



COURT OF APPEAL FOR ONTARIO

CITATION: Gourgy v. Gourgy, 2018 ONCA 166

DATE: 20180216

DOCKET: C64395 & C64396

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Christine Gourgy

Applicant (Appellant)

and

Amir Gourgy

Respondent (Respondent in Appeal)

AND BETWEEN

Amir
    Gourgy

Applicant (Respondent in Appeal

and

Christine
    Gourgy

Respondent (Appellant)

Shawn Philbert, for the appellant

Sarah Boulby and Kenneth Fishman, for the for the respondent

Heard and released orally: February 15, 2018

On appeal from the order of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated September 13, 2017.

REASONS FOR DECISION

[1]

This appeal concerns two related applications brought by the
    father of a six year old boy. The father sought his return to Texas pursuant to
    the
Hague Convention
and also
    sought to dismiss the mothers Ontario divorce application for lack of
    jurisdiction. Both applications were allowed and the mother appeals.

[2]

The parties moved to the
    United States in 2012, first to California and then to Texas. The mother came
    back to Ontario from time to time with the fathers consent. On October 30,
    2016, she came to Ontario with the child in order to visit her family and to
    work the necessary 15 days so that she could keep her status as a teacher in
    Ontario. She did not return. In November, she sent the father a text that she
    had filed for divorce. The applications appealed from followed.

[3]

The
Hague
    Convention
requires that a child
    wrongfully removed or retained by a parent shall be promptly returned to the
    habitual residence unless the other parent has acquiesced in the removal
    pursuant to art. 13(a) or the return will place the child in an intolerable situation
    pursuant to art. 13(b).

[4]

The mother submits that
    the application judge articulated the correct test, but erred in law with
    respect to his findings on habitual residence, acquiescence and an intolerable situation
    for the child.

[5]

With respect to habitual
    residence, the mother submits that the application judge erred when he stated
    that there was no minimum amount of time necessary to establish habitual
    residence. In that regard she relies on conflicting lower court decisions on
    this point. She also alleges that the child could not be returned to Texas
    because the father had no custody right in Texas having moved there only six
    weeks earlier from California.

[6]

We do not agree.

[7]

The question of habitual
    residence is one of fact. It is the location where the parents demonstrated a settled
    intention to reside. The application judge considered the parents move to the
    United States, the subsequent move to Texas; the fact that they obtained
    principal residence status; applied for US social security; bought a house and
    enrolled the child in school. On this basis it was open to him to find that the
    parents had a settled intention to reside in the United States.

[8]

With respect to
    acquiescence, the appellant submits that the application judge erred in law by
    failing to convene an oral hearing and by failing to draw an adverse inference
    from the fathers failure to file affidavits from people he says he spoke to
    about the appellants return.

[9]

Again, we disagree. The
    burden is on the parent alleging acquiescence by the other to establish clear
    and cogent evidence of an unequivocal consent or acquiescence. The application
    judge reviewed the evidence and concluded that the appellant had not met this
    burden. Her submission that the application judge should have convened an oral
    hearing is ill-founded. There was no such request by the parties and it runs
    contrary to the objectives of the
Hague Convention
which contemplate a speedy process leading to a
    prompt return. An adverse inference involves the exercise of discretion which
    is afforded deference.

[10]

With respect to
    intolerable situation, the appellant submits that the application judge erred
    in concluding that the evidence on this point was conflicting. Here too, we
    disagree. The burden was on the appellant to establish an intolerable situation
    and the application judges conclusion that the high burden had not been met is
    also entitled to deference. In fact, we agree with his conclusions on the
    evidence before him and further find that the fresh evidence sought to be
    admitted does not establish an intolerable situation. Although the
Palmer
test for fresh evidence is liberally
    applied where children are concerned, here the fresh evidence, even if
    believed, could not have affected the result.

[11]

The application judges
    conclusion with respect to habitual residence informed his conclusion on
    jurisdiction and we see no error in that regard.

[12]

For these reasons we
    dismiss the appeal with costs fixed at $15,000 inclusive of disbursements and
    HST.

Robert J. Sharpe J.A.

David Watt J.A.

M.L. Benotto J.A.


