Taddeo v. Ouellet

2026 BCCA 141 Taddeo v. Ouellet COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Taddeo v. Ouellet, 2026 BCCA 141 Date: 20260407 Docket: CA51192 Between: Gabriele Joseph Taddeo Appellant (Petitioner) And Cassandra Rose Ouellet Respondent (Respondent) Before: The Honourable Justice Fleming The Honourable Justice Riley The Honourable Justice MacNaughton On appeal from: An order of the Supreme Court of British Columbia, dated October 20, 2025 (Taddeo v. Ouellet, 2025 BCSC 2050, New Westminster Docket E73523). The Appellant, appearing in person (via videoconference): G.J. Taddeo Counsel for the Respondent: Z.S. Suche Place and Date of Hearing: Vancouver, British Columbia March 18, 2026 Place and Date of Judgment: Vancouver, British Columbia April 7, 2026 Written Reasons by: The Honourable Justice Fleming Concurred in by: The Honourable Justice Riley The Honourable Justice MacNaughton Summary: The appellant appeals from the dismissal of his petition, brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of the parties' child to Mexico. The dismissal was based on the chambers judge's finding that returning the child to Mexico would place him in an intolerable situation as contemplated by the grave risk of harm exception in Article 13(b) of the Convention. The appellant argues the record in the proceeding below was materially incomplete due to ineffective assistance from his previous counsel. He also argues the judge erred in finding the grave risk of harm exception was met based on circumstances that are beyond its scope and below the high threshold for an exception to a mandatory return order. Held: Appeal dismissed. The appellant's fresh evidence application and ineffective assistance of counsel argument must fail absent evidence of either his former counsel's communications with him or the evidence he says was material to the petition record. The judge did not err in finding there was a grave risk that returning the child to Mexico would place him in an intolerable situation under Article 13(b). The grave risk of harm exception includes a grave risk that a return order would place the child in an intolerable situation for reasons other than physical or psychological harm. The judge made no error in finding that placing the child in circumstances that include no housing or means of financial support establishes an otherwise intolerable situation. Reasons for Judgment of the Honourable Justice Fleming: [1] The appellant, Gabriele Taddeo, and the respondent, Cassandra Ouellet, are the parents of V who was born in Mexico on September 15, 2022. Mr. Taddeo and Ms. Ouellet are Canadian citizens and lived in Canada until they travelled to Mexico near the end of her pregnancy with V. [2] Ms. Ouellet brought V to Canada in December 2024. A Mexican court order allowed her to travel here with him for one month, but they did not return to Mexico. Mr. Taddeo applied for an order requiring V to be returned to his care in Mexico under the Hague Convention on the Civil Aspects of International Child Abduction, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 ("Convention"). [3] The chambers judge dismissed his application, concluding there was a grave risk that ordering V's return would otherwise place him in an intolerable situation, within the meaning of Article 13(b) of the Convention (the "Reasons"). [4] Mr. Taddeo argues the chambers judge erred in applying Article 13(b). He also asserts the dismissal of his return application arises from a materially incomplete record that is the fault of his then counsel. Mr. Taddeo alleges his counsel failed to produce available evidence that would have affected the outcome. Related to this claim of ineffective assistance of counsel, Mr. Taddeo applies to adduce fresh evidence. Background [5] V is a citizen of Mexico and Canada. As well as their Canadian citizenship, both Mr. Taddeo and Ms. Ouellet are permanent residents of Mexico. [6] The parties met in April 2021, began living together, and in January 2022, learned that Ms. Ouellet was pregnant. In July 2022, they went to Mexico with her older child, S, and settled in San Miguel de Allende, where V was born. [7] Ms. Ouellet did not work (outside the home) while in Mexico. Nor did she learn to speak Spanish fluently. [8] Ms. Ouellet deposed that after V was born, Mr. Taddeo became abusive towards her and the children. She said he was always angry and frequently yelled at her and the children, was verbally abusive and threatening, slammed doors and cupboards, threw objects, was psychologically and emotionally abusive, and financially controlling: Reasons at para. 6. [9] In September 2023, the parties returned to Canada with the children for three weeks. V travelled on a Mexican passport. Mr. Taddeo had previously worked as an auto mechanic in Canada and during the trip, he arranged for his tools to be shipped to Mexico. When they returned, he set up an auto mechanic shop in San