Pollastro v. Pollastro (1999), 43 O.R. (3d) 497 (C.A.)

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  • Date: 2018

Pollastro v. Pollastro*

43 O.R. (3d) 485

[1999] O.J. No. 911

1999 CanLII 1722

1999 CanLII 3702

1999 CarswellOnt 848 Docket No. C30824

Court of Appeal for Ontario,

Catzman, Abella and Feldman JJ.A.

March 31, 1999

 

*Vous trouverez traduction franais de la dcision 43 O.R. (3d) 497.

 

Family law — Children — Father applying under Hague Convention on the Civil Aspects of International Child Abduction for order requiring mother to return child to California — Mother relying on exception to child’s return in art. 13(b) of Convention where return would place child in intolerable situation — Mother claiming that she fled California with child because of father’s violence towards her — Father having history of drug use, instability and abuse of mother — Motions judge erring in ruling that evidence of harm irrelevant to art. 13(b) analysis — Return of child may be resisted under art. 13(b) where violence in home directed primarily at parent who removed child — Appeal from order requiring mother to return child allowed — Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 13(b).

 

The applicant father applied under the Hague Convention on the Civil Aspects of International Child Abduction for an order requiring the respondent mother to return their child to California. The mother relied on art. 13(b) of the Convention, which provides for an exception to a child’s required return where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The mother claimed that she had fled from California to Canada with the child because of the father’s violence towards her. Evidence was led about the father’s unreliability, drug use, uncontrollable anger and violence towards the mother. The motions judge held that evidence of harm generally goes to the merits of a custody hearing and not a Hague Convention application. He refused to consider evidence of harm and granted the order sought. The mother appealed.

 

Held, the appeal should be allowed.

 

The interests of the particular child before the court are not irrelevant for all purposes under the Hague Convention, including art. 13(b). The motions judge erred in ignoring the evidence respecting the child. In doing so, he disregarded evidence relevant to the assessment he was obliged to undertake pursuant to art. 13(b). Since this provision refers explicitly to the risk of harm, this evidence is clearly relevant in assessing whether returning a child to his or her habitual residence would likely result in serious harm or an otherwise intolerable situation. One cannot be expected to satisfy the onus that a child not be returned because of a grave risk of physical or psychological harm unless this evidence can be presented and considered by the court deciding whether the art. 13(b) threshold has been met.

 

Returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm. The father had demonstrated a continuing inability to control his temper or his hostility. As a result, the mother, who would inevitably accompany the child if he was ordered to return to California, would be returning to a dangerous situation. As the mother was the only parent who had demonstrated any reliable capacity for responsible parenting, the child’s interests were inextricably tied to her psychological and physical security. Therefore, in considering whether the return to California placed the child in an intolerable situation, it was relevant to take into account the serious possibility of physical or psychological harm coming to the parent on whom the child is totally dependent. There was also evidence that returning the child to California represented a grave risk of exposure to serious harm to him personally. The mother had satisfied the onus under art. 13(b). The child should not be returned to California.

 

Thomson v. Thomson, [1994] 3 S.C.R. 551, 92 Man. R. (2d) 161, 107 D.L.R. (4th) 695n, 163 N.R. 69, 79 W.A.C. 81, [1994] 5 W.W.R. 153, 50 R.F.L. (3d) 145n, 6 R.F.L. (4th) 290, consd

 

Other cases referred to

 

A.  (a minor) (abduction) (Re), [1988] 1 F.L.R. 365 (Engl. C.A.); Young v. Young, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 108 D.L.R. (4th) 193, 160 N.R. 1, [1993] 8 W.W.R. 513, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117

 

Statutes referred to

 

Children’s Law Reform Act, R.S.O. 1990, c. C.12 Treaties and conventions referred to

Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, arts. 12, 13

Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31

 

APPEAL by a mother from an order requiring her to return her child to California.

 

Phyllis Brodkin, for appellant. Roselyn Zisman, for respondent.

