





CITATION: Ireland v. Ireland, 2011 ONCA 623



DATE: 20111003



DOCKET: M40112,

M40133
(C53656)



COURT OF APPEAL FOR ONTARIO



Juriansz J.A. (In Chambers)



BETWEEN



Laticia Savannah Ireland



Applicant (Appellant in Appeal)



and



Gavin Paul Ireland



Respondent (Respondent in Appeal)



Robert
          Shawyer, for the applicant



Arnold
          Schwartz and Rachel Eynon, for the respondent

M. Pilch, for
          the Childrens Aid Society of Toronto and the Childrens Aid Society of
          Durham

N. Leeque, for
          the Attorney General of Ontario



Heard: September 8, 2011



On motions for the production of documents and for security of
          costs in an appeal from the order of Justice Jane Ferguson of the Superior
          Court of Justice dated April 7, 2011.



Juriansz J.A. (In Chambers):

[1]

This case involves resistance to the enforcement of a foreign custody
    order.  By judgment dated January 13, 2011, the Superior Court of Fulton County in the State of Georgia, USA (the Georgia court) granted sole legal and
    physical custody of the parties children to the respondent father. By order
    dated April 7, 2011, Ferguson J. of the Ontario Superior Court of Justice
    recognized and enforced the judgment of the Georgia court and the children, who
    were here in Ontario with the mother, have been returned to the fathers
    custody in Georgia. The applicant mother has appealed the decision of Ferguson
    J., seeking an order setting it aside and requiring that the respondent father
    return the children to the custody of the mother in Ontario.

[2]

The mother has brought a motion seeking an order compelling a number of
    third-party organizations in Ontario and Georgia to produce documents in their
    possession for the purpose of the appeal. The father opposes that motion and
    has brought a cross motion seeking security for costs. Counsel for the Childrens
    Aid Society of Toronto and the Childrens Aid Society of Durham and for the
    Attorney General of Ontario appeared on the mothers motion but took no
    position, other than to explain their clients would not produce the documents
    unless ordered to by the court. I would dismiss the mothers motion for
    production of documents and grant the fathers motion for security for costs of
    the appeal.

Background

[3]

The parties met in Ontario and married on May 26, 2001. They had two
    sons born in Ontario on July 29, 1999 and July 17, 2001. In July 2007, the
    family moved to Georgia. The parties separated sometime between June and August
    2009. The mother alleged that the father had physically abused her and the
    children, and that the paternal grandmother had sexually abused the children.

[4]

The Georgia court granted the mother an
ex parte
protective
    order, and then on September 11, 2009, the court issued a consent 12 month
    family violence protective order. The court found that acts of family violence
    did occur. The Georgia court awarded the mother temporary custody of the
    children, temporary child and spousal support, and restrained the father from
    any contact with the mother except as specified by the order. The consent order
    provided for supervised visitation by the father. The court noted that the
    parties had consented to the order by affixing their signatures to it.

[5]

After the mothers protective proceeding was consolidated with her
    petition for divorce, the Georgia court, on February 17, 2010, awarded
    temporary joint legal custody to the parties and physical custody to the
    mother. In its reasons, the Georgia court found that the minor children had
    witnessed domestic violence by the father while the parties were together, but
    found the mothers allegations of improper conduct toward the children by the paternal
    grandmother to be not credible. The Georgia court found there was no reason to
    deny the father access to his children and continued the fathers supervised
    visitation. The Georgia court also ordered temporary child and spousal support
    and stipulated that neither party remove the children from their school or from
    the jurisdiction of the Georgia court. At the same time, the court denied the
    mothers emergency motion to terminate the fathers visitation. The court found
    the mother in wilful contempt of the Courts Order in failing to make the
    children available to Father for his visitation, and added that the mothers manner
    of litigating the case has not resolved any issues but has unnecessarily
    expanded the proceedings such that the Courts ruling as to attorneys fees is
    reserved.

