“To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called ‘parenting orders’ under Canadian and Ontario law) are for another day,” wrote Justice Mary Lou Benotto, for the Court of Appeal, in a decision released Aug. 12.
In Leigh v. Rubio, 2022 ONCA 582, the case before the court centred on the removal of a 9-year-old boy from Peru to Canada.
According to court documents, the boy had “lived his entire life in Peru until 2019” when the respondent mother, Monica Rubio, “wrongfully removed him to Canada.”
The court noted that the appellant father, Martin Berendson Leigh, had “shared custody rights” and the mother “took the child out of the country in violation of a Peruvian court order.”
The father “promptly applied to the Ontario court for the child’s return pursuant to the Hague Convention.” However, the court’s “determination came more than one-and-a-half years after the abduction,” the Court of Appeal explained.
The application judge, Justice Denise Korpan of the Superior Court of Justice, “confirmed that the child’s habitual residence was Peru and that he had been wrongfully removed,” but she “dismissed the father’s application to return the child based on the Convention’s exception to mandatory return.”
Article 13(b), the court explained, “provides that the return of the child need not be ordered if it is established that ‘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.’ ”
This determination was made by Justice Korpan after a “33-day hearing which examined the mother’s allegations against the father starting from 2014 (the year of separation), through 2019 (when she left Peru), to the time of the hearing.”
“At no point in her analysis did the application judge rationalize her conclusion with the findings made by the family court in Peru, upheld by the Superior Court of Piura Second Civil Court of Appeals. Those findings, which arose from a review of conduct over much of the same period, granted ‘joint temporary custody,’ stated that it was in the child’s best interest to have extensive time with the father, found that both parties were engaged in extensive conflict with each other, that there had been violence and restraining orders “on both sides,’ and that several matters were still before the court,” wrote Justice Benotto, noting that “because of the delay, this court is now limited in its remedies.”
“It has been more than two-and-a-half years since the abduction, and it is simply too late to return the child, who is now estranged from the father. The only available remedy at this point is a direction to the court below to move quickly to a resolution of a parenting plan with a fresh approach to the evidence,” she stressed.
According to court documents, the parties married in 2012 and their son “was born in February 2013.” However, the couple “separated when he was a baby” and “[H]igh conflict litigation ensued with allegations of abuse on both sides.”
“Despite these allegations and cross-allegations of abuse,” the court noted, the “family court in Peru made an award of temporary joint custody” in August 2018, which was “upheld on appeal in April 2019.”
After making “further allegations of threats and violence by the father,” the mother fled the country in the fall of 2019, first to Ecuador and then to Canada where they “claimed asylum.”
The father followed them to Ontario in July 2020, which the court noted was “as soon as he was allowed entry” into Canada due to “the COVID-19 pandemic.”
The father had “filed his application under the Hague Convention” in March 2020, but the hearing didn’t begin until months later in September. The hearing, the court noted, “continued for 33 non-consecutive days until February 2, 2021,” with Justice Korpan delivering her reasons in June 2021.
According to court documents, Justice Korpan “found that, other than an instance of yanking the child’s arm, the father had never harmed the child. However, she concluded that the grave risk of harm exception was engaged based on the ‘serial and ongoing compilation of the father’s actions over a period of approximately six years.’ ”
Justice Korpan also found that “the [appellant] has engaged in a pattern of domestic violence against the mother, that has escalated to death threats in August 2019, which threats for the first time, now include the child.”
The application judge therefore accepted that the respondent mother “does not feel safe in Peru due to the appellant’s conduct and concluded that the mother was not adequately protected by the legal system in Peru.”
“As a result of the application judge’s decision, Ontario is now exercising jurisdiction to conduct an application by the mother for a parenting order,” Justice Benotto explained, noting that in oral submissions the court heard that “there is a restraining order against the father and that he has no visitation rights.”
The father, who was self-represented, appealed Justice Korpan’s decision “not to return the child to Peru.”
Justice Benotto explained that the “decision below gives rise to three main issues on appeal: 1. Delay resulting from the process followed by the application judge; 2. Gaps in the application judge’s analysis relevant to the parenting case before the Ontario court; and 3. The appropriate remedy.”
The court noted that “[W]hat is meant to be a prompt six-week determination under the Hague Convention took 68 weeks.”
