COURT FILE NO.:  04-BN-0115

DATE:  20040702

 

 

SUPERIOR COURT OF JUSTICE - ONTARIO

 

 

RE:            A.S. v. Y.S.

 

BEFORE:   SNOWIE J.

 

COUNSEL:  Nadia Chandra, for the Plaintiff

 

                             D. Russ Makepeace, for the Respondent

 

HEARD:      June 23, 2004

 

 

E N D O R S E M E N T

 

 

[1]       This is an application that was brought before this court by the applicant/wife seeking an order of interim and permanent custody of the child of the marriage, R.S.

[2]       The issues before the court for determination are:

(1)              Does this court have jurisdiction to make an order of custody pursuant to s. 22(1)(b) of the Children’s Law Reform Act?

 

(2)              Is the child an habitual resident of Ontario pursuant to s. 22(1)(a) and (2) of the Children’s Law Reform Act?

 

(3)              Would the child suffer serious harm if he were returned to Japan pursuant to s. 23 of the Children’s Law Reform Act?

 

(4)              Has the wife wrongfully retained the child pursuant to s. 40 of the Children’s Law Reform Act and Articles 3, 12, and 13 of the Hague Convention, particularly Article 13(b)?

 

(5)              Should the wife have interim and permanent custody of the child pursuant to ss. 21 and 24 of the Children’s Law Reform Act?

 

 

[3]       The parties were married on June 25, 1994 and separated on July 22, 2003.  The parties have one child, R.S., born […] 1995.  He is currently 9 years of age.

[4]       This case involves a Japanese family.  The respondent is a Polish citizen and the child holds Polish and Japanese citizenship.  The whole family lived in Japan from the time the parties were married until July 22, 2003.

[5]       The applicant and the child came to Canada on a Visitor’s Visa on July 22, 2003 to visit with her mother and stepfather.  The mother and child were scheduled to return to Japan on August 23, 2003.  However, the applicant called on August 23, 2003 and told the respondent’s mother that she would not be returning to Japan with the child.  On August 25, 2003, the applicant filed an application to remain in Canada on compassionate and humanitarian grounds.  It is an admitted fact that the marriage of the applicant and the respondent had been difficult and the respondent had in fact been abusive to the applicant.

[6]       The respondent has admitted that he assaulted the applicant on a few occasions throughout the marriage.  The applicant, however, alleges that both she and the child have been physically, and emotionally abused, and the child has also been sexually abused by the respondent many times for many years.  She alleges that this behaviour has adversely affected both her and the child.  It is the respondent’s position that the assaults were not so serious, so unilateral, or so frequent as the applicant claims.  The respondent also denies that he committed any assault, physical or sexual, on the child.  However, the child has made allegations of sexual and physical abuse by his father to Dr. Brent Willock, Ph.D., Clinical Psychologist.  Dr. Willock wrote a report, dated February 19, 2004, to this court based on his interviews with the applicant, the child, and the applicant’s counselor.  He interviewed the mother and the child together and separately on different occasions.  He found each of them to be credible and compelling in their accounts.  Both reported long histories of abuse, non-acknowledgement, insensitive behaviour, and ongoing terror in relation to the respondent.  Dr. Willock stated the following at pages 10 and 11 of his report:

                        If R.S. were not already far removed from his father and if this case were not already before the Canadian court, one would have to report this extremely serious situation to the Children’s Aid Society and the police here and/or in Japan due to the many indications of ongoing sexual, physical and psychological abuse (repeatedly biting R.S. all over his body to the point of leaving bruises and swellings, putting his hand down R.S.’s pants to fondle his buttocks and genitals, bathing him in extremely hot water, laughing and ignoring all R.S.’s and his mother’s requests, kissing R.S. with his [father’s] mouth wide open, commenting on the lovely shape of R.S.’s bum, and so on).

 

All of these directly abusive behaviours inflicted on R.S. appear to have been compounded by ongoing verbal, psychological, and physical abuse of A.S. that R.S. was made to witness on a regular basis.  All this degradation and violence seems to have been further compounded by over-stimulating, insensitive, domineering, grossly inappropriate manifestations of sexuality.

 

Judging from both R.S. and A.S.’s reports, this appears to be a child (and mother) who has been and continues to be terrified and in need of strong protection from his father.  (The counselor from Catholic Cross Cultural Services informed me that they had contacted the Children’s Aid Society but that the C.A.S. was not able to become involved in the case because of its international nature).