[6]

Claiming immigration problems, the mother left Georgia and returned with
    the children to Ontario in October 2010. She enrolled the children in school in
    Durham. She filed a complaint against the father with the Durham police
    regarding assaults alleged to have occurred between January 1999 and August
    2009. The police laid charges against the father.

[7]

Upon arriving in Ontario, the mother commenced proceedings in the Family
    Branch of the Superior Court of Justice in Oshawa, Ontario seeking custody of
    the children. In the affidavit supporting her application, she alleged that the
    father abused her verbally and physically, and that much of it was witnessed by
    the children. The mother withdrew her application after Scott J. issued an
    endorsement on October 21, 2010 that states, I have reviewed these pleadings.
    I do not see that the children are habitually resident here. A court action
    exists and is ongoing in the State of Georgia; in my view that is the Court
    with jurisdiction to deal with this matter. No order made here.

Custody Order in the State of Georgia

[8]

The mothers petition for divorce was heard in a final trial in the Georgia court on December 3, 2010. The mother did not attend but her counsel in Georgia did. In her decision issued January 13, 2011, Tuscan J. indicated that the Georgia court had made considerable effortto accommodate [the mothers] unexcused absence and although
    the court arranged to allow her to participate via Skype, she failed to locate
    a computer anywhere in the Toronto, Canada suburbs to access Skype. Tuscan J. issued
    a Final Judgment and Decree after stating that the mother had failed to
    present any evidence to establish that awarding her sole legal and physical custody
    of the children is in the best interest of the children.  Tuscan J. went on to
    award sole custody to the father saying:

Regrettably Petitioners actions have
    deprived the Court of the opportunity to assess her contributions to the
    marriage and child rearing by opting out of the process and secreting away with
    the children. Hiding behind allegations of abuse and destitution, she left her
    counsel to advocate on behalf of an absentee client. Her actions leave the
    Court no option but to award sole custody of the children to the Respondent.

[9]

Tuscan J. added, Hopefully, at some point in the future, Petitioner
    will be prepared to appear before the Court to address a custodial arrangement
    that permits both parents to be involved in the lives of their children.

[10]

The mother has not appealed the order of Tuscan J. and has not
    participated further in the Georgia proceedings.

[11]

By separate order, also dated January 13, 2011, Tuscan J. found the
    mother in wilful contempt for removing the children from the jurisdiction,
    ordered that the mother return to the jurisdiction of the Georgia court with
    the children, and granted the father the courts authorization to utilize any
    legal means to have the children return to his custody in Georgia where he has
    sole physical and legal custody of the children.

Ferguson J.s Decision to Enforce the
    Extra-Provincial Custody Order

[12]

On February 24, 2011, the mother filed an application in the Ontario
    Superior Court of Justice for custody of the children, child support, and a
    restraining order against the father. The mother, relying on ss. 22 and 23 of
    the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12, took the position
    that the children would suffer serious harm if returned to the custody of the
    father because they had allegedly been subject to physical and emotional abuse
    at his hands throughout the parties relationship.

[13]

The father moved to have the order of Tuscan J. of the Georgia court recognized and enforced in Ontario pursuant to s. 41 of the
Childrens Law Reform
    Act
.

[14]

The two motions came before Gilmore J. on March 10, 2011. The mother
    requested an adjournment and applied for a change of venue from Oshawa to Toronto. The mother had not filed any supporting material, and her counsel got
    off the record that morning due to a difference of opinion between him and his
    client. Gilmore J. reluctantly adjourned the matter to March 24, 2011 on strict
    terms. The mother was to serve and file materials by March 18, 2011. Gilmore J.
    noted that the mother confirm[ed] that the Court having jurisdiction to hear
    this matter is the Superior Court of Justice, Family Branch at Oshawa, and
    ordered that the mother not bring any further motion to change venue. Gilmore
    J. stipulated that the matter was peremptory on the mother on the next return
    date. Finally, Gilmore J. observed that the mother has not dealt with this
    matter expeditiously and her motivation is in question given the outstanding
    Georgia Orders.

[15]

On March 24, 2011, the mother had failed to retain counsel and Ferguson
    J. of the Ontario Superior Court granted the mother a further adjournment until
    April 7, 2011. Ferguson J. emphasized that the matter would proceed on April 7.

