COURT OF APPEAL FOR ONTARIO

CITATION: J.P.B. v. C.B., 2016 ONCA 996

DATE: 20161021

DOCKET: M47061 & M47037

Benotto J.A. (In Chambers)

BETWEEN

J.P.B.

Applicant (Appellant)

and

C.B.

Respondent (Respondent)

Steven M. Bookman and Chris Stankiewicz, for the appellant, J.P.B.

Patric Senson, for the respondent, C.B.

Caterina E. Tempesta and James Stengel for the moving party, the Office of the Children’s Lawyer

Heard: October 14, 2016

ENDORSEMENT

[1] On September 13, 2016, a panel of this court ordered that two children be returned by their mother to their father in Germany no later than October 15, 2016, pursuant to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 (the “Hague Convention”).

[2] The Office of the Children’s Lawyer (“OCL”) brought this motion to stay the execution of the order pending the mother’s anticipated application for leave to appeal to the Supreme Court of Canada. The father objects to the stay and brings a cross-motion challenging the standing of the OCL.

[3] I dismissed the motion of the OCL for a stay with reasons to follow. These are those reasons.

Background

[4] The parents were married in Toronto in 2000. The following year, they moved to Germany where the two children were born in 2002 and 2005 respectively. With two exceptions, the family thereafter lived in Germany until April 2013.

[5] In April 2013, the parents agreed that the mother would temporarily take the children to Canada to attend school as an “educational exchange” opportunity for the children. The absence from Germany was to last from July 5, 2013 until August 15, 2014 (the “consensual period”). In order to enroll the children in school, the father signed a letter transferring physical custody to the mother.

[6] Before the expected return date, the father commenced proceedings in Ontario pursuant to the Hague Convention to have the children returned to Germany. The application judge found that the move to Canada was intended to be temporary. She concluded that the children’s habitual residence was Germany; the mother was wrongfully retaining the children; and they should be returned.

[7] The mother appealed to the Divisional Court, which found that, during the consensual period, the habitual residence of the children had changed from Germany to Canada.

[8] The father appealed to this court. Sharpe J.A., writing for the court, concluded that (1) in order to determine if the mother’s retention breached the father’s custody rights under Article 3 of the Hague Convention, the court must identify the habitual residence of the children before the retention occurred; (2) there cannot be a unilateral change in habitual residence; (3) a time-limited, consensual stay cannot shift the children’s habitual residence; and (4) evidence of the children “settling in” to a new location is not relevant under Articles 3 or 12 when the application is brought within a year of the wrongful retention. Finally, he ordered that the children be returned to Germany no later than October 15, 2015.

Motion for a stay

[9] The father challenges the OCL’s standing to bring this motion. I will deal first with the issue of standing and then with the substantive issues in the motion.

Standing of the OCL

[10] MacPherson J., the application judge, heard the Hague application on March 9, 2015. She asked the parties to return on April 21, 2015 to make submissions on the potential involvement of the OCL. On that day, she made an order which stated, at para. 4:

THIS COURT ORDERS that if the Children’s Lawyer determines to provide legal representation under s. 89 (3.1) of the Courts of Justice Act, the Children’s Lawyer shall have full power to act for the said child(ren) as though they were parties to these proceedings and, without limiting the generality of the foregoing, the Children’s Lawyer shall have the right to:

(a) make a full, independent enquiry of all the circumstances relating to the best interests of the child(ren);

(b) receive copies of all professional reports and all records relating to the child(ren);

(c) production and discovery according to the Rules;

(d) appear and participate in this proceeding, including the right to examine and cross-examine witnesses, call evidence and make submissions to the Court, such submissions to include the position(s) advanced on behalf of the child(ren);

(e) apply to be removed as the legal representative of the child(ren), if the Children’s Lawyer believes that such involvement is no longer in the child(ren)’s interests;

(f) take such appeal proceedings as deemed appropriate; and

(g) seek costs related to these proceedings.

