Osaloni v Osaloni, 2022 ABKB 835

Court of King’s Bench of Alberta Citation: Osaloni v Osaloni, 2022 ABKB 835 Date: Docket: FL01 37743 Registry: Calgary Between: Akintayo Dimeji Osaloni (AO) Applicant - and - Faustina Osadebamwen Adua Aisien Iyekekepolor also known as Faustina Osadebamwen Osaloni (FO) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice J.R. Ashcroft _______________________________________________________ Introduction [ 1 ] The Father, AO and the Mother, FO, are the parents of two children aged 7 and 3.

The Mother travelled with the children from the family home in Rainham, England to Calgary, on or about March 30, 2022. [ 2 ] The Father seeks the children’s return to the United Kingdom pursuant to

Article 12 of the Convention of the Civil Aspects of International Child Abduction , Can TS 1983 No 35, 19 ILM 1501 (“ Hague Convention ”).

[ 3 ] The Mother opposes the return of the children on the grounds that the Father consented to her taking the children to Canada, and that there would be grave risk to the children if they were returned to the United Kingdom (the UK). Undisputed Background Facts, Litigation Steps to Date and other Procedural History [ 4 ] The parents were legally married in the UK in 2014, and were living together in Rainham, UK as of March 30, 2022. Both the UK and Canada ratified the Hague Convention , indicating their consent under international law to be bound by its provisions.

As such, both jurisdictions are Contracting States to the Convention . [ 5 ] The Hague Convention requires that the various jurisdictions designate Central Authorities.The role of a Central Authority is set out in

Article 7 of the Hague Convention ; it includes helping the competent authorities in each Contracting State to secure the prompt return of the children. To achieve this objective, the Central Authority can help locate the child, help initiate judicial proceedings to obtain the return of the child, and facilitate the provision of legal aid. [ 6 ] The father notified the UK Central Authority on or about March 30, 2022 about the children’s alleged wrongful removal. The UK Central Authority contacted the Alberta Central Authority. The Alberta Central Authority filed notices in the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta pursuant to

Article 16 of the Hague Convention on June 21, 2022. [ 7 ] The Mother refused requests for the voluntary return of the children to the UK. [ 8 ] The Father commenced legal proceedings in Calgary on September 16, 2022, less than a year since removal.

These proceedings have been case managed by another Justice through to this hearing. [ 9 ] An ex parte interim order granted on September 21, 2022 addressed alternative service, required the Mother to surrender the children’s Italian passports, prohibited the Mother from taking the children out of Calgary and required the Mother to report her address, telephone number and email address to the police on weekly basis until a final order is made. [ 10 ] A follow up interim Order, with the mother present on the phone, was granted on September 29, 2022.

This Order directed a one-day hearing on November 17, 2022 and set filing deadlines and service requirements. [ 11 ] The Mother appeared on November 17, 2022 and requested an adjournment in order to have time to retain and meet with counsel. The day prior to the scheduled hearing, she received approval for Legal Aid. No notice was provided to the other counsel or the Court of the mother’s issues with attempting to secure counsel.

The Father was in attendance at the hearing, having flown over from England. [ 12 ] Given the importance of ensuring the Mother’s position and all relevant information was before the Court, I granted the request for an adjournment to December 9, 2022 with costs in favor of the Father.

I impressed upon the Mother how important it was to immediately follow up with legal aid, meet with her lawyer, and provide the lawyer with the information regarding filing deadlines. [ 13 ] The Mother was given until November 30, 2022 to file additional materials. [ 14 ] The Mother was also advised that no further adjournments would be granted given the time-sensitive nature of the issues. The Hague Convention requires the Court to act expeditiously in proceedings for the return of children:

Article 11; Leigh v Rubio 2022 ONCA 582 at para 2 ; see also Court of King’s Bench of Alberta Family Law Practice Note 6. [ 15 ] The Mother retained counsel and filed additional materials. A request for a further adjournment by the Mother on December 9, 2022 was denied. [ 16 ] There is some conflicting affidavit evidence and I have carefully considered whether an oral hearing is required in order to make appropriate credibility findings. However, as will become clear, the Mother’s own affidavit evidence sufficiently supports my ultimate decision that the children must be returned to the UK.

