Silva v. da Silva

2018 BCSC 788 Silva v. da Silva

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Silva v. da Silva, 2018 BCSC 788 Date: 20180122 Docket: E172818 Registry: Vancouver Between: Isolda Maria Bettencourt Silva Petitioner And Ricardo Manuel Alves da Silva Respondent Before: The Honourable Madam Justice Fleming Oral Reasons for Judgment Counsel for the Petitioner: S.G. Wright Counsel for the Respondent: D. Devine Place and Dates of Hearing: Vancouver, B.C. January 15-16, 2018 Place and Date of Judgment: Vancouver, B.C. January 22, 2018 Table of Contents Overview.. 3 Legal Framework.. 8 Issues. 9 The Child Objection Exception.. 9 The Evidence. 11 Dr. Elterman's Report 11 Other Evidence Regarding Luis. 14 Analysis. 14 Luis's Level of Maturity and Whether Luis's Views Are Genuinely His Own. 16 Luis's Welfare. 20 Conclusion.. 21 [1] The petitioner, Isolda Maria Bettencourt Silva, and the respondent, Ricardo Manuel Alves da Silva, are the parents of Luis Miguel Silva, born May 24, 2006, and Ines Sofia Silva, born June 15, 2001. The parties and the children are from Portugal, although the respondent and the children are also Canadian citizens. The children were born and raised on the island of Sao Jorge in the Azores. Since the parties' separation in 2009, the children have remained there, living primarily with the petitioner. A divorce decree granted in February 2010 incorporates a written agreement between the parties

that specifies the children habitually reside with the petitioner and the respondent has specified access. [2] The respondent moved to Canada in 2013 for employment. The petitioner agreed the children could visit with him for much of the summer in 2017. Soon after they arrived in Canada, both children expressed a wish to stay. The respondent did not return them to Portugal, as planned, on August 28, 2017. [3] The petitioner applies under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 UNTS 22514 [Hague Convention] for the return of Luis to Portugal. The Hague Convention does not apply to Ines because of her age. The respondent opposes the application on the basis that Luis wishes to remain in Canada and objects to returning to the Azores. Overview [4] Although Mr. da Silva was raised on Sao Jorge, he first came to Canada with his mother when he was 17 years old, and became a Canadian citizen. He and his mother returned to Sao Jorge when he was 21. [5] The parties married in 1994. Throughout the marriage, they lived on Sao Jorge, which has a population of 9,500 people. The respondent worked in construction for a few years and then found a job as a truck driver with the municipal government. The petitioner was employed and still is at the local museum. When the parties separated on June 1, 2009, the petitioner left the matrimonial home with the children, eventually settling into a three-bedroom home in another village on the island. [6] The written agreement between the parties that has been incorporated into the divorce decree reads in part:

CLAUSE ONE (Exercise of parental responsibilities) 1. The parental responsibilities regarding issues of particular concern for the minors' life are borne in common by both parents in the same terms as during the marriage, except cases of manifest urgency, in which any of the parents may act alone, informing the other parent as soon as possible.

2. The exercise of parental responsibilities regarding the acts of the children's everyday life pertain to the mother, with whom they will habitually reside, or to the father whenever they are with him temporarily. However, the father, when bearing his responsibilities, must not go against the more relevant educational guidelines established by the mother.

CLAUSE THREE (Visits and weekends) 1. The father will be with the minors at his convenience, after prior agreement with the mother, and without prejudice to the children's rest periods and school tasks.

