Court of Appeal for Ontario

Date: 2017-03-31 Docket: C62497

Judges: Feldman, Sharpe, and Roberts JJ.A.

Between

Jeremy David Unger Appellant (Applicant)

and

Victoria Ambre Unger Respondent

Counsel

Michael J. Stangarone and Kristy A. Maurina, for the appellant

Andrew Feldstein and Nick Slinko, for the respondent

Heard: March 27, 2017

Appeal

On appeal from the final order of Justice Laura E. Fryer of the Superior Court of Justice, dated June 27, 2016, with reasons reported at 2016 ONSC 4258.

Endorsement

[1] The appellant appeals the dismissal of his application against his former spouse, under Articles 3 and 12 of the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 ("Hague Convention") and s. 46(5) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, for a declaratory order that their child is habitually resident in Israel and that she was wrongfully retained by the respondent in Canada, and for an order that their child be returned to Israel.

[2] Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

[3] Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return.

[4] There are limited defences to the operation of Articles 3 and 12. For instance, where the habitual residence of the child has changed, a defence against an application for his or her mandatory return to the former habitual residence will be available. Further, Article 13(a) of the Hague Convention provides that the mandatory return of the child is not required where the person having the care of the child had consented to or subsequently acquiesced in the removal or retention of the child.

[5] From February 2014 to August 2015, the appellant and the respondent lived in Israel with their daughter. In August 2015, they travelled to Toronto, Ontario to visit the respondent's parents and to allow the respondent to seek medical treatment for various, serious medical issues. At the end of three months, the appellant returned to Israel; the respondent and their daughter remained in Toronto.

[6] The application judge found that while the parties were in Toronto, they mutually agreed to change their habitual residence from Israel to Ontario, but that the appellant later changed his mind and decided to remain in Israel, and wanted the respondent and their daughter to return to Israel as well. The application judge also determined that the appellant had acquiesced in the respondent and their daughter remaining in Ontario. As a result, the application judge determined that she was not bound to order the return of the daughter to Israel.

[7] The application judge's determinations that the daughter's habitual residence is Ontario and that the appellant had consented to or acquiesced in Ontario as the daughter's habitual residence are factual findings that are subject to considerable deference on appeal: Baggot v. Balev, 2016 ONCA 680, [2016] 405 D.L.R. (4th) 98, at para. 53; I. (A.M.R.) v. R. (K.E.), 2011 ONCA 417, [2011] 106 O.R. (3d) 1, at para. 88.

[8] The appellant submits that the application judge made palpable and overriding errors in her consideration of the evidence and findings of fact with the result that she erred in determining that the appellant had consented to or acquiesced in Ontario as the habitual residence of his daughter.

[9] We disagree.

[10] The application judge carefully and thoroughly reviewed the evidence presented by the parties. Her findings that the appellant had consented to or acquiesced in Ontario as his daughter's habitual residence were open to her on the record. In particular, the application judge looked to the appellant's own conduct and communications with the respondent and others to support her findings. For example, in a text message exchange with the respondent's sister on November 17, 2015, after his return to Israel, the appellant wrote that he was "[t]rying to get everything in order, and cope with leaving…" and that "the plan is to be in Toronto until further notice…which basically means forever…". In later texts to the respondent in December 2015, the appellant advised that he would come to Toronto from time to time to visit, asked her to find him a place in Toronto where he could stay, and forwarded employment training opportunities for the respondent in Toronto.

[11] The appellant's main complaint is that the application judge should have weighed the evidence differently and in his favour. This is an entirely fact-driven appeal and the appellant asks this court to reassess the evidence on the application. That is not our task. Appellate review of a decision under the Hague Convention is not "a hearing de novo or an invitation to re-litigate the matters determined on the application": I. (A.M.R.), at para. 88.

[12] We see no error in the application judge's dismissal of the appellant's application. There is no basis to interfere.

[13] Accordingly, the appeal is dismissed.

[14] The parties agreed that, as the successful party on appeal, the respondent is entitled to costs in the amount of $10,000, inclusive of disbursements and taxes. Given the relative modest means of the appellant, we order that the appellant shall have six months to pay the costs awarded to the respondent.

"K. Feldman J.A."

"Robert J. Sharpe J.A."

"L.B. Roberts J.A."