



COURT OF APPEAL FOR ONTARIO

CITATION:
Husid v. Daviau, 2012
    ONCA 655

DATE: 20121002

DOCKET: C55015

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Uri Landman Husid

Applicant (Appellant)

and

Hélène Marie Thérèse Daviau

Respondent
    (Respondent on Appeal)

Jeffery Wilson and Joanna Harris, for the applicant
    (appellant)

Phyllis Brodkin and Serena Lein, for the respondent
    (respondent on appeal)

Heard: August 22-23, 2012

On appeal from the judgment of Justice Craig Perkins of
    the Superior Court of Justice, dated January 23, 2012.

Ducharme
    J.A.:

[1]

The sole issue on this appeal is whether the trial judge erred in
    permitting a claim for custody of a six-year-old girl to proceed in Ontario
    rather than ordering the childs return to Lima, Peru.
[1]

[2]

The mother wrongfully removed the child from Peru and the father sought
    an order for her return pursuant to Article 12 of the Hague

Convention on the Civil
    Aspects of International Child Abduction
, Can. T.S. 1983 No. 35 (the
    Convention). The trial judge relied on the grave risk exception to the
    return requirement set out in Article 13(b) to deny the fathers request.

[3]

The father appeals this decision.

[4]

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

Background

[5]

The child was born in Peru to a Peruvian father and a Canadian mother. The
    child was resident in Peru until the mother brought her to Ontario 16 months
    before the trial. The mother and father were involved in litigation in Peru relating to custody and access and the mother brought the child to Ontario under an order permitting
    her to travel to Canada for a visit. The order required the mother to return to
    Peru. Instead, she wrongfully remained in Canada with the child. The father
    brought an application under the Convention seeking the childs return.

[6]

At trial, the mother invoked Article 13(b) of the Convention to argue
    that the child should not be ordered to return to Peru since 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.

[7]

The father denied any such risk and further contended that the courts
    and authorities of Peru could adequately deal with any risk should it be found
    to exist.

[8]

The trial judge dismissed the fathers application for the childs
    return to Peru on the basis that the mother had met the burden under Article
    13(b).  It was further ordered that the mother could proceed in Ontario with her claim for custody and access.

[9]

The father raises five main grounds of appeal: he argues that the trial
    judge (i) misapprehended evidence, relied upon inadmissible evidence and made
    findings of fact unsupported by the evidence; (ii) erred in his application of
    the statutory test in Article 13(b) to the facts as found; (iii) erred in
    principle by conducting an assessment of another member states capacity to
    protect a child; (iv) erred in failing to invoke the protocol created to enable
    interstate dialogue that is intended to ensure and facilitate protection upon a
    childs return; and (v) erred in dismissing the arguments of estoppel and abuse
    of process.

FACTS

[10]

Both the
    father and the mother are in their forties. The father was born and raised in Lima, Peru, though some of his studies were done in the U.S. He holds a senior position in
    a family business that imports and sells automotive parts. The mother was born
    and raised in Canada and is a computer software specialist.

[11]

The
    parties met on vacation in Jamaica in 1999. They dated for some time, meeting
    in both Miami and Lima, and were married in 2003. The mother moved to Lima, acquired some proficiency in Spanish, and after some time began to resume her work.

[12]

The
    couples only child was born in 2006. The marriage was unhappy and, according
    to the mother, increasingly abusive. The couple separated in September 2008 and
    began court proceedings in Peru on the issues of custody and access. The mother
    continued to live in Lima with the daughter. The father had regular access
    until November 2009, when the mother moved with the child to Cuzco, Peru.

[13]

Two months
    later, the mother returned with the child to Lima under court order. In late
    January 2010, physical confrontations between the mother and father and between
    the mother and paternal grandmother occurred. The child witnessed both events
    and police were called on both occasions.

[14]

The mother
    obtained an order permitting her to travel with the child to visit family in Canada from September to November 2010. As the trial judge acknowledged at paras. 37 and
    41, the reasons the mother presented to the Peruvian court for wanting to travel
    with the child, did gild the lily or even misrepresent her intentions.  She
    and the child never returned and have been living in Toronto with the maternal
    grandparents ever since. The father has had a few supervised visits since the
    move.

[15]

The child
    is currently enrolled in school in Toronto and it is not disputed that she is
    doing well.

THE LAW

[16]

Both Canada and Peru are signatories to the Convention, which has been incorporated into Ontario domestic law as a schedule to s. 46 of the
Childrens Law Reform Act
,
R.S.O.
    1990, c. C.12.

[17]

The
    underlying purpose of the Convention, as set out in its preamble, is to protect
    children from the harmful effects of their wrongful removal or retention and to
    establish procedures to ensure their prompt return to the state of their
    habitual residence.

