



COURT OF APPEAL FOR ONTARIO

CITATION:
Husid v. Daviau, 2012 ONCA 469

DATE: 20120629

DOCKET: M41402 (C55015)

Gillese J.A. (In Chambers)

BETWEEN

Uri Landman Husid

Applicant/Appellant
    on Appeal (Moving Party)

and

Helene Marie Therese Daviau

Respondent/Respondent
    on Appeal (Responding Party)

Jeffrey Wilson and Joanna Harris, for the moving party

Phyllis Brodkin and Serena Lein, for the responding
    party

Heard: June 28, 2012

On motion for access pursuant to ss. 21 and 28 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12, on the appeal from the judgment of
    Justice Craig Perkins of the Superior Court of Justice, dated January 23, 2012.

Gillese
    J.A.:

[1]

The parties child will turn six years old on August 19, 2012.  Her
    father, Mr. Landman Husid, brings a motion in which he seeks, among other
    things, unsupervised and overnight access with the child from August 19 to
    August 22, 2012.

[2]

Ms. Daviau is the childs mother.  She opposes the motion.

[3]

For the reasons that follow, I would dismiss the motion.

Background in Brief

[4]

The appellant father lives in Lima, Peru, which was the parties former
    home and where the child was born and lived until September 2010, when she was
    taken by her mother to Canada.  The child and her mother have continued to live
    in Canada.  Mr. Landman Husid has a temporary order for custody of the child in
    Peru.

[5]

Mr. Landman Husid brought an application in Ontario under the
Hague
    Convention on the Civil Aspects of International Child Abduction
, 25
    October 1980, Can. T.S. 1983, No. 35 (
Hague Convention
) in which he
    asked that the child be returned to Peru.

[6]

On May 27, 2011, Justice Brownstone of the Ontario Court of Justice
    dismissed the application (the May 27, 2011 order) and allowed the child and
    her mother to remain in Canada.

[7]

In his reasons for decision, Brownstone J. found that the child had been
    wrongfully retained in Canada within the meaning of article 3 of the
Hague
    Convention
.  However, he concluded that Ms. Daviau had met the onerous
    burden under article 13(b) of the
Hague Convention
of establishing
    that if the child were returned to Peru, there was a grave risk of physical and
    psychological harm and that she would be placed in an intolerable situation.

[8]

In the May 27, 2011 order, Mr. Landman Husid was given interim
    supervised access.

[9]

Mr. Landman Husid appealed the May 27, 2011 order to the Superior Court
    of Justice.

[10]

On
    August 30, 2011, by the consent order of Czutrin J., Mr. Landman Husid was
    granted temporary access to the child, via Skype, three times each week,
    pursuant to the temporary access order of the Superior Court of Justice on July
    14, 2011.

[11]

The
    appeal of the May 27, 2011 order was heard by way of a trial before Perkins J.
    in November 2011.  The trial lasted seven days.

[12]

By
    order dated January 23, 2012, Perkins J. dismissed the appeal (the order under
    appeal).  Like Brownstone J., he did so on the basis of article 13(b) of the
Hague
    Convention
.  He gave lengthy, thoughtful reasons for decision.

[13]

Mr.
    Landman Husid has appealed the order of Justice Perkins.  The appeal has been
    expedited and is scheduled to be heard on August 22, 2012.

The Motion

[14]

The
    matter before the court today is Mr. Landman Husids motion in which he seeks a
    court order providing that:

1.

Pending appeal, he shall continue to have skype access to the child during
    which the mother is not to be present in the room;

2.

He shall have an unsupervised summer visit with the child on August 19,
    2012, and overnight from August 20 to August 22, 2012;

3.

The pick-up and drop-off locations shall be at a public place convenient
    to both parties;

4.

The mother shall provide information to the father by email on a monthly
    basis about the childs health, education and welfare;

5.

The mother shall provide consent to the release of information from the
    childs school, medical and other professionals;

6.

He shall receive the costs of the motion.

[15]

After
    hearing the parties orally, I advised that the motion was dismissed, with
    reasons to follow.  These are the promised reasons.