An oral hearing is unnecessary. The Law and the Issues [ 17 ] The Hague Convention carries legal force in Alberta by operation of s 2 of the International Child Abduction Act , RSA 2000, c I-4 . [ 18 ] The objectives of the Hague Convention , as set out in

Article 1, are to secure the prompt return of children wrongfully removed from their country of habitual residence and to enforce custody and access rights. A return order is not a custody determination, per

Article 19; it restores the status quo that existed prior to the wrongful removal: Office of the Children’s Lawyer v Balev , 2018 SCC 16 [ Balev ] at para 24 . [ 19 ]

Article 12 allows the judicial authority of the Contracting State to order the return of wrongfully removed children where less than one year has elapsed since the wrongful removal. The judicial authority is required to order the return of the children if the wrongful removal happened less than one year prior to the date of the commencement of the proceedings. [ 20 ]

Article 14 provides that the Court may take notice of the law, and of administrative or judicial decisions, of the country of the children’s habitual residence, without recourse to the specific procedures for the proof of that foreign law or decision.

[ 21 ] The issues before this Court were correctly identified by the Father’s counsel, and are as follows: (

a) Were the children habitually resident in the UK before any breach of custody rights? (

b) Was the Father exercising a “right of custody” prior to the wrongful removal? (

c) Were the Children wrongfully removed by the Mother to Alberta? (

d) Does the Mother have any defences to a return order under

Article 12? Issue #1: Were the children habitually resident in the UK before any breach of custody rights? [ 22 ]

Article 4 provides that the Hague Convention applies to any children under the age of 16 years who were habitually resident in a Contracting State before the breach of custody or access rights. [ 23 ] The concept of habitual residence is not defined in the treaty. The hybrid approach to determining habitual residence under

Article 3 of the Hague Convention is set out in Balev . [ 24 ] “[T]he hybrid approach holds that instead of focusing primarily or exclusively on either parental intention or the child’s acclimatization, the judge determining habitual residence under

Article 3 must look to all relevant considerations arising from the facts of the case at hand”: Balev at para 42 . The judge determines the focal point of the child’s life prior to removal and considers all relevant links and circumstances to both countries: Balev at para 43 . Relevant considerations vary with the age of the child: Balev at para 44 . Considerations include the duration, regularity, conditions and reasons for stay in the country and the child’s nationality: Balev at para 44 .

The hybrid approach requires looking at the entirety of the child’s situation; the list of relevant factors is open: Balev at para 47 . [ 25 ] The Father’s evidence is that the children were born in the UK and the Father and the children are British citizens. Except for a temporary, albeit lengthy, move to Slovakia with their Mother where she was enrolled in medical school, the children have lived in the UK. The Mother returned to the UK around June 2020. [ 26 ] Both parties are qualified to work in the UK.

The Mother practiced medicine in the UK, and the Father continues to work in the UK. [ 27 ] The children received medical care and education in the UK. The children attended school and nursery school in the UK. [ 28 ] The Mother argues that the children have lived most of their lives in Slovakia with their Mother and have not really spent that much time in the UK. I agree that the children have spent a considerable amount of time in Slovakia with their Mother. However, the evidence from both parties was that this was intended only to be a temporary move while the mother undertook medical training.

The family maintained a home in the UK throughout the period of time the Mother was in Slovakia. [ 29 ] The Mother did not provide any conflicting evidence from the Father in terms of the children’s nationality, schooling or health care. Indeed, in the Mother’s submissions, counsel conceded that the children were habitually resident in the UK. [ 30 ] The children are British citizens, and prior to their removal had attended school and nursery school in the UK, and accessed health care in the UK. The children were settled in an intact family in Rainham, UK with both parents.

