



COURT OF APPEAL FOR ONTARIO

CITATION: J.P.B. v. C.B., 2016 ONCA 996

DATE: 20161021

DOCKET: M47061 & M47037

Benotto J.A. (In Chambers)

BETWEEN

J.P.B.

Applicant (Appellant)

and

C.B.

Respondent (Respondent)

Steven M. Bookman and Chris Stankiewicz, for the
    appellant, J.P.B.

Patric Senson, for the respondent, C.B.

Caterina E. Tempesta and James Stengel for the moving
    party, the Office of the Childrens Lawyer

Heard: October 14, 2016

ENDORSEMENT

[1]

On September 13, 2016, a panel of this court ordered that two children
    be returned by their mother to their father in Germany no later than October
    15, 2016, pursuant to the
Convention on the Civil Aspects of International
    Child Abduction
, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 (the
    Hague Convention).

[2]

The Office of the Childrens Lawyer (OCL) brought this motion to stay
    the execution of the order pending the mothers anticipated application for
    leave to appeal to the Supreme Court of Canada. The father objects to the stay
    and brings a cross-motion challenging the standing of the OCL.

[3]

I dismissed the motion of the OCL for a stay with reasons to follow. 
    These are those reasons.

Background

[4]

The parents were married in Toronto in 2000. The following year, they
    moved to Germany where the two children were born in 2002 and 2005
    respectively. With two exceptions, the family thereafter lived in Germany until
    April 2013.

[5]

In April 2013, the parents agreed that the mother would temporarily take
    the children to Canada to attend school as an educational exchange
    opportunity for the children. The absence from Germany was to last from July 5,
    2013 until August 15, 2014 (the consensual period). In order to enroll the
    children in school, the father signed a letter transferring physical custody to
    the mother.

[6]

Before the expected return date, the father commenced proceedings in
    Ontario pursuant to the Hague Convention to have the children returned to
    Germany. The application judge found that the move to Canada was intended to be
    temporary. She concluded that the childrens habitual residence was Germany;
    the mother was wrongfully retaining the children; and they should be returned.

[7]

The mother appealed to the Divisional Court, which found that, during
    the consensual period, the habitual residence of the children had changed from
    Germany to Canada.

[8]

The father appealed to this court. Sharpe J.A., writing for the court,
    concluded that (1) in order to determine if the mothers retention breached the
    fathers custody rights under Article 3 of the Hague Convention, the court must
    identify the habitual residence of the children before the retention occurred;
    (2) there cannot be a unilateral change in habitual residence; (3) a
    time-limited, consensual stay cannot shift the childrens habitual residence;
    and (4) evidence of the children settling in to a new location is not
    relevant under Articles 3 or 12 when the application is brought within a year
    of the wrongful retention. Finally, he ordered that the children be returned to
    Germany no later than October 15, 2015.

Motion for a stay

[9]

The father challenges the OCLs standing to bring this motion. I will
    deal first with the issue of standing and then with the substantive issues in
    the motion.

Standing of the OCL

[10]

MacPherson J., the application judge, heard the Hague

application
    on March 9, 2015. She asked the parties to return on April 21, 2015 to make
    submissions on the potential involvement of the OCL. On that day, she made an
    order which stated, at para. 4:

THIS COURT ORDERS that if the
    Childrens Lawyer determines to provide legal representation under s. 89 (3.1)
    of the
Courts of Justice Act
, the Childrens Lawyer shall have full
    power to act for the said child(ren) as though they were parties to these proceedings
    and, without limiting the generality of the foregoing, the Childrens Lawyer
    shall have the right to:



(a) make a full,
    independent enquiry of all the circumstances relating to the best interests of
    the child(ren);

(b) receive copies of
    all professional reports and all records relating to the child(ren);

(c) production and
    discovery according to the Rules;

(d) appear and
    participate in this proceeding, including the right to examine and
    cross-examine witnesses, call evidence and make submissions to the Court, such
    submissions to include the position(s) advanced on behalf of the child(ren);

(e) apply to be
    removed as the legal representative of the child(ren), if the Childrens Lawyer
    believes that such involvement is no longer in the child(ren)s interests;

(f) take such appeal
    proceedings as deemed appropriate; and

(g)  seek costs
    related to these proceedings.

[11]

At the bottom of the order, the application judge added, in her own
    handwriting, the following:

This is a Hague Convention case & OCL is requested to
    become involved on an expedited basis to ascertain the objections of children
    to a return to Germany & allegation by father that children have been
    influenced by mother as they have resided with her in ONT since April 2013.

[12]

The OCL submits that, as a consequence of this order, it has full
    standing as a party to bring this motion and seek leave from the Supreme Court
    of Canada. The father submits that the order must be read in the context of the
    narrower focus indicated by the application judges handwritten addition,
    namely to report to the court about the childrens objections and to do so on
    an expedited basis. The father claims this restricts the broader language of
    para. 4 of the order.

