United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.
INTRODUCTION
Kimberly
Colin La Salle (“Mother”) and Dominick Johnathan
Adams (“Father”) are the parents of two minor
children, E.N.A. and M.E.Y.A. (together, “the
Children”). On August 19, 2019, Mother filed an amended
verified petition under the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. § 9001
et seq., which implements the provisions of the
Hague Convention on the Civil Aspects of International Child
Abduction. (Doc. 6.) In a nutshell, the petition alleges that
the Children were born and raised in Canada, that Mother and
Father shared joint custody of the Children pursuant to a
divorce decree that was issued by a Canadian court in October
2018, and that Father violated the divorce decree (and the
ICARA) by moving to Arizona in February 2019 and taking the
Children with him. (Id. ¶¶ 9-15.) The
petition requests, among other things, an order
“establishing that the Children shall be returned to
Alberta, Canada where an appropriate custody determination
can be made by a Canadian court under Canadian law.”
(Id. at 9.)
On
November 12, 2019, the Court held an evidentiary hearing. As
explained below, although the evidence introduced during the
hearing shows that Father is a loving parent whose decision
to leave Canada was, in some ways, understandable, the
evidence easily establishes that Father violated the ICARA.
Accordingly, Mother's petition will be granted and Father
will be required to return the Children to Canada.
FINDINGS
OF FACT
During
the evidentiary hearing, Mother (who is represented by
counsel) called three witnesses: (1) Mother, (2) Giselle
Kutrowski, and (3) Michelle Hansen. (Doc. 27.) Additionally,
Father (who is proceeding pro se) called three witnesses: (1)
Laurel Berg (Mother's mother), (2) Donna Adams
(Father's mother), and (3) Father. (Id.) The
findings of fact set forth below are based on those
witnesses' testimony and the exhibits that were admitted
during the hearing:
I.
Background Concerning Mother, Father, And The
Children
In
April 2011, Mother and Father were married in Alberta,
Canada. (Exhibit 2.) Although Mother is a citizen of Canada,
Father is not-he is a citizen of the United States who had
status to live and work in Canada because Mother sponsored
his application for a visa. (Doc. 6 ¶¶ 12-13; Doc.
21 ¶¶ 3, 12-13, 15.)
In
August 2012, the couple's first child, a boy named
E.N.A., was born in Canada. (Exhibit 1.) In January 2014, the
couple's second child, a girl named M.E.Y.A., was born in
Canada. (Id.) Both Children are dual citizens of
Canada and the United States.
Mother,
Father, and the Children lived together in Canada until
around March 2017, when Mother and Father's marriage
began to deteriorate. (Doc. 21 ¶ 20.) The deterioration
was caused by several factors, including Father's failure
to provide consistent financial support and Mother's
romantic relationship with another man, Howard LaSalle
(“LaSalle”), whom she eventually married.
II.
Father's Loss Of Immigration Status In Canada
In
early 2017, as the marriage was falling apart, Mother
withdrew her sponsorship for Father's visa. (Exhibit T.)
Mother credibly testified during the evidentiary hearing that
she did so out of necessity-Canadian law requires the sponsor
to be the spouse or significant other of the visa applicant
(and the relationship was heading toward a divorce) and
Canadian law also obligates the sponsor to provide financial
support to the visa applicant (which Mother could not afford
to do). As a result, in July 2017, Father received formal
notification from the Canadian government that he would be
losing his immigration status in Canada. (Id.)
Father
testified during the evidentiary hearing that he made various
unsuccessful efforts, after receiving this July 2017
notification, to obtain immigration status in Canada by means
other than sponsorship by Mother. However, Father did not
introduce any documentary evidence concerning these
efforts[1] and it is unclear to the Court how
extensive or sincere those efforts were.
III.
Mother's Temporary Residence In A Maternity Home
As
noted, the marriage between Mother and Father deteriorated in
part due to Mother's relationship with another man,
LaSalle. In 2017, Mother and LaSalle had a child together
(who will be referred to by his first initial,
“X”).
Around
the time of X's birth, officials with the Central Alberta
Child and Family Services Authority (“CFSA”)
received anonymous reports that LaSalle was engaging in
verbal abuse toward Mother, [2] that drug use had occurred or was
occurring in the home, [3]and that children were being locked in
bedrooms.[4] As a result, CFSA officials recommended,
but did not require, that Mother temporarily move into a
maternity home. Mother agreed to follow this recommendation
and moved into a nearby facility (the Central Alberta
Pregnancy Care Network) in May 2018.