The judgment of the court was delivered by

 

ABELLA J.A.: — This is an appeal from an order requiring Reesa Pollastro to return her child, Tyler Pollastro, to California. The order was made as a result of an application by the child’s father, John Pollastro, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, which requires the return of children wrongfully removed from their habitual residence. The mother’s defence to the application was that she had fled from California to Canada with their six-month-old child because of the father’s violence toward her, and that to return to California with the child would result in the child being exposed to an intolerable situation, thereby justifying the application of the exception to a child’s required return found in art. 13(b) of the Hague Convention.

The two articles of the Hague Convention generally applicable to this appeal are arts. 12 and 13. The particular provision at issue is art. 13(b):

 

Article 12

 

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13

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 opposed 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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

 

(Emphasis added)

 

Under art. 12, a child who has been wrongfully removed must be returned forthwith; but under art. 13(b), children need not be returned if the evidence establishes that the return represents a “grave risk” to the children either of serious harm or of an otherwise intolerable situation. The issue in this appeal is whether art. 13(b) is available to resist a child’s return when the reason for the child’s removal is because there has been violence in the home directed primarily at the parent who removed the child.

 

Facts

 

Reesa Obrant met her future husband John Pollastro in Montreal in June 1995. In October of the same year, she moved to Syracuse to live with him. In April 1996, they moved to California where John’s parents lived, and were married there in August 1996. John is an American citizen. Reesa has dual Canadian and American citizenship.

Their child, Tyler Benjamin, was born on February 27, 1997. It is clear from the evidence that even though she had full- time paid employment as co-manager of a GAP store, Reesa was the parent who took primary responsibility for the care of their son. She was also the main breadwinner in the home, as John, a tow truck driver, was employed only intermittently during the marriage.

Considerable evidence was led about John’s unreliability: his disappearances for days without letting Reesa know where he was; his not picking his son up from the daycare facility as anticipated; his regularly being unavailable, without warning, to take care of Tyler when Reesa could not, resulting either in her leaving work early or getting emergency baby-sitting help from a co-worker’s mother, Diana Poe; and his drug use, including a guilty plea to a charge of possession of methamphetamines on February 6, 1998. While this factual context may be more germane to the ultimate determination of which parent should have custody, it is also contextually relevant to the assessment of whether Tyler’s return to California puts him at “grave risk” of being exposed to “an intolerable situation” within the meaning of art. 13(b) of the Hague Convention.

At the heart of Reesa Pollastro’s claim that she is entitled to invoke the art. 13(b) exception to the otherwise presumptive requirement to return the child, is the evidence of the physical abuse to which she was increasingly subjected by her husband. There was also evidence of his use of degrading language to her, in private and in public. Co-workers gave evidence of John calling the store and screaming so loudly at Reesa that they could hear his epithets several feet away. His calls were not only persistent, they were persistently abusive. From time to time, including during the last weekend they were together, he would disable Reesa’s car so that she could not go anywhere.

The most obvious reflection of his irrational outbursts was his physical violence toward his wife. John is 5’9″ and weighs 175 pounds; Reesa is 5’5″ and weighs 105 pounds. Friends spoke of their own and of Reesa’s fear of John’s behaviour. Her co- workers gave evidence of bruises on her neck and arms. Diana Poe, who eventually drove Reesa and her son to the airport to return to Canada, saw Reesa when she was getting out of the shower the morning of her departure. In her words:

I’m certain that my face betrayed the horror of what I saw, a full grown adult woman, whose emaciated body was bruised front and back.

The incidents of violence escalated on September 4, 1997. On that date, John assaulted Reesa when she came home from work, ripping her T-shirt and causing her to bang her head against the floor. He later locked her in the bedroom. The morning of September 6, 1997, Reesa was scheduled to work for three hours. John had another temper outburst, refused to look after Tyler and disabled Reesa’s car. She was forced to walk the mile to work carrying the baby, frightened because John followed her most of the way. At work, she decided she had to leave John for her own and for Tyler’s safety. Diana Poe drove Reesa and Tyler home after work so Reesa could collect clothing for herself and her child. Her husband started assaulting her, but she escaped through the bedroom window which was only two feet above the ground. She ran to the waiting car and ended up at Diana Poe’s home. When Reesa called her father to tell him what had happened, he told her to take the next plane home to Canada.

