The Lawyers Daily: Ontario Court of Appeal ruling misinterprets SCC’s Balev decision, says family lawyer

A lawyer involved in a case that resulted in the Supreme Court of Canada revising how domestic courts determine the “habitual residence” of children under the Hague Convention on the Civil Aspects of International Child Abduction believes the Ontario Court of Appeal failed to follow the multifactor “hybrid approach” set out by the country’s high court in Office of the Children’s Lawyer v. Balev 2018 SCC 16.

In Farsi v. Da Rocha 2020 ONCA 92, Ontario’s appellate court upheld a Superior Court ruling last September that dismissed the Hague Convention application of Doriane Laura Farsi, a French citizen, who claimed that her then-infant daughter, identified as M.D. in the decision, was wrongfully removed by the father, Pedro Rafael Pereira Da Rocha last February from France — where mother and child had been residing since October 2018 — and returned to Toronto, where M.D. was born and where Farsi and Da Rocha lived with his parents.

Farsi asked the court to order that M.D. be returned to France since the child was habitually resident there in February 2019. But the application judge found that M.D. was habitually resident in Canada until Oct. 28, 2018 — when the relationship between Farsi and Da Rocha, a Portuguese-born Canadian resident, ended — and the child’s habitual residence remained in Canada, despite the time spent in France. As a result, Superior Court Justice Freya Kristjanson held that since M.D. was not habitually resident in France in February 2019, the Hague Convention did not apply.

The Court of Appeal agreed, and before outlining its analysis, cited the “high bar” established in Balev in which “appellate courts must defer to the application judge’s decision on a child’s habitual residence, absent palpable and overriding error.”

Ultimately, the Ontario Court of Appeal found no such errors in Justice Kristjanson’s ruling.

However, family lawyer Steven Bookman, founding lawyer at Toronto-based Bookman Law Professional Corp. who represented Farsi in the appeal, said that Justice Kristjanson should have only determined the habitual residence of the child in February 2019 when the father returned her to Canada from France.

“Under the Hague Convention, the only job of the application judge is to determine where a child’s habitual residence was at the date of either the wrongful removal or the wrongful retention, and the circumstances surrounding that. The judge in Farsi only looked at the circumstances going back to when the child went to France on Oct. 14, 2018, and centred her decision on that date,” explained Bookman, who argued at the Court of Appeal that the application judge did not have the jurisdiction to make that determination, which was, he maintained, the role of the French courts under the convention.

“She based her entire decision on a finding that the mother had wrongfully removed the child from Ontario and wrongfully retained her in France,” he said.

As the appellate court cited, Justice Kristjanson found that until Oct. 28, 2018, M.D.’s habitual residence was in Canada and that Farsi had Da Rocha’s consent for a two-week trip to France, but “not a relocation.”

The application judge also found that between Oct. 28, 2018, and Feb. 28, 2019, M.D. was “wrongfully” retained in France since both parents were exercising custodial rights at the time that the appellant “wrongfully” retained M.D. in France. The child’s habitual residence did not change in the four months in which she was retained in France and M.D.’s habitual residence “remains [in] Canada,” Justice Kristjanson held.

The judge acknowledged that the application required her to determine the child’s habitual residence on Feb. 28, 2019. However, in her view, the hybrid approach in Balev required that she examine all relevant factors in the child’s circumstances immediately prior to that date, including a factual examination of why M.D. was in France on Feb. 28, 2019.

Justice Kristjanson held that Farsi’s wrongful retention of M.D. in France from the end of October 2018 to the end of February 2019 did not change the child’s habitual residence to France, stating that “other than the evidence that the child lived with her mother in this period, I have no information about the child’s ties and circumstances.”

According to the application judge, Farsi “unilaterally and wrongfully attempted to change M.D.’s residence to France, through a deceptive removal and retention, without [Da Rocha’s] knowledge or valid and informed consent. Immediately before March 28, 2019, M.D.’s habitual residence was Toronto, and this remained M.D.’s habitual residence in February and March 2019.”

Justice Kristjanson found that the girl had not been wrongfully removed from France nor wrongfully retained in Ontario, and dismissed Farsi’s application.

In her reasons agreed to by Ontario Court of Appeal Justices Paul Rouleau and J. Michal Fairburn, Justice Eileen Gillese wrote that “the hybrid approach in Balev required that [the application judge] look at the ‘entirety’ of M.D.’s situation,” which included “her habitual residence on Oct. 28, 2018, and the circumstances under which she remained in France after that date.”

Darlene Rites, a family lawyer with Ferreira & Bettencourt, LLP in Toronto who represented Da Rocha, credited the appellate court with a “well-written decision that dealt with the issue of how a court determines the habitual residence of a child, for the purposes of a Hague Convention application, when there are competing claims of wrongful taking and retention of the child.”She said the case was unique since both parents commenced their own Hague Convention applications within months of each other: Da Rocha in November 2018 and Farsi in February 2019.“The hybrid approach set out in Balev brings Canada in line with the broader international jurisprudence and requires the court to look at all the relevant considerations arising from the facts at the case at hand and not merely parental intention,” Rites added.

B0okman, who represented John Paul Balev from the application stage through to the 2018 Supreme Court case, said that following Balev, Canadian courts now have to examine the “focal points” of a child’s life immediately prior to his or her removal or retention based on the primary caregiver, which in this case was the mother and which the Superior and Appeal Courts failed to consider in their rulings.

He added that the Supreme Court also held that one parent “can unilaterally change a child’s habitual residence in as short a time as 24 hours,” and presented that argument before the application judge. But Justice Kristjanson found that provision did not affect her determination that the lack of information about M.D.’s “life, ties and circumstances in the period from October 2018 to February 2019” led to her conclusion that the child’s habitual residence did not change from Canada.

As the Appeal Court noted, Balev outlined the focal point of a child’s life based on “the family and social environment in which [his or her] life has developed” immediately prior to the removal or retention, which in the Farsi case involved dual parental care, prior to Oct. 28, 2018, as well a close relationship with the girl’s paternal grandparents.

Queen’s University family law professor Nicholas Bala believes the appellate court ruling is consistent with Balev. “For family lawyers, this case emphasizes the importance of having child-removal clauses in a court-ordered separation agreement and acting quickly, which is what the father did,” he explained, adding that there must also be clarity of intent in child-travel documents regarding parental consent, and regardless of whether the parents are together or separated.“One of the issues in this case was that when the father went to France, the mother signed a consent for the father to return to Canada with the child with no restrictions.” 

Farsi claimed that she handwrote on a pre-prepared travel consent form that M.D. was to be returned to her in France after a month-long vacation in Canada. Da Rocha countered that Farsi did not write anything on the form or indicate that arrangement. 

On Feb. 10 — four days after the appellate court released its ruling with costs awarded to Da Rocha in the amount of $13,400 — Justice Kristjanson issued an order for Farsi to also pay $21,067 in costs to Da Rocha. 

The order by the application judge “displays how misdirected she was about her role pursuant to the Hague Convention,” said Bookman. “She actually awarded the father the reimbursement of his costs of returning the child from France to Canada, and made clear that she was punishing the mother for wrongfully taking the child to France last October.”

“It is unfortunate that she waited until after the hearing in the Court of Appeal to release the costs award since this is clear confirmation of the submissions made by us at the Court of Appeal and rejected. It is a dangerous interpretation of the Hague Convention and sets a dangerous precedent.”

He believes the Appeal Court “misinterpreted” and “missed the point” of Balev and “rendