Return won't pose grave harm of risk or situational intolerance to the sons, court says
In a recent case before the Ontario Superior Court of Justice, a father successfully asked for the return of his two sons from Ontario, where they were born, to Texas, where he lived and worked, under the Hague Convention.
The parties in this case were Canadian citizens who lived in the Greater Toronto Area for most of their lives. They entered into a relationship in 2017, had two sons born in April 2018 and in June 2020, and married just before the second child’s birth. They jointly decided to relocate from Ontario.
The father accepted a job offer from a fire prevention contractor in Austin, Texas and moved there in February 2022. The next month, the mother and the sons followed him.
Around the time that the father lost his job, the mother saw escort service information on his cellphone. She said that they should separate. She decided to leave Texas with the children without telling him.
Last March, the mother and the sons flew to Ontario. This prompted the father to file against the mother a motion under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII.
The mother conceded that the sons were habitual residents of Texas at the time of their relocation, which was for the purposes of “emotional and financial security.” She testified that the family’s financial situation was precarious and that the marital relationship was toxic.
No grave harm of risk
In Bodnaruk v Bodnaruk, 2023 ONSC 4136, the Ontario Superior Court ordered the return of the children to Texas within 20 days of the father’s confirmation that he paid for the airfare of the mother and the sons.
The court accepted certain undertakings by the father. He agreed:
- to vacate the matrimonial home in favour of the mother and the children immediately before their arrival
- to pay for all the family home’s expenses, including mortgages, realty taxes, insurance, and utilities
- to provide satisfactory evidence that he gave the mother US$1,500 USD for her and the sons’ non-residential expenses upon their return
On appeal, the issue was whether the mother proved that their family situation fell under the exception in art. 13(b) of the Convention, namely that ordering the return would pose a grave harm of risk or situational intolerance to the children.
The court empathized with the mother and accepted that it could not wholly fault her for taking the children to Ontario as a short-term response to the breakdown of her marriage. However, the children should be returned to Texas because the evidence and the facts did not reach the level of grave harm required by art. 13(b), the court ruled.
First, the father’s overall behaviour did not amount to grave physical and psychological harm under art. 13(b) even though the mother was unhappy about their relationship and concerned about the impact of his behaviour on the children, the court held.
There was evidence of emotional abuse and possible but unascertainable psychological harm due to the father’s alcohol abuse, the court acknowledged. But the court found no evidence of harassment, threats to kill or to harm animals or to damage property, sexual abuse, or physical abuse except for a June 2022 physical interaction between the father and the first son, which the mother did not witness.
Second, regarding the likelihood of recurring problematic behaviour, the evidence showed that the father was predisposed to anxiety and stress due to the circumstances of his employment in Texas and that alcohol fuelled a reactive deterioration in his behaviour, the court said.
However, after the mother and the sons left Texas, the father participated in substance abuse and anger management classes and apparently found less emotionally-challenging employment, the court noted. Texas was well-equipped to decide parenting issues under its laws if the father’s troubling behaviours would recur, the court added.
Lastly, on the efficacy of the Texas justice system, the court presumed that the Texas District Court was equipped to make suitable arrangements in the children’s best interests.