[13]

While  as I will explain below  I have concerns about the
    role that the OCL is adopting in these proceedings, I will determine this
    motion as though there is standing to bring this application on behalf of the
    children. In light of my conclusion on the merits of the stay application, I do
    not need to definitively determine this issue.

Merits of the stay motion

[14]

The test for staying an order pending appeal under r. 63.02 of the
Rules

of

Civil

Procedure
, R.R.O. 1990, Reg. 194 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:
Circuit World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8;
BTR Global
    Opportunity Trading Limited v. RBC Dexia Investor Services Trust
, 2011
    ONCA 620, 283 O.A.C. 321 [In Chambers], at para. 16;
Warren Woods Land
    Corp. v. 1636891 Ontario Inc.
, 2012 ONCA 12 [In Chambers], at para. 1.

[15]

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.);
Longley v. Canada (Attorney General)
, 2007 ONCA 149, 223
    O.A.C. 102 [In Chambers], at paras. 14-15;
BTR Global
, at para. 16.

(1)

Does the appeal raise a serious question to be tried?

[16]

The preliminary assessment of the merits of the case begins with a
    presumption of correctness of the decision under appeal. While the threshold to
    be met in connection with the first component of the test is a modest one,
    where the stay sought is to permit an application for leave to the Supreme
    Court of Canada, another layer to this component is engaged. As stated by
    Laskin J.A. in
BTR Global
, at para. 18:

Ordinarily, the threshold for showing a serious issue to be
    adjudicated is low.  However, the criteria for granting leave to appeal to the
    Supreme Court of Canada add another layer to this component of the test.  Under
    s. 40(1) of the
Supreme

Court

Act
, R.S.C. 1985, c. S-26,
    the Supreme Court of Canada typically grants leave to appeal only in cases of
    public or national importance.  Thus, a provincial appellate court judge
    hearing a motion for stay pending leave to appeal to the Supreme Court of
    Canada must take account of the stringent leave requirements in the
Supreme

Court

Act
. [Citations omitted.]

[17]

I begin with the merits of the case generally and then turn to this
    additional consideration described by Laskin J.A.

[18]

The OCL submits that there is a serious issue to be tried because the
    Court of Appeal erred by failing to give due consideration to the wishes of the
    children. I do not agree. Beginning with the concerns of the application judge,
    who appointed the OCL for precisely this reason, the wishes of the children
    were known to and considered by the court.  As Sharpe J.A. said at paras.
    74-76:

Article 13 of the Hague Convention provides that even if the
    retention is wrongful, the court may refuse to order the return of the child
    if it finds that the child objects to being returned and has attained an age
    and degree of maturity at which it is appropriate to take account of its
    views. The mother places considerable weight in her submission on what she
    contends are the views of the children.

In my view, this submission cannot succeed in the face of the
    explicit findings of the application judge which are entitled to deference on
    appeal.

The childrens objections included matters such as too much
    homework in Germany, loss of friends, loss of their dog, and that Canada feels
    like home. After carefully considering the evidence led by the OCL as to the
    childrens views, the application judge held, at para. 102, that the childrens
    objection to being returned to Germany were neither substantial nor had the
    strength of feeling required that would take the objection beyond the level
    of expressing a preference for one place over another. The application judge
    quite properly observed at para. 105:

To accede to such an objection would set the threshold much
    too low and certainly much lower than intended by the [Hague] Convention which
    provides that where there has been a wrongful retention, children shall be
    returned to their habitual residence unless the removing parent can establish
    that exceptional circumstances exist. Such circumstances do not exist in this
    case.

[19]

The OCL submits that this court further erred in dismissing the
    application to submit fresh evidence dealing with the childrens views at the
    time of the appeal. The court held that the evidence was not relevant, at
    paras. 78-79:

This appeal essentially turns on the question of whether the
    children were habitually resident in Germany on August 15, 2014. If they were,
    the Hague Convention application must be granted. If they were not, it must be
    refused. The proposed fresh evidence relates to facts arising long after that
    critical date, and I fail to see how it could assist the court in determining
    whether the application judge correctly determined the issue of habitual
    residence.

Furthermore, to place any weight on such after-the-fact
    evidence would encourage protracted appeals and proceedings and reward delay.

[20]

The OCL submits that this analysis is in error because a determination
    of habitual residence must include the perspective of the interests and circumstances
    of the children. Here, however, the evidence sought to be admitted related to
    interests and circumstances arising long after the critical date of August
    15, 2014. It therefore did not impact that factual determination.