The children have never travelled to Canada, or lived in Canada and prior to the move had no connection to Calgary or Canada. I find, based on the non-conflicting affidavit evidence, that the children’s habitual residence is in the United Kingdom. Issue # 2: Was the Father exercising a “right of custody” prior to the wrongful removal? [ 31 ]

Article 5 defines rights of custody and rights of access as follows: (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. [ 32 ] The Father submits that he has a right of custody per UK law, specifically the Children Act 1989 (UK), c 41.

Pursuant to s 2(1) of the Children Act 1989 , where a child’s father and mother were married at the time of the child’s birth, they shall each have parental responsibility for the child. “Parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property: Children Act 1989 at s 3(1).

Parents are to decide by agreement where a child should live, and if they cannot agree, an application can be made to a UK court for a child arrangements order: Children Act 1989 at ss 8, 12. [ 33 ] The Father’s evidence is that he made decisions, along with the Mother, regarding the health, education, caregivers and residence of both children since birth. The Father provided financially for the children, and he provided day-to-day care.

[34] The Mother submits the Father was not involved in the children’s education. She says that she registered the children, paid themajority of the school fees and assisted with homework. She also managed their healthcare. She cooked for the family, and, other thanwith regards to the school fees, the Mother submits the finances were shared. The Mother submits the Father never acted as a caregiveror sole caregiver for the children.

However, in the Mother’s brief, the mother states that the father exercised his rights of custody byconsenting to the move to Canada. [35] The family was living together and operating as a family prior to the removal of the children by the Mother. While the extentof the Father’s caregiving role is disputed, I find that the Father has engaged in a caregiving role with respect to the children, financiallysupported them and made at least some of the decisions jointly with the mother regarding their welfare.

The Father has submitted emailsconfirming his involvement with the children’s schools. [36] My findings above in terms of the Father’s role combined with his deemed “parental responsibility” under UK law,sufficiently align with the wording in

Article 5 such that the Father was exercising rights of custody at the time the children were taken toCanada. Issue # 3: Were the Children wrongfully removed by theMother to Alberta? [37] Under

Article 3 of the Hague Convention, the removal or retention of a child is considered wrongful if: (

a) it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under thelaw 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 soexercised but for the removal or retention. [38] Neither party disputes that the Mother left with the children out of a bedroom window of the family home on or about March30, 2022. The Father says that he slept on the stairwell in an effort to prevent the Mother from leaving with the children that night.

TheFather maintains that he was unable to prevent the removal and took multiple legal steps to secure the return of the children. [39] The Mother claims the Father consented to the removal of the children in preparation for the family’s move to Canada on amore permanent basis. The Mother submits the Father was aware she was studying for Canadian medical school exams. She hadpurchased the relevant textbooks and had been studying at home prior to the departure to Canada.

She has attached a letter from theMedical Council of Canada indicating that after the move she sat for certain qualifying examinations. [40] The Court must determine whether there has been a breach of rights of custody based on the law of the state of habitualresidence. The Court can take judicial notice of judicial decisions in the other country without recourse to procedures for recognition offoreign decisions, and the same is permitted for the law of the other country per

Article 14 of the Hague Convention. [41] Custody under the Hague Convention covers many situations where a person lawfully has the care and control of a child, andit does not necessarily require a formal order or legal document. [42] The parent who removed the children bears the onus of establishing the non-exercise of custody rights as an exception tomandatory return: Courtney v Springfield, at para 59, [2008] OJ No 2830 (QL). [43] As indicated, the family was intact and both parents were exercising their rights of custody at the time the Mother removedthe children.

The Mother removed the children and I find, as will be detailed below, that this removal was without the agreement of theFather, contrary to their shared parental responsibility for the children pursuant to s 2(1) of the Children Act 1989. The result is a breachof the Father’s right of custody, which includes a right to participate in the decision as to the residency of the children. Issue # 4: Does the Mother have any defences to a return orderunder

Article 12? Consent and Acquiescence, and Grave Risk [44]

Article 13 sets out the exceptions to the presumption of summarily returning children to their place of habitual residence. TheCourt is not required to order the return of the children if (

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rightsat 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 thechild in an intolerable situation. [45]

Article 13 also allows the Court to refuse the return of the children if it finds that the children object to being returned andhave attained an age and degree of maturity at which it is appropriate to take account their views. While the Mother has argued that thechildren love their life in Canada, I find that the children are not developmentally at an age where their views should be considered.

