T.A.S. v. S.S.

2018 BCSC 2472 T.A.S. v. S.S. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: T.A.S. v. S.S., 2018 BCSC 2472 Date: 20181002 Docket: E55221 Registry: New Westminster Between: T.A.S Petitioner And S.S. Respondent - and - Docket: Vancouver Registry: E181468 Between: A.T. aka A.S. Petitioner And S.S., aka S.S. aka R.S. Respondent Before: The Honourable Madam Justice Fleming Oral Reasons for Judgment (In Chambers) Counsel for the Petitioner: S.G. Wright Counsel for the Respondent: S. Singh R. Sidhu, Articled Student Place and Date of Trial/Hearing: Vancouver, B.C. September 27 and 28, 2018 Place and Date of Judgment: Vancouver, B.C. October 2, 2018 [1] THE COURT: The petitioner, the mother of three-year-old A., applies for his return to the Mauritius pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (Convention). The respondent, A.'s father, opposes the application asserting the petitioner entered into an agreement that gave him custody of A. and consented to him relocating A. to Canada. [2] The parties dispute many of the material facts in this matter. For this reason, I set out a detailed, chronological overview of the evidence. Overview of the Evidence [3] The petitioner is a citizen of the Ukraine who resides in the Mauritius under a residency permit. The respondent is a citizen of the Mauritius and Canada. [4] The parties met online in early 2014. The petitioner told the respondent she was pregnant in or about April 2014. She returned to the Ukraine during her pregnancy. A. was born in the Mauritius however, on December 3, 2014, and the parties married the following day. [5] The respondent alleges that prior to A.'s birth, the petitioner agreed to give him sole custody in exchange for residency in the Mauritius, which she denies. The respondent also alleges the petitioner showed little interest in A. as a newborn and left the home a short time later. The petitioner alleges the respondent and his family interfered with her involvement with A. [6] There is no dispute the petitioner travelled to the Ukraine in May 2015 where her older child and former spouse reside, leaving A. in the care of the respondent. He alleges she said she had no plan to return to the Mauritius and prepared a handwritten note providing him with custody based on their earlier agreement. The petitioner acknowledges the note, but says the respondent urged her to visit her daughter in the Ukraine. Although she intended the trip to be short, the respondent then refused to pay for a return ticket. [7] The note itself is much more consistent with the petitioner's version of events: I, the under signed, agree to give my child, [A.], to be under the care of his father during the period that I am travelling to the Ukraine from [May 19th, 2015] till my arrival back to Mauritius. [8] The petitioner returned to the Mauritius in May 2016 with her daughter. The respondent deposes the parties decided to file "our divorce" for his sake. According to the respondent, once the petitioner discovered he was a Canadian citizen, she refused to divorce him and started "creating problems" for him. Mauritian Family Law Proceedings [9] Court documents from family law proceedings in the Mauritius Supreme Court include a submission and/or pleading filed by the respondent on September 9, 2016, setting out some of the same allegations; that is, the petitioner leaving A. in the care of his mother and sister within days of his birth, also refusing to do household duties and not cooking, and then, in May 2015, leaving for Dubai, not the Ukraine, to visit her daughter and former husband. The respondent also alleged the petitioner told him they had reconciled and she had no intention of coming back to the Mauritius. He nevertheless provided her with Skype access to A. three times per week and paid for her flight in May 2016 so she could visit him. Just as the respondent does here, he alleged the petitioner's disinterest in A. continued once she returned in May 2016. There is however no mention in the pleadings of a handwritten note or his Canadian citizenship. [10] In her submissions or pleadings to the Mauritius Court, the petitioner denied the respondent's allegations of disinterest and alleged A. was constantly taken away from her as a newborn and she was even prevented from breast-feeding. She made the same allegation it was the respondent who insisted she visit her daughter in Ukraine, but then refused to pay for her return ticket. She said once she returned to the Mauritius with her daughter, she was denied access to A. and had to resort to begging his mother, who relented once or twice. [11] There are no further Mauritian court documents until July 2017. An order of the Supreme Court dated July 24, 2017, specifies both parties were present with counsel who informed the court of an agreement providing the petitioner with provisional custody of A. pending the determination of the divorce proceedings and the respondent with a right to visit A. every Wednesday from 9:00 to 17:00 hours and a "droit d'hébergement" on alternate weekends from Friday at 17:00 hours to Sunday at 18:00 hours. The petitioner also undertook not to take A. outside of the Mauritius without the respondent's consent and he undertook to hand over A. that day. The court granted an order on those terms. [12] The respondent deposes that on August 9, 2017, the petitioner offered to let him keep A. if he helped with her residency in the Mauritius and to obtain permanent residence in Canada. He also deposes she said she did not need the child, but she needed custody to preserve her resident visa. He says he recorded all of this at the time using his video camera. The petitioner denies ever agreeing to give up custody of A. or the existence of a video recording "as he claims," asserting the respondent had never told anyone about such a recording in