COURT OF APPEAL FOR ONTARIO

CITATION: Husid v. Daviau, 2012 ONCA 655

DATE: 20121002

DOCKET: C55015

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Uri Landman Husid

Applicant (Appellant)

and

Hélène Marie Thérèse Daviau

Respondent (Respondent on Appeal)

Jeffery Wilson and Joanna Harris, for the applicant (appellant)

Phyllis Brodkin and Serena Lein, for the respondent (respondent on appeal)

Heard: August 22-23, 2012

On appeal from the judgment of Justice Craig Perkins of the Superior Court of Justice, dated January 23, 2012.

Ducharme J.A.:

[1] The sole issue on this appeal is whether the trial judge erred in permitting a claim for custody of a six-year-old girl to proceed in Ontario rather than ordering the child’s return to Lima, Peru.[^1]

[2] The mother wrongfully removed the child from Peru and the father sought an order for her return pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Convention”). The trial judge relied on the “grave risk” exception to the return requirement set out in Article 13(b) to deny the father’s request.

[3] The father appeals this decision.

[4] For the reasons that follow, I would dismiss the appeal.

Background

[5] The child was born in Peru to a Peruvian father and a Canadian mother. The child was resident in Peru until the mother brought her to Ontario 16 months before the trial. The mother and father were involved in litigation in Peru relating to custody and access and the mother brought the child to Ontario under an order permitting her to travel to Canada for a visit. The order required the mother to return to Peru. Instead, she wrongfully remained in Canada with the child. The father brought an application under the Convention seeking the child’s return.

[6] At trial, the mother invoked Article 13(b) of the Convention to argue that the child should not be ordered to return to Peru since “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

[7] The father denied any such risk and further contended that the courts and authorities of Peru could adequately deal with any risk should it be found to exist.

[8] The trial judge dismissed the father’s application for the child’s return to Peru on the basis that the mother had met the burden under Article 13(b). It was further ordered that the mother could proceed in Ontario with her claim for custody and access.

[9] The father raises five main grounds of appeal: he argues that the trial judge (i) misapprehended evidence, relied upon inadmissible evidence and made findings of fact unsupported by the evidence; (ii) erred in his application of the statutory test in Article 13(b) to the facts as found; (iii) erred in principle by conducting an assessment of another member state’s capacity to protect a child; (iv) erred in failing to invoke the protocol created to enable interstate dialogue that is intended to ensure and facilitate protection upon a child’s return; and (v) erred in dismissing the arguments of estoppel and abuse of process.

FACTS

[10] Both the father and the mother are in their forties. The father was born and raised in Lima, Peru, though some of his studies were done in the U.S. He holds a senior position in a family business that imports and sells automotive parts. The mother was born and raised in Canada and is a computer software specialist.

[11] The parties met on vacation in Jamaica in 1999. They dated for some time, meeting in both Miami and Lima, and were married in 2003. The mother moved to Lima, acquired some proficiency in Spanish, and after some time began to resume her work.

[12] The couple’s only child was born in 2006. The marriage was unhappy and, according to the mother, increasingly abusive. The couple separated in September 2008 and began court proceedings in Peru on the issues of custody and access. The mother continued to live in Lima with the daughter. The father had regular access until November 2009, when the mother moved with the child to Cuzco, Peru.

[13] Two months later, the mother returned with the child to Lima under court order. In late January 2010, physical confrontations between the mother and father and between the mother and paternal grandmother occurred. The child witnessed both events and police were called on both occasions.

[14] The mother obtained an order permitting her to travel with the child to visit family in Canada from September to November 2010. As the trial judge acknowledged at paras. 37 and 41, the reasons the mother presented to the Peruvian court for wanting to travel with the child, “did gild the lily or even misrepresent her intentions.” She and the child never returned and have been living in Toronto with the maternal grandparents ever since. The father has had a few supervised visits since the move.

[15] The child is currently enrolled in school in Toronto and it is not disputed that she is doing well.

THE LAW

[16] Both Canada and Peru are signatories to the Convention, which has been incorporated into Ontario domestic law as a schedule to s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[17] The underlying purpose of the Convention, as set out in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.