 

Apparently, Mr. Y.S. has admitted to A.S.’s lawyer that his “management was too hard.  I was wrong.  This is only I was bad…  I would like to give peace of mind to them…  I agree divorce and I give to my wife all parental authority about our son…  I take all punishment without my layer [lawyer]”.

 

Despite Mr. Y.S.’s statements that he loves A.S. and will not hit her anymore, there appears to be little reason to believe that it would be at all safe to believe he would be capable of living up to that resolution.  (From A.S. and R.S.’s description of Y.S.’s behaviour over the years and from his admission of his violence, the only hope of achieving such change in my opinion would likely be long term, intensive, psychological treatment, if that were accessible to him, and if he had the sincere motivation to work extremely hard to change, and if he could sustain that motivation through the long, arduous process that would be involved).

 

My purpose in meeting with A.S. and R.S. was not to conduct a custody and access assessment, but rather to hear their stories and concerns and evaluate  their situation, for the purpose of ultimately providing a report that might prove useful to the court.  Nonetheless, given Mr. Y.S.’s admission of his past years of violence and his written agreement to not contest divorce granting full custody to Mrs. A.S., it would appear unanimous that that would be by far the best resolution to this sad story that has been so frightening and painful to this point.

 

. . .

 

To his credit, Y.S. has admitted to his past years of violence, but A.S. and R.S. have been through far too much with him already and it is terrifying to contemplate possible future violence that, regrettably has too much likelihood of being even worse than the abuse they have suffered so far.

 

 

[7]       It is the applicant’s position that while living in Japan, she was too terrified to pursue legal action as the respondent controlled every aspect of both her and the child’s lives.  She has provided evidence that she feared what the respondent would do to her if he found out that she was even considering obtaining legal advice.

[8]       With the support of her mother and stepfather, the applicant, once in Canada, decided on this occasion that she could not return and subject herself and the child to further abuse.

[9]       There is conflicting evidence between the applicant and the respondent with respect to the events between August 23^rd and December 6^th, 2003.  It is the applicant’s position that she did not hear from the respondent during this period of time.  It is the respondent’s position that he did not know where the applicant and child were and that he attempted to locate her whereabouts through numerous telephone calls to various relatives.  However, it is a fact that the respondent took no legal action during this time to have the applicant and the child returned to Japan.

[10]        The applicant retained a lawyer, Mr. Marty Klein, who wrote to the respondent in early December of 2003.  The respondent replied by e-mail on December 6, 2003.  In that e-mail, he said: 

                        “…I’ve allowed them [the wife and child] to remain in Canada when my wife called me on August 23 [2003].  I told my wife, You can stay in Canada.  But, you should completion some procedures in Japan.  So, I said come back to Japan just now.  They can stay in Canada after completion some procedures in Japan…

 

. . .

 

I understand she’ll [the wife] live in Canada.  But, she must take Japanese visa.  Because, she doesn’t have a Japanese citizenship.   We must proof about marriage by the Japanese visa.  We must divorce automatic if she can’t take a Japanese visa.  So, She must come back to Japan just completion some procedures.

 

<Vow>

1.                  I not hit to my wife again.

2.                  I allow that my wife and my son is living in Canada.  But, We must completion some procedures now.

3.                  If she want to divorce.  I agree divorce and I give to my wife all parental authority about our son.

4.                  If my wife want to a trial.  I’.. take this judgment.  I’ll take all punishment without my layer [lawyer].  I never run away what I did.  I don’t care about servitude.  I can do everything for my family.  I can die for my family anytime.

5.                  I value all my wife needs.

 

. . .

 

So, I must teach Japanese culture and hard life.  It was very difficult.  I teach that to the body.  I hit to my wife, Because I must grow up that she’ll be stronger.  She must be strong in japan.

 

. . .

 

After a few years, I didn’t hit to my wife, because I knew she did her best.

 

Before 3 years, She went to Canada.  She showed easier life than Japan.  So, She didn’t her best for Japanese life.  I hit to my wife again.  Because, I hope she’ll do her best in Japan…

 

. . .

