Court of Appeal for Ontario

Date: 2018-02-16

Docket: C64395 & C64396

Judges: Sharpe, Watt and Benotto JJ.A.

Between

Christine Gourgy Applicant (Appellant)

and

Amir Gourgy Respondent (Respondent in Appeal)

And Between

Amir Gourgy Applicant (Respondent in Appeal)

and

Christine Gourgy Respondent (Appellant)

Counsel

Shawn Philbert, for the appellant

Sarah Boulby and Kenneth Fishman, for the respondent

Heard and released orally: February 15, 2018

On appeal from: the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated September 13, 2017.

Reasons for Decision

[1] This appeal concerns two related applications brought by the father of a six year old boy. The father sought his return to Texas pursuant to the Hague Convention and also sought to dismiss the mother's Ontario divorce application for lack of jurisdiction. Both applications were allowed and the mother appeals.

[2] The parties moved to the United States in 2012, first to California and then to Texas. The mother came back to Ontario from time to time with the father's consent. On October 30, 2016, she came to Ontario with the child in order to visit her family and to work the necessary 15 days so that she could keep her status as a teacher in Ontario. She did not return. In November, she sent the father a text that she had filed for divorce. The applications appealed from followed.

[3] The Hague Convention requires that a child wrongfully removed or retained by a parent shall be promptly returned to the habitual residence unless the other parent has acquiesced in the removal pursuant to art. 13(a) or the return will place the child in an intolerable situation pursuant to art. 13(b).

[4] The mother submits that the application judge articulated the correct test, but erred in law with respect to his findings on habitual residence, acquiescence and an intolerable situation for the child.

[5] With respect to habitual residence, the mother submits that the application judge erred when he stated that there was no minimum amount of time necessary to establish habitual residence. In that regard she relies on conflicting lower court decisions on this point. She also alleges that the child could not be returned to Texas because the father had no "custody" right in Texas having moved there only six weeks earlier from California.

[6] We do not agree.

[7] The question of habitual residence is one of fact. It is the location where the parents demonstrated a settled intention to reside. The application judge considered the parents' move to the United States, the subsequent move to Texas; the fact that they obtained principal residence status; applied for US social security; bought a house and enrolled the child in school. On this basis it was open to him to find that the parents had a settled intention to reside in the United States.

[8] With respect to acquiescence, the appellant submits that the application judge erred in law by failing to convene an oral hearing and by failing to draw an adverse inference from the father's failure to file affidavits from people he says he spoke to about the appellant's return.

[9] Again, we disagree. The burden is on the parent alleging acquiescence by the other to establish clear and cogent evidence of an unequivocal consent or acquiescence. The application judge reviewed the evidence and concluded that the appellant had not met this burden. Her submission that the application judge should have convened an oral hearing is ill-founded. There was no such request by the parties and it runs contrary to the objectives of the Hague Convention which contemplate a speedy process leading to a prompt return. An adverse inference involves the exercise of discretion which is afforded deference.

[10] With respect to intolerable situation, the appellant submits that the application judge erred in concluding that the evidence on this point was conflicting. Here too, we disagree. The burden was on the appellant to establish an intolerable situation and the application judge's conclusion that the high burden had not been met is also entitled to deference. In fact, we agree with his conclusions on the evidence before him and further find that the fresh evidence sought to be admitted does not establish an intolerable situation. Although the Palmer test for fresh evidence is liberally applied where children are concerned, here the fresh evidence, even if believed, could not have affected the result.

[11] The application judge's conclusion with respect to habitual residence informed his conclusion on jurisdiction and we see no error in that regard.

[12] For these reasons we dismiss the appeal with costs fixed at $15,000 inclusive of disbursements and HST.

"Robert J. Sharpe J.A."

"David Watt J.A."

"M.L. Benotto J.A."