She returned to Canada with Ty ler on September 7. On September 10, Reesa went with Tyler to Dr. Alan Kassel who documented not only the significance and extent of the bruises on her neck, arms, back, shoulders and thighs, but noted too the child’s agitated state. A practising physician for almost 30 years, Dr. Kassel made the following observations in an affidavit dated August 10, 1998 about changes in Tyler’s condition over the next several months:

When I first examined Tyler on the 10th of September, 1997, I found him easily startled and somewhat agitated. Since that appointment I have seen various significant improvements in Tyler’s disposition. Tyler seems to have calmed down and no longer behaves like a frightened infant.

The evidence of others who saw Reesa on her return to Canada confirmed her bruises, her fear for her own and for Tyler’s safety, and John’s continuing threats through a pattern of harassing telephone calls. In addition, her former co-workers at the GAP in California complained to the police because of the harassing and threatening telephone calls they were constantly receiving at work and at home from John.

John’s menacing telephone calls to Canada were made to Reesa, to her mother with whom she lives, to her father, and to her cousin Cheryl Primerano. Many of the calls were vituperative and irrational, and reflected John’s violent temper:

 

(A)  From the evidence of Cheryl Primerano:

John became the person that I spoke to more than I spoke to anyone else for a period of about six to eight weeks. I woke up to his phone calls and I went to sleep to his phone calls. I did everything in my power to calm him and try to make some sort of peace between him and Reesa. For the most part, he was co-operative and willing to listen to what I had to say. There was another side to that coin however. There were many times that he threatened me and gave me terrifying messages to give to Reesa . . .

These were his exact words on one occasion: “Do not let Reesa come home. I can’t promise that she will be safe”. Over the next few weeks, his mood changed every time we spoke. One time he wanted my sympathy and support and told me that I was the only person that cared about him and that he loved me and needed me to help him and the next conversation he would be threatening me, threatening Reesa, Tyler and our whole family. He told me that if he could not have Tyler that nobody would.

He also told me that he did not give a damn about Tyler he just wanted revenge on Reesa for humiliating him. He could always have another baby he told me but he wanted to punish Reesa and what better punishment than to take the one thing she loved more than life itself.

He made death threats to Reesa and said he would not rest until she was in jail and would never see her son again. He promised to send Tyler’s clothes and toys that were waiting for him in California and then said that his son did not deserve those beautiful things and that he was going to sell everything and get drunk with the money.

During the time that we were getting along, he completely acknowledged his drug abuse to me. Most of our conversations were held with him having a major hangover and slurring his words.

 

(B)  From the transcriptions of messages left on Reesa’s parents’ phones:

So I am not harassing you guys.

 

I am just letting you guys know what’s going on with me because someone is doing some very bad things to me mentally. I go to a doctor every day actually not every day I go to a therapist every other day I go to a doctor every three days and I think I am just about done playing the game and it is time to go through with all the things I had planned on doing because I did not get a confirmation letter from anybody.

 

I was lied to.

I was cheated.

I was abused.

If you guys bring harassment charges against me go ahead because your daughter will be in jail for kidnapping and child abduction.

. . . . .

You’ll be in jail and then I am going to file charges against you again for child concealment so if you want to play that game honey let’s go because I got all the legal advice that I need to do whatever I need to do you to make you suffer and the State will take Poopy from you, from me, from your dad, from your mother no one will get him because to the day I die I am going to be with you and my son or I will have my son.

 

I’ll get you Rees. Trust me. I’ll hurt you.

I’ll hurt your family.

I’ll take you dad down because I have him on tape. Okay. I love you.