 

And now, I understand she was over capacity and how much she afraids of me.  But, Please remember after I hit what did I say to my wife and son.  I never use drugs and alcohol.  I said, I’m very sad that I must hit loveing family.  After hit, I always said please think about why I hit to you.  Do you remember that?  I just hope to you’ll be stronger always.  Why I must grow up you’ll be stronger?  And why did I give you difficult life?  You know my schedule…

 

. . .

 

Please use this email for a trial if my wife wants a trial.  This is everything truth.  I admit I hit my wife.  I’ll take all punishment.

 

 

[11]        The respondent’s position is that this court has no jurisdiction to award custody of their child to the mother.  He has argued that the proper jurisdiction remains in Japan and, therefore, this court ought to decline jurisdiction over the child.  I disagree.

[12]        The governing law in this situation is the Children’s Law Reform Act, particularly ss. 22(1)(a) and (b) and s. 23.  Section 22(1) states:

(1)   A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a)  the child is habitually resident in Ontario at the commencement of the application for the order;

(b)  although the child is not habitually resident in Ontario, the court is satisfied,

(i)   that the child is physically present in Ontario at the commencement of the application for the order,

   (ii)  that substantial evidence concerning the best interests of the child is available in Ontario,

   (iii)  that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

   (iv)  that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

   (v)  that the child has a real and substantial connection with Ontario, and

   (vi)  that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 

 

 

Habitual residence is defined at s. 22(2) as follows:

                        (2)  A child is habitually resident in the place where he or she resided,

(a)  with both parents;

(b)  where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c)  with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred. 

 

 

The definition of abduction is stated at s. 22(3):

(3)  The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. 

 

The definition of serious harm to a child is as follows:

23.  Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a)  the child is physically present in Ontario; and

(b)  the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i)   the child remains in the custody of the person legally entitled to custody of the child,

(ii)   the child is returned to the custody of the person legally entitled to custody of     the child, or

(iii)  the child is removed from Ontario. 

 

 

 

 

 

 

Section 22(1)(a) of the Children’s Law Reform Act

[13]        The court can exercise its jurisdiciton to make an order for custody pursuant to s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, on the basis that the child was habitually resident in Ontario at the commencement of the application by virtue of the respondent’s consent or acquiesence.  In addition, s. 22(3) states that withholding a child without the consent of the person having custody of the child does not alter the habitual residence.  In this case, the evidence is undisputed in this case that the respondent has not made any application for custody of or access to the child in either Ontario or Japan since July 22, 2003, when the mother and child left Japan.  The applicant has argued that the respondent completely acquiesed his custodial rights by consenting to the applicant and child remaining in Canada.  In particular, the applicant relies on the respondent’s statement in his e-mail to the applicant’s lawyer on December 6, 2003: 

                        I’ve allowed them to remain in Canada, when my wife called me on August 23, I told my wife, you can stay in Canada.  But, you should completion some procedures in Japan.  So, I said come back to Japan just now.  They can stay in Canada after completion some procedures in Japan…

 

I allow that my wife and my son is living in Canada.  But, we must completion some procedures now if she want to divorce.  I agree divorce and I give to my wife all parental authority about our son…

 

 

[14]        The respondent argued that he had not acquiesced to the applicant and child remaining in Canada; rather, he was misleading the applicant with these words in an attempt to convince or trick her to return to Japan with the child.  The respondent’s position is that from August 23, 2003 to this date, he has never consented to the child remaining in Canada.  I do not accept the respondent’s explanation.  In Katsigiannis v. Kottick-Katsigiannis 2001 CanLII 24075 (ON C.A.), (2001), 55 O.R. (3d) 456 (C.A.), the court refers to Friedrich v. Griedrich, 78 F.3d 1060 (6^th Cir. 1996), where that court stated at 170:

                        [W]e believe that acquiescence under the [Hague Convention]  requires either:  an act or statement with the requisite formality, such as testimony in a judicial proceeding;  a convincing written renunciation of rights;  or a consistent attitude of acquiescence over a significant period of time. 

 

 

[15]        I find that the respondent in fact did acquiesce his custodial rights by consenting to the applicant and child coming to Canada on July 22, 2003 and remaining in Canada on August 23, 2003.  He further confirmed his consent and acqueisence in his e-mail to the applicant’s solicitor on December 6, 2003.  Additionally, the responent has not made any application for custody or access in either Ontario or in Japan, which I find is consistent with his acquiesence and consent.