[18] Once it has been determined that a child was wrongfully removed under the terms of the Convention, Article 12 mandates the return of the child “forthwith”:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

[19] Exceptions to this mandate are created by Articles 12, 13 and 20. It is the exception articulated in Article 13(b) that was invoked in this case by the mother and that was accepted by the trial judge:

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[20] In this way, the onus is on the person opposing the return of the child to establish a grave risk of harm or exposure of the child to an intolerable situation. In Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, La Forest J., writing for the majority of the Supreme Court of Canada, interpreted Article 13(b) as follows, at p. 596:

[A]lthough the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. [Emphasis in original.]

[21] Justice La Forest went on to endorse the following approach set out by Nourse L.J. in Re A (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.), at p. 372:

[T]he risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm.

[22] To this, the Supreme Court added that the risk contemplated by the Convention need not come from a cause related to the return of the child to the other parent, as opposed to merely from the removal of the child from his or her present caregiver (at p. 597). In other words, from a child-centred perspective, harm is harm. If the harm meets the stringent test of the Convention, its source is irrelevant.

[23] In Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485, at p. 496, this court developed upon the “harm is harm” direction to hold that Article 13(b) is available to resist a child’s return when the reason for the child’s removal is violence directed primarily at the parent who removed the child: “returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm” (emphasis in original).

DECISION BELOW

[24] The trial judge’s reasons follow the interpretative framework for Article 13(b) set out by the Supreme Court of Canada in Thomson, and review in considerable detail the findings of fact to which that framework must be applied in this case.

[25] The evidence at trial included oral testimony and documentary evidence. Some of the documentary evidence came from the proceedings in Peru, including some of the pleadings, evidence of the parties and other witnesses, expert psychological and medical reports, as well as some of the findings and orders of the Peruvian courts.

[26] The mother, her sister-in-law, the child’s nanny and the mother’s Peruvian lawyer all testified on the mother’s behalf. The father and his mother testified for him.

[27] The trial judge found on the evidence that the family home before the separation was “a place of unhappiness, oppression and abuse for the mother at the hands of the father for many months”, with the child there to witness and experience it (at para. 52).

[28] After reviewing the multiple proceedings in the Peruvian courts as well as the evidence presented before him at trial, the trial judge concluded, at para. 115, that the mother presented sufficient evidence that the child’s return to Peru would expose her to a grave risk of being in an intolerable situation. The child would be in constant fear that the mother would be accosted, at grave risk of being wrongfully taken using physical force by the father’s family, and at grave risk of psychological harm from the continuation of the domestic conflict, some of which harm was already reported by the psychologists in the Peruvian justice system.

[29] In addition, the trial judge found that the return of the child risked the mother’s arrest in Peru, suddenly removing the child from the care of the person with whom she had been living for approximately two years (at para. 116).

[30] On the evidence as a whole, the trial judge concluded that Article 13(b) was engaged. After rejecting the father’s allegations of abuse of process and forum shopping, the trial judge dismissed the father’s application for an order requiring the return of the child to Peru, thus permitting the mother’s custody claim to proceed in Ontario.

ANALYSIS

[31] In my view, the trial judge identified and applied the correct legal test to invoke Article 13(b), namely, the test set out by the Supreme Court of Canada in Thomson. This is notwithstanding what was in my view an extraneous reference at para. 103 of his reasons to a “recent” and “more humane” standard.

[32] I also find no error in principle in the trial judge’s approach to assessing the evidence: there is no absolute requirement for interstate dialogue under the Convention, nor did the trial judge inappropriately or unfairly assess the Peruvian justice system in his analysis. The trial judge properly focused on the facts of this particular case, paid due respect to the laws of Peru, and honoured Canada’s full commitment to the Convention.

[33] A determination of whether Article 13(b) applies to any given case requires a global assessment of all the available evidence. As such, it should not be disturbed absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[34] In this case, the trial judge carefully considered copious evidence, both oral and written. His decision is thus entitled to considerable deference.

