



COURT OF APPEAL FOR ONTARIO

CITATION: Farsi v. Da Rocha, 2020 ONCA 92

DATE: 20200206

DOCKET: C67586

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Doriane Laura Farsi

Applicant (Appellant)

and

Pedro
    Rafael Pereira Da Rocha

Respondent (Respondent)

Steven M. Bookman and Gillian Bookman, for the appellant

Darlene Rites, for the respondent

Heard: January 13, 2020

On appeal from the order of Justice Freya Kristjanson of
    the Superior Court of Justice, dated September 27, 2019, with reasons reported
    at 2019 CarswellOnt 16957.

Gillese J.A.:

[1]

How is the habitual residence of a child to be
    determined, for the purpose of an application under the
Convention
    on the Civil Aspects of International Child Abduction
,
    Can. T. S. 1983 No. 35 (
Hague Convention
),
    when the parents assert competing claims of wrongful taking and retention of
    the child? That question lies at the heart of this appeal.

A.

overview

[2]

The child in question was born in Toronto and
    raised there by both parents until October 2018, when she was six months old. At
    that time, her mother took her to France. Four months later, in February 2019,
    the father travelled to France and brought the child back to Ontario.

[3]

The parents have very different versions of the
    circumstances in which the child was both taken to France and brought back to
    Ontario. Each says the other wrongfully took the child or wrongfully retained
    her or both.

[4]

The mother brought a
Hague Convention

application in Ontario (the Application) in which she alleged
    that the child was habitually resident in France in February 2019 and had been
    wrongfully removed to Canada. She asked the court to order that the child be returned
    to France.

[5]

The application judge dismissed the Application.
    She found that the child was habitually resident in Canada until October 28,
    2018, when the parties relationship ended. She further found that the childs habitual
    residence remained Canada, despite her having lived in France with her mother from
    mid-October 2018 to the end of February 2019. Because the child was not
    habitually resident in France in February 2019, the provisions of the
Hague
    Convention
did not apply.

[6]

On appeal, the mother contends that the
    application judges decision offends the
Hague Convention

and the principles set out by the Supreme Court of Canada in
Office
    of the Childrens Lawyer v. Balev
,
2018 SCC 16,
[2018] 1 S.C.R. 398.

[7]

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

B.

BACKGROUND IN Brief

[8]

There were many factual disputes between the
    parties. In this section, I set out the relevant uncontested background facts and
    the positions that each party took on the Application. A full appreciation of
    the factual circumstances can be gained only by reading this section in
    conjunction with the application judges detailed factual findings, summarized
    in the following section.

[9]

Doriane Farsi (the appellant) is a French
    citizen. In January 2017, she was working (on a visa) as a waitress in Toronto when
    she met Pedro Da Rocha (the respondent). The respondent is a Portuguese citizen
    and a permanent resident of Canada. He lives in Toronto where he works as a
    roofer. He has a close relationship with his parents and his sister, all of
    whom also live in Toronto.

[10]

The appellant and respondent began dating in May
    2017. From June 2017 to October 2018 they lived together, with the respondents
    parents, in the respondents parents home in Toronto.

[11]

In April 2018, the appellant and respondent had
    a child, M.D. Having been born in Canada, M.D. is a Canadian citizen. The
    parties jointly parented M.D. When they were working, the respondents mother cared
    for M.D.

[12]

In July 2018, the appellant took M.D. to France
    for a visit to meet her maternal relatives. During this time, the respondent saw
    M.D. regularly through Facebook Messenger. When the appellant and M.D. returned
    to Toronto in August 2018, the parties and their child continued to live with the
    respondents parents in their home and the paternal grandmother resumed her
    role as the childs caregiver when the parties were working.

[13]

On October 14, 2018, the appellant travelled to
    France with M.D., where they remained until February 2019.

[14]

On February 24, 2019, the respondent travelled
    to France. On February 28, 2019, he returned to Ontario with M.D. He and M.D. continue
    to live in Toronto. As before, they reside with his parents in their home and his
    mother cares for M.D. when he is working. The appellant continues to live in
    France.

[15]

In early May 2019, the appellant started a
Hague
    Convention

application in France seeking the childs
    return. The Hague Central Authority in France sent a request for the childs return
    to the Hague Central Authority in Ontario. When that request was refused, the appellant
    brought this Application, dated May 27, 2019, seeking the childs return to France.

