J.F. Applicant And: K.F. Respondent, 2021 NLSC 148

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : J.F. v. K.F. , 2021 NLSC 148 Date : November 8, 2021 Docket : 202102F0464 Between: J.F. Applicant And: K.F. Respondent Before: Justice Irene S. Muzychka Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 27-29, 2021; October 1, 2021; October 4-8, 2021; October 18-20, 2021

Summary: The parties were married for ten years and have one daughter, age seven. The parties lived in Boston, Massachusetts for all of their marriage and their child was born there. In the summer of 2020, the mother and daughter flew to St. John’s, Newfoundland and Labrador, to visit the mother’s parents. Because of the COVID-19 pandemic, the visit was extended as the couple wished for the child to attend Grade One in person in St. John’s until Boston schools reopened to in-person learning. The child stayed to complete the school year. The mother remained in St.

John’s for the duration of the school year, working remotely at her job in Boston. The father travelled back and forth between St. John’s and Boston during this time and spent roughly six of the twelve months in Newfoundland. The father returned to Boston at the end of June. Shortly before the mother’s planned return to Boston in mid-August, the mother informed the father that she was divorcing him and not returning to Boston with their daughter. The father applied under the Hague Convention for return of the child to Massachusetts.

Application granted. Using the hybrid approach, the Court determined the child’s last place of habitual residence was Boston,Massachusetts. It was clear the parties had maintained their family home in Massachusetts, keeping their jobs and connections. Thefather had custodial rights when the child was retained as both parties were still residing with the child under the same roof. They bothhad obligations to care for the child, and they each had rights relating to her care and her place of residence. The child’s retention was wrongful.

The child would not face grave risk of being exposed to physical or psychological harm or beplaced in an intolerable situation if she was returned to Massachusetts. The mother's allegations respecting the father's emotionallyabusive behavior towards her does not amount to an extreme situation. The mother's allegations were insufficient to meet therequirements of

Article 13(

b) of the Hague Convention, and the mother had not demonstrated that Massachusetts was not able to protectthe child. The child should be returned to Boston, Massachusetts. Appearances: Sarah M. Learmonth and Andrew A. Fitzgerald Appearing on behalf of the Applicant Jean V. Dawe, Q.C. and Kolin P. Kennedy Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Office of the Children’s Lawyer v. Balev, 2018 SCC 16; Thomson v. Thomson, (SCC), [1994]3 S.C.R. 551; Ludwig v. Ludwig, 2019 ONCA 680; Knight v. Gottesman, 2019 ONSC 4341; Medic v. Medic, 2020 ONSC 6447; R. (D.)v.

K. (A.A.), 2006 ABQB 286; Korutowska-Wooff v. Wooff, 2004 ONCA 5548; Chan v. Chow, 2001 BCCA 276; Pollastro v. Pollastro(1999), (ON CA), 43 O.R. (3d) 485, 171 D.L.R. (4th) 32 (C.A.) RULES: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D, (Family Law Rules) TREATIES CONSIDERED: Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35, 19I.L.M. 1501 (entered into force 1 December 1983) REASONS FOR JUDGMENT Muzychka, J.: INTRODUCTION [1] J.F. and K.F. are parents to a seven-year-old daughter, V, and are residents of Allston (a suburb of Boston), Massachusetts.K.F. is Canadian by birth, and was raised in St. John’s, Newfoundland and Labrador. She holds both Canadian and American passports.J.F. is an American citizen, and holds an American passport.

V, who was born in Boston, holds both Canadian and American passports. [2] On July 25, 2020, during the height of the COVID-19 pandemic, K.F. and V travelled to Newfoundland[1] to visit K.F.’sparents due to a health crisis in the family. J.F. remained in Boston, to oversee renovations to the couple’s home. [3] After the pandemic closed Boston’s public schools to in-person learning in April 2020, which was extended into the fall of2020, J.F. and K.F. decided that it would be in V’s best interests to extend their visit in St.

John’s, so V could attend Grade One inperson. [4] K.F., a teacher employed by the City of Boston, had been required to work remotely since the schools closed there in April2020. When virtual learning was continued in Boston for the 2020-21 school year, K.F. was able to remain in St. John’s with her familyfor an extended period. [5] V was enrolled in Grade One at MacDonald Drive Elementary in St. John’s. The parties agreed that once the Boston publicschools reinstated in-person learning or K.F.’s employer required her to return to work in Boston, the family would return.

[6] J.F., who is self-employed, was able to spend approximately six months in St. John’s with the family, five months fromNovember 2020 to March 30, 2021, and a month in June 2021. [7] In April 2021, when in-person learning was reinstated at V’s school in Boston, the parties agreed that V should finish out theschool year and enjoy their traditional family summer vacation in St. John’s. The parties agreed that K.F. and V would return to Bostonon or about August 16, 2021. [8] On July 30, 2021, K.F. informed J.F. that she had filed for divorce in St.

John’s and did not intend to return to Boston with V. [9] J.F. filed an application pursuant to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980,C.T.S. 1983/35, 19 I.L.M. 1501 (entered into force 1 December 1983) (the “Hague Convention”), seeking an order returning V toBoston, Massachusetts. [10] K.F. resists the Application on the grounds that V’s habitual residence is in St. John’s and therefore the Hague Convention isnot applicable. LEGAL FRAMEWORK [11] The Supreme Court of Canada in Office of the Children’s Lawyer v.

Balev, 2018 SCC 16 at para. 24, the leading caseinterpreting the Hague Convention, outlined the purpose of the Hague Convention broadly: The return order [to the jurisdiction of habitual residence] is not a custody determination:

Article 19. It is simply an order designed torestore the status quo which existed before the wrongful removal or retention, and to deprive the "wrongful" parent of any advantage thatmight otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for thedetermination of custody and access. [12] The objects of the Hague Convention are expressed in

Article 1 as follows:

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 ContractingStates. [13] The court hearing a Hague Convention application does not determine issues of custody or consider the child’s best interests.The court’s primary obligation is to ensure that the child is returned to their habitual residence where those best interests will beconsidered. wrongful removal or retention [14] The Hague Convention only applies if the removal or retention of the child was wrongful. [15]

Article 3 of the Hague Convention 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, an institution or any other body, either jointly or alone, under the law of theState 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 butfor 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 oradministrative decision, or by reason of an agreement having legal effect under the law of that State. [16] Removal of a child is considered “wrongful” even if consent is granted by the other parent holding custody rights for the childto travel temporarily away from their home jurisdiction. It becomes wrongful when the child is then retained beyond what was originallycontemplated (Thomson v.

Thomson, (SCC), [1994] 3 S.C.R. 551). [17] In order to determine whether the retention is wrongful under the Hague Convention, the Court must first determine the child’shabitual residence immediately before the removal or retention. HABITUAL RESIDENCE [18] Determination of habitual residence is guided by Balev. The Supreme Court of Canada adopted a “hybrid approach” todetermining habitual residence, which seeks to balance the previously dominant “parental intention” approach against a “child-centered”approach.

