Court File and Parties
Ontario Court of Justice
Date: July 12, 2017
Court File No.: DFO-15 12803-A1
Between:
George Nikoladze Applicant
— And —
Tatia Kekelia Respondent
Before: Justice M. L. Cohen
Ruling released on: July 12, 2017
Counsel: David K. Sherr, counsel for the applicant
Decision
COHEN, M. L. J.:
[1] This application raises the question of the extent of this court's adjudicative role in a custody application, commenced in Ontario after a child has been wrongfully removed from the jurisdiction, in which the left behind parent argues that the court hearing the ensuing Hague application in the foreign jurisdiction erroneously applied the principles of the Convention.
Background
[2] The child in this application is Mikheil Nikoladze, born December 27, 2012. The parties were married in June, 2012, in Georgia. The applicant father is a Diplomat-in-reserve for Georgia, and is in Toronto awaiting a position in the Georgian embassy in Canada. The respondent mother currently holds a position as deputy dean of Arts and Science at Ilia University in Georgia.
[3] The parents and the child are from Georgia (the country). The applicant has extended family in Canada, and the applicant and the child are Canadian citizens. The respondent applied for, and was granted, permanent residence in Canada.
[4] The family relocated to Toronto in September, 2014, by mutual agreement. The evidence suggests that the move to Canada was intended to be permanent. They established a residence in Toronto, set up a Registered Education Savings Plan for the child, arranged for his medical care and treatment, and appeared to have settled in Canada.
[5] The parents shared the care of Mikheil from the time of his birth. It appears to be undisputed that the applicant was an involved and loving father.
[6] Five months after the family's arrival in Canada, with the consent of the applicant, the respondent took the child to Georgia for a vacation. Once there, she advised the applicant she and the child would not be returning. Despite the protests of the applicant, the respondent stated that the relocation was permanent. The respondent subsequently terminated all communication with the applicant.
[7] When the applicant realized the respondent did not intend to return to Canada with the child, he commenced an application for custody in the Ontario Court of Justice. His counsel emailed the respondent, advising that court proceedings were commencing. The respondent did not reply.
[8] On March 27, 2015, the applicant brought a Motion Without Notice requesting temporary custody of the child, and an order for his return. Katarynych, J. granted the motion.
[9] Katarynych, J. determined that the child was ordinarily resident in Toronto, that he was parented by both parties, and that the mother had acted unilaterally in remaining in Georgia with the child. She ordered that the applicant have temporary custody of the child, and directed the respondent to return him to the jurisdiction by April 7, 2015. She also ordered that the mother be served by email with the motion materials and the order.
[10] The respondent was served by e-mail on March 27, 2015. According to the affidavit of counsel's assistant, sworn December 16, 2016, counsel for the applicant advised the respondent of subsequent court dates.
[11] The respondent did not return with the child, nor did she attend, or have an agent attend, on any subsequent court appearances. She did not file any response to the application.
[12] The applicant father commenced a Hague application in Georgia. The application was dismissed at the trial level, and the dismissal was upheld on appeal. The applicant has now applied to the European Court of Human Rights (ECHR).
[13] The proceedings in this court have been on a lengthy adjournment while the Hague application proceeded. The applicant now seeks an order to submit in support of his claim in the ECHR. He asks this court to order:
that the province of Ontario remains Mikheil's habitual residence pursuant to section 22 (2) of the Children's Law Reform Act;
that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of the Children's Law Reform Act;
that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody and access orders affecting him;
that the applicant has rights of custody and access to him; and
that he should be returned forthwith to the province of Ontario.
Proceedings in Georgia
[14] Although there were three judicial proceedings in Georgia, only two of the rulings of the Georgian court have been filed in the application before me.
[15] The first is an interim ruling in the Hague application by the Tbilisi City Courthouse Judge, dated June 9, 2015. In this ruling the Judge granted the applicant temporary access to the child, to be exercised exclusively in Georgia.
[16] On July 13, 2015, a final order was made in the Hague application by a Tbilisi City Courthouse Judge. I do not have a copy of this decision, however it is clear from the Appeal Court ruling, which I do have, that the application for return of the child was dismissed. While recognizing that the child's removal was wrongful, relying on the exception in Article 13(b) of the Convention, the court rejected the application for return of the child.
