Court of Appeal for Ontario

Date: 2017-12-07 Docket: M48556 (C64611) Pardu J.A. (In Chambers)

Between

Brittany Justine Paschel Applicant (Moving Party/Appellant)

and

Geoffrey Ian Paschel Respondent (Responding Party/Respondent)

Counsel

Farrah Hudani, for the moving party

Sheila Gibb, for the responding party

Heard: December 7, 2017

Motion

On a motion seeking a stay of the order of Justice Jamie K. Trimble of the Superior Court of Justice dated November 21, 2017, ordering the return of the parties' children to Tennessee, United States of America.

Reasons for Decision

Facts

[1] The moving party, Brittany Justine Paschel, is the mother of Cayvan Bain Paschel and Kazhem Hain Paschel. The responding party is their father. Cayvan and Kazhem were born on February 15, 2015 and February 3, 2017, respectively. The mother moves for a stay pending appeal of Trimble J.'s order requiring the return of these two children to their habitual residence in Tennessee, U.S.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89 (entered into force December 1, 1983).

[2] On July 31, 2017, the mother took the two children from their home in Tennessee to her mother's home in Mississauga, Ontario without the father's knowledge or consent. The father commenced an application, which was heard on October 30, 2017, for the return of the children.

[3] The mother opposed the father's application. She said they lived a nomadic lifestyle in the United States and in other countries and that the children had no habitual residence. She also said that return of the children to the place of habitual residence would expose the children to a grave risk of physical or psychological harm, or otherwise place the children in an intolerable situation within the terms of Article 13(b) of the Hague Convention.

[4] The mother asked for a trial, however, the application judge concluded that he could decide the issues on the basis of the written record, which was substantial.

[5] The application judge concluded that the children's habitual residence was in Tennessee, and that ordering the return of the children to Tennessee would not expose the children to a risk of harm of the nature contemplated by the Hague Convention.

[6] Both parents have counsel in Tennessee. Moreover, there is a custody hearing, with oral evidence, set for January 23, 2018 in Tennessee.

[7] What makes this case different is the fact that the mother cannot return to the United States. When she came back into Canada with her children, she told American immigration authorities that she had been illegally living in the United States. As a result, she is now subject to a 20 year prohibition against entering the United States.

[8] To make matters more complicated, the father has a dated criminal record that bars him from entering Canada.

The Test for a Stay Pending Appeal

[9] My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18:

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.

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.

The Merits of the Appeal

[10] Based on the evidence before him, the application judge's conclusion that the children were habitually resident in Tennessee was reasonable and amply supported by the record.

[11] The application judge's decision to decide this case on the basis of the written record, the 19 affidavits filed before him, rather than to direct a trial of the issues was a discretionary decision that is entitled to deference. While a trial of some issues may be necessary in some cases, some form of summary procedure is the norm, as this court pointed out in Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 19:

The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure.

[12] The application judge referred to the restrictive reading of the "grave harm" exception described in Thompson v. Thompson, [1994] 3 S.C.R. 551 at 595-97, and adopted in Friedrich v. Friedrich (1996), 78 F.3d 1060 (U.S. C.A., 6th Cir.), at para. 84 of his reasons:

"grave harm" meant that return of the child would put the child in "imminent" danger between the time of the child's return and the custody hearing, such as returning the child to a location which is in a zone a) of war, famine or disease or b) where there is a grave risk of harm by serious abuse or neglect, or extraordinary emotional dependence, and c) when the court in the country of habitual residence may be incapable or unwilling to give the child adequate protection.

[13] The trial judge analyzed the conflicting affidavits. He was not satisfied that the mother had satisfied her burden of proving that return of the children would subject them to grave harm.

[14] Here, I am satisfied that the mother's appeal from the application judge's order is not frivolous – although I cannot say it is likely to succeed.

Irreparable Harm

[15] The mother argues that she and the children will suffer irreparable harm if the children are returned to Tennessee because she cannot enter the United States. I am not persuaded this is the case. There is no reason to believe that the Tennessee courts will not make a custody decision on the basis of the best interests of the children, including terms about the location of their residence. A trial on the merits, in January 2018, in the country where the children are habitually resident, as opposed to prolonged jurisdictional wrangling, is in the best interests of the children. There is no reason to believe that the mother will not be able to fully participate in the trial by giving her evidence by video transmission if necessary. In making a decision about the best interests of the children, custody, access and the place of residence of the children, I am confident the Tennessee court will endeavor to get as full an account as possible from both parents.

[16] The irreparable harm to the children's relationship with their father must also be weighed in the balance. He has not had physical contact with his children since the mother surreptitiously removed them from their home. He has had sole custody of two other children, and had alternating monthly custody of another child now five years old with the consent of the biological mother, during the approximately three years the parties lived together. The five year old child is now of school age and that arrangement has ended. That same biological mother who consented to the father having custody of the two to five year old child every other month was one of the witnesses enlisted by the mother to give evidence that the father was an unfit parent.

[17] Based on all of the material submitted before the application judge and on this motion, I am not persuaded that the children would be in any imminent or grave danger from their father in the interval between the children's return and the custody trial in Tennessee, if they are returned to that state as ordered. The mother alleges that the father was physically and verbally abusive towards her in and out of the presence of the children, and that he is therefore an unfit parent. The father denies these allegations. In any event, the children will not be exposed to family violence or parental conflict before the trial in Tennessee because the parents cannot be in the same country. The defects the mother attributes to the father's qualities as a parent are not such as to risk imminent harm to the children, were they returned to Tennessee before the trial.

[18] While the mother argues that her separation from the children will be traumatic for the children, this separation will have been caused, in part, by the precipitous actions of the mother. She should not be allowed to frustrate the goals of the Hague Convention by unilaterally attempting to create a new status quo outside the country of the children's habitual residence.

[19] The father's counsel indicated a willingness to arrange for alternating access periods for the parties to be with the children, pending the hearing of the custody trial in Tennessee with appropriate mirror orders to secure compliance by each parent in their respective jurisdictions. I am not convinced that returning the children to the United States will necessarily result in a permanent rupture of the relationship between the mother and the children. Both the mother and the father will have to use intermediaries to facilitate access by the other parent. The willingness by each parent to support a relationship between the children and the other parent will undoubtedly be a factor in the Tennessee custody trial.

Balance of Convenience

[20] With respect to the balance of convenience element, I find the views expressed by Benotto J.A. in J.P.B. v. C.B., 2016 ONCA 996, at paras. 37-39 highly relevant here:

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.

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 contracting 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.

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.

Conclusion

[21] I am not persuaded that the interests of justice require a stay of the order requiring the return of the children to their habitual residence jurisdiction.

[22] The motion is dismissed with costs to the responding party in the agreed sum of $7,500.00, payable within 30 days.