Abib v. Abib, 2010 ONCA 827

DATE: 20101206

DOCKET: C52839

COURT OF APPEAL FOR ONTARIO

Before: MacPherson, Juriansz and MacFarland JJ.A.

BETWEEN

Shahbana Abib

Applicant (Appellant on Appeal)

and

Moez Mansur Abib

Respondent (Respondent on Appeal)

Counsel:

Justin Clark and Pathik Baxi, for the appellant,

Phyllis Brodkin and Michael Stangarone, for the respondent

Heard & released orally: November 24, 2010

On appeal from the judgment of Justice D.L. Corbett of the Superior Court of Justice dated October 22, 2010.

ENDORSEMENT

[1] The appellant appeals from the decision of Justice Corbett of the Superior Court of Justice allowing her husband’s application for an order pursuant to the Hague Convention that their daughter Zoha be returned to the United Kingdom.

[2] The Hague Convention stipulates that a dispute about a child’s custody and access should be determined by the courts in the state where the child is habitually resident, not by the courts of the state to which a child may be taken or retained.

[3] The application judge concluded that Zoha’s habitual residence was the United Kingdom. Therefore, pursuant to the Convention, the dispute about her custody of Zoha had to be determined by the courts there.

[4] On appeal, this court does not consider cases and decide them anew. Rather, in order for this court to interfere with the decision of the application judge, the appellant must show that he applied the law incorrectly or made a palpable and overriding error in finding the facts. She has demonstrated neither.

[5] The question of a child’s habitual residence is essentially a question of fact. Zoha was born and lived in the U.K. until her parents came to Canada on September 3, 2009, on one-way airline tickets. A few days later, the couple had a major disagreement. The father returned to the U.K., while the mother remained in Canada with Zoha.

[6] Before the application judge, the mother’s evidence was that the parties had come to Canada with the settled intention to stay here. The application judge was satisfied by her evidence that the parties may have been planning on relocating to Canada at some time, but he went on to find that they had never given up their residence in the U.K. at the relevant time. In deciding to reject the mother’s evidence and accept the father’s, the application judge relied on the factual circumstances surrounding the trip to Canada. Those factual circumstances were consistent with the parties maintaining their home in the U.K. For example, when the parties came to Canada the father had no immigration status to live in Canada and the family’s belongings had been left in their residence in the U.K.

[7] In this case, the record containing the factual circumstances surrounding the parties’ trip to Canada provided ample support for the application judge’s rejection of the mother’s evidence and his conclusion that Zoha remained habitually resident in the U.K. at the time of the trip to Canada. His conclusion does not reflect the application of a reverse onus.

[8] The mother submits that the application judge, on his own motion, should have required oral testimony before resolving the conflicting evidence. She relies on this court’s comment in Cannock v. Fleugel, 2008 ONCA 758, [2008] O.J. No. 4480, that a court may find it necessary to hear oral testimony in a rare and exceptional case involving s. 13(b) of the Hague Convention. Noting that s. 13(b) is not invoked in this case, we are satisfied that it was appropriate for the motion judge to decide it on the existing record.

[9] The evidence of the appellant’s unilateral steps to settle Zoha in Canada does not undermine the application judge’s conclusion in the least. Under the Convention, it is the child’s habitual residence “immediately before any breach of custody or access rights” that matters. Nor is there any basis on which we would interfere with the application judge’s discretionary decision not to apply s. 12 of the convention. The application judge’s findings on which he based his discretion were open to him on the evidence.

[10] Finally, the mother did not put forward any evidence that would credibly raise the potential application of s. 13 of the Convention. We were not persuaded that the application judge erred by failing to construe the father’s return to the U.K after the parties disagreement as acquiescence to the child’s retention in Canada.

[11] Accordingly the appeal is dismissed. The respondent is entitled to his costs fixed at $5,000 inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”