





CITATION:
Issasi v. Rosenzweig, 2011 ONCA 198



DATE: 20110311



DOCKET: M39807, M39812, M39818 (C52822)



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O. (In Chambers)



BETWEEN



Amparo
          Marlen Rodriguez Issasi



Applicant (Respondent
          on Appeal)




and



Kenneth Espinal Rosenzweig



Respondent (Appellant
          on Appeal)








Jeffery Wilson, for the respondent and appellant on appeal

Philip Epstein, for the applicant and respondent on appeal

Lorne Waldman, for the proposed intervener, the United
          Nations High Commissioner for Refugees

Jacqueline Swaisland, for the proposed intervener, the
          Canadian Civil Liberties Association

Angus Grant, for the proposed intervener, the Canadian
          Council for Refugees

Sean Hanley, for the Attorney General of Ontario



Heard:
March 10, 2011







ENDORSEMENT



[1]

Three motions for leave to intervene were brought in
    this appeal. The United Nations High Commissioner for Refugees (the UNHCR),
    the Canadian Council for Refugees (the CCR) and the Canadian Civil Liberties
    Association (the CCLA) have all brought motions to intervene as friends of
    the court.  The motions were heard
    together.

The Underlying Appeal

[2]

The underlying appeal is
of an order of Justice Czutrin of the
    Superior Court of Justice, in which he granted an application under the
Hague Convention on the Civil Aspects of
    International Child Abduction
(the
Hague Convention
) to have a then thirteen year old girl returned to her
    purported habitual residence with her mother in Mexico.  The parties to the appeal are the girls
    parents.  The applicant and respondent on
    appeal is the girls mother (the mother).  The respondent and appellant on appeal is the
    girls father (the father).

[3]

Pursuant to Justice Czutrins order the child was
    returned to Mexico where she is currently living.

[4]

At the time of the Superior Court hearing, the child
    was a Convention refugee living in Canada.  She did not testify at the Superior Court hearing.

[5]

The appeal raises questions about the proper
    relationship between the
Hague Convention,
which is incorporated into Ontarios
Childrens
    Law Reform Act,
and the federal
Immigration

and

Refugee Protection Act
, which incorporates provisions of
    international law that prohibit the
refoulement
of refugees.

[6]

In addition, constitutional issues have been raised on
    appeal.  The father, on appeal, has
    asserted that his section 7 rights under the
Charter of Rights and Freedoms
have been contravened because he did
    not receive adequate notice of the Superior Court application. He further
    asserts that his daughters section 7 and section 12 rights under the
Charter
have been contravened

because her liberty and security
    interests were affected without giving her notice or an opportunity to be
    heard.

[7]

There are two pending motions in this appeal scheduled
    for March 30, 2011. The appeal itself is scheduled to be heard on April 13,
    2011.  The mother has brought a motion to
    quash the appeal as an abuse of process.  The father has brought a motion to have the Office
    of the Childrens Lawyer assign counsel to represent the child.

[8]

The Attorney General of Ontario has also exercised his
    right to intervene in this matter.

Request for Adjournment

[9]

The mothers first position is that the motions to
    intervene should themselves be adjourned.  Her counsel asserts that the dates for these
    motions to intervene should be set by the panel for a date to occur sometime
    after the March 30 motion to quash is heard and determined.  Counsel for the mother asserts that the mother
    is indigent and that his firm is working
pro
    bono
on this case. He asserts that he should not be required to devote
    considerable resources to respond to three motions to intervene, and then
    potentially three intervener factums, until after his motion to quash is heard
    and it is determined that the appeal is going to proceed.

[10]

I am not prepared to adjourn this motion. The appeal is
    scheduled to be heard on April 13, 2011. Both parties recognize the importance
    of dealing with this matter expeditiously and in oral argument both asserted
    that the hearing should proceed on the scheduled day. There would not be enough
    time between March 30 and April 13 for these motions to intervene to be heard
    and determined, for the interveners to file their factums, and for the parties
    to reply to these factums if necessary.  Despite
    counsel for the mothers submission in oral argument that he thought the appeal
    hearing should continue to go ahead on April 13, 2011, his submissions in his factum
    were that the hearing of the appeal should also be adjourned to a date to be
    set by the panel. Realistically, this would be the necessary consequence of
    delaying these motions.  I am not prepared
    to cause such a delay in a case of this nature.

The Test for Intervention

[11]

Dubin C.J.O. is frequently cited as succinctly
    articulating the test for determining a motion to intervene in
Peel (Regional Municipality)
v.
Great Atlantic and Pacific Co. of Canada
(1990),
    74 O.R. (2d) 164:  
[T]he matters to be considered are the nature of the case, the
    issues which arise and the likelihood of the applicant being able to make a
    useful contribution to the resolution of the appeal without causing injustice
    to the immediate parties.


The Proposed Interveners

[12]

The UNHCR was established in 1950 and is entrusted with
    the mandate to provide international protection to refugees and, together with
    governments, to seek solutions to the problem of refugees.  One of its roles under its enacting statute
    is supervising [the] application of international conventions for the
    protection of refugees.

