A.E.S. v. A.M.W., 2012 ABQB 753

Court of Queen’s Bench of Alberta Citation: A.E.S. v. A.M.W., 2012 ABQB 753 Date: 20121210 Docket: FL01 14264 Registry: Calgary Between: A. E. S. Applicant - and - A. M. W. Respondent Restriction on Publication: Identification Ban – See the Family Law Act ,

section 100. By Court Order, there is a ban on publishing information that may identify the child or guardians in this matter. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P. R. Jeffrey _______________________________________________________

[1] The father, AES, alleges that AMW, the mother of their child, has wrongfully retained the child here in Alberta, outside ofCalifornia where the father says he was or would have been exercising his rights of custody and access. [2] He applies pursuant to the International Child Abduction Act, RSA 2000, c I-4, to determine whether or not the child must bereturned to California, so that its Courts may determine the rights of the parents in respect of the child.

That statute gives force to andapplies within Alberta the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 UNTS 89, alsoknown as the “Hague Convention”. [3] These are my reasons for granting the father’s Hague Convention application and ordering the child’s return to California, plusmy decisions and reasons on two ancillary applications for leave to adduce fresh evidence that arose following the close of argument onthe Hague Convention application.

First Request for Leave to Adduce Fresh Evidence [4] Approximately 2 weeks after the conclusion of oral argument on the Hague Convention application and before its determination,AES supplied additional information that came to his attention from online searches a few days after conclusion of oral argument.

Heargued that the fresh evidence revealed that the Respondent misled the Court during oral argument on the application by concealing thatat the time she was employed in Naperville, Illinois. [5] AMW opposed the request on the basis that it would reveal privileged without prejudice communications and that, in any event,the fresh evidence was not relevant to the Hague Convention application.

Therefore, she argued, she was under no obligation to report itto the Court. [6] The parties were invited back to Court to argue whether or not leave would be granted to the Applicant to adduce the freshevidence. [7] The test to be applied is the four-part test from R v Palmer, (SCC), [1980] 1 SCR 759 at para 22. That testconsiders whether: (

i) with reasonable diligence the evidence could have been submitted within the original time; (ii) the evidence isrelevant in the sense that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible, that is, reasonably capable ofbelief; and (iv) if believed, the evidence, in conjunction with the other evidence, could reasonably be expected to have affected the result.It helps that the application was brought very soon after the hearing of and before a decision was rendered on the main application. [8] The fresh evidence was contained in communications exchanged between the parties before the hearing in July on the HagueConvention application.

The primary purpose of those communications was to broach the possibility of settlement. Those settlementcommunications are, of course, privileged. They cannot be disclosed without the consent of both parties. [9] However, the information that AES wished to have me consider was factual, not positional. AMW argues that it should not bedisclosed to the Court because AES first became aware of it during without prejudice communications. [10] Near the outset of the subsequent hearing on the fresh evidence application, I dismissed the argument that the fresh evidence wasprivileged.

Just because relevant information is contained in a communication that also contains a concession, or an admission, or anexpression of willingness to compromise, or a solicitor-client communication, or any other type of privileged communication, does notprevent its disclosure to the Court. Redacting is just one of the many methods of protecting confidential, private, or privilegedinformation, while ensuring that the Court has available to it all relevant factual evidence.

In any event, AES demonstrated to mysatisfaction that the factual information was also in the public domain, therefore no privilege that may have applied still applies. [11] At the time of the subsequent hearing, however, I did agree with AMW’s argument that the fresh evidence was not relevant to theissues in the Hague Convention application other than, potentially, to the issue of AMW’s credibility.

The fresh evidence related to herpart-time employment and the location of that employment, at the time oral argument on the Hague Convention application was heard,not at the time in question, i.e. of the alleged wrongful removal or retention.

[ 12 ] This Hague Convention application, however, turns on that – on whether the child was “habitually resident” in California “immediately before” his alleged wrongful removal from California or retention outside of California. In this case AES said that was around January 24, 2012, or approximately 2 or so weeks thereafter when AMW did not return to California with the child.

I do not consider AMW’s employment in July 2012, and the location of that employment, to be relevant to that issue, all other things being equal. [ 13 ] The possibility remained, however, that the fresh evidence was inconsistent with or contradicted other evidence from AMW before the Court at the time the Hague Convention application was argued. If true, the fresh evidence would be relevant to the credibility of AMW.

Furthermore, if true, AMW would have had been obligated to correct the record before the Court, and not remain silent while the Court continued misinformed. [ 14 ] It was left with AES following the argument on the fresh evidence application to supply me with any reference to the evidentiary record, that was before the Court at the time of arguing the Hague Convention application, that the fresh evidence contradicted or called into doubt.

That fresh evidence was, of course, well known to AMW and not disclosed to me at the time of the oral hearing on the Hague Convention application. [ 15 ] AES responded with references under cover of a letter dated October 25, 2012. Having now reviewed those references I do not admit the fresh evidence. [ 16 ] First, nothing has been provided to me to show any contradiction or inconsistency between the fresh evidence and the evidentiary record that was before the Court at the time of the oral hearing of the Hague Convention application. The fresh evidence did not contradict anything on the record.