[16]        The caselaw is clear that where a child, such as this child, has been in his mother’s de facto custody with the other person’s consent and authorization, the child’s habitual residence is that of the first parent.  In this case, the habitual residence, therefore, is that of the mother’s.  In this case that is Ontario.  See also:  Koutroubis v. Moutavelis, [2001] O.J. No. 520 (S.C.J.) (QL); Rodrigues v. Rodrigues, [1996] O.J. No. 216 (Gen. Div.)(QL); Renaud v. Prickett, [1993] O.J. No. 2475 (Prov. Div.)(QL).

 

Section 22(1)(b) of the

Children’s Law Reform Act

[17]        There are six elements that must alll be met for the court to obtain jurisdiction under s. 22(1)(b):

The child must be physically present

in Ontario at the commencement

of the application for the order.          

 

The respondent has acknowledged that this element has been met.

 

 

There is no application for custody of

or access to the child is pending before

an extra-provincial tribunal in another

place where  the child is habitually resident.

 

The respondent acknowledges that this element is met in this case.

 

 

There is no extra-provincial order in

respect of custody of or access to the child

that has been recognized by a court in Ontario.

 

The respondent acknowledges that this element is met.

 

 

Substantial evidence concerning the best

interests of the child is available in Ontario.

 

The respondent argues that the amount of time the child has been in Ontario is insufficient to allow the court to find that substantial evidence is available in Ontario.  I disagree.  The child has now been present in Ontario for almost a year.  The child’s grandmother and step-grandfather are living in Ontario, as well as his cousins and friends.  The child has been attending school, and has teachers, neighbours, and a psychologist who can all testify as to the best interests of the child.   There is very substantial evidence available in Ontario concerning the best interests of the child.

 

The allegations of child abuse which have been alleged in this matter have been disclosed by the child to Dr. Willock, Clinical Psychologist.

 

The c.v. of Dr. Willock is very extensive and the court must place some weight on his report.  I accept the applicant’s argument that her departure from Japan was in the child’s best interest and was for the child’s safety and well being, in order to shield the child from the respondent’s abuse.  The best evidence of the child’s condition and circumstances must in fact be readily obtainable in Ontario.  This is not a comparison as to whether there is more substantial evidence available in Japan.  See Snetzko v. Snetzko reflex, (1996), 17 R.F.L. (4^th) 31 (Ont. Prov. Div.).  The child has appropriate support systems here and reports that he is happy living with the applicant in Ontario.  As such, I find that there is substantial evidence regarding the child’s best interests here and this element has been met.

 

 

The child has a real and

substantial connection with Ontario.

 

The respondent has argued that the applicant’s mother only moved to Canada in 2002 and that none of the parties have a connection with Ontario.  He further argues that there is no indication of the applicant mother’s connection with Canada other than the fact that she moved here in 2002.  She was married in 2003 to the applicant’s stepfather.  He argues that the applicant and the child are refugee claimants given that they are both Polish citizens and have made refugee claims against Poland.  There is material before the court that the applicant’s lawyer feels they have a strong case.  The respondent disagrees.  See Exhibit H at Tab 1 of the Applicant’s Supplementary Record.  This court is not going to second-guess the determination of the refugee claims of the applicant and the child.  I find that the child has a real and substantial connection with Ontario.  The child is well settled in Ontario, has been here for almost a year, has attended school, has maternal grandparents here, and has learned to speak English.  The applicant, on behalf of the child, has made an application to the Canadian government to remain in this country.

 

 

[18]        For all of the above reasons, I find that on a balance of convenience, it is appropriate for the jurisdiciton to be exercised in Ontario pursuant to s. 22(1)(b) of the Children’s Law Reform Act.

Section 23 of the Children’s Law Reform Act

 

[19]        The applicant maintains that the child would suffer serious harm if he were removed from Ontario.  It is the applicant’s position that the child has endured years of physical, emotional, and sexual abuse by the respondent.  The allegation has been supported by the disclosures that the child made to Dr. Willock.  The applicant further alleges that the child is terrified of the respondent and does not want to return to Japan.  This allegation is also supported by Dr. Willock who went even further in his analysis and felt that it was contrary to the child’s best interests for the child to return to Japan.

