Christopher Stankiewicz

This appeal addressed habitual residence under Article 3 of the Convention on the Civil Aspects of International Child Abduction after a parent retained children in Canada beyond a time-limited consent period.

The Court adopted a hybrid, multi-factor approach that evaluates all relevant circumstances, including but not limited to parental intent and the child's links to each state.

The Court also endorsed a non-technical approach to Article 13(2), requiring proof of sufficient maturity and a genuine objection before discretion is exercised.

Although the matter was moot, the appeal was resolved to clarify national law and emphasize expeditious handling of return proceedings.

The Office of the Children's Lawyer brought a motion to stay an order requiring a mother to return her two children to Germany pursuant to the Hague Convention, pending an anticipated application for leave to appeal to the Supreme Court of Canada.

The father opposed the stay and challenged the OCL's standing.

The court assumed standing but dismissed the stay motion, finding no serious issue to be tried, no irreparable harm to the children, and that the balance of convenience favoured their prompt return to Germany to have custody determined in their habitual residence.

The appellant father and respondent mother lived in Germany with their two children.

The mother brought the children to Ontario for a time-limited educational stay with the father's consent.

When the consent period expired, the mother refused to return the children to Germany.

The application judge ordered the children's return under the Hague Convention, finding their habitual residence remained in Germany.

The Divisional Court reversed this decision, finding the habitual residence had changed to Ontario.

The Court of Appeal allowed the father's appeal, holding that a parent cannot unilaterally change a child's habitual residence during a time-limited consensual stay, and ordered the children returned to Germany.

Following the release of its decision on the main appeal, the Divisional Court realized it had inadvertently omitted addressing the appellant's supplementary notice of appeal regarding a $10,000 costs order made by the motion judge.

The respondent argued the issue should be left to the Court of Appeal or dismissed due to late service.

The Court rejected these arguments, deciding to hear the costs appeal and setting a timetable for written submissions.

The appellant mother appealed an order declaring she wrongfully retained her two children in Ontario and requiring their return to Germany under the Hague Convention.

The children had moved to Ontario with the respondent father's consent for a temporary period.

The Divisional Court found that the application judge erred in concluding the children's habitual residence remained in Germany.

The Court held that during the 16-month consensual period, the children's habitual residence changed to Ontario.

The appeal was allowed, the return order was set aside, and the Hague application was dismissed.

Following a Hague Convention application in which the court ordered the return of two children to Germany after finding the mother had wrongfully retained them in Ontario, the court determined the issue of costs.

The father sought over $67,000 on a partial indemnity basis, while the mother argued that each party should bear their own costs or that any award should be substantially reduced.

Applying Rule 24 of the Family Law Rules and Article 26 of the Hague Convention, the court found the father was the successful party but reduced the claimed costs due to excessive billing, duplication of work, inclusion of unrelated steps, and some unreasonable conduct by the father during the proceedings.

The court also considered the mother’s success on a motion involving the Office of the Children’s Lawyer and her financial circumstances.

A global costs award was made reflecting a fair and reasonable amount in the circumstances.

The applicant father brought an application under the Hague Convention for the return of his two children to Germany.

The children had travelled to Canada with the respondent mother for an educational exchange with the father's consent, which expired in August 2014.

The mother refused to return the children, arguing they were habitually resident in Canada and objected to returning.

The court found the children's habitual residence remained Germany and their retention in Canada was wrongful.

The court rejected the mother's defences under Articles 12 and 13, finding the children's objections were not substantial enough to override the Convention's purpose.

The children were ordered returned to Germany.

The appellant appealed an order striking his pleadings on certain issues for non-compliance with various disclosure orders.

The Court of Appeal found no error in the motion judge's exercise of discretion, noting ample evidence that the appellant remained in default and that the default was wilful.

The motion judge had mitigated the drastic remedy by allowing the appellant to move to reinstate his pleadings on proper evidence, which he failed to pursue in a timely fashion.

The appeal was dismissed.

The appellant appealed an interlocutory order for the pre-trial sale of the matrimonial home under the Partition Act.

The respondent challenged the Court of Appeal's jurisdiction, arguing that section 7 of the Partition Act directs such appeals to the Divisional Court.

The panel agreed it lacked jurisdiction as the Court of Appeal but, given the imminent trial date, was designated as a panel of the Divisional Court to hear the matter.

On the merits, the court allowed the appeal and set aside the sale order, noting the motions judge failed to explicitly address whether the sale would prejudice the appellant's rights under the Family Law Act and that a pre-trial sale was practically unnecessary.

In a family law proceeding following separation, the applicant obtained an ex parte certificate of pending litigation (CPL) against a property purchased by the respondent after separation.

The respondent argued that the CPL should be discharged because the applicant had not asserted a direct legal or equitable interest in the property.

The court considered whether claims for equalization of net family property, a vesting order under s. 9(1)(d), and preservation orders under s. 12 of the Family Law Act were sufficient to bring an interest in land into question.

Relying on Nash v. Gilbert, the court held that such claims can ground a CPL because they place an interest in land in issue within the statutory scheme of equalization and preservation of assets.

Although the CPL was discharged by consent to permit the closing of a sale to third-party purchasers, the court ordered that the entire net proceeds of sale be held in trust pending further order.

This endorsement determined costs arising from a security-for-costs motion and a related motion concerning transfer of an interest and continuation of the proceeding.

The court found the defendants had considerable but not complete success on the security-for-costs issue, and reduced the amount sought to account for partial success and duplication in senior-lawyer time.

For the continuation issue, the court ordered each side to bear its own costs.

Overall, the court fixed a single fair and reasonable costs award payable by the plaintiff to the defendants.