Search This Blog

Wednesday, September 19, 2018

Diagne v DeMartino, 2018 WL 4385659 (E.D. Michigan, 2018) [Canada] [Habitual Residence] [Article 18] [Petition granted in part and denied in part]

          In Diagne v DeMartino, 2018 WL 4385659 (E.D. Michigan, 2018) the Father sought the return of his two children, six-year-old N.M.D. and seven-month-old I.N.D., to Canada. The court granted the petition with regard to NMD and denied it with regard to I.N.D.’s return to Canada.

          The parties were married on February 27, 2010 in Quebec, Canada. They had two sons born during the marriage. The Father was a Canadian citizen. The Father sponsored the Mother, a United States citizen, to become a Canadian permanent resident after the marriage. The parties established their family life together and set up their first home in Canada.  The parties’ first son, N.M.D., was born in Quebec on May 29, 2012.  In December 2014, the parties leased a home in London, Ontario, Canada jointly. In July 2016, the parties purchased a home in London, Ontario. N.M.D. attended day care in London, Ontario and junior kindergarten at École Frère André in London in the 2016-2017 school year. The Mother and Father enrolled N.M.D. at the same school for the 2017-2018 school year for kindergarten. He was also enrolled for the 2018-2019 school year.  N.M.D.’s family doctors were all in London, Ontario. In March 2017, the Mother became pregnant with I.N.D., the parties’ second child.  The new baby was due to be born in December 2017. In August 2017, when the Mother was approximately five months pregnant, the parties traveled to Rhode Island for their family vacation. On August 16th, the Mother discovered e-mails between the Father and one of his female co-workers, suggesting the Father was having an affair with his co-worker. The Mother confronted the Father about the e-mails and his involvement with the coworker. The Father left the vacation on August 16, 2017 after giving the Mother N.M.D.’s passport so he could return to Canada. The Mother and N.M.D. did not return to Canada at the end of the Rhode Island vacation. After spending ten days in Texas, the Mother and N.M.D. arrived in Michigan on August 29 or 30, 2017 and stayed in a home owned by the Mother’s sister and brother-in-law.  The Father continued to drive back and forth between Canada and Michigan. Before one of the Father’s visits to Michigan, the Mother requested that the Father bring N.M.D.’s birth certificate and immunization records so that the Mother could enroll N.M.D. in school in Michigan. Although the Father had not agreed that N.M.D. could live in Michigan, he accepted that the child could not miss school pending the return of N.M.D. to Canada. On September 9, 2017, the Father brought papers to enroll N.M.D. in school in the United States.  On September 13, 2017, with the Father’s knowledge, the Mother went to the parties’ home in Canada and retrieved her personal belongings. The Father helped the Mother pack and load her car with furnishings and items personal to her and N.M.D. By September 15, 2017 the parties had agreed to split their belongings from their mutual home; the Father agreed to bring the Mother’s and N.M.D.’s belongings to her in the United States. On September 14, 2017, the Mother’s attorney sent the Father a proposed Interim Separation Agreement (the “Interim Agreement”). The father never signed the agreement. The Mother gave birth to I.N.D. in Michigan on December 11, 2017. The Mother’s mother stayed with the Mother and I.N.D. at the hospital. The next day, the Father picked up the Mother and I.N.D. from the hospital and drove them to the house where the Mother was staying in Michigan. The Father returned to Canada while the Mother’s mother stayed with the Mother and children at the house in Michigan. On March 31, 2018, the Mother filed a Complaint for Divorce against the Father in the Family Division for the 44th Judicial Circuit of the State of Michigan. The Father was served with divorce papers on April 26, 2018.  On June 5, 2018, the Father submitted a Verified Petition for Return of Children seeking the return of both children to Canada.

          The district court observed that Courts use two distinct standards to determine the habitual residence of a child under the Hague Convention: “acclimatization” and “shared parental intent.” Ahmed, 867 F.3d at 687-90; Robert, 507 F.3d at 994. In Ahmed, the Sixth Circuit formally adopted the settled mutual intent approach for Convention cases involving infants and young children who lack the cognizance to acclimate to any residence. The Ahmed court went on to hold that, “what matters is where the [parents] intended the children to live.”  But courts are generally in agreement that infants cannot acquire a habitual residence separate and apart from their parents. “Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem[.] [I]t simply calls for application of the analysis under the Convention with which courts [are] familiar.” Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where the parents’ relationship has broken down – as is the case here – the character of the problem changes. The mere fact that conflict has developed does not automatically disestablish a child’s habitual residence once it has come into existence. Id. “But where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.” Id. Importantly, the court in Delvoye found that “ ‘Where a child is born while his...mother is temporarily present in a country other than that of her habitual residence[,]...the child will normally have no habitual residence until living in a country on a footing of some stability.’ ” Delvoye, 329 F.3d at 334.

          The Mother conceded, and the Court found that the Father proved a prima facie case for the return of N.M.D. to Canada based on the Mother’s wrongful retention of N.M.D. on August 21, 2017. The Mother failed to establish defenses to return, either acquiescence or consent. The Court found that N.M.D. had to be returned to Canada.

          The district court noted that in the case of IND, the Father alleged that I.N.D. was wrongfully retained in the United States from Canada beginning immediately before I.N.D.’s birth on December 11, 2017. The Mother argued only that the Father failed to meet his burden of proof with respect to habitual residence. The Court applied the shared parental intent standard set forth in Ahmed and agreed with her. The same evidence the Court relied upon to conclude there was no consistent attitude of acquiescence over a significant period of time was used by the Court to conclude that the Mother and Father’s mutual intent for where I.N.D. would live was absent from the time the Mother remained in the United States on August 20, 2017 until I.N.D. was born on December 11, 2017. The parties’ intent before August 20, when the Mother was just five months pregnant, was insufficient to make I.N.D. a habitual resident of Canada. I.N.D. had only lived in the United States, and there was no evidence that he had even been to Canada to visit.  The court pointed out that the Ninth Circuit addressed a similar issue in In re A.L.C., 607 Fed. Appx. 658 (9th Cir. 2015).  Declining to return a newborn child under the Hague Convention, the Court held that “[w]hen a child is born under a cloud of disagreement between parents over the child’s habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because ‘if an attachment to a State does not exist, it should hardly be invented.” Id. at 662 (quoting Holder v. Holder, 392 F.3d 1009, 1020-21 (9th Cir. 2004)) The Court agreed with the Ninth Circuit’s reasoning finding that I.N.D. had no habitual residence immediately before his birth and retention in the United States. Therefore, the father failed to establish I.N.D.’s habitual residence was Canada immediately before the alleged wrongful retention, and did not prove his prima facie case for the return of I.N.D. to Canada.

          The district court noted that under Article 18 of the Convention, if a petitioner establishes his or her prima facie case, and the respondent subsequently establishes one of the exceptions to return, the court may still exercise its plenary power “to order the return of [a] child at any time.” Convention Art. 18; Friedrich II, 78 F.3d at 1067. See also Lozano v. Montoya Alvarez, 134 S.Ct 1224, 1237-38 (2014) (Alito, J. concurring).  The Father did not prove his prima facie case.  Because the Father failed to demonstrate that Canada was I.N.D.’s habitual residence, the Court did not have the discretion to “return” I.N.D. to Canada. I.N.D. had never lived in Canada; thus, the relief the Father requested essentially was that the Court order I.N.D.’s removal to Canada. Giving a court discretion to order the removal of a child to a country that is not, nor ever has been, his or her habitual residence is not contemplated by the Convention and would not serve the purposes of the Convention. Accordingly, the Court would not order I.N.D.’s return to Canada.