2. The minors shall spend the weekends alternatively with their mother and with their father, who shall pick them up at and bring them back to their mother's house respectively on Friday at 07.00 pm and on Sunday until 08.00 pm. [7] The agreement also provides for equal shared parenting time on holidays, birthdays and the children's school vacation. [8] Ms. Silva's partner, Helder Mendonca, began living with her and the children about six years ago. Although Ines describes him as unemployed, I accept the petitioner's evidence he operates a small cattle farm on Sao Jorge and on the island of Failal. He owns a house and other assets in Failal and supports his own child who lives there. [9] A number of extended family members also live on Sao Jorge, including the respondent's mother, two of his brothers, Ms. Silva's three brothers and their families, and her aunt. [10] In March 2013, the respondent left the Azores for Canada when he obtained a job at a concrete company where he still works, placing and finishing concrete. Mr. da Silva is now a foreman and cement mason, and earns about $80,000 to $90,000 per year. His salary as a bus driver on Sao Jorge was only €600 per month. [11] The parties' agreement and therefore the divorce decree requires the respondent to pay child support. Clause two reads: 1. The father will pay, in respect of both minors' maintenance, the amount of € 100,00 (one hundred euros), amount to be credited to the account opened in the mother's name until the 8th day of the month it concerns.

2. The amount shall be updated on an annual basis, in January, according to the variation in the inflation rate, including housing, published by the National Statistical Institute.

3. The father will also bear half of the part non-reimbursed by social security of medical and pharmaceutical expenses the mother will eventually spend on their children, upon presentation of the respective supporting documents. [12] The respondent has never paid any child support to the petitioner. She deposes to not pressuring him to comply with his obligation because he was paying the mortgage on the former matrimonial home, which he told her the children would inherit. After moving to Canada, the respondent did not inform her, however, about the dramatic increase in his income. Instead of providing her with child support, he paid for the children's cell phone and sent them small amounts of money either directly or through his family members. [13] The respondent and his partner Lina Bowser purchased a home in Delta, BC, in March 2017. They have been living together since October 2016. Ms. Bowser works as the manager of quality assurance programs. Some of Mr. da Silva's siblings also live in the Lower Mainland, including a sister and a brother. [14] Before leaving Sao Jorge, Mr. da Silva had the children in his care every other weekend. He also had short visits with them during the week. There is no dispute his relationship with the children was and remains very warm and loving. [15] After moving to Canada, Mr. da Silva maintained regular contact with the children by phone,

Skype or FaceTime, as well as on-line communication. In the summer of 2015, he spent a month with them in the Azores. In December 2016, the respondent and Ms. Bowser visited the children for three weeks. [16] Arrangements were made for the children to spend the summer of 2017 in Canada with Mr. da Silva. Ms. Silva consented to them travelling to Vancouver on June 26, 2017, returning to the Azores on August 28, 2017. [17] Fairly soon after they arrived, the children expressed a desire to stay in Canada. Initially they asked the petitioner to agree to them staying for the school year, returning to the Azores in the summer of 2018 and then making further decisions about where they should live. The petitioner opposed the plan. Apart from one phone call, it appears as though there was no direct communication between the parties. [18] On August 28 and 29, 2017, the children were registered for school in Delta, BC. Prior to arriving in Canada, they had very limited exposure to the English language. Both have been attending programs modified for students learning English. Luis, who is eleven years and seven months old, is in grade six. At the end of September 2017, his English language skills were assessed at a beginner level. In his first report card, his teacher described him as an eager, hard-working member of the class who is adjusting well. [19] The petitioner made a formal

complaint to a police agency in Portugal about the respondent's failure to return the children. In early September 2017, a Delta police officer attended the respondent's home and told him he should be returning the children to Portugal. The respondent advised the officer the children were Canadian citizens and they did not want to go. [20] On October 25, 2017, Ms. Silva made an application to the court in Portugal, seeking the children's return. I was told that Mr. da Silva commenced a separate custody proceeding in Portugal at the end of December 2017. [21] On October 26, 2017, Ms. Silva filed her petition in this court. [22] Almost all of Luis's communications with the petitioner since leaving the Azores have been in writing as opposed to by phone, Skype, or FaceTime. Before and after the return date, the children, and Ines in particular, became increasingly assertive in their attempts to persuade the petitioner to let them stay with the respondent. The children repeatedly told the petitioner to think about their future. Ines told the petitioner she was very upset with the petitioner for involving the police, accusing her of hurting them. On September 16, 2017, Ines writes: "We must make it clear, because Luis and I do not need people knocking on the door to do shit, because I need peace, I haven't been eating, because there is much stress trying to make all this stop so that