[16]

Two events played a critical role in the Applications
    determination: what happened in October 2018 when the appellant took the child
    to France and what happened in February 2019 when the respondent brought the
    child back to Ontario. The parties evidence on these two matters diverged
    dramatically.

(1)

The appellants evidence on the Application

[17]

The appellant said she ended her relationship
    with the respondent when she returned to Toronto from France in August 2018 and
    that she relocated permanently to France, with the child, on October 14, 2018, with
    the respondents full knowledge and consent. Once in France, she and the
    respondent communicated regularly. He interacted with M.D. by video
    communication on almost a daily basis. She said that the respondent encouraged
    her to return to Toronto with M.D. so that they could continue living together
    as a family and sent her photographs of apartments he proposed to rent so they
    could move out from his parents home. She declined to return but encouraged
    him to travel to France to visit with M.D.

[18]

The appellant said that the respondent made no
    commitment to visit France but arrived on short notice in February 2019 and
    asked to be allowed to take the child to Canada for a one-month vacation. She
    agreed and signed a pre-prepared travel consent form that he had brought with
    him. In her affidavit filed on the Application, it was alleged that she handwrote
    on the travel consent form that the child was to be returned to her in France
    at the end of the one-month vacation.

[19]

The appellant said that, at the end of March
    2019, the respondent refused to return M.D. to France. So, on April 6, 2019,
    she and her grandmother went to Toronto for the purpose of picking up M.D. and
    returning with her to France. While in Toronto, she was served with court
    documents from which she learned that the respondent was seeking sole custody
    of M.D. The following day, she met with legal counsel in Toronto. Arrangements
    were made so she could see M.D., but only after she surrendered her passport.

[20]

The appellant returned to France and started a
Hague
    Convention
application there. The French authorities requested
    the childs return to France. When the respondent ignored that request, she
    commenced this Application.

[21]

In the Application, the appellant alleged that when
    the respondent removed the child from France on February 28, 2019, he falsely
    indicated that he was taking the child for a one-month vacation in Ontario, and
    that since the one-month period expired in March 28, 2019, the respondent had wrongfully
    retained the child in Canada.

(2)

The respondents evidence on the Application

[22]

The respondent said that the appellant took M.D.
    to France on October 14, 2018, with his consent, for a two-week visit to sign documentation
    relating to her grandmothers inheritance.

[23]

When the appellant told him in a video chat on
    October 28, 2018, that she would not return to Canada with the child, he
    immediately hired a lawyer and started an application under the
Hague
    Convention
for the return of the child to Canada. Through
    this application, he sought the assistance of the Hague Central Authority in
    Ontario and in France in securing M.D.s return to Ontario. The French
    authority requested additional documentation about the childs habitual
    residence, including M.D.s medical records. He and his lawyer began taking
    steps to obtain the requested documentation.

[24]

The respondent said that from November 2018 to
    January 2019, the appellant frequently complained about caring for M.D. and told
    him that he could come to France to pick up M.D. However, the appellant would
    not confirm a date for M.D.s return to him. In January 2019, the appellant agreed
    to return M.D. to his care in Toronto. He flew to France on February 24, 2019
    to pick up M.D. The appellant gave him M.D.s passport and signed a travel
    consent form, prepared in advance by his lawyer, which allowed M.D. to return
    to Toronto with him in February or March 2019. He said that the appellant did
    not handwrite anything on the travel consent form or indicate that M.D. was to
    be returned to her in France after one month.

[25]

The respondent and M.D. flew back to Canada on
    February 28, 2019. M.D. has been in his sole care since then. He and M.D. continue
    to reside with his parents in their home and his mother cares for M.D. when he is
    working. He and M.D. have a strong and loving relationship with his parents and
    his sister.

[26]

Once back in Toronto with M.D., the respondent instructed
    his lawyer to advise the Hague Central Authority in Ontario of M.D.s return. His
    application was subsequently closed. In early April 2019, the respondent started
    custody proceedings in Ontario, seeking sole custody of M.D. He did so, in part,
    because he feared that the appellant would come to Toronto, abduct M.D., and take
    her to France.

C.

The decision BELOW


[27]

The application judge made extensive findings of
    fact, which I summarize below.