[16]

On March 29, 2011, the mother re-filed her motion to change the venue of
    the hearing from Oshawa to Toronto. On April 3, the father responded by moving
    for an order finding the mother in contempt of Gilmore J.s March 10 order.

[17]

The mother retained counsel who, on March 31, wrote to the fathers
    lawyer seeking consent to an adjournment to mid May 2011. The fathers lawyer
    refused to consent.

[18]

All motions came on before Ferguson J. on April 7, 2011. Counsel for the
    mother requested an adjournment to mid May so she could properly prepare for
    the motion. Ferguson J. refused to adjourn the main motions, but adjourned the
    fathers contempt motion.

[19]

Counsel for the mother then applied to have her client give
viva voce
evidence. Ferguson J. adjourned until after the lunch hour so that the parties
    could consider their positions and make submissions on that application. Upon
    recommencing, counsel for the mother, without a proper affidavit and notice,
    again asked for an adjournment on the basis of newly learned information that
    the Durham Childrens Aid Society (DCAS) and Toronto Childrens Aid Society
    (TCAS) were involved in the matter. Ferguson J., querying how this could be
    last minute information, refused this second adjournment request. Ferguson J.
    also refused the application to provide
viva voce
evidence.

[20]

The motions proceeded and Ferguson J. recognized and enforced the Georgia courts orders. She ordered the mother to surrender the children to the father. The
    mother did not immediately comply.

[21]

On April 13, 2011, the children were reunited with their father.  They
    are now registered and attending school in Georgia.

[22]

The mother appeals Ferguson J.s enforcement of the Georgia order and,
    among other things, her decisions not to grant the adjournments and not to
    allow the mother to present
viva voce
evidence.

The Mothers Motion

[23]

Before me, the mother, who is now represented by different counsel,
    seeks an order compelling the following organizations to provide her with copies
    of all documents relating to her, the father, or the children:

·

The Childrens Aid Society of Toronto

·

Durham Childrens Aid Society

·

Owen Public School in Toronto

·

Durham Regional Police

·

Sandtown Middle School, Atlanta, Georgia, U.S.A.

·

Philip Randolph Elementary School, Atlanta, Georgia, U.S.A.

·

Georgia Division of Family and Children Services.

[24]

Counsel for the mother submits that I have jurisdiction to make the order
    under Rule 20(5) of the
Family Law Rules
, O. Reg. 114/99. That Rule
    provides:

The court may, on motion, order that a
    person (whether a party or not) be questioned by a party or disclose
    information by affidavit or by another method about any issue in the case, if
    the following conditions are met:

1. It would be unfair to the party who
    wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily
    available by any other method.

3. The questioning or disclosure will
    not cause unacceptable delay or undue expense.

[25]

The
Family Law Rules
do not directly apply to this court. Rule
    1(2) provides that the Rules apply to family law cases in the Family Court of
    the Superior Court of Justice, the Superior Court of Justice, and the Ontario Court
    of Justice. However, s. 134(1) of the
Courts of Justice Act
, R.S.O., c.
    C.43, provides:

Unless
    otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by
    the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[26]

By virtue of this section, I conclude that this court has jurisdiction
    to grant the requested order under Rule 20(5).

[27]

The mother bears the onus of establishing all three conditions of Rule
    20(5) are met. I am satisfied that the documents are not available by any other
    method, and I put aside the question of whether making the order would cause
    unacceptable delay or expense. The motion turns on the condition in Rule 20(5)1:
    whether it would be unfair to require the mother to carry on with the appeal
    without the documents.

[28]

The starting point for the analysis is to consider the context in which,
    and the purpose for which, the Rule is invoked. Whether it would be unfair to
    require the mother to carry on without the documents must be assessed in light
    of how she submits it would assist her in the appeal.

