



COURT OF APPEAL FOR ONTARIO

CITATION: H.E. v. M.M., 2015 ONCA 244

DATE: 20150410

DOCKET: M44808 & M44870 (C59991)

Weiler J.A. (In Chambers)

BETWEEN

H.E.

Applicant (Appellant in Appeal)

and

M.M.

Respondent (Respondent in Appeal)

Amy A. Green, for the applicant

Rick Peticca, for the respondent

Heard: April 7, 2015

ENDORSEMENT

[1]

This is a motion to stay an order that the mother forthwith return the
    two children of the marriage to Egypt pending her appeal and a cross-motion by
    the father for security for costs. In such cases, the best interests of the
    child must prevail and must be the paramount consideration:
Thomson v.
    Thomson
(1994) 3 S.C.R. 551 at para. 40. It follows that the criteria on a
    stay application must be assessed from the point of view of the best interests
    of the child.

[2]

The test for staying an order
    pending appeal under r. 63.02 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 as amended, is the same as the
    test for an interlocutory injunction established by the Supreme Court of Canada
    in
RJR-Macdonald Inc. v. Canada (Attorney General)
,
[1994] 1 S.C.R. 311
, at p. 334. The test requires the court to consider the following three
    factors:

(1)     a preliminary assessment must be made of the
    merits of the case to ensure that there is a serious question to be tried;

(2)     it must be determined whether the applicant
    would suffer irreparable harm if the application were refused; and

(3)     an assessment must be made as to which of the
    parties would suffer greater harm from the granting or refusal of the remedy
    pending a decision on the merits.

[3]

These three factors are not
    watertight compartments: the strength of one may compensate for the weakness of
    another. The overarching consideration is whether the interests of justice call
    for a stay:
International Corona Resources Ltd. v. LAC Minerals Ltd.
(1986), 21 C.P.C. (2d) 252 (Ont. C.A.); see also
Longley
    v. Canada (Attorney General)
,
2007
    ONCA 149
, 223 O.A.C. 102 (Weiler J.A., in
    chambers), at paras. 14-15;
BTR Global
, at para. 16.

[4]

Ms. H.E., the applicant mother, has satisfied me that the test for a
    stay has been met. There is a serious question to be tried as to whether the
    court erred in declining to accept jurisdiction and decide her claim for
    custody in Ontario having regard to the evidence that the father was not
    actually exercising custody rights at the time the mother unilaterally removed
    the two girls to Ontario in June, 2012. Article 13 of the
Hague Convention on the Civil Aspects of International
    Child Abduction, 1980,
Can. T.S. 1983
    No. 35,
states that the child need not be returned under the Convention when
    the parent opposing her return establishes that:

the person, institution or other body having the care of the
    child was not actually exercising the custody rights at the time of removal or
    retention

[5]

The father is the guardian of the children under Egyptian law. There is
    no court order granting the father access although there is an order granting
    supervised access to the childrens paternal grandparents who live in Egypt.
    The father, who was working in Saudi Arabia, exercised de facto access at times
    with the paternal grandfather. The issue of the fathers standing in these
    proceedings was not raised at trial.

[6]

Among the several errors of fact alleged in the trial judges decision
    is his finding in paragraph 38 of his reasons that, prior to the mother
    unilaterally removing the children to Canada, access was frequently obstructed
    by Ms. H.E. and her parents to the childrens paternal grandfather who had
    been granted regular, weekly visitation/access rights to the children at a
    sports club in Cairo.

[7]

This finding ignores the certificate from the sporting club filed as
    part of the proceedings in court which indicates that, although the mother or
    her parents presented themselves with the children for access to be exercised,
    in many instances going over periods of months no one attended in order to
    exercise access.

[8]

The trial judges finding that the mother frustrated access in Egypt was
    material to the trial judges conclusion that the children be returned to Egypt
    where the father and the paternal grandfather have started custody proceedings.

[9]

There is a serious question to be tried as to whether Article 13 of the Hague
    Convention applies; that is whether, although the father had guardianship, he
    was not exercising custody rights at the time of the mothers removal of the
    child.

