COURT OF APPEAL FOR ONTARIO

CITATION: H.E. v. M.M., 2015 ONCA 244

DATE: 20150410

DOCKET: M44808 & M44870 (C59991)

Weiler J.A. (In Chambers)

BETWEEN

H.E.

Applicant (Appellant in Appeal)

and

M.M.

Respondent (Respondent in Appeal)

Amy A. Green, for the applicant

Rick Peticca, for the respondent

Heard: April 7, 2015

ENDORSEMENT

[1] This is a motion to stay an order that the mother forthwith return the two children of the marriage to Egypt pending her appeal and a cross-motion by the father for security for costs. In such cases, the best interests of the child must prevail and must be the paramount consideration: Thomson v. Thomson (1994) 1994 CanLII 26 (SCC), 3 S.C.R. 551 at para. 40. It follows that the criteria on a stay application must be assessed from the point of view of the best interests of the child.

[2] The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, is the same as the test for an interlocutory injunction established by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to consider the following three factors:

(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[3] These three factors are not watertight compartments: the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); see also Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 (Weiler J.A., in chambers), at paras. 14-15; BTR Global, at para. 16.

[4] Ms. H.E., the applicant mother, has satisfied me that the test for a stay has been met. There is a serious question to be tried as to whether the court erred in declining to accept jurisdiction and decide her claim for custody in Ontario having regard to the evidence that the father was not actually exercising custody rights at the time the mother unilaterally removed the two girls to Ontario in June, 2012. Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, Can. T.S. 1983 No. 35, states that the child need not be returned under the Convention when the parent opposing her return establishes that:

the person, institution or other body having the care of the child was not actually exercising the custody rights at the time of removal or retention

[5] The father is the guardian of the children under Egyptian law. There is no court order granting the father access although there is an order granting supervised access to the children’s paternal grandparents who live in Egypt. The father, who was working in Saudi Arabia, exercised de facto access at times with the paternal grandfather. The issue of the father’s standing in these proceedings was not raised at trial.

[6] Among the several errors of fact alleged in the trial judge’s decision is his finding in paragraph 38 of his reasons that, prior to the mother unilaterally removing the children to Canada, “access was frequently obstructed by Ms. H.E. and her parents” to the children’s paternal grandfather who had been granted “regular, weekly visitation/access rights to the children” at a sports club in Cairo.

[7] This finding ignores the certificate from the sporting club filed as part of the proceedings in court which indicates that, although the mother or her parents presented themselves with the children for access to be exercised, in many instances going over periods of months no one attended in order to exercise access.

[8] The trial judge’s finding that the mother frustrated access in Egypt was material to the trial judge’s conclusion that the children be returned to Egypt where the father and the paternal grandfather have started custody proceedings.

[9] There is a serious question to be tried as to whether Article 13 of the Hague Convention applies; that is whether, although the father had guardianship, he was not exercising custody rights at the time of the mother’s removal of the child.

[10] The mother acknowledges that the court order she obtained in Egypt was granted on the basis of fraudulent representations. I note, however, that the father made no attempt to set aside that order prior to the mother leaving with the children although the father was well aware of it.

[11] On the issue of irreparable harm for which compensation cannot be made by the award of costs, the mother has always been the primary caregiver of the two children, born October 29, 2005 and December 7, 2006. Both parties are anxious to have the appeal heard and have agreed that it be heard in August or September depending on counsel’s availability. If the children were to be removed to Egypt now, they would lose the balance of their school year in Ontario. This would be prejudicial to them and is not in their best interests.

[12] With respect to balance of convenience, I observe that on this motion the court was not presented with any actual plan of care respecting who would be physically caring for the children in the event the order was not stayed and the children returned to Egypt. In Thomson, at para. 138, the court held that reasonable transition terms or a plan of care for the child’s transfer and care needs pending further direction from the court in the country to which the child is removed are valuable and show the regard of the parent seeking the return of the child for the welfare of the child.

[13] As well, an appeal date for the appeal to be heard is available in August or September. The balance of convenience favours the granting of the stay pending the appeal and I so order.

[14] As a condition of granting the stay, however, I order that the mother is not to remove the children from Ontario and that the Canadian and Egyptian passports and any travel documents respecting the children be deposited with counsel for the mother. This includes any passports that replace existing ones that expire. In the event that the mother discharges her present counsel, present counsel shall retain the passports until further court order and they shall not be returned with the mother’s file.

[15] I canvassed with counsel for the father whether his client wished to exercise access pending the hearing of this appeal. Although requesting the address of the mother’s residence and cell phone number as part of the relief requested, counsel was unable to tell me whether his client wished to exercise access or not “because he does not wish to be seen as attorning to the jurisdiction of the court”. The mother opposes access that is not supervised access. In the circumstances, I make no order as to access.

[16] The father’s motion is for security for costs of this appeal. The mother is engaged in an Ontario Works program and she lives in assisted housing. Her legal representation is currently funded by legal aid. By granting the stay application I have implicitly found that the application is not frivolous and vexatious.

[17] Counsel for the father also submits that an order for security for costs could be made under rule 56.01. He submits that the mother has another proceeding for the same relief pending elsewhere, namely, Egypt. Although counsel submitted that the issues in Egypt and Ontario were the same, there is no evidence in the record indicating that the relief claimed in the Egyptian proceeding is the same as the proceedings here. Thus, I decline to find that r. 56.01(b) applies. On the question of outstanding costs orders, the $38,000 in costs that the mother was ordered to pay from a prior motion was ordered to be paid at the end of the litigation. The litigation has not ended. Nor have the costs of trial been assessed. Thus, r. 56.01(c) has no application either.

[18] Finally, there is the question of whether for “other good reason” security for costs should be ordered under r. 61.06(c). While it was put to me that the mother’s fraud in obtaining her Egyptian custody order warranted an order for security for costs in these proceedings, as I have indicated, it appears to me that the father made no attempt to set aside that order prior to the mother leaving with the children although the father was well aware of it. In the circumstances, this is not a good reason to order security for costs.

[19] The motion for security for costs is dismissed.

[20] On consent I order that the appeal be expedited to the first available date in August save and excepting the last week of August, or that it be heard in September. I leave it to counsel to work out the timelines and to file their material accordingly. Obviously it would be in the best interests of the children for the appeal to be heard expeditiously, particularly given the start of the school year in September.

[21] The costs of these motions are reserved to the panel hearing the appeal.

“K.M. Weiler J.A.”```