New Jersey. I am, however, concerned about ensuring that the parties proceed expeditiously towards a determination by the New Jersey Courts of the best interests of the child and further ensuring that the means are available to ensure compliance with whatever orders might be issued by Courts of that jurisdiction. Accordingly, this return order is subject to the following conditions and undertakings: 1.

The Applicant may take the child back to New Jersey at any time after August 21, 2011. 2. The Applicant shall bring an application before a Court of competent jurisdiction in New Jersey for a determination of rights of custody and access as between the parties, such an application to be scheduled at a date and time convenient to the Respondent. 3. If the Respondent is able to attend in New Jersey for the application, the Applicant shall pay the cost of her return airfare in advance of the application and will provide his undertaking to do so. 4.

If the Respondent is not able to attend in New Jersey for the application, she may attend by video conference, or telephone conference, in her discretion and subject to the direction of the New Jersey Court and the Applicant shall pay any costs associated with such attendance. 5. A letter shall be provided by counsel for the Applicant for review by the Court in New Jersey confirming that the return of the child pursuant to this direction does not impact on the determination of the custody rights of either the Applicant or the Respondent. 6.

Counsel for the Applicant shall remain on record as counsel for at least one year and the Respondent may effect service of any documents on the Applicant by serving counsel while she remains on the record. 7. Counsel for the Applicant shall provide a letter to Legal Aid in Alberta seeking assistance for, and supporting the application of, the Respondent for legal aid assistance in addressing the substantive issues of custody and access in New Jersey and in addressing the immigration issues facing the Respondent. 8.

The Applicant shall file a written undertaking to comply with all orders issued by any Court of competent jurisdiction regarding the child. [ 62 ] The Applicant is awarded costs of $1,000 and disbursements of $500. These amounts are not payable by the Respondent until the distribution of matrimonial property and shall be set off against the distribution made to the Respondent. Delivered orally on the 16 th day of August 2011. Dated at the City of Edmonton, Alberta this 18 th day of August 2011.

Eric F. Macklin J.C.Q.B.A. Appearances: Patricia Hebert for the Applicant G.F.S.L. self-represented _______________________________________________________ Corrigendum of the Oral Reasons for Judgment of The Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ Paragraph no. 46 was corrected to read: [46] In answer to an allegation by the Respondent that he was aware of her being advised by an immigration officer at the border on October 30, 2010 that she would not be granted re-entry into the United States for 10 years as a result of her criminal record, the Applicant says that he never heard anything along those lines and after she returned from a private meeting with an immigration officer at the border, she returned to say that everything was “ fine. ” She only said that she needed to get some papers signed by someone at the U.S.

Consulate in Canada.