H.E. v. M.M., (2015) 341 O.A.C. 359 (CA)

• Judge: Hoy, A.C.J.O., Weiler and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 05, 2015
• Jurisdiction: Ontario
• Citations: (2015), 341 O.A.C. 359 (CA);2015 ONCA 813

H.E. v. M.M. (2015), 341 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.035

H.E. (applicant/appellant in appeal) v. M.M. (respondent/respondent in appeal)

(C59991; 2015 ONCA 813)

Indexed As: H.E. v. M.M.

Ontario Court of Appeal

Hoy, A.C.J.O., Weiler and Pardu, JJ.A.

November 25, 2015.

Summary:

H.E. (mother) and M.M. (father) divorced in Egypt. H.E. moved to Ontario with the children. She applied for custody under the Ontario Children's Law Reform Act (CLRA). The trial judge recognized the divorce was valid and found that H.E. had attorned to the jurisdiction of the Egyptian court. There was, therefore, no basis to assume jurisdiction to decide the custody issue. The custody application was dismissed. The trial judge ordered that the children be returned to Egypt. H.E. appealed, the only issue being the trial judge's refusal to assume jurisdiction. She also moved to introduce fresh evidence on appeal.

The Ontario Court of Appeal allowed the appeal. The court allowed the motion to introduce fresh evidence. The court held that the trial judge erred in declining jurisdiction under the CLRA.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - [See second Family Law - Topic 1920 ].

Conflict of Laws - Topic 646

Jurisdiction - Submission to jurisdiction - Effect of - [See first Conflict of Laws - Topic 2302 ].

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - H.E. (a permanent resident of Canada) and M.M. (an Egyptian citizen) were married and divorced in Egypt - H.E. moved to Ontario from Egypt with the children (Canadian-Egyptian citizens) - She applied for custody under the Ontario Children's Law Reform Act (CLRA) - The trial judge refused to assume jurisdiction and dismissed the application, holding that the divorce was valid and H.E. had attorned to the jurisdiction of the Egyptian court - The trial judge found that attornment was crucial to whether the court had jurisdiction to entertain the custody claim - H.E. appealed - The Ontario Court of Appeal held that the trial judge erred in finding that attornment was crucial to whether the court had jurisdiction - Standing alone, attornment could be at most one of the factors to consider in determining whether to assume jurisdiction under s. 22(1)(b) of the CLRA or the decision whether to decline jurisdiction - See paragraphs 77 to 83.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - H.E. (a permanent resident of Canada) and M.M. (an Egyptian citizen) were married and divorced in Egypt - H.E. moved to Ontario from Egypt with the children (Canadian-Egyptian citizens) - She applied for custody under the Ontario Children's Law Reform Act (CLRA) - The trial judge refused to assume jurisdiction holding that H.E. had attorned to the jurisdiction of the Egyptian court - The trial judge rejected H.E.'s submission that the children would suffer serious psychological harm if they were returned to Egypt - He then linked his decision not to assume jurisdiction to his view that H.E. should not be rewarded for the children's wrongful removal under s. 22(3) of the CLRA - H.E. appealed - The Ontario Court of Appeal held that the trial judge erred in basing his decision not to exercise jurisdiction under s. 23 on his finding that the children had been wrongfully removed from Egypt under s. 22(3) - When there was a risk of serious harm to the child, the aim of discouraging child abduction had to yield to another purpose of the CLRA, namely, the best interests of the child - Here, there was fresh evidence on appeal showing that there was a serious risk of psychological harm to the children if they were returned to Egypt, especially if H.E. did not go with them - See paragraphs 84 to 88.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - H.E. (a permanent resident of Canada) and M.M. (an Egyptian citizen) were married and divorced in Egypt - H.E. moved to Ontario from Egypt with the children (Canadian-Egyptian citizens) - She applied for custody under the Ontario Children's Law Reform Act (CLRA) - The trial judge refused to assume jurisdiction, holding that the divorce was valid and H.E. had attorned to the jurisdiction of the Egyptian court - The custody application was dismissed and the children ordered returned - H.E. appealed, arguing that the trial judge erred in refusing to assume jurisdiction - The Ontario Court of Appeal allowed the appeal - The trial judge erred in his approach to the test for jurisdiction under the CLRA and in concluding that all of the criteria for the assumption of jurisdiction under s. 22(1)(b) were not met - In part, the trial judge's error resulted from a palpable and overriding error in his assessment of the criterion of whether there was substantial evidence in Ontario concerning the best interests of the children - See paragraphs 89 to 119.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - H.E. (a permanent resident of Canada) and M.M. (an Egyptian citizen) were married and divorced in Egypt - H.E. moved to Ontario from Egypt with the children (Canadian-Egyptian citizens) - She applied for custody under the Ontario Children's Law Reform Act (CLRA) - The trial judge refused to assume jurisdiction and dismissed the custody application - H.E. appealed, arguing that the trial judge erred in dismissing her allegations of abuse as irrelevant to the determination of jurisdiction - The Ontario Court of Appeal stated that it was an error of law to hold that H.E.'s allegations of abuse were not relevant to the determination of jurisdiction - The allegations were relevant to the question of whether the court should assume jurisdiction on account of "serious harm to the child" under s. 23 of the CLRA - Allegations of physical and emotional abuse were also relevant insofar as parenting capacity was concerned (ss. 24(3) and (4)) - Further, a finding that a child would suffer "serious harm" if removed from Ontario could be based on serious harm to a parent - See paragraphs 120 to 126.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - [See first Family Law - Topic 2123 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See first Family Law - Topic 2123 ].