[46] The Mother’s main submission is that the Father consented to her coming to Canada with the children. She states that theFather was aware she was studying for her Canadian medical licensing as he would have seen her studying night and day. He also askedto be kept up to date on her results on those exams. The Mother submits the Father only changed his mind about her move to Canadawith the children because of his family’s influence in the days leading up to the planned departure.

The Mother said that given thattickets were booked, and she was set to sit her medical exams, she had no choice but to depart. [47] As further support for the family’s intention move to Canada, the Mother points to the Father’s application for immigration toCanada in 2021, which was ultimately not successful. The Mother says the plan was for her to join the Father, bringing the children, aftershe completed her program in England. She notes that the Father never told her his application was denied.

The Mother further statesthat the couple chose not to purchase a house on the Isle of Wight because they planned on moving to Canada soon. [48] The Father acknowledges his application to apply to Canada for permanent residency status, and that they had discussed plansto move to Canada. However, he denied that they had ever made firm plans or that a move was imminent.

Rather, he says he tookmultiple steps to attempt to prevent the Mother from leaving the UK with the children and to secure the return of the children. [49] I find that the Father’s position is supported both by his affidavit evidence, and the evidence of the Mother. I accept that themother wanted to move to Canada and was attempting to take steps in this direction. She intended to sit certain medical school examswhich would have been a required precursor for her to attempt to obtain accreditation in Canada.

However, at the time she travelled withthe children to Canada, there was no firm plans in place to move to Canada. There is no evidence that she had advised the children’sschools or family and friends that the family was intending to permanently move to Canada. The emails to the children’s school do notindicate any notice to the educators that the children’s trip was to be permanent. The Father had recently been formally denied, onappeal, his request for permanent residency status.

Further, the Father’s immediate actions in attempting to retrieve the children do notsupport a joint clandestine intent of the family to simply arrive and then overstay in potential violation of Canada’s immigration laws. [50] The evidence of both parties as to what specifically occurred on or about March 27 through to March 30, 2022 and theimmediate days thereafter, also does not support that the Mother had the Father’s consent to take the children to Canada. The Father’saffidavit outlines in detail how he discovered on March 27 strong evidence that the Mother was intending to leave.

When he becameaware that the Mother planned to leave with the children, the Father says he slept in the stairwell and packed the children’s boxes andbelongings in the car trunk to prevent the Mother from accessing them. [51] He also took immediate legal action against the Mother in both Canada and the UK. Through UK courts, he obtained aProhibited Steps Order pursuant to s 8 of the Children Act 1989. A Prohibited Steps Order is to prevent a child from being taken out ofthe UK.

A Port Alert Order was issued pursuant to the Family Court’s power to make supplemental orders that give effect to a decisionof the Family Court—here, the Prohibited Steps Order: A v B (Port Alert), [2021] EWHC 1716 (Fam) at para 37. A Port Alert Ordernotifies the National Border Targeting Centre to alert points of departure from the UK that a child might be at risk of being removedfrom the country.

The Father also sought police assistance in both Canada and the UK, and he alerted Canada Immigration and BorderServices about these proceedings and his concern about his children’s lack of immigration status in Canada. [52] The Mother’s own evidence also supports that she was well aware that she did not have the Father’s consent to take thechildren. She swears in her affidavit that the Father exhibited unusual behaviour in the days prior to her departure. She became aware,prior to her departure with the children, that he called the police.

In response the Mother sets out in her affidavit how she spoke with thepolice and discussed her travel plans with them. The police advised her to go to a family lawyer and the family lawyer “advised [her] toget a statutory declaration”.

Counsel for the Father points out that the Mother appears to have not followed this legal advice, as therewas no evidence of a statutory declaration regarding travel or otherwise put forward in the hearing before this Court. [53] The Mother’s counsel points to the case of deHaan v Gracia, 2004 ABQB 74 at para 46 [deHaan] in submitting that theFather cannot later change his mind and revoke his consent if he does not subsequently like the result of his decision. However, I finddeHann to be distinguishable.