the past. Despite the alleged date of the recording and an order in this proceeding requiring the respondent to file and deliver all materials by August 28, 2018, he did not produce a copy of what his counsel says is the same recording until halfway through this hearing. [13] Unable to send it to the petitioner in the Mauritius, her counsel described its contents to her by email. Her written responses have been admitted into evidence. The petitioner says she is well aware of this recording describing it as only one of the videos the respondent was "producing everywhere." She acknowledges being the women depicted in the recording, but describes the three-minute clip as part of a 90-minute conversation. The petitioner writes the video was made without her knowledge, just after A. had arrived at her home and was crying. She was struggling to understand his behaviour and refers to a long conversation with the respondent about trying to share custody. She also writes that when she later "realized" what was "going on" and how the respondent's family was "brainwashing" A., she became opposed to an agreement and began fighting only for sole custody because of the unhealthy environment they were providing to him. The respondent suggests her initial denial of the recording shows she is not credible. [14] The date of the video file is August 14, 2017. The content of the recording is not what the respondent describes. The petitioner never says she does not need A. Instead she says she needs time with him, but not as much time as she was having. Significantly, she tells the respondent that A. is missing him and she wants A. to be happy. She does discuss making an agreement with him that would grant her full custody to facilitate her remaining in the Mauritius. "I want to have this visa based on the fact I am his mother." There is absolutely no discussion of Canada. [15] A short time later on August 23, 2017, again by consent, the Mauritian Supreme Court granted the petitioner provisional custody of A. and the respondent additional specified visits that included three, instead of two, weekends per month, pending the determination of the main case on September 28, 2017. Again, both parties were present with counsel. Allegations Following the Second Custody Order [16] The respondent's father, Mr. S., deposes that three days earlier, on August 20, 2017, while he and the respondent were driving, the petitioner's partner, Mr. K., damaged their car, attempted to pull the respondent from inside, and threatened to cause harm to him and A. if "we failed to accept and meet her demands." According to Mr. S., the respondent reported the matter to the police station. Although the respondent confirms this, describing the petitioner's family members attacking him and threatening to kill him, the police records of many reports made by him do not include these allegations. [17] The respondent also describes pressure from the petitioner and the behaviour of her family members as preventing him from being able to present his case to the presiding judge, which I assume is a reference to the court appearance on August 23, 2017. This evidence strikes me as inconsistent with his frequent police reports and the fact he was represented by counsel throughout the proceeding, as well as the petitioner's uncontested evidence that the Mauritius is a "country of laws," indicating it is governed by the rule of law, where "police and government agencies can and do protect the people." [18] The respondent alleges that after the petitioner obtained the interim custody orders, she started hurting A. in an attempt to pressure him to sponsor her immigration to Canada as a spouse. One of his allegations is she began forcing A. to sit in cold water. The respondent does not say how he knows this or where and when these incidents occurred. He attaches however a copy of a doctor's note dated August 2, 2017, which he says but does not in fact corroborate the allegation. The note specifies A. was seen by the doctors for pain and swelling in the right knee, it includes the word "traumatic", and there is a reference to a hoarse voice followed by "due to voice strain/common cold". [19] In my view, the respondent's bare allegation and the doctor's note do little more than establish that the respondent began making allegations of abuse after the petitioner obtained an interim custody order in late July 2017. [20] I have not overlooked the similar evidence of the respondent's mother that on some occasions A. would have "swollen knees" and "red marks" on his legs. She also deposes the respondent made several declarations at the police station to that effect from July 25, 2017, through to January 28, 2018. The Alleged Custody Agreement [21] The respondent also alleges the petitioner signed a custody agreement dated September 20, 2017. The alleged agreement reads in part: I [the petitioner] the other parent of [A.] by agreement out of Court do hereby give full custody to [the respondent] father of said child. I further give my permissions, consent to and all authorizations for his travels, relocation, care and all needs of the said child and to his best interest, or otherwise obtain any medical treatment or any economical, social, education, or other services that the child may need. This agreement shall exist between us irrespective of court decision as I intend to have custody solely to retain my Mauritian visa based on mother of a Mauritian born child and the said [respondent] to help me maintain my residency permit of Mauritius by not to interfere legally in the divorce and custody proceedings in the court of Mauritius. [22] The petitioner adamantly denies signing any such agreement describing the document as false including her signature. I note neither party's signature is witnessed nor has the respondent provided any evidence about