I do not want to do any of this but you are making me go there.

You are doing this to yourself. Just remember that.

Send Tyler Benjamin Pollastro home to his father or Satan and the devil will be in your family for the rest of your life.

Your Jewish religion means dog shit in Satan’s world. I wish the devil upon your death-bed.

You do the right thing and bring Tyler Benjamin Pollastro home or the devil will be by your death-bed.

You have a good evening and fuck off.

Reesa, I know your fucking cunt ass mother won’t give you the fucking message anyway.

As for you, you fucking old bitch. Reesa, I love you.

Shit.

Reesa, please call me.

There is something else we have to discuss like taxes.

It is very important that you contact me but your fucking cunt ass mother will not give you the message anyways so it doesn’t matter.

Guess what, I fucking don’t care. But I’ll get my son.

He’ll be mine and you people will never fucking see him again. Reesa have fun 30 years in jail baby.

You know what, your daughter is fucking coo coo in the head. She needs a mental hospital okay because I have already been through the legal proceedings.

I’ve been through everything. I’m just waiting okay.

On this one little piece of paper that is going bye bye in a fax tomorrow or actually Monday morning and it’s going to be all over with.

It’s all done okay. I’ve waited.

I’ve played your fucking game and I’m done playing the game okay.

I love you but you are a cunt and you know what sticks and stones may break your bones but names will never hurt you Reesa.

You know what I get called dick, asshole, a fucking prick. I get called names too.

You are in so much trouble Reesa. Did you know that.

I’m drunk and I’m loving it.

You know what I’m drunk and so go ahead and bring this tape into court and they’ll know that I drink now too.

You know.

Big fucking deal.

I don’t even fucking care anymore you know that. I don’t care about you.

I don’t want you back. Being drunk is so much fun.

You know what Reesa fuck you.

I’m suing you now for $2,000.00 a month ever since I’ve been out of work since you left.

I don’t trust him.

I don’t trust you.

I don’t trust anybody anymore.

Don’t even try to get a hold of me because I’m staying at a hotel.

You know what Rees, if you were smart and you really fucking thought about what you were doing like your fucking committing adultery on me right now okay.

 

We’re still married.

 

You got a boyfriend and you know what Rees you can take his fucking cock and stuff it up your ass as far as I’m concerned because I’ll never go near that        again never because you’re never going to have Tyler again. Do you understand that. Me and Tyler are going to grow up and we are going to fucking teach him the right things about life.

Reesa Pollastro applied for and received temporary custody of Tyler from the Ontario Court (General Division) on September 12, 1997 (from O’Connell J.) and on September 23 (from Benotto J.). A final order was made by Benotto J. on October 28, 1997. John Pollastro was served with notice of these proceedings but did not respond, thinking he was under no obligation to do so.

He brought an application in California for custody without access, and for the return of his son on October 1, 1997. It is clear from the California court order dated October 14, 1997 granting the relief sought, that in his viva voce evidence, John Pollastro, who was unrepresented, did not tell the court of the outstanding Ontario court orders for temporary custody in his wife’s favour. His evidence to the California court was that Tyler was in danger because his mother was on speed. Reesa was notified of the California proceedings, but it is unclear whether a letter sent by her lawyer to the California court setting out the chronology of legal proceedings in Ontario ever reached the presiding judge.

On December 1, 1997, John Pollastro applied in California for the return of the child pursuant to the Hague Convention. Several months elapsed before John realized he was required to retain counsel in Canada, and it was not until March 6, 1998 that notice of the Hague Convention application was given to the Local Registrar of the Ontario Court (General Division) by the Central Authority in the Reciprocity Office of the Ministry of the Attorney General. The Hague Convention, the provisions of which are set out in the Schedule to s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, has been in force in Ontario since December 1, 1983. John Pollastro’s application in Ontario for Tyler’s return to California under the Hague Convention was not brought until July 2, 1998. The application was heard by Beaulieu J. on September 15, 1998. On October 16, 1998, he ordered that Reesa Pollastro return Tyler Pollastro to his habitual residence in California, with the right to retain custody of him for 30 days if she accompanies him to California.