During
her stay in the maternity home, Mother successfully
participated in and completed various courses on parenting
skills. (Exhibits 10, 11.) Separately, LaSalle successfully
participated in and completed a course on anger management.
(Exhibit 12.) And Mother and LaSalle jointly worked together
with a counselor to develop a “safety plan”
intended to create strategies for LaSalle to control his
temper. (Exhibit 9.) The author of the safety plan concluded
that “[e]ngagement and insight provided by [LaSalle and
Mother] was beyond my expectations. It is my opinion that
they both contributed and were actively involved in
process.” (Id.)
During
the initial part of her stay in the maternity home, Mother
was not allowed to keep the Children for overnight visits. As
a result, she only saw the Children periodically. However,
after displaying improvement to the satisfaction of Ms.
Kutrowski, the maternity home's director, Mother was
allowed to resume overnight custodial visits with the
Children.
Ms.
Kutrowski credibly testified that she has observed Mother and
LaSalle interact with X on multiple occasions and that their
parenting skills and behavior were always appropriate. Ms.
Kutrowski also credibly testified that LaSalle displayed
“significant improvement” in his anger management
skills during the course of Mother's stay in the
maternity home.
In
February 2019, Mother began meeting with Ms. Hansen of
Turning Point, a support group for women. Ms. Hansen, like
Ms. Kutrowski, credibly testified that she has seen Mother
and LaSalle interact with X on multiple occasions and has no
concerns about their parenting skills.
In July
2019, Mother moved out of the maternity home. She currently
resides in a three-bedroom home in Canada with LaSalle, X,
and LaSalle's child from a previous relationship.
IV.
The Divorce Decree
Although
Mother and Father stopped living together in 2017, they did
not finalize their divorce until October 2018. The divorce
decree, which was issued by a Canadian court on October 2,
2018, specifically provides that Mother and Father
“have joint custody of the children of the
marriage.” (Exhibit 2 at 2. See also Doc. 21
¶ 21 [Father's answer, not disputing the contention
in the amended petition that the divorce decree awarded
“joint custody”].)
The
divorce decree provides that Father is responsible for
providing the Children's “primary residence”
and “day to day care and control” but clarifies
that Mother is entitled to “access with the children
every other weekend commencing September 1, 2017 and
continuing thereafter until further Order of the Court,
” with Mother “responsible for picking the
children up at the commencement of her access and dropping
the children off at the end of her access at [Father's]
residence.” (Exhibit 2 at 2.) Additionally,
the divorce decree provides that Mother and Father must
“equally share all school vacations and holidays”
and that each parent must “have direct or indirect
access to education, counselling, therapy, daycare services,
and any other information regarding the welfare of the
children.” (Id. at 3.) Finally, the divorce
decree provides that each parent may “travel with the
children within Canada and outside of Canada without the
written consent of the other party provided the person
travelling with the children provides the non-travelling
party with a travel itinerary and contact information.”
(Id.)
V.
The Incidents Offered To Illustrate “Grave
Risk”
During
the evidentiary hearing, Father elicited testimony concerning
an array of incidents that were apparently offered to show
that returning the Children to the care of Mother and LaSalle
in Canada would expose them to a “grave risk” of
harm. The legal significance of these incidents is addressed
in the Conclusions of Law section of this order,
infra. Here, the Court simply provides its factual
findings concerning the incidents.
On one
occasion in 2017, Mother went to the residence she had
previously shared with Father to see the Children. Father was
not present at the residence but his mother (the
Children's grandmother), Donna Adams, was there. When
Mother arrived, the door was locked. Mother tried to force
her way into the residence, became angry when she
couldn't enter, and eventually retrieved a baseball bat
from her car and began banging on the door.
The
Children became anxious and frightened during this episode
and Ms. Adams eventually called Mother's mother, Laurel
Berg, to come to the residence and help settle things down.
In or
around July 2018, E.N.A. broke his arm while in Mother's
custody. (Exhibit 20.) The injury was accidental and likely
occurred when E.N.A. slipped while getting off a
bus.[5]
At some
point in 2017 or 2018, after Mother had separated from Father
and started living with LaSalle, Father passed by
LaSalle's home. When LaSalle saw Father, LaSalle became
angry and had to be held back by Mother. (Exhibit R.)
Mother
did not have consistent access to a car after separating from
Father. As a result, she was sometimes required to transport
the Children via public transportation- specifically, the
bus. This sometimes caused the Children to have to wait,
outside, at the bus stop during very cold Canadian winters.
The Children were not always properly clothed to protect
themselves from the cold.
Sometimes,
after the Children were returned to Father's care after
spending time with ...