“This court is now impeded in its review function. In addition to the delay, there are the gaps in the application judge’s analysis which might affect the ongoing parenting action,” Justice Benotto stressed at the beginning of her analysis.
On issue one, Justice Benotto noted that the “importance” of Article 11 of the Hague Convention was “definitively stated in Office of the Children’s Lawyer v. Balev, 2018 SCC 16.”
“Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues,” she explained, noting that while Justice Korpan “referred to Balev,” her conduct and the hearing “did not comply with this directive.”
“Here,” she stressed, “there was a six-and-a-half-month delay in a case that must be prioritized as urgent.”
The judge also emphasized that a “hearing under the Hague Convention is not a custody hearing.”
“It is aimed at ‘enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence,’ ” she wrote, noting the hearing is “meant to restore the status quo that existed before the wrongful removal or retention.”
“Its purpose is to return the child to the jurisdiction that is most appropriate for the determination of custody and access,” she added.
Justice Benotto acknowledged that “Article 13(b) of the Convention sets out a narrow exception to the mandatory return of a wrongfully abducted child.” However, she explained that “[T]his grave risk analysis is not meant to become an in-depth analysis of the parties’ history. Nor is it a re-do of extensive court proceedings in the foreign state.”
“To conclude that the mother had established grave risk,” she observed, Justice Korpan “conducted a year-by-year analysis of the mother’s allegations, seemingly delving into every issue and allegation the parties made from the date of their separation and reciting allegations and counter-allegations at length.”
“Parents, friends, family members, former lawyers, and others gave protracted evidence. Since translators and interpreters were required, this approach exponentially augmented delay,” she added, noting that part of Justice Korpan’s reasons “acknowledge the troubling delay and explain that ‘there were delays caused by COVID health concerns, technical issues (including issues with Zoom both in and out of the courtroom) and issues with the availability of witnesses and interpreters.’ ”
“None of those issues can justify the extent of the delay. Rather, the expansive nature of the hearing which detailed events over a six-year period led to inevitable delay,” Justice Benotto stressed, further clarifying that “[A]n allegation that the art. 13(b) exception applies does not cancel the court’s obligation under the Convention for prompt resolution.”
“Since the hearing days were not consecutive, the hearing extended for a period of five months. The total time elapsed from March 2019, when the father filed his application, to the release of the decision was well over a year,” she added, pointing to the Family Law Rules, O. Reg. 114/99 which “provide application judges with the necessary management tools to conduct the application quickly.”
The court noted that in this case, “there was a Peruvian court decision in April 2019” that was “inconsistent with the existence of grave risk to the child, at least up to that point in time.”
“The application judge should have addressed — up front — the basis for the extensive re-litigation subsequently embarked upon. The exercise of this case management function would have served two purposes: (i) directions could have been given to focus the hearing; and (ii) the basis for the re-litigation would have been clear. As it stands, there is no basis suggested in the reasons for permitting such re-litigation,” determined Justice Benotto, turning to the serious effects of the hearing delay.
“When, as here, there is a delay, the abducting parent gains an advantage. Not only does the child develop ties to the new jurisdiction, but appellate review is impeded. The child will soon have been in Canada for nearly three years — this is a third of his life. He is now estranged from his father,” she wrote, noting that “[W]hile the credibility findings are entitled to deference, the process followed here is not in accordance with the court’s obligation under the Convention for prompt resolution.”
The delay, she explained, “not only contravenes the court’s obligation, it precludes meaningful appellate intervention. The delay itself amounts to a manifest or clear error.”
“However,” she added, the Court of Appeal “does not have the ability to remedy the delay.”
“A new hearing would only further the delay and, in light of the current situation, a return order would not appear to be in the child’s best interests,” she explained, turning next to the parenting issue before the Ontario court.
Justice Benotto noted that Justice Korpan’s findings “may become relevant to the parenting orders still to be made.”
“In my view, it is therefore important to comment on some of those findings,” she added, stressing that there are “two gaps in the application judge’s analysis: (i) the failure to rationalize her conclusions with those of the Peruvian courts; and (ii) the recitation of the mother’s evidence as fact.”
The court noted that although Justice Korpan “referred to the ‘dizzying array’ of litigation in Peru, she did not directly engage with that court’s different findings about events that occurred during some of the same period that she was considering.”