At the time of the oral hearing of the Hague Convention application there was nothing before me that, if left uncorrected by the contents of the fresh evidence, would have resulted in me being misinformed. [ 17 ] Second, the Applicant alleges a contradiction between paragraph 8 of AMW’s (more recent) October 15, 2012 affidavit and the fresh evidence. I do not agree that this is a contradiction in her evidence.

Paragraph 8 of that affidavit states: After a failed attempt at some sort of mediation, I proceeded to negotiate a position for myself in Naperville, Illinois on a part-time basis with a large amount of flexibility. [ 18 ] The record on the fresh evidence application shows that settlement efforts ended July 17, 2012. It also shows that AMW’s license to practice in Illinois was issued on July 16, 2012.

The Applicant says that this contradicts the Respondent’s October 15, 2012 affidavit statement that after July 17 she “proceeded to negotiate a position…” since before that date she was already working on this prospect. He says she would have started procuring the license, for example, some thirty days prior. [ 19 ] AMW does not state, however, that after July 17 she “started” the process of pursuing a position in Illinois or that prior to July 17 she had “taken no steps” to pursue a position in Illinois. All she states is that she “proceeded to negotiate a position”.

In my view the wording she used is equally open to the

interpretation that she was pursuing that option while settlement was being discussed but took no steps to commit to that option and preclude settlement. After it appeared to her that acceptable arrangements would not be reached in the litigation, she then proceeded to finalize (commit to) employment by “negotiat[ing] a position”. Since her wording is open to either

interpretation I do not find that the contradiction that the Applicant alleges necessarily follows. [ 20 ] Therefore I conclude that the fresh evidence could not reasonably be expected to affect the result, failing the fourth branch of the test in Palmer , and I deny the Applicant’s application for leave to adduce the fresh evidence. Second Request for Leave to Adduce Fresh Evidence [ 21 ] I then received a further request to consider other information that was not available to me at the time of the hearing on the main application, the Hague Convention application. This time AMW brought the application and AES opposed.

[ 22 ] The information is a “Minute Order” of the California Court that denies AMW’s motion to quash AES’s summons on her. It was just rendered November 5, 2012 so was impossible to have been available July 31, 2012. [ 23 ] In California (the “ State ”) AMW attorned for the limited purpose of advancing the position that the California Court lacked personal jurisdiction over her. She moved to quash the summons. The California Court found that AMW had “sufficient contacts” within the State for her to be subject to its jurisdiction.

It went on to find, however, that it did not have jurisdiction over A, stating: The [California] Court also finds that the child ... has not spent sufficient time within the State of California to satisfy the UCCJEA to enable the State to have jurisdiction over him as a home state. The Court is therefore powerless to make any orders regarding the child. The Court also finds that there is no issue of community property or community debt alleged within the petition and the only real estate that may be of issue is located in the country of Canada.

Thus, the only aspect of this marriage that the court can decide is the status of the marriage. Clearly, the central and major issue to be decided within this dissolution is the custody of the child and visitation orders which brings the court to CCP 410.30 and the issue of convenience of this forum as the location to decide this dissolution. The present action in California was filed and served first; but, a second action has been filed and served in the Provence [ sic ] of Calgary, Canada and all the evidence presented indicates that it is the home state having jurisdiction over the child.

The California Court then denied the motion to quash the summons on AMW, but added: “before ordering [AMW] to enter a general appearance, on its own motion the Court sets this case for a motion to dismiss pursuant to CCP 410.30.” That is a reference to the California Code of Civil Procedure , Cal Civ Pro Code § 410.30(a) (“ CCP ”): (

a) When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just. [ 24 ] Thus it appears that, based upon the evidence then before it, the California Court harboured a preliminary view that the Alberta Court is better positioned to make the marriage dissolution decision(s), since it considered the “central and major issue” therein to relate to the custody and access to A.

It further appears that, subject to hearing from AES on the issue, the California Court stands favourably disposed to grant AMW’s quash request, just under a different

section of the CCP than the parties addressed. [ 25 ] The existence of the legal proceeding in California confirms information already before me properly, and which is not disputed, that AES has been pursuing his perceived rights of custody in his current jurisdiction. But that is the limit of the materiality of the Minute Order on the issues before me. [ 26 ] The content of the Order, if I did accept it onto the record and considered its content, would not be dispositive of the Hague Convention application. It could not even reasonably be expected to affect my decision on that matter.

The California ruling was rendered after A had been outside California since January 2012, the very event AES maintains was unlawful under the Hague Convention. The effect of the Hague Convention cannot be defeated in its breach, by unlawfully retaining a child outside of the jurisdiction of the child’s habitual residence long enough for that jurisdiction to lose in personam jurisdiction pursuant to its domestic law.

Further, I query whether, if AES remained within California the entire time AES says he was wrongfully detained out of California, the result on November 5, 2012 would have been the same. [ 27 ] The primary question before this Court is not which jurisdiction is (or was) better positioned to rule on the custody and access of A, but rather whether California was A’s habitual residence immediately before his removal or retention from California in early 2012. [ 28 ] It might be thought that this fresh evidence is relevant to an issue before me under the Hague Convention application, specifically as to whether AES had “rights of custody” in California at the critical time.