·

The parties lived together in Toronto from June
    2017 to October 2018, with the respondents parents in the parents home. M.D.
    was born in April 2018 and is a Canadian citizen. The appellant took a
    three-month maternity leave and then returned to work as a waitress. The
    respondent continued to work full-time as a roofer. The parties jointly
    parented M.D. after her birth in April 2018 and jointly exercised the rights of
    custody. Both shared the responsibilities of caring for M.D., including
    changing diapers, and bathing, feeding, and playing with her. M.D.s paternal
    grandmother assisted with childcare when the parties were working. The
    relationship between the appellant and the paternal grandmother was strained (paras.
    16-17).

·

M.D. was a patient of a Toronto health clinic
    and attended five appointments in her first six months of life. Her six-month well-baby
    appointment was on October 11, 2018, three days before the appellant relocated
    to France with her. Nothing in the clinical notes and records suggests that the
    appellant indicated that she was relocating with M.D. to France. On the
    contrary, the notes show that the nurse discussed an optional 9-month visit and
    a 12-month visit, which are consistent with M.D. remaining in Canada (paras.
    18-19).

·

Before her departure for France in October 2018,
    the appellant and respondent took steps for her to become a permanent resident
    in Canada. They met with an immigration consultant in June 2018 and started the
    spousal sponsorship process so that the appellant could obtain permanent
    resident status in Canada. They collected letters of support and, in August
    2018, the appellant requested and obtained her criminal records from France for
    the purpose of that process. The appellant applied for an Ontario drivers
    licence. The parties also had a joint bank account in Toronto (paras. 20-22).

·

The respondent consented to the appellant
    travelling to France with M.D. in October 2018 for two weeks to deal with legal
    matters, at which point the appellant and M.D. were to return to Canada (para.
    24).

·

The appellant did not break up with the
    respondent in August 2018, as she asserted. Contemporaneous text messages were inconsistent
    with this assertion. They include: a text from the appellant to the respondent
    on October 14, 2018, the day she left Toronto, which she signed, Kiss love; a
    text the following day in which she wrote OK sleep well then kiss love u to
    which the respondent replied I love you too babe; and various kiss texts
    exchanged by the parties in the period around October 14. Nor is the assertion consistent
    with the evidence of the parties search for an apartment to rent in Toronto. The
    parties were looking at apartments before the appellant left on October 14 so that
    they could move out from the paternal grandparents home. The respondent
    continued the search in the initial period after the appellant left for France.
    On October 23, 2018, the respondent sent the appellant a text message in which
    he attached five apartment listings in Toronto (paras. 24-27).

·

The parties broke up on October 28, 2018, when the
    appellant told the respondent that she had no intention of returning with M.D. to
    Canada. This finding is consistent with the text messages between the parties that
    follow the October 28 revelation. It is also consistent with the respondents actions
    that immediately follow the revelation. In less than a week, he had retained
    counsel, started a
Hague Convention
application and, through it, requested
    the assistance of the Hague Central Authority in Ontario and in France to
    secure M.D.s return (paras. 28-31, 34).

·

There was a paucity of evidence about M.D.s life
    and circumstances in France from October 2018 to February 2019. In her original
    affidavit, the appellant does not mention M.D. or her living conditions and
    ties in France. In her reply affidavit, sworn on September 9, 2019, the appellant
    states only that M.D. lived with her during that time and that she had been M.D.s
    primary caregiver since birth. The application judge noted that she did not accept
    this evidence as she found that the parties jointly parented M.D. until the
    appellant failed to return to Canada at the end of October 2018 (para. 33).

·

Before the respondent returned to Canada on
    February 28, 2019, with M.D., the appellant gave him M.D.s passport and signed
    a travel consent form that expressly permitted M.D. to travel with him to
    Toronto in February or March of 2019. The application judge found that there
    was no handwriting on the consent form as the appellant had stated in her
    Application and original affidavit. The application judge noted that the law
    office representing the appellant took responsibility for this statement, saying
    that it was a drafting error due to miscommunication. In light of this, the
    application judge stated that she did not go behind the statement. She found that:
    the appellant never handwrote on the consent form that M.D. was to be returned
    to her in France after one month; the consent form allowed the respondent to
    travel with M.D. to Toronto in either February or March of 2019; and, the consent
    form did not stipulate a return date to France or make mention of return travel
    to France (paras. 37-39).

·

On March 30, 2019, the respondent informed the
    appellant that he was seeking a custody order of the child from the Ontario
    courts (para. 40).

·

The appellant and her grandmother came to Canada
    on April 6, 2019, seeking M.D.s return to France (para. 40).

