





CITATION:
Issasi
v. Rosenzweig, 2011 ONCA 302



DATE: 20110418



DOCKET: C52822



COURT OF APPEAL FOR ONTARIO



Cronk, Gillese and MacFarland JJ.A.



BETWEEN



Amparo Marlen Rodriguez Issasi



Applicant (Respondent on Appeal)



and



Kenneth Espinal Rosenzweig



Respondent (Appellant on Appeal)



Jeffery Wilson and Chelsea Hooper, for the respondent (appellant
          on appeal)



Philip M.
          Epstein Q.C., Aaron M. Franks, Daniella Wald and Michael Zalev, for the applicant
          (respondent on appeal)



Lucy McSweeney,
          Katherine Kavassalis and Caterina E. Tempesta, for the Office of the
          Childrens Lawyer



Urszula Kaczmarczyk and Jocelyn Espejo Clarke, for the
          Attorney General of Canada



Sean Hanley, for the Attorney General of Ontario



Angus Grant, for the intervener, Canadian Council for Refugees



Lorne Waldman, for the intervener, the United Nations High
          Commissioner for Refugees



Jacqueline Swaisland, for the intervener, the Canadian Civil
          Liberties Association



Heard:  April 12 and 13,
          2011



On appeal from the order of Justice
          George Czutrin of the Superior Court of Justice, dated September 21, 2010.



BY THE COURT:

[1]

By order dated September 21, 2010 (the Order), Josette
    Rosenzweig Issasi was found to be wrongfully retained in Ontario and ordered to
    be returned to Mexico, pursuant to the
Hague
    Convention on the Civil Aspects of International Child Abduction (Hague
    Convention)
.  The
Hague Convention
application was brought
    by Josettes mother.

[2]

At the time the Order was made, Josette was 13 years
    old.  She had been living in Toronto, Ontario
    for approximately 21 months, during which she had made a claim for refugee
    protection by reason of abuse by her mother.  She was found to be a Convention Refugee by the Immigration and Refugee
    Board of Canada, Refugee Protection Division, on April 27, 2010.

[3]

Josette was taken back to Mexico on October 15, 2010.

[4]

Her father appeals the Order.  Because of the international and human rights aspects of this appeal,
    many others have participated, as parties or interveners.

[5]

The human dimensions of this appeal make its resolution
    urgent.  The legal complexities demand
    otherwise.  In the result, we have decided
    to release our decision, with only the briefest of reasons, at this time.  Full reasons for judgment that address the
    many difficult legal issues that have been raised will follow.

THE QUESTION

[6]

The ultimate question that must be resolved on appeal
    can be simply stated: did the motion judge err in ordering that Josette be
    returned to Mexico?

THE ANSWER

[7]

Yes.

[8]

The short reason for arriving at this answer is as
    follows.  In our view, there is no
    conflict between s. 46 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12

(
Hague Convention)
and s. 115 of the
Immigration and Refugee Protection Act
,
    S.C. 2001,
c
. 27.  Properly interpreted, harmonious effect can be given to both.

[9]

In applying the
Hague
    Convention,
the family court must conduct an appropriate risk assessment
    regarding the return of a child who has been found to be a refugee.  As we will explain in the reasons that will
    be subsequently provided, no meaningful risk assessment was or could have been
    undertaken in the circumstances of this case at the time the motion was
    heard.   As a result, the Order cannot
    stand; this court stands in the shoes of the motion judge.

[10]

While the record before this court is much more extensive than
    that which was before the motion judge, in our view, the risk assessment cannot
    be done without
viva voce
evidence.  Consequently, a new hearing must be
    conducted.

RELIEF

[11]

Accordingly, we would allow the appeal, set aside the Order,
    and direct that a new
Hague Convention
hearing be undertaken.  The parties have
    attorned to this courts jurisdiction.  We therefore direct the parties to do everything within their power to
    co-operate and facilitate Josettes return to Ontario to participate in the new
    hearing.

[12]

We recognize that this leaves open the question of the care
    and supervision of Josette if she is returned to Ontario before the new
Hague Convention
hearing can be
    convened.  We also recognize that there
    are uncertainties at present regarding those steps necessary to
effect
Josettes return to Ontario.  If necessary, the issue of Josettes care and
    supervision pending the determination of the new
Hague Convention
hearing shall be left to the discretion of the
    Office of the Childrens Lawyer, in consultation with the appellant, the
    respondent, and those of the other parties as may be advisable.

[13]

For the sake of clarity and to ensure that there is no
    misunderstanding, we advise that additional relief and directions regarding the
    new hearing may be ordered when our full reasons for decision are released.

RELEASED:

APR 18 2011                                             E.A.
    Cronk J.A.

EAC                                                            E.E.
    Gillese J.A.

J.
    MacFarland J.A.