[35] The evidence in this case easily supports the findings of fact made by the trial judge, as well as his conclusion that the child’s return would pose a grave risk of harm to her or otherwise place her in an intolerable situation.

[36] Factual findings that support the trial judge’s conclusion include the following:

1. In the context of altercations with the mother, the father on more than one occasion touched the pouch in which he regularly carried a handgun, while saying that Peru was “a corrupt country and you never know what can happen”, that the mother should “watch her back”, or that “[i]f [the child] isn’t with me, she won’t be with anybody” (at paras. 49, 69);

2. The father’s cousin threatened the mother when she was out shopping, telling her she was going to die and that he had met people in jail who “would do it and it would only take 20 soles” (at para. 50);

3. On an occasion when the mother went to pick up the child, the father used physical force on the mother, resulting in contusions on both of her upper limbs and a bandaged left arm in a sling, as reported in a legal medical certificate issued at the time (at para. 66);

4. In a physical altercation between the paternal grandmother and the mother involving the child, the paternal grandmother bit the mother and the child (at para. 68);

5. In an altercation revolving around the child and involving the mother, the grandmother and the father, the father tried to physically take the child from the mother despite police presence (at para. 69);

6. The child was assessed by a court psychologist who found that she was affected by the violence in the family unit (at para. 73) and the father did not present any reports or assessments to the contrary (at para. 31).

[37] These factual findings were available to the trial judge on the evidence before him and support his ultimate determination. While the father raised on appeal the possibility that the trial judge may not have precisely captured all the details of the events described, there is no suggestion that the substance of his findings was not supported by the evidence. These findings paint the picture of a violent family dynamic, a dynamic capable of supporting the trial judge’s conclusion that there is a grave risk the child’s return would expose her to physical or psychological harm or otherwise place the child in an intolerable situation.

[38] I see no reason to interfere with the trial judge’s conclusion that the onus under Article 13(b) is met such that the child should not be returned to Peru.

[39] The father raised, but did not strongly press, two additional grounds of appeal, those based upon estoppel and abuse of process. I note them here only to dismiss them as entirely without merit. There is nothing in this record to indicate that either party induced or sought to induce the other party to act to his or her prejudice. Moreover, they joined issue on what the trial judge should decide, they consented to the form of the trial and they were both afforded the right to call all the evidence they sought to present to cast their position in the best possible light. In this case, there is nothing, nothing at all, to suggest that estoppel applied or that the trial was somehow an abuse of the court’s process.

CoSts

[40] The father submits on the basis of Article 26 of the Convention that the trial judge had no jurisdiction to award costs of the trial against him. I disagree. The limitation on imposing charges articulated in Article 26 applies to “Central Authorities and other public services of Contracting States”. Subsection 46(4) of the Children’s Law Reform Act defines the “Central Authority for Ontario” as the Ministry of the Attorney General. The courts are not captured by this limitation and it was open to the trial judge to rely on subrule 24(1) of the Family Law Rules, O. Reg. 114/99, which presumptively entitles the successful party to costs, where appropriate. Furthermore, while sections 59 and 60 of the Children’s Law Reform Act, which concern the disposition of property, are explicitly exempted from the list of cases and courts to which the rules apply in subrule 1(2) of the Family Law Rules, section 46, namely the section that incorporates the convention, is not.

[41] Counsel agreed on the quantum of costs on the appeal. Costs of the appeal are to be paid by the appellant father in the all-inclusive amount of $15,000.

RELEASED: October 2, 2012 “KF”

“E. Ducharme J.A.”

“I agree K. Feldman J.A.”

“I agree Robert J. Sharpe J.A.”

[^1]: The “trial judge” in this case refers to Perkins J. of the Superior Court of Justice. This application was initially heard and dismissed at first instance by Brownstone J. of the Ontario Court of Justice on May 27, 2011. However, Brownstone J.’s decision was appealed to the Superior Court of Justice and the parties consented to that court allowing the appeal. The parties then further consented to a new hearing of the application before the Superior Court of Justice. Perkins J. of the Superior Court of Justice heard the application and dismissed it. This is the appeal from that order.