Miguel de Allende. [10] Ms. Ouellet deposed that Mr. Taddeo's abusive behaviour escalated in late 2023 and into 2024. His threats included threatening her and the children with homelessness, poverty, deportation and telling her and the children he wished them dead. Mr. Taddeo would also keep V from Ms. Ouellet by taking him to his shop all day even though V was still breastfeeding and napping. Mr. Taddeo continued to control Ms. Ouellet economically. She said he would refuse to buy groceries and not give her money to buy the things the family needed. [11] The Reasons indicate that along with denying all of Ms. Ouellet's allegations of family violence, Mr. Taddeo deposed to being V's primary caregiver because Ms. Ouellet would leave V in his care, alleging she was misusing drugs and engaging in sex trade work and accusing her of infidelity. [12] On April 30, 2024, Ms. Ouellet filed a family violence complaint with Mexican authorities, which initiated a criminal law proceeding. According to the Reasons, the Public Prosecution Office issued a 30-day protection order restraining Mr. Taddeo from having contact with Ms. Ouellet and the children. The translation of the order names her and includes a "prohibition against engaging in acts of intimidation or harassment of the victim or offended party, or of persons related to them". [13] Mr. Taddeo made the same allegations and accusations against Ms. Ouellet in the criminal and subsequent family law proceedings in Mexico. To address the allegations of drug abuse, she voluntarily completed drugs tests, which were negative. [14] Ms. Ouellet and the children left Mr. Taddeo in April 2024 but returned after she learned she could not obtain a Canadian passport for V without his consent. [15] In September 2024, a social worker attended the home with a lawyer for Ms. Ouellet. Mr. Taddeo soon arrived and angrily confronted them. On the advice of the social worker, she and the children left the home and moved to a women's shelter. [16] A further 30-day restraining order was made in the criminal proceeding. [17] Ms. Ouellet's lawyer started a family law proceeding. On September 9, 2024, the family court made a number of interim orders including: a) a restraining order prohibiting Mr. Taddeo from coming within 100 metres of Ms. Ouellet or the children until the proceeding concludes; b) an order giving interim sole custody of V to Ms. Ouellet; c) an order for child support that required Mr. Taddeo to pay approximately CAD $1240 per month; and d) an order granting exclusive occupancy of the former family residence to Ms. Ouellet. [18] Mr. Taddeo made no child support payments and instead of vacating the residence, gave up the lease. With nowhere to live, Ms. Ouellet and the children returned to the shelter for two weeks. [19] On October 23, 2024, a further family court order was made that allowed Ms. Ouellet to travel to Canada with V from December 7, 2024, to January 7, 2025. On December 30, 2024, she started a family law proceeding in the Provincial Court of British Columbia, seeking orders for guardianship, parenting, and child support. Contrary to the Mexican family court order she did not return to Mexico with V on January 7, 2025. [20] The Reasons indicate that in May 2025, the Public Prosecution Office decided not to pursue the criminal proceeding. [21] On June 9, 2025, Mr. Taddeo initiated his application under the Convention for the return of V to Mexico. His petition and supporting affidavit were filed in the Supreme Court of British Columbia on July 24, 2025. His affidavit included, as Exhibit "A", 125 pages of material that he identifies as "my Hague Application from the Mexican Central Authority". His materials did not mention the Mexican family court restraining order or the interim sole custody order. [22] A judicial case management conference ("JCM") was held on July 31, 2025, where timelines for filing further materials were set and a two-day hearing was scheduled for September 8 and 9, 2025. [23] On August 25, 2025, Ms. Ouellet filed her petition response and supporting affidavits that included her own affidavit, the affidavit of a friend or acquaintance of both parties who babysat the children in Mexico, and the affidavit of a current neighbour. Ms. Ouellet's affidavit attaches a number of exhibits, including: translated court orders from the Mexican proceedings; a translated report from the social worker who attended the home in September 2024; and untranslated and translated drug test results. [24] Mr. Taddeo's reply affidavit, which responded to many of the allegations made by Ms. Ouellet in her own affidavit, was filed on September 2, 2025. [25] At the hearing on September 8, 2025, Mr. Taddeo discharged his then counsel on the first day of the hearing. She advised the court that after working on Mr. Taddeo's reply affidavit, she became aware he had not received Ms. Ouellet's affidavit. The hearing was adjourned to a JCM, which