Court File and Parties

Court File No.: Toronto DFO-15 12803-A1 Date: 2018-04-06 Ontario Court of Justice

Between: George Nikoladze, Applicant

— And —

Tatia Kekelia, Respondent

Before: Justice M. L. Cohen

Ruling released on: April 6, 2018

Counsel:

• Mr. David K. Sherr, counsel for the applicant
• Mr. Michael Zalev and Ms. Sarah Boyle, Amicus Curiae

Decision

COHEN, M.L., J.:

[1] Introduction

This motion within a Children's Law Reform Act application raises the question of the permissible ambit of a domestic court's response to a possible misinterpretation of the principles of the Hague Convention (the "Convention") by a foreign court.

[2] Parties and Background

The applicant is the father of Mikheil Nikoladze, born December 27, 2012. The respondent is the child's mother. The parties are citizens of Georgia (the country), but the applicant and child also hold Canadian citizenship. The Mother holds a Canadian permanent resident visa.

The family had moved from Georgia to Canada in September, 2014. In January, 2015, the mother took Mikheil to visit her family in Georgia with the consent of the father. Once there, she advised the father she would not be returning to Canada with him.

[3] Initial Ontario Court Order

The father immediately sought a remedy in this court under the Children's Law Reform Act. On March 27, 2015, Katarynych, J. made an order without notice to the mother, granting the father temporary custody of the child, and requiring the mother to return the child to the father's care no later than April 6, 2015. Justice Katarynych found that the child was ordinarily resident in Toronto, and had been in the care of both parents, prior to the mother's departure with him.

Despite having been served with the Order, the mother elected to ignore the Ontario proceedings and the Order. The father then commenced an application in Georgia for an order directing the return of the child to Ontario pursuant to the Hague Convention. The father's CLRA application has remained on adjournment.

[4] Relief Sought

In his motion, the father asks for an order affirming that the earlier order of March 27, 2015, remains in force. Specifically, he asks this court to order:

• that the province of Ontario remains Mikheil's habitual residence pursuant to section 22 (2) of the Children's Law Reform Act;
• that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of the Children's Law Reform Act;
• that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody and access orders affecting him;
• that the applicant has rights of custody and access to him; and
• that the child should be returned forthwith to the province of Ontario.

[5] Prior Ruling and Adjournment

This is my second ruling on the motion. The first, which resulted in an adjournment, and which sets out much of the background, was made July 12, 2017. That decision is reported at Nikoladze v. Kekelia, 2017 ONCJ 475. The purpose of the adjournment was to permit the filing of further evidence, including a translated version of the decision of the Hague application court – the Tbilisi City Court. Although no further evidence was tendered, the decision of the application court has now been filed.

[6] Appointment of Amicus Curiae

As the respondent was not participating in the action, on consent, I appointed Amicus Curiae to assist the Court. Amicus has been appointed, and I am grateful for his assistance.

[7] Georgian Court Proceedings

The application Court found that the child had been wrongfully retained by the mother in Georgia, in contravention of Article 3 of the Convention. Despite this finding, the Tbilisi City Court refused to order the return of the child, as required by Article 12, based upon the exception in Article 13(b).

The applicant appealed the decision to the Tbilisi Appeal Court. The Appeal Court upheld the decision of the application court. The father's request for leave to appeal to the Supreme Court of Georgia was denied. The father has now appealed the ruling of the Georgian court to the European Court of Human Rights, based on an alleged breach of Article 8 of the European Convention on Human Rights.

[8] Applicant's Continued Pursuit of Remedy

Notwithstanding the decision of the Georgian court, the applicant continues to seek a remedy in this court under the Children's Law Reform Act. He has been advised by counsel in Georgia that the Order requested would assist his claim before the European Human Rights tribunal.

[9] Applicant's Arguments

The father argues that the proceedings in Georgia are tainted by procedural unfairness and misinterpretation of the Convention. With respect to procedural unfairness, he relies on an opinion from the office of the Public Defender in Georgia which states that application court applied lax evidentiary standards, relied on questionable evidence, and exhibited bias in favour of the mother. As I have not seen the evidence filed in the Georgian Court, nor reviewed any transcript of the proceeding, I cannot comment on this branch of the father's argument.