[17] The applicant appealed the final order of the Tbilisi City Courthouse Judge to the Tbilisi Appeal Court.
[18] In its decision, the Tbilisi Appeal Court lists the evidence that was tendered in the hearing before the Tbilisi City Courthouse Judge:
Statements from the applicant and the respondent, including evidence regarding their current employment status;
An "explanation" from the applicant that "Considering Mikheil's young age, [he] deemed it inappropriate that his child be separated from his mother";
Evidence by the respondent that the applicant was abusive, controlling and aggressive;
Evidence from the "Ontario Legislative Support Centre" that the respondent had sought assistance while in Toronto regarding abuse by the applicant;
Evidence from two witnesses who reported that the mother's "embittered relationship" with the applicant had rendered her depressed and "made her stay in Canada intolerable;";
Evidence from an "independent psychologist" who stated that "The frequent changes, along with the tumultuous circumstances" of the child's caregivers may cause psychological harm, and that it was important for the child to stay with the primary caretaker (the respondent) as "…separating a child from the mother could prove hazardous for his well-being and development;";
The pleadings filed in the Ontario Court of Justice;
The ruling of Katarynych, J.
[19] The Tbilisi Appeal Court agreed, based on its review of the evidence before the Tbilisi City Courthouse Judge, that the child had been wrongfully retained in Georgia:
…there is no doubt that, within the frames of the convention, there is an illegal action underlying this case.
[20] Notwithstanding this conclusion, the Tbilisi Appeal Court chose not to interfere with the lower court's rejection of the application for return of the child. The Tbilisi Appeal Court held that "there are no reasons for withdrawing the court's verdict," which it found to be "factual, fair, legal and validated".
Application to the European Court of Human Rights
[21] As I have indicated, the applicant responded to the Tbilisi Appeal Court decision by applying to the European Court of Human Rights, claiming that the proceedings in the Georgian courts violated Articles 5 and 8 of the European Convention on Human Rights.
[22] In his application to the ECHR the applicant intends to argue that the Georgian courts failed to comply with the Convention, failed to comply with the domestic laws of Georgia, relied on biased and "unqualified" expert reports, inappropriately applied the law of custody and best interests as part of its Article 13(1)(b) analysis, and denied the applicant the opportunity to properly argue his case.
[23] The applicant has filed a legal opinion letter dated September 16, 2016, on the motion before me. This letter is co-authored by a Georgian professor of jurisprudence who is a former judge of the Supreme Court of Georgia, and by the lawyer who represented the applicant in the Hague proceedings in Georgia.
[24] The authors opine that:
It is of a high probability that the application at ECHR will be successful and the court will determine that Mr. Nikoladze's human rights were violated under the European Convention by the Georgian courts and state authorities and re-examination by the domestic courts will be mandatory. The evidence strongly suggests that the rights of Mr. Nikoladze to family life (article 8) have been violated by the Georgian courts and authorities by failing to comply with the Hague convention…
And that:
It is of utmost importance for the case that the Ontario Court reaffirms it authority to decide on custody and residence status of the child which will serve as the evidence for the ECHR and future court proceedings in Georgia that Mikheil is still legally tied to the country of his habitual residence and falls under its jurisdiction despite the Georgian Court decision not to return the child back to Canada…
Analysis
[25] For convenience, I repeat the relief sought by the applicant which is the subject of my ruling:
that the province of Ontario remains Mikheil's habitual residence pursuant to section 22 (2) of the Children's Law Reform Act;
that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of the Children's Law Reform Act;
that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody and access orders affecting him;
that the applicant has rights of custody and access to him; and
that he should be returned forthwith to the province of Ontario.
[26] This relief aligns with the opinion of the Georgian lawyers that such Orders will assist the applicant's claim before the ECHR. The claim is not that this court should make a custody order, but that it should affirm its authority to adjudicate the question of custody (and access). The purpose of the Order is to assist the ECHR and possible future Hague applications.
[27] Orders sought for the purpose of bolstering a Hague application are known internationally as "chasing orders." The history and drawbacks of such orders are described in Thomson v. Thomson (1994), 6 R.F.L. (4th) 290, (S.C.C.) I consider the applicant's claim on this motion to amount to a claim for a chasing order.