Mr. Taddeo's subsequent counsel attended. New dates were set and the hearing occurred on October 9 and 10, 2025. Reasons [26] The Reasons begin with an analysis of the disputed evidence regarding the circumstances leading up to Ms. Ouellet's decision not to return to Mexico with V in January 2025, and Mr. Taddeo's subsequent return application. In discussing Ms. Ouellet's allegations of family violence and Mr. Taddeo's denial of those allegations, as well as their competing versions of other events, the judge highlighted when the disputed evidence was corroborated by or inconsistent with other evidence. [27] Before making the findings necessary to decide the return application, the judge assessed the credibility of the parties' conflicting affidavits. He identified many problems with Mr. Taddeo's two affidavits. The judge found the first affidavit contained sweeping and unfounded allegations against Ms. Ouellet: at para. 36. In rejecting those allegations, the judge noted they were only supported by hearsay statements attributed to friends in Mexico, and the drug abuse allegations were contradicted by two voluntary negative drug tests that Ms. Ouellet completed during the Mexican court proceedings. [28] The judge also found Mr. Taddeo's credibility was undermined by his propensity to speak carelessly, citing a number of examples, including his denial of ever beating Ms. Ouellet, despite the fact that she never alleged he physically abused her. Further, the judge viewed Mr. Taddeo's failure to disclose the Mexican family court restraining order and interim sole custody order in his petition materials, despite seeking an order that V be returned to his care, as tarnishing his credibility: at para. 43. [29] The judge did not have the same concerns about the credibility of Ms. Ouellet's evidence. The one concern he identified was that she breached the Mexican travel order requiring her to return to Mexico with V. Otherwise, he noted her evidence on critical points was consistent with the reports she made to Mexican authorities and several of her allegations were not contradicted. [30] The first disputed issue was V's place of habitual residence. Applying the hybrid approach established in Office of the Children's Lawyer v. Balev, 2018 SCC 16 [Balev], the judge considered the facts relevant to the focal point of V's very young life: at para. 52. He found the balance tipped slightly in favour of V being habitually resident in San Miguel de Allende, Mexico, and Ms. Ouellet wrongfully retained him in Canada, when he remained here beyond the end date in the travel order. [31] Under the Convention an order returning V became mandatory, unless Ms. Ouellet established one of its exceptions. Relying on Article 13(b), she argued there was a grave risk that ordering V's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. [32] The judge found Ms. Ouellet's allegations of family violence sufficiently credible to substantiate a grave risk that V would be exposed to psychological harm if he were returned to Mr. Taddeo in Mexico. The judge recognized however the opportunity for further violence was reduced because the interim custody order required V to live with Ms. Ouellet and protection orders would prevent Mr. Taddeo from having contact, pending the conclusion of the family law proceeding. The judge also concluded Ms. Ouellet had failed to prove that the Mexican authorities were incapable of protecting V from physical or psychological harm, not satisfied they lacked the capacity to enforce the "robust measures to guard against the risk of harm" put in place by the family court: at para. 83. [33] The judge was persuaded, however, that returning V to Mexico would place him in an otherwise intolerable situation within the meaning of Article 13(b), because he would be returned to a place where he and Ms. Ouellet had no housing, and Ms. Ouellet had no means of supporting V and herself, or prospect of employment that would enable her to support him or provide him with the necessities of life: at para. 84. Further, Mr. Taddeo could not be counted on to provide financial support, having shown no genuine interest or intention to support V, as demonstrated by his refusal to pay any child support, and his disrespect for the child support and exclusive occupation orders: at para. 89. Article 13(b) of the Convention [34] I turn first to Mr. Taddeo's assertion the judge misapplied Article 13(b) by expanding the "grave risk" exception beyond its narrow and exceptional scope. Legal Framework [35] Canada and Mexico are contracting parties to the Convention, which has the force of law in British Columbia pursuant to s. 80 of the Family Law Act, S.B.C. 2011, c. 25. [36] The objects of the Convention, set out in Article 1, are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States". [37] Under Article 12 an order returning a child forthwith is mandatory where they have been wrongfully removed or retained and the