[18]

Once it
    has been determined that a child was wrongfully removed under the terms of the
    Convention, Article 12 mandates the return of the child forthwith:

Where a child has been wrongfully removed or retained
    in terms of Article 3 and, at the date of commencement of the proceedings
    before the judicial or administrative authority of the Contracting State where
    the child is, a period of less than one year has elapsed from the date of the
    wrongful removal or retention, the authority concerned shall order the return
    of the child forthwith.

[19]

Exceptions
    to this mandate are created by Articles 12, 13 and 20. It is the exception articulated
    in Article 13(b) that was invoked in this case by the mother and that was
    accepted by the trial judge:

Despite 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.

[20]

In this
    way, the onus is on the person opposing the return of the child to establish a grave
    risk of harm or exposure of the child to an intolerable situation. In
Thomson
    v. Thomson
, [1994] 3 S.C.R. 551, La Forest J., writing for the majority of
    the Supreme Court of Canada, interpreted Article 13(b) as follows, at p. 596:

[A]lthough the word
    "grave" modifies "risk" and not "harm", this must
    be read in conjunction with the clause "
or otherwise
place the
    child in an intolerable situation". The use of the word
    "otherwise" points inescapably to the conclusion that the physical or
    psychological harm contemplated by the first clause of Article 13(b) is harm to
    a degree that also amounts to an intolerable situation. [Emphasis in original.]

[21]

Justice La Forest went on to endorse the following approach set out by Nourse L.J. in
Re A
    (A Minor) (Abduction)
,
[1988] 1 F.L.R.
    365 (C.A.), at p. 372:

[T]he risk has to be more than an ordinary risk, or something
    greater than would normally be expected on taking a child away from one parent
    and passing him to another. I agree ... that not only must the risk be a weighty
    one, but that it must be one of substantial, and not trivial, psychological
    harm.

[22]

To this,
    the Supreme Court added that the risk contemplated by the Convention need not
    come from a cause related to the return of the child to the other parent, as
    opposed to merely from the removal of the child from his or her  present
    caregiver (at p. 597). In other words, from a child-centred perspective, harm
    is harm. If the harm meets the stringent test of the Convention, its source is
    irrelevant.

[23]

In
Pollastro
    v. Pollastro

(1999),
43 O.R. (3d) 485, at p. 496, this court developed upon the
    harm is harm direction to hold that Article 13(b) is available to resist a
    childs return when the reason for the childs removal is violence directed
    primarily at the parent who removed the child: returning a child to a violent
    environment places that child in an
inherently
intolerable situation, as well
    as exposing him or her to a serious risk of psychological and physical harm
    (emphasis in original).

DECISION BELOW

[24]

The trial
    judges reasons follow the interpretative framework for Article 13(b) set out
    by the Supreme Court of Canada in
Thomson
, and review in considerable
    detail the findings of fact to which that framework must be applied in this
    case.

[25]

The evidence
    at trial included oral testimony and documentary evidence. Some of the
    documentary evidence came from the proceedings in Peru, including some of the
    pleadings, evidence of the parties and other witnesses, expert psychological
    and medical reports, as well as some of the findings and orders of the Peruvian
    courts.

[26]

The
    mother, her sister-in-law, the childs nanny and the mothers Peruvian lawyer
    all testified on the mothers behalf. The father and his mother testified for
    him.

[27]

The trial
    judge found on the evidence that the family home before the separation was a
    place of unhappiness, oppression and abuse for the mother at the hands of the
    father for many months, with the child there to witness and experience it (at
    para. 52).

[28]

After
    reviewing the multiple proceedings in the Peruvian courts as well as the evidence
    presented before him at trial, the trial judge concluded, at para. 115, that
    the mother presented sufficient evidence that the childs return to Peru would expose her to a grave risk of being in an intolerable situation. The child would
    be in constant fear that the mother would be accosted, at grave risk of being
    wrongfully taken using physical force by the fathers family, and at grave risk
    of psychological harm from the continuation of the domestic conflict, some of which
    harm was already reported by the psychologists in the Peruvian justice system.

[29]

In
    addition, the trial judge found that the return of the child risked the
    mothers arrest in Peru, suddenly removing the child from the care of the
    person with whom she had been living for approximately two years (at para.
    116).

[30]

On the
    evidence as a whole, the trial judge concluded that Article 13(b) was engaged.
    After rejecting the fathers allegations of abuse of process and forum
    shopping, the trial judge dismissed the fathers application for an order
    requiring the return of the child to Peru, thus permitting the mothers custody
    claim to proceed in Ontario.

ANALYSIS

[31]

In my
    view, the trial judge identified and applied the correct legal test to invoke
    Article 13(b), namely, the test set out by the Supreme Court of Canada in
Thomson
.
    This is notwithstanding what was in my view an extraneous reference at para.
    103 of his reasons to a recent and more humane standard.