I can concentrate." Later on in the exchange she says, "Father tells us everything". [23] The petitioner remained opposed to the children, Luis especially, not returning to the Azores. Ines and Ms. Bowser describe some of her communication with the children as psychologically abusive or involving "guilt trips". [24] Both children accused the petitioner of seeking revenge against the respondent. In or about November 2017, they stopped communicating with her. [25] Prior to that and despite the conflict, in their written communication, the children and the petitioner also expressed a great deal of love, affection and entirely appropriate concern for one another. Luis also engaged in some, although limited, exchanges with Mr. Mendonca, the petitioner's partner. [26] The parties jointly retained psychologist Dr. Michael Elterman to prepare a report regarding Luis's views and his level of maturity. His report dated December 1, 2017, forms part of the evidence, which includes affidavits from the parties, their partners, Ines, the respondent's brother and sister who reside here, and some others. [27] The evidence indicates Luis told Dr. Elterman and several deponents that he does not want to return to the Azores and would like to continue living in Canada with the respondent. In his report, Dr. Elterman expressed the opinion Luis was a serious, thoughtful boy with the maturity to have

his views "given the weight of a near adolescent who has thought through what he wishes for himself". Legal Framework [28] The Hague Convention has the force of law in British Columbia pursuant to s. 80 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. The objects of the Hague Convention are set out in Article 1. They 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 access under the law of one Contracting State are effectively respected in the other Contracting States." [29] Under Article 3, the removal or retention of a child is wrongful if it is in breach of the rights of custody attributed to a person in the State where the child was habitually resident at the time of the removal or retention, so long as those rights were actually being exercised. [30] 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 access include the right to take a child for a limited time to a place other than the child's habitual residence. [31] Where a child is wrongfully removed or retained, and less than one year has elapsed from the date of the wrongful removal or retention, Article 12 requires the immediate return of the child, subject to the exceptions set out in Article

13. [32] Article 13 reads: 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. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Issues [33] The respondent relies upon the last exception, taking the position that Luis objects to being returned to the Azores and, given his age and level of maturity, his views ought to be taken into account. [34] There is no dispute Luis was habitually resident in Portugal immediately before his visit to Canada, and that pursuant to the divorce decree, which incorporates the parties' written agreement, Ms. Silva was exercising her rights of custody when

she permitted Luis to visit the respondent in Canada. A term of her written consent was that he would return to the Azores on August 28, 2017. The evidence is clear the petitioner never agreed that Luis could stay longer, and she has continued to assert her rights of custody. [35] It is clear the respondent retained Luis in Canada rather than returning him to Portugal on August 28, 2017, in breach of Ms. Silva's rights of custody. I find therefore, the respondent wrongfully retained Luis, pursuant to Article 3 of the Hague Convention. [36] The issue to be determined is whether I should take account of Luis's views, and if so, refuse to order his return to Portugal pursuant to the child objection exception. The Child Objection Exception [37] As Justice Butler noted in G.A.G.R. v. T.D.W., 2013 BCSC 586, the concept of giving effect to the views of a child, where appropriate, is consistent with Article 12 of the United Nations Convention on the Rights of the Child [UN Convention], to which Canada is a signatory, which provides in part: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. [38] Although, the UN Convention has not been implemented by statute in Canada, it

has been ratified. [39] The child objection exception in Article 13 of the Hague Convention provides the court with a discretion to refuse to order the return of a child, although wrongfully retained, if two conditions are met: first, the child himself objects to being returned; and second, he has attained an age and degree of maturity which makes it appropriate to take his views into account: Re M, [2007] UKHL 55, [2008] 1 All ER 1157, para. 46. [40] In Beatty v. Schatz, 2009 BCSC 706, Justice Martinson determined the proper approach to the exercise of the court's discretion was articulated by the House of Lords in Re M, at para. 46, which reads: In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play only when two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion come into play, the court may have to consider the nature and

strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances. [Emphasis added in Beatty] [41] The Court of Appeal agreed, also emphasizing that each case turns on its particular facts: Beatty v. Schatz, 2009 BCCA 310, at para. 20. [42] As the petitioner noted, the English authorities describe the two conditions contained in Article 13 as a gateway test. In Re M, [2015] EWCA Civ 26, the appeal court determined that test is properly confined to a "straightforward and fairly robust" examination of whether the simple terms of the Hague Convention are met, avoiding "sub-tests and technicality" of all sorts. [43] Based on Beatty and other authorities, Justice Butler in G.A.G.R. summarized the principles that govern the court's exercise of discretion at para. 53: a) While courts are increasingly encouraged to take account of the views of children, that does not mean that their views are determinative or even presumptively so. b)

The question as to whether a child has reached an age and degree of maturity where it is appropriate to take her views into account must be determined based on all of the evidence. The relevant evidence will include the nature, strength and reasons for the child's objection. c) A child's views should only be regarded if they are authentically her own. If the views have been influenced by someone else, or are based solely on a desire to stay with the abducting parent, then they should be given little weight. d) The exercise of discretion may take into account the child's welfare. e) The policy considerations underlying the Convention are an important factor in the exercise of discretion. f) The older the child, the more weight her objections are likely to carry, however, there is no minimum age at which the objections can be taken into account. g) A child's views can prevail even where the circumstances are not exceptional. The Evidence Dr. Elterman's Report [44] Dr. Elterman, an experienced clinical and forensic psychologist, interviewed Luis on November 28 and December 1, 2017, with the assistance of an interpreter. Although Dr. Elterman did not interview either of the parties, he was provided with the pleadings and most of the affidavit evidence, as well as correspondence from counsel. [45] According to his report, Luis told Dr. Elterman that about one month into the visit he

and Ines talked about staying in Canada; he raised the issue first because it takes her longer to come up with ideas. When asked to explain what lead him to want to remain here, Luis said he saw that Canada offered many more chances in the future, it is a different and interesting country; he has always wanted to live with his father and had not had much opportunity to spend time with him before. Luis also identified chores in the Azores as an issue. He said that after school he had to work with the cows and walk them about 10 kilometres to other grazing areas. Now, after school, he watches TV. He reported being involved in judo and boy scouts in the Azores. Here, he has started judo, and plans to do guitar lessons and skating. [46] Dr. Elterman wrote at one point that Luis identified the "biggest reason" he wants to remain in Canada is because he wants to live with his father. [47] When asked about each parent, Luis spoke very positively about the respondent. He also described getting along well with Ms. Bowser, stating she does everything to make him and Ines feel comfortable. [48] When asked about the petitioner, Luis told Dr. Elterman she does not understand them or put herself in their shoes, referring to her response to their decision to stay in Canada. He said the petitioner sent messages that made them feel guilty. She would not believe them when they told her it was

them and not the respondent who decided they should stay. Luis expressed a negative view of Mr. Mendonca, stating he would swear at him, criticize him, and complain to the petitioner about Luis being unhelpful. According to Luis, the petitioner invariably took Mr. Mendonca's side. During meals Mr. Mendonca would say, "if you want to eat, you have to work". [49] The report indicates that when Dr. Elterman asked Luis what he misses about living in the Azores, he said his mother, "which is normal", but nothing more. [50] Luis told Dr. Elterman he did not feel any pressure from his father to stay in Canada, indicating he has stated it was up to them to decide if they want to stay or go; his father would never force them to stay and wanted them to make the best decision for themselves. Luis also stated his father agreed they would have a better future in Canada but "they already knew that". The petitioner, on the other hand, has put pressure on Luis to return to the Azores, telling him she will never give up fighting for them, that Luis is too young to decide, and the respondent must be forcing them to stay. Luis said he is very unhappy his mother is taking his father to court. Luis denied feeling any pressure from Ines, indicating they only talk when they feel hurt by the petitioner and the messages she is sending them. [51] In summarizing what Luis told him, Dr. Elterman