proceeding has been commenced within a year of the wrongful removal or retention. [38] Article 3 provides the removal or retention of a child is considered wrongful if it is in breach of the rights of custody in the state where the child was habitually resident immediately before their removal or retention. [39] Article 13 includes exceptions to Article 12's mandatory return. Only Article 13(b) is relevant here: 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 - (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. [40] Mr. Taddeo argues the jurisprudence establishes an exception under Article 13(b) cannot be made out by financial hardship, economic disadvantages or environmental considerations both because they are not sufficient to meet the high threshold and they do not fall within the scope of the provision. [41] He alleges then that in misapplying Article 13(b), the judge erred in law, which is reviewable on a standard of correctness. Interpreting Article 13(b) [42] It is true several cases have concluded the exceptions in Article 13 should be narrowly applied to further the objects of the Convention: Beri v. Sachdeva, 2026 BCCA 20 at para. 28. [43] It is also true the threshold for the degree of harm or an otherwise intolerable situation under Article 13(b) is high. [44] In Thomson v. Thomson, [1994] 3 S.C.R. 551 at 596, 1994 CanLII 26, which remains the leading authority on the interpretative framework for the grave risk of harm exception under Article 13(b), the Supreme Court of Canada explained: 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 child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. [Emphasis in original.] [45] In Solis v. Tibbo Lenoski, 2015 BCCA 508, this Court held that Article 13(b) requires "real, immediate, and grave harm" (at para. 34). Landman v. Daviau, 2012 ONSC 547 defined the high threshold for an "intolerable situation" as "a situation which this particular child in these particular circumstances should not be expected to tolerate", at para. 103, aff'd Husid v. Daviau, 2012 ONCA 655; see also D.T. v. L.B.T., [2010] E.W.H.C. 3177 (Fam) at para. 23. In Kirby v. Woods, 2025 ONCA 601, the Court of Appeal for Ontario confirmed the high threshold, but also concluded it does not require children to be "pushed beyond the limits of endurance": at para. 49. [46] Although Mr. Taddeo submits there are "boatloads" of cases that establish economic circumstances cannot constitute a grave risk, he cites only Balev and Thomson in support of his assertions about the scope of Article 13(b). [47] The majority decision in Balev focused on the proper approach to determining a child's habitual residence under the Convention and the framework for the application of the hybrid approach. The majority briefly considered a different exception under Article 13--the "child's objection" to being returned. Commenting on that exception, the majority stated: [76] Article 13(2) is an exception to the general that a wrongfully removed or retained child must be returned to her country of habitual residence, and it should not be read so broadly that it erodes the general rule [citation omitted]. This, however, does not preclude a fact-based, common-sense approach to determining whether the elements of Article 13(2) are established [48] In Thomson, the issue was the extent or severity of the harm required to establish a grave risk of exposure to psychological harm, rather than what might be required to prove an otherwise intolerable situation. [49] The Court expressly rejected the notion that the harm must come from a cause related to the return of the child to the other parent, endorsing instead a child-centred inquiry: "from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came": at 597; see also Pollastro v. Pollastro, 43 O.R. (3d) 485, 1999 CanLII 3702; F. v. N., 2022 SCC 51 at para. 70. [50] Neither party drew our attention to R.V.W. v. C.L.W., 2019 ABCA 273, which on first impression, could be said to align with Mr. Taddeo's view. I say this only because the Alberta Court of Appeal referred to the interpretation of Article 13(b) in Thomson as conjunctive, which would suggest the only role of "an intolerable situation" is to modify or indicate the requisite degree of psychological or physical harm (at paras. 