Court of Appeal for Ontario

Date: November 28, 2017 Docket: M48523 (C64581) Judge: Hourigan J.A. (In Chambers)

Parties

Between

Mahmud Zafar Applicant (Respondent in the Appeal)

and

Qurratul Ain Saiyid Respondent (Appellant in the Appeal)

Counsel

Anser Farooq, for the respondent

Robert McQueen, for the applicant

Heard and released orally: November 27, 2017

Reasons for Decision

Introduction

[1] The appellant moves for a stay of the order of the application judge dated November 7, 2017. The respondent brings a cross–motion to dismiss the appeal.

Background

[2] The parties were married on March 9, 2007 and have two children, A, aged 5 and N, aged 1 1/2. Both children were born in London, England.

[3] In May 2016, the appellant took a trip with the children to Canada with the consent of the respondent. The trip was to last from May 8, 2016 to August 1, 2016. She communicated with the respondent while in Canada about extending the trip to September 11, 2016. The respondent was agreeable to an extension.

[4] On August 23, 2016, the appellant telephoned the respondent and told him that their marriage was over and she was not returning the children to England.

[5] The respondent brought an application 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") as incorporated in s. 46(2) of the Children's Law Reform Act, RSO 1990, c. C.12 for the children to be immediately returned to London, England.

[6] The appellant opposed the order on various grounds. She conceded many of her arguments before the application judge. In particular, she conceded that the habitual residence of the children was England.

[7] In reasons dated September 13, 2017, the application judge rejected the appellant's argument that the respondent had acquiesced to the removal of the children. The application judge also did not accede to her argument that the children would be exposed to a grave risk of harm by the respondent if they were returned to England. On that issue, he found that any concerns regarding the respondent's alleged misconduct could be dealt with in England and it would "not be intolerable to order A and N (and, implicitly, Ms. Saiyid) back to their habitual residence."

[8] The application judge granted the application: "For the above reasons, Mr. Zafar's Hague application is allowed. The correct jurisdiction to hear any custody and access issues is London, England. Ms. Saiyid and the children must return there to deal with these issues."

[9] In those reasons, he directed the parties that if they could not agree upon the necessary orders and undertakings for the children's return to England then he could be spoken to.

[10] A notice of appeal was not filed in time with respect to the September 13, 2017 order. The parties were unable to agree to arrangements for the return of the children and made further submissions to the application judge.

[11] On November 7, 2017, the application judge made a further order regarding the undertakings and arrangements for the return of the children. He ordered:

Until further order by the British Court, I therefore order:

a) Dr. Zafar shall provide Ms. Saiyid and the children with exclusive possession of the matrimonial home municipally known as 396B Baring Road, London, England, Se12 0EF.

b) Dr. Zafar shall pay the monthly rent for the home and all the monthly utilities and council tax.

c) On a without prejudice basis, Dr. Zafar shall pay £225 GBP per week for the support of the children and Ms. Saiyid.

d) Should Ms. Saiyid fail to return the children to London, England by December 1, 2017;

I. Dr. Zafar shall have sole custody of the children and Dr. Zafar shall be permitted to return to England with the children.

II. All local, provincial, federal, international police and all law enforcement officials to whose attention this order is brought shall assist, if required, in locating, apprehending and delivering the children to Dr. Zafar or to a person authorized on his behalf.

III. This order shall be in force until June 1, 2018 unless extended by further court order.

IV. For the purpose of locating and apprehending the children in accordance with this order, a sheriff or police officer may enter and search any place where he or she has reasonable and probable grounds for believing the children may be, with such assistance and such force as are reasonable in the circumstances at any time during the day.

V. Ms. Saiyid shall deliver up forthwith to Dr. Zafar or his lawyer, Robert K. McQueen, the originals of the children's passports, Social Security cards and birth certificates.

e) Once the children are returned to London, England, Ms. Saiyid shall not remove the children from that jurisdiction without the written consent of Dr. Zafar or an order of the English Court.

f) If Ms. Saiyid returns with the children forthwith to London, England, Dr. Zafar shall not remove the children from England.

Analysis

(a) Cross-Motion

[12] The respondent submits that the appeal should be dismissed because the September order was a final order and it was not appealed in time. He further submits that the November order is an interlocutory order and that the appellant should seek leave to appeal that order in the Divisional Court.

[13] I disagree. In my view, the two sets of reasons amount to one order. The September reasons ordered that the children be returned to England. The application judge stated that he could add to those reasons and provide for a process to send the children home. He chose not to, instead directing the parties to work out the details and, failing agreement, to make further submissions.

[14] In my view, the two sets of reasons amounted to one final order and the appellant appealed within the timeframe provided for in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The cross-motion is dismissed.

(b) Stay

(i) Orders to be considered

[15] The appellant submits that the application judge made several errors in his legal and factual analysis. She argues, for example, that the application judge had no authority to order her return to England. It is not clear from the reasons whether the application judge was actually ordering the appellant to England or, as he indicated earlier in his reasons, only "implicitly" making such an order. The appellant also submits that the trial judge did not have the authority to order a change in custody if the children were not returned by the deadline.

