DATE: 20010518

DOCKET: M27358 (C36320)

COURT OF APPEAL FOR ONTARIO

RE: CHRISTINE MAHARAJ (Plaintiff/Appellant) v. RABINDRA MAHARAJ (Defendant/Respondent)

BEFORE: McMURTRY C.J.O. (Chambers)

COUNSEL: Terence Macli and Ms. R. Seligman For the plaintiff/appellant

Darlene Madott For the defendant/respondent

HEARD: MAY 16, 2001

E N D O R S E M E N T

[1] This is an application by the appellant for an order staying the order of Mossip J. made May 8, 2001 at Brampton that upheld the Order dated May 2, 2001 by a court in Trinidad and Tobago and required the appellant to return her two children forthwith to the jurisdiction of the Trinidad and Tobago courts pursuant to s. 41(1) of the Children’s Law Reform Act.

[2] The children of the appellant and respondent are a daughter born on June 27, 1984 and a son born on June 27, 1986.

[3] The appellant left Trinidad custody with the children in December, 2000 and came to Canada in January, 2001. She issued a statement of claim in Ontario seeking custody of the children. It is common ground between the parties that the appellant made an application under the Immigration Act for refugee status for herself and her children although there were no documents before Mossip J. with respect to her application.

[4] On January 5, 2001 an ex parte order giving custody of the children to the respondent father was made in Trinidad.

[5] On Friday, May 4, 2001 at approximately 3:50 p.m., a Notice of Motion was faxed to the office of the appellant’s counsel with a return date of Tuesday, May 8, 2001. No motion material accompanied the fax. The motion sought an order staying the appellant’s statement of claim, an order recognizing the Trinidad court order and an order that the children be returned to Trinidad and Tobago forthwith.

[6] During the morning of Monday, May 7, 2001, counsel for the appellant advised the respondent’s counsel that he was not available on May 8 and requested a short adjournment. At approximately 1:30 p.m. the same day, the respondent’s supporting material consisting of approximately 389 pages was served on the appellant’s counsel.

[7] Counsel for the respondent did not agree to the adjournment and submitted that the basis for the urgency of the hearing of the motion was the respondent’s mistaken belief that there was to be a refugee hearing on May 14, 2001 concerning the appellant and the children.

[8] Mossip J. heard the respondent’s application in the absence of counsel for the appellant and in her reasons stated in part:

I do not need a reply to the husband’s evidence. I will assume that the wife would file material before me that would deny much of what the husband swore to in his affidavits. Moreover, I will assume that she would elaborate on the evidence of possible harm to the children if returned to Trinidad and Tobago, and provide some evidence of the children’s wish to stay in Canada. None of that evidence, even if it was before me would change my view, as to what is the right order today.

[9] Mossip J. also found that the wife had had numerous opportunities to file material in Trinidad and Tobago and that her own counsel in Trinidad had confirmed that Trinidad and Tobago was the appropriate forum to determine the issues of the custody of the children.

[10] The application judge also noted that the only sworn evidence of the mother put before the court in Trinidad and Tobago were two affidavits of the children which stated that they wanted to stay in Canada and that the children did not say anything about fear of harm by their father.

[11] Mossip J. did not refer to the application of the appellant under the Immigration Act for refugee status for herself and her children.

[12] The appellant raises two issues on which it is submitted a stay should be granted which are as follows:

(1) The appellant was unreasonably denied the opportunity to be heard before Mossip J.

(2) That in the absence of a stay, the appellant’s application for refugee status on behalf of herself and her children would be effectively frustrated.

[13] The issue of the refugee hearing and whether s. 7 of the Charter is relevant to the order of Mossip J. need not be addressed in relation to whether or not a stay should be granted. I am prepared to grant the stay on the basis that the appellant appears to have been denied procedural fairness with the result that the rules of natural justice have been undermined. While the result before Mossip J. may well have been the same if the appellant’s counsel had been present, in my view, the circumstances did not justify the denying to the appellant the right to be heard.

[14] If the stay is not granted, the appeal will be nugatory and in this sense the appellant will suffer irreparable harm. At the same time, the appeal can be heard expeditiously and any significant delay can be kept to a minimum. The balance of convenience therefore favours the appellant.

[15] While the terms of the Hague Convention require that such matters involving children to be dealt with expeditiously, I agree with Charron J.A. in Pollastro v. Pollastro that the treaty obligation to secure “the prompt return of children” in appropriate cases does not translate into a more stringent test on a stay application. As Charron J.A. states the obligation should be fulfilled by hearing the appeal as expeditiously as possible.

[16] The application is therefore granted. The order of Mossip J. is stayed pending the hearing of the appeal. The appeal is to be perfected within two weeks of this date and both parties are forthwith directed to seek a date for hearing on an expedited basis from the Registrar of this court or her delegate.

[17] If a date is not made available for the hearing of the appeal within the next three months, I may be spoken to.

“R. Roy McMurtry C.J.O.”