16-17). [51] But R.V.W. recited only part of the analysis in Thomson and did not address what I see as flowing, logically and normatively, from the "harm is harm" and child-centred inquiry edicts. [52] Further, the Court observed that the case law in many other states establishes a disjunctive test for the grave risk of harm exception: at para. 16. The Court also recognized the guidance offered by the Draft Guide to Good Practice on Article 13(1)(b) of the Hague Convention, developed by the Seventh Meeting of the Special Commission on the Practical Operation of Convention and the 1996 Hague Child Protection Convention held in 2017. Along with the high level of risk required to trigger Article 13(1)(b), the Draft Guide indicates it contains three independent categories of grave risk, inter-linked by the term "otherwise": exposure to physical harm; exposure to psychological harm; and placing the child in an otherwise intolerable situation: at para. 17. [53] Ultimately, whether an otherwise intolerable situation serves as an independent category of exception, as well as indicating the high harm threshold under Article 13(b) was not decided in R.V.W. because the interpretative issue was not material, given there was insufficient evidence of the requisite degree of risk: at para. 18. [54] Ms. Ouellet argues, and I agree, that the framework for the grave risk of harm established in Thomson should be read disjunctively or as contemplating that harmful circumstances other than exposure to physical and psychological harm, which meet the high threshold, will fall within the meaning of what would otherwise place the child in an intolerable situation. [55] While R.V.W. identified case law of other states as endorsing a disjunctive test, there are also other Canadian cases following Thomson that frame the test under Article 13(b) as including an otherwise intolerable situation as a substantive ground. In Pollastro, for example Justice Abella, as she then was, noted that under Article 13(b), children need not be returned if the evidence establishes that the return represents a "grave risk" to the children either of serious harm or of an otherwise intolerable situation: at para. 3. [56] In Solis, this Court endorsed Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir 1996) at 1068-1069, which dealt with Thomson's focus on the degree of harm in interpreting Article 13(b): This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests. Only evidence directly establishing the existence of a grave risk 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. The person opposing the child's return must show that the risk to the child is grave, not merely serious. A review of deliberations on the Convention reveals that "intolerable situation" was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested state. [Emphasis added.] [57] F. v. N. provides a clearer and more recent example of the high threshold or requisite degree of harm approach to interpreting Article 13(b), although the issue before the Court was the meaning of the serious harm exception to a return order under the Children's Law Reform Act, R.S.O. 1990, c. C-12 [CLRA]. In determining the stringency or scope of the CLRA exception, the majority compared it to the "grave risk of harm or intolerable situation" in Article 13(b): at para. 73. In doing so, Justice Kasirer opined that the threshold for the defence to a mandatory return under Article 13(b) will only be met in "situations that an individual child should not be expected to tolerate": at para. 73. [58] Thomson also provides the Convention must be interpreted according to the ordinary meaning of its terms "in their context" and in light of the Convention's objects and purpose including the preamble: at 577. In my view, the meaning of the text in Article 13(b) is entirely clear. Read as a whole, it is plain that to "otherwise place the child in an intolerable situation" is demarcated as a category or form of grave risk, in addition to indicating the degree or severity of harm required. Each form of grave risk, exposure to physical harm, exposure to psychological harm, or an otherwise intolerable situation is distinguished one from the other by an "or". It is equally clear from the text that as a form of grave risk, an otherwise intolerable situation encompasses intolerable situations other than those characterized by physical or psychological harm. [59] The preamble, like the objects of the Convention, identifies protecting children from the harmful effects of their wrongful removal or retention and ensuring the prompt return of abducted children to the state of their habitual residence, as a primary purpose. But the preamble begins with: "Firmly convinced that the interests of children are of paramount importance in matters relating to their custody". In Thomson, Justice LaForest interpreted this phrase to mean the interests of children generally: at 578. [60] I see no discord between the plain meaning of Article 13(b), and the other provisions of the Convention or its objects and purpose. The objects and purpose are secured by the high threshold required to prove the grave risk of harm exception that flows from the modifying role of an otherwise intolerable situation. [61] Based on Thomson and the other cases I have discussed, I have no difficulty concluding the grave risk of harm exception includes a grave risk that a return order would otherwise place the child in an intolerable situation, meaning a situation that is intolerable for reasons other than exposing the child to physical or psychological harm, subject to the same high