Ellis v. Wentzell-Ellis

• Jurisdiction: Ontario
• Judge: Goudge, MacFarland and LaForme, JJ.A.
• Neutral Citation: 2010 ONCA 347
• Citation: (2010), 262 O.A.C. 136 (CA),2010 ONCA 347,102 OR (3d) 298,78 RFL (6th) 245,[2010] OJ No 1987 (QL),262 OAC 136,(2010), 262 OAC 136 (CA),102 O.R. (3d) 298,262 O.A.C. 136,[2010] O.J. No 1987 (QL)
• Date: 01 April 2010
• Court: Court of Appeal (Ontario)

Wentzell-Ellis v. Ellis (2010), 262 O.A.C. 136 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.061

Jason Alexander Ellis (appellant) v. Laura Wentzell-Ellis (respondent)

(C51392; 2010 ONCA 347)

Indexed As: Wentzell-Ellis v. Ellis

Ontario Court of Appeal

Goudge, MacFarland and LaForme, JJ.A.

May 13, 2010.

Summary:

The parties met in Toronto in April 2006. They moved to England in November 2006. They were married in London and their child was born there on November 3, 2007. In March 2009, the mother brought their child on vacation to her parents' home in Canada. She was scheduled to return on April 12, 2009, but delayed this until June 5, 2009. Neither the mother nor the child returned to England. Rather, the mother filed an action in Toronto for custody of the child. The father obtained an ex parte order from the Family Division of the High Court of Justice in London, England, making the child a Ward of the Court during her minority. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to England.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. Q03, dismissed the application on two grounds. First, the court found that, pursuant to art. 3 of the Convention, the child was not habitually resident in England. Second, the court found that, pursuant to art. 13(b), returning the child to England would place her in an intolerable situation. The father appealed.

The Ontario Court of Appeal allowed the appeal and ordered that the child be returned to England so that the English courts could assume jurisdiction.

Family Law - Topic 1961

Custody and access - Child abduction legislation - General - The parties met in Toronto in April 2006 - They moved to England in November 2006 - They were married in London and their child was born there on November 3, 2007 - In March 2009, the mother brought their child on vacation to her parents' home in Canada - She was scheduled to return on April 12, 2009, but delayed this until June 5, 2009 - Neither the mother nor the child returned to England - Rather, the mother filed an action in Toronto for custody of the child - The father obtained an ex parte order from the Family Division of the High Court of Justice in London, England, making the child a Ward of the Court during her minority - The father applied under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to England - The application judge dismissed the application - She found that, pursuant to art. 13(b), returning the child to England would place her in an intolerable situation - The application judge relied on the fact that the father had a drinking problem, he treated the mother with total disrespect, the mother would be forced to lived in public/government tenement housing, the father was "derogatory about the mother's family and friends", the mother and child had once had to leave the apartment because of the father's violent outburst and the mother had few friends and no family in England - The father appealed - The Ontario Court of Appeal allowed the appeal - The application judge committed several errors - First, she set the standard of "intolerable situation" too low - Second, she erred in finding that the prospect of living in government subsidized housing would cause the child physical and psychological harm - Third, the application judge relied on facts that did not cause any direct harm to the child - See paragraphs 37 to 49.

Family Law - Topic 1961.1

Custody and access - Child abduction legislation - Habitual residence - The parties met in Toronto in April 2006 - They moved to England in November 2006 - They were married in London and their child was born there on November 3, 2007 - In March 2009, the mother brought their child on vacation to her parents' home in Canada - She was scheduled to return on April 12, 2009, but delayed this until June 5, 2009 - Neither the mother nor the child returned to England - Rather, the mother filed an action in Toronto for custody of the child - The father obtained an ex parte order from the Family Division of the High Court of Justice in London, England, making the child a Ward of the Court during her minority - The father applied under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to England - The application judge dismissed the application - She found that, pursuant to art. 3 of the Convention, the child was not habitually resident in England - The father appealed - The Ontario Court of Appeal allowed the appeal - The application judge made three errors in principle: "First, she set too high a threshold for habitual residence, appearing to require the father to prove that the mother intended to reside permanently in England. Second, she completely discounted the father's residence in determining that of the child. Third, she explicitly relied on facts arising after the wrongful removal of the child from England and based her decision on the child's current residence." - The Convention did apply - The child was habitually resident in England immediately before the mother retained her in Canada - See paragraphs 22 to 35.

Family Law - Topic 1962

Custody and access - Child abduction legislation - Jurisdiction - [See Family Law - Topic 1965 ].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The Ontario Court of Appeal allowed a father's appeal of the dismissal of his application under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to England and ordered that the child be returned to England so that the English courts could assume jurisdiction - With respect to the return order, the court stated that "[i]t must be appreciated that the court would not be forcing the mother or child to return to live with the father. Rather, an order that the child be returned to England simply recognizes that the mother was not entitled to take the child from England and that custody proceedings should be decided by English courts. Aside from recognizing that the English courts are the appropriate forum to determine the merits of the custody case, a return order also recognizes and trusts that those courts are capable of taking the necessary steps to both protect and provide for the mother and the child in the present case. This is what underlies Article 13(b) [of the Convention] and why there is such a high threshold for parents wishing to justify removing their children from one contracting state to another." - See paragraph 50.

Cases Noticed:

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. 15].

Korutowska-Wooff v. Wooff (2004), 242 D.L.R.(4th) 385 (Ont. C.A.), refd to. [para. 17].

H. et al., Re, [1998] A.C. 72; 214 N.R. 227 (H.L.), refd to. [para. 18].

Nunez-Escudero v. Tice-Menley (1995), 58 F.3d 374, refd to. [para. 20].

R.F. v. M.G., [2002] J.Q. No. 3568 (C.A.), refd to. [para. 38].

Jabbaz v. Mouammar (2003), 171 O.A.C. 102; 226 D.L.R.(4th) 494 (C.A.), refd to. [para. 39].

Finizio v. Scoppio-Finizio (1994), 124 O.A.C. 308; 46 O.R.(3d) 226 (C.A.), refd to. [para. 40].

C. v. C., [1987] 1 W.L.R. 654 (C.A.), refd to. [para. 40].

J.A.P. v. R.S.P. (1999), 118 O.A.C. 169; 43 O.R.(3d) 485 (C.A.), refd to. [para. 41].

Statutes Noticed:

Convention on the Civil Aspects of International Child Abduction (Hague Convention), Can. T.S. 1983, No. 35; 19 I.L.M. 1501, art. 3, art. 13(b) [para. 14].

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

Authors and Works Noticed:

Beaumont, Paul R., and McEleavy, Peter E., The Hague Convention on International Child Abduction (1999), pp. 235, 236 [para. 20].

Counsel:

Philip M. Epstein Q.C. and Lily Ng, for the appellant;

Ian R. Mang, for the respondent.

This appeal was heard on April 1, 2010, by Goudge, MacFarland and LaForme, JJ.A., of the Ontario Court of Appeal. The following judgment was delivered by LaForme, J.A., on May 13, 2010.