The hybrid approach considers parental intention as one factor among others relevant to questions of habitual residence. Balev states that “all relevant links and circumstances” are to be considered, which includes the child’s links to Country A, thecircumstances of the move from Country A to B, and the child’s links to Country B. [19] Balev at paras. 44-45 instructs the court, when determining habitual residence, to consider:

• The duration, regularity, conditions and reasons for the child’s stay in a country; • The child’s nationality; • The age of the child and the relationship to primary caregivers; and, • The circumstances of the child’s parents including parental intentions. [ 20 ] Subsequent cases [2] have, when applying the Balev test for habitual residence, cited the following factors: • Whether a stay in a foreign jurisdiction was intended to be temporary; • Whether parents moved their belongings to the foreign jurisdiction; • Whether the parents had real property in the foreign jurisdiction; • Whether the children were enrolled in school in the foreign jurisdiction; • Whether the children were receiving social services, like health care coverage; • The nature of the children’s extended family and social environments in each jurisdiction; • The length of time the children spent in each jurisdiction; • The preferences of the children; • The citizenship of the parents and children; • Whether one of the parents are the primary caregiver; • Whether the child had doctors, therapists, medical or dental care professionals in each jurisdiction; and, • Whether the parents were employed in their respective jurisdictions. [ 21 ] Balev indicates that no one factor is determinative and that each must be analyzed in the totality of the circumstances.

If the court finds that the child’s habitual residence is a foreign jurisdiction, it must order the child’s return unless one of the Hague Convention exceptions applies. EXCEPTIONS [ 22 ] After a court establishes that a child is habitually resident in a foreign jurisdiction pursuant to a Hague application, the analysis does not end. As highlighted in Balev , the next step is to ascertain, notwithstanding the child’s habitual residence, whether they should remain in that court’s jurisdiction for the determination of subsequent custody questions.

There are five recognized exceptions, as stated in Balev at para. 29 , two of which are applicable to this case: If the requirements of

Article 3 are established,

Article 12 requires the judge in the requested state to order "the return of the child forthwith" unless certain exceptions apply. These exceptions can be summarized as follows:

(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

(3) The child of sufficient age and maturity objects to being returned (Article 13(2));

(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

(5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

[Emphasis added.] [ 23 ] The onus is on the party asserting that the child should remain in the jurisdiction, notwithstanding it is not the child’s habitual residence. In this case, K.F. submits that there is a grave risk that V’s return to Boston without her would expose the child to psychological harm or place the child in an intolerable situation. [ 24 ] Thomson provides that the “grave risk” must be greater than what would ordinarily be expected when moving a child from one jurisdiction to another; the harm must amount to placing the child in an intolerable situation.

The party asserting the harm must also show that the foreign jurisdiction is either unwilling or unable to protect the child from further harm. It is presumed that the legal and social systems in the child’s place of habitual residence are adequate to protect the child unless evidence is adduced to the contrary ( R. (D.) v. K. (A.A.) , 2006 ABQB 286 ).

summary of findings [ 25 ] For the reasons that follow, I find that V’s habitual residence was in Boston, Massachusetts, immediately prior to her wrongful retention on July 30, 2021. This was the date K.F. informed J.F. of her intention to separate and to remain in the Province with V. [ 26 ] J.F. had custodial rights to V and had been exercising them consistently in-person and otherwise throughout the period V and K.F. were in St. John’s. The couple lived together as a family when J.F. was in St. John’s, during which time he was actively involved in parenting his daughter.

Upon his return to Boston, J.F. was in regular communication with his daughter and wife by telephone and video calls. [ 27 ] The evidence supports that J.F. has not consented to the child remaining in St. John’s, Newfoundland and Labrador, on anything other than a temporary basis. The reason for their stay in St. John’s was in order for the child to avail of in-person learning as a result of the global pandemic. [ 28 ] I further find that K.F. failed to establish that any of the exceptions under

Article 13 of the Hague Convention would apply. I am satisfied that V would not be exposed to a grave risk of physical or psychological harm or would not be placed in an intolerable situation if she was returned to J.F. in Massachusetts. ANALYSIS Habitual Residence [ 29 ] J.F. submits that the child’s habitual residence is in Massachusetts, whereas K.F. maintains that it is in Newfoundland and Labrador. In finding that V’s habitual residence is in Massachusetts, I considered the following evidence. [ 30 ] The family has lived in a condominium in Allston, Massachusetts, since their marriage in July 2011.

V was born in Boston in 2014 and is seven years old. Since July 25, 2020, V has resided at her grandparents’ home in St. John’s, Newfoundland and Labrador, with K.F. and J.F. when he was there. [ 31 ] J.F. is 42 years old. He is an American citizen and a resident of the United States. J.F. is self-employed and owns a company which sells medical supplies to professional sports teams. He works primarily from the couple’s home in Allston, Massachusetts.

His work requires him to travel extensively throughout the United States, attending conferences and meeting with clients. [ 32 ] He met K.F., a native of Newfoundland and Labrador, in Boston, through her sister, L.G., also a Boston resident and a good friend of J.F.’s. The couple dated for approximately two years before marrying on July 23, 2011. [ 33 ] K.F. was born and raised in St. John’s and moved to the United States in 1997 to pursue a post-secondary education. She completed a degree in Occupational Therapy in 2001.

K.F. has lived in the United States for over 20 years and has worked as an occupational therapist since her graduation. For the past 13 years, K.F. has worked with the City of Boston, in the public school system. She is currently employed at a school in Boston, but has been on leave since September 2021. [ 34 ] Following V’s birth in 2014, K.F. took maternity leave from her position with the Boston Public School System, returning to work in January 2015.

As a result of K.F.’s employment with the City of Boston, the family was able to avail of the Boston Employees Day Care Center which provided child care at an affordable rate. [ 35 ] When the couple moved in together, J.F. used one of the two bedrooms in their home as his office. Following V’s birth, his office was converted to V’s nursery, and he relocated his office to the living room. The family’s medical insurance was provided by Blue Cross through K.F.’s employment with the City of Boston.

J.F. testified that this coverage remains in place notwithstanding the family’s stay in Newfoundland over the 2020-2021 period. [ 36 ] In 2016, when V was only two years old, K.F. was diagnosed with a fairly aggressive bladder cancer. She was diagnosed by a medical team at Massachusetts General Hospital in Boston and underwent surgery and chemotherapy. The cancer diagnosis was a shock to both J.F. and K.F. given her young age, especially where K.F. was a healthy, active young woman.

Both parties testified that the diagnosis turned their world upside down and had a significant impact on them emotionally. [ 37 ] K.F. is followed regularly by oncologists at the Massachusetts General Hospital and testified that her cancer remains in remission. [ 38 ] K.F. characterized her marriage to J.F. as an emotionally abusive relationship. K.F. availed of counselling services at HAVEN, which is affiliated with the Massachusetts General Hospital. HAVEN provides services to survivors of intimate partner abuse. K.F. was referred to HAVEN following an argument with J.F. on her way to chemotherapy.