With respect to the misinterpretations of the Convention, the father states that, contrary to Hague jurisprudence, the Georgian Court applied a "best interests" analysis, and an insufficiently stringent risk of harm test, in evaluating the mother's claim under Article 13(b). In these circumstances, he argues that, notwithstanding the principle of comity which is at the heart of the Convention, the Ontario Court is not bound to defer to the Georgian Court, and can assert its continuing jurisdiction to determine the issue of custody in Ontario.

[10] Contempt Claim

The applicant also asks the court to find the respondent in contempt of the order of March 27, 2015. As the request for a contempt finding was first raised in argument before me, was without notice to the respondent, and was not supported by any formal motion, I am dismissing that claim.

[11] Amicus Curiae Submissions

Amicus argues that the applicant's motion raises the question of whether and when an Ontario Court can find that a foreign jurisdiction has not met its treaty obligations. He points out that there is no claim for substantive relief – rather the father is effectively seeking a declaration from the Ontario Court of Justice that Georgia has misapplied the principles of the Convention. Amicus submits that while the court may have the jurisdiction to make the orders requested in some circumstances, it should refrain from doing so because: the Ontario Court of Justice may not have jurisdiction to order declaratory relief, because the declaration will not settle any "live controversy" between the parties, and because there is no possibility of enforcement of any order the court may make. Furthermore, Amicus questions the propriety of opining on the issues before the European Court, and of making an order that may be viewed as criticizing a foreign court. In the result, Amicus proposes that the father's application be dismissed, or stayed, to be revived in the event of a change in circumstances.

Analysis

[12] Georgian Court's Interpretation of the Convention

The issues in this case arise from the Georgian Court's characterization of the objects of the Convention and its interpretation of the Article 13(b) exception – an interpretation which flows from that Court's general misinterpretation of the Convention, and from the manner in which the Georgian Courts resolved the interplay between the Convention and other international treaties to which Georgia is a signatory.

[13] Relevant Treaty Provisions

In arriving at its determination, the applications Court relied upon the preamble to The Hague Convention, and Article 13(b), the Civil Procedure Code of Georgia, the Convention on the Rights of the Child, Clause 2 of Article 6, and Article 8 of the European Convention of Human Rights.

I reproduce here all but the provisions of the Georgian domestic legislation which were not made available to me. I also include Article 1 of the Convention which describes its objects, although Article 1 was not specifically referred to by the Tbilisi City Court Judge.

From the Hague Convention:

The Preamble:

The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Article 1

The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

From the Convention on the Rights of the Child:

Article 6

2. States Parties shall ensure to the maximum extent possible the survival and development of the child

From the European Convention of Human Rights:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[14] Framework of the Hague Convention

Before I turn to a review of the decisions of the Georgian applications court, and appeals court, I want to summarize the generally understood framework of the Hague Convention.

Consonant with its title, the purpose of the Hague Convention is to address the civil aspects of child abduction. The Convention is intended to establish procedures to ensure the prompt return of children who have been wrongfully removed or retained to the State of their habitual residence, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. (Article 1)

The Explanatory Report on the Hague Convention is helpful in clarifying that the two purposes set out in the preamble

can be regarded as one single object considered at two different times; whilst the prompt return of the child answers to the desire to re-establish a situation unilaterally and forcibly altered by the abductor, effective respect for rights of custody and of access belongs on the preventive level, in so far as it must lead to the disappearance of one of the most frequent causes of child abductions (par. 16)

The objectives of the Convention are grounded in the notion that an effective way of deterring child abduction is to deprive the abductor's actions of any practical or juridical consequences by promptly restoring the status quo prior to the wrongful removal. Thus, in most cases, the Convention allows a final decision on custody to be taken by the authorities of the child's habitual residence.

The Convention is not intended to regulate the problem of awarding custody rights. It rests implicitly upon the principle that any debate on the merits of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal. It presumes that the courts of the child's habitual residence are capable of resolving custody disputes.

Thus, when the Convention states that "the interests of children are of paramount importance in matters relating to their custody," it is addressing the interests of children generally to protection from the harmful effects of their wrongful removal or retention, and not the interests of the child before the court. Indeed the Convention clearly states in Article 19 that

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

This is not to say that issues affecting a child's best interests have no place in a Hague adjudication.

