DATE: 20040804

DOCKET: C40790

COURT OF APPEAL FOR ONTARIO

WEILER, FELDMAN and ARMSTRONG JJ.A.

B E T W E E N:

MALGORZATA KORUTOWSKA-WOOFF

Leonard Levencrown for the appellant

Applicant (Respondent)

• and -

MICHAEL STEWART WOOFF

Gregory Ste. Marie for the respondent

Respondent

(Appellant)

Heard: February 5, 2004

On appeal from the judgment of Justice Lynn D. Ratushny of the Superior Court of Justice dated October 14, 2003.

FELDMAN J.A.:

[1] The husband is a Canadian diplomat who had been posted out of Canada for several years, the last seven in Poland. The wife is a Polish citizen who holds a well-paying job in Warsaw. The marriage was unstable, the wife having engaged in a long-term affair with another man. The husband was transferred back to Ottawa. He brought their two children, who were both born in Canada, to Canada for a visit with their grandparents, with the intent and understanding that they would return to live in Poland with the wife and that the husband would temporarily commute between the two countries. However, while in Canada, the husband decided that the spouses should separate and that the children should remain in Canada. The wife applied to the Ontario Superior Court and obtained an order under the Hague Convention on Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35 (the “Convention”), returning the two children to Poland. The order was not stayed pending appeal. The husband appeals from the order. For the reasons that follow, I would dismiss the appeal.

FACTS

[2] The application judge made the following findings of “relevant facts”:

The children [7 and 12 years of age], the [wife] and the [husband] have resided in Warsaw, Poland since 1996, Warsaw has been their home base. The [wife] is a Polish citizen. The [husband] is a Canadian citizen. They met and married in Ottawa and both children were born in Ottawa. The children are Canadian citizens.

The [wife] and the [husband] have equally significant careers. The [wife] is employed full time as a management consultant in Warsaw, Poland. The [husband] is employed with the Department of Foreign Affairs and from 1999 until August 2003 he was posted to the Canadian Embassy in Warsaw. In July 2003, the [husband] received notice of his posting in Ottawa and instructed Foreign Affairs that the [wife’s] and the children’s belongings were to remain in Warsaw. The [wife] has continued with her employment in Warsaw and the [husband] has taken up his posting in Ottawa.

In August 2003, the [wife] prepared for the [husband’s] posting to Ottawa and purchased a house in Warsaw. External Affairs followed instructions from the parties and moved the [wife’s] and the children’s belongings to the new house and the [husband’s] belongings to Ottawa. The [husband] had intended to rent accommodation in Ottawa. The marriage was to continue, notwithstanding problems that already existed between the [wife] and the [husband], with the [wife] and the children remaining in Poland.

In August 2003, the [husband] and the children came to Canada for the children’s annual visit with their paternal grandparents. The children had return tickets back to Warsaw for mid August and were registered to commence school in Warsaw on September 1, 2003.

On September 1, 2003 the [husband] e-mailed the [wife] that a separation was in order and that he had enrolled the children in school in Ottawa and was not returning them to Warsaw. He told the [wife] he had only made this decision on August 29, 2003.

ISSUES

[3] The appellant husband raises the following issues:

1. The Convention does not apply in this case because:

a) the husband is the “primary parent”;

b) the husband’s habitual residence is Canada because he is a Canadian diplomat;

c) therefore, the children’s habitual residence is Canada and there can be no “settled intention” to reside in Poland;

d) the husband did not wrongfully remove or retain the children from Poland.

2. The application judge should have held the trial of an issue regarding the “primary parent”, and “habitual residence”.

3. There should be the trial of an issue in the Ontario court to determine the custody of the children and their best interests under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12.

ANALYSIS

1. The applicability of the Convention

[4] Canada and Poland became contracting states under the Convention on February 1, 1994. Section 46 of the Children’s Law Reform Act makes the Convention part of the law of Ontario.

[5] Article 1 of the Convention sets out its objects, which are to secure the prompt return of children who have been wrongfully removed to or retained in a contracting state, and to ensure that custody rights under the laws of contracting states are mutually respected. Article 2 requires contracting states to use the most expeditious procedures to implement the objects of the Convention.

[6] Articles 3 and 4 provide that removal or retention of a child is wrongful when a child under 16, who is habitually resident in a contracting state, is removed or retained in breach of custody rights that arise either by court order, by agreement or by operation of law, and are exercised by the person with the custody rights, either jointly or alone. Subject to Article 13, which it is agreed does not apply in this case, Article 12 requires the court in the contracting state where the child is being wrongfully retained to “order the return of the child forthwith.”

[7] The purpose and effect of these provisions is to ensure that contracting states immediately and expeditiously return children who have been wrongfully taken by one parent away from the other custodial parent and removed to another contracting state. Consequently, the court of the contracting state to which the child was removed is not to enter into a determination of the custodial rights of the parties, but is to return the child to the state from which he or she was removed, in order that the custody and related issues be determined in that state.

[8] The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562 (H.L.), and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.). See Chan v. Chow (2001), 2001 BCCA 276, 199 D.L.R. (4th) 478 at paras. 30-34 (B.C.C.A.); Kinnersley-Turner v. Kinnersley-Turner (1996), 1996 1100 (ON CA), 94 O.A.C. 376 at paras. 19-20. The principles that emerge are:

• the question of habitual residence is a question of fact to be decided based on all of the circumstances;

• the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

• a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

• a child’s habitual residence is tied to that of the child’s custodian(s).

[9] I note that the application judge stated that there is also no definition of the term “habitually resident” in the Children’s Law Reform Act. There is a definition of the term in s. 22(2), which defines the jurisdiction of the Ontario courts in custody cases. No argument was made in this case that the definition in that Act has any application.