K.F. jumped out of the car and walked the rest of the way to the doctor’s office. Because of her elevated blood pressure, chemotherapy was postponed. K.F. was so distressed, that the

Oncology Social Worker was called, who then immediately referred K.F. to HAVEN. [ 39 ] During K.F.’s stay in St. John’s over the past year, she has continued to avail of counselling services at HAVEN, remotely. V’s Schooling [ 40 ] V has lived in Boston her entire life. On July 25, 2020, she travelled to Newfoundland and Labrador for a vacation with her mother to see her grandparents.

She remained in Newfoundland with the consent of the parties for the 2020-21 school year. [ 41 ] V attended the Boston City Employees Daycare from age nine months until she was enrolled in pre-kindergarten at the age of three and a half. From 2017-2019, V attended pre-kindergarten in Boston. She was subsequently enrolled at the Gardiner Pilot Academy (GPA) in Boston for Kindergarten in the fall of 2019.

In April 2020, as a result of the global pandemic, GPA switched to on-line learning and V completed her Kindergarten school year virtually, from home. [ 42 ] J.F. testified that the choice of school for V in Boston was determined by a lottery and that they could have been assigned to any public school in the area. He reported that they were happy with the choice of GPA for V as K.F. had been told by her colleagues that GPA was “a really good school” and they expressed high praise for the principal and vice-principal.

They were also happy that the school included grades from Kindergarten to Grade Eight which would ensure continuity with the same cohort of students for a long period of time. V’s Health [ 43 ] V was diagnosed with hip dysplasia as a newborn and was treated for same at the Boston Children’s Hospital. She continues to be followed by an Orthopedic Surgeon on an annual basis.

V is also followed by a pediatrician in Massachusetts. [ 44 ] V was also seen regularly by a dentist in Boston and an optometrist. [ 45 ] When V entered pre-kindergarten at age three and a half, she exhibited some separation anxiety and coupled with K.F.’s recent cancer diagnosis, of which the child was aware, the parties agreed that V undergo some counselling offered at the school. V received counselling for one year and responded well. History leading up to July 30, 2021 [ 46 ] Since V’s birth, the family has travelled to Newfoundland each summer to visit with the maternal grandparents.

Their vacations would be for at least three weeks. J.F. would usually join K.F. and V for approximately a week most years. Prior to the start of the school year, the family would also travel to visit the paternal grandparents, who reside in Orlando, Florida. The family also travelled during the Christmas season to both St. John’s and Orlando so that V could enjoy time with both sets of grandparents. [ 47 ] As a result of the COVID-19 pandemic which was declared in March 2020, travelers to Newfoundland and Labrador required permission to enter the Province as the borders were closed to non-residents.

In July 2020, K.F.’s father experienced a health crisis and K.F. was granted permission to travel to Newfoundland with V, to provide support to her mother. J.F. remained in Boston so that he could oversee renovations to the couple’s home. [ 48 ] The home renovations had been planned for some time and required removal and replacement of the flooring throughout, painting, and new furnishings for the master bedroom. It was felt that the best time to do this work was when K.F. and V were away so as to be less disruptive to the family. After K.F. and V left for St.

John’s, J.F. packed up the home and proceeded to remove the existing flooring. [ 49 ] While K.F. was in St. John’s, J.F. was in daily contact with her, texting her pictures of the work in progress as well as FaceTiming or calling her when he was shopping for flooring or furniture to seek K.F.’s input and approval. K.F., herself, bought items online from St.

John’s for the couple’s home, including a rug for V’s bedroom. [ 50 ] Over a thousand pages of text messages between the couple were entered into evidence, which revealed the extent of their daily communications regarding this project throughout the summer of 2020. [ 51 ] J.F. testified that when K.F. and V left for Newfoundland on July 25, 2020, they only planned for the usual summer visit of around three weeks. K.F. and V packed the same amount of luggage as they had done for their past summer vacations.

It was anticipated they would return to Boston before the school year began. [ 52 ] As the summer wore on, and the case counts for COVID-19 continued to climb in Massachusetts, the Boston Public School System decided to remain closed to in-person learning that fall for the 2020-21 school year. [ 53 ] This issue was closely followed by the couple given that V was due to begin Grade One in September and K.F., who was employed in the Boston school system, would have to return to work.

It was not clear at that time whether K.F. would return to the classroom or be able to work remotely as she had when public schools first closed to in-person learning. With all of the family working from home last spring, J.F. and K.F. observed the challenges that V experienced in trying to complete her Kindergarten year remotely. [ 54 ] The couple discussed the options for V’s return to school when it became apparent that the Boston Public School System was leaning towards virtual or hybrid (part virtual,

part in-person) learning. K.F. was concerned about returning to the classroom given her cancer history and potential exposure to COVID-19. They also felt that it was not in V’s best interests to attend Grade One virtually. They considered private school in Boston where in-person learning was being offered. They also explored options for V to attend school in St. John’s where COVID-19 counts were low and schools were re-opening in the fall of 2020. [ 55 ] The couple ultimately decided that V and K.F. would remain in St. John’s temporarily so that V could attend school in-person.

K.F. could continue working remotely as Boston schools were maintaining virtual instruction, and K.F. would be safer given the low COVID-19 case counts. Their plan at that time was to return to Boston when in-person learning for V was reinstated or if K.F. had to return for work. [ 56 ] V was enrolled in Grade One at GPA in Boston, which she would attend virtually. However, once arrangements were made for V to attend at MacDonald Drive Elementary School in St.

John’s, V only logged in once for virtual instruction on a day she was home from school, sick. [ 57 ] Despite V attending school at MacDonald Drive Elementary, both J.F. and K.F. ensured that V continued to be enrolled at GPA so that she would have a seat when they returned. [ 58 ] J.F. joined his family on November 17, 2020. He drove K.F.’s car from Boston so that K.F. would have a vehicle available to her during her stay. Because K.F. and V had only packed summer clothing for what was initially contemplated to be a summer vacation in St. John’s, J.F. mailed a box with some winter clothing for them.

On his drive from Boston to St. John’s, J.F. brought additional winter clothing for the family. [ 59 ] In April 2021, when Boston schools returned to in-person learning, the couple discussed whether to return to Boston. As there were only a few months left in the school year, they elected not to disrupt V and let her finish the year as K.F. was still able to work remotely. [ 60 ] J.F. remained in St. John’s where he, too, worked remotely until March, 2021. He testified that he was required to return to Boston to fulfill a prior commitment, but returned again on May 31, 2021.

J.F. stayed through to June 30, 2021, having promised V that he would be there in person to celebrate her birthday. [ 61 ] During the entirety of the family’s time in St. John’s, K.F., V and J.F. stayed with K.F.’s parents at their main residence in St. John’s and at their summer home in Portugal Cove. [ 62 ] When J.F. returned to the province in May 2021, he drove his truck from Boston, bringing with him a scooter and bikes for V, along with storage bins to bring their belongings back.

K.F. and V helped to pack the bins with their winter clothing and toys, for transport to Boston in anticipation of their return. [ 63 ] K.F. and J.F. also discussed the logistics of returning K.F.’s vehicle to Boston as J.F. did not feel it was safe for K.F. to drive herself and V back to Boston alone. Several options were discussed including J.F. flying back to St.