The fresh evidence does not inform that issue either. It may inform that issue as at November 5, 2012, but it is silent on that point as at late January to mid-February 2012, the critical time in respect of when AES alleges A was wrongfully removed or retained out of California. I say “ may inform that issue” because this allegedly relevant fresh evidence may not be admissible on still other grounds. The laws of a foreign jurisdiction and the effect of their application are questions of fact. Usually those are proven by expert evidence.

The Minute Order was not placed before me as expert evidence nor was it adduced in compliance with the requirements for doing so.

[ 29 ] Therefore, this application for leave to adduce fresh evidence also fails the fourth branch of the test in Palmer and the request to admit the new evidence onto the record for consideration in the Hague Application is denied. Hague Convention Application [ 30 ] The parties are both medical doctors and both specialists within that field. He is a cardiologist. She is a radiologist. The Applicant (“ AES ”) is Lebanese and now works in the USA as a permanent resident.

The Respondent (“ AMW ”) was born in Poland and is now a Canadian citizen, although in 2010 she also acquired permanent resident status in the USA. [ 31 ] They met while studying in the USA. They cohabited and then married, on October 20, 2006, in Connecticut. A son (“ A ”) was born to them while still in Connecticut, November 25, 2006. They separated in June, 2007. Up to that point AMW had been a radiology resident at a hospital in New Haven, Connecticut. [ 32 ] Over the years since their separation the parties continued to cooperate.

It appears this was driven in part by their mutual and mature desire, despite their differences, that their son benefit from the presence of them both in his life. It appears also to have been driven by their individual self-interests.

Those self-interests pertained to such things as immigration wishes, employment aspirations, economic realities, image, and emotion. [ 33 ] That degree of cooperation was made more challenging by the parties’ nomadic lifestyle, caught as they were in that transitional stage of professional life between completing formal education and commencing a career, with credentialing requirements to be performed along the way.

AMW’s description of A was apt: “[t]ravel is the norm of his life.” AES described the journey he and AMW had been on with respect to A in a March 2012 email as: “[y]ou and I have been living in the unknown for the last 4 years ...”. [ 34 ] However, in the midst of this uncertainty and nomadic existence, described in more detail below, there were some constants. Since separation AMW has always had primary day-to-day parenting of A; A was always primarily resident with his mother. Sometimes the father was also there, sometimes not.

At times A would be with his father alone but these were the exception, just for vacations or visits with extended family. When working AMW employed a nanny for A. [ 35 ] AES has had access to A on a flexible basis, even when distances separated the parents. Each parent appears to have compromised in pursuing their credentialing and future career plans to try to co-locate, in order that A may have both his parents nearby, if not immediately present.

Each has also travelled to the other when they were separated by geography, so A could be with his father from time-to-time. [ 36 ] From July 2007 to September 2008 AMW was a radiologist and assistant professor of radiology in New Haven, Connecticut. AES graduated from his cardiology fellowship in 2008 and started working as a full-time cardiologist in Manchester, Connecticut. Therefore, by mid-2008 both parents were working near each other.

AES says that they had agreed to remain in Connecticut for their work so they could both parent A. [ 37 ] In September 2008, however, AMW accepted a radiology work contract in Williamsville, New York, and moved there with A. Shortly thereafter AES commenced legal action against AMW for custody and legal separation; AMW then filed for divorce. Both actions were commenced back in Connecticut. Mom’s relocation with A to New York from Connecticut was unilateral. AES then acted to assert his custody and access rights in the Courts.

This issue was resolved consensually. [ 38 ] On January 7, 2009 they consented to terms that would govern custody and access pending the next steps in their further litigation. These included that A’s primary day-to-day residence would be with his mother in Buffalo, New York, and that the father having parenting time that involved his travel to Buffalo every other weekend as he was able and one weekend at the father’s residence requiring the mother to bring A to Connecticut (to coincide with the next Court appearance there).

The terms also expressly entitled AMW to take A “to visit her parents in Canada” for a specified 9 day period. [ 39 ] The parties were to return to the Connecticut Court in 3½ months. Before that occurred the parties agreed to drop their Court applications. AMW says they dropped the litigation because they had agreed “to work towards a solution on our own, which did not

include reconciliation.” AES says they dropped the litigation because AMW had a job offer in the Boston area, to commence July 2009, and he agreed to also move there. [ 40 ] Though AMW initially accepted the position in Boston, she did not ultimately take it. Instead, in May 2009, she and A travelled to Calgary, Alberta, to reside with her parents in the home she jointly owned with them since 2000.

She and A remained based there until July 2010, though they travelled back to be near AES in Connecticut for, in total, over 4 of those months (123 days) plus went on 2 trips with AES, one to Las Vegas and the other to Lebanon. For the periods of time she and A were in Calgary she had A regularly attend a daycare. A became a Canadian citizen and was registered for Alberta Health Care. [ 41 ] Both parents say they agreed that AMW, with A, would spend the full year in Calgary. It appears that this was so she could pursue her desire of making her US immigration application independent of being AES’s wife .

To do that, she said, she needed to remain outside the USA for a year. She would then return to Boston and work. She says her desire to acquire a visa independent of applying as his wife was undermined by her frequent visits to the USA. She also says AES kept “pushing” her to apply for her green card as his wife. She says she later relented and returned to Boston in July 2010, applied for her green card as AES’s wife in August 2010, and received it in December 2010. [ 42 ] AES held a position at Tufts University between July 2010 and June 2011.