[11] At the bottom of the order, the application judge added, in her own handwriting, the following:

This is a Hague Convention case & OCL is requested to become involved on an expedited basis to ascertain the objections of children to a return to Germany & allegation by father that children have been influenced by mother as they have resided with her in ONT since April 2013.

[12] The OCL submits that, as a consequence of this order, it has full standing as a party to bring this motion and seek leave from the Supreme Court of Canada. The father submits that the order must be read in the context of the narrower focus indicated by the application judge’s handwritten addition, namely to report to the court about the children’s objections and to do so on an expedited basis. The father claims this restricts the broader language of para. 4 of the order.

[13] While – as I will explain below – I have concerns about the role that the OCL is adopting in these proceedings, I will determine this motion as though there is standing to bring this application on behalf of the children. In light of my conclusion on the merits of the stay application, I do not need to definitively determine this issue.

Merits of the stay motion

[14] The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 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: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321 [In Chambers], at para. 16; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

[15] 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.); Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 [In Chambers], at paras. 14-15; BTR Global, at para. 16.

(1) Does the appeal raise a serious question to be tried?

[16] The preliminary assessment of the merits of the case begins with a presumption of correctness of the decision under appeal. While the threshold to be met in connection with the first component of the test is a modest one, where the stay sought is to permit an application for leave to the Supreme Court of Canada, another layer to this component is engaged. As stated by Laskin J.A. in BTR Global, at para. 18:

Ordinarily, the threshold for showing a serious issue to be adjudicated is low. However, the criteria for granting leave to appeal to the Supreme Court of Canada add another layer to this component of the test. Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of the stringent leave requirements in the Supreme Court Act. [Citations omitted.]

[17] I begin with the merits of the case generally and then turn to this additional consideration described by Laskin J.A.

[18] The OCL submits that there is a serious issue to be tried because the Court of Appeal erred by failing to give due consideration to the wishes of the children. I do not agree. Beginning with the concerns of the application judge, who appointed the OCL for precisely this reason, the wishes of the children were known to and considered by the court. As Sharpe J.A. said at paras. 74-76:

Article 13 of the Hague Convention provides that even if the retention is wrongful, the court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” The mother places considerable weight in her submission on what she contends are the views of the children.

In my view, this submission cannot succeed in the face of the explicit findings of the application judge which are entitled to deference on appeal.

The children’s objections included matters such as too much homework in Germany, loss of friends, loss of their dog, and that “Canada feels like home.” After carefully considering the evidence led by the OCL as to the children’s views, the application judge held, at para. 102, that the children’s objection to being returned to Germany were neither “substantial” nor had “the ‘strength of feeling’ required that would take the objection beyond the level of expressing a preference for one place over another.” The application judge quite properly observed at para. 105:

To accede to such an objection would set the threshold much too low and certainly much lower than intended by the [Hague] Convention which provides that where there has been a wrongful retention, children shall be returned to their habitual residence unless the removing parent can establish that exceptional circumstances exist. Such circumstances do not exist in this case.

[19] The OCL submits that this court further erred in dismissing the application to submit fresh evidence dealing with the children’s views at the time of the appeal. The court held that the evidence was not relevant, at paras. 78-79:

This appeal essentially turns on the question of whether the children were habitually resident in Germany on August 15, 2014. If they were, the Hague Convention application must be granted. If they were not, it must be refused. The proposed fresh evidence relates to facts arising long after that critical date, and I fail to see how it could assist the court in determining whether the application judge correctly determined the issue of habitual residence.

Furthermore, to place any weight on such after-the-fact evidence would encourage protracted appeals and proceedings and reward delay.

[20] The OCL submits that this analysis is in error because a determination of habitual residence must include “the perspective of the interests and circumstances of the children”. Here, however, the evidence sought to be admitted related to interests and circumstances arising “long after” the critical date of August 15, 2014. It therefore did not impact that factual determination.

