Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) [Canada] [Habitual Residence] [Petition Granted]

In Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) On January 2, 2013, Petitioner Jonathan William Bedder filed a petition for the return of his daughter, "R," to Canada. Petitioner alleged that his daughter was wrongfully abducted to the United States by his estranged wife, Respondent Sarah Rebecca Bedder.


Sarah and Jonathon met as undergraduate students in New York. Petitioner was a Canadian citizen, while Respondent and R were United States citizens. The couple married in June of 2008, beginning married life in Jonathon's apartment in upper Manhattan. Their daughter was born on October 5, 2009 during their sojourn in New York. In or about late 2010 or early 2011, the couple decided to move to Seattle, Washington, where Petitioner hoped to find more sustainable employment. After they were evicted from their apartment in Seattle, Petitioner flew home to Canada in late June, and Respondent's and R's travel was booked to fly to Canada on July 30, 2012. At the time they were evicted, both hoped to eventually return to Seattle and find a new apartment. The couple eventually canceled Respondent and R's return tickets to Seattle, notified R's Seattle preschool that she would not be returning, and canceled their U.S. health insurance. They engaged in extensive activities to complete their family's relocation to Canada. They went shopping and purchased clothing and additional toys, since they had originally planned to stay for only a month. Respondent requested that a few small items be sent to their new home in Winnipeg, and the remaining items originally placed in storage in Seattle were eventually sold or donated to charity. With his parents' financial support and encouragement, Petitioner enrolled in additional computer certification courses. The couple obtained a Canadian health insurance card for R, and almost immediately enrolled her in a local religious preschool three mornings per week. Respondent wrote several blogs, and her contemporaneous blog entries were telling. In August she wrote "I'm so grateful that there was nothing really tying us to Seattle so we had the option to just stay here instead of returning to Seattle." In September, she wrote about R's enrollment in her new Canadian preschool. "I'm so grateful that there's a religious preschool here that's comparable to MMSC in Seattle. By early September, 2012, the couple had met with an immigration lawyer, who explained the requirements for Sarah to obtain permanent legal residency in Canada. Despite their serious marital problems, the couple still hoped to work out their differences. Initially, Jonathon expressed a willingness to legally sponsor Sarah-a Canadian legal commitment to be financially responsible for her for a period of three
years. However, during a family counseling session on or about September 20, 2012, Petitioner conveyed to Respondent that he did not think their marriage would survive.

On that day or shortly thereafter, he advised Respondent that he would not sponsor her. Respondent reacted with anger, but expressed no intention to leave Canada prior to December 2012. She continued to live-with the consent of all involved- in her basement quarters, and R continued to sleep in her second-floor bedroom. The couple considered themselves separated as of September, when Jonathon moved to the main floor of his parents' home and began sleeping on the couch. Sarah testified that she continued to pursue her options for remaining in Canada by consulting with another immigration lawyer. Respondent looked into obtaining a work permit, another sponsor, or extending her visitor's visa, which was valid on its face until January 30, 2013 and could be extended for up to 2 years. Although Respondent testified that she believed that it would be "difficult" to extend her visa without showing that she had some money in a bank account, Respondent repeatedly testified that she made a "good faith effort" to remain in Canada and that she intended to remain in Canada if she could. She testified that she pursued employment opportunities in part through the local Jewish community, and through that community she was able to obtain one job interview in November. As a result of that interview, she was initially offered training to become a kosher inspector at a bakery, but that position fell through in early December. When that occurred, the Jewish community offered to help her find a different position.

In mid-November, Respondent and Petitioner had an argument about the impending break-up of their marriage, during which Respondent told Petitioner that if he would not sponsor her and she was forced to leave Canada, she would take R. Petitioner advised Respondent she would not be permitted to do that, and that his parents had placed R's passport in a safe deposit box to prevent her from such action. Respondent suggested, and equivocally testified, that Petitioner knew or should have known from the start that Respondent's move to Canada was conditioned on the success of her marriage and corresponding ability to remain legally in Canada with her daughter. However, Respondent frequently contradicted herself regarding these intentions, and the Court foundds credible Petitioner's testimony that Respondent never expressed (or held) any intention to leave Canada with R until, at the earliest, the November argument. When asked where she believed R's habitual residence might be, if not Winnipeg, Respondent was unable to answer other than "the United States." She testified that she never made any effort to return to Seattle after arriving in Canada, but also disavowed Cincinnati as R's "habitual residence." On Thursday, December 13, 2012, Petitioner enlisted the help of a friend in her tight-knit religious community to hide R's original birth certificate, in furtherance of a plan to leave and take R to the U.S. The next day, deliberately concealing her plans from her husband and R's grandparents, Respondent picked R up from preschool and took R to her Rabbi's house, where Petitioner and his mother eventually discovered them. On Sunday evening, December 16, they drove Respondent and R across the U.S. border to North Dakota, where she was met by her parents. Her parents drove her and R to Cincinnati, where they arrived on December 18, 2012.

Respondent made two arguments against the Court's finding that R's habitual residence was Canada: (1) that she and R were not "settled" in Canada because they had resided there for fewer than 6 months when she departed; and (2) that her initial agreement for R to live in Canada was contingent upon Respondent's own circumstances, which changed over time due to the impending breakup of her
marriage and additional barriers she faced in order to obtain permanent residency in Canada. The Court held that neither argument had legal merit Respondent's first argument was rejected because the issue presented was wholly separate from the issue of domicile, or the determination of which "home State" a child may be living in under the Parental Kidnapping Prevention Act or Uniform Child Custody Jurisdiction and Enforcement Act. Under ICARA, habitual residence may, at least theoretically, be established in a single day. Respondent's second argument was equally irrelevant to the Court's inquiry. The Sixth Circuit has instructed courts to look backward to determine the facts and circumstances, without considering the subjective future intentions of her parents . See Robert, 507 F.3d 981, 989-993;Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993). The critical issue was whether R's living arrangements in Canada evinced a "degree of settled purpose from the child's perspective," and whether the circumstances were "sufficient for acclimatization." Robert, 507 F.3d at 989. Where, as in this case, the child is able to develop "a certain routine" and acquire "a sense of environmental normalcy," and is able "to form meaningful connections with the people and places [she] encounters each day," then the court must focus on the child's degree of acclimatization. Karkkainen v. Kovalchuk, 445 F.3d 280, 292). When R moved to Canada she was very young, a few months shy of her third birthday. She lived there in the same household with both parents and her paternal grandparents for four and a half months, a period of time that was appreciably long in a toddler's life. She was given no indication by either parent that her stay in Canada was for just days or weeks as if on a holiday. In fact, both parents unequivocally expressed a joint intention, not later than early August 2012, to remain in Canada indefinitely with her while they made attempts at a fresh start in their personal, financial, and professional lives. The fact that some of those attempts ultimately failed was of no consequence to the analysis. The court found that Canada had become R's habitual residence within a week of her arrival, not later than August, 2012. Unlike a newborn who may be less cognizant of her environment, R was able to form many attachments to people and places, and was actively encouraged by her parents to do so.

The petition was granted, with Petitioner to assume temporary care, custody and control of R and to accompany her on her return to Canada.