[21]

The OCL further submits that this appeal raises the serious question of
    whether the childrens views on their settling into their new environment
    impact a determination of habitual residence under Article 3 of the Hague
    Convention. While there is conflicting jurisprudence on this issue among
    Ontario lower courts, the issue has been settled. In
Thomson v. Thomson
,
    [1994] 3 S.C.R. 551, the Supreme Court of Canada held, at p. 597: By stating
    that before one year has elapsed the rule is that the child must be returned
    forthwith, Article 12 makes it clear that the ordinary effects of settling in,
    therefore, do not warrant refusal to surrender. This principle was also applied
    in
Bazargani v. Mizael
, 2015 ONCA 517, 63 R.F.L. (7th) 58, at para. 22,
    and
Ibrahim v. Girgis
, 2008 ONCA 23, 48 R.F.L. (6th) 1, at para. 30:
    the degree to which the child has become settled has no bearing on a Hague
    Convention application filed within one year.

[22]

The law is also clear that time-limited consensual stays cannot be
    converted to habitual residence. Ontario courts have uniformly held that a
    parents consent to a time-limited stay does not shift the childs habitual
    residence: see
Ellis v. Wentzell-Ellis,
2010 ONCA 347, 102 O.R. (3d)
    298, at paras. 27-33;
Unger v. Unger
, 2016 ONSC 4258, at para. 57;
Webb
    v. Gaudaur
, 2015 ONSC 6956;
Fulmer v. Kaleo-Fulmer
, [2002] O.J.
    No. 3183 (S.C.), at para. 18
; Solem v. Solem
, 2013 ONSC 1097, at
    paras. 37-38; and
Snetzko v. Snetzko
(1996), 11 O.T.C. 336 (C.J.).

[23]

Likewise, there is a long and well-established line of authority to the
    effect that one parent cannot unilaterally change a childs habitual residence
    under the Hague Convention. The application judge correctly described this
    principle at para. 73: [t]he case law is clear that the habitual residence of
    a child is the state where both parties lived together with the child, and
    neither parent can unilaterally change the habitual residence, without the
    express or implied consent of the other parent. As stated in
Maharaj
    v. Maharajh
, 2011 ONSC 525, 95 R.F.L. (6th) 391, at para. 18, unless
    the mother can establish a shared parental intention to change the childs
    residence at the time of the move to Ontario, the childs habitual residence
    remains unchanged: see also
Korutowska-Wooff

v. Wooff
,
    242 D.L.R. (4th) 385 (Ont. C.A.) and
Ellis
, at paras. 27-33.

[24]

I turn now to the additional considerations engaged as a result of the
    leave requirements of the Supreme Court of Canada. The OCL sought to establish
    national importance by alleging, for the first time in this protracted
    proceeding, that the childrens
Charter
rights under ss. 6 and 7 are
    infringed. The OCL relies on this courts decision in
A.M.R.I. v. K.E.R.
,
    2011 ONCA 417, 106 O.R. (3d) 1,

which found that a refugee childs
    rights under s. 7 of the
Charter
are engaged where the childs
    involuntary removal is sought under the Hague Convention to a country where the
    child has been found to face a risk of persecution.

[25]

In
A.M.R.I.
the child had been accepted in Canada as a refugee
    by reason of abuse by her mother in Mexico. The result of the Hague convention
    was to return the child to a country where she had been found to face a risk of
    persecution. This was why her s. 7
Charter
rights were engaged, and
    why the court concluded that she had been denied procedural fairness in having
    had no notice of the application and no ability to have her views considered.
    These factors do not exist here. The children in this case were clearly aware
    of the proceedings and their views were presented and considered.

[26]

The OCL referred to Article 12 of the
Convention on the Rights of
    the Child
, 20 November 1989, 1577 U.N.T.S 3, Can. T.S. 1992 No. 3. It provides
    that (1) children have the right to express their views and that their views be
    given due weight in accordance with their age and maturity and (2) children
    have the right to be heard in any judicial proceeding affecting them in a
    manner consistent with the procedural rules of national law. Although children
    have a right to make their views known, there is no right to have their views
    followed.

[27]

The OCL submits that the children, as Canadian citizens, have a right to
    remain in Canada pursuant to s. 6 of the
Charter.
Children who have
    been abducted from their country of habitual residence and brought to a country
    where they are citizens are not immunized from the application of the Hague
    Convention

and may be ordered to return to a custodial parent in
    another country: see
Kovacs v. Kovacs
(2002), 59 O.R. (3d) 671 (S.C.),
    at para. 117.

[28]

The proposed appeal does not raise a serious question to be tried.

(2)

Will the children suffer irreparable harm if the stay is not granted?

[29]

Irreparable harm is characterized by the nature, rather than the
    magnitude, of the harm:
RJR-Macdonald
, at p. 341. The OCL submits that
    the children will suffer irreparable harm if the stay is not granted. In
    support of this position, the OCL filed extensive material as fresh evidence. It
    is meant to establish the current, more forceful objections that the children
    have to being returned to their father.  I have several concerns about this
    evidence.