[15] Exceptions to the General Principle

The Convention articulates exceptions to the general principle of prompt return, but the exceptions are limited. Thus a court may refuse to order the return of a child where the proceedings have been commenced after the expiration of the period of one year from the date of the wrongful removal, and it is demonstrated that the child is now settled in its new environment (Article 12), or 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 (Article 13). Importantly for the within application, a court may refuse to order the return of the child where "there is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation" (Article 13(b)). Each of these Articles provide an exception to the general rule, and because of their exceptional nature, are to be strictly construed in order to protect the integrity of the Convention itself.

[16] Article 13(b) Standard

The Supreme Court of Canada in the leading case of Thomson v Thomson, [1994] 3 SCR 551, concluded after a review of international jurisprudence that the following was generally accepted interpretation of Article 13(b):

. . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words `or otherwise place the child in an intolerable situation'.

In Rayo Jabbaz v. Rolim Mouammar, the Ontario Court of Appeal stated that "The use of the term 'intolerable' speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured."

A claim under Article 13(b) should not devolve into a custody dispute. Thus, in Hughes v Hughes, 2014 BCCA 196, the British Columbia Court of Appeal stated that

Article 13 is narrow in scope. It sets out grounds upon which the foreign state may refuse to return the child to the requesting state. It does not authorize an "autonomous review" of the merits of the custody dispute… (par. 94)

[17] Interplay with Other International Treaties

I turn now to the question of the interplay of the Hague Convention with other international treaties.

Amicus has submitted a decision from the European Court of Human Rights dealing with the interpretation of Article 13(b) by a Georgian Court, G.S. v. GEORGIA, Application No. 2361, Fourth Section, European Court of Human Rights. I have reviewed that decision, as well as the reasons in the case of X v. Latvia ([GC], no. 27853/09) referred to therein, which is a decision of the Grand Chamber of the European Court of Human Rights. These cases engage Article 13(b) of the Hague Convention, the Convention on the Rights of the Child, and Article 8 of the European Convention on Human Rights.

In the case of X v. Latvia, the Grand Chamber addressed the question of the relationship between the European Convention on Human Rights, the Hague Convention, and the Convention on the Rights of the Child. As in A.M.R.I., a combined and harmonious application of the international instruments, which has regard to the purpose of the instrument, and its impact on the protection of the rights of children and parents, was favoured.

95. The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters …taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of "the best interests of the child"…

The Grand Chamber states that there is a broad consensus internationally in support of the idea that in all decisions concerning children, their best interests must be paramount, and that this philosophy is inherent in the Hague Convention

...which associates this interest with restoration of the status quo by means of a decision ordering the child's immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child's interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)).(par. 97)

The court also emphasized at paragraph 107, that where a claim is advanced under Article 13(b)

Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly …is necessary.

The case of G.S. v Georgia is of interest because it involved similar reasoning by the application court to that in the case at bar. In G.S. v Georgia, the European Court found that the decision-making process under the Hague Convention of the Tbilisi City Court and the Georgian Supreme Court did not meet the procedural and positive requirements inherent in Article 8 of the European Convention on Human Rights. In referring to the court's interpretation of Article 13(b), the tribunal stated that

...the exceptions to return under the Hague Convention must be interpreted strictly (see the Explanatory Report on the Hague Convention...) Thus, the harm referred to in Article 13 § b of the Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of "grave risk" cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear … (par. 56)

[18] Review of Georgian Court Decisions

Having reviewed these principles, I turn to the reasons of the application Court and the Tbilisi Appeal Court.

Reasons of the Tbilisi City Court – The Application Court

The applications court concluded that the child had been wrongfully retained in Georgia, but refused to order the return of the child, as required by Article 12 which states that:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The applicants' claim for return of the child was rejected based on the respondent's claim under Article 13(b) of the Convention.

In its reasons, the application Court states, inter alia, that

...the main goal of the existence of the convention on civil aspects of international child abduction is first of all to provide the safety of the child's interest, living in safe, calm, proper environment and accordingly, when regulating the dispute with the convention this is the outcome which should be achieved.

In presented dispute - the genuine care in the care of the youngster, Mikheil Nikoladze, is to create a healthy and safe environment for him, which is the concern of the parents and the competent authorities of the state.

It is determined there is the tense and conflict relationship between parents, Tatia Kekalia felt unsafe and isolated in Canada. In Georgia the child is in a caring, loving environment. Between the mother and the child there is strong attachment. The child's mother, Tatia Kekelia, feels protected in her homeland and in an environment of her close people.