[28] Although I characterize the claim in this way, it should be clear that the applicant is not seeking a custody order from the court, Article 15 of the Convention has not been invoked in the Hague proceedings, and there is no reason within the Convention to suppose the existence of a custody order from this court was or would be entitled to recognition in this or subsequent Hague proceedings. However I accept that the orders may bolster the applicant's claim in the ECHR proceedings.
[29] The fact that the orders may be useful to the applicant is not a reason in and of itself to make the orders. The Hague courts have already pronounced and their decisions are entitled to deference.
[30] Ordinarily an Ontario Court will defer to the decision of a court adjudicating a Hague application, based on Canada's commitment to promoting the effective operation of the Convention, as well as on the principle of judicial comity. Indeed, the presumption of judicial comity is essential to the proper operation of the Hague Convention.
[31] However, the applicant submits that in circumstances where the errors of the Hague courts are manifest and egregious, the Ontario Court should depart from the presumption of judicial comity.
[32] In essence the argument is that where the Hague Court is manifestly in error in applying the principles of the Convention, the Canadian court should affirm its authority to determine the rights of the parties under the domestic legislation. Thus the applicant asks the court to find that his right to have the issues of custody and access adjudicated in Ontario should be unaffected by the erroneous decisions of the Hague Courts.
[33] The argument regarding the alleged errors is the following:
[34] The Georgian trial court determined that the child was "illegally detained within the territory of Georgia as his mother refused to bring him back to Canada." This conclusion necessarily implies that the Court accepted that the child was habitually resident in Ontario under Article 3, which states that:
The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
[35] Article 4 provides that:
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
[36] Article 5 provides that:
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
[37] Thus, in finding there was an illegal retention under the Convention, the Tbilisi City Courthouse Judge impliedly concluded that at the time of the removal, the applicant had rights of custody and access, as defined in the Hague Convention.
[38] The applicant does not quarrel with these findings.
[39] Article 12 of the Convention provides that:
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.
[40] The applicant commenced his Hague application well within the 12 month period.
[41] Having found that the wrongful retention was established, the Tbilisi City Courthouse Judge was obliged to order the return of the child to Ontario.
[42] However, relying on the exception in Article 13(b) of the Convention, the Tbilisi City Courthouse Judge refused to order the return of the child to Canada.
[43] Article 13(b) provides that:
Despite 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 opposes its return establishes that:
(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.
[44] The Tbilisi Appeal Court determined that the Tbilisi City Courthouse Judge had correctly applied Article 13(b) of the Convention.
[45] The Tbilisi Appeal Court states that: "…the Court is opposed to the child's return to Canada" since, based on the conclusions of a social service report and a psychologist's report filed in the Tbilisi City Courthouse hearing:
…it has been determined that frequent transitions will cause stress for Mikheil Nikoladze at his critical stage of development, and will pose risks to his psychological well-being. At this time, it is important for the child to remain with his mother. Breaching the connection between mother and child will only lead to negative consequences.
[46] Furthermore:
The Plaintiff failed to substantiate his objections against the court's decision and cannot deny the possibility that, by separating his son from the mother, the child's rights and interests will be violated. Furthermore, the plaintiff failed to prove that that the child's return to Canada will protect the interests of the child or the parents.
[47] As I have indicated, in the result, the Tbilisi Appeal Court found the decision of the Tbilisi City Courthouse Judge to be "factual, fair, legal and validated", and thus determined there was no reason to cancel the court's decision.
[48] Without commenting on the quality of the evidence before the Georgian courts, which I have not seen, nor on the quality of the expert evidence, which I am not in a position to assess, I would agree with the applicant that there is reason to doubt the correctness of the decisions of the Georgian courts. In my review of the decisions filed, I find it arguable that the Georgian courts applied a "best interests" test in interpreting Article 13(b) of the Convention, in contravention of Article 16, and of jurisprudence under the Convention. It is also arguable, in my view, that in weighing the facts supporting the Article 13(b) claim, the Georgian courts applied an interpretation of "grave risk of harm" that was not consonant with Hague jurisprudence.
[49] The applicant is fortified in his opinion that the judgments misapplied the Convention, by the contents of a report dated October 9, 2016, prepared by the Office of the Public Defender of Georgia.