The basis for Beaulieu J.’s decision to order the return of the child is stated in his reasons as follows:

The Applicant alleges, however, that the threat of physical abuse to a mother can cause psychological damage to the child. She argues that this is one of those exceptional situations in which the court is not bound by the requirement that the child be immediately returned to the habitual residence. A very forceful argument was made by the Applicant regarding the risks, both psychological and physical, to a child whose mother is living in an abusive situation. The material filed and the position taken by counsel for the Applicant was well-argued and insightful. However, even with judicial notice taken of the psychological harm to children of abused women, it is settled law that “evidence of harm generally goes to the merits of a custody hearing” and not a Hague Convention application . . .

. . . . .

Given the alleged stormy relationship between the parties, and the less than flattering picture she paints of the father, her concerns related to the potential hostility and danger to her and the child may or may not be realistically founded. However, as a general rule, that issue must be addressed and seen from the perspective and within the context of the very nature of these proceedings. The tribunal of the jurisdiction in which the child habitually resided prior to the removal is the one that can more appropriately deal with such concerns.

(Emphasis added) Analysis

The preamble to the Hague Convention sets out its underlying objectives as follows:

The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect . . .

As previously indicated, art. 13(b) sets out an exception to the requirement that a child who is wrongfully removed from his or her habitual residence be returned promptly. It states that an order to return the child can be refused if:

. . . 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.

In Thomson v. Thomson, [1994] 3 S.C.R. 551, 163 N.R. 69, the Supreme Court of Canada established the interpretative framework for deciding cases under the Hague Convention generally and art. 13(b) in particular.

In that case, the parent who removed the child from his home was the mother. She had left Scotland with her nine-month-old son to visit her parents on their farm in Manitoba. During this visit, she decided to remain with her family in Manitoba. In resisting the father’s request under the Hague Convention for the return of the child to Scotland, the mother invoked the exception in art. 13(b), arguing that since she had been the child’s primary caretaker throughout her 13-month stay in Manitoba, her separation from him would cause the child to suffer a grave risk of physical or psychological harm.

La Forest J. concluded at p. 596 that the facts did not meet the threshold of harm contemplated by art. 13(b), namely, the requirement that the harm be “to a degree that also amounts to an intolerable situation”.

It must be a “weighty” risk of “substantial” psychological harm, “something greater than would normally be expected on taking a child away from one parent and passing him to another” (at p. 597, quoting with approval Re A. (a minor) (abduction), [1988] 1 F.L.R. 365 (Engl. C.A.)). Both the risk and the harm must be substantial.

La Forest J. also stated that the source of the harm was not material, that is, it does not matter whether the risk flows from removing the child from his present caregiver, or from returning the child to the other parent. As La Forest J. said, citing the child-centred perspective in Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193: “harm is harm.”

Thomson held that the determinative rule for interpreting the Hague Convention was in accordance with the ordinary meaning of the treaty’s terms “in their context and in the light of [the treaty’s] object and purpose . . . including its preamble”: see art. 31 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37; Thomson at p. 577. Using this approach, La Forest J. made the preliminary finding that the preamble’s clause stating that “the interests of children are of paramount importance in matters relating to their custody” means the “interests of children” generally, not of the particular child before the court.

This observation, combined with the requirement in art. 16 of the Hague Convention that the state being asked to return a child “shall not decide on the merits of rights of custody” until a determination is made that the child should not be returned, resulted in La Forest J.’s conclusion that in deciding whether to return a child, the court should not consider the child’s “best interests” in the same way as in a custody case.

In my view, what is meant by La Forest J’s comments is that the decision whether to return a child pursuant to art. 12 should not be based on who should have custody. That explains why the “best interests” test is not applied at this stage. The presumptive interests which do apply in deciding whether to return a child promptly are those set out in the preamble, namely the interests of children generally in not being wrongfully removed from their habitual residence.