threshold. Comparable Cases [62] Ms. Ouellet also points to three cases where an otherwise intolerable situation was found based on a range of living circumstances including: no housing; no financial means; no prospect of earning an income sufficient to support the parent and child; and isolation or no social or family support: J.H.F. v. S.H.F.N., 2015 BCSC 349; Callicutt v. Callicutt, 2014 MBQB 144; Harris v. Harris, 2010 FamCAFC 221. [63] Callicutt is most comparable. The parties moved from Manitoba to Guam with their children due to the father's employment and lived on a US naval base. The mother alleged significant, if not severe, ongoing abuse by the father. She returned to Canada with the children to attend her mother's funeral and then stayed. Although Justice Hatch found the mother had established the children would be at grave risk of physical or psychological harm if ordered to return, she also found there was a grave risk that a return order would place the children and the mother in an intolerable situation. Much like the circumstances for Ms. Ouellet and V, the mother in Callicutt had no funds, no place to live in Guam, no ability to earn a sufficient income in Guam, no family or emotional support and no one who could provide childcare. Conclusions [64] Without intending to articulate a definitive test, I accept that placing a child in circumstances that include no housing or means of financial support, including the caregiving parent's inability to earn income or secure support sufficient to meet their most basic needs, as was found by the judge here, establishes an otherwise intolerable situation. [65] It follows that I reject Mr. Taddeo's assertion that the judge made a legal error by misinterpreting the scope of Article 13(b) in concluding a return order would place V in an intolerable situation based on economic and environmental considerations. [66] I also reject Mr. Taddeo's assertion that the judge erred in relying on those considerations by conflating best interest of the child considerations with the "limited inquiry" mandated by the exceptions under the Convention. [67] It is well established that a return order under the Convention is not a custody determination that engages a best interests of the child assessment. Rather, it is an order designed to restore the status quo that existed before the wrongful removal or retention, and to deprive the "wrongful" parent of any advantage that might otherwise be gained by the abduction: Balev at para. 24. [68] At the same time, evidence that a return order would place the child in an intolerable situation is required to prove the grave risk of harm exception. Every Convention case depends on its own facts, and the onus remains on the parent resisting the child's return: Pollastro at para. 33; Beri at para. 76. Evidence relevant to an allegation of any of the three grave risks would no doubt also be relevant in determining a child's best interests, given that best interests considerations encompass all of a child's needs and circumstances. Therefore, the fact of overlap in the nature of the evidence considered will not in itself show an impermissible delving into a best interests analysis. [69] Nothing in the Reasons would suggest the judge's refusal to order the return of V was based on anything other than a consideration of the circumstances he would be returned to for the purpose of deciding whether those circumstances were sufficient to establish an intolerable situation within the meaning of Article 13(b). [70] I also see no merit in Mr. Taddeo's further allegation that the judge misapprehended material evidence related to his financial circumstances. The Reasons do not include any express findings about Mr. Taddeo's financial circumstances, other than to indicate he had not provided any evidence about where he was living and as a result, the judge could not be assured of his housing. Mr. Taddeo was rather emphatic that the judge found he did not have employment or an income. But this is inaccurate. Although the judge did find Mr. Taddeo could not be counted on to provide financial support, this was based on his refusal to pay child support and his lack of respect for the child support and exclusive possession of the residence orders made by the Mexican court. [71] I will address any of remaining evidentiary allegations below. Ineffective Assistance of Counsel and Fresh Evidence Application [72] Mr. Taddeo asserts that due to ineffective assistance from his previous counsel, the record in the Supreme Court proceeding was materially incomplete. He alleges his counsel failed to introduce available evidence that was material to the outcome, including his further response affidavit and ten witness affidavits. Mr. Taddeo also alleges his counsel failed to take steps to obtain Ministry of Children and Family Development ("MCFD") records concerning Ms. Ouellet and her other child, despite his multiple requests. [73] In