wrote: Luis has told me that he decided that he would like to continue living in Canada and not to return to the Azores for a variety of reasons. These reasons include wanting to live with his father, feeling that he has more opportunities in Canada, not wanting to do farm work with the cattle after school, and enjoying life in a larger place with more to do. He also describes a difficult relationship with his stepfather whom he says is sometimes critical of his father and who will sometimes unfairly report him to his mother after work. I have spoken to Luis in some detail about how the idea of staying in Canada arose and I believe that his narrative about raising it first with his sister and then bringing it to his mother and father seems consistent. [52] Dr. Elterman went on to state: "I did not, in fact, conclude that he was put under pressure or is currently under pressure from his father to leave the Azores and remain in Canada." [53] Dr. Elterman's opinion regarding Luis's maturity is as follows: When one considers the issue of whether the child is mature enough to have weight put onto it's (sic) wishes, one needs to consider both how the child presents himself in terms of maturity plus the reasons why he has come to the conclusion that he has about where he wants to reside. On both of these, I found Luis to be a serious, thoughtful boy who has considered the question

more in depth rather than as a whim. I thought that his reasons were age appropriate and consistent with what he wishes for. It is therefore, my opinion that Luis does have the maturity to have his views given the weight of a near adolescent who has thought through what he wishes for himself. [54] I interpret the last sentence to mean that Dr. Elterman regards Luis as having the maturity of a near adolescent who has thought through what he wishes for himself. [55] Dr. Elterman's opinion about Luis's maturity is based on his clinical impressions. Luis did not complete any psychological testing. Other Evidence Regarding Luis [56] There is some discrepancy between Dr. Elterman's opinion and the views expressed by some of the deponents, indicating Luis is unusually mature for his age. The respondent, for example, describes Luis as a really mature young man. His sister, Luis's aunt, describes both children as very mature and Luis as "not really like a kid". She also deposes: "I consider him more like a little man". Similarly, the respondent's brother says he considers Luis a mature boy who talks in a grownup way, shows an understanding of the situation, and thinks long-term. [57] The petitioner's evidence provides a fulsome picture of Luis before leaving the Azores. She describes him as a happy, accomplished boy who loves being outdoors and riding the family's horse. He had some of

his own farm animals and was "a little businessman in his own way", swapping his sheep and goats with a neighbour. The petitioner states that Luis is respected by other children for his competence with farm animals. He has won several local competitions because of his skills. The petitioner deposes that Luis excels at judo and has also won a number of competitions. He is a good student and actively participates in school and community activities. He has many friends. The petitioner relies upon letters from others in the community, including Luis's judo coach, who writes about Luis's exceptional talent for the sport. The coach describes him as a natural leader, an example to his peers, and a "joyful sociable young man". The respondent did not object to this letter being used for a hearsay purpose and, in fact, emphasized the view expressed by the coach in making submissions about Luis's maturity. Analysis [58] The first issue is whether the respondent has established the two conditions required for taking account of Luis's views pursuant to Article 13 of the Hague Convention. [59] The petitioner does not dispute that Luis is sufficiently mature for his views to be considered, bearing in mind the views of children as young as nine have prevailed, and that concerns about what underlies his stated reasons are properly considered in determining what weight those views should be