·

On May 2, 2019, the appellant made an
    application to the Hague Central Authority in France for a request for the
    childs return. France sent the request but it was refused. The appellant then
    started this Application on May 27, 2019 (para. 40).

[28]

Based on these findings, the application judge
    found that: until October 28, 2018, M.D.s habitual residence was Canada; the
    appellant had the respondents consent for a two-week trip to France, not a
    relocation; between October 28, 2018, and February 28, 2019, M.D. was
    wrongfully retained in France; both parents were exercising custodial rights at
    the time that the appellant wrongfully retained M.D. in France; M.D.s habitual
    residence did not change in the four months in which she was retained in
    France; and M.D.s habitual residence remains Canada (para. 14).

[29]

The application judge acknowledged that the
    Application required her to determine the childs habitual residence on
    February 28, 2019 (paras. 6 and 42). However, in her view, the hybrid approach
    in
Balev
required that she examine all relevant factors in the childs
    circumstances immediately prior to that date, including a factual examination
    of why M.D. was in France on February 28, 2019 (paras. 11, 49-50).

[30]

At para. 52 of the reasons, the application
    judge held that the appellants wrongful retention of M.D. in France from the end
    of October 2018 to the end of February 2019 did not change M.D.s habitual
    residence to France, saying:

Other than the evidence that the child lived
    with her mother in this period, I have no information about the child's ties
    and circumstances. [The appellant] unilaterally and wrongfully attempted to
    change M.D.'s residence to France, through a deceptive removal and retention,
    without the knowledge or valid and informed consent of [the respondent].
    Immediately before March 28, 2019, M.D.'s habitual residence was Toronto, and
    this remained M.D.'s habitual residence in February and March 2019.

[31]

As a result, the application judge found that M.D.
    had not been wrongfully removed from France nor wrongfully retained in Ontario
    and she dismissed the Application.

D.

THE ISSUES

[32]

The appellant raises many grounds of appeal.
    They can be considered under two broad issues. Did the application judge err:

1.

by focusing on the wrong time frame and issue?

2.

in her determination of the childs habitual residence?

[33]

After considering these broad issues, I address two
    additional discrete issues that the appellant raised. Did the application judge
    err:

3.

in finding that the appellant returned to full-time employment when
    the child was three months old? and/or

4.

by improperly permitting the respondent to file fresh affidavit evidence
    late in the process?

E.

STANDARD OF REVIEW

[34]

Before analyzing the issues, it is important to
    recall the high bar that
Balev
sets for appellate review: habitual
    residence determinations are to be deferred to, absent a palpable and
    overriding error. The Supreme Court explains at para. 38 of
Balev
:

Under Canadian law, whether habitual residence
    is viewed as a question of fact or a question of mixed fact and law, appellate
    courts must defer to the application judges decision on a childs habitual
    residence, absent palpable and overriding error. The need for deference may be
    inferred from the intention of the original states parties and the decision not
    to define habitual residence in the body of the
Hague Convention
. The goal was to avoid legal technicalities and to adopt a
    fact-based determination. [
Citations omitted
.]

[35]

A palpable and overriding error is one that is
    clearly wrong, unreasonable, or not reasonably supported on the evidence:
H.L.
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1 S.C.R.
    401, at para. 110. The Supreme Court recently explained in
Salomon
    v. Matte
‑
Thompson
, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, [w]here the
    deferential standard of palpable and overriding error applies, an appellate
    court can intervene only if there is an obvious error in the trial decision
    that is determinative of the outcome of the case.

F.

ANALYSIS

(1)

Did the application judge err by focusing on the wrong time frame
    and issue?

[36]

The appellant says that the application judge
    was obliged to determine whether M.D. had been wrongfully removed from France
    on February 28, 2019, or wrongfully retained in Ontario after March 28, 2019.
    Instead, the appellant submits, the application judge focused on an issue that
    she had no jurisdiction to determine: whether M.D. was wrongfully retained in
    France after the end of October 2018. The appellant says that under the
Hague
    Convention
, only the Central Authority in France and the
    French courts had the jurisdiction to make that determination.

[37]

I do not accept this submission.

[38]

The application judge recognized that her obligation
    on the Application was to determine whether M.D. had been wrongfully removed
    from France on February 28, 2019, or wrongfully retained in Ontario after March
    28, 2019 (paras. 6, 10 and 42). She also recognized that Article 3 of the
Hague
    Convention

required that she determine where M.D. was
    habitually resident immediately before February 28, 2019, the date of the alleged
    wrongful removal (para. 9).

