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Wednesday, October 29, 2014

Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington) [Canada] [Habitual Residence][Petition granted]

In Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington)  Inna Kharlamova's petition for return of her two children to Canada was granted. The Petitioner and Respondent weret he parents of two daughter. Both children were born in Toronto, Canada. Petitioner was a Russian citizen who moved to Canada, from Russia, in 2001 and  obtained permanent resident status in Canada. Respondent Peter Roach was an American citizen. 

The Petitioner and Respondent met in Toronto 2001. After the birth of the children Respondent reconciled with his wife in 2006. The two children lived in Canada continuously until 2009. The Respondent maintained contact with his two daughters by visiting with them in Canada fairly regularly and provided financial assistance to the Petitioner for rent, food, various expenses including car insurance and for the girls.

On July 16, 2008 a Final Uncontested Order was entered in the Ontario Court of Justice which gave “final” custody of the two girls to Inna Sexton (Kharlamova) and permitted the Respondent to have access to each child. In addition, the Order permitted the Petitioner “to travel abroad without the consent of the Respondent father and was allowed to obtain, apply and renew passports for each child mentioned above without consent of the Respondent father.”  By letter dated June 22, 2008 the Respondent wrote to the Ontario Court of Justice and stated the following: “The issue of custody arose because of intended travel to Russia. As explained to me an extended stay in Russia required my two children to have Russian documentation, otherwise they would be provided tourist visas and would not be permitted to stay in Russia beyond 30 days. I am agreeing to grant Inna Sexton (Kharlamova) sole custody of the children to prevent any issues with travel, documentation or Russian laws until the children are back in Canada, or until Inna and I make further custody/family arrangements. Inna and I have agreed that I would have unrestricted access and visitation rights to the children.

According to the Petitioner, she obtained the Order from the Ontario Court of Justice to facilitate her plans to go to Russia to see her parents and her son, whom she had not seen since she moved to Canada in 2001. At the time of the trial her son was 17 years old and still resided in Russia. The Petitioner and her two daughters first went to Russia in August 2009 and returned to Canada until early October 2010. While her initial plan was to stay for several months, she extended her stay at her mother's request and because she wanted her daughters to learn more about Russia. The Respondent testified that he thought the Petitioner and the girls were moving to Russia and that Russia would be their home. His conclusion was based on the fact (1) that the Petitioner and the girls moved to Russia and (2) that nothing was left in her apartment as everything had been shipped. Prior to Petitioner and the girls traveling to Russia, the Respondent flew to Canada and helped the Petitioner pack. The Respondent pointed out that the Petitioner shipped 53 boxes of used household and personal effects which had a total weight of 2,576 lbs . Petitioner also stored a number of items in a storage facility in Toronto and left her truck in Toronto as well. These stored items were moved out of the storage facility on April 1, 2011.The Respondent's conclusion that in August 2009 the Petitioner intended to make her home in Russia was not based on a conversation or agreement. 

The Petitioner and the two girls returned to Toronto in October 2010. Following her return, the Respondent flew to Canada and helped the Petitioner find a place to live. The Petitioner next went to Russia with her daughters at the end of June 2011. The Petitioner's purpose of this visit was to see her mother and son and for her daughters to become closer to their brother and grandparents. When she went to Russia this time she stored some of her belongings with a friend, including her truck. The Petitioner provided no testimony regarding how long she initially planned to stay in Russia other than to say that she ended up staying longer than she had planned. She  testified that she never intended to relocate from Canada since becoming a permanent resident there and that testimony was not contradicted. The Respondent offered no testimony regarding any agreement or understanding between him and the Petitioner regarding the reason the Petitioner and the girls returned to Russia in June 2011. The Respondent did testify that the Petitioner was very concerned about not doing anything that would result in her losing her legal resident card with Canada. 

The girls remained in Russia until April 12, 2012, when Petitioner and Respondent agreed to meet each other in Berlin, Germany. The Respondent, with permission of Petitioner, took the two girls to Washington State with him. Prior to April 12, 2012 the girls had never been in the United States and had never lived with the Respondent. The girls  remained in Washington since that time. The parties agreed that initially the reason for the girls going to the United States was due to heart-related health problems of their oldest daughter and the need for evaluation and treatment of that condition. Both parties signed a “Permission to Travel with Minors Letter”  which reflected a travel date to Seattle on April 12, 2012 and an expected date of return of May 23, 2012. The Petitioner said this was needed as she had sole custody of the girls and this document would allow the father to travel with the girls without having any problems. 

After the Respondent picked up the girls in Berlin, the Petitioner went to Egypt in pursuit of her divemaster certification. In an email exchange between the parties on April 21 and 22, 2012  the Petitioner stated that she wanted her children returned on May 27, 2012  which was the date of the return tickets, and she requested that the children been sent to Egypt, where she planned to stay for another month, and then all three would return to Russia. In response the Respondent confirmed that the children would be “coming back on the date on the tickets.”  The girls were not returned in May and the parties eventually agreed that the Respondent would keep the girls over the summer. There clearly was a disagreement between the parties as to whether it was safe for the girls to be in Egypt while the Petitioner was pursuing her divemaster certification. The Respondent felt that there was too much unrest in Egypt so as to make it unsafe for the girls to live there. The Petitioner, on the other hand, felt that Egypt had a lot to offer her girls and she wanted them there with her.  The Petitioner also testified that the Respondent wanted to keep the girls in Washington over the summer because he had such a short period of time with them and he said he would return them in the fall of 2012. 

The testimony of the parties was divergent regarding the reason why the girls were not returned in the fall of 2012. According to the Petitioner, during October 2012 she wanted to know why the Respondent had not returned the girls. The Respondent said he did not have the money to return the girls and he was also working on obtaining citizenship for the youngest daughter. The Respondent told the Petitioner that he wanted to keep the girls with him longer because he thought the youngest might have to be interviewed for citizenship. So Petitioner agreed to leave the girls in the United States while the Respondent pursued citizenship for their daughter. At the time of this decision the Petitioner was not living in Canada. The Petitioner went to Egypt in April 2012 and left Egypt late January 2013. From Egypt she returned to Russia where she remained until mid April 2013 when she returned to Toronto. The Petitioner completed her divemaster training in June 2013 while in Toronto. 

          On May 19, 2013 petitioner sent an email to the Respondent advising him she had purchased tickets for the girls and the Respondent to fly to Canada on July 30, 2013.  Before the scheduled flight the Respondent called the Petitioner and told her he could not fly the girls to Toronto on that date The Petitioner filed her application with the Central Authority in Canada on January 27, 2014. According to the Respondent, the Petitioner told him she had to return to Russia on August 13, 2013 because her husband attacked her mother in her mother's apartment in Russia. The Petitioner returned to Canada on September 10, 2013 and the Respondent had decided prior to that date that he did not want to return his daughters Petitioner. He testified that in September 2013 he told the Petitioner that he was not going to return the girls to her.   The Court concluded that the habitual residence of the two girls, prior to their retention by the Respondent, was Canada. In order to establish a habitual residence, there must be a settled mutual intention of the parents. While there was no direct testimony in this regard, the circumstances surrounding the two girls living in Toronto led to the conclusion that the parents agreed to this as the girls habitual residence. They were both born in Toronto, attended school there when old enough, received medical care and the father visited with them in Canada.

The Respondent argued that the habitual residence in Canada was abandoned in favor of Russia. The court found there was no settled, mutual intention in this regard. There was no evidence presented about the parties having any discussion as to the reason the Petitioner and the girls would be going to Russia in 2009, how long they would be there or that they had any intention of making Russia their home. A letter written by the Respondent to the Ontario Court of Justice merely discussed an “extended stay” in Russia. In addition, the Respondent was very much aware of the fact that the Petitioner did not want to do anything that would cause her to lose her resident status in Canada. The Respondent asserted that the Petitioner and the two girls intended to make Russia their home when they moved there in 2009 because they moved out of the apartment and shipped all their belongings to Russia. The Court held that moving out of a rented apartment, when planning on an extended stay in Russia, cannot lead to the conclusion, without more, that the habitual residence in Canada was going to be abandoned. While the Petitioner did ship a large number of personal items to Russia, she also stored personal property in Canada, including her vehicle. If there had been no intention to return, it was reasonable to assume that the Petitioner would have sold the vehicle rather than stored it. Finally, the Petitioner and the two girls in fact returned to Canada after an extended stay in Russia. For these reasons, the Court concluded that with regard to the 2009 trip to Russia that there was no shared mutual intent to abandon Canada as the habitual residence as there was no agreement between the parties to that effect. 

The Petitioner again moved to Russia from Canada in the end of June 2011. The only testimony regarding the purpose of this trip was from the Petitioner and that was to visit with her mother and son and to have time for her daughters to become closer to their brother and grandparent. This could only lead to the conclusion that there was no shared, mutual settled intention to abandon Canada as the girls habitual residence. Since there was no shared mutual settled intention to abandon Canada, the Court concluded that the Petitioner was away from her habitual residence for a temporary absence of long duration. 

Because there was never a shared mutual intent to abandon Canada as the habitual residence for the two girls, the Court  had to consider whether there were objective facts which pointed to that conclusion. The Court concluded that being present in Russia which permitted her mother and son to move to a larger apartment, starting the process of obtaining real property in Russia, and the permission granted the Petitioner by the Respondent to change the place of registration for the girls in Russia did not point to an intention, on the part of the Petitioner, to change her habitual residence. Rather, the steps taken by the Petitioner were her right as a Russian citizen. Nothing was presented to the Court to show that these actions could only have been taken if the Petitioner intended to reside permanently in Russia. Even marrying while in Russia did  not support the argument of abandonment as her husband, though they were separated, now resides in Canada. 

In addition, there was no evidence before the Court for it to conclude that the Petitioner abandoned Canada as the habitual residence of the girls in favor of the United States. The Court could not conclude that the evidence of acclimatization was sufficient to establish that Canada has been abandoned as the girls habitual residence due to acclimatization. In  light of the Court's direction to “be slow to infer from such contacts that an earlier habitual residence has been abandoned” the Court did not believe that the evidence was sufficient to overcome this directive. The Court concluded that returning the girls to Canada would not be tantamount to taking them “out of the family and social environment in which [their] life has developed. 

The Court concluded that the wrongful retention occurred in September 2013; that  the retention breached the rights of custody attributed to the Petitioner under the law of the habitual residence; and  the Petitioner was exercising her custody rights at the time of the retention.

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