



COURT OF APPEAL FOR ONTARIO

CITATION: Hammerschmidt v. Hammerschmidt, 2013
    ONCA 227

DATE: 20130410

DOCKET: C56723

Blair, Juriansz and Tulloch JJ.A.

BETWEEN

Alon Hammerschmidt

Applicant (Respondent in Appeal)

and

Faiga Sara Hammerschmidt (Cole)

Respondent (Appellant in Appeal)

Kenneth A. Cole and Allison M Kotler, for the appellant

Jeffery Wilson and Chelsea Hooper for the respondent

Heard and released orally: April 8, 2013

On appeal from the order of Justice Emile R. Kruzick of
    the Superior Court of Justice, dated March 1, 2013.

ENDORSEMENT

[1]

The appellant mother seeks to set aside the order of Kruzick J. dated
    March 1, 2013, directing the return of the appellants and respondents child
    to Australia, subject to certain conditions protecting the appellant and the
    child, pursuant to the Hague Convention.

[2]

The application judge found that the child was habitually resident in
    Australia at the time she was returned with the appellant to Ontario, on the
    basis that the parties had formed a settled intention to move to and live in
    Australia for an appreciable period of time: see
Korutowska-Wooff v.
    Wooff
, [2004] O.J. No. 3256 (C.A.) and
Chan v. Chow
2001
    CarswellBCCA 276, at paras. 31-33. He also rejected the argument that returning
    the child to Australia would pose a grave risk of harm to her.

[3]

We see no basis to interfere with these findings.

[4]

In a robust and skilful argument on behalf of the mother, Mr. Cole
    submits that the application judges finding of habitual residence was
    unreasonable and failed to give effect to the many objective factors
    favouring a finding of habitual residence in Ontario. In addition, he points to
    two pieces of evidence that he says the application judge failed to consider,
    namely, the evidence of one deponent that she had overheard the father say to
    the mother that he was willing to give going to Australia a try, and evidence
    that the parties had left some of their furniture in Ontario with the appellants
    parents (in addition, they had sent a container full of their furniture to
    Australia by ship).

[5]

An appeal to this court in a Hague Convention is not a rehearing or a
    trial
de novo
review of the evidence, and the application judges
    findings are entitled to considerable deference. They will not be interfered
    with  notwithstanding the hearing is based on affidavit, not
viva voce,
evidence  unless they are unreasonable in the sense that they amount to
    palpable and overriding error or manifest error or clear error: see
Korutowska-Wooff
    v. Wooff, supra,
and
Equity Waste Management of Canada v. Halton Hills
,
    [1997] O.J. No. .3921 (C.A.) at para. 45.

[6]

We see no such error here. The application judge realized this was a
    difficult and close case and approached it accordingly. While there was
    evidence supporting the appellants position, there was also evidence
    supporting the finding of habitual residence in Australia. What weight is to be
    given to the evidence is for the application judge to determine, subject to the
    foregoing criteria and error in law.

[7]

The application judge need not comment on every piece of evidence. The
    two omissions identified by the appellant do not undermine the application
    judges analysis or conclusion, in our view.

[8]

Nor would we interfere with the application judges finding that
    returning the child to Australia would not pose a grave risk that [her] return
    would expose the child to physical or psychological harm or otherwise place the
    child in an intolerable situation as contemplated by s. 13(b) of the Hague
    Convention and the jurisprudence relating to it.

[9]

We see no material difference between the way in which the application
    judge articulated the test and the test as set out in such cases as
Thompson
    v. Thompson
, [1994] 3 S.C.R. 551. The threshold is very high. It was open
    to the application judge to conclude on the record, as he did, that the test
    had not been met.

[10]

Accordingly,
    the appeal is dismissed. Costs to the respondent, as agreed, in the amount of
    $12,500 inclusive of disbursements and HST.

R.A. Blair J.A.

R.G. Juriansz J.A.

M.H. Tulloch J.A.


