COURT OF APPEAL FOR ONTARIO

CITATION: Hammerschmidt v. Hammerschmidt, 2013 ONCA 227

DATE: 20130410

DOCKET: C56723

Blair, Juriansz and Tulloch JJ.A.

BETWEEN

Alon Hammerschmidt

Applicant (Respondent in Appeal)

and

Faiga Sara Hammerschmidt (Cole)

Respondent (Appellant in Appeal)

Kenneth A. Cole and Allison M Kotler, for the appellant

Jeffery Wilson and Chelsea Hooper, for the respondent

Heard and released orally: April 8, 2013

On appeal from the order of Justice Emile R. Kruzick of the Superior Court of Justice, dated March 1, 2013.

ENDORSEMENT

[1] The appellant mother seeks to set aside the order of Kruzick J. dated March 1, 2013, directing the return of the appellant’s and respondent’s child to Australia, subject to certain conditions protecting the appellant and the child, pursuant to the Hague Convention.

[2] The application judge found that the child was “habitually resident” in Australia at the time she was returned with the appellant to Ontario, on the basis that the parties had formed “a settled intention” to move to and live in Australia for “an appreciable period of time”: see Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), [2004] O.J. No. 3256 (C.A.) and Chan v. Chow 2001 CarswellBCCA 276, at paras. 31-33. He also rejected the argument that returning the child to Australia would pose “a grave risk of harm” to her.

[3] We see no basis to interfere with these findings.

[4] In a robust and skilful argument on behalf of the mother, Mr. Cole submits that the application judge’s finding of habitual residence was unreasonable and failed to give effect to the many “objective factors” favouring a finding of habitual residence in Ontario. In addition, he points to two pieces of evidence that he says the application judge failed to consider, namely, the evidence of one deponent that she had overheard the father say to the mother that he was willing to give going to Australia “a try”, and evidence that the parties had left some of their furniture in Ontario with the appellant’s parents (in addition, they had sent a container full of their furniture to Australia by ship).

[5] An appeal to this court in a Hague Convention is not a rehearing or a trial de novo review of the evidence, and the application judge’s findings are entitled to considerable deference. They will not be interfered with – notwithstanding the hearing is based on affidavit, not viva voce, evidence – unless they are unreasonable in the sense that they amount to “palpable and overriding error” or “manifest error” or “clear error”: see Korutowska-Wooff v. Wooff, supra, and Equity Waste Management of Canada v. Halton Hills, [1997] O.J. No. .3921 (C.A.) at para. 45.

[6] We see no such error here. The application judge realized this was a difficult and close case and approached it accordingly. While there was evidence supporting the appellant’s position, there was also evidence supporting the finding of habitual residence in Australia. What weight is to be given to the evidence is for the application judge to determine, subject to the foregoing criteria and error in law.

[7] The application judge need not comment on every piece of evidence. The two omissions identified by the appellant do not undermine the application judge’s analysis or conclusion, in our view.

[8] Nor would we interfere with the application judge’s finding that returning the child to Australia would not pose “a grave risk that [her] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” as contemplated by s. 13(b) of the Hague Convention and the jurisprudence relating to it.

[9] We see no material difference between the way in which the application judge articulated the test and the test as set out in such cases as Thompson v. Thompson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551. The threshold is very high. It was open to the application judge to conclude on the record, as he did, that the test had not been met.

[10] Accordingly, the appeal is dismissed. Costs to the respondent, as agreed, in the amount of $12,500 inclusive of disbursements and HST.

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”

“M.H. Tulloch J.A.”