



COURT OF APPEAL FOR ONTARIO

CITATION:
Paschel v. Paschel,
    2017 ONCA 972

DATE: 20171207

DOCKET: M48556 (C64611)

Pardu J.A. (In Chambers)

BETWEEN

Brittany Justine Paschel

Applicant
(Moving Party/Appellant)

and

Geoffrey Ian Paschel

Respondent
(Responding Party/Respondent)

Farrah Hudani, for the moving party

Sheila Gibb, for the responding party

Heard: December 7, 2017

On a motion seeking
    a stay of the order of Justice Jamie K. Trimble of the Superior Court of
    Justice dated November 21, 2017, ordering the return of the parties children
    to Tennessee, United States of America.

REASONS FOR DECISION

[1]

The moving party, Brittany Justine Paschel, is
    the mother of Cayvan Bain Paschel and Kazhem Hain Paschel. The responding party
    is their father. Cayvan and Kazhem were born on February 15, 2015 and February
    3, 2017, respectively. The mother moves for a stay pending appeal of Trimble J.s
    order that requiring the return of these two children to their habitual
    residence in Tennessee, U.S.A. pursuant to the
Hague Convention on the Civil
    Aspects of International Child Abduction
, 1343 UNTS 89 (entered into force
    December 1, 1983).

[2]

On July 31, 2017, the mother took the two
    children from their home in Tennessee to her mothers home in Mississauga,
    Ontario without the fathers knowledge or consent. The father commenced an
    application, which was heard on October 30, 2017, for the return of the
    children.

[3]

The mother opposed the father's application. She said they lived a nomadic lifestyle in the United States and in other countries and that the children had no habitual residence. She also said that return of the children to the place of habitual residence would expose the children to a grave risk of physical or psychological harm, or otherwise place the children in an intolerable situation within the terms of  Article 13(b) of the
Hague
    Convention
.

[4]

The mother asked for a trial, however, the
    application judge concluded that he could decide the issues on the basis of the
    written record, which was substantial.

[5]

The application judge concluded that the
    childrens habitual residence was in Tennessee, and that ordering the return of
    the children to Tennessee would not expose the children to a risk of harm of
    the nature contemplated by the
Hague Convention
.

[6]

Both parents have counsel in Tennessee. Moreover,
    there is a custody hearing, with oral evidence, set for January 23, 2018 in
    Tennessee.

[7]

What makes this case different is the fact that
    the mother cannot return to the United States. When she came back into Canada
    with her children, she told American immigration authorities that she had been
    illegally living in the United States. As a result, she is now subject to a 20
    year prohibition against entering the United States.

[8]

To make matters more complicated, the father has
    a dated criminal record that bars him from entering Canada.

The test for a stay pending appeal

[9]

My colleague, Hourigan J.A., recently summarized
    the test for a stay in this context in
Zafar v. Saiyid
, 2017 ONCA 919, at paras. 17-18:

The test for staying an order pending appeal
    under r. 63.02 of the
Rules of Civil Procedure
,
    requires the court to consider the following 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;
Warren Woods Land Corp. v. 1636891
    Ontario Inc
., 2012 ONCA 12 [In Chambers], at para. 1.

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.

The merits of the appeal

[10]

Based on the evidence before him, the
    application judges conclusion that the children were habitually resident in
    Tennessee was reasonable and amply supported by the record.

[11]

The application judges decision to decide this
    case on the basis of the written record, the 19 affidavits filed before him,
    rather than to direct a trial of the issues was a discretionary decision that
    is entitled to deference. While a trial of some issues may be necessary in some
    cases, some form of summary procedure is the norm, as this court pointed out in
Korutowska-Wooff v. Wooff
(2004)
, 242 D.L.R. (4th) 385 (Ont. C.A.), at para.
    19, 2004 CarswellOnt 3203:

The Convention contemplates a very speedy
    process for the return of children who have been wrongfully removed or retained
    outside the jurisdiction of their habitual residence. That is why the normal
    practice is to make the necessary order one way or the other based on a summary
    procedure.