[30]

First, much of it details the childrens negative reaction to the order
    of this court and the prospect of returning to Germany. However, the children
    have been living with their mother and maternal grandmother. Almost all contact
    with the father has stopped. Consideration does not appear to have been given
    to obvious signs of parental alienation. The children have been taken to
    assessors who appear to have made no attempt to contact the father. At para.
    104 of the application judges reasons, she stated that there was a real
    likelihood that the children have to some extent been influenced by the
    mother.  The OCL submits that it was the order of this court that caused
    difficulties for the children.  No mention is made of the mothers wrongful
    retention of the children as the originating cause.

[31]

Second, an allegation is made for the first time of abuse by the father
    in Germany. No mention is made of the assessment done in Germany that reflects
    a healthy relationship with the father. Furthermore, as noted by the
    application judge at para. 53, an OCL clinician met with each child multiple
    times and [b]oth children spoke positively about their father and of him being
    a nice guy who does fun stuff with them.

[32]

Lastly, the OCL appears to have stepped into the role of aggressive
    advocate, promoting the position of the mother. This is particularly troubling
    given the mothers comments about now having a resource to fund her appeal.
[1]

[33]

There is no irreparable harm if the children are returned. There is
    greater harm being done to the children by delaying the determination of
    custody. Applications pursuant to the Hague Convention are to be dealt with
    expeditiously.   Continuing delays frustrate the purpose of the legislation,
    favour the non-complying parent, and postpone the determination of the
    childrens best interests in the country where they are habitually resident.

[34]

As this court explained in
Katsigiannis

v.

Kottick
-
Katsigiannis
(2001), 55 O.R. (3d) 456 (C.A.), at para. 32:

[A] Hague Convention application does not engage the best
    interests of the child test - the test that is universally and consistently
    applied in custody and access cases. Hague Convention contracting states accept
    that the courts of other contracting states will properly take the best
    interests of the children into account.  Thus, where there has been a wrongful
    removal or retention, and no affirmative defence is established within the
    meaning of the Hague Convention  the children must be returned to their
    habitual residence.

[35]

The OCL submits that a return to Germany would render the mothers
    appeal moot. I disagree and adopt the ratio of Roberts C.J. of the United
    States Supreme Court in
Chafin v. Chafin
(2012), 133 S.Ct. 1017, at p.
    1027:

In cases in which a stay would not be granted but for the
    prospect of mootness, a child would lose precious months when she could have
    been readjusting to life in her country of habitual residence, even though the
    appeal had little chance of success.  Such routine stays due to mootness would
    be likely but would conflict with the
Conventions mandate of prompt return
    to a childs country of habitual residence
. [Emphasis added.]

[36]

Also in
Chafin,
Ginsburg J. spoke at p. 1028 of the driving
    objective of the Hague Convention: to facilitate custody adjudications,
    promptly and exclusively, in the place where the child habitually resides. To
    that end, each contracting state must ensure that appeals proceed with
    dispatch.

(3)

Does the balance of convenience favour a stay?

[37]

The balance of convenience part of the test involves determining which
    party would suffer greater harm from the granting or refusal of the stay
    pending the disposition of the appeal on the merits. The court must consider
    that the matter has already been adjudicated and the order must be regarded as
prima

facie
correct. The application judge found as a fact that the
    childrens habitual residence is Germany. That is where their best interests
    will be determined. It is widely recognized that the best interests of children
    require that custody matters be dealt with expeditiously. In my view, the
    balance of convenience favours returning the children forthwith.

Conclusion

[38]

The Hague Convention seeks to ensure the prompt return of children
    wrongfully removed or retained in any contracting state and to ensure that
    rights of custody and access under the law of one contacting state are
    respected by the other contracting state. Children all over the world benefit
    from the provisions of the Hague Convention which discourage  not reward 
    international abduction and wrongful retention. Inherent in the Hague
    Convention is the trust that signatory countries have in the family law
    proceedings of the other contracting states. Prompt return is essential so that
    childrens issues can be addressed without delay.

[39]

As stated by Sharpe J.A., at para. 83,

[A]lthough this case involves the interests and needs of these
    two young children, it raises legal issues that transcend their interests and
    that affect the interests of countless other children and their parents. It is
    also important to remember that the mothers actions were in direct violation
    of the fathers custodial rights.

Disposition

[40]

The motion by the OCL for a stay is dismissed with costs fixed at $8,500
    inclusive of disbursements and HST.





[1]
After the decision of this court was released, the mother set up a
    crowd-funding webpage to raise $50,000 to cover her costs to pursue her
    appeal to the Supreme Court of Canada. Having been unsuccessful in this
    attempt, she announced on the campaign site, There is now a plan in place to
    move forward with the case. The implication is that the involvement of the OCL
    will eliminate the financial concerns.


