Court of Appeal for Ontario
Benotto, Zarnett and Thorburn JJ.A
12 August 2022
Procedural Matters |
Appeal dismissed, return refused
46(2) Children’s Law Reform Act, RSO 1990, c C.12
Family Law Rules, O. Reg. 114/99
Hammerschmidt v. Hammerschmidt, 2013 ONCA 227
Hughes v. Hughes, 2014 BCCA 196
Office of the Children’s Lawyer v. Balev, 2018 SCC 16
Ojeikere v. Ojeikere, 2018 ONCA 372
1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention.
The parents were married in Peru in 2012 and their son was born in 2013. The parents separated when their son was a baby and have been involved in high conflict litigation ever since, with allegations of abuse on both sides.
In August 2018, the Peruvian court made a temporary award of joint custody, confirmed on appeal in April 2019.
On October 22, 2019, the mother fled with her son, first from Peru to Ecuador and then to Canada, where they arrived on November 3, 2019 and claimed asylum. The mother and child now live in Ontario.
The father moved from Peru to Ontario in July 2020.
The father filed an application under the 1980 Hague Child Abduction Convention in March 2020. The hearing lasted 33 non-consecutive days, from September 2020 to February 2021 and the judgement was rendered in June 2021. The application judge denied the application for return on the basis of the grave risk of harm exception. The judge found that the father had engaged in a pattern of domestic violence against the mother who was not adequately protected by the legal system in Peru. The father appeals the application judge’s decision.
Ontario Courts are also considering an application by the mother for a parenting order.
Appeal dismissed. Given the delay and gaps in factual findings, the Court of Appeal for Ontario gave direction to the court below to move quickly to a resolution of a parenting plan with a fresh approach to the evidence.
The Court of Appeal for Ontario recalled the importance of acting expeditiously in proceedings for the return of children, that a hearing under the Convention is not a custody hearing and that the grave risk analysis is not meant to become an in-depth analysis of the parties’ history or a re-do of extensive court proceedings in the foreign state.
The Court found that the process followed by the application judge (e.g. the application judge conducted a year-by-year analysis of every allegations made by the parties since the date of their separation and heard protracted evidence from parents, friends and others), contravened the obligation under the Convention for prompt resolution.
The Court also noted some gaps in the application judge’s analysis of the facts which did not rise to the level of reversible error but which could be relevant in the context of the parenting case before the Ontario Court.
Despite finding that the delay itself amounted to a manifest or clear error, the Court noted that it did not have the ability to remedy the delay. It considered that it was too late to return the child and that the only available remedy was a direction to the court below to move quickly to a resolution of a parenting plan with a fresh approach to the evidence. Ultimately, The Court dismissed the appeal.