his affidavit filed in support of his fresh evidence application, Mr. Taddeo deposes to receiving Ms. Ouellet's responding affidavit on September 2, 2025, for the first time, one day before the deadline for any reply evidence. He alleges that despite his objections, he was made to swear his reply affidavit, although it did not include exhibits or the "witness evidence" he had prepared. As Ms. Ouellet acknowledged, his first counsel informed the court on the first hearing date, September 9, 2025, that Mr. Taddeo was not provided with her affidavit in time to respond, he discharged her and his application was adjourned. His evidence is the adjournment expressly allowed him to file a proper reply affidavit, exhibits and witness affidavits. Ms. Ouellet denies this, submitting the hearing was simply adjourned to a JCM, and no orders were made about filing additional material. [74] In any event, Mr. Taddeo deposes to sending his new counsel draft response affidavits; proposed witness affidavits; documentary exhibits; certified Convention petition materials obtained directly from Mexican authorities, between September 9 and 30, 2025; and repeatedly requesting that his counsel apply for the MCFD records. [75] Mr. Taddeo's affidavit is largely comprised of copies of emails from him to his counsel. In those emails, Mr. Taddeo responds to the content of Ms. Ouellet's affidavit paragraph by paragraph, and discusses the importance of obtaining her MCFD file, asserting it will show a history of mental health issues, substance abuse, and unsafe parenting. Mr. Taddeo tells his counsel about deficiencies in the record, such as mistakes or alleged falsehoods in some of the translations of documents that Ms. Ouellet has introduced. He also tells his counsel that counsel for British Columbia's Central Authority withheld documents by sending the parties an allegedly incomplete package of the petition materials that he filed in Mexico to initiate his return application; and he has asked the Mexican authorities to ship him the complete package directly. [76] Again, his first affidavit attached 125 pages that he identified as his Hague Application from the Mexican Central Authority. In his reply factum, however, Mr. Taddeo submits the original "judicial petition" was not included in those materials and he does not possess a stamped judicial copy. [77] An email from counsel for British Columbia's Central Authority to Mr. Taddeo's first and second lawyers attached to his fresh evidence affidavit reads in part "I have attached the applicant's Hague materials as submitted to our office via the Mexican Central Authority. I am providing these to avoid any potential delays that may have occurred due to [Mr. Taddeo's second lawyer] not having access to the file materials." [78] His fresh evidence affidavit also attaches Mexican court documents that are only in Spanish, along with a certified translation of the first restraining order and the source document exhibited to Ms. Ouellet's affidavit. As I understand Mr. Taddeo's submission, he includes the untranslated documents to impugn the certified translation she obtained. [79] In one of the attached emails to his new counsel, Mr. Taddeo states "here is my final 2nd affidavit after revision of Cass's affidavit" and outlines a list of exhibits which are not "inserted". He refers to videos that will prove Ms. Ouellet is lying. Related to witness evidence, his emails refer to testimonials and letters. Mr. Taddeo offers to send them to counsel and asks if they should be made into affidavits, but the witnesses are unnamed and he does not provide an account of what they have or would say. No letters from witnesses or drafts of their affidavits are attached to his affidavit. [80] During his oral submissions, Mr. Taddeo referred the parties' pastor observing the children being left unsupervised and other witnesses that would say Ms. Ouellet was making "more money than me when she was here". He also referred at some length to post-hearing documents that would undermine the judge's findings about the Mexican child support order. Mr. Taddeo said he had initiated a process for challenging the support order called an "amparo". He asserted it requires the party seeking to uphold the order to justify it, which Ms. Ouellet has not done. As a result, according to Mr. Taddeo, there is no support order currently. He also submitted that due to his efforts, the judge who made the support order has been fired. Further, Mr. Taddeo asserted that he refused to pay child support because Ms. Ouellet assigned the payments under the order to her Mexican lawyer. [81] In other words, not even Mr. Taddeo's submissions would undermine the judge's finding that he had not paid child support and could not be counted on to pay support in the future. [82] Ultimately, Mr. Taddeo's affidavit does not include any of the evidence he says was material to the outcome of his return application and was