[29]

In her appeal, the mother relies on Article 13(b) of the
Hague
    Convention on the Civil Aspects of International Child Abduction
, 25
    October 1980, Hague XXVIII (the 
Hague Convention
)

and s. 43 of
    the
Childrens Law Reform Act
to argue that Ferguson J. should not have
    enforced the Georgia order. In this motion, she submits that the requested
    documents will assist her in establishing that the childrens return to Georgia
    exposes them to the degree of harm from the father that makes those provisions
    applicable.

[30]

I conclude that it would not be unfair to require the mother to proceed without
    the documents for several of reasons.

[31]

First, the documents were not before Ferguson J. and the mother never
    requested Ferguson J. to make an order under Rule 20(5). The mother had ample
    opportunity to make the request before the motions came before Ferguson J. on a
    peremptory basis. Ferguson J. quite properly queried how this could be last
    minute knowledge, as surely [the mother] must have been instrumental in their
    involvement. This late motion for an order under Rule 20(5) is part of a
    pattern of the mothers conduct of the litigation. That pattern includes
    serving material late, seeking changes of venue, raising new issues suddenly without
    notice, requesting to give
viva voce
evidence after indicating in her
    motion material that the motion was to be decided on the basis of written
    material, requesting adjournments of peremptory dates, and failing to comply
    with court orders. As Gilmore J. observed on March 10, 2011, the mother has
    not dealt with this matter expeditiously and her motivation is in question.
    This echoed the remark made earlier by the Georgia court that the mothers manner
    of litigating did not help resolve issues, but rather unnecessarily expanded
    the proceedings. The mothers pattern of conducting the litigation has slowed
    and expanded the proceeding. As her failure to request the documents at the
    proper stage was very much part of her pattern of hampering the scheduled
    progress of the proceeding, I am satisfied that it would not be unfair to
    require her to carry on without them.

[32]

Second, if the documents were ordered produced now, the mother would
    have to make a fresh evidence application to have them admitted on the appeal.
    If the fresh evidence application is bound to fail, it would not be unfair to
    deny the mothers request for their production. Ordering production would
    simply delay and add expense to the processing of the appeal.

[33]

I am satisfied that the documents would not meet the test for the
    introduction of fresh evidence on appeal set out in
R. v. Palmer
, [1980] 1 S.C.R. 759
. They would not meet
    the first requirement of
Palmer
, because the mother could have requested
    them in a timely way by the exercise of due diligence and adduced them before
    the motion judge.

[34]

In addition, the documents would not meet the requirement of
Palmer
that the fresh evidence be reasonably capable of affecting the result. I am
    satisfied that this criterion is not met in this case. The mother is the source
    of the allegations put before the various organizations and her allegations about
    the fathers conduct relate to events that occurred before the parties
    separation. The mothers supporting material gives no reason to believe that any
    of the organizations have documents relating to the fathers conduct after the
    parties separated, and after the Georgia court made a protective order and
    supervised the fathers access to the children. I note that the Georgia court ordered that the supervisor of access make reports directly to the court. 
    Counsel for the mother conceded that the only new allegations of conduct
    expected to be dealt with in the requested documents relate to the paternal
    grandparents who live in Canada. Obviously, the father did not have any access
    to the children after the mother removed them from Georgia.

[35]

In addition to its staleness, the requested documents would not affect
    the result for a more substantial reason. The documents do not assist the
    mother in establishing the degree of harm necessary to preclude an order
    returning the children to the jurisdiction where they were habitually resident
    at the time of the parties separation. The requested documents, taken together
    with the material in the record, do not address the presumption that the court
    in Georgia is able to protect the children from harm. Without establishing that
    the Georgia court is not able to protect the children, the mothers appeal of
    Fergusons J.s order enforcing the Georgia courts order cannot succeed. I discuss
    why that is so in determining the fathers motion for security for costs. The
    fathers motion requires me to consider more directly the merits of the
    mothers appeal. For the reasons given in that discussion, I am satisfied that
    the mothers fresh evidence application would fail because the documents, if admitted,
    are not reasonably capable of changing the result.