In that case, the Defendant father was clearly supportive of the move both prior, during and for a numberof months after: paras 11-13. He signed the childrens’ applications for Canadian passports, the parties obtained International Driver’sLicences, informed friends, doctors and educators of the move to Canada, and the Defendant put his restaurant/bar up for sale: para 11.Two months after the move, the father changed his mind and attempted to bring the children back to France: at para 14.

These facts aredistinguishable from the case at hand where there is little evidence that the Father consented to a specific move to Canada on a defineddate, and where the Father took immediate action to try both to prevent the Mother departing with the children, and in seeking theirimmediate return. [54] The Mother’s counsel indicated that for the Father to change his mind regarding the move two days before the travel date,with her examination date set, demonstrates controlling behaviour.

I will address the allegations against the Father later in my decisionregarding the alleged controlling behaviour and alleged domestic abuse. However, the Mother has not demonstrated that the father hadany notice from her of her travel to Canada on or about March 30, 2022, either on holiday or otherwise. No evidence was proffered bythe Mother regarding when the plane tickets, either on March 30, 2022 or on a later planned date, for her and the children werepurchased. [55] The Mother additionally argues that the children would be harmed if they were ordered to return to their Father’s care.

Thisargument centered mainly around the Mother’s role as primary caregiver to the children and that they would suffer psychological harm ifthey were ordered back and separated from their Mother. [56] The Father denies that there is any risk to the children if they are ordered returned to the UK. He notes that the Mothercontinues to invite the Father to come to Canada and live with them.

The Father submits that the Mother has not proven grave risk on abalance of probabilities. [57] The Supreme Court has said grave risk of harm within the context of the Hague Convention entails the children suffering adegree of harm that amounts to an intolerable situation: Thomson v Thomson, (SCC), [1994] 3 SCR 551 at 596. Graverisk has been interpreted as “highly serious danger that the child would suffer physical or psychological harm”. This exception “must not

be turned into an assessment of the parenting arrangement that is in the best interests of the child”: RVW v CLW , 2019 ABCA 273 para 19 ; Thomson at 578. [ 58 ] The standard of proof is on the balance of probabilities: CB v BM , 2021 ABCA 266 at para 49 . The Mother, as the parent who wrongfully removed the children, has to “demonstrate a significant risk of harm or an intolerable situation, so as not to undermine the objectives of the Hague Convention ”: RVW v CLW at para 18 . [ 59 ] The evidence is quite strong that the Mother has been the primary caregiver of the children throughout their young lives.

However, the evidence also indicates that the Father is present and involved in the lives of the children. The Father has had parenting time with the children in Canada and other than allegations by the Mother that he is inexperienced, there have been no concerns about the children’s safety. [ 60 ] I have reviewed the recently released decision of the Supreme Court in F v N, 2022 SCC 51 for further guidance. The litigation in F v N took place under the framework of the Children’s Law Reform Act , RSO 1990, c C12 (“ CLRA ”) and not the Hague Convention .

Under the CLRA , the Court must assess whether “serious harm” would befall the child if the child was returned to their home jurisdiction: s. 23. The “serious harm” standard is less exacting, and a lower standard than “grave risk” pursuant to the Hague Convention : F v N at para 73. In F v N , the mother, a Canadian citizen, took the two children from Dubai to Canada under the guise of a trip to visit her family: paras 16, 19. The father agreed to the trip.

The mother informed the father that she intended to remain in Ontario with the children and the father initiated proceedings under s. 40 of the CLRA to secure return of the children to Dubai. [ 61 ] A majority of the Court directed that the children should be returned to Dubai.

The Court emphasized the importance of deterring child abduction, and held that even if the return of the child meant they would be separated from their primary caregiver, so long as there is a capable left-behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm was not met: F v N at paras 78, 80. [ 62 ] There are no allegations that the Father would ever harm the children. While the mother has indicated that he is inexperienced in looking after the children, I do not find that any alleged inexperience would place the children’s safety or care at risk.