given. [60] In R.M. v. J.S., 2013 ABCA 441, the Alberta Court of Appeal concluded expert opinion evidence about the maturity of a ten-year-old child was necessary, in part, because of his very young age. At eleven years and seven months, Luis is somewhat older, and therefore his level of maturity perhaps more accessible. To the extent the respondent and his deponents have portrayed Luis as more mature than Dr. Elterman found him to be, I give their evidence no weight. I agree with the petitioner there is a tailored quality to most of it, reflecting an awareness of the legal requirement regarding his level of maturity. Aside from that, however, I accept the balance of what they deposed to, about how Luis presents himself and what he said to them, despite their interest in the matter, given the consistency in the evidence on this point. I find therefore that Luis has the maturity of a thoughtful, confident, intelligent, well-adjusted child nearing adolescence. [61] Based on the petitioner's position, my finding, and the evidence as a whole, I conclude that Luis has attained an age and degree of maturity at which it is appropriate to take account of his views. [62] The petitioner takes the position the respondent has not proven the other condition, arguing that Luis's wish to remain in Canada is really a preference for living with the respondent and does not amount to an objection

to being returned to Portugal or the Azores. [63] Although I agree that Luis's desire to stay and not return to the Azores is rooted in a strong desire to live with the respondent, he has provided other reasons for opposing a return. Further, it is not clear to me there is a bright line distinction to be drawn between a child's wish to remain with one parent and objecting to a return. I note that in Beatty, for example, the court accepted the child was objecting to being returned because he felt quite firmly about wanting to continue living with his father, and enjoyed his school, friends, and activities where he was. I find therefore that the views Luis expressed to Dr. Elterman do amount to an objection, given that a child's reasons for objecting need not be exceptional. [64] I turn now to consider various factors in determining what weight should be given to Luis's views. Luis's Level of Maturity and Whether Luis's Views Are Genuinely His Own [65] The Alberta Court of Appeal in R.M. held a child's perspective should be weighted in light of his apparent maturity and what the child actually knows or understands about the alternatives and other factors that may have influenced his thinking. [66] The uncontradicted evidence of the petitioner is that neither Luis nor Ines ever expressed an interest in moving to Canada or a concern that living in the Azores might limit their

future prospects before their visit, which I accept. Ines, much like Luis, was thriving and happy. She, too, is very outgoing, and was doing well in school. The petitioner described Ines as interested in studying sciences. Ines herself says she would like to pursue medicine or veterinary science. Before leaving the Azores, Ines was actively involved in organizing events at school and scouts. She also taught Sunday school and had many friends. Ines had been on a trip to the mainland of Portugal and had talked about wanting to study there after high school. [67] The evidence shows Luis first mentioned an interest in staying in Canada about two weeks after he arrived, during a discussion with his uncle. [68] Although one of Luis's stated reasons for not wanting to return to the Azores is an apparent concern about his future prospects, there is no suggestion he has considered or been encouraged to consider how staying in Canada will impact his ongoing involvement with the petitioner. Both children cut off communication with her in or about November 2017, based on her refusal to consent to them staying and their perception she was trying to hurt both them and the respondent by doing so. Clearly, the petitioner cannot afford to visit Luis in Canada or pay for him to travel to Portugal. The respondent has not deposed to any plan about how to resolve the current impasse and how Luis

would continue to spend time with the petitioner. [69] I am left with the clear impression that Luis is not yet mature enough to understand and appreciate how his welfare may be impacted by this critical issue. [70] Rather than comment on whether Luis's views are genuinely his own, Dr. Elterman wrote that he "did not conclude" that Luis was put under pressure from the respondent to leave the Azores and remain in Canada. Based on his report and the whole of the evidence, I accept that Luis's desire to remain with the respondent is not the result of any direct or overt pressure from the respondent to adopt and express such a view, although it does align entirely with his own wish. Instead, the respondent led Luis to believe the decision to stay in Canada is up to him, which involves pressure of a different kind. [71] I am troubled by the extent to which the respondent made Luis and Ines responsible for not only deciding whether to remain in Canada but also communicating with the petitioner about the matter. The respondent appears to have conflated the children's views with their best interests. His obligation as a parent was to consider those views carefully and take appropriate action. The divorce decree required him to return both children to the petitioner. If he considered a change in their habitual residence to be in their best interest, he should have explained to them his