the circumstances involved in preparing or executing the alleged agreement. Events Following Alleged Custody Agreement [23] Significantly, the balance of the evidence demonstrates that rather than A. being in the respondent's full custody from that point onward, the parties continued to comply with the schedule set out in the July and/or August 2017 orders. They also continued to dispute custody. [24] For example, in a letter dated September 27, 2017, Amelie Martin, a clinical psychologist, indicates she met with the respondent, his mother, and A. on a Wednesday morning just after he had been received by the respondent at the Phoenix police station. According to Ms. Martin, A. said he did not want his mother. She writes that, during the session, A. started "terror cries" when his father attempted to leave the room. She concluded, "[a]fter two months, he should have already created a secure bond with his mother," and recommends A. spend the majority of his time with the respondent, but have regular access to his mother. The letter gives no indication Ms. Martin spoke with the petitioner who denies being advised of or consenting to the consultation. [25] In another letter dated February 8, 2018, Dr. J. Isabelle indicates the respondent also brought A. to see her on two occasions. Like Ms. Martin, she comments on A.'s need to remain in the respondent's presence and a "strong feeling of insecurity in this child." Again, the petitioner says she was not aware of Dr. Isabell's involvement with A. The Custody and Access Report [26] The evidence includes the custody and access report of Mr. N. Haroo, a senior probation officer, dated February 22, 2018, that also shows the parties were following the 2017 orders. Mr. Haroo's report was prepared for the court. It is based on three interviews with the respondent, one interview with his relatives, four interviews with the petitioner, two interviews with her relatives, three interviews with A., visits to both parties' homes and a visit to A.'s school between November 17 and February 2018, as well as information from the Phoenix police station. [27] At page 5, Mr. Haroo indicates the respondent said it was a big blow to him and his family when the court provisionally entrusted A. to the petitioner. In discussing A.'s circumstances, Mr. Haroo refers to the respondent's time with A. as per the August 2017 order writing, "[h]e presently has a right to visit every Wednesday from 9:00 to 17:00 hours and a droit d'hébergement during three weekends in the month," as well as the meeting point being at the Phoenix police station. [28] Regarding the respondent's history, Mr. Haroo notes he lived in the Mauritius until aged 33 when he immigrated to Canada for three years and then, after returning in 2010, he lived for two years in Ivory Coast, Africa. From September 2014 onward, he remained in the Mauritius. Mr. Haroo also sets out the respondent's professional qualifications as including certified fraud examiner, forensic certified public accountant, and a Master of Business Administration, as well as something called ACCA. [29] Mr. Haroo notes the respondent described the petitioner as showing little interest in A. and spending next to no time with him much as he had in the court proceeding. The respondent advised Mr. Haroo of Ms. Martin's assessment and also indicated he possessed a video showing A. engaged in sexualized behaviour. The respondent conveyed that he had made two complaints to the Phoenix police station because A. was unwilling to return to the petitioner. He was fearful A. had been subjected to a forced conversion to the Muslim faith; and on several occasions he had seen red marks on A.'s body. According to the respondent, when questioned, A. told him the petitioner assaulted him. [30] Significantly, Mr. Haroo's report provides the respondent reported all of these allegations to the Child Development Unit of Bambous. [31] The video he discussed with Mr. Haroo has not been produced. [32] Attached to the respondent's affidavit filed September 12, 2018 is an affidavit of R.G. dated September 11, 2018, affirmed in the Mauritius. The affidavit is fraught with serious allegations about the petitioner and Mr. K., some of which are based on the purported hearsay evidence of Mr. K.'s mother. Mr. G deposes to "one recorded conversation" during which A. disclosed that Mr. K. showed him how to perform sexual intercourse, exposed him to his genitals, and sexually abused him. Incredibly, Mr. G does not depose to actually watching or listening to the recording, nor does he provide evidence about what he did in response. Incomprehensibly, the respondent says nothing about this extremely grave alleged disclosure or its recording to Mr. Haroo or in his affidavit evidence. [33] There is also no indication the respondent mentioned the alleged custody agreement or any plan to relocate to Canada when he met with Mr. Haroo. Instead, the report indicates the respondent advised him he was also a Canadian citizen entitling him to rights and privileges that could later benefit A. [34] Regarding the petitioner, Mr. Haroo writes that she strongly objected to A. being entrusted to the respondent. Noting A. used to cry a lot, she conveyed it had not been easy to establish a mother-son relationship, alleging essentially the respondent and his relatives had kept him from her. At the same time, she expressed the view that it was important for A. to have access to the respondent. She described being religiously married to Mr. K. and the two of them living separately as they awaited her divorce from the respondent. Apparently referring to the respondent's allegations of physical abuse and or injury to A., the petitioner recounted the respondent hospitalized him for two days without her consent in October 2017. The petitioner told Mr. Haroo A. was discharged to her after