Uncontested Hague Application Leads to Appeal Where Decision of Judge Overturned

 I. (A.M.R.) v. R. (K.E.)

This case was heard by the Ontario Court of Appeal on April 12th and 13th of 2011 and the Judgement was released on April 18, 2011. Final details regarding the judgement were released on June 2, 2011. The case is an appeal of the decision of an application Judge who held that a child was being wrongfully retained in Ontario and granted an Order for her summary and immediate return to Mexico. This was the first time this Court has heard a case of this nature. The names of the parties are being kept from the public to protect the young girl at the centre of a controversy that marked a novel excursion into the intersection of Family, International, and Constitutional Law.

The unnamed mother in this case had custody of her daughter and they were residing in Cancun, Mexico. Accompanied by her grandmother, the daughter travelled to Canada to visit her father and aunt. The daughter’s legal journey began when she announced to her father and aunt that her mother had been abusing her – both physically and emotionally. The grandmother had made notions of this sort prior to the girl revealing same. Allegations of this nature are never taken lightly, and in May of 2010, the girl was given “Refugee” status by the Immigration and Refugee Board of Canada, Refugee Protection Division (“IRB”). After a year and a half, the mother brought a Hague Convention application seeking an Order for her daughter’s return to Mexico. At the time the application was made, the daughter was residing in Toronto with her aunt and her aunt’s spouse because her father was denied refugee status in Canada and decided to move to Norway. As such, the father did not respond to the mother’s application, and no one was present at the hearing to represent the daughter.

The application Judge held that the girl was being wrongfully retained in Canada and granted the mother her request by ordering the girl’s immediate return to Mexico. At this time, the girl was almost fourteen years of age. In order to extricate her, police attended her school in Toronto and escorted the girl out. No notice was given to the girl, her father, or her aunt. When confronted by the police, the girl informed them that she was a Convention refugee, but she was in any event denied permission to go home and retrieve her paperwork. The application judge did not release formal reasons for the decision. The application judge also accepted much of the mother’s evidence without seeing any back-up documentation. As a result of all of this, her father launched an appeal and he also challenged the constitutional validity of Section 46 of the Children’s Law Reform Act, which incorporates the Hague Convention into Ontario’s domestic law, stating that this conflicts with Canada’s obligations to refugees under Section 115 of the Immigration and Refugee Protection Act.

By Order of the Court, the Office of the Children’s Lawyer (“OCL”) was appointed as counsel for the child on the appeal. The OCL filed a plethora of fresh evidence, including some expert evidence from a social worker and a clinical investigator.

The Court had to decide whether the application judge erred in sending the girl back to Mexico. As a result of all the questions that needed to be answered in determining same, the issues argued in this case were of tremendous public importance, and as such, several organizations were given permission to participate in the appeal of the father, some as parties and others as interveners. These organizations included the United Nations and the Canadian Civil Liberties Association. Before the hearing, the Court directed that all parties involved should be cooperative and do everything in their power to facilitate the child’s return to Ontario so that she could participate in the hearing this time around.

Naturally, the parties to the proceeding provided contradictory recollections of the facts. Most of the background facts, however, were not in dispute. In July of 2000, the father and mother entered into a Separation Agreement, which was incorporated into a final consent divorce decree issued by the Family Court of Cancun the following year. The parties agree that based on same, the mother had legal custody of the daughter. The father was to make monthly support payments and was not involved in decision making. He ceased making these payments sometime in 2002. He saw his daughter infrequently even while he lived in Mexico, and even less as of 2006, which is when he moved to Canada.

Certain conflict of laws issues had to be overcome during this appeal as well. On the one hand, there are rules with respect to refugee extradition. On the other, some discretion is afforded to decision makers when it comes to protecting refugees from harm.

At paragraph 68, the appeal judge said:

In our view, properly interpreted, the Hague Convention contemplates respect for and fulfillment of Canada’s non-refoulement obligations. Specifically, art. 13(b) of the Hague Convention permits the refusal of an order of return concerning a child, who would otherwise be automatically returnable under art. 12, if “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”. In addition, art. 20 provides for the denial of an order of return if it would not be permitted “by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms”. In accordance with the interpretive principles set out above, arts. 13(b) and 20 must be construed in a manner that takes account of the principle of non-refoulement.The Ontario Court of Appeal was convinced that returning the girl to Mexico would expose her to physical or psychological harm, and therefore allowed the appeal. In addition to the consideration given to Article 12 of the Hague Convention, the Court’s reasoning was based largely on the fact that the girl was denied her right to procedural fairness because she was not provided with any notice, she was not afforded the right to legal counsel, and she was not given the ability to share her views and preferences at a hearing. In the opinion of the court, this amounted to an infringement of her rights under Section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Ultimately the decision was based on circumstantial evidence and procedural errors of the Court rather than concrete proof regarding whether or not the girl was actually being abused, which of course her mother denied.

Normally an uncontested Hague Application commenced by a mother would require notice to be put on the father, and not on the grandparents or anyone else. Moving forward, I believe that when an uncontested Hague Application is launched, the Court should carefully consider using their discretion to notify any child who is subject to same. Children, once at a certain age, should have a right to be notified of claims such as the one brought by the mother in this case. I therefore think the decision of the Court of Appeal was well-reasoned and they were correct to overturn the decision of the Application Judge.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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