“While the application judge was not bound to treat these findings as determinative of the situation as it existed at the time of the hearing before her, the failure to address the discrepancies between her findings and those of the Peruvian family courts causes concern. The courts in Peru had the benefit of contemporaneous social work reports and psychological assessments. This should have been addressed,” explained Justice Benotto, highlighting that the “absence of explanation as to why the application judge concludes that the courts in Peru are not capable of determining the child-related issues” is also “concerning.”
The court stressed that despite the factual background, “the application judge’s reasons fail to adequately explain why Peru could not be entrusted to determine the custody and access issues.”
Justice Benotto acknowledged that “[C]redibility findings of an application judge are entitled to deference.”
“At the same time, in the context of the procedural issues and the gaps referred to above, I am troubled by the application judge’s description of the mother’s evidence, which she seemingly adopts as fact,” she added, noting that Justice Korpan took the same approach when “dealing with the mother’s allegation of a ‘death threat,’ a fact that loomed large in her analysis.”
“It is unclear whether the father testified about this allegation. If he did, there is no explanation as to why his evidence was either rejected or covered by the application judge’s blanket statement that she preferred the mother’s evidence over the father’s. It was clearly in the mother’s interest in the circumstances to embellish or exaggerate for the purpose of keeping the father out of her and her son’s life. Before making such a significant finding of fact (the only one that gave rise to a direct concern for the child’s safety and that occurred in the period following the latest Peruvian court decision), it would have been far better to clearly articulate the father’s position and evidence in relation to this particular incident,” Justice Benotto explained.
On the point of remedy, the judge noted that Justice Korpan’s “credibility findings do not amount to a reversible error.”
“However,” she added, “the difficulties I have articulated with respect to the process followed here and the application judge’s analysis require that the court approach the ongoing parenting application afresh.”
She further noted that the “ongoing” parenting application under the Children’s Law Reform Act (CLRA) “appears mired in procedural problems, most likely contributed to by the fact that the father is self-represented.”
“Several different judges have been involved in the matter. The application would benefit from case management by a single judge, an up-to-date assessment, and the involvement of the Children’s Lawyer,” she stressed, urging the father to “seek legal advice to address the ongoing proceeding under the CLRA.”
Justice Benotto, with Justices Benjamin Zarnett and Julie Thorburn in agreement, dismissed the appeal and ordered an “expedited assessment pursuant to s. 30 of the CLRA and the appointment of the Children’s Lawyer.”
“I would respectfully request that the Regional Senior Justice appoint a single judge other than the application judge to case manage the ongoing proceeding and remain seized,” she concluded.
Alison Boyce, a family lawyer at Mann Lawyers in Ottawa, highlighted some takeaways from the decision and drew attention to “footnote 1 of the case” which stated: “Effective October 3, 2022, r. 37.2 of the Family Law Rules now also provides that all international child abduction matters — whether or not covered by the Hague Convention — must have a first meeting with a judge within seven days of the start of the case and must be resolved in six weeks. While not in effect at the time of this application, the rule reflects the urgency required under the Hague Convention and confirmed by Balev.”
“Family lawyers need to note the new timelines and act swiftly,” she said, also noting that “when there is a delay in the court process, the abducting parent gains an advantage (see para. 31 of the case).”
“What was meant to be a prompt six-week determination under the Hague Convention, took 68 weeks and the appellate court was impeded in its review function. Delays in the court process can lead to ‘self-help’ parents gaining an unfair advantage and outcome,” she added.
Boyce also stressed that a “hearing under the Hague Convention is not a custody hearing.”
“The hearing is aimed at ‘enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence’ (see para. 24 of the case). This is the common mistake family lawyers make based on the case law. A Hague Convention application does not determine parental decision-making authority. The Hague Convention is designed to ensure that substantive decisions with respect to custody and access and that which is in the children’s best interests are made by the proper authorities in the place of the children’s habitual residence,” she explained.
Finally, she noted that the “parent opposing the return of the child must establish ‘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’ (see para. 25 of the case).”
“The grave risk analysis is neither meant to become an in-depth analysis of the parties’ history, nor is it a redo of extensive court proceedings in the foreign jurisdiction,” she added.
Editor’s note: The appellant father, who was self-represented, goes by Martin Berendson. He requested The Lawyer’s Daily to correct the record.
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