For the first portion of that time, between July 2010 and mid-January 2011, AMW and A lived in Boston at AES’s address, though they remained, as she put it, “physically and mentally” separate. In mid-January 2011, a few weeks after receiving her green card, AMW returned to Calgary with A. Before AMW and A left Boston both parents completed their parts of a Canadian passport application for A. I accept AES’s testimony that he approved of this step because he believed it might be of value to A, not because he agreed with A remaining in Canada then or later.

AMW submitted that application, it appears, the day after arriving in Calgary. I find that both parents did this only because they could get a Canadian passport for A and thought it might be to his advantage in the future. I also infer from these decisions that the parents agreed, for this period of time, that A would be away from AES. AMW and A then visited AES in Boston for a month between early March and early April, 2011. AES also occasionally travelled to Calgary to have access time with A. [ 43 ] AES concluded his Tufts position at the end of June 2011. He then began seeking employment elsewhere.

He looked for a location that would suit AMW so that she would locate nearby with A and find her own employment. I find that was their common intent. AES consulted AMW about different options available to him to ensure she would also locate there with A. [ 44 ] In the meantime AES wanted access to A. By July 2, 2011, he was already in Calgary and taking A back with him to Boston. AMW followed a week later and joined up with them. [ 45 ] In July 2011 AMW accompanied AES to Florida for his job interview there.

While at AES’s potential Florida employer she met with the Head of Radiology to introduce herself and inquire into employment opportunities for herself. AES was not offered the position in Florida. [ 46 ] Another opportunity for AES presented itself at Loma Linda Medical Centre in California. AMW liked all that AES described about the area and was happy at the prospect of settling there with A and resuming her radiology career. [ 47 ] AES was successful at gaining work at Loma Linda and was appointed Assistant Director of Heart Failure and Transplant.

Before relocating there and while in Boston, AES and AMW selected Rancho Cucamonga, San Bernadino County, California, in which to reside and, also while in Boston, they committed to a short-term lease in Rancho Cucamonga. [ 48 ] On August 4, 2011, AMW and A returned to Calgary because of her father’s dire medical condition. Her father passed away soon thereafter, on August 20. AMW was “extremely distraught” and said that at that time planning towards California became irrelevant to her. [ 49 ] AES travelled to Calgary for the funeral and remained the next 3 weeks.

He then took A with him to Boston for 9 days as he packed up his things there. Then they travelled to Beirut for 2 weeks of vacation. The two of them returned directly to California where AMW was waiting. In their absence she had attended at the new rental condo (September 28, 2011) to sign the condo lease (AES had signed when in California much earlier), take possession of it, and set things up. AES and A arrived early October.

[ 50 ] AMW and A remained in Rancho Cucamonga with AES through to January 24, 2012, except for a short visit to Calgary in November 2011. While on that trip in Calgary, AMW commented to AES that, among other things, she: cannot wait to be in cali again this place is so depressing so cold ugh [ 51 ] And again later indicated to AES that she was thinking: of cali and I compared good old rancho C to here and I just can’t wait to leave … … I feel like everything here is so superficial. [ 52 ] During the period following separation and up to the alleged wrongful retention outside California in early 2012: i.

AMW, as already stated above, had primary day-to-day parenting, care, and control of A. AES has not wanted primary day-to-day parenting of A, but has wanted A nearby for his ease of access and has always exercised his rights of both access and shared decision-making of A. AMW has similarly wanted AES to fulfill that role and A to be nearby his father. She appears to have placed her career progression on hold to defer to AES’s decision of where he would establish his career, for A’s sake. ii.

AES and AMW made decisions about the location of their employment collaboratively, with, regardless of any other individual purposes they pursued, the common objective of establishing careers in proximity to one another, for A’s sake. iii. AES would have supported and preferred all 3 of them remaining under one roof; AMW on the other hand had decided her future did not include remaining married to or co-habiting with AES, but for A’s sake she was in support of living nearby, just not with, AES. iv. Each parent was prepared, at different times over that period, to seek work and locate near the other.

AES consulted AMW about the options he pursued. He did not commit to a new location until he had assurance that AMW and A would also locate there or not too far away. Most recently they both liked the idea of setting down some roots in Florida, though that opportunity did not come to fruition, and then similarly in California. v.

AMW was attempting to establish a degree of independence from AES from an immigration and employment perspective, but would not let go of any potential upside of her relationship with him for personal immigration and employment purposes. [ 53 ] While in California AES and AMW scouted out schools for A, both for pre-school immediately and a kindergarten for the 2012 to 2013 school year. They decided to enroll him in a Montessori school in Rancho Cucamonga.

He started there early December 2011 and continued to attend until January 23, 2012, the day before he and AMW departed for their trip to Calgary. [ 54 ] While in California AES and AMW signed A up for, and he attended, both music lessons and dance lessons. The music class was to run from January to March 2012. AMW made inquiries about soccer lessons and they planned for A to take those in April and May, 2012. [ 55 ] A appears to have immediately taken to his new surroundings, made friends at the Montessori school, and otherwise adapted.