[16] For the purposes of my analysis, I will assume that the application judge made an order for the appellant's return to England. I will consider below whether the order for the return of the children and/or the order for the return of the appellant should be stayed. I will also consider whether the order potentially changing custody should be stayed.

(ii) General Principles

[17] The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following 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), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 [In Chambers], at para. 1.

[18] 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.

(iii) Order for the Return of the Children

[19] Turning first to whether there is a serious question to be tried, it must be emphasized that this is a low threshold. It is evident from a review of the reasons of the application judge that the appellant abandoned many of her arguments during the course of the application. Her primary submission now is that the application judge failed to properly consider her argument about intolerable circumstances.

[20] While I would not categorize her appeal as strong, it does pass the serious issue to be determined threshold. This factor militates in favour of a stay.

[21] With regard to irreparable harm, I am not satisfied that the appellant has met her onus. The primary arguments asserted by the appellant on this issue are that without a stay the status quo would be altered, that her relationship with the children would be ruptured, and the children would be subjected to harm.

[22] The purported status quo of the children remaining in Canada, which is not their habitual residence, was a situation that the appellant engineered and should not be continued by this court absent good reason. I am not satisfied that there is any such good reason. Nor am I satisfied that the appellant's relationship with her children will suffer. There is every reason to believe that she can continue her relationship with her children in their habitual residence. With respect to her safety concerns, I agree with the assessment of the application judge that those issues can be dealt with expeditiously in England.

[23] On the issue of irreparable harm, I adopt the analysis of Benotto J.A. in Balev v. Baggott, 2016 ONCA 996 at para. 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.

[24] With regard to the balance of convenience, the appellant submits again that the status quo should not be disturbed, the father has no plan of care, and that the appeal would be rendered moot if a stay is not granted.

[25] I reject the status quo argument for the same reasons given above. Any issue re a plan of care can be dealt with by the English courts.

[26] With regard to the mootness point, I adopt the reasons of Roberts C.J. of the United States Supreme Court in Chafin v. Chafin (2012), 133 S.Ct. 1017, at p. 1027, as quoted in Balev in para. 35:

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 has 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.]

[27] The balance of convenience favours the respondent.

[28] In balancing all of the factors, I am of the view that a stay should not be granted. There is a serious issue to be tried, but the appellant will not suffer irreparable harm if the stay is not granted, and the balance of convenience also does not favour a stay. This is a situation where the court must follow its mandate of ensuring that Hague Convention cases are dealt with expeditiously by ensuring prompt return of children to their habitual residence.

[29] The motion for an order staying the order for the return of the children to England is dismissed.

(iv) Order for the Return of the Appellant

[30] As stated above, it is not clear to me that the application judge intended to order the appellant to return to England. No formal orders were provided by the parties, so I must govern myself by what is in the reasons.

[31] If such an order was made, there is good reason to doubt its correctness. The court would appear to be without jurisdiction to make such an order and it would raise serious constitutional concerns.

[32] The appellant would suffer irreparable harm if she were effectively ordered out of Canada to a country where she does not hold citizenship.

[33] The balance of convenience would also clearly favour the appellant as she could suffer real prejudice if she is ordered out of Canada against her wishes.

[34] A balancing of the factors and the justice of the case favours granting a stay of this part of the application judge's reasons.

[35] An order will go staying that portion of the application judge's reasons that ordered the appellant to return to England.

(v) Order for a Change in Custody

[36] The application judge ordered that if the appellant did not return the children to England by December 1, 2017, the respondent shall have "sole custody of the children" and the respondent "shall be permitted to return to England with the children."

[37] I agree with the submission of the appellant that there is good reason to doubt the correctness of an order changing custody. That is, of course, a matter to be determined in England. Such an order would also appear to violate article 16 of the Hague Convention.

[38] The appellant may suffer irreparable harm if an order is made in Canada changing custody of the children, as it could adversely impact her position before the English courts.

[39] The balance of convenience also favours the appellant. Such an order significantly changes the status quo in terms of the parties' having custody issues determined by the English courts.

[40] The justice of the case favours a stay of that portion of the order awarding custody of the children to the respondent if the appellant does not return them to England. A stay will issue with respect to that part of the application judge's reasons. To be clear the order remains extant with respect to all other parts of the order for the return of the children, including, but not limited to, an order that the children be returned to England by December 1, 2017, failing which the respondent is permitted to return the children to England.

Disposition

[41] The cross-motion is dismissed. A stay will go with respect to those portions of the application judge's reasons that purport to order the appellant to return to England and to award the respondent custody of the children if they are not returned to England by the appellant by December 1, 2017. The stay motion is otherwise dismissed.

[42] There was mixed success on the motion and cross-motion. However, the most significant issue was the stay of the order returning the children to England. The respondent was largely successful on that part of the motion. He is entitled to a costs award that reflects that success and factors in the overall mixed success. The appellant shall pay costs to the respondent forthwith in the amount of $3,000, inclusive of fees, disbursements, and taxes.

Released: November 28, 2017

C.W. Hourigan J.A.