sent or made available to his new counsel but not introduced. Mr. Taddeo told us that he relied on legal advice in taking this approach. Another Canadian lawyer advised him not to flood this Court with all the evidence and what he needed to show was the evidence was available, with a view to adducing it at a new hearing, following a successful appeal. [83] But the parties attended a case management hearing in this Court on January 14, 2026. Ms. Ouellet submits it was made very clear to Mr. Taddeo that he needed to prove the evidence itself and he was given additional time to assemble all the evidence he said he had. [84] Rule 59(1)(a) of the Court of Appeal Rules, B.C. Reg. 120/2022 requires a party wishing to apply for leave to adduce fresh evidence to file and serve a supporting affidavit that includes the evidence that they are seeking to adduce, along with other documents. [85] Clearly, Mr. Taddeo has not met this requirement. [86] Nor can he satisfy the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, 1979 CanLII 8 that governs the admission of evidence on an appeal for the purpose of reviewing the decision below: Barendregt v. Grebliunas, 2022 SCC 22. [87] The four Palmer criteria are: (1) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (2) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (3) the evidence is credible in the sense that it is reasonably capable of belief; and (4) the evidence, if believed, could have affected the result: Barendregt at para. 29. [88] Barendregt recognizes that in the family law context, where the appeal concerns a best interests of the child determination, in exceptional circumstances the interests of justice may supersede the first criteria, due diligence: at para. 70. [89] While a return application would not fall into that category, an allegation of ineffective assistance of counsel arguably could, assuming it is an available ground of appeal. [90] In criminal cases, ineffective assistance of counsel is an established ground of appeal that is subject to the two-step test established in R. v. G.D.B., 2000 SCC 22. The appellant must establish that: (1) counsel's acts or omissions were incompetent; and (2) the incompetence resulted in a miscarriage of justice, either substantively (the incompetence made the trial outcome unsafe) or procedurally (the incompetence made the trial process unsafe): at para. 26. There is strong presumption that former counsel's conduct falls within the range of reasonable professional assistance. In this Court, a practice direction further requires that former counsel be notified of the allegation and a formal waiver of privilege. [91] In the civil context, ineffective assistance of counsel is only given effect as a ground of appeal in the "rarest of cases": Mediatube Corp. v. Bell Canada, 2018 FCA 127 at para. 41; Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48 at para. 36. [92] In C.B. v. B.M., 2021 ABCA 266, the Alberta Court of Appeal accepted that an appeal of a return order under the Convention qualified as such a case and applied the two-step test from G.D.B. [93] Essentially, Mr. Taddeo argues that the ineffective assistance of his counsel resulted in an unfair hearing process, because his lawyer failed to adduce evidence that would have been material to the outcome. Conclusions [94] But along with not now producing the evidence he says was material, Mr. Taddeo has not provided any evidence of his counsel's communications with him. As a result, it is not possible to assess his counsel's conduct and whether the interests of justice should supersede the due diligence requirement under the Palmer test. As explained in Ke v. Zhang, 2025 BCCA 245, an ineffective assistance of counsel argument is unlikely to succeed where the appeal court is only provided with a "partial picture" of "what transpired between trial counsel and the appellant" (para. 28). The picture here is not only partial but also selective. [95] Without the evidence Mr. Taddeo says is material, it is also impossible to assess whether it is relevant, credible, and material as required by the other three criteria, although nothing in Mr. Taddeo's affidavit or materials suggests that his proposed evidence could meet these criteria. [96] Returning to those aspects of the first issue that could potentially turn on Mr. Taddeo's fresh evidence application, nothing in his fresh evidence affidavit or his submissions could impugn any of the judge's findings that support his conclusion that Ms. Ouellet established a return order would place V in an otherwise intolerable situation because of the living and financial circumstances she and V would face. [97] I would dismiss Mr. Taddeo's fresh application and reject his claim of ineffective assistance of counsel. Disposition [98] For the reasons given, I would dismiss the appeal. "The Honourable Justice Fleming" I AGREE: "The Honourable Justice Riley" I AGREE: "The Honourable Justice MacNaughton"