This is not surprising given his age and his life of mobility. [ 56 ] AMW acquired her driver’s license in California. Her previous driver’s license was issued by the State of Connecticut and had

expired May 15, 2011. AES leased a car for AMW while she and A were in California for a term extending past January 2012. [ 57 ] On January 24, 2012, AMW and A travelled to Calgary. AMW wanted to be there for her mother on the occasion of what would have been her father’s next birthday. While there she said to AES that she would be staying longer to assist her mother with some renovations. She never did return. AES inquired of her frequently as to her return date; AMW remained non-committal.

For a long time she never said she was not returning nor did she indicate a date when she would return. [ 58 ] Nevertheless I find that she had made a decision to not return. At first it was a decision to delay her return, then it was a decision to not return. Both were unilateral decisions. [ 59 ] In response to AES’s Hague Convention application, AMW stated: Between December of 2011 and January of 2012 both myself and our son stayed with the Applicant at his residence in California upon the following express understanding: a. The Applicant would support myself and our son until I could find employment.

The Applicant had indicated that he would help me find employment at Loma Linda where he was employed, but he did not even attempt to look for employment for me until after I returned to Calgary in January 2012. I was extremely distraught after my father who I was extremely close to passed away in Calgary on August 20, 2011. Once again the Applicant failed to provide any meaningful support for me and our son. b. The applicant promised to find a separate apartment for myself and our son in California. This promise had been made to me in August 2011.

Once again the Applicant failed to make good on this promise. [ 60 ] AMW did not start looking for work for herself until January 2012. She wanted time to grieve her father’s death plus, thereafter, to refresh her skills. She began to do that in late 2011, after her November 2011 trip back to Calgary. In January 2012 she began applying for a California medical license. On January 23, 2012, AMW sent a job application to UCLA. In that application she said she had “moved to California a few months ago”. [ 61 ] AES does not significantly disagree with what AMW described as their understanding.

He said in an email to her in March 2012: ... my job was to provide you with the support until you get a job and in return you live with [A] close to me. ...

As for my job was to support your finances and [A’s] expenses of daily living stuff,to expense to get you back in track for job. [errors in original] [ 62 ] I therefore find AMW’s assertion of an understanding that AES would support AMW and A until AMW got established on her own to be true, and that this entailed AES covering the cost of separate accommodation for AMW and A. [ 63 ] Earlier in the March 2012 string of email exchanges, AES acknowledged that this separate accommodation was an understanding between the two of them. He spoke as though that understanding was a given.

He said: Until january you didn’t know where you wanted to live and I kept it open for you. I told you to find any place you like in pasadena, west la, or orange county so it fits [A’s] school and you like the place. [errors in original] [ 64 ] He also said in that email exchange: ...

After you liked montessori, i looked into apt and wanted to get the holidays over as i saw how you felt during this time. i found what i like, and called them at santa barbara when you were still here, but they were not leasing because they haven’t finished them. february 8 was the first lease, and i went there on the 9 th and leased an apt ... and didn’t tell you at the time. [errors in original]

[ 65 ] Her reply (also written early March, 2012) is enlightening as to the time line and rationale for her decision to retain A out of California. It reads, in substantial part: To clarify; I still very much want to live in California and I am actively looking for a job there. I can not do more than that. My wish is still to live in California. And still this gives you reason to harass me to go to California asap. Do you really think my place now is in california? why, to satisfy you?

Do you think I should be in Cali where I have nothing to do and don’t know anyone vs surrounded by family and friends and supporting my mom while staying in my home town just a few months after the death of my father? Your impatience shows me how little you really care about me. Your behaviour toward me in the last 6 weeks has been very distressing to me and it is making me second guess any plans I may have had and forces me to look at everything in a new light.

You put relentless pressure on me to go to California, while I am dealing with house renos, a grieving mother and my own grief and worst of all with your demands and impatience. And you talk and treat me as though you have the right to demand my presence in California. What right do you have to this? I have never told you what to do or where to go or where to live. You show total disrespect for me after 3 years of my effort in making sure you get to spend a good amount of time with your son considering we are not a family unit.

I really REALLY genuinely have done all I could with my whole heart to keep this thing amicable between us, to build trust between us, to have a friendship and share [A] in the healthiest most positive way for everyone. I was even open to the idea of getting back together with you when I saw that you did not get my own place in California and thought that maybe we could work it out but I realized you had no such intention either. Now I see all the good I tried to build falling apart into nothing. Your demands and impatience have damaged all that we have managed to build in the last 3 years.

I see that for you it’s either your way or no way. And this is the tragedy in all of this. [errors in original] [ 66 ] Not surprisingly given the differences between the parties, AES has a different view on all this.

Although it does not derogate from AMW’s comments above revealing her actual reason for not returning to California, since I have included some of AMW’s comments, in fairness I now also include portions of AES’s response: Anything you wanted to get or place to go out i said yes. from my heart i was happy and i kept telling you take any activities you want and get yourself on track and I’ll support you with it. ... I told you take your time off and don’t worry about money.

In december, you came and told me you don’t want to go back to calgary except for short visits and everytime i asked you if you like it here, you said you love it ... Add to it, similar situation happened like Boston, we agreed on it, you had a job i had my fellowship after a year and half looking for a job. Then it all fell apart after one month in boston. Our marriage the same story ... . ... I’ve never told you where to live, you chose to move to Milford, Buffalo and Boston. I chose Cali and asked you if you like it and you can’t stop telling me how much you loved it. ...