being seen by a Victoria Hospital psychologist. [35] Mr. Haroo also met with Mr. K. who stated he and his family would fully support the petitioner in caring for A. He described visiting A. every day. A. addresses him as "Papa Ashil", and although A. used to cry a lot when given to the petitioner, a bond had been established. Mr. K. described the petitioner as a caring and devoted mother. His mother was also interviewed. Both assured Mr. Haroo that A. is not neglected and lives in a "conducive" home environment. [36] Very significantly, Mr. Haroo wrote that he observed A. singing and appearing happy and comfortable at the petitioner's home. During his interviews of A., he seemed at ease with both parties and said he loved Papa Ashil. When questioned about where he wants to live, he did say with the respondent. Consistent with Mr. K's account, Mr. Haroo noted the police records indicate A. cried initially when being separated from the respondent, but now there is not that much crying. Ongoing Dispute about Custody [37] Mauritian court documents show that on February 22, 2018, the parties and their lawyers attended for a trial. Nine witnesses were present including three police officers, a doctor from the Victoria Hospital, and four others. The trial was adjourned to July 24, 2018, because two other cases were given priority, but the witnesses were warned to appear on that date. [38] Phoenix police station records indicate the next day the respondent called twice to report threats by the petitioner's father at the access exchange. The records again indicate the parties were continuing to abide by the August 2017 order. According to the records, during his first call the respondent reported he is in divorce proceedings with the petitioner and A. is actually living with her by court order, outlining his rights of access. He alleged that at an access exchange that day, the petitioner's father stated to him: Don't touch him, I give you two days and I will take him and go and finish. And then: As I do not know [what his intentions are], I am giving this declaration as a measure of precaution The record also states: He is inserting this entry for future reference. [39] The respondent called the police again at the end of the day. The record regarding that call reads in part: he also wished to add that in respect with the discussion he had with his father in law [he] uttered, "You don't know my power, I come from Moscow and I have high mafia connections. If you again tried custody of [A.] I finish you." All [of this happened] in the compound of the Phoenix Pce Stn while he was taking [A. for his weekend visit]. Again, the respondent is said to have reported he was: inserting this entry as a measure of precaution and he is feeling very [insecure] for him and for [A]. [40] It is difficult to understand why the respondent would have reported uncertainty about the petitioner's father's intention during the first call given the content of his second report. In any event, the respondent's mother deposes that she was with him at the exchange and the petitioner's father banged on the car while shouting in a threatening manner, behaved like a "goon" and was a "menace to my son all the way." She describes identical threats being made in the compound of the police station. In contrast, Mr. K.'s mother, who was also present, deposes that no threatening statements were made to the respondent or anyone else. There is no evidence from the petitioner's father. She deposes she cannot contact him because he is a deep sea captain and presently at sea. She denies he is involved with the mafia or any criminal organization, she was unaware of any such allegation until she read the respondent's affidavit, and was never contacted by police about threat allegations made by her, Mr. K., or her father. [41] The petitioner deposes that before A.'s removal, she had advised the Mauritian passport office that no passport should be issued for A. To her knowledge, he had no passport. She asserts the respondent obtained A.'s Canadian passport without her knowledge or consent. The respondent provides no evidence on this point. After A.'s Removal [42] Two days after the respondent removed A., on February 26, 2018, the Mauritian Court granted the petitioner immediate care and control of A. and set a "show cause" hearing for March 7, 2018 pending determination of the main case. A police assistance order was also granted. A copy of the order includes a handwritten note addressed to the respondent. Attached is a statement from a registered usher of the court dated the same day in which he certifies to attending the respondent's address with two police officers to serve the order along with the petitioner's materials. He describes the premises as closed and unattended that day and on three subsequent occasions. He also certifies to attending the respondent's parents' home again with two police officers. There, he met the respondent's sister. He writes she informed him she did not know where the respondent was and had not been able to reach him on his mobile phone since the day before. The usher wrote that he, too, was unsuccessful in reaching the respondent by cellphone. [43] The petitioner provides similar evidence. She also alleges several of the respondent's family members disappeared from the Mauritius, stating she attended their homes and found them empty. She describes the respondent as having significant financial resources, and like Mr. Haroo, describes him as a forensic accountant and an auditor, but also someone who operates a particular business. [44] In his first affidavit, the respondent alleges the petitioner was aware that he and A. were travelling to Canada and where they were residing, stating she and her "male companions" actually pressured him to leave earlier than he had planned. After informing them he