[10] The application judge applied the correct principles when she concluded that the children were habitually resident in Warsaw, Poland at the relevant time. She accepted as accurate the factors listed in the wife’s factum, including that the children had lived with both their parents in Poland for the last seven years, and that until September 1, 2003, when the husband first indicated that he wished to remain in Canada with the children, both parents had a settled intention to continue their family residence in Poland despite the husband’s change in employment location to Ottawa. Having applied the correct legal principles, the conclusion of the application judge on the facts must be accorded deference by this court.

[11] There is a suggestion in the record that the husband only learned while he had the children with him in Canada in August 2003 that contrary to the wife’s claim to him, she was in fact continuing her affair and that the children did not like it when the other man was at their house. It is suggested that this revelation caused the husband to change his mind about returning the children to Poland. However, the husband does not take the position that his settled intention to remain in Poland was based on misrepresentations by the wife and was therefore vitiated on that basis.

[12] At the hearing of the application, the husband argued that because he had assumed daily parental responsibilities for the children while his wife was at work, he was the primary parent and therefore his current settled intention to remain in Ottawa should be determinative of the habitual residence of the children.

[13] The application judge rejected that argument. In accordance with Article 15 of the Convention, the wife filed a letter with the court dated October 6, 2003 from the Ministry of Justice, Republic of Poland, advising the court of the law of Poland with respect to custody and that the retention of the children by the husband was wrongful. The letter stated that in Poland both parents have parental authority; that in respect of important matters affecting the children, decisions are to be made jointly, and if the parents cannot agree, then the matter goes to the guardianship court; that where the children are habitually resident in Poland and neither parent has been deprived of parental responsibility, then both parents must agree on the childrens’ removal to Canada; therefore, if the decision was made unilaterally by only one parent, then it is a wrongful removal under Article 3 of the Convention.

[14] Based on her finding that the children were habitually resident in Poland and that both parents had joint parental authority over the children under Polish law, the application judge concluded that the husband’s retention of the children in Canada and his refusal to return them to Poland as agreed, constituted wrongful retention under the Convention and required the court to make the order for their return to Poland where the custody and access issues would be dealt with in Polish courts according to Polish law. Again, I see no basis on which to interfere with the conclusion of the application judge.

[15] On the appeal, the husband argues that because he is a Canadian diplomat, his settled intention can only be to ultimately return to Canada to live. As a result, in a family where one spouse is a diplomat, the settled intention of the spouses must be to return to Canada and the habitual residence of the children must be Canada. No authority was cited in support of this proposition. Furthermore, the husband concedes in his factum that the issue of habitual residence is “a question of fact to be decided by reference to all the circumstances.” I agree that the status of a diplomat is a very important factual circumstance that may well be determinative in many cases, where both parties intend to return to Canada together as soon as the spouse’s postings abroad have ended. However, those were not the circumstances in this case. Here, the husband took a leave of absence in order to accommodate his wife’s employment opportunities. He also sought other work in Europe so that he could stay there with the family. Neither as a matter of law nor as a matter of fact in this case, can it be said that it was the settled intention of the family to return to live in Canada in September 2003.

[16] The husband also argued that to allow a diplomat to have his or her habitual residence continue in a foreign country after the end of his or her diplomatic posting would affect the protection of diplomatic immunity. Again no authority was cited to develop the issue of the scope of diplomatic immunity in the context of the Convention. The English Family Division case of Re P, [1998] 2 FCR 525, which the respondent included in her materials, is the only case cited where the issue of diplomatic immunity is discussed. In that case, where a U.S. diplomat had been ordered at the end of his posting to return with his family to the United States, the court held that in that circumstance, the act of taking the children to the United States was an act of a governmental nature and therefore subject to state immunity from legal process in England. However, without such an order, there would be no diplomatic immunity principle applicable and the English court could take jurisdiction. In this case, at the appellant’s request, his wife and children were not to return to Canada. His overholding the children in Canada cannot be considered government action.

[17] The appellant also suggests that as a Polish national, the respondent may receive a better hearing in a Polish court than the appellant. The appellant has no basis to make this assertion, which is contrary to the principles behind the Convention and Canada’s position as a contracting state with Poland.

2. Trial of the issues of “primary parent” and “habitual residence”

[18] The appellant argues on appeal that the application judge should have tried the issues of “primary parent” and habitual residence”. The respondent submits that the appellant only asked for the trial of an issue under the Children’s Law Reform Act and not in the context of the Convention issues. The application judge makes no reference in her reasons to a request for the trial of any of the Convention issues. This suggests to me that the respondent’s understanding was shared by the application judge.

[19] The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure. Nevertheless, there may be room and even the need in some cases for the trial of an issue relevant to the Convention, particularly where the affidavits and cross-examinations are wholly conflicting, and credibility findings must be made in order to fairly determine the critical issues necessary to decide whether a child is to be returned to another jurisdiction and to another parent, e.g. respecting serious harm to the children if they are returned. However, in this case, the application judge was able to make the necessary findings based on the record before her. I see no basis to interfere with that determination.

3. The trial of an issue under the Children’s Law Reform Act

[20] The appellant’s argument that there should have been the trial of an issue under the Children’s Law Reform Act to determine the custody of the children is only relevant if this court had held that the Convention did not apply in this case.

CONCLUSION

[21] There is no basis to interfere with the conclusions of fact and application of the relevant legal principles to those conclusions by the trial judge. I would therefore dismiss the appeal with costs fixed in the amount agreed by the parties of $10,000 inclusive of G.S.T. and disbursements.

Signed: “K. Feldman J.A.”

“I agree K.M. Weiler J.A.”

“I agree Robert P. Armstrong J.A.”

Released: August 4, 2004 “KMW”