I think i did a lot of good things in those 3 years and you know that, and I never ignored your effort. It was a mutual effort and it is something to be happy about given our physical and mental separation. ... [errors in original] [ 67 ] AMW later explained her reason for not returning to California in this way: When I realized the situation I was living in, (I was a free nanny/housekeeper) I decided to leave. My intention was never to come back to live with [AES] though I still had the intention to live in CA [California] on my own terms once I found a job.

I have copies of sent emails to various companies advertising mammography jobs. [her radiology sub-specialty] Analysis [ 68 ] The Hague Convention applies in Alberta, pursuant to the International Child Abduction Act (the “ ICAA ”). The Province of

Alberta is a Contracting State for purposes of the Hague Convention. [ 69 ] The relevant provisions of the Hague Convention are as follows:

Article 1 The objects of the present Convention are –

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 other Contracting States.

Article 3 The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 5 For the purposes of this 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; b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

Article 12

Where a child has been wrongfully removed or retained in terms of

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

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

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.

Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

Article 20 The return of the child under the provisions of

Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

Article 26 ... Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

[ 70 ] The ICAA entitles a person whose child has been wrongfully removed to or wrongfully retained in Alberta in violation of the Hague Convention to apply for the child’s return to the jurisdiction of his or her “habitual residence”, unless certain exceptions apply. To succeed in his application, AES must show that:

i) A was an “habitual resident” of California immediately prior to the date of his removal or retention from it; ii) The removal or retention breached AES’s custody or access rights under California law; and iii) AES was exercising those rights at the time of the removal or retention. [ 71 ] If AES satisfies me on those matters, I must return A to California unless AMW can establish one of the exceptions set out in Articles 12, 13, and 20. 1. Habitual Residence [ 72 ] The terms “habitual residence” are not expressly defined in either the ICAA or the Hague Convention.

This Court in Proia v Proia , 2003 ABQB 576 at paras 20 and 21 respectively, cited with approval the following comments from learned writers in the field of international child abduction laws: The concept of “habitual residence” refers to that place that is the focus of the child’s life, where a child’s day-to-day existence is centred. ...The concept of habitual residence is not meant to be susceptible of rigid definition. In fact, the [Hague] Convention assumes the concept is well understood to be a fact driven issue.

Most cases interpreting the term have deemed the question to be a factual inquiry which depends upon the particular circumstances of each case. [ 73 ] The most frequently cited description of “habitual residence” is from the English case of In Re Bates (1989), No CA 122-89, FamD (UK), where that Court stated: [T]here must be a degree of settled purpose. That purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely.

Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others.

All that is necessary is that the purpose of living where one does have a sufficient degree of continuity to be properly described as settled. [ 74 ] Given the young age of A, his habitual residence is determined by reference to his parents’ common intentions, if any, and the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind: Mozes v Mozes , 239 F (3d) 1067 (9th Cir2001) at 1075; Whiting v Krassner, 391 F (3d) 540 (3d Cir 2004) at para 7. [ 75 ] The Ontario Court of Appeal in Ellis v Wentzell-Ellis , 2010 ONCA 347 at para 17 , stated: Settled intent to change habitual residence is determined just prior to the physical move to the new habitual residence... .

As here, where the parties no longer agree that they had a shared intention, the Court should not take the representations made by them at face value. Instead, the Court should determine, based on all the evidence, whether the parent had already agreed to change the child’s habitual residence... . [citations omitted] [ 76 ] Duration of stay in a jurisdiction is not determinative of habitual residence, though it is a relevant consideration. In Proia , at para

21 , this Court refers to a comment based on a US decision as follows: The Convention does not require a minimum period of time for a child to remain in a country in order for that country to become the child’s habitual residence.

It has been suggested that the time necessary to establish a habitual residence may be as short as one day. [ 77 ] Nevertheless the British Columbia Supreme Court in Medina v Pallett , 2010 BCSC 259 at para 20 , citing prior decisions, states: A child’s habitual residence may only be altered when the child actually moves to a new residence and has resided in that new residence for an appreciable period of time ... [ 78 ] The Ontario Court of Appeal provided a useful

summary from the case law on how habitual residence is to be determined, restated in Ellis at para 22 : As the application judge correctly notes at para. 39 of her reasons, this court held in Korutowska-Wooff that habitual residence involves an intention to stay in a place “whether temporarily or permanently for a particular purpose, such as employment, family, etc.” The principles to be considered when deciding the issue of habitual residence are specified by Feldman J.A. at para. 8 in Korutowska-Wooff and have been repeatedly restated in the jurisprudence: · the question of habitual residence is a question of fact to be decided based on all of the circumstances; · the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”; · a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.; · child’s habitual residence is tied to that of the child’s custodian(s). [ 79 ] Since the parties withdrew their litigation in Connecticut, neither has acted as sole decision maker in respect of A, nor has acted unilaterally with respect to where A would permanently reside, until AMW’s actions in 2012.

Now, for the first time since then, AMW has acted unilaterally in keeping A out of the jurisdiction of his habitual residence. Each parent has unilaterally decided on the duration of a visit or a trip with A or a return date from a trip with A, but all under an umbrella of mutual consent to the place of A’s permanent residence. Most of the travel with A by either parent required, and received, the consent of the other. Their usual practice was to intentionally leave open the return date, to allow the other some flexibility. But a return date was always contemplated.