[13]

Counsel for the UNHCR asserts that it only selectively
    intervenes in domestic cases, but that the interaction between the
Hague Convention
and the principle of
non-refoulement
raised in this case is
    of high importance and has not previously been addressed by an appellate level
    court.  Given the unique role and expertise
    of the UNHCR in addressing refugee related matters, I am content that it can
    make a useful contribution to the consideration of the issues raised in this
    appeal.

[14]

The CCR is a national, non-profit organization founded
    in 1978.  It is an umbrella organization
    comprising approximately 170 member agencies that work with and on behalf of
    refugees and immigrants in Canada.  Its
    mandate is to promote, protect and advance the rights of refugees and
    immigrants in Canada.  It asserts that it
    has intervened in every major refugee case in Canada over the last 20 years.

[15]

There is likely some overlap between the expertise of
    the CCR and the UNHCR, but given that the CCR represents Canadian organizations
    that advocate for refugees in Canada, I am satisfied that its perspective is
    different than that of the UNHCR and that they both can make useful
    contributions in this appeal.

[16]

The CCLAs mandate is to promote and protect
    fundamental rights and liberties. The CCLA has been granted intervener or party
    status in many cases relating to civil liberties. They cite 139 such cases in
    an exhibit to their factum.  Its work
    includes advocacy and education concerning human rights in the immigration
    context.

[17]

Counsel for the mother asserts that section 7 was not
    raised at the application stage and that an insufficient factual record has
    been established to argue constitutional issues. The fact is, however, that the
    father has raised section 7 and asserts that there is an adequate record to
    address these issues.  The question of
    whether section 7 should or should not be considered in this matter is better
    left for the panel hearing the appeal to decide.

[18]

The CCLA has an established interest and expertise in
    matters relating to civil liberties.  I
    am satisfied that the CCLA can make a useful contribution in speaking to the
    section 7 issues that are raised in this appeal.

Will injustice be caused to the parties?

[19]

Counsel for the mother opposes all the motions to
    intervene, but has not asserted any arguments that demonstrate that their presence
    will cause injustice.  Conditions can be
    placed on the interveners participation such that their submissions are
    limited to their areas of expertise and their submissions are contained.  Furthermore, a timeline can be established such
    that any response the mother may want to make to the factums of the interveners
    would not be due until after the motion to quash has been heard.

[20]

While this is a private dispute between two parents
    regarding their daughter, it raises public interest issues that have widespread
    domestic and international importance. In such cases it is appropriate to allow
    public interest interveners, who can make a useful contribution, to be
    permitted to intervene unless their presence causes an injustice:
Childs
v
. Desormeaux
(2003), 67 O.R. (3d)
    385.  I do not see how the presence of
    the proposed interveners would cause an injustice.

[21]

Accordingly, I grant the motions for leave to intervene,
    subject to the following conditions, which apply to all interveners, including
    the Attorney General.

1.         The interveners must accept the record
    as it exists and not seek to augment the record.

2.         The interveners shall not duplicate the
    written or oral arguments of the other parties.

3.         The UNHCR will be restricted to making
    submissions related to the areas stated in section 12 of its factum which are
    the following:

a.      The scope and content of the principle of
non-refoulement
under international law.

b.      The interpretation and application of the
    prohibition of expulsion of refugees lawful in the territory of a Contracting
    State.

c.      The interaction between the
1951 Convention relating to the Status of
    Refugees
(the 
Refugee Convention
)
    and the
Hague Convention
.

d.      A child-sensitive application of the
Refugee Convention
and the
Hague Convention
consistent with the
Convention on the Rights of the Child
.

e.      Application of the
Convention on the Rights of the Child
in the context of refugee
    children.

4.         The CCR will be restricted to making
    submissions on issues raised in paragraphs 38- 42 of its factum which, in
    summary, are as follows:

a.

The appropriate application of Canadian and
    international law to refugees and refugee claimants in Canada in general and in
    this case specifically.

b.

The analysis and role of the Immigration
    and Refugee Board in assessing refugee claims of child victims of abuse.

c.

The appropriate role and expertise of
    the Immigration and Refugee Board.

d.

The appropriate interaction of the
Hague Convention
and the
Refugee Convention.

5.         The CCLA will be restricted to making
    submissions on issues reflected in paragraphs 21 and 22 of the affidavit it has
    submitted from Noa Mendelsohn Aviv in this motion which, in summary, are issues
    related to the application of section 7 of the
Charter
to this case.

6.         Each intervener may file a factum not
    to exceed 12 pages in length on or before March 21, 2011.

7.         Each intervener may have up to 10
    minutes in oral argument at the discretion of the panel.

8.         The mother may deliver a supplementary
    factum, if necessary, on or before April 6, 2011.

9.         The mother will be given 30 minutes in
    addition to the current 50 minutes that is currently allotted to her to make
    submissions.

10.       The interveners will not be able to
    intervene in either of the motions that are currently scheduled for March 30,
    2011.

11.       The interveners will not seek costs nor
    be subject to costs awarded against it.

W.
    Winkler CJO