[20]        The applicant has argued that there is insufficient evidence before the court to support a finding on the balance of probabilities that the child will suffer serious harm if removed from Ontario.  I agree.  The respondent argued that the allegations of the applicant lacked credibility and appear to be excalating in seriousness to fill the legal needs of the applicant.  I disagree, I am satisfied that this child would, on the balance of probabilities, suffer serious harm if he is returned to the respondent’s care.

[21]        Additionally, the respondent argued that there was an absence of allegations or evidence that the alleged abuse of the child would be tolerated in Japan and that Japan is a signatory to the Convention on the Rights of the Child; therefore the respondent submitted that there is no reason to fear that the respondent would have any opportunity to abuse the child if the court ordered the child to be returned to Japan.  As such, the respondent has asked this court to decline jurisdiction and make an order pursuant to s. 40 of the Children’s Law Reform Act.  Section 40 states as follows:

                        Upon application, a court,

(a)  that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b)  that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

                        may do any one or more of the following:

                         

1.   Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

 

2.   Stay the application subject to,

i.   the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii.   such other conditions as the court considers appropriate.

 

3.   Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. 

 

 

[22]        I disagree with the respondent’s position as I find that the child was not wrongfully removed to Ontario nor is the child being wrongfully retained in Ontario.

[23]        The applicant has provided this court independent and credible evidence, in the report of Dr. Willock, that she and the child lived in an abusive and dangerous environment and, on the balance of probabilities, the child would suffer serious harm if removed from Ontario.  The respondent himself has openly and repeatedly admitted his abusive conduct.  The Children’s Law Reform Act does not define “serious harm”.  However, in Thomson v. Thomson 1994 CanLII 26 (S.C.C.), (1994), 119 D.L.R. (4^th) 253, the Supreme Court of Canada stated at 285 that this test is not significantly different from the test of harm under the Hague Convention  which requires that “there is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation”.  See Ndegwa v. Ndegwa reflex, (2001), 20 R.F.L. (5^th) 118 (Ont. S.C.J.).

[24]        I accept the applicant’s argument that returning the child to Japan would be returning the child to a violent environment and this would thus place the child in an inherently intolerable situation.  It would expose the child to a serious risk of psychological harm because, as the applicant stated in her evidence, she would accompany the child to Japan if ordered to return and they would be returning to a dangerous situation.  The respondent has repeatedly admitted his violence towards the applicant.  The child’s best interests are inextricably tied to the applicant’s psychological and physical security and I must take into account the serious possibility of physical or psychological harm coming to the applicant on whom the child is totally dependent.

[25]        This court has inherent parens patriae jurisdiction and this court is cognizant of the safety of this child.

 

Convention on the Rights of the Child

[26]        Both Canada and Japan are parties to the Convention on the Rights of the Child.  Article 2(2) stipulates that state parties “shall take all appropraite measures to ensure that a child is protected against all forms of discrimination or punishment”.  In addition, Article 9(1) states as follows:

                        States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorties subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  Such determination may be necessary in a particular case such as one involving abuse or neglect of the child…

                         

                        [Note:  the Convention on the Rights of the Child was adopted and opened for signature, ratification and assention by General Assembly resolution 44/25 of 20 November 1989, entry into force on September 2, 1990 in accordance with Article 49.]

 

 

[27]        For all of the above reasons, this court finds:

(1)              This court does have jurisdiciton to make an order as to the custody of the child, R.S.

 

(2)              The applicant, A.S., shall have interim custody of the child, R.S., pending further order of this court.

 

(3)              The office of the Children’s Lawyer shall be involved on the usual terms.  This matter shall be converted from an application to an action as this is a complicated case that requires viva voce evidence to be put before a trial judge.  There are also issues of credibility to be determined.  The applicant shall become the plaintiff and the respondent shall become the defendant.

 

(4)              The parties can submit a one page written argument to me on the issue of costs on or before July 23, 2004.

                         

 

 

 

___________________________

SNOWIE J.

 

DATE: July 2, 2004

COURT FILE NO.:  04-BN-0115

DATE:  20040702

 

SUPERIOR COURT OF JUSTICE - ONTARIO     RE:            A.S. v. Y.S.   BEFORE:   SNOWIE J.   COUNSEL:  Nadia Chandra, for the Plaintiff                                D. Russ Makepeace, for the Respondent         ENDORSEMENT         SNOWIE J.

 

DATE: July 2, 2004