[39]

However, the application judge did not accept
    that, in determining M.D.s habitual residence on February 28, 2019, she had no
    jurisdiction to consider the childs earlier alleged wrongful retention
    commencing October 28, 2018 (para. 10).

[40]

The application judge was of the view that to determine
    M.D.s habitual residence at the end of February 2019, she had to examine all
    the relevant facts in the childs circumstances leading up to that date, including
    the alleged earlier wrongful retention.

[41]

I agree with the application judge that, in
    determining M.D.s habitual residence immediately before the alleged wrongful
    removal on February 28, 2019, the hybrid approach in
Balev

required that she look at the entirety of M.D.s situation,
    unencumbered by rigid rules, formulas, or presumptions:
Balev
,
at para. 47
.
In this case, the
    entirety of M.D.s situation includes her habitual residence on October 28,
    2018, and the circumstances under which she remained in France after that date.

[42]

Accordingly, in my view, the application judge
    made no error in deciding where M.D. was habitually resident on October 28,
    2018, and her consideration of the circumstances in which the child remained in
    France for the ensuing four months. In so doing, the application judge was not deciding
    the wrong issue and time frame. Rather, her decision on those matters were some
    of the considerations that informed her determination of the issue before her 
    whether M.D. was habitually resident in France on February 28, 2019, the date
    on which the respondent brought M.D. back to Canada.

(2)

Did the application judge err in her determination
    of the childs habitual residence?

[43]

The appellant submits that, in determining that the
    childs habitual residence on February 28, 2019 remained Canada, the application
    judge erred in her application of the principles in
Balev
by:

(i)

improperly relying on the principle that one
    parent cannot unilaterally change a childs habitual residence;

(ii)

adopting the parental intention approach which
Balev
largely overruled;

(iii)

failing to recognize that the infant childs
    habitual residence was tied to that of the appellant, her primary caregiver; and

(iv)

failing to examine the focal point of the
    childs life just prior to the wrongful removal (February 28, 2019) or wrongful
    retention (March 28, 2019).

[44]

In my view, the application judge made none of
    the alleged errors.

(i)

A unilateral change to a childs habitual residence

[45]

The
    appellant argues that the application judge failed to recognize that
Balev

says that one parent can unilaterally change a childs habitual residence.
    I disagree.

[46]

At
    para. 12 of her reasons, the application judge sets out six points from
Balev

which are to guide the courts in assessing habitual residence. The fifth
    point is that the actions of one parent may unilaterally change the habitual
    residence of a child. She cites to para. 46 of
Balev

for this point.

[47]

In
    para. 46 of
Balev
, a majority of the Supreme Court states that there
    is no rule that the actions of one parent cannot unilaterally change the habitual
    residence of a child. It explains that imposing such a legal construct onto the
    habitual residence determination detracts from the task of the finder of fact
    to evaluate all the relevant circumstances in determining where the child was
    habitually resident at the date of wrongful removal or retention.

[48]

In
    any event, the application judges finding that M.D.s habitual residence, on
    February 28, 2019, remained Canada was not based on a misguided understanding
    of the role that one parents unilateral actions might play, as the appellant
    submits. As the application judge explains at para. 52 of her reasons, it was the
    lack of information about M.D.s life, ties and circumstances in the period
    from October 2018 to February 2019 that led her to find that M.D.s habitual
    residence did not change from Canada.

(ii)

The role of parental intention

[49]

Relying on para. 45 of
Balev
, at para. 12 of her
    reasons, the application judge says this about
parental
    intention:

(d) the circumstances of the parents,
    including their intentions, may be important particularly in the case of young
    children, but parental intention is an indicator to be considered in the
    context of the entire body of evidence and specific factual circumstances in
    each case[.]

[50]

At para. 13 of her reasons, the application
    judge adds that parental intention is a relevant consideration under the
Balev

framework, as is the purpose, nature and duration of
    consent to travel to and remain in a country.

[51]

In analyzing M.D.s habitual residence, the
    application judge took into account parental consent in accordance with these propositions
    from
Balev
. She found that the respondent did
    not consent to the appellant relocating with M.D. to France  he consented to M.D.
    being in France with the appellant for the two- week period from October 14 to
    October 28, 2018. Consequently, the application judge found, when the two-week
    period expired at the end of October 2018, the appellant wrongfully retained
    M.D. in France.

