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CASE

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Case Name

Achakzad v. Zemaryalai, 2009 CarswellOnt 5615

INCADAT reference

HC/E/CA 1113

Court

Country

CANADA

Name

Ontario Superior Court of Justice

Level

Appellate Court

Judge(s)
Czutrin J.

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

CANADA

Decision

Date

6 July 2009

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Procedural Matters

Order

-

HC article(s) Considered

3 12 13(1)(a) 13(1)(b) 13(2) 15

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (Ont. C.A.); Moller v. Despoja-Moller, [2001] O.T.C. (Ont. S.C.J.); B. (T.) v. B. (J.) (2000), [2001] 2 F.L.R. 515 (Eng. C.A.); Ibrahim v. Girgis (2008), 232 O.A.C. 191 (Ont. C.A.); Cannock v. Fleguel (2008), 242 O.A.C. 221 (Ont. C.A.).
Published in
http://www.canlii.org/en/on/onsc/doc/2009/2009canlii49896/2009canlii49896.html

SUMMARY

Summary available in EN

Facts

The child, a boy, was 4 years old at the time of his alleged wrongful removal from California to Ontario by the mother. On 10 November 2008, the mother was allegedly assaulted by the father. On 15 November 2008 she left the United States and brought the child to Canada. Criminal charges were laid against the father regarding the assault, but no verdict had been delivered by the date of this decision.

On 8 January 2009 the mother sent a letter to the father informing him that neither she nor the child would return. The father then initiated proceedings in California for custody. On 27 January 2009 the mother obtained in Ontario an interim order of custody with no access to the father, who was restrained from having any contact with the mother or child.

On 29 January 2009, the father applied for the return of the child under the 1980 Hague Child Abduction Convention. On 17 March 2009 the Court dismissed that father's return application on the grounds that return would create a grave risk of harm. The father appealed.

Ruling

Appeal allowed and case remitted to a different judge of the Ontario Court of Justice to re-determine the Article 13(1)(b) issues.

Grounds

Grave Risk - Art. 13(1)(b)


 The trial judge had cited Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (Ont. C.A.) for the principle that, in examining whether there was a grave risk of harm to the child, the safety of the primary parent could not be ignored. The judge then found that despite the protections that would be offered to the child by the Californian court system, the dishonest nature of the father and his family would mean the mother would nevertheless be in danger were she to return to California.

On appeal, the father argued that the trial judge had erred in concluding that California could not protect the child. The father offered evidence that the mother had received prompt and supportive responses by the police in California in her criminal complaint against the father, and that California maintained social services geared towards helping abused women.

The appellate Court ruled that this evidence and the father's undertakings to the California courts in relation to ensuring the safety of his child were relevant in considering the potential risk of harm to the child and should have been taken into consideration by the trial judge.

Procedural Matters

The father submitted that the trial judge's emphasis on credibility had transformed the Convention proceedings into a custody-like hearing where the conduct of a parent in lying was relevant to considering the best interests of the child.

Additionally, the father submitted that the trial judge had showed animosity towards him and towards the Californian Courts. The court determined that the comments of the trial judge gave "rise to the potential appearance of unfairness towards the father and his counsel."