CITATION: Ibrahim v. Girgis, 2008 ONCA 23 |
DATE: 20080116 |
DOCKET: C47625 |
COURT OF APPEAL FOR ONTARIO |
MACPHERSON, ARMSTRONG and EPSTEIN JJ.A. |
BETWEEN: |
DIANA GEORGE IBRAHIM |
Applicant (Respondent) |
and |
IMAD SHAKIR GIRGIS |
Respondent (Appellant) |
Darrell S. Waisberg for the appellant |
Simonetta Lanzi for the respondent |
Heard: January 9, 2008 |
On appeal from the order of Justice Jane Ferguson of the Superior Court of Justice dated July 18, 2007. |
MACPHERSON J.A.: |
[1] This
case deals with a child who, at a very young age, was wrongfully retained
in
[2] The motion judge concluded that the father had acquiesced, emphasizing his delay in filing his Hague Convention application for his son’s summary return. During the eight-month period between the child’s retention and the father’s Hague Convention application, the father consented to a hearing in Ontario on whether Ontario or Florida was the proper jurisdiction to hear a custody application, and did not begin his Hague Convention application until the day before that hearing was scheduled to be held. Relying on the father’s acquiescence, the motion judge declined to order the child’s return under the Hague Convention.
[3] The father appeals, arguing that he did not acquiesce and seeking an order for his son’s return. For the reasons that follow, I would allow his appeal.
[4] The
appellant (the father) and the respondent (the mother) were married in
[5] Neither
the father nor the mother is a citizen or a permanent resident of the
[6] Andrew
is a
[7] The
mother’s grandmother, who was very dear to the mother, was terminally ill.
The mother decided to visit her grandmother in
[8] The
mother was uncertain whether she would be allowed back into the
[9] The
father wrote a letter granting the mother permission to travel with Andrew
to
[10] By
late September, a dispute had arisen between the father and the mother. The
mother said she wished to remain with Andrew in
[11] The
parties offer different accounts about what occurred over the ensuing months.
The father says he attempted to reconcile with the mother, guided by his
Coptic Orthodox faith, which he says forbids divorce absent adultery. Father
Youstos Ghaly, a Coptic priest, played a major role in this attempted reconciliation
according to the father, reaching out to the father and the mother, who was
of the same faith, to try to bring the two together. The father’s hope was
that his wife would eventually agree to return to
[12] The
mother says that the father made few attempts at reconciliation. She says
she was firm beginning in late September that neither she nor Andrew would
be returning to
[13] Although
the mother did not use her return ticket, she did make one attempt to cross
the
[14] On
January 25, 2007, the mother began custody proceedings in
[15] Six
weeks later, on March 20, 2007, the father began custody proceedings in
[16] Given
the two parallel proceedings, on April 26, 2007, the
[17] On May 23, 2007, the day before the jurisdictional motion was set to be heard, the father served the mother with notice that he would be commencing an application under the Hague Convention for Andrew’s summary return to Florida.
[18] The
Hague Convention motion was heard on June 7, 2007 before Ferguson J. of the
Superior Court. The motion judge declined to order Andrew’s return. Invoking
Article 13(a) of the Hague Convention, she concluded that the father had
acquiesced in Andrew’s retention in
[19] Andrew,
now two and a half years old, continues to reside in
[20] The sole issue on appeal is whether the motion judge erred in concluding that the father acquiesced in his son’s retention and declining on that basis to order Andrew’s return to Florida under the Hague Convention.
[21] Any analysis of the Hague Convention requires bearing in mind that instrument’s core objective: securing the prompt return of abducted children to their country of habitual residence. In Thomson v. Thomson, [1994] 3 S.C.R. 551, the Supreme Court of Canada’s leading case on the Hague Convention, La Forest J. stated at p. 559: “The underlying purpose of the Convention, as set forth in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.” The Convention thus establishes a presumption in favour of ordering the child’s summary return under Article 12.
[22] The Convention creates certain exceptions to the mandatory return procedure for children wrongfully removed or retained. Those exceptions, contained in Articles 12, 13 and 20, were intended to be of limited scope. The Convention’s drafters envisaged a “restrictive” interpretation of these exceptions: see Elisa Pérez-Vera, “Explanatory Report” in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at para. 34. Similarly, Chamberland J.A. of the Quebec Court of Appeal in M.G. v. R.F., [2002] J.Q. No. 3568 at para. 30, said:
The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However it is also, in my view, a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.