needed to find a job in Canada first, he says they told him there is no income requirement for sponsoring a spouse. The so-called "male companions" are not identified. Nor are there any details about where or when any such discussions took place despite the petitioner's allegation the respondent obtained A.'s passport in secret and she had no knowledge of his intention to leave the Mauritius for Canada. Apart from stating he consulted some immigration lawyers, inquired about the cost of sponsorship and informed the petitioner of the same, the respondent provides no evidence about his circumstances or A.'s since his removal from the Mauritius and arrival in Canada in February 2018. The petitioner asserts that his evidence about discussing these matters with her is false and, again, she never agreed to A.'s removal from the Mauritius nor did she pressure the respondent. [45] There is no dispute the petitioner has had no contact with A. since his departure from the Mauritius, and none was offered until on or about September 7, 2018. At the first day of the hearing, I queried the absence of any evidence for this period. The following day, the respondent's counsel produced what he described as a Facebook message from the respondent to the petitioner dated March 8, 2018. It reads [as read in]: [A.] is fine here. I have basic job in Canada so cannot help you for Canadian resident. I cannot afford immigration consultant right now and this will take longer than six months. You may apply to the PM of Mauritius to extend your residency and I will not interfere. Also please stop your revenge and harassment. [46] Although it may be the message was sent and received by the petitioner, given the very late timing of the disclosure, she was unable to respond. The only other evidence about what transpired here is from the petitioner. She deposes that she was advised by the Central Authority in B.C. that searches conducted by the RCMP determined the respondent and A. entered Canada on February 26, 2018, at Trudeau Airport in Montreal. The Central Authority also advised her that an address for the respondent had been found in Surrey which proved to be inaccurate. Her counsel informed her of an internet search for the respondent's company showing an address in Burnaby which, in fact, does not exist. A corporate registry search showed no such company registered to carry on business in B.C. [47] On June 5, 2018, at a without-notice hearing, orders were granted restraining the respondent from removing A. from the metro Vancouver area, requiring him to produce A. to a peace officer upon demand, and requiring him to surrender all passports for himself and A. to a peace officer upon demand, to be held by the Vancouver Registry of the court. [48] In or about July 24, 2018, the Burnaby RCMP detachment informed the petitioner's counsel they had served the respondent with the June 5, 2018 order, observed A. to be in his care, and seized the passports of both which were delivered to the registry. [49] On July 18, 2018, the Mauritian court granted a divorce and final custody to the petitioner. The respondent's counsel appeared, but had no explanation for his absence. [50] On August 9, 2018, at a judicial management conference, Justice Butler ordered deadlines for the filing and delivery of materials. As I have indicated, the respondent was required to file his response to petition supporting materials by August 28, 2018. Legal Framework The Convention [51] The Convention has the force of law in British Columbia pursuant to s. 80 of the Family Law Act, S.B.C. 2011, c. 25. The objects of the Convention are set out in Article 1: a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. [52] Under Article 3, the removal or retention of a child is wrongful if it is in breach of rights of custody attributed to a person, an institution or any other body in which the child was habitually resident immediately before the removal so long as those rights were actually being exercised. Article 5 provides that "rights of custody" include: ... rights relating to the care of the person of the child and, in particular, the right to determine the child's residence. "Rights of custody" include: the right to take a child for a limited time to a place other than the child's habitual residence. [53] If the court determines a child has been wrongfully removed or retained, Article 12 requires his immediate return to the state of his habitual residence be ordered unless one of the exceptions in Article 13 is found to apply: Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. Article 13: Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Was the Removal Wrongful? Habitual Residence [54] The respondent does not appear to dispute this element. The phrase "habitual residence" is not defined in the Convention. Recently in Office of the Children's Lawyer v. Balev, 2018 SCC 16, a majority of the Supreme Court of Canada prescribed a hybrid approach to its determination. At paragraph 43, Chief Justice McLachlin, as she then was, wrote: On the hybrid approach to habitual residence, 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 The judge considers all relevant links and circumstances - the child's links to and circumstances in country A; the circumstances of the child's move from country A to country B; and the child's links to and circumstances in country B. [55] As I have indicated, the respondent has not explained how and when A. was granted a Canadian passport despite the petitioner's evidence it was obtained without her knowledge and consent. He has also provided no evidence about A's circumstances in Canada. A. was born in the Mauritius. There is no indication he was ever left the country before the respondent removed him on February 24, 2018. Both parties and members of their extended families were living in the Mauritius at