obligation to seek an order to that effect from the courts in Portugal. Instead he told them he would support their decision by not requiring them to return to Portugal. [72] Luis has, however, been subject to strong influences. Those influences include Ines, with whom Luis shares a very close relationship, an awareness of the respondent's distress over living apart from the children, and other family members, who, like the respondent, chose to leave the Azores and move to Canada. [73] Ines's own evidence and written communications with the petitioner indicate she has been fully engaged in the litigation over this matter, the details of which were shared with Luis. For example, she was advised erroneously by an on-line legal information service that at the age of twelve, children have the right to choose, which Luis then conveyed to the petitioner. On August 28, 2017, Luis wrote to the petitioner: "Mom, I love you but if you win, I'll come in the year because I'll be 12". [74] Soon after the children informed the petitioner about their wish to stay, Ines began to complain to her about how returning to the Azores would diminish their opportunities. She described the school and the universities in Portugal as entirely inadequate. And then on August 2, 2017, she wrote: "You don't want to have a weight on your conscience if we don't succeed in life because you are forcing us to go

back and this is not good for us or for anybody else." In her affidavit, Ines expressed the opinion the quality of universities in Canada is higher. In or about mid August 2017, she told the petitioner that if she did not consent to them staying, the respondent would not be able to afford the cost of a visit to the Azores the following summer. [75] Without intending to criticize her in any way, the tone of Ines's affidavit is dramatic if not hyperbolic at times, and on some points, she seems to have been mislead or to misstate matters. For example, she deposes the family had quite a few money problems because the petitioner's salary was not good and Mr. Mendonca was unemployed. Child support is an important potential contributor to the children's standard of living in the Azores. The respondent has never complied with his child support obligation, nor did he inform the petitioner he was earning an annual income of between $80,000 and $90,000 after moving to Canada. Ines's last email to the petitioner indicates she was misinformed about this issue: Hi Mom, I do not want to talk to [you], but I'm outraged at what I saw today We all know that the choice of separation was from [you], we also know that it had been agreed that as the father was to pay the debt of the house, that [he] did not need to pay [maintenance]. All I saw today is proof that nothing that [you are] doing is for

us, that is to avenge something I still can not understand. [76] The last sentence reads, "[Dad] always gave us money when we asked for it, and [you know] that if [he] did not give [us] more because [you] would not let us ask". Ines is not to be faulted for being unaware that a child support obligation is not fulfilled by giving money to the child directly. Instead, it benefits a child by contributing to the cost of raising that child. I infer the reference to "we" in Ines's email includes Luis. [77] Ines deposes that she and Luis talk about everything. Luis told Dr. Elterman that Ines is like a parent to him. Clearly, she is an ambitious, intelligent and assertive young woman. Given her much older age, their close bond, her strong, confident presentation, and her intimate knowledge of the litigation, I have no doubt Ines has significantly influenced Luis's views. This is particularly true when it comes to his apparent concern for the future, his frustration and anger toward the petitioner over her refusal to agree to him remaining in Canada, and his belief that her position is driven by revenge rather than her own emotional distress and what she genuinely believes to be in his best interest. [78] As indicated, I have also formed the impression that Luis's views are informed by his perception of the respondent's needs. In addition to imploring the petitioner to allow them to