Courts - Topic 7406

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - Family law (not divorce) - [See first, second, third and fourth Conflict of Laws - Topic 2302 and first Family Law - Topic 2123 ].

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - The Ontario Court of Appeal stated that where the welfare of a child was at stake, the jurisprudence indicated a more flexible approach to the Palmer test for the admission of fresh evidence was appropriate - Flexibility in such matters was consistent with the need for up-to-date information on children, whose fate often hinged on a determination by judges, and was thus in line with the overarching criterion for admission, namely, the interests of justice - The court stated further that the more flexible approach to fresh evidence in matters relating to child welfare did not, however, render all proffered fresh evidence admissible - The factors enunciated in the Palmer test remained relevant - In particular, to be admissible, the fresh evidence had to be credible and reasonably capable of belief - See paragraphs 71 and 72.

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - In an appeal respecting custody of children, the mother sought to introduce fresh evidence - The father claimed that the fresh evidence violated his rights under ss. 7 and 11(d) of the Charter - The Ontario Court of Appeal observed that the father's Charter rights had no application to the proceedings - The Charter only applied to governmental actors - See paragraphs 68 and 70.

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - In an appeal respecting custody of children under the Children's Law Reform Act (CLRA), the mother sought to introduce fresh evidence - The Ontario Court of Appeal allowed the motion to adduce fresh evidence pertaining to the emotional and psychological well-being of the children - It was not available at trial, it was highly relevant in that it enabled the court to determine jurisdiction with an accurate view of the situation, and it was uncontroverted - Taken with the evidence at trial, it could reasonably be expected to affect the outcome - In light of the court's discretion to admit fresh evidence and the CLRA's purpose of ensuring that custody applications were determined based on the best interests of the child, it was in the interests of justice to admit the evidence - See paragraphs 55 to 75.

Family Law - Topic 2115

Custody and access - Jurisdiction - General principles - [See first Family Law - Topic 2123 ].

Family Law - Topic 2123

Custody and access - Jurisdiction - Where child taken from one jurisdiction to another without other parent's consent - The Ontario Court of Appeal reviewed the legal framework under the Children's Law Reform Act relating to when the court could assume jurisdiction to make an order for custody of a child - The court noted that the court could assume jurisdiction to make a custody order in four ways: (1) where the child was "habitually resident" in Ontario (s. 22(1)(a)); (2) where the child was not habitually resident in Ontario, the court could exercise jurisdiction if the child was physically present in Ontario and other requirements specified in the section were met (s. 22(1)(b)); (3) where the child was physically present in Ontario and the court was satisfied that the child would suffer serious harm under certain circumstances, including the removal of the child from Ontario (s. 23); and (4) the court could exercise its parens patriae jurisdiction, which was specifically preserved by s. 69 of the Act - The court stated, however, that the decision whether to assume jurisdiction was a discretionary one (s. 25) - See paragraphs 22 to 29.

Family Law - Topic 2123

Custody and access - Jurisdiction - Where child taken from one jurisdiction to another without other parent's consent - [See first, second, third and fourth Conflict of Laws - Topic 2302 ].

Cases Noticed:

Dovigi v. Razi (2012), 292 O.A.C. 292; 110 O.R.(3d) 593; 2012 ONCA 361, refd to. [para. 22].

Wang v. Lin (2013), 300 O.A.C. 381; 2013 ONCA 33, refd to. [para. 26].

Solem v. Solem, [2013] O.T.C. Uned. 1097; [2013] W.D.F.L. 2720; 2013 ONSC 1097, refd to. [para. 42].

Nordin v. Nordin, [2001] O.T.C. 112; 17 R.F.L.(5th) 119 (Sup. Ct.), refd to. [para. 42].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 65].

R. v. Hartman (R.) (2015), 336 O.A.C. 329; 326 C.C.C.(3d) 263; 2015 ONCA 498, refd to. [para. 68].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Paterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 70].

Decaen v. Decaen (2013), 303 O.A.C. 261; 2013 ONCA 218, refd to. [para. 71].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 71].

Van Damme v. Gelber et al. (2013), 307 O.A.C. 81; 115 O.R.(3d) 470; 2013 ONCA 388, refd to. [para. 78].

Murray v. Ceruti (2014), 325 O.A.C. 300; 2014 ONCA 679, refd to. [para. 81].

Baril v. Liard, 1994 CarswellOnt 2465 (C.A.), refd to. [para. 89].

Isakhani v. Al-Saggaf (2007), 226 O.A.C. 184; 2007 ONCA 539, refd to. [para. 125].

Counsel:

Amy A. Green and Emily M. Carroll, for the appellant;

Rick Peticca, for the respondent.

This appeal was heard on October 5, 2015, before Hoy, A.C.J.O., Weiler and Pardu, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Weiler, J.A., on November 25, 2015.