The same was true of the January 24, 2012, trip to Calgary by AMW with A. A’s return was expected, by both parties, to occur in approximately 2 weeks. AES acquiesced to an extension for AMW to help with some home renovations. At no time was AES agreeing to A remaining in Calgary, Alberta and AMW not returning A at all. [ 80 ] AMW intended to return to California when she departed with A to Calgary on January 24, 2012. The day before her departure she applied for work in California. She only took with her enough clothes to last about two weeks for herself and A.

She acquired a driver’s license in California, not in Massachusetts or Alberta before the mid-2011 move to California and not in Alberta during the November 2011 trip there. While in California she and AES committed to a lease agreement on a vehicle whose term extended well past January 2012. While in California she signed up A for piano and dance lessons extending into March 2012 and soccer in April and May 2012.

While in California she made inquiries into a kindergarten for A for the 2012/2013 school year. [ 81 ] AMW’s position is that her being in California with A was only ever conditional upon her being supported by AES into her own accommodation and her finding, with AES’s active assistance and support, employment in her field. Both of these were to be in reasonable proximity to AES. She says he did not satisfy those conditions therefore no habitual residence was ever established. [ 82 ] I find that AMW did not have a specific end date in mind by which her two conditions had to be met.

But she had not intended to, and made little effort to, pursue her own employment in California until after Christmas, other than to undertake a bit of refreshing in her field. To that point she was processing other things, not the least of which was the loss of her father, and then there was arranging schooling and other matters for A.

[ 83 ] AMW started looking for employment in California in earnest in January so, even though the common objective of AES and AMW was for AMW to find work in the vicinity, their understanding in that regard had a much longer time horizon on that effort than just the first three weeks of January, 2012. This is clear by virtue of the application she sent to UCLA the day before she left for Calgary. She did not stay in California long enough to see if the conditions on she and A remaining there could be met.

Also, it is not reasonable for her to do nothing of substance to realize these “understandings” or “conditions” until January and then rely upon that state of affairs to say AES breached them. The fact is, when she left for Calgary she had not been of the view that the 2 conditions had not been met and therefore that she was leaving with A for good. [ 84 ] I am satisfied that the parties displayed a settled intention to abandon the north-east USA and together acquire their own residences nearby each other in California.

There was a settled purpose to A being in California right up to January 24 th and through the period of what was originally to be an approximately 2 week stay in Calgary. They jointly decided to leave for good the north-east USA and to co-locate in California. They jointly decided AES would reside in Rancho Cucamonga, along with AMW and A initially. They jointly decided on the specific condo they would, on the daytime activities for A, on a long-term car lease for AMW, and on seeking separate accommodation in the vicinity for AMW and A.

I am satisfied that A and the parties were in California for an appreciable period of time.

I therefore conclude that A’s habitual residence immediately before his removal and retention from California was California. [ 85 ] After agreeing to locate in California with A, after jointly establishing AES’s longer term residence and her temporary residence with him in California, after acting in numerous ways to establish A’s life in California and his adapting into life in California, and after beginning to take steps to establish herself independent of AES in proximity to AES in California, AMW, while on a short-term trip with A to Calgary, unilaterally chose to retain him out of California.

In my view she cannot rely on the conditional nature of their joint decision to settle in California when she did not do more than she did here to ensure that the conditions were satisfied. In my view she also cannot rely on the conditional nature of their joint decision to settle in California without allowing sufficient time to pass within which to reasonably hope to ascertain whether the conditions would be satisfied. [ 86 ] In any event, breach of the conditions was not her real reason for not returning with A to California.

I find that the basis of her unilateral decision to retain A away from California was not the breach of those conditions or the perceived failure of AES to do as much as she thought he had promised to see those conditions met. Rather, the basis of her unilateral decision to keep A out of California came about 6 weeks later. It was based upon what she perceived to be AES’s brutish insensitivity towards her while she was away.

She described this as his impatience and relentless pressure upon her in his communications, without consideration of the other matters she was dealing with. [ 87 ] AMW was not actually averse to returning to California, she just resisted what she felt was AES’s insistence of everything being on his terms. She, on the other hand, was willing to co-locate, but only on her terms. [ 88 ] I do not doubt that AMW’s sense of duress to be in California only on AES’s terms was genuine.

I accept that each party felt the other fell short of their respective expectations for the other, such as captured in the excerpts of their email exchanges above, and that each is now dug in on not wanting matters involving A decided on the other’s terms. However, these are issues to be resolved within one of the jurisdictions, not at this Hague convention stage. They are to be resolved in the context of working through their parenting, support, and access issues.

The existence of these concerns, each against the other, does not persuade me off the view that AES has demonstrated, on a balance of probabilities, that A’s habitual residence on January 23, 2012, through to AMW’s decision to not return him to California, was California. His habitual residence immediately before his retention in Alberta was California. [ 89 ] In determining habitual residence AMW urges me to follow the 2 step analysis in Gitter v Gitter , 396 F (3d )124 (2d Cir 2005), as was done in C.C. v K.C., [2009] OJ No 4318 (ONSC) at para 123 .

She says that approach compels the opposite result, that California was not A’s habitual residence immediately before. In that case the Court said: ...First, the court should enquire into the shared intention of those entitled to fix the child’s residence (usually the parents) at the latest time their intent was shared; actions as well as declarations may be taken into account.