stay because their future demanded it, both children invoked his emotional well-being. Ines and Luis told the petitioner how the respondent had suffered by living apart from them. Ms. Bowser deposed the respondent had discussed how sad he was going to be and how much he would miss the children when they left at the end of the summer, before and shortly after they arrived. On more than one occasion, Luis spoke very protectively about the respondent with the petitioner. [79] In addition, it is apparent the context in which Luis has lived since the end of June 2017, is another source of influence. Luis's uncle, for example, told him early on in the visit he wished he had moved to Canada at an earlier age in order to master English. Dr. Elterman's report indicates the respondent has told the children he views the economic opportunities in Canada as better. His lifestyle now, as compared to theirs in the Azores, no doubt has communicated that same message. Luis's Welfare [80] Without engaging in an evaluation of Luis's best interests, I am permitted to examine the extent to which his views "coincide or are at odds with other considerations relevant to his welfare". [81] The respondent argues Dr. Elterman's report makes it clear that among Luis's reasons for wanting to remain in Canada are reasonable concerns about his welfare that include having more opportunities in Canada, being

"forced" to work in the Azores after school, and a difficult relationship with his stepfather, Mr. Mendonca. Assuming that economic prospects, in general, are likely better in Canada, during the hearing, I expressed some doubt that a child of Luis's age would independently be concerned about his future prospects. Accepting the parties' contrasting lifestyles and his thoughtful nature may have prompted him to think about the issue, I remain doubtful, bearing in mind he does not appear to have considered the most obvious and significant long-term consequences of staying in Canada, namely the impact on his relationship with the petitioner and the abrupt loss of connection with the only community he has ever known. [82] Regarding Mr. Mendonca, Ines and Luis both complain he has used inappropriate language with Luis, and unfairly described Luis's behaviour to the petitioner, who invariably takes Mr. Mendonca's side. The children also complain the petitioner and Mr. Mendonca have spoken negatively about the respondent, as well as subjected them to onerous farm chores. [83] The petitioner and Mr. Mendonca convey a very different picture. The petitioner describes him as a good stepfather, and his relationship with both children as very close and positive. She describes Luis and Mr. Mendonca as particularly close. She says Luis was always eager to accompany Mr. Mendonca, rather than

disliking time alone with him. The petitioner denies the children's responsibilities for the animals were ever unreasonable or resisted. Instead, she says, they were proud to do their part. The petitioner readily acknowledged that Mr. Mendonca may have referred to Luis as a "sissy" and using "curse words" but she described this as an affectionate form of teasing that is common in the Azores. To some extent, her explanation is confirmed by a Facebook exchange between Mr. Mendonca and Luis. [84] Although it is not possible for me to resolve the conflict in the evidence on this issue, given the children arrived in Canada successful, happy, and well adjusted without having expressed any prior concern about their lives in the Azores to the petitioner, I am certainly concerned their complaints have been overstated. [85] The reality is, to the extent Luis is meaningfully troubled by Mr. Mendonca's interactions with him, the way forward involves trying to resolve rather than walk away from the problem. Abruptly cutting off from his relationships with Mr. Mendonca, and very significantly, the petitioner, is hardly consistent with his welfare. Conclusion [86] To summarise, I conclude that while Luis has expressed a genuine desire to live with the respondent in Canada, I am not satisfied that some of his reasons for wishing to stay and not return to the Azores are authentically his own.

Bearing in mind the conflict in the evidence, I am also not persuaded his views and his welfare are well aligned. Although mature enough to have his views carefully considered, as I have said, he has not yet reached the stage where he is able to take account of the significant consequences of not returning to Portugal. [87] In light of the above, I conclude Luis's views should be given some, but limited, weight. [88] In my view, the strong policy considerations underlying the Hague Convention, namely, assuring the prompt return of wrongfully retained children and deterring abduction in the first instance, are important factors in this case. The respondent's actions in failing to return Luis to Portugal were clearly wrongful. He breached a written agreement and the divorce decree, and did not raise the issue of custody in Portugal until after this proceeding and a parallel proceeding in Portugal had been brought, and well after he had given Luis the power to decide where he wished to live, and his relationship with the petitioner had been seriously undermined. Luis's interests and his views should, and no doubt will be carefully considered by the court in Portugal. [89] Weighing all of the circumstances and considerations, I am exercising my discretion to order the immediate return of Luis to Portugal. "Fleming J."