[10]

The
    mother acknowledges that the court order she obtained in Egypt was granted on
    the basis of fraudulent representations. I note, however, that the father made
    no attempt to set aside that order prior to the mother leaving with the
    children although the father was well aware of it.

[11]

On
    the issue of irreparable harm for which compensation cannot be made by the
    award of costs, the mother has always been the primary caregiver of the two
    children, born October 29, 2005 and December 7, 2006. Both parties are anxious
    to have the appeal heard and have agreed that it be heard in August or
    September depending on counsels availability. If the children were to be
    removed to Egypt now, they would lose the balance of their school year in
    Ontario. This would be prejudicial to them and is not in their best interests.

[12]

With
    respect to balance of convenience, I observe that on this motion the court was
    not presented with any actual plan of care respecting who would be physically
    caring for the children in the event the order was not stayed and the children
    returned to Egypt. In
Thomson
,

at para. 138,

the court
    held that reasonable transition terms or a plan of care for the childs
    transfer and care needs pending further direction from the court in the country
    to which the child is removed are valuable and show the regard of the parent seeking
    the return of the child for the welfare of the child.

[13]

As
    well, an appeal date for the appeal to be heard is available in August or
    September. The balance of convenience favours the granting of the stay pending
    the appeal and I so order.

[14]

As
    a condition of granting the stay, however, I order that the mother is not to
    remove the children from Ontario and that the Canadian and Egyptian passports
    and any travel documents respecting the children be deposited with counsel for
    the mother. This includes any passports that replace existing ones that expire.
    In the event that the mother discharges her present counsel, present counsel
    shall retain the passports until further court order and they shall not be
    returned with the mothers file.

[15]

I
    canvassed with counsel for the father whether his client wished to exercise access
    pending the hearing of this appeal. Although requesting the address of the
    mothers residence and cell phone number as part of the relief requested,
    counsel was unable to tell me whether his client wished to exercise access or
    not because he does not wish to be seen as attorning to the jurisdiction of
    the court. The mother opposes access that is not supervised access. In the
    circumstances, I make no order as to access.

[16]

The
    fathers motion is for security for costs of this appeal. The mother is engaged
    in an Ontario Works program and she lives in assisted housing. Her legal
    representation is currently funded by legal aid. By granting the stay
    application I have implicitly found that the application is not frivolous and
    vexatious.

[17]

Counsel
    for the father also submits that an order for security for costs could be made
    under rule 56.01. He submits that the mother has another proceeding for the
    same relief pending elsewhere, namely, Egypt. Although counsel submitted that
    the issues in Egypt and Ontario were the same, there is no evidence in the
    record indicating that the relief claimed in the Egyptian proceeding is the
    same as the proceedings here. Thus, I decline to find that r. 56.01(b)
    applies. On the question of outstanding costs orders, the $38,000 in costs that
    the mother was ordered to pay from a prior motion was ordered to be paid at the
    end of the litigation. The litigation has not ended. Nor have the costs of
    trial been assessed. Thus, r. 56.01(c) has no application either.

[18]

Finally,
    there is the question of whether for other good reason security for costs
    should be ordered under r. 61.06(c). While it was put to me that the mothers
    fraud in obtaining her Egyptian custody order warranted an order for security
    for costs in these proceedings, as I have indicated, it appears to me that the
    father made no attempt to set aside that order prior to the mother leaving with
    the children although the father was well aware of it. In the circumstances,
    this is not a good reason to order security for costs.

[19]

The
    motion for security for costs is dismissed.

[20]

On
    consent I order that the appeal be expedited to the first available date in
    August save and excepting the last week of August, or that it be heard in
    September. I leave it to counsel to work out the timelines and to file their
    material accordingly. Obviously it would be in the best interests of the
    children for the appeal to be heard expeditiously, particularly given the start
    of the school year in September.

[21]

The
    costs of these motions are reserved to the panel hearing the appeal.

K.M. Weiler J.A.