John’s to drive the car back; having K.F.’s mother and friend drive the car back; or K.F.’s father drive back. [ 64 ] J.F. also testified that he and K.F. discussed their expected return in August 2021 so that he could make travel arrangements for V to visit his parents in Orlando. The timing of K.F.’s and V’s return to Boston was planned around a “Member and Friend” golf tournament at J.F.’s country club, scheduled from August 12-15, 2021. J.F. and his friend, C.J., were participating. According to J.F.’s evidence, K.F. agreed to come after the tournament ended so C.J. could stay at their condo.

The date they agreed on was August 16, 2021. [ 65 ] K.F. denied any such agreement, however, her evidence was contradicted by a telephone recording K.F. entered into evidence. This recorded phone call of July 29, 2021, between K.F. and J.F. confirmed J.F.’s evidence on the agreed upon return to Boston. [ 66 ] J.F. was anxious to finalize the return trip as he needed to make travel arrangements for V to see his parents in Orlando before school started. He said V still had not had her Christmas with them, and she was looking forward to the trip.

Evidence leading up to Habitual Residence Finding [ 67 ] Balev at para. 43 states that “all relevant links and circumstances” are to be considered, which includes the child’s links to Country A, the circumstances of the move from Country A to B, and the child’s links to Country B. [ 68 ] In arriving at the decision that V’s habitual residence was in Boston, Massachusetts, immediately prior to the wrongful retention, I find the following facts relate to all the relevant links and circumstances: Child’s link to Country A – Massachusetts, USA a.

K.F. has resided in the United States of America since 1997, when she left Newfoundland to enroll in university and embark on her career. b. K.F. has both Canadian and American citizenship. c. K.F. and her sister, L.G., own a condominium in Allston, Massachusetts. d. K.F. and J.F. have occupied the condominium as their marital home since their marriage in July 2011. e. V was born in Boston in June 2014 and lived there her entire life prior to the trip to Newfoundland on July 25, 2020.

f. V has both American and Canadian citizenship. g. V attended Daycare, Pre-Kindergarten, and Kindergarten in the Boston Public School System. h. V has been enrolled in dance, piano, swimming, and tennis lessons in Boston until the pandemic was declared. Some activities were continued virtually before the family left for Newfoundland in July 2020. i. V was enrolled in Grade One at GPA in the fall of 2020, despite also attending MacDonald Drive Elementary School in St. John’s. j. V is currently enrolled in Grade Two at GPA in Boston and has a classroom allocated to her for when she returns. k.

V has a Dentist, Optometrist, Pediatrician, and Orthopedic Surgeon in Boston. l. V is enrolled in piano lessons at the Brookline Music School in Boston, which she has attended remotely over the period spent in the Province, so as to maintain her seat in the program. m. V has friends in Boston, some of whom she maintained FaceTime contact with over the period V was in Newfoundland. n. V is very close to her aunt, K.F.’s sister, who lives in Boston. Aunt L sees the family on a regular basis and provided care for V when K.F. was ill. o.

K.F. has been employed with the Boston Public School System for 13 years and is currently on leave from her employment. p. K.F. worked remotely for the Boston School System throughout the 2020-21 school year from St. John’s. q. K.F. voted in the U.S. Presidential Election in November 2020. r. K.F. filed an Income Tax Return for the 2020 year in the United States. s. J.F. is an American citizen and a resident of the United States. t. K.F. renewed both her motor vehicle registration and her driver’s license in Massachusetts while in Newfoundland. u.

The family’s health insurance through K.F.’s employer remained in force throughout the family’s time in Newfoundland and was renewed through to 2022. v. K.F. has and continues to avail of counselling services through HAVEN in Boston since July 25, 2020. w. Both V and K.F. helped pack J.F.’s truck with their belongings, including V’s toys and gifts, for his return trip to Boston in

June 2021. x. The bulk of V and K.F.’s belongings remain in Boston. y. J.F. has continued to work in his business in Boston, both in-person and remotely since July 2020. The circumstances of the move from Country A to B z. V’s travel to St. John’s on July 25, 2020, was to see her grandparents. aa. Due to the pandemic closing the Province’s borders, permission was required for non-residents to enter. K.F. and V were granted permission to enter for purposes to provide support to her mother arising from her father’s health crisis. bb.

J.F. remained in Boston to oversee planned renovations to the marital residence, which were completed in September. cc. K.F. and V packed for their usual summer vacation, taking only summer clothing with them. dd. The vacation was extended into the fall of 2020 as a result of the COVID-19 pandemic closing Boston schools to in-person learning. ee. K.F. could work remotely from St. John’s at her job at the school in Boston. ff. Both K.F. and J.F. felt it was a priority to have V attend in-person learning for Grade One and St. John’s schools were re- opening to in-person learning in the fall of 2020. gg.

COVID-19 counts were low in Newfoundland compared with Massachusetts. This was a concern for K.F. given her health history. hh. By the time in-person learning was reinstated in Boston in April 2021, the parents felt that it would be best not to disrupt V this late in the school year and decided to let her finish Grade One in St. John’s. ii. When school ended in June, K.F. and V remained in St. John’s for their usual summer vacation. Child’s link to Country B – Newfoundland and Labrador, Canada jj. V attended school at MacDonald Drive Elementary in St. John’s for Grade One, from September 2020 to June 2021. kk.

K.F.’s parents live in St. John’s and are very close to K.F. and V. ll. K.F. and V ordinarily vacation twice per year in St. John’s to see K.F.’s parents. These visits usually include a three-week stay in the summer and a week at Christmas. mm. The F family did not purchase or rent accommodations in Newfoundland and remained with K.F.’s parents throughout their entire stay. nn. V was enrolled in multiple extracurricular activities in St. John’s, including golf, tennis, voice lessons, piano lessons, and

horseback riding. oo. V has a close relationship with her cousins as they are similar in age. pp. V and K.F. were enrolled in the Province’s Medical Insurance Plan for a period of one year. qq. V has been seen by an optometrist and dentist in St. John’s and also has a family physician. [69] Habitual residence in a specific country is a factual determination, to be decided by reference to all the circumstances. Thecourt in Medic v.

Medic, 2020 ONSC 6447 at para. 28, in discussing “habitual residence” noted that it must look at the facts, the sharedintentions of the parties, the history of the child’s location and the settled nature of the family prior to the facts giving rise to the requestfor return. [70] In reviewing the jurisprudence, the court referred to a passage in Korutowska-Wooff v. Wooff, 2004 ONCA 5548, at para. 8, adecision of the Ontario Court of Appeal, describing the term “habitually resident”: 8 The term “habitually resident” is not defined in the Convention.

However, the English courts have provided Canadian courts withguidance on the

interpretation and application of this term in the cases of J. (A Minor) (Abduction: Custody Rights), Re, [1990] 2 A.C.562 (U.K. H.L.), and R. v. Barnet London Borough Council (1982), [1983] 2 A.C. 309 (U.K. H.L.). See Chan v. Chow (2001), 2001BCCA 276 , 199 D.L.R. (4th) 478 (B.C. C.A.) at paras. 30-34; Kinnersley-Turner v. Kinnersley-Turner (1996), (ON CA), 94 O.A.C. 376 (Ont. C.A.) at paras. 19-20.