Second, the court should enquire whether the evidence unequivocally points to the conclusion that the child is acclimatized to the new location and thus acquired a new habitual residence notwithstanding any conflict in the parents’ latest shared intent. [ 90 ] Following this alternate formulation of ascertaining habitual residence I reach the same result. The latest time the parties intent was shared, California was their common intent. They both abandoned A’s earlier habitual residence and demonstrated their common intention to establish for the longer-term their habitual residence in California.

It was understood that AMW and A would abide in separate accommodation from AES and that AES and AMW would work towards AMW returning to her chosen profession there, but they were not contemplating only trying that for 3 weeks in January. In my view they did not consider that they would not succeed in both those initiatives and so did not set a time line for the effort or consequences of not succeeding. AMW unilaterally and prematurely

suspended the arrangement. She may have had good cause for that upon reflection from a distance in Calgary, but those are matters to be worked through, via the legal process if necessary, in the jurisdiction in which they had established A’s habitual residence. [ 91 ] Further, regarding the second branch of the Gitter test, AES has established on a balance of probabilities that A had unequivocally acclimated to California. He had adapted to his pre-school, to his lessons, and he began forming friendships.

There was no evidence of any adjustment issues. [ 92 ] AMW argues that Gitter stands for the proposition that the court cannot establish habitual residence when a move is conditional.

With respect, I find here that the nature of the conditional move was not of the kind in Gitter and I am not persuaded that the nature of the conditions agreed to by AMW and AES meant that, therefore, AMW could rely on any other reason, ceteris paribus , to pull the pin on the conditional arrangement until such time as the conditions were satisfied, particularly after not herself acting to satisfy them until shortly before the removal and retention of the child out of the jurisdiction. 2.

Breach of AES’s Custody Rights [ 93 ] I find, based upon the evidence adduced that immediately before the removal and retention, AES had custody rights under California law pertaining to A. This point was not in significant dispute. 3. Was AES Exercising Those Rights [ 94 ] I find further, based upon the evidence adduced, that AES was exercising those rights of custody at the time A was removed and retained outside California. This point also was not in significant dispute. [ 95 ] I further find AMW’s retention of A outside California to have been wrongful, because of its unilateral nature. 4.

Exceptions to an Order to Return A to California [ 96 ] AMW argues that AES filed his application more than a year after any alleged wrongful removal or retention, since, she argues, A’s habitual residence “as a result of acclimatization” became Alberta following his move there in 2009. She says

Article 12 then applies and I have a discretion to return A to California “unless it is demonstrated that the child is now settled in its new environment”, in which case I cannot make such an order. [ 97 ] First, I do not find that Alberta was A’s habitual residence at any time in the past. Each time he was there, regardless of duration, it was not of any permanence and not by the parents’ common intention that it would constitute his new habitual residence, following any abandonment of where they had both resided with A.

A never resided in Alberta for an appreciable period of time with the settled intention of his parents. [ 98 ] Second, even if Alberta was the previous habitual residence and the 1 year clock started running more than a year before AES filed his application, AMW has not established that A has now settled in or is otherwise acclimated to Calgary.

My discretion is not ousted and I exercise it in favour of AES, to order A’s return to California. [ 99 ] I also do not agree with AMW that AES consented or acquiesced to A remaining with AMW in Alberta, not over the years before the co-location to California and not in 2012. It appears there was acquiescence on AES’s part periodically on a micro basis to A remaining in Alberta with AMW, for example in awaiting AMW’s choice of whether to depart and how long to stay away, but never on a macro basis to A’s remaining in Alberta. During many of those periods, AES would travel to visit A.

In any event, AMW conceded in argument that AES’s rights to pursue return of A, if earlier lost by failure to apply under the Hague Convention for example, can revive by subsequent establishment of habitual residence. [ 100 ] There is no suggestion raised here that A would be exposed to any grave risk if ordered to return to California.

[ 101 ] I therefore grant the application and order A be returned to California. This order shall become effective upon my pronouncement of appropriate terms, which I shall determine upon hearing further from the parties including, in particular, whether AMW intends to return with A, but in any event after December 2012. [ 102 ] If AMW is also returning then the terms shall include no less than AES providing:

i) separate accommodation conducive to child rearing and no less comparable to his own in Rancho Cucamonga in the general vicinity of the school(

s) the parties selected for AMW and A; ii) all costs thereof including internet access; iii) all costs of AMW’s vehicular transportation; iv) health insurance for AMW; and

v) on an interim refundable basis, child support in US dollars at the appropriate amount in the Canadian Federal Child Support Guidelines table as if A was a resident of Alberta. These terms are to apply until the earlier of agreement of the parties or an order of the California Court. Return travel to California for both AMW and A shall be paid by whomever was originally going to be paying for AMW and A’s return at the end of the January 24, 2012, trip. [ 103 ] The parties are to immediately arrange to meet with me within the week to set the terms of A’s return.

Heard on the 31 st day of July, the 17 th day of October and the 29 th day of November, 2012. Dated at the City of Calgary, Alberta this 10 th day of December, 2012. P. Jeffrey J.C.Q.B.A. Appearances: Edward McCann Soby Boyden Lenz for the Applicant Max Blitt Spier Harben for the Respondent