[23] The exception at issue in the case at bar is contained in Article 13(a), which reads:
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. [Emphasis added.]
[24] I make two observations about this provision. First, it places the burden for establishing acquiescence on the person who opposes the child’s return – in this case, the mother. Second, whereas return of the child under Article 12 is mandatory where the court finds wrongful removal or retention, a court’s decision not to return a child because of the aggrieved parent’s acquiescence is a discretionary decision: where Article 13(a) applies, the requested state “is not bound to order the return of the child”.
[25] In Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), this court performed an in-depth analysis of Article 13(a) and decided to adopt the analysis of acquiescence set out in a House of Lords judgment by Lord Browne-Wilkinson: see In re H and others (Minors) (Abduction: Acquiescence) [1998] A.C. 72 (H.L.). This court’s conclusion was that acquiescence is a question of the aggrieved parent’s subjective intention, not one of the outside world’s perceptions of that intention (para. 48). Subjective intention can be demonstrated through conduct, but such a demonstration requires the abducting parent to show “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence” (para. 49). Moreover, to override the mandatory return mechanism, the acquiescence must be “unequivocal” (para. 49).
[26] In her reasons, the motion judge referred to Katsigiannis and correctly summarized its holding. However, the motion judge went on to refer to the concept of “passive acquiescence,” which she said “occurs when the aggrieved parent allows enough time to pass without insisting on summary return.” She went on to conclude that “[w]aiting and permitting Andrew to become settled in Ontario and to establish roots with his mother and her extended family can only be the result of acquiescence on the part of the father.” [Emphasis added.] The four factual findings at the end of her endorsement follow a similar path of reasoning:
(i) there is clear and cogent evidence of unequivocal acquiescence;
(ii) the father’s conduct
is inconsistent with the summary return of Andrew to
(iii) there has been passive acquiescence on the part of the father i.e. enough time has passed without insisting on summary return;
(iv) acquiescence, in this case, can be inferred from the father’s conduct.
[27] With respect, in my view the motion judge misapplied the concept of acquiescence set out in Article 13(a) and explained in Katsigiannis.
[28] The eight-month delay between the mother’s failure to return Andrew on the September 29 return flight and the father’s commencement of Hague Convention proceedings cannot, without more, constitute acquiescence. The Hague Convention, under Article 12, allows aggrieved parents one year following the date of the wrongful removal or retention to apply for their child’s summary return, and to have the Convention’s summary return mechanism apply with its full force. Even after a year has passed, an aggrieved parent’s summary-return rights are not extinguished; the return mechanism is merely softened, with the abducting parent given the chance to override mandatory return upon proof that the child has “become settled in its new environment”: see Article 12. To infer acquiescence solely on the basis of delay where the application was filed within eight months is inconsistent with Article 12. Given Article 12’s one-year window, which is not even a strict limitation period, such delay cannot by itself constitute “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence”.
[29] There are good reasons not to deny the aggrieved parent the one-year window provided by Article 12. The parent may initially be unaware of the Hague Convention and of the rights and remedies flowing from it. The parent may, as the father claims here, attempt reconciliation, or to otherwise settle the dispute outside the courtroom. Most importantly, such a broad interpretation of acquiescence is inconsistent with the purpose of the Convention, which is to secure the prompt return of abducted children, and with the correspondingly limited scope of the Convention’s exceptions.
[30] The
motion judge committed a similar error in principle by referring to the fact
that “Andrew [had] become settled in
[31] The
motion judge noted that the father did not commence his Hague Convention
application until after the jurisdiction motion was set to be argued in
[32] The
father’s procedural conduct is not inconsistent with summary return. Consenting
to and preparing for a jurisdictional hearing in
[33] I conclude that the trial judge erred in interpreting Article 13(a) and in finding that the father had acquiesced in Andrew’s wrongful retention. In my view, the mother did not show conduct by the father inconsistent with summary return or in any other way establish unequivocal acquiescence.
[34] Because
the exception contained in Article 13(a) does not apply, I would order that
Andrew be returned forthwith to
[35] I
would allow the appeal and order Andrew’s return forthwith, pursuant to Article
12 of the Hague Convention, to his home in
[36] I would set aside the motion judge’s costs order and award the appellant his costs of the motion and the appeal fixed at $5,000 in total, inclusive of disbursements and GST.
RELEASED: January 16, 2008 (“JCM”)
“J.C. MacPherson J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree G. Epstein J.A.”
[1] The only date the letter refers to is July 11, 2006. Presumably, the father meant June 11, 2006.