Cannock v. Fleguel

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Juriansz, Rouleau and Watt, JJ.A.
• Citation: (2008), 242 O.A.C. 221 (CA),2008 ONCA 758
• Date: 03 October 2008

Cannock v. Fleguel (2008), 242 O.A.C. 221 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. NO.020

Craig Cannock (applicant/respondent on appeal) v. Jessica Fleguel (respondent/appellant on appeal)

(C49163; 2008 ONCA 758)

Indexed As: Cannock v. Fleguel

Ontario Court of Appeal

Juriansz, Rouleau and Watt, JJ.A.

November 12, 2008.

Summary:

The father applied for his child's return under the Hague Convention on the Civil Aspects of International Child Abduction. The mother opposed the application, relying on Article 13(b) of the Convention; namely, that there was grave risk that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if returned.

The Ontario Superior Court granted the return order, after finding that the mother's evidence did not meet the standard under Article 13(b). The court left it to the parties' respective counsel to arrange a hearing, if necessary, to determine any undertakings to be entered into before the child's return. The mother appealed before the undertakings were determined.

The Ontario Court of Appeal first raised the threshold issue whether the appeal should be stayed because it was premature. Despite the court's concerns, the court did not stay the appeal, "[i]n the absence of prior guidance by this court". The court dismissed the appeal. The application judge fully appreciated the philosophy and objectives of the Convention and the standard that had to be met to establish an Article 13(b) defence. The mother's evidence focused on the merits of the custody dispute and did not address the risk to the child in being returned to the state of his habitual residence.

Conflict of Laws - Topic 602

Jurisdiction - General principles - International jurisdiction - [See first Family Law - Topic 1965 ].

Conflict of Laws - Topic 9281

Practice - Stay of proceedings - General - [See third Family Law - Topic 1965 ].

Family Law - Topic 1961

Custody and access - Child abduction legislation - General - The father applied for an order that his son be returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention) - The child's mother opposed the application under Article 13(b) (that the child would be exposed to physical or psychological harm if he were returned) - The application judge granted the return order - The mother appealed - The Ontario Court of Appeal dismissed the appeal - The court first noted that s. 46 of the Children's Law Reform Act implemented the Convention as the law of Ontario - Following a review of the Convention's main provisions, and Article 13(b) in particular, the court concluded that "[t]he philosophy of the Hague Convention is that it is in the best interest of children that the courts of their habitual residence decide the merits of any custody issue. Adhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown" - See paragraphs 18 to 23.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - [See first Family Law - Topic 1965 ].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The parties were the natural parents of a child born in 2006 in Ontario - The mother, a Canadian, had been living with the father in Australia and returned to Ontario while pregnant - When the child was about five weeks old, the mother returned to Australia and lived there with the father until they separated in October 2007 - The following month, she returned to Ontario with the child (then 18 months old) - The father applied for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) - The mother opposed the application, relying on Article 13(b) of the Convention (grave risk that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if returned) - The application judge granted a return order, after finding that the child was a habitual resident of Australia within the meaning of the Convention and that the mother's evidence did not establish an intolerable risk under Article 13(b) - The mother appealed - The Ontario Court of Appeal dismissed the appeal - International child custody disputes were best resolved by returning the child to its habitual place of residence - The application judge fully appreciated the philosophy and objectives of the Convention and the standard that had to be met to establish an Article 13(b) defence - The mother's evidence focused on the merits of the custody dispute and did not address the risk to the child in being returned to the state of his habitual residence - See paragraphs 38 to 51.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The Ontario Court of Appeal reviewed the main provisions of the Hague Convention on the Civil Aspects of International Child Abduction, and noted that the central objective of the Convention to "promptly repatriate abducted children to their habitual residence is subject to some limited exceptions" - In particular, Article 13(b) provided that the requesting State was not bound to order the return of the child 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" - Once the child was returned as ordered, the courts in the requesting State took charge of the best interests of the child - Thus the role of a court in an Article 13(b) case remained a limited one - Particularly, Article 13(b) did not supply the court with jurisdiction to conduct the type of inquiry appropriate in a custody dispute - A court must consider only whether there should be a departure from the general rule mandating summary return of the child because the stringent test of Article 13(b) had been met, and if not, what undertakings should be required to define the initial situation to which the child is returned - See paragraphs 24 to 32.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. appeal of) - The father applied for an order that his son be returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention) - The child's mother opposed the application - The application judge granted the return order, but left it to the parties' respective counsel to arrange a hearing, if necessary, to determine any undertakings to be entered into before the child's return - The mother appealed before the undertakings were determined - She took the position that, should she lose the appeal, she would have another right to appeal the undertakings - The Ontario Court of Appeal raised the threshold issue whether the appeal should be stayed because it was premature - The court had two concerns - First, the fragmentation and protraction of proceedings were not conducive to the expeditious process contemplated by the Convention - Second, any undertakings imposed could be germane to the issues raised on the appeal - Despite those concerns, the court did not stay the appeal, "[i]n the absence of prior guidance by this court" - The court considered that the mother should be given some leeway, but that "future appellants who proceed with appeals in like situations should not expect the same latitude" - Additionally, the court cautioned against the bifurcation of application proceedings, stating its preference that the issues and undertakings be determined at a single hearing - See paragraphs 11 to 16, 50.