that time, the petitioner pursuant a residency permit and the respondent as a citizen. Although the petitioner is a citizen of the Ukraine, she lived in the Mauritius before and after A.'s birth until in or about May2015 and then from May 2016 onward. [56] In these circumstances, I am more than satisfied that A. was habitually resident in the Mauritius at the time of the removal. Rights of Custody [57] The next question is whether A. was wrongfully removed from the Mauritius, meaning were the rights of custody of the petitioner and, in this case, the Mauritian Supreme Court breached by the removal? The parties adduced no evidence about the law of the Mauritius and made no submissions on this issue in relation to the alleged custody agreement and the Mauritian court orders. As a matter of general principle where a foreign law is not pleaded or proved, it is assumed to be the same as the lex fori. In any event, the respondent does not dispute, the orders made July 25 and August 23, 2017 provided the petitioner with rights of custody as contemplated by Article 5 on an interim basis. [58] Despite the alleged agreement providing the respondent with full custody, the balance of the evidence, as I have indicated, clearly establishes that up to the date of A.'s removal, the parties were complying with the custody and access rights set out in the interim orders. As mentioned even the day before the removal, police records indicate the respondent himself made statements to that effect. He was also making ongoing efforts to gain custody that included making allegations against the petitioner and seeking out medical and psychological evidence to support them. Two days before the removal of A., Mr. Haroo's custody and access report, which does not mention the alleged agreement, was completed for the court. The parties, their counsel, and multiple witnesses attended for a scheduled trial in the divorce proceeding. Clearly, custody of A. remained a contested issue. [59] Despite the absence of cross-examination, given the ongoing custody dispute, the vague, inconsistent, and frankly improbable nature of much of the respondent's disputed evidence, the self-serving content of the alleged agreement, and the petitioner's denial of its existence, I am not persuaded it was ever executed and find the petitioner was exercising rights of custody based on the August 2017 interim order immediately prior to A.'s removal. [60] I am also satisfied the Mauritian Supreme Court had a right of custody at that time, meaning it had the right to determine A.'s place of residence having made interim orders that provided the petitioner with custody and the respondent with access pending a final determination which, on February 22, 2018, was adjourned to a date in July 2018. [61] In Thomson v. Thomson, [1994] 3 S.C.R. 551, Justice La Forest stated that when custody is a live issue and a court awards custody on an interim basis, the court retains custody rights under the Convention. A non-removal clause may be placed in an interim order to preserve the court's jurisdiction, but such a clause is not required. [62] I find, therefore, that the respondent removed A. from the Mauritius in breach of the petitioner's and the Mauritian Supreme Court's rights of custody. [63] The removal was therefore wrongful. Article 13(a) [64] The respondent asserts the petitioner consented to A.'s removal and relocation to Canada because she expected the respondent to sponsor her immigration to Canada as his spouse. The authorities confirm he bears the burden of proving the exception applies. If he succeeds in doing so, the court acquires a discretion to not order an otherwise mandatory return. [65] In Katsigiannis v. Kottick-Katsigiannis, [2001] O.J. No. 1598 (Ont. C.A.) the Ontario Court of Appeal held that clear and cogent evidence of acquiescence or consent is required to trigger the defence under Article 13(a). The respondent's evidence does not come close to meeting this threshold. For the same reasons I have found A.'s removal was wrongful, I reject the suggestion the petitioner consented to him being removed from the Mauritius. Her rapid return to the Mauritian Court, her timely filing of the Article 16 notice, the absence of any evidence from the respondent as to how he obtained A.'s Canadian passport or their circumstances in Canada prior to the hearing significantly reinforce my view. Article 13(b) [66] As I have indicated, the respondent did not rely upon this exception in his submissions, although his evidence included several allegations of neglect and abuse of A. against the petitioner and Mr. K., as well as threats of violence by the petitioner's father. Legal Principles [67] Thomson remains the leading case regarding the test to be applied to the grave-risk-of-harm exception. The facts involved the mother moving to Canada from Scotland with an infant child after being granted interim custody, without the consent of the father. She argued returning the child to the father would result in psychological harm to the child because he would be removed from her. The court rejected the argument emphasizing the abducting parent must prove a degree of harm amounting to an intolerable situation. [68] In Solis v. Tibbo Lenoski, 2015 BCCA 531, our Court of Appeal emphasized that Article 13(b) should be interpreted restrictively, relying upon the Explanatory Report on the 1980 Hague Child Abduction Convention and Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir 1996). Friedrich provides the risk of harm contemplated by Article 13(b) must be grave, not merely serious. The exception is not to be used to litigate or re-litigate the child's best interest. Paragraphs 1068 and 1069 include: Only evidence directly establishing the existence of a grave [harm] that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court's determination. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the [application]. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm. Discussion [69] Whether a return exposes the child to a grave risk of harm or psychological harm or otherwise places him in an intolerable situation is a question of fact to be determined on a case-by-case basis. The evidence must be credible and meet a high threshold. Absent submissions from the respondent asking me to apply this exception, I will only comment that I do not regard his allegations of harm as credible. Furthermore, the whole of the evidence establishes that his allegations, excepting the sexual abuse allegation of Mr. G, have been reported to police, medical professionals, and the appropriate government authority in the Mauritius. They were also the subject of his claim for custody that remained contested at the time of the removal. The timing of Mr. G's allegation and the nature of his evidence regarding the alleged recording of A.'s apparent disclosure leave me highly suspicious of its bona fides, particularly in light of the respondent's readiness to make reports against the petitioner prior to A.'s removal. In any event, there is no dispute the Mauritian authorities are empowered to investigate allegations of abuse and risk to a child and if proven the court can and will address them. [70] Accordingly, I order the return of A. to the Mauritius forthwith and, given the obvious flight risk, I deny the respondent's request for an order permitting him to return A. himself. [71] Mr. Sidhu, you were here when Mr. Wright provided Mr. Singh with a copy of the other corollary orders that he is seeking in the event I made this order? [72] MR. SIDHU: Yes. [73] THE COURT: I have reviewed those proposed orders and I will hear from you, but I am, based on my findings, prepared to grant them. Is there anything that you wanted to add? [SUBMISSIONS RE SURRENDER OF CHILD AND INFORMATION OF THE RESPONDENT] [74] THE COURT: I am going to ask Madam Clerk to make a photocopy of your driver's licence, and I will read into the record the orders so it is clear to you. Firstly, pursuant to Article 3 of the Convention I am declaring that A. has been wrongfully removed from his habitual residence in the Mauritius and has been wrongfully retained in the jurisdiction of British Columbia by you, the respondent, in breach of the rights of custody of the petitioner and the rights of custody of the Mauritian Supreme Court. [75] I am ordering pursuant to Article 12 of the Convention that A. be returned forthwith to the Mauritius and, for the purpose of effecting his return, I am ordering you to deliver and surrender him forthwith to the petitioner or her agents who may include but are not limited to Michael Ferguson an investigator with the Missing Children's Society of Canada, and Mr. K., the petitioner's spouse. [76] To give further effect to this order, upon the request of the petitioner, her counsel or her agent, any peace officer including any member of the Royal Canadian Mounted Police ("RCMP") having jurisdiction in British Columbia shall immediately apprehend A. and deliver him to the petitioner or her agent for his return to the Mauritius. For that purpose, any peace officer including any member of the RCMP may enter any place including a vessel or dwelling house where A. is reasonably believed to be present. [77] I am ordering you, the respondent, to surrender A. to any peace officer including any member of the RCMP having jurisdiction in British Columbia forthwith upon a demand being made, for the purpose of returning him to the Mauritius. [78] Any peace officer including any RCMP officer having jurisdiction in British Columbia shall assist the petitioner to the fullest extent possible to ensure compliance with the above-noted orders and any peace officer including any member of the RCMP having jurisdiction in British Columbia who, on reasonable and probable grounds, believes that you, the respondent are in breach of paragraphs 2, 3, and 4 of this order, which will be provided to you before you leave today, shall immediately arrest you and bring you before a judge of this court promptly to deal with an inquiry to determine whether you have breached the order and are in contempt of court. [79] A further term of this order is that the Registrar of the Supreme Court shall forthwith surrender to the petitioner or her agents any passport in his or her possession or control for A. including passports issued by Canada and the Mauritius. [80] The petitioner is at liberty to apply for and obtain any travel documents that may be necessary for the return of A. to the Mauritius without requiring your signature or approval. You are required to do such things and provide all such documents to the petitioner or her agents as may be necessary to facilitate the return of A. to the Mauritius. [81] Pursuant to Article 26 of the Convention, you are required to pay reimbursement to the petitioner for the necessary expenses she has incurred to obtain the return of A. including her travel expenses or the travel expenses of her agent or the child, along with other costs involved in returning A. to the Mauritius. [82] I also awarding the petitioner costs in this proceeding. [DISCUSSION OMMITTED IN PART] [83] THE COURT: I will dispense with the respondent's signature or his counsel's signature on the order, and I will sign it. [84] MR. WRIGHT: That is fine. If we could stand down, My Lady. I did notice at paragraph 10 there was a minor addition under Article 26, "All necessary expenses including her travel expenses and those -- any expenses of her agents"? [85] THE COURT: Yes. [86] THE COURT: Okay, we have a judicial case conference ready to proceed. So I am going to have to ask both of you to just wait until I am able to take a break from that in order to sign the order once it