Analysis


Jurisdiction of this Court to Hear the Motion

[16]

Mr.
    Wilson, the appellants counsel, brought this motion pursuant to ss. 21 and 28
    of the
Childrens Law Reform Act
,
R.S.O. 1990, c. C.12

(
CLRA
).  Section 21 of the
CLRA
gives a parent the right to apply for an order respecting access.  It reads as
    follows:

21.
(1)
A
    parent of a child or any other person may apply to a court for an order
    respecting custody of or access to the child or determining any aspect of the
    incidents of custody of the child.

Section 28 of the
CLRA
sets out the powers of
    the court on an application made under s. 21.  It reads as follows:


28.
(1)
The
    court to which an application is made under section 21,

(a) by order may grant the custody of or access to
    the child to one or more persons;

(b) by order may determine any aspect of the
    incidents of the right to custody or access; and

(c) may make such additional order as the court
    considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or
    location of contact or communication between any of the parties, or between a
    party and the child,

(ii) prohibiting a party or other person from
    engaging in specified conduct in the presence of the child or at any time when
    the person is responsible for the care of the child,

(iii) prohibiting a party from changing the
    childs residence, school or day care facility without the consent of another
    party or an order of the court,

(iv) prohibiting a party from removing the child
    from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a
    person or body specified by the court, of the childs passport, the childs
    health card within the meaning of the
Health Insurance Act
or any
    other document relating to the child that the court may specify,

(vi) requiring a party to give information or to
    consent to the release of information respecting the health, education and
    welfare of the child to another party or other person specified by the court,
    or

(vii) requiring a party to facilitate
    communication by the child with another party or other person specified by the
    court in a manner that is appropriate for the child.

[17]

Mr. Wilson submits that this court has the power to grant the relief
    sought pursuant to s. 134(2) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43.  Section 134(2) reads as follows:

On motion, a court to which a motion for leave to
    appeal is made or to which an appeal is taken may make any interim order that
    is considered just to prevent prejudice to a party pending the appeal.

[18]

However,
    s. 18(1) of the
CLRA
defines court, for the purpose of custody, access
    and guardianship matters, to mean the Ontario Court of Justice, the Family
    Court or the Superior Court of Justice.

[19]

In
    accordance with s. 18(1), therefore, the motion should have been taken to the
    court below.

[20]

Mr.
    Wilson argues that he could not make the motion in the court below because that
    would amount to attorning to the courts jurisdiction, the very matter he
    contests by way of the main appeal.  I do not accept this argument.  There are
    a number of access orders in place already.  I understand that they were made
    without prejudice to the fathers right to maintain that he did not attorn to
    the courts jurisdiction.  If the existing access orders could be made on that
    basis, I see no reason why the present motion could not also be made on the
    same basis.

[21]

Accordingly,
    I do not accept that this court has jurisdiction on this motion.

[22]

I
    am reinforced in this view by two considerations.

[23]

First,
    as part of the order under appeal, Perkins J. expressly ordered that the
    mothers claim for custody and access should proceed.  He directed that if the
    parties were unable to agree on how to proceed on the matter, a motion for
    directions should be booked, before him if possible.  The order under appeal
    expressly provides a method by which the parties were to deal with custody and
    access.  This aspect of the order is not under appeal.  Its terms govern.

[24]

Second, since
    there is no notice of motion to appeal the temporary access orders that are in
    place, it appears to me that the motion before the court is a collateral attack
    on the access orders already in place.

The Merits

[25]

Alternatively,
    if this court does have jurisdiction, I would dismiss the motion.

[26]

In
    my view, if the appellant is given unsupervised access to the child, there is a
    very real risk he will remove the child to Peru.  My view is based primarily on
    the reasons for decision of Perkins J., which I will not recite.  Suffice to
    say that they include findings that the appellant has taken the law in his own
    hands on a number of occasions and the last time the child was with her father
    on an unsupervised visit in Peru in January 2010, he refused to return the
    child to the mother despite a court order to that effect.  Furthermore, there
    are the findings relating to family violence.

[27]

The
    courts below had good reason to order that access be supervised.  I am not
    persuaded that they erred; I would not disturb the orders.

DISPOSITION

[28]

Accordingly,
    the motion is dismissed.  The parties have agreed that there shall be no order
    as to costs of the motion.

Released: June 29, 2012 (E.E.G.)

E.E. Gillese
    J.A.