[50] The report indicates that the Office of the Public Defender reviewed the evidence and transcripts of the Hague proceedings, and found the proceedings deficient in many significant respects, including lack of procedural justice, the courts' reliance on unqualified expert opinions, the courts' bias, and the courts' failure "to comply with the Hague convention by focusing on custody." The report concludes that the application of Article 13(b) was arbitrary.
[51] Of interest, and concern, is the following observation taken from the report:
The overall situation in Georgia with the compliance with the Hague Convention is alarming as this case clearly demonstrates. There has been no single precedent of abducted children being returned back to the countries of their habitual residence by the courts in Georgia.
[52] Turning to Canadian jurisprudence, I find it abundantly clear that, as stated in Thomson, a court seized with the issue of whether a child should be returned will not consider the best interests of the child in the manner the court would at a custody hearing (para. 42).
[53] In the words of the Ontario Court of Appeal in Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), at para. 32:
[A] Hague Convention application does not engage the best interests of the child test – the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account. ... Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention ... the children must be returned to their habitual residence. (Cited in Balev v. Baggott, 2016 ONCA 680, [2016] O.J. No. 4800 (at para. 30).)
[54] Furthermore, also pursuant to Thomson, the risk of physical or psychological harm which must be established under Article 13(b), will:
…be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words 'or otherwise place the child in an intolerable situation'.
[55] In the case of Pitts v. De Silva, 2008 ONCA 9, [2008] O.J. No. 36 (Ont. C.A.), the Court of Appeal addressed the question of the deference owed to "foreign interpretations of the Convention":
35 Among the most important factors guiding courts' decisions to decline jurisdiction is comity – the deference owed to the legitimate judicial acts of other countries...
36 Beyond the overarching principle of comity, the Hague Convention's effectiveness depends on there being a general respect for the decisions under the Convention by the courts of the Contracting State to which the child has been removed. It is these courts that have primary responsibility for adjudicating Hague Convention applications: see Caruso v. Caruso, [2006] O.J. No. 5311 (S.C.J.)
37 The combination of comity, on the one hand, and of the need to preserve The Hague Convention's effectiveness, on the other, calls for courts to avoid interfering, as much as possible, with foreign interpretations of the Convention. As such, this court should respect the Tenth Circuit's decision not to order Jonathan's return to Canada unless that decision evinces a clear misinterpretation of the Hague Convention or fails to meet a minimum standard of reasonableness. (My emphasis)
[56] In determining whether this test has been satisfied in the case at bar, I have considered the following: The application before me finds its genesis in an order made on a Motion Without Notice on the affidavit evidence of a single party in a custody dispute. The evidence before me is little better evidence than the evidence before Katarynych, J. I do have the decisions of two Hague courts in Georgia, but I do not have the final order of the Tbilisi City Courthouse Judge. The translations of the decisions I have may raise issues of interpretation. Finally, the Georgian Courts not only had more evidence than is before me, but, very importantly, the Georgian courts had the benefit of argument from both parties. I have not heard argument from any opposing counsel.
[57] A finding that the decisions of the Georgian courts "evince a clear misinterpretation of the Hague Convention" or "fail to meet a minimum standard of reasonableness" ought not to rest on such a limited foundation. As the court of Appeal stated,
Beyond the overarching principle of comity, the Hague Convention's effectiveness depends on there being a general respect for the decisions under the Convention by the courts of the Contracting State to which the child has been removed.
[58] I do not, however, rule out the possibility that the case at bar is an exceptional case that may warrant an affirmation of the continuing jurisdiction of the Ontario court.
[59] In the circumstances, I have decided to continue the Order of Katarynych, J. on a further temporary basis. With respect to the relief sought in this motion, I am prepared to hear further argument and to receive further evidence. If the applicant wishes to proceed further, in my view amicus is required to assist the court.
[60] The applicant asks me to rely on the case of Nowacki v. Nowacki, 2015 ONSC 973, as authority for his argument. In Nowacki, the court had the benefit of submissions from counsel for both parties.
[61] Accordingly I am adjourning this matter to a date for a hearing to be set by the trial management coordinator. In the interim, counsel may request an interim appearance before me to determine the question of appointing amicus.
Released: July 12, 2017
Signed: Justice M. L. Cohen