[21] The OCL further submits that this appeal raises the serious question of whether the children’s views on their settling into their new environment impact a determination of habitual residence under Article 3 of the Hague Convention. While there is conflicting jurisprudence on this issue among Ontario lower courts, the issue has been settled. In Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, the Supreme Court of Canada held, at p. 597: “By stating that before one year has elapsed the rule is that the child must be returned forthwith, Article 12 makes it clear that the ordinary effects of settling in, therefore, do not warrant refusal to surrender.” This principle was also applied in Bazargani v. Mizael, 2015 ONCA 517, 63 R.F.L. (7th) 58, at para. 22, and Ibrahim v. Girgis, 2008 ONCA 23, 48 R.F.L. (6th) 1, at para. 30: “the degree to which the child has become settled has no bearing on a Hague Convention application filed within one year.”

[22] The law is also clear that time-limited consensual stays cannot be converted to habitual residence. Ontario courts have uniformly held that a parent’s consent to a time-limited stay does not shift the child’s habitual residence: see Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 27-33; Unger v. Unger, 2016 ONSC 4258, at para. 57; Webb v. Gaudaur, 2015 ONSC 6956; Fulmer v. Kaleo-Fulmer, [2002] O.J. No. 3183 (S.C.), at para. 18; Solem v. Solem, 2013 ONSC 1097, at paras. 37-38; and Snetzko v. Snetzko (1996), 11 O.T.C. 336 (C.J.).

[23] Likewise, there is a long and well-established line of authority to the effect that one parent cannot unilaterally change a child’s habitual residence under the Hague Convention. The application judge correctly described this principle at para. 73: “[t]he case law is clear that the habitual residence of a child is the state where both parties lived together with the child, and neither parent can unilaterally change the habitual residence, without the express or implied consent of the other parent.” As stated in Maharaj v. Maharajh, 2011 ONSC 525, 95 R.F.L. (6th) 391, at para. 18, “unless the mother can establish a shared parental intention to change the child’s residence” at the time of the move to Ontario, the child’s habitual residence remains unchanged: see also Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.) and Ellis, at paras. 27-33.

[24] I turn now to the additional considerations engaged as a result of the leave requirements of the Supreme Court of Canada. The OCL sought to establish national importance by alleging, for the first time in this protracted proceeding, that the children’s Charter rights under ss. 6 and 7 are infringed. The OCL relies on this court’s decision in A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1,which found that a refugee child’s rights under s. 7 of the Charter are engaged where the child’s involuntary removal is sought under the Hague Convention to a country where the child has been found to face a risk of persecution.

[25] In A.M.R.I. the child had been accepted in Canada as a refugee by reason of abuse by her mother in Mexico. The result of the Hague convention was to return the child to a country where she had been found to face a risk of persecution. This was why her s. 7 Charter rights were engaged, and why the court concluded that she had been denied procedural fairness in having had no notice of the application and no ability to have her views considered. These factors do not exist here. The children in this case were clearly aware of the proceedings and their views were presented and considered.

[26] The OCL referred to Article 12 of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S 3, Can. T.S. 1992 No. 3. It provides that (1) children have the right to express their views and that their views be given due weight in accordance with their age and maturity and (2) children have the right to be heard in any judicial proceeding affecting them in a manner consistent with the procedural rules of national law. Although children have a right to make their views known, there is no right to have their views followed.

[27] The OCL submits that the children, as Canadian citizens, have a right to remain in Canada pursuant to s. 6 of the Charter. Children who have been abducted from their country of habitual residence and brought to a country where they are citizens are not immunized from the application of the Hague Convention and may be ordered to return to a custodial parent in another country: see Kovacs v. Kovacs (2002), 2002 CanLII 49485 (ON SC), 59 O.R. (3d) 671 (S.C.), at para. 117.

[28] The proposed appeal does not raise a serious question to be tried.

(2) Will the children suffer irreparable harm if the stay is not granted?

[29] Irreparable harm is characterized by the nature, rather than the magnitude, of the harm: RJR-Macdonald, at p. 341. The OCL submits that the children will suffer irreparable harm if the stay is not granted. In support of this position, the OCL filed extensive material as fresh evidence. It is meant to establish the current, more forceful objections that the children have to being returned to their father. I have several concerns about this evidence.