La Forest J. does not, however, state that the interests of the particular child before the court are irrelevant for all purposes under the Hague Convention, including art. 13(b).

Indeed, it is difficult to see how the assessment required under art. 13(b) of risk, or harm, or of whether a situation is intolerable, can be made without reference to the interests and circumstances of the particular child involved in the proceedings.

In this case, Beaulieu J. ignored the evidence with respect to the particular child before the court, and in doing so, he erred. By saying that “evidence of harm generally goes to the merits of a custody hearing”, Beaulieu J. appears to be saying that evidence of harm is not relevant in deciding whether the criteria under art. 13(b) have been satisfied. This conclusion, with respect, misconstrues Thomson. Justice La Forest said that “the merits of rights of custody” should not be decided until a determination is made that the child should not be returned; he did not say that evidence of harm was irrelevant to an art. 13(b) analysis. By disregarding the evidence of harm, Beaulieu J. disregarded evidence relevant to the assessment he was obliged to undertake pursuant to art. 13(b).

Since this provision refers explicitly to the risk of harm, evidence of such harm is clearly relevant to assessing whether returning a child to his or her habitual residence would likely result in serious harm or an otherwise intolerable situation.

One cannot be expected to satisfy the onus that a child not be returned because of a grave risk of physical or psychological harm unless evidence of such harm can be presented and considered by the court deciding whether the art. 13(b) threshold has been met.

The evidence must, of course, be credible and must in addition meet the high threshold of “grave risk” set out in Thomson. This is very different from Beaulieu J.’s conclusion that evidence of harm is admissible only as part of a custody hearing. Such an interpretation essentially deprives art. 13(b) of its content.

While many of the facts and allegations in this case are disputed, the following facts supporting Reesa Pollastro’s allegations about her husband have been established:

(a)he has been verbally abusive and threatening to his wife, family and friends;

(b)  he has been violent towards her, causing physical harm;

(c)he has behaved irrationally and irresponsibly, both during and after their cohabitation;

(d)  he has a drug and/or alcohol problem;

(e)he has been unpredictable and unreliable when he has been responsible for Tyler’s care;

(f)  his temper is difficult for him to control; and

(g)  his hostility towards his wife is palpable.

 

Although every case depends on its own facts and the onus remains on the person resisting the child’s return, it seems to me as a matter of common sense that returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm.

On the facts of this case, the threatening phone calls reflect a continuing inability on the father’s part to control his temper or hostility. This means that the mother, who would inevitably accompany the child if he is ordered to return to California, would be returning to a dangerous situation. Since the mother is the only parent who has demonstrated any reliable capacity for responsible parenting, Tyler’s interests are inextricably tied to her psychological and physical security.

It is therefore relevant in considering whether the return to California places the child in an intolerable situation, to take into account the serious possibility of physical or psychological harm coming to the parent on whom the child is totally dependent.

There is also evidence that returning Tyler to California represents a grave risk of exposure to serious harm to him personally. The father’s hostility, irresponsibility and irrational behaviour are ongoing. Although John Pollastro has not been overtly physically violent to his son, he has been violent and had temper outbursts when his wife has been with the child. On one occasion, for example, he threw hot coffee at her, narrowly missing their seven-day-old son whom she was holding.

Tyler is barely two years old. His safety is seriously at risk if he is forced to return to the very volatility which caused his mother to leave with him in the first place. He and his mother would be removed from the sanctuary of her family in Canada, and forced to return to California where the potential for violence is overwhelming. This exposes the child to the serious possibility of substantial psychological and/or physical harm and, in addition, creates a grave risk that he would be placed in an intolerable situation.

I am satisfied that Reesa Pollastro has satisfied the onus under art. 13(b) and that the child should therefore not be returned to California.

I would allow the appeal, set aside the decision of Beaulieu J., and dismiss John Pollastro’s application with costs.

 

Appeal allowed.