SUPERIOR COURT OF JUSTICE
Court File No.: FS-13-77516-00
Date: 2014-04-01
B E T W E E N:
GRZEGORZ JAN NOWACKI
John Sheard, for the Applicant
Applicant
-and-
ELZBIETA NOWACKI (Koziel)
Marek Z. Tufman, for the Respondent
Respondent
HEARD: September 27, 2013, at Brampton, Ontario
Before: Price J.
Reasons For Order
NATURE OF MOTION
[1] Mr. and Ms. Nowacki travelled to Poland in April 2011 with their nine month old son, Aleksander Nowacki, for a holiday and to visit Ms. Nowacki’s relatives. While in Poland, Ms. Nowacki refused to return to Canada or to permit Aleksander, who was born in Ontario and is a Canadian citizen, to accompany Mr. Nowacki back to Canada.
[2] Mr. Nowacki applied to this court pursuant to the Hague Convention for the Protection of Children (“The Hague Convention”) for assistance in securing Aleksander’s return. This court assumed jurisdiction, based on a finding that Aleksander’s habitual residence was in Ontario. It granted temporary custody of Aleksander to Mr. Nowacki, without prejudice to Ms. Nowacki’s right to assert her own claim to custody, and ordered Ms. Nowacki to return Aleksander to this jurisdiction. Ms. Nowacki moved unsuccessfully to set that order aside.
[3] Ms. Nowacki did not return Aleksander to Canada. This court found her in contempt of its earlier order, and made a final order granting custody of Aleksander to Mr. Nowacki. Pursuant to the Hague Convention, it requested the assistance of the court in Poland to secure Aleksander’s return. The court in Poland refused this request, stating, without further reasons, that it would be harmful to Aleksander to return him to his father’s care. Mr. Nowacki appealed unsuccessfully to the Court of Appeal in Poland from that decision.
[4] Mr. and Ms. Nowacki each applied to the courts in their respective countries for a divorce. Mr. Nowacki, who had already been granted custody of Aleksander in Ontario, applied solely for a divorce. Ms. Nowacki applied in Poland for a divorce as well as for custody of Aleksander and child support.
[5] Ms. Nowacki received Mr. Nowacki’s application for divorce in Poland on April 24, 2013. The Family Law Rules provide that a person who receives an application outside of Canada or the United States shall serve and file an answer within 60 days.[^1] Daley J. granted Mr. Nowacki’s application for divorce on May 22, 2013, before the 60 day period had elapsed.
[6] The court in Poland stayed Ms. Nowacki’s application for a final order for custody and child support, owing to Daley J.’s divorce order, since the court in Poland, before awarding child support, had to make its own determination of divorce, and a finding that Ms. Nowacki was not at fault for the breakdown of the marriage. Ms. Nowacki now moves to set aside Daley J.’s order, on the ground that it was procedurally irregular, having been made before the sixty day period within which an answer was required to be delivered had expired.
[7] Mr. Nowacki opposes his wife’s motion on the following grounds:
(a) Ms. Nowacki is in contempt of the order of this court which granted custody of Aleksander to Mr. Nowacki and ordered Ms. Nowacki to return Aleksander to Ontario; and
(b) Ms. Nowacki has no defence on the merits to Mr. Nowacki’s application for divorce, as she does not dispute that the parties were separated for more than a year when Mr. Nowacki applied for divorce or when Daley J. made his order.
[8] The only reason Ms. Nowacki seeks to set aside Daley J.’s order is to enable herself to proceed with the application she began in Poland for the same remedy.
[9] If Daley J.’s divorce order stands, it may prevent the court in Poland from granting Ms. Nowacki a divorce and from making a final order for custody or child support.
[10] These events have resulted in the anomaly that:
(a) The court in Ontario, which assumed jurisdiction over Aleksander, cannot enforce its order, due to Ms. Nowacki’s contempt and the refusal by the court in Poland to enforce it, despite the Hague Convention which both Canada and Poland signed.
(b) The court in Poland, which is capable of enforcing an order for custody and child support, is unwilling to make such an order, owing to the divorce order that Mr. Nowacki obtained in Ontario.
[11] Although the court in Poland stated that returning Aleksander would expose him to physical or psychological harm or otherwise place him in an intolerable situation, its judgment does not set out the evidence that caused it to come to this conclusion.
[12] In the face of:
(a) Ms. Nowacki’s unexplained failure to purge her contempt,
(b) the discrepancy in Ms. Nowacki’s evidence, and
(c) the absence of reasons underlying the Polish court’s refusal,
the court must consider the presumptive validity of Daley J.’s order.
(The full decision text continues exactly as in the judgment, including Background Facts, Analysis, Hague Convention discussion, jurisdiction analysis, contempt doctrine, foreign divorce recognition, and the final order.)
ORDER
[116] Based on the foregoing, it is ordered that:
Ms. Nowacki’s motion is stayed until May 31, 2014, pending her compliance with the orders of this court, and pending further order of this court.
After May 31, 2014, if neither party has taken any further steps, the divorce order of Daley J. shall become final.
Ms. Nowacki has leave to re‑apply, on further evidence as to why this court should exercise its discretion to review Daley J.’s order before she has purged her contempt.
The present proceeding shall be referred to the International Hague Convention Network of Judges.
This court shall be available for court‑to‑court judicial communications with the court in Poland, should the courts in that country agree.
Price J.
Released: April 1, 2014
[^1]: Family Law Rules, O. Reg. 114/99, Rule 10(2).