[30] First, much of it details the children’s negative reaction to the order of this court and the prospect of returning to Germany. However, the children have been living with their mother and maternal grandmother. Almost all contact with the father has stopped. Consideration does not appear to have been given to obvious signs of parental alienation. The children have been taken to assessors who appear to have made no attempt to contact the father. At para. 104 of the application judge’s reasons, she stated that there was a “real likelihood that the children have to some extent been influenced by the mother”. The OCL submits that it was the order of this court that caused difficulties for the children. No mention is made of the mother’s wrongful retention of the children as the originating cause.

[31] Second, an allegation is made for the first time of abuse by the father in Germany. No mention is made of the assessment done in Germany that reflects a healthy relationship with the father. Furthermore, as noted by the application judge at para. 53, an OCL clinician met with each child multiple times and “[b]oth children spoke positively about their father and of him being a nice guy who does fun stuff with them.”

[32] Lastly, the OCL appears to have stepped into the role of aggressive advocate, promoting the position of the mother. This is particularly troubling given the mother’s comments about now having a resource to fund her appeal.[^1]

[33] There is no irreparable harm if the children are returned. There is greater harm being done to the children by delaying the determination of custody. Applications pursuant to the Hague Convention are to be dealt with expeditiously. Continuing delays frustrate the purpose of the legislation, favour the non-complying parent, and postpone the determination of the children’s best interests in the country where they are habitually resident.

[34] As this court explained in Katsigiannis v. Kottick-Katsigiannis (2001), 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at para. 32:

[A] Hague Convention application does not engage the best interests of the child test - the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the courts of other contracting states will properly take the best interests of the children into account. … Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention … the children must be returned to their habitual residence.

[35] The OCL submits that a return to Germany would render the mother’s appeal moot. I disagree and adopt the ratio of Roberts C.J. of the United States Supreme Court in Chafin v. Chafin (2012), 133 S.Ct. 1017, at p. 1027:

In cases in which a stay would not be granted but for the prospect of mootness, a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence. [Emphasis added.]

[36] Also in Chafin, Ginsburg J. spoke at p. 1028 of the “driving objective” of the Hague Convention: to “facilitate custody adjudications, promptly and exclusively, in the place where the child habitually resides.” To that end, each contracting state must “ensure that appeals proceed with dispatch.”

(3) Does the balance of convenience favour a stay?

[37] The balance of convenience part of the test involves determining which party would suffer greater harm from the granting or refusal of the stay pending the disposition of the appeal on the merits. The court must consider that the matter has already been adjudicated and the order must be regarded as prima facie correct. The application judge found as a fact that the children’s habitual residence is Germany. That is where their best interests will be determined. It is widely recognized that the best interests of children require that custody matters be dealt with expeditiously. In my view, the balance of convenience favours returning the children forthwith.

Conclusion

[38] The Hague Convention seeks to ensure the prompt return of children wrongfully removed or retained in any contracting state and to ensure that rights of custody and access under the law of one contacting state are respected by the other contracting state. Children all over the world benefit from the provisions of the Hague Convention which discourage – not reward – international abduction and wrongful retention. Inherent in the Hague Convention is the trust that signatory countries have in the family law proceedings of the other contracting states. Prompt return is essential so that children’s issues can be addressed without delay.

[39] As stated by Sharpe J.A., at para. 83,

[A]lthough this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents. It is also important to remember that the mother’s actions were in direct violation of the father’s custodial rights.

Disposition

[40] The motion by the OCL for a stay is dismissed with costs fixed at $8,500 inclusive of disbursements and HST.

[^1]: After the decision of this court was released, the mother set up a “crowd-funding” webpage to raise $50,000 to cover her costs to pursue her appeal to the Supreme Court of Canada. Having been unsuccessful in this attempt, she announced on the campaign site, “There is now a plan in place to move forward with the case.” The implication is that the involvement of the OCL will eliminate the financial concerns.