The principles that emerge are: • 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.; • a child’s habitual residence is tied to that of the child’s custodian(s). [71] In Medic, the court also considered the meaning of “habitual residence” referred to in Chan v.

Chow, 2001 BCCA 276, wherethe British Columbia Court of Appeal set out the following points: 31 For the purposes of the Convention, the best and most useful definition of “habitually resident” can be found in Re J. (A Minor)(Abduction: Custody Rights), [1990] 2 A.C. 562 (U.K. H.L.), at 578 where Lord Brandon stated: The first point is that the expression “habitually resident” as used in

Article 3 of the Convention is nowhere defined. It follows, Ithink, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to theordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habituallyresident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.

The thirdpoint is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequentlybecoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves itwith a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, becomehabitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him orher to become so.

During that appreciable period of time the person will have ceased to be habitually resident in country A but not yetbecome habitually resident in country B. The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, hissituation with regard to habitual residence will necessarily be the same as hers. [72] In Knight, the parties resided in Toronto, Ontario, until December 2018, when the family moved to Wellesley, Massachusetts,to be near the father’s work. The parties separated shortly thereafter, in February 2019.

In March 2019, the mother returned to Torontowith the children for a visit with the father’s knowledge and consent. Once in Toronto, the mother informed the father that she was notreturning. The father brought a Hague Application seeking the return of the two children to Massachusetts. [73] The court considered the background leading up to the parties’ move to Massachusetts. It noted that the family had spent theprevious 13 months preparing for the move. The mother closed her medical practice in Toronto, the couple gave up the leases on theirhome and cars and purchased a new home and vehicles in Wellesley.

In preparation for their arrival in Wellesley, the couple had theirhome renovated and decorated for Christmas.

[ 74 ] Referring to the hybrid approach in Balev , the court at paragraph 27 noted that the application judge determines the focal point of the child's life — "the family and social environment in which its life has developed" — immediately prior to the removal or retention along with consideration of all of the relevant links and circumstances of the child’s move from one country to the other, and the child’s links and circumstances in each country. [ 75 ] The court noted further at paragraphs 28-30: 28 Under the hybrid approach, instead of focusing primarily on either parental intention or the child’s actual acclimatization, the judge determining habitual residence must look at all relevant considerations arising from the facts of the case. 29 Considerations include but, are not limited to, the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality.

No single factor dominates the analysis, rather the application judge should consider the entirety of the circumstances: Balev at para. 44 . The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev at para. 47 .

While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed. 30 Although the hybrid approach requires the court to consider all the circumstances, the court emphasizes that it is the habitual residence of the child at the time immediately prior to the wrongful removal or retention that is relevant. [ 76 ] The court in Knight found that it was clear on the evidence that the parties were leaving Ontario and re-establishing a family home in Massachusetts, following months of discussions and preparation.

The parties had given up their residence in Ontario and moved as a family to Massachusetts. The parental intention was clear. [ 77 ] In contrast with the case before me, there was no intention on the part of either parent to establish Newfoundland and Labrador as their habitual residence. Circumstances arising from the global pandemic allowed the family to avail of in-person learning for their daughter, V. J.F. maintained his business and other connections in Boston. He oversaw the couple’s planned renovations to the family home in the summer of 2020.

K.F. retained her employment with the Boston School System, maintained her vehicle registration, drivers’ license, and counselling in Boston. V was registered to attend GPA virtually for Grades One and Two and piano lessons were continued virtually so as not to lose her place at the Brookline Music Academy. [ 78 ] K.F. urged the Court to consider the “focus of the child’s life” as being in Newfoundland over the past year, citing familial ties, close relationships with cousins, friends that V had made, and school and extracurricular activities she attended.

Yet the evidence is also clear that up until July 30, 2021, when K.F. communicated to J.F. her intention to remain in the Province with V, it was the family’s settled intention to reside in Boston. [ 79 ] Under the hybrid approach to habitual residence, the focus of the child’s life is a relevant consideration, but not to the exclusion of other factors. [ 80 ] Another factor to consider is whether one of the parents is the primary caregiver. K.F. spent a considerable time leading evidence of the various roles each party played in the relationship with respect to V.

She referred to her calendars for the years 2019 and 2020 to show how many days J.F. was actually in Boston to parent V due to his work travel commitments and playing golf. J.F. disputes that K.F. was the primary caregiver and asserted that the couple co-parented V as a married couple up until their separation two months earlier. [ 81 ] J.F. recounted multiple examples of how he would take V to play dates, both in Boston and St. John’s, drove her to school every day, to piano lessons, and shopped for groceries together on the way home from school.

He also described how he and V would cook together, looking for recipes on the internet to make together. [ 82 ] K.F. asserted that she was the primary parent in the relationship based on the fact that V spent most time with her and was very attached to her. She highlighted that she took six months of maternity leave and was the primary parent at that time as well as organizing all of her activities.

She pointed out the number of business and golfing trips J.F. had taken in 2019 and 2020 to support the fact that he was not around enough to share the parenting to the same degree. [ 83 ] There is no doubt that the evidence supported the fact that J.F. travelled extensively for work and golf. He is an avid golfer and has a membership at a country club in Boston. He enjoys golf trips with his friends and often combines golf with business. [ 84 ] I am not convinced that a person’s parenting time can only be measured by the amount of time they spend in the home where the parties are not separated.

An examination of their overall contributions to the child rearing should be considered. [ 85 ] Up to the date of the wrongful retention, J.F. and K.F. were jointly parenting V. Each party contributed to the child rearing and family in their own way. I accept that K.F., at times, spent more time with V than J.F. However, J.F. did other parental activities such as driving, cooking, preparing breakfast and lunches for V, and taking her on trips to see his parents in Florida.

When K.F. was undergoing surgery and treatment for cancer, J.F. and other family members stepped up and assisted with the parenting and household tasks associated with V. [ 86 ] At the time of the parties’ separation, which coincided with the date of the wrongful retention, each of the parties were actively engaged in parenting V. Naturally, while J.F. was in Boston, the bulk of the hands-on parenting in Newfoundland was done by K.F. However, J.F. spent roughly six months of the twelve months K.F. and V were in Newfoundland with the family. During this time, J.F.

was an active participant in V’s care. [87] I note further that K.F. and V were in Newfoundland with J.F. as a family. I find the fact that K.F. spent more time parenting Vis a relevant factor, but it is not a determining factor of V’s habitual residence. It is but one of many factors I have considered as directedby Balev. [88] The fact that the child spent an appreciable period of time in Newfoundland does not displace Massachusetts as the habitualresidence. As noted in Chan at para. 31, “An appreciable period of time and a settled intention will be necessary to enable him or her tobecome so.

During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet becomehabitually resident in country B.” (Emphasis added). [89] Throughout V’s stay in Newfoundland, her parents maintained their connections and the child’s to Boston and exhibited asettled intention to remain habitual residents of Boston.

