Court of Appeal for Ontario

Citation: Cannock v. Fleguel, 2008 ONCA 758

Date: 2008-11-12

Docket: C49163

Before: Juriansz, Rouleau and Watt JJ.A.

Between:

Craig Cannock Applicant (Respondent on Appeal)

and

Jessica Fleguel Respondent (Appellant on Appeal)

Counsel: Martha McCarthy and Will Hutcheson for the appellant Allan T. Hirsch for the respondent

Heard: October 3, 2008

On appeal from the judgment of Justice R.M. Thompson of the Superior Court of Justice dated June 27, 2008.

Juriansz J.A.:

[1] The appellant (the mother) appeals from the decision granting the application of the respondent (the father) for an order that their son Daine Jordan Alfred Fleguel-Cannock (the child) be returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The appeal was heard on an expedited basis. After hearing argument, we dismissed the appeal for reasons to follow.

The essential facts

[2] The mother and father are the natural parents of the child born June 5, 2006 in Ontario. The mother, a Canadian, who had been living with the father in Australia when the child was conceived, returned to Ontario while pregnant with the child. The father was unable to come to Canada at the time because he had a criminal record. He had pleaded guilty to assault with a weapon in Canada in July, 2005, and been deported for the offence. The assault was on the boyfriend of a friend of the mother. The father had also been convicted of assault in Australia in 1998.

[3] When the child was approximately five weeks old, the mother returned to Australia and lived there with the father until they separated on October 29, 2007. She did so on about November 22, 2007 returning to Ontario with the child and his older sibling from a previous relationship. The father contacted the Central Authority[^1] on or November 30, 2007 to start the process of securing the child’s return.

[4] The application judge found that as of November 22, 2007 the child was a habitual resident of Australia within the meaning of the Hague Convention. He remarked that as of that date the child had lived in Australia for some 16 1/2 of his 18 months of life. The application judge found that the mother knew that the father intended to apply to the Federal Magistrates Court in Australia, for an order for joint custody of the child and for an order that the mother be restrained from removing the child from Australia and “took steps to covertly leave the jurisdiction.”

[5] The mother opposed the father’s application by relying on Article 13(b) of the Convention. Article 13(b) provides that a court may refuse to order the return of the child if there is a grave risk that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation.

[6] The application proceeded on affidavit evidence. The mother filed her answer and supporting affidavits on May 2, 2008, the father replied with his affidavit on May 7, 2008, and the mother was permitted to file a further affidavit in reply at the hearing.

[7] I will set out the application judge’s summary of the mother’s evidence later in these reasons. In brief, the mother alleged the father was a violent criminal, a drug addict and trafficker, who was incapable of parenting and who had abused her. It was her position that the child would be exposed to physical or psychological harm if he were returned to the father’s care.

[8] The application judge concluded that the Article 13(b) standard was not met and ordered the child to be returned to Australia. However, he indicated to the parties that he was considering seeking the involvement of the Department of Human Services in Australia. In the end, he left it to