Kenneth Jacob Birchall

On appeal from a Superior Court decision dismissing an application under the Hague Convention on the Civil Aspects of International Child Abduction.

The appellant sought the return of four children to Germany, arguing they were habitually resident there.

The respondent opposed the application, arguing the children were habitually resident in Ontario.

The application judge found the children were habitually resident in Ontario and dismissed the application.

The Court of Appeal upheld this decision, confirming the application of the hybrid model for determining habitual residence established in Office of the Children's Lawyer v. Balev.

The court rejected all grounds of appeal, including allegations of inadequate reasons, misapplication of the hybrid model, factual errors, and procedural errors regarding the involvement of the Office of the Children's Lawyer.

The plaintiffs sought substantial indemnity costs following their successful motion for an interlocutory injunction.

The defendant, Mr. Cabezas, argued that costs should be reserved for the trial judge or significantly reduced.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, ordered costs in the cause.

The decision emphasized that it is generally preferable to reserve costs for interlocutory injunctions to the trial judge, given the absence of a final determination of rights and the plaintiff's undertaking as to damages.

Conflicting positions on factual complexity and proportionality also made it difficult to fix costs at this stage.

The Plaintiffs, Accreditation Canada International and Accreditation Canada, brought a motion to extend and vary an interlocutory injunction against former employees, José Luis Cabezas Guerra and Bieu (Marty) Van Huynh, and their company, Efficiency on Health Services Canada Inc. The Plaintiffs alleged breach of contract, fiduciary duty, and confidence due to the Defendants' use of confidential information and solicitation of clients under misleading trade names.

The court applied the R.J.R. Macdonald test for injunctions, finding a strong prima facie case, irreparable harm, and that the balance of convenience favored the Plaintiffs.

The motion for an interlocutory injunction was granted.