[32]

I also
    find no error in principle in the trial judges approach to assessing the
    evidence: there is no absolute requirement for interstate dialogue under the
    Convention, nor did the trial judge inappropriately or unfairly assess the
    Peruvian justice system in his analysis. The trial judge properly focused on
    the facts of this particular case, paid due respect to the laws of Peru, and honoured Canadas full commitment to the Convention.

[33]

A
    determination of whether Article 13(b) applies to any given case requires a
    global assessment of all the available evidence. As such, it should not be
    disturbed absent a palpable and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[34]

In this case, the trial judge carefully considered copious
    evidence, both oral and written. His decision is thus entitled to considerable
    deference.

[35]

The
    evidence in this case easily supports the findings of fact made by the trial
    judge, as well as his conclusion that the childs return would pose a grave
    risk of harm to her or otherwise place her in an intolerable situation.

[36]

Factual
    findings that support the trial judges conclusion include the following:

1.

In the context of altercations with the mother, the father on more than
    one occasion touched the pouch in which he regularly carried a handgun, while
    saying that Peru was a corrupt country and you never know what can happen,
    that the mother should watch her back, or that [i]f [the child] isnt with
    me, she wont be with anybody (at paras. 49, 69);

2.

The fathers cousin threatened the mother when she was out shopping,
    telling her she was going to die and that he had met people in jail who would
    do it and it would only take 20 soles (at para. 50);

3.

On an occasion when the mother went to pick up the child, the father
    used physical force on the mother, resulting in contusions on both of her upper
    limbs and a bandaged left arm in a sling, as reported in a legal medical
    certificate issued at the time (at para. 66);

4.

In a physical altercation between the paternal grandmother and the
    mother involving the child, the paternal grandmother bit the mother and the
    child (at para. 68);

5.

In an altercation revolving around the child and involving the mother,
    the grandmother and the father, the father tried to physically take the child
    from the mother despite police presence (at para. 69);

6.

The child was assessed by a court psychologist who found that she was
    affected by the violence in the family unit (at para. 73) and the father did
    not present any reports or assessments to the contrary (at para. 31).

[37]

These
    factual findings were available to the trial judge on the evidence before him
    and support his ultimate determination. While the father raised on appeal the
    possibility that the trial judge may not have precisely captured all the
    details of the events described, there is no suggestion that the substance of
    his findings was not supported by the evidence. These findings paint the
    picture of a violent family dynamic, a dynamic capable of supporting the trial
    judges conclusion that there is a grave risk the childs return would expose
    her to physical or psychological harm or otherwise place the child in an
    intolerable situation.

[38]

I see no
    reason to interfere with the trial judges conclusion that the onus under
    Article 13(b) is met such that the child should not be returned to Peru.

[39]

The father
    raised, but did not strongly press, two additional grounds of appeal, those
    based upon estoppel and abuse of process. I note them here only to dismiss them
    as entirely without merit. There is nothing in this record to indicate that
    either party induced or sought to induce the other party to act to his or her
    prejudice. Moreover, they joined issue on what the trial judge should decide,
    they consented to the form of the trial and they were both afforded the right
    to call all the evidence they sought to present to cast their position in the
    best possible light. In this case, there is nothing, nothing at all, to suggest
    that estoppel applied or that the trial was somehow an abuse of the courts
    process.

CoSts

[40]

The father
    submits on the basis of Article 26 of the Convention that the trial judge had
    no jurisdiction to award costs of the trial against him. I disagree. The
    limitation on imposing charges articulated in Article 26 applies to 
Central Authorities and other public services of
    Contracting States. Subsection 46(4) of the
Childrens Law Reform
    Act
defines the Central Authority for Ontario
    as the Ministry of the Attorney General.  The
courts are not captured by this limitation
    and it was open to the trial judge to rely on subrule 24(1) of the
Family
    Law Rules
,

O. Reg. 114/99, which presumptively entitles the
    successful party to costs, where appropriate.  Furthermore, while sections
    59 and 60 of the
Childrens Law Reform Act
, which concern the
    disposition of property, are explicitly exempted from the list of cases and
    courts to which the rules apply in subrule 1(2) of the
Family Law Rules
,
    section 46, namely the section that incorporates the convention, is not.

[41]

Counsel
    agreed on the quantum of costs on the appeal. Costs of the appeal are to be
    paid by the appellant father in the all-inclusive amount of $15,000.

RELEASED:
October 2, 2012  KF

E.
    Ducharme J.A.

I
    agree K. Feldman J.A.

I
    agree Robert J. Sharpe J.A.





[1]
The trial judge in this case refers to Perkins J. of the
    Superior Court of Justice. This application was initially heard and dismissed
    at first instance by Brownstone J. of the Ontario Court of Justice on May 27,
    2011. However, Brownstone J.s decision was appealed to the Superior Court of
    Justice and the parties consented to that court allowing the appeal. The
    parties then further consented to a new hearing of the application before the
    Superior Court of Justice. Perkins J. of the Superior Court of Justice heard
    the application and dismissed it. This is the appeal from that order.