[12]

The application judge referred to the
    restrictive reading of the grave harm exception described in
Thompson
    v. Thompson
,
[1994] 3 S.C.R. 551 at 595-97, and adopted in
Friedrich
    v. Friedrich
(1996)
, 78 F. 3d 1060 (U.S. C.A., 6
th
Cir.), at para. 84 of his
    reasons:

grave harm
    meant that return of the child would put the child in imminent danger between
    the time of the childs return and the custody hearing, such as returning the
    child to a location which is in a zone a) of war, famine or disease or b) where
    there is a grave risk of harm by serious abuse or neglect, or extraordinary
    emotional dependence, and c) when the court in the country of habitual
    residence may be incapable or unwilling to give the child adequate protection.

[13]

The trial judge analyzed the conflicting affidavits.
    He was not satisfied that the mother had satisfied her burden of proving that
    return of the children would subject them to grave harm.

[14]

Here, I am satisfied that the mothers appeal
    from the application judges order is not frivolous  although I cannot say it
    is likely to succeed.

[15]

The mother argues that she and the children will
    suffer irreparable harm if the children are returned to Tennessee because she
    cannot enter the United States. I am not persuaded this is the case. There is
    no reason to believe that the Tennessee courts will not make a custody decision
    on the basis of the best interests of the children, including terms about the
    location of their residence. A trial on the merits, in January 2018, in the
    country where the children are habitually resident, as opposed to prolonged
    jurisdictional wrangling, is in the best interests of the children. There is no
    reason to believe that the mother will not be able to fully participate in the
    trial by giving her evidence by video transmission if necessary. In making a
    decision about the best interests of the children, custody, access and the
    place of residence of the children, I am confident the Tennessee court will
    endeavor to get as full an account as possible from both parents.

[16]

The irreparable harm to the childrens relationship
    with their father must also be weighed in the balance. He has not had physical
    contact with his children since the mother surreptitiously removed them from
    their home. He has had sole custody of two other children, and had alternating
    monthly custody of another child now five years old with the consent of the
    biological mother, during the approximately three years the parties were lived
    together. The five year old child is now of school age and that arrangement has
    ended. That same biological mother who consented to the father having custody
    of the two to five year old child every other month was one of the witnesses
    enlisted by the mother to give evidence that the father was an unfit parent.

[17]

Based on all of the material submitted before
    the application judge and on this motion, I am not persuaded that the children would
    be in any imminent or grave danger from their father in the interval between
    the childrens return and the custody trial in Tennessee, if they are returned
    to that state as ordered. The mother alleges that the father was physically and
    verbally abusive towards her in and out of the presence of the children, and
    that he is therefore an unfit parent. The father denies these allegations. In
    any event, the children will not be exposed to family violence or parental
    conflict before the trial in Tennessee because the parents cannot be in the
    same country. The defects the mother attributes to the fathers qualities as a
    parent are not such as to risk imminent harm to the children, were they
    returned to Tennessee before the trial.

[18]

While the mother argues that her separation from
    the children will be traumatic for the children, this separation will have been
    caused, in part, by the precipitous actions of the mother. She should not allowed
    to frustrate the goals of the
Hague Convention
by unilaterally
    attempting to create a new status quo outside the country of the childrens
    habitual residence.

[19]

The fathers counsel indicated a willingness to
    arrange for alternating access periods for the parties to be with the children,
    pending the hearing of the custody trial in Tennessee with appropriate mirror
    orders to secure compliance by each parent in their respective jurisdictions. I
    am not convinced that returning the children to the United States will
    necessarily result in a permanent rupture of the relationship between the
    mother and the children. Both the mother and the father will have to use
    intermediaries to facilitate access by the other parent. The willingness by
    each parent to support a relationship between the children and the other parent
    will undoubtedly be a factor in the Tennessee custody trial.

[20]

With respect to the balance of convenience
    element, I find the views expressed by Benotto J.A. in
J.P.B. v.
    C.B.
, 2016 ONCA 996, at paras. 37-39 highly relevant here:

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.

[]

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.

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.

[21]

I am not persuaded that the interests of justice
    require a stay of the order requiring the return of the children to their habitual
    residence jurisdiction.

[22]

The motion is dismissed with costs to the responding
    party in the agreed sum of $7,500.00, payable within 30 days.