[52]

The application judge made no palpable and
    overriding error in these findings. Nor did she place undue weight on the fact
    of the wrongful retention when determining whether M.D. was habitually resident
    in France as of February 28, 2019. The application judge acknowledged that M.D.
    had been living in France for four months, with the appellant, before the
    respondent took her back to Ontario. However, as I have noted, there was a
    paucity of evidence on M.D.s circumstances and ties in the four-month period.

(iii)

Primary caregiver and its relation to the childs
    habitual residence

[53]

At para. 51 of the reasons, the application judge
    rejected the appellants argument that she was obliged to find that, on
    February 28, 2019, M.D.s habitual residence was France because for an infant,
    the focal point of the infants life is who looked after her and in the
    four-month period leading up to February 28, that was the appellant. In the
    circumstances of this case, this was not a palpable and overriding error.

[54]

The focal point of a childs life is based on the
    family and social environment in which its life has developed:
Balev
,
at para. 43. M.D. was born in Canada.
    Up until October 28, 2018, she enjoyed the care of both of her parents. She had
    a close relationship with her paternal grandparents, who cared for her when the
    parents could not. M.D. also had a primary care physician in Toronto, with whom
    she had regular appointments.

[55]

There was no similar evidence about M.D.s life,
    ties and circumstances in the four-month period between October 2018 and
    February 2019. The only evidence the appellant provided on these matters was the
    bald statement that M.D. lived with her during that time. She gave no evidence
    about where she and M.D. were living or with whom, where the appellant was working
    (if she was working at all), or whether M.D. was involved with the appellants extended
    family. The only evidence on the last point came from the respondents
    affidavit in which he set out his limited understanding that the maternal
    grandmother may have been involved in M.D.s care.

[56]

Given the paucity of evidence about M.D.s
    circumstances in the relevant period, the application judge was unable to
    conclude that M.D.s habitual residence had changed to France. I see no
    palpable and overriding error in the application judges conclusion.

(iv)

The focal point of the childs life on February
    28, 2019

[57]

For the reasons already given, I see no palpable
    and overriding error in the application judges finding in respect of the focal
    point of M.D.s life immediately before the alleged wrongful removal on
    February 28, 2019. She properly articulated the legal principles that govern
    this matter (see paras. 12, 49-52). She found that as of October 28, 2018, M.D.s
    habitual residence was Canada. The paucity of evidence on M.D.s ties and
    circumstances in France between then and February 28, 2019, led the application
    judge to find that M.D.s habitual residence had not changed.

(3)

Did the application judge err in finding that
    the appellant returned to full-time employment when the child was three months
    old?

[58]

The appellants evidence was that she returned
    to work in September 2018 when M.D. was five months old. The respondents
    evidence was that the appellant took three months of maternity leave and
    returned to work.

[59]

The application judge found that the appellant
    returned to full-time employment when M.D. was three months old (the first
    finding). She also found that the appellant vacationed in France, with M.D.,
    from July 14 to August 24, 2018 (the second finding). At that time, the
    appellant says, M.D. was three months old.

[60]

The appellant submits that the first finding is
    inconsistent with the second and must be the result of a palpable and
    overriding error. How could M.D. both be three months old when the appellant
    returned to work and three months old when she was away with M.D. on vacation
    in France? She also submits that the application judge made the first finding
    because she accepted the respondents evidence as credible.

[61]

I do not accept either submission.

[62]

I do not accept that the application judge made
    a palpable and overriding error in making the first finding. As I explain
    above, a palpable and overriding error is one that is clearly wrong,
    unreasonable, or not reasonably supported on the evidence. The first finding is
    none of those things. However, even if the application judge did make such an
    error, it does not rise to the level required for appellate intervention,
    namely, that the error was determinative of the outcome of the case. This was
    but one of a host of considerations that went into the application judges
    determination of M.D.s habitual residence. As I explain above, this court
    cannot intervene unless there is an obvious error that is determinative of the
    outcome.

[63]

I also reject the appellants second submission on
    this ground of appeal: that the application judge accepted the respondents
    evidence simply because she found the respondent credible. Respectfully, this fundamentally
    misstates the way in which the application judge approached the task of making findings
    of fact.

