CANADA - ONTARIO
Ontario Superior Court of Justice
Linhares de Sousa, J.
CHINA (HONG KONG, SAR)
CANADA - ONTARIO
21 March 2019
Grave Risk - Art. 13(1)(b) | Undertakings
Return ordered with undertakings offered
Children’s Law Reform Act, RSO 1990, c C.12, s 46.
Achakzad v. Zemaryalai, 2010 ONCJ 318 (CanLII)
Cannock v. Fluegel, 2008 ONCA 758 (CanLII)
Chan v. Chow, 2001 BCCA 276 (CanLII)
Czub v. Czub, 2012 ONCJ 566 (CanLII)
Ellis v. Wentzel-Ellis, 2010 ONCA 347 (CanLII)
Finizzio v. Scoppio-Finizzio, 1999 CarswellOnt 3018 (C.A.)
Hage v. Bryntwick, 2014 ONSC 410 (CanLII)
Hassan v. Garib, 2017 ONSC 7227 (CanLII)
Jabbaz v. Muammar, 2003 CanLII 3765 (ON CA)
JS v. RM, 2012 ABPC 184 (CanLII)
Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 37565 (Ont 2909, (C. A.)
Mahler v. Mahler, 1999 CanLII 14255 (MB QB),
Pollastro v. Pollastro, 1999 CarswellOnt 848 (C.A.)
Thomson v. Thomson,  3 S. C. R. 551
2 children wrongfully removed at ages 4 and 7– Nationals of Canada and Norway – Married parents – Father national of Norway – Mother national of Canada – Both parents had rights of custody – Children lived in Hong Kong until 21 September 2018 – Application for return filed with the courts of Ontario (Canada) at the end of January 2019 – Return ordered – Main issue: Article 13(1)(b) Grave Risk – Evidence did not meet the 13(1)(b) threshold. Court considered affidavit and legal opinion from lawyer in Hong Kong – Undertakings – Undertakings necessary to secure safe, prompt and seamless return of children and to provide for transition between return order and when children are placed before the Hong Kong courts.
The parents married in Canada in 2008. The mother is a Canadian citizen and the father, a Norwegian citizen. They have two children, born in 2011 and 2014, who are dual Canadian and Norwegian citizens. After living in France, Norway and Ireland, the family relocated to Hong Kong in 2016 for the father’s work. The mother took care of the children and the family’s home.
The father has a valid employment visa for Hong Kong on which the mother and children are identified as dependents. The father’s employment visa is set to expire on June 29, 2019. His employment contract in Hong Kong has been renewed. He presented evidence that he would fill out any necessary forms agreeing to continue to sponsor his wife and the children so they could continue to live in Hong Kong.
The parents have been experiencing matrimonial discord for some time. On September 18, 2018, the mother’s sister travelled from Canada to Hong Kong to provide support to her sister and assist her to connect with resources (e.g. lawyers, social workers, etc.).
On September 20, 2018, after having recorded an argument between herself and the father, the mother left the house with the children. On the same day, with the help of her sister, the mother consulted a lawyer and visited the Canadian Embassy. The mother and children stayed in a hotel that night and left for Canada the next day. At the end of January 2019, after unsuccessful mediation, the father commenced Hague return proceedings in the Ontario Superior Court of Justice.
The parties made the following admissions at the commencement of the proceedings: the children’s habitual residence is in Hong Kong, their removal was wrongful and the Hague application was brought less than one year after the wrongful removal.
Return ordered. The article 13(1)(b) exception was not established
Author: Emmanuelle Jacques
The Court concluded that the mother failed to establish the 13(1)(b) exception.
The Court recalled that 13(1)(b) provides for a rigorous test, with a high threshold; the risk must be “grave”, “weighty” and “severe”; and the qualifier “intolerable” refers to circumstances that are “grave”, “extreme” or “unbearable”.
The Court recalled the circumstances of cases where the exception was argued in the context of domestic violence, noting that the exception had been established where abuse was severe and uncontrollable.
In the present case, the evidence presented an unhappy and stressful marriage but the matrimonial circumstances and conduct of the father did not meet, on the balance of probabilities, the 13(1)(b) test.
The Court noted that there was no evidence of the father physically or psychologically abusing the children and that his communications with them since they were in Canada were loving, with no sign of fear from the children.
The Court also took into account an affidavit from a Hong Kong lawyer describing what recourse and relief the mother could seek from the Hong Kong courts and demonstrated that her family interests would not be jeopardized upon return. The lawyer also indicated that undertakings given by the father in Canada could be “mirrored” and enforced in Hong Kong, as a further protection until the matters are resolved by the Hong Kong courts.
The Court also concluded that it was not imminent nor certain that after having returned to Hong Kong with the children, the mother would find herself having to leave with or without the children in the near future because of her immigration status. In reaching this conclusion, the Court considered the father’s willingness to apply for dependents’ visas for the children and mother as well as a legal opinion on the mother’s immigration status in Hong Kong.
The Court explained having jurisdiction to incorporate into an order made under Article 12 undertakings that are necessary to secure the safe, prompt and seamless return of the children and to provide for the transition period between the time when a Canadian court makes a return order and the time at which the children are placed before the courts in the country of their habitual residence.
The father had indicated being willing to abide by any undertaking the court considered appropriate.
The Court ordered that the father pay for the airfare of the mother and children; that the father vacate the matrimonial home; that the father pay voluntarily all the reasonable expenses of the mother and children required to meet their daily physical and medical needs until a support agreement is negotiated by them or Family Court in Hong Kong makes an award for spousal and child support; that the parents shall cooperate to find a therapist for the children; that the parents shall as soon as reasonably possible seek out a mediator and/or commence legal proceedings in the Hong Kong Family court to deal with their family law issues; that the parents cooperatively and harmoniously parent their children until a final resolution of their matrimonial issues either by way of agreement or court order; that the father, within the required time, sign all documentation and make all applications required to obtain an extension of the dependants’ visa for the mother and children.