As with most young children, the child’s environment is essentially their familyenvironment. [90] Having regard to the totality of the circumstances, I find Boston, Massachusetts, is the habitual residence of the child, V. [91] On July 30, 2021, when K.F. advised J.F. that she would not be returning to Boston with the child, V was wrongfully retained.

Article 13 – Exceptions under the Hague Convention [92] Having found that the child’s habitual residence is Boston, Massachusetts, I must now consider whether the exceptions set outin the Hague Convention are applicable.

Article 13(

a) of the Hague Convention [93] In her brief, K.F. relies on

Article 13(

a) alleging that at the date of the wrongful retention, J.F. was on a golfing trip in Oregonand therefore not actively exercising custody rights at that time. Alternatively, she claims that J.F. consented to the alleged retention. [94] I will address it by stating that K.F.’s

interpretation of

Article 13(

a) is too literal and does not reflect the objects of the HagueConvention, which would require it to be widely construed. The fact that a parent is away on vacation does not preclude a finding thatthey were still actively exercising custody rights. [95] Further, on the consent issue, J.F. was very clear in his evidence and in the recorded telephone conversation of July 29, 2021,with K.F., that he was awaiting receipt of the travel itinerary for their return to Boston in August 2021. There was no discussion regardingextending the visit beyond the previously agreed date in mid-August.

Article 13(

b) of the Hague Convention [96] K.F. asserts that to send the child back to Boston will create a risk of grave psychological harm and place the child in anintolerable situation as per

Article 13(

b) of the Hague Convention. K.F. states that she is not prepared to return to Boston, therefore, Vwould have to be returned to her father’s care. She argues that V is extremely attached to her and to separate V from her mother willcause V grave psychological harm. She further alleges that V is not comfortable with her father and K.F. fears that she will beemotionally abused. She states that he is not vigilant with respect to V’s health needs, citing an example where he was prepared to takeher to Florida by plane when she had an ear infection.

In July 2020, J.F. took V to Orlando to visit his family and to Disney despite healthadvisories being given to avoid crowds. [97] The issue of “grave risk of harm” and “intolerable situation” was addressed by the Supreme Court of Canada in Thomson atparas. 82-83: 82 It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief,although the word “grave” modifies “risk” and not “harm”, this must be read in conjunction with the clause “or otherwise place the childin an intolerable situation”.

The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harmcontemplated by the first clause of art. 13(

b) is harm to a degree that also amounts to an intolerable situation…. 83 I hasten to add, however, that I do not accept Twaddle J.A.’s assessment that the risk contemplated by the Convention must comefrom a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver.As this Court stated in Young v. Young, (SCC), [1993] 4 S.C.R. 3 [[1993] 8 W.W.R. 513], from a child centredperspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant fromwhence it came.

I should observe, however, that it would only be in the rarest of cases that the effects of “settling in” to the abductor’senvironment would constitute the level of harm contemplated by the Convention. By stating that before one year has elapsed the rule isthat the child must be returned forthwith, art. 12 makes it clear that the ordinary effects of settling in, therefore, do not warrant refusal tosurrender.

Even after the expiration of one year, return must be ordered unless, in the words of the Convention, “it is demonstrated thatthe child is now settled in its new environment”. [Emphasis in original.] [98] In order to assess the degree of psychological harm required to meet the threshold for a finding of “grave risk” or being placedin an “intolerable” situation, Pollastro v. Pollastro, (ON CA), 43 O.R. (3d) 485, 171 D.L.R. (4th) 32 (C.A.), providessome context for the necessary threshold.

[ 99 ] In Pollastro , the Ontario Court of Appeal refused to return a child habitually resident in California under

Article 13(b). Abella J.A., as she then was, found that returning the child to a violent environment placed that child in an inherently intolerable situation, as well as exposing him to a serious risk of psychological and physical harm. She identified the following facts supporting her finding at paragraph 32:

a) He has been verbally abusive and threatening to his wife, family and friends;

b) He has been violent towards her, causing physical harm;

c) He has behaved irrationally and irresponsibly, both during and after their cohabitation;

d) He has a drug and/or alcohol problem;

e) He has been unpredictable and unreliable when he has been responsible for Tyler’s care;

f) His temper is difficult for him to control; and

g) His hostility towards his wife is palpable. [ 100 ] There was also evidence of threatening phone calls, which reflected a continuing inability on the father's part to control his temper or hostility. The court found that the mother, who would inevitably accompany the child if he was ordered to return to California, would be returning to a dangerous situation. This represented a grave risk of exposure to serious harm to the child personally. [ 101 ] K.F. testified that she has been the victim of domestic emotional abuse and that as a result, she is simply unable to return to Boston.

She stated that she does not have the same supports in Boston as she has in Newfoundland. She reported great difficulty during the trial having to face her husband and talk about the incidents of abuse. [ 102 ] K.F.’s supports in Boston include a close relationship she has with her sister who lives in Boston. She has engaged regularly with a counsellor in Boston both before and during her stay in Newfoundland.

She also reported having friends in Boston, one of whom provided her their home key in case of an emergency. [ 103 ] It was apparent from the evidence that J.F. and K.F.’s relationship was troubled, if not dysfunctional. K.F. testified to a history of emotional abuse inflicted by J.F. She spoke of the impact it had on her and V and that she had sought both family counselling as well as individual counselling. She testified that she did not realize that she was in an abusive relationship until she went through the process of counselling.

It was then that she realized that J.F. had been emotionally abusive to her over the course of their relationship. [ 104 ] I heard testimony from K.F.’s counsellor at HAVEN in Boston. Sandra Elien is a domestic violence counsellor with 29 years’ experience. She met K.F. in November 2017 and conducted a very detailed assessment before accepting her into the program. [ 105 ] Ms. Elien confirmed that she counselled K.F. on 11 occasions between January 2018 and March 2018. There were no counselling sessions from April 2018 to November 2020. Counselling resumed while K.F. was in St.

John’s in December 2020 and has continued on average 3-4 times per month throughout 2021. [ 106 ] Ms. Elien testified to a pattern of behavior disclosed by K.F. relating to J.F.’s control of financial matters, parenting, and whether she could spend time with her friends. K.F.’s reports were corroborated by her sister and mother who also had attended with K.F. at one or more of her sessions with Ms. Elien. Ms.

Elien described indicators of emotional abuse including when a person says they have no say in the relationship, always waiting for the other shoe to drop, walking on eggshells, never being good enough, or not being able to spend time with friends and family. She described these things as red flags. [ 107 ] She testified that emotionally abusive partners can change, but in her experience, she has yet to have a client come back and say their partner was a changed person. Instead, the partner reverted to their pattern of control and emotional abuse. [ 108 ] When asked whether there was a risk of physical abuse, Ms.

Elien said the risk is always there in that things could escalate. She advised K.F. to have a safety plan in place, which K.F. testified she had done, including having a key to her sister’s and a friend’s home and a bag packed for her and V in case she had to escape. [ 109 ] Ms. Elien confirmed that as a mental health professional, she has a mandatory obligation to report physical or emotional abuse of a child. She confirmed that she had never made a report based on the information reported by K.F. to her in the course of their counselling sessions. [ 110 ] Similarly, K.F. has never made such a report.