[64]

On every key issue, the application judge set
    out the main conflicts in the evidence of the parties. She then gave careful,
    detailed reasons explaining her finding on the issue and why she made it. Importantly,
    the application judge thoroughly canvassed all the evidence on each such issue,
    including the independent evidence of third parties and contemporary
    documentation. Her findings are solidly grounded in the totality of evidence
    before her.

[65]

One example is sufficient to demonstrate that
    this was the application judges approach to fact finding. The appellant said that
    she ended her relationship with the respondent in August 2018 when she returned
    to Toronto from vacationing in France. The respondent said that their
    relationship ended on October 28, 2018, when the appellant told him that she
    was staying in France with M.D. and not returning to Toronto.

[66]

The application judge set out the competing
    versions of when the parties relationship ended. She then examined what
    happened in August 2018 after the appellant returned to Toronto. She referred
    to the independent evidence verifying the steps that the parties took in that
    period for the appellant to become a permanent resident of Canada and their search
    for apartments to rent. She also considered M.D.s medical records, which showed
    no evidence that the appellant was going to relocate to France. The application
    judge also looked at the luggage that the appellant took with her when she left
    on October 14, a matter discussed more fully below. Further, she considered the
    text messages that the parties exchanged between October 14 and 28, 2018  contemporaneous
    documentary evidence. Finally, she considered the evidence of what transpired
    after October 28, including the text messages exchanged between the two parties
    and the timing of the respondents
Hague Convention
application. Only after considering and weighing all of that
    evidence, did the application judge come to the conclusion that the parties
    relationship ended on October 28, 2018.

[67]

In the result, it is correct to say that the application
    judge largely accepted the respondents version of events  but it is not
    correct to say that she did so simply because she found him credible. As the
    application judge explains at para. 41 of the reasons, she preferred the
    respondents evidence on the key issues because the appellants evidence
    suffered from numerous inconsistencies and significant critical omissions. It
    was also contradicted by contemporaneous documents and other independent
    evidence.

[68]

In my view, the application judges approach to
    fact finding was exemplary. I see nothing in this ground of appeal.

(4)

Did the application judge err by improperly
    permitting the respondent to file fresh evidence late in the process?

[69]

The respondent late filed an affidavit sworn by
    his sister on September 13, 2019 (the sisters affidavit). In it, the sister
    swore that the appellant took with her two suitcases, a stroller and a diaper
    bag when she travelled to France with M.D. in October 2018. As can be seen from
    para. 32 of the reasons, the application judge relied on the sisters affidavit:

I find that [the appellant] took two
    suitcases, a stroller and a diaper bag  not suspicious for travel with a
    six-month old, not the four suitcases [the appellant] alleges in her reply
    affidavit, given the evidence of [the respondents] sister, which I accept.

[70]

The appellant says that she was served with the
    sisters affidavit on the morning of September 16, 2019, only minutes before
    the hearing of the Application began and that she was prejudiced because she
    had no opportunity to reply to it.

[71]

I do not accept this submission.

[72]

The appellant received the sisters affidavit on
    September 13, 2019 (the day on which it was sworn), not on September 16, 2019. Counsel
    for the appellant acknowledged receipt of the sisters affidavit in a fax to
    counsel for the respondent on September 13, 2019, at 2:27 p.m. Had the
    appellant wished to do so, a responding affidavit could have been prepared.

[73]

In any event, if the appellant felt that she had
    not had sufficient time to respond to the sisters affidavit, she could have
    sought a short adjournment for that purpose. On the record, she made no such request.

[74]

Further, the application judge gave compelling reasons
    for admitting the sisters affidavit. At para. 57, she explains that she admitted
    the sisters affidavit because it provided clarity on a material issue  the
    luggage the appellant took when she travelled to France in October 2018. She
    also explains that the sisters affidavit was tendered in response to the
    appellants reply affidavit in which,
for the first time
, the appellant
    swore that when the respondent took her to the airport on October 14, she took
    with her four suitcases that contained all of her possessions and those of M.D.

[75]

In the circumstances, the application judge made
    no error in admitting the sisters affidavit.

G.

DISPOSITION

[76]

For these reasons, I would dismiss the appeal
    with costs to the respondent fixed at $13,400, all inclusive.

Released: February 6, 2020 (E.E.G.)

E.E. Gillese J.A.

I agree. Paul Rouleau J.A.

I agree. Fairburn J.A.