Family Law - Topic 1968

Custody and access - Child abduction legislation - Evidence - The father applied for an order that his son be returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention) - The mother opposed the application, relying on Article 13(b) of the Convention; i.e., that the child would be exposed to physical or psychological harm if he were returned to the father's care - The application proceeded on affidavit evidence - The mother alleged that the father was a violent criminal, a drug addict and trafficker, who was incapable of parenting and who had abused her - The application judge concluded that the evidence did not establish the risk of physical or psychological harm of a degree that amounted to an intolerable risk under Article 13(b), and ordered that the child be returned to Australia - The mother appealed on the ground that the trial judge erred by determining the issue of the risk to the child under Article 13(b) without hearing viva voce evidence - The Ontario Court of Appeal noted that the question of whether a judge should hear oral evidence when deciding an application under the Hague Convention had not been the subject of extensive judicial discussion in Canada - After reviewing the jurisprudence, the court concluded that the mother's argument was "simply not tenable" - It could not be said that there was a realistic possibility that oral evidence would have established an Article 13(b) defence that was only "embryonic" on the written material - See paragraphs 38 to 49.

Practice - Topic 9144

Appeals - Hearing of appeal - Bifurcation of appeal hearing - [See third Family Law - Topic 1965 ].

Cases Noticed:

Finizio v. Scoppio-Finizio (1994), 124 O.A.C. 308; 46 O.R.(3d) 226 (C.A.), refd to. [para. 13].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 13].

Katsigiannis v. Kottick-Katsigiannis (2001), 144 O.A.C. 387 (C.A.), refd to. [para. 22].

Murray v. Director, Family Services Act, [1993] F.L.C. 92-416 (Aust.), refd to. [para. 26].

L., Re (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401 (H.C. Fam. Div.), refd to. [para. 27].

Medhurst v. Markle (1995), 17 R.F.L.(4th) 428 (Gen. Div.), refd to. [para. 29].

C. v. C., [1987] 1 W.L.R. 654 (C.A.), refd to. [para. 30].

W, a Child, Re, [2005] 1 F.L.R. 727, refd to. [para. 31].

Mahler v. Mahler (1999), 143 Man.R.(2d) 56; 3 R.F.L.(5th) 428 (Q.B.), refd to. [para. 33].

Cornfield v. Cornfield, [2001] O.J. No. 5773 (C.A.), refd to. [para. 35].

J.A.P. v. R.S.P. (1999), 118 O.A.C. 169; 43 O.R.(3d) 485 (C.A.), refd to. [para. 43].

Pollastro v. Pollastro - see J.A.P. v. R.S.P.

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 46 [para. 18].

Convention on the Civil Aspects of International Child Abduction - see United Nations Convention on the Civil Aspects of International Child Abduction.

United Nations Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, art. 13(b) [para. 5].

Authors and Works Noticed:

Beaumont, Paul R., and McEleavy, Peter E., The Hague Convention on International Child Abduction (1999), generally [para. 26].

Counsel:

Martha McCarthy and Will Hutcheson, for the appellant;

Allan T. Hirsch, for the respondent.

This appeal was heard on October 3, 2008, by Juriansz, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., released the following judgment for the Court of Appeal on November 12, 2008.