Based on the explanation [of the father] it is determined that living of the [child] without his mother, taking into consideration his age, is unimaginable and his request aims the return of the child and mother to Canada. It is also considered by the court that [the mother] is not willing to live in Canada."

The return of the youngster, Mikheil Nikoladze, to Canada without his mother contradicts to his preferential interests, since the present development stage of the child is the basis of the establishment of the child's personality, when insufficient time spent with his mother, the person to which the child is the closest to, will be disastrous and affect the formation of the individual's life."

Reasons of the Tbilisi Appeals Court

The father appealed the decision to the Tbilisi Appeal Court. The Appeal court did not interfere with the finding that the child had been illegally retained in Georgia. The only issue was whether the exception under Article 13 (b) applied. The Appeal Court upheld the decision of the application judge as follows:

The court is opposed to the child's return to Canada since, according to the conclusion submitted by the Vake-Saburtalo Social Service Agency of June 3, 2015, and the conclusion of independent psychologist Khatuna Dolidze, it has been determined that frequent transitions will cause stress for [the child] at his critical stage of development, and will pose risks to his psychological well-being. At this time, it is important for the child to remain with his mother. Breaching the connection between mother and child will only lead to negative consequences.

The Plaintiff failed to substantiate his objections and cannot deny the possibility that, by separating by separating his son from the mother, the child's rights and interests will be violated. Furthermore, the Plaintiff failed to prove that the child's return to Canada will protect the interests of the child or the parents.

[19] Assessment of Georgian Court's Interpretation

It is certainly arguable that the Georgian Courts applied an interpretation of the Convention which upends its objectives by applying an unrestricted best interests/custody test as the principal factor in its decision not to order the return of the child. It is also arguable that the Georgian courts applied an incorrect test in applying Article 13(b). If so found, such conclusions could amount, in my view, to a finding that the Georgian Court "evinces a clear misinterpretation of the Convention." (Pitts v. De Silva, 2008 ONCA 9). Such a finding might then open the door for this court to reassert its jurisdiction over the parties' custody/access dispute – a jurisdiction that has been preempted by the Hague application. (Jabbaz v. Mouammar).

[20] Principle of Comity

I am well aware that respect for the principle of comity is essential for the effective operation of the Hague Convention. That principle requires courts in contracting states to accord deference to the lawful judicial decisions of other contracting states: Hughes v Hughes, 2014 BCCA 196.

As the British Columbia Court of Appeal observed

Treaties are not designed to pit jurisdictions against each other, but to facilitate cooperation. (par.88)

I am also struck by the formulation in X v. Latvia, which I repeat here:

The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters …taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of "the best interests of the child"

I appreciate that there must be a "margin of appreciation" afforded to States in matters involving the interpretation of international conventions. This maxim supports a posture of restraint in criticizing foreign judgments. On the other hand, in matters of such consequence as child abduction, the requirement for deference cannot be absolute.

[21] Appropriate Disposition

While it remains possible that the Pitt v Da Silva test is met in the instant case, there is a strong reason to avoid adjudicating that question at this time. The Hague application has concluded, and the Georgian appeal process has been exhausted. Nevertheless, the integrity of the Georgian Court's decision remains before a tribunal having jurisdiction to consider the process, and the decision, and the appropriate remedy if a breach is found. In such circumstances, I agree with Amicus that at this time it is inappropriate for this court to opine on the very issue before that tribunal. Deference to the European Court of Human Rights is also a matter of comity.

Recognizing the complexities of this situation, and desirous of a ruling that will bolster his claim to the European Court of Human Rights, the applicant asks the Court to affirm:

• that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of the Children's Law Reform Act;
• that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody and access orders affecting him;
• that the applicant has rights of custody and access to him; and
• that Mikheil should be returned forthwith to the province of Ontario.

The applicant believes such an order will bolster his case at the European Court of Human Rights. However, I agree with Amicus that the relief sought is in the nature of a declaration. A declaratory order is a judicial statement confirming or denying a legal right of the Applicant. The Courts of Justice Act reserves the power to make binding declarations of right to the Court of Appeal and the Superior Court exclusively (section 97). As a judge of a statutory court I do not have the jurisdiction to make a declaration.

[22] Conclusion

In my view, the most appropriate disposition in this case is to stay the proceedings in the Ontario Court of Justice pending the outcome in the European Court of Human Rights.

Released: April 6, 2018

Signed: Justice M. L. Cohen