[36]

I conclude that the fresh evidence application will fail because the
    documents could have been requested at the motion by the exercise of due
    diligence, and moreover, the documents, when taken with the other material in
    the record, are not reasonably capable of affecting the result. Therefore, in
    applying Rule 20(5), it would not be unfair to require the mother proceed to
    the appeal without documents that are not going be admitted on the appeal.

[37]

I have ignored additional difficulties with the mothers application. For
    example, counsel did not explain how this courts order that organizations
    outside Ontario produce documents would be enforced, or whether the Georgia
    court would enforce an order for the childrens return given that the Georgia court
    has jurisdiction to determine the custody of the children.

[38]

The mothers motion for an order requiring production of documents is
    dismissed.

The Fathers Motion

[39]

The father seeks security for costs. Rule 38(26) of the
Family Law
    Rules
applies:

On a motion by the
    respondent for security for costs, the court may make an order for security for
    costs that is just, if it is satisfied that,

(a) there is good reason to believe that the appeal is a waste of time, a
    nuisance, or an abuse of the court process and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant
    under subrule 24 (13); or

(c) for other good reason, security for
    costs should be ordered.

[40]

The mother has insufficient assets in Ontario to satisfy a costs order.
    The only question in this case is whether the appeal is a waste of time, a nuisance
    or an abuse of the court process. The mother argues that security for costs
    should be ordered in a custody case only in exceptional circumstances. Whether
    that is so, this is not a custody case. The mother is resisting the enforcement
    of a foreign custody order. If she wishes to contest the custody order, she
    should do so in the court that has jurisdiction to determine custody. In any
    event, allowing an appeal that is truly devoid of merit to proceed does not
    serve the best interests of the children.

[41]

The mother raises a number of procedural grounds of appeal. She submits
    that Ferguson J. erred by refusing her requests for adjournments and refusing
    to allow the mother to call
viva voce
evidence. These discretionary
    decisions were made on a second peremptory appearance and in a case where there
    were already earlier judicial pronouncements that the mother was hindering the
    proceedings. I am satisfied that the appeal, insofar as it attacks the procedural
    decisions of Ferguson J., will not be successful.

[42]

The mothers substantive ground of appeal is that Ferguson J. should
    have given effect to Article 13(b) of the
Hague Convention
and refused
    to enforce the Georgia courts order.

[43]

Article 13(b) of the
Hague Convention
, upon which the mother
    relies, does not directly apply to the proceedings. Article 13(b) provides:

Notwithstanding the provisions of the preceding Article, the judicial or
    administrative authority of the requested State is not bound to order the
    return of the child if the person, institution or other body which opposes its
    return establishes that:



b)
there is a
    grave risk that his or her return would expose the child to physical or
    psychological harm or otherwise place the child in an intolerable situation.

[44]

As can be seen, Article 13(b) constitutes an exception to the obligation
    of a requested state to order the return of the abducted child. In this case,
    there was no request for the return of the child under the
Hague Convention
.
    The fathers motion was to enforce the order of the Georgia court under s. 41
    of the
Childrens Law Reform Act
. He did not invoke the
Hague
    Convention
. The Supreme Court of Canada in
Thomson v. Thomson
,
    [1994] S.C.J. No. 6 at para. 93 made it clear that domestic legislation and the
Hague Convention
operate independently of one another.

[45]

In any event, the mother can rely on s. 43 of the
Childrens Law
    Reform Act
. Section 43 provides:

43.  Upon application, a court by order may supersede an extra-provincial
    order in respect of custody of or access to a child if the court is satisfied
    that the child would, on the balance of probability, suffer serious harm if,

(a) the child remains in the custody of the person legally entitled to
    custody of the child;

(b) the child is returned to the custody of the person entitled to custody
    of the child; or

(c) the child is removed from Ontario.