has been revised. [87] MR. WRIGHT: Maybe the parties have settled everything already. [88] THE COURT: Well, I need to sign the order -- [89] MR. WRIGHT: Okay. [90] THE COURT: -- and I want Mr. S. to leave here with a copy of the entered order. [91] MR. WRIGHT: Yes, yes. [92] THE COURT: So I am sorry to delay you, but I think it is necessary. [93] MR. WRIGHT: No, that is fine. We will just hang on. [94] THE COURT: And I assume what you will do, Mr. Wright, is give the order to the RCMP so they can enter it into CPIC. [95] MR. WRIGHT: Yes, we will just get it moving and the RCMP will be engaged. Mr. Ferguson will be notified to attend here. [96] THE COURT: All right. [97] MR. WRIGHT: And just, you know, this is an opportune time to address Mr. S, I think, about the seriousness of this matter and that any attempt -- in my submission, I am sorry, any attempt on his part to frustrate this by causing upset for A. or anything like that - [98] S.S.: Yes, yes. [99] MR. WRIGHT: -- is going to just be terrible for A. and the police are going to move ahead with it. If they have to access other resources to calm A., they will. Mr. Ferguson is a person with a great deal of skill. He will be travelling with his wife. He is a gentleman a little younger than me, I think, but not much, and is well familiar with this and working with children and he will be -- then when they reach London, Gatwick, he will see Mr. K. with whom he has a relationship and that is what we can do at this point. It is far from what anybody wanted, but it has developed that way, so. [100] THE COURT: My intention, Mr. Wright, is to address Mr. S. finally once the order is signed and he has a copy of it just to impress upon him the grave seriousness of this matter and how critical it is that he comply with all of the terms of the order. Mr. S., your remedy, if there is one, is to return to the Mauritius and make some sort of court application there and let that court decide what is in your child's best interests, not this court. [101] S.S.: Yes. Yes, I fear for his -- like he will be traumatized so I will do my best to -- for him to return. [102] THE COURT: It is not about just doing your best. You must comply with every aspect of the order that binds you. All right. [103] MR. WRIGHT: And I will say as a footnote that I think Mr. S. has got two passports, should not be released to him -- [104] THE COURT: No. [105] MR. WRIGHT: -- until such time as the child is verified back in Mauritius. [106] THE COURT: Yes, I have made no order with respect to your passports. So they remain subject to the order of Justice Bernard and you will have to make an application to have your passports returned once it is confirmed that the child is back in Mauritius. [107] All right. So we will stand this matter down and then when it is convenient for the other parties, we will recall it to just deal with the final details. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [108] THE COURT: Yes. So thank you, Mr. Wright, for revising the order. I will provide that to you for entry and I would ask Mr. S. to remain here or in the courthouse or attend the registry with Mr. Wright, perhaps, and not leave until you have an entered copy of the order on your person, and I am going to require you to keep that on your person, okay? [109] S.S.: Okay. [110] THE COURT: Mr. S. you heard what Mr. Wright had to say before we stood the matter down. So I just want to emphasize again the importance of complying with the terms of this order to facilitate your son's return to the Mauritius as soon as possible. You have already indicated, you understand that if you want to dispute the custody issue, you have to do that in the Mauritius, and your behaviour towards your son will facilitate how hard or how easy this trip for him is. All right. So I am going to give Mr. Wright a copy of your driver's licence so that he has that in the event that that is something that the police want to look at and I am going to put a copy of that document in the court file, okay, and so once your son is back in the Mauritius, you can apply to the court for the release of your passports, all right, but they will remain in custody until then. Do you have any questions? [111] S.S.: So for my son, like I want this transition to be smooth. Like he should not be like psychologically like affected and I will -- on my part, I would tell him like to -- he will be going home like -- I would manage him psychologically and also for -- what -- when that would happen to return him like in the next few hours? [112] THE COURT: You can discuss that with Mr. Wright. [113] S.S.: Yes. [114] THE COURT: So he is going to have make arrangements for, as I understand it, Mr. Ferguson to fly here -- [115] THE COURT: -- to pick up your son and then arrangements also have to be made for Mr. K. to fly to London so that he is there to receive him. [116] S.S.: Yes. [117] THE COURT: I do not know what the timeframes are, but they will be as soon as possible. I expect it will not be today, but I do not know. [118] MR. WRIGHT: Well, the process can start as early as this evening. [119] THE COURT: Yes. I would imagine you will know today precisely what the arrangements are. [120] THE COURT: And thank you for assuring me that you will reassure your son. All right. Is there anything else? [121] MR. WRIGHT: No, I have a copy of the order for Madam Registrar, and I understood there was a copy of Mr. S.'s driver's licence. Thank you. I will attend at the registry now to have the order entered, My Lady. [122] THE COURT: All right, thank you, Mr. Wright. [123] THE CLERK: What about this driver's licence? [124] THE COURT: Yes, I will return your driver's licence to you, Mr. S., and perhaps give Mr. Sidhu a copy of the document, as well, so that you have it for your file. [125] MR. SIDHU: Sure, thank you, My Lady. "Fleming J."