There were no instances where police or child protective services were ever called to assist this family. K.F. herself testified that she never feared physical abuse.

[ 111 ] K.F.’s mother, L.G., was called to testify with respect to J.F.’s behavior towards K.F. and V. For example, she described J.F. as unsupportive when K.F. was diagnosed with cancer.

At the time, V was only two years old and K.F. was coping with maintaining her employment (so that the family could avail of medical insurance), caring for a young child, and a serious life-threatening illness. [ 112 ] Several weeks following two surgical procedures to diagnose the cancer, K.F., her mother, a support person, and J.F. attended an oncology team meeting at Massachusetts General Hospital to discuss K.F.’s diagnosis and treatment options.

These options included bladder removal with reconstruction or chemotherapy of a four-year duration. [ 113 ] According to K.F. and her mother, J.F. attended this meeting with his suitcase and appeared disinterested in the discussion. He was scheduled to fly to Thailand that day for a week-long bachelor party. K.F.’s mother expressed dismay that K.F.’s husband left her at a most difficult time while she was adjusting to the news of her diagnosis and potentially difficult treatment plans, to go on a pleasure trip.

J.F. testified that he went on that trip with K.F.’s blessing. [ 114 ] L.G. described J.F. as “very abrupt” and “extremely rude”. While she is sure that J.F. loves V, L.G. observed that he treats her the same way he treats K.F., which she felt was rough and showed little patience with a young child. L.G. said that V was very perceptive and if J.F. raised his voice, she would sing or play to distract herself. She reported that V cried easily and would get upset when witnessing her father’s behavior. [ 115 ] L.G. also observed that when J.F. arrived in St. John’s in November, V was a little more anxious.

She said that V was happy to see her Dad but that her personality changed somewhat when J.F. was in the house – she would be sullen, not the same super happy V that they had in the house before. [ 116 ] She described her own relationship with J.F. as strained, and felt that J.F. wanted to “push her out of the picture”. L.G. also testified to a number of instances of verbal abuse by J.F. towards K.F. [ 117 ] K.F. described one incident shortly after V’s birth while the parties’ parents were visiting. J.F. yelled at her for the way she loaded the dishwasher.

L.G. testified that she recalled the event, coming upon her daughter crying in the kitchen while J.F. yelled at her over the dishwasher. [ 118 ] K.F. also described how J.F. would get upset over how food was stored in the refrigerator, requiring that K.F.’s food be stored separately from his food. K.F. had resorted to placing labels on the shelves in the fridge to denote each party’s space so she would not forget, to avoid upsetting J.F. J.F. testified that K.F. bought a lot of fresh produce and it would rot in the fridge causing arguments.

He requested that K.F. keep her food separate from his which cut down on the arguments. [ 119 ] The parties also maintained separate finances. J.F. who earned roughly twice what K.F. did, contributed to the mortgage and other related expenses by transferring the funds to K.F.

K.F. would tell J.F. how much he owed her each month as the mortgage, condo fees, and other expenses would be automatically debited from her account. [ 120 ] K.F. testified that there were multiple occasions in which she had found herself short on funds to pay a babysitter, her credit card bill, or expenses related to her wellness care, while J.F. enjoyed an expensive golf membership and pleasure trips with friends.

When K.F. sought assistance to cover her shortfall, J.F. would chastise her for not budgeting more carefully. [ 121 ] J.F. denied K.F.’s allegations that he controlled everything in her life including what meals they ate. He stated that this was “completely and totally false”. J.F. testified that he would regularly text K.F. when he was at the supermarket to ask her what she wanted for dinner, pointing out multiple texts exchanged between them in support of his evidence. [ 122 ] I also heard from K.M., a friend of the family. K.M. had travelled to Boston to visit K.F., with K.F.’s mother on several occasions.

She testified to observing the labels on the fridge shelves. K.M. also testified to several instances which she observed J.F. yelling at V telling her to hurry up so that she wouldn’t be late for school. [ 123 ] K.F. raised a further concern in her Affidavit evidence in response to J.F.’s Application. At paragraph 52, she states: “I am concerned that he encourages her [V] to sleep with him while he is sleeping nude”. [ 124 ] J.F. vehemently denied the allegation. J.F.’s explanation was reasonable.

He described himself as a hot sleeper and as a result often slept nude and on top of the bed covers with only a light sheet or blanket covering him. If V were to come to the couple’s bed, V would get under the covers with K.F. and there would be no contact between them. As V got older, he took to wearing sleep shorts in the event that V would come into their bed unexpectedly. He was visibly upset by the allegation and disgusted that K.F. would imply any kind of sexual impropriety in using the word “encouraged”. [ 125 ] On her direct and cross-examination, K.F. did not use the word “encouraged”.

Rather, that she had to remind J.F. to wear clothing to bed in case V were to seek her parents out while they were asleep. In my view, this was a weak attempt to establish a grave risk of harm. Despite these alleged concerns, K.F. had no difficulty in the past having V travel with J.F. alone to Orlando or other places. It was not an issue when K.F. prepared a parenting plan for J.F.’s consideration. She proposed extended parenting time during the summers.

If there was truly a grave risk of psychological harm or the potential for sexual abuse, K.F. would not have proposed such access and child protective services would have been notified. [ 126 ] The evidence of K.F. and the witnesses called on her behalf described J.F. as an unsupportive husband, rude, self-absorbed, and emotionally abusive. While this may be the case, the thousands of texts between the couple revealed a somewhat different picture.

Whether it is because of the nature of text communication itself, or K.F.’s perception of what J.F. intended to communicate to her, I did not find any evidence that J.F. expressed himself in a threatening or abusive manner to K.F. in their text communications covering the period from April 27, 2019 to September 6, 2021. [ 127 ] K.F. testified she recorded the call of July 29, 2021, as she was concerned because the tone of his texts leading up to the call was changing. She felt he was getting angrier. She described him as yelling at her during that call.

[ 128 ] I reviewed the texts in the month leading up to the call. I did not detect a negative tone. On July 15, 2021, J.F. says, “You never say you love me or miss me –nothing. When I say it. I get ok.” K.F. does not respond to these texts. In subsequent texts, K.F. responds to J.F. with pictures of V. On July 28, 2021, J.F. sends multiple texts inquiring about the flights home and his need to plan for V’s visit with his parents. K.F. does not reply. J.F. expresses concerns with K.F.’s lack of communication and how it is affecting his mental health.

There is no further text communication from K.F. until after she calls him on July 29, 2021. [ 129 ] In listening to their recorded conversation of July 29, 2021, J.F.’s distress is readily apparent as he tells her how upset it made him that she had not called him in the weeks since he left Newfoundland. He was clearly worried about the state of his marriage and being able to speak with his daughter. [ 130 ] I find that K.F.’s perception of the text messages and tone of the recorded phone call is inconsistent with the objective evidence.