In the circumstances at hand, I do not find that, if the mother chooses not to return, that the children would be unsafe with the Father or left without care. [ 63 ] The Mother has also set out alleged incidents of domestic violence including that the Father attempted to hold her hostage in the house on the night immediately prior to her leaving with the children, taking her keys and the childrens’ tablets.

She also says that the Father threw out her clothes out once while on a weekend trip and while the Father has never physically harmed her, more recently after his mother visited and was allegedly telling lies about her, the Father threatened to “beat” the Mother. [ 64 ] The allegations made by the Mother against the Father would, if proved, constitute domestic violence. I also acknowledge that domestic violence, especially if perpetrated in front of the children, harms children. However, the Father vehemently denies any domestic violence including any threats.

Further, the default assumption is that the courts of the Contracting State have the “capacity to adjudicate the merits of the custody and access issues, including the allegations of abuse, and make the necessary orders to protect the best interests of the child”: Sampley v Sampley , 2015 BCCA 113 at para 41 . The UK has a robust family law justice system, and the Mother can seek legal remedies in the UK if she has a reasonable fear for herself or the children. [ 65 ] It is important when reviewing applications under the Hague Convention to review first principles.

As emphasized in F v N at paras 63-64, the Court, in these types of cases, is not to engage in weighing the usual factors which frame a best interests of the children analysis. Instead the children’s best interests are usually served by a “prompt return to the jurisdiction of their habitual residence...” and that: “resolving parenting issues in the children’s home jurisdiction fosters stability, while ensuring that custody will be determined by the authorities of the place with which the child has the closer connection, which is an objective set out under s. 19 of the CLRA .

Indeed, the jurisdiction from which the children have been removed is usually in the best position to determine which arrangement will be in their best interests ( Bolla v. Swart , 2017 ONSC 1488 , 92 R.F.L. (7th) 362, at para. 38 ; W.D.N. v. O.A. , 2019 ONCJ 926 , 35 R.F.L. (8th) 190, at para. 51 ; Droit de la famille — 131294 , at para. 110 ).

This is explained by the fact that “the courts of the child’s State of habitual residence . . . generally will have fuller and easier access to the information and evidence” relevant to making a “comprehensive best interests’ assessment” (Hague Conference on Private International Law, 1980 Child Abduction Convention — Guide to Good Practice ,

Part VI, Article 13(1)(b) (2020) (“ Guide ”), at para. 15; see also J. M. Eekelaar, “International Child Abduction by Parents” (1982), 32 U.T.L.J. 281, at p. 301). [ 66 ] Consistent with these principles, I emphasize that what is before me today is not a parenting application. The Mother has not met her burden to show that the father consented to her taking the children. She has also not met her onus to demonstrate grave risk such that the children would suffer physical or psychological harm if they were returned to their habitual country of residence, which is the United Kingdom. Conclusion [ 67 ] I direct that, pursuant to

Article 12 of the Hague Convention , the children, DAO and DUO, shall be returned to the UK no later than midnight on December 18, 2022. [ 68 ] I will speak with counsel for both parties as to the most efficient manner to return the children to the UK. [ 69 ] I emphasize that this Order is not a primary parenting order. Nor do I have any authority under this proceeding to order the Mother’s return to the UK, as opposed to the children. However, recognizing the importance of the Mother in the children’s lives, I direct the parties to discuss a method of return that allows the Mother to return with the children to the UK by the above date, wherein court

proceedings as to parenting may immediately be commenced by either party in that jurisdiction. [ 70 ] However, should the Mother choose not to return with the children, the Order will include a police enforcement clause, which will be triggered if the children are not on a plane to London, United Kingdom by midnight on December 18, 2022. If this clause is triggered, the police are directed to obtain the children, facilitate the transfer of their care to their Father and facilitate their immediate return to the UK. Heard on the 9 th day of December, 2022. Dated at Calgary, Alberta this 12 th day of December, 2022.

J.R. Ashcroft J.C.K.B.A. Appearances: Carla Hopfner for the Applicant Madan Gakhar for the Respondent