[46]

Decisions of the lower courts are conflicting as to whether the
Childrens
    Law Reform Act
applies when the states involved are signatories to the
Hague
    Convention
. In my view, the rationale of the
Thomson
case  that the
    two regimes operate independently  leads to the conclusion that the mother can
    invoke s. 43. In any event, as the court stated in
Thomson
at para. 93,
    in cases involving domestic legislation it may not be improper to look at the
    Convention in determining the attitude that should be taken by the courts and at
    para. 79, that the inconsistencies between the Convention and the [Manitoba] Act
    are not so great as to mandate the application of a significantly different
    test of harm. The Manitoba provision before the court in
Thompson
is in
    substance much the same as Ontarios s. 43.

[47]

Using this approach, the level of harm required under s. 43 of the
Childrens
    Law Reform Act
in an international custody dispute is not different in
    substance from the test under Article 13(b) of the Convention. Under Article
    13(b), the harm must be of a degree that would amount to an intolerable
    situation: see
Thomson
, at para. 80; see also
Jabbaz v. Mouammar
(2003), 226 D.L.R. (4
th
) 494 (Ont. C.A.);
Friedrich v. Friedrich
,
    78 F.3d 1060 (6th Cir. 1996);
Re A. (A Minor) (Abduction)
, [1988] 1
    F.L.R. 365 (Eng. C.A.).

[48]

In assessing whether a situation is intolerable, it must be presumed
    that the court with jurisdiction to determine what is in the best interests of
    the children is equipped to make, and will make, suitable arrangements for the
    children's welfare: see
Fi
nizio v. Scoppio-Finizio
(2000), 46
    O.R. (3d) 226 (C.A.) at para. 34, citing with approval
Medhurst v. Markle (
1995),
    17 R.F.L. (4th) 428 at 432 (Ont. Gen. Div.). MacPherson J.A. writing for this
    court in
Finizio
quoted from the decision of the English Court of Appeal
    in
C. v. C. (Abduction: Rights of Custody),
[1987] 1 W.L.R. 654 (C.A.) at
    p. 664, in which Lord Donaldson of Lymington M.R. said:

It will be the concern of the court of
    the State to which the child is to be returned to minimize or eliminate this
    harm and, in the absence of compelling evidence to the contrary or evidence
    that it is beyond the powers of those courts in the circumstances of the case,
    the courts of this country should assume that this will be done. Save in an
    exceptional case, our concern, i.e., the concern of these courts, should be
    limited to giving the child the maximum possible protection until the courts of
    the other country -- Australia in this case -- can resume their normal role in
    relation to the child.

[49]

The threshold for the application of s. 43 of the
Childrens Law
    Reform Act
is a high hurdle. The mothers record in this appeal contains no
    evidence that even attempts to address the presumption that the Georgia court
    is well able to assess any and all information regarding the best interests of
    the children and protect them from harm. I am satisfied that without such
    evidence, the mothers appeal is doomed to fail.

[50]

If anything, the record indicates that the Georgia courts ability to consider
    the best interests of the children is hampered only by the mothers failure to
    participate in the proceedings before the Georgia court. I note that Tuscan J.
    of the Georgia court has left the door open for the mother to participate in
    the custodial arrangements for the children. She said, Hopefully, at some
    point in the future, Petitioner will be prepared to appear before the Court to
    address a custodial arrangement that permits both parents to be involved in the
    lives of their children.

[51]

I regard the mothers appeal to be meritless and, consequently, a waste
    of time within the meaning of Rule 38(26) of the
Family Law Rules
. The
    mother has exhibited a pattern of delaying and expanding litigation. That
    pattern will add to the expense that must be borne by the father in responding
    to this meritless appeal. The mothers motion for the production of documents
    dealt with above is an apt example of how the mothers manner of litigating
    increases the expense of the process. In my view, this is one of those cases in
    which an order for security for costs is appropriate. I order that the mother
    provide security for costs in the amount of $10,000.00 within 30 days, failing
    which the father may move for dismissal of the appeal.

Conclusion

[52]

For these reasons, the mothers motion is dismissed and the fathers
    motion is granted. The parties may make submissions in writing as to costs. The
    submissions are not to exceed 5 pages. The mothers submissions are to be
    served and filed by October 10, and the fathers by October 17.

RELEASED: October 3, 2011                                                                    R.G.
    Juriansz J.A.