K.F. led this evidence to impeach J.F.’s credibility with respect to any agreement with respect to the date of her and V’s return to Boston. Instead, the call confirmed J.F.’s evidence on that point. [ 131 ] K.F. challenged J.F.’s credibility, and I was urged in final argument to discount J.F.’s testimony in every place where it was in conflict with K.F.’s. [ 132 ] While there were some discrepancies in both of their evidence, the majority of the factors which were relevant for my consideration in determining habitual residence were not dependent on either party’s credibility.

Psychological impact on V [ 133 ] When asked by her counsel to describe V in the year prior to departing for St. John’s, K.F. described her as “imaginative, creative, plays independently, enjoys singing and dancing”. She did note V’s history as a poor sleeper and the challenges with V’s separation anxiety. [ 134 ] This is in contrast to the picture she painted in trying to establish the risk of emotional harm should V be required to return to Boston. She described a positive change in V’s behavior with respect to sleep and attending school while the family was in St.

John’s. [ 135 ] K.F. also testified that even in Kindergarten, V displayed separation anxiety. She reported that V had a much harder time than other kids of the same age. She noted that V was still crying three weeks into the school year. By comparison, K.F. testified that V was able to successfully start a new school in St. John’s without tears and was able to make friends and happily go to school at MacDonald Drive Elementary. She says the teachers reported no concerns. [ 136 ] V has always had trouble with sleeping through the night.

Both parents described how they had tried “sleep training” which involved letting the child “cry it out” to allow her to learn how to self soothe. J.F. was somewhat critical of this approach despite K.F. having discussed it with the child’s pediatrician. J.F. felt that they had started it while V was too young. As a result, K.F. described him as unsupportive and more concerned with disturbing the neighbors than with V’s cries during the night. [ 137 ] K.F. did say that J.F. let her encourage V to sleep in her own bed. However, she would be the one to respond if V woke.

She said J.F. was just as happy if V came into their bed where he would read her a story and then have K.F. return V to her own bed. K.F. felt that the child was receiving mixed messages which was affecting the sleep training. [ 138 ] K.F. testified that while in St. John’s, V started to sleep in her own bed consistently. While at the grandparent’s primary residence, K.F. and V shared a room, although they had separate beds. When J.F. was in St. John’s, he slept in a bedroom in the basement where he was cooler and was able to sleep more comfortably.

K.F. testified that V would go to J.F.’s room in the basement to sleep in the bed with him, despite their discussions to encourage V to sleep in her own bed. When the family moved to K.F. parents’ summer home, V had her own room. K.F. reported that V successfully transitioned to sleeping in her own bed. [ 139 ] In June 2021, when J.F. returned to celebrate V’s birthday, K.F. reported that there were nights when V slept with J.F. at the summer home.

K.F. stated that when J.F. returned to Boston at the end of June, V returned to sleeping in her own bed. [ 140 ] I find it significant that V would seek out the comfort of her father during the night. It contrasts with the narrative K.F. advanced in her evidence regarding V’s relationship with J.F. [ 141 ] K.F. testified that V’s behavior would change when J.F. returned from Boston as V would be guarded and tense around him. She minimized his involvement with V despite the fact he testified that he was involved with his daughter on a daily basis while in Boston and St.

John’s. [ 142 ] While I accept that the parties had a difficult relationship, the evidence demonstrated that J.F. clearly loves his daughter and was devastated by the abrupt end of his marriage. J.F. acknowledged that there were difficulties in their marriage but stated he thought his wife loved him. [ 143 ] Having considered all the evidence, I am not satisfied that K.F. has met the stringent threshold described in Thomson , for a finding of a grave risk of harm or intolerable situation. The emotional abuse which K.F. described was not directed at V.

She had no concerns allowing J.F. to take V for an extended trip to Florida by himself. There were no reports of abuse towards V and the observations reported by K.F., her mother, and friends as to the apparent tension exhibited by V in her father’s presence is contradicted by K.F.’s same reports that V would seek out his comfort at night. [ 144 ] The evidence does not establish that V would be at grave risk of psychological harm or be placed in an intolerable situation if she were to be returned to Boston in her father’s care.

If it was established that there was a grave risk of harm to V, K.F. failed to lead any evidence that the local child protective authorities or police would not be able to intervene to protect the child. [ 145 ] It is likely that given the close relationship between K.F. and V, the child may experience separation anxiety if K.F. chooses to

remain in St. John’s. As noted in Thomson , the risk of harm to the child would only arise if the mother refused to accompany the child. However, given V’s relationship with her father, I am not satisfied that V would be exposed to a grave risk of psychological harm or be placed in an intolerable situation so as to order the child remain in St.

John’s. [ 146 ] In keeping with the stated objects of the Hague Convention to secure the prompt return of a child wrongfully retained and to ensure that rights of custody and of access under the laws of the United States are effectively respected in Canada, V should immediately be returned to Boston. [ 147 ] While I appreciate that this move will be disruptive for V as she is currently attending Grade Two in St. John’s, I am confident that with her parents’ support and encouragement, she will successfully transition back with her classmates at GPA in Boston.

ORDER [ 148 ] I therefore order that the child, V, be returned to Boston, Massachusetts, no later than November 16, 2021. [ 149 ] If K.F. decides that she wishes to accompany the child to Boston, she shall notify J.F. within 24 hours of the date of this decision. Ideally, if K.F. is prepared to return to Boston, J.F. should vacate the marital residence so that V and K.F. can reside there pending resolution of their parenting and other matrimonial issues.

I do not have jurisdiction to make such an order but would hope that J.F. would accommodate K.F.’s request. [ 150 ] Alternatively, if K.F. chooses to remain in St. John’s, she shall immediately turn over V’s passport to J.F.’s counsel. [ 151 ] J.F. shall make the appropriate travel arrangements to return with the child to Boston by November 16, 2021. COSTS [ 152 ]

Article 26 of the Hague Convention provides the Court with discretion to direct the person retaining the child to pay necessary expenses incurred by the applicant, including travel, legal, and cost of returning the child. [ 153 ] Rule F33.02 (2) of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D ( Family Law Rules ), provides that there is a presumption that a successful party is entitled to the costs of the proceeding. [ 154 ] J.F. is seeking full indemnification of his legal costs incurred in seeking the return of his daughter to Boston.

He says this trial, originally scheduled for four days, could have been much shorter than the twelve days it took to conclude. K.F.’s focus on leading evidence relating to parenting/mobility issues was unnecessary for the scope of a Hague Application. [ 155 ] K.F. asks that if she is unsuccessful, that costs not be awarded against her. She cites J.F.’s request for costs as a further illustration of his intimidation. She notes as well that he makes far more money than she does. [ 156 ] I have considered the applicable legal principles with respect to an award of costs and the circumstances of this case.

There is no reason to depart from the established presumption that costs be awarded to the successful party. [ 157 ] However, the award of costs should not be so high as to deprive a parent of the financial ability to care for a child or pursue legal proceedings in the habitual residence with respect to parenting/mobility of the child. [ 158 ] I therefore award J.F. his party and party costs for one counsel, calculated pursuant to Column 3 of the Scale of Costs. The airfare and hotel costs associated with J.F. bringing V back to Boston will be borne by K.F. _____________________________ Irene S. Muzychka Justice