



COURT OF APPEAL FOR ONTARIO

CITATION: Unger v. Unger, 2017 ONCA 270

DATE: 20170331

DOCKET: C62497

Feldman, Sharpe, and Roberts JJ.A.

BETWEEN

Jeremy David Unger

Appellant
(Applicant)

and

Victoria Ambre Unger

Respondent

Michael J. Stangarone and Kristy A. Maurina, for the
    appellant

Andrew Feldstein and Nick Slinko, for the respondent

Heard: March 27, 2017

On appeal from the final order of Justice Laura E. Fryer
of the Superior Court of Justice,
dated
    June 27, 2016,
with reasons reported
    at 2016 ONSC 4258.

ENDORSEMENT

[1]

The appellant appeals the dismissal of his application against his
    former spouse, under Articles 3 and 12 of the
Convention on the Civil
    Aspects of International Child Abduction
, 25 October 1980, C.T.S. 1983/35;
    19 I.L.M. 1501 (Hague Convention) and s. 46(5) of the
Childrens Law
    Reform Act
, R.S.O. 1990, c. C.12, for a declaratory order that their child
    is habitually resident in Israel and that she was wrongfully retained by the
    respondent in Canada, and for an order that their child be returned to Israel.

[2]

Article 3 of the Hague Convention states that a removal or retention of
    a child is wrongful where:

a)       it is in breach of rights of custody attributed to a
    person, an institution or any other body, either jointly or alone, under the
    law of the State in which the child was habitually resident immediately before
    the removal or retention; and

b)       at the time of removal or retention those rights were
    actually exercised, either jointly or alone, or would have been so exercised
    but for the removal or retention.

[3]

Article 12 of the Hague Convention requires the mandatory return of the
    child if the removal or retention is determined to be wrongful. Under s. 46(5)
    of the Act, an application may be made to a court in pursuance of such a
    return.

[4]

There are limited defences to the operation of Articles 3 and 12. For
    instance, where the habitual residence of the child has changed, a defence
    against an application for his or her mandatory return to the former habitual
    residence will be available. Further, Article 13(a) of the Hague Convention provides
    that the mandatory return of the child is not required where the person having
    the care of the child had consented to or subsequently acquiesced in the
    removal or retention of the child.

[5]

From February 2014 to August 2015, the appellant and the respondent
    lived in Israel with their daughter. In August 2015, they travelled to Toronto,
    Ontario to visit the respondents parents and to allow the respondent to seek
    medical treatment for various, serious medical issues. At the end of three
    months, the appellant returned to Israel; the respondent and their daughter
    remained in Toronto.

[6]

The application judge found that while the parties were in Toronto, they
    mutually agreed to change their habitual residence from Israel to Ontario, but
    that the appellant later changed his mind and decided to remain in Israel, and
    wanted the respondent and their daughter to return to Israel as well. The
    application judge also determined that the appellant had acquiesced in the
    respondent and their daughter remaining in Ontario. As a result, the
    application judge determined that she was not bound to order the return of the
    daughter to Israel.

[7]

The application judges determinations that the daughters habitual
    residence is Ontario and that the appellant had consented to or acquiesced in
    Ontario as the daughters habitual residence are factual findings that are
    subject to considerable deference on appeal:
Baggot v. Balev
, 2016
    ONCA 680, [2016] 405 D.L.R. (4th) 98, at para. 53;
I. (A.M.R.) v. R. (K.E.)
,
    2011 ONCA 417, [2011] 106 O.R. (3d) 1, at para. 88.

[8]

The appellant submits that the application judge made palpable and
    overriding errors in her consideration of the evidence and findings of fact
    with the result that she erred in determining that the appellant had consented
    to or acquiesced in Ontario as the habitual residence of his daughter.

[9]

We disagree.

[10]

The application judge carefully and thoroughly reviewed the evidence
    presented by the parties. Her findings that the appellant had consented to or acquiesced
    in Ontario as his daughters habitual residence were open to her on the record.
    In particular, the application judge looked to the appellants own conduct and
    communications with the respondent and others to support her findings. For
    example, in a text message exchange with the respondents sister on November
    17, 2015, after his return to Israel, the appellant wrote that he was [t]rying
    to get everything in order, and cope with leaving and that the plan is to be
    in Toronto until further noticewhich basically means forever.  In later
    texts to the respondent in December 2015, the appellant advised that he would
    come to Toronto from time to time to visit, asked her to find him a place in
    Toronto where he could stay, and forwarded employment training opportunities
    for the respondent in Toronto.

[11]

The appellants main complaint is that the application judge should have
    weighed the evidence differently and in his favour. This is an entirely
    fact-driven appeal and the appellant asks this court to reassess the evidence
    on the application. That is not our task. Appellate review of a decision under
    the Hague Convention is not a hearing de novo or an invitation to re-litigate
    the matters determined on the application:
I. (A.M.R.)
, at para. 88.

[12]

We see no error in the application judges dismissal of the appellants application.
    There is no basis to interfere.

[13]

Accordingly, the appeal is dismissed.

[14]

The parties agreed that, as the successful party on appeal, the
    respondent is entitled to costs in the amount of $10,000, inclusive of
    disbursements and taxes. Given the relative modest means of the appellant, we
    order that the appellant shall have six months to pay the costs awarded to the
    respondent.

K. Feldman J.A.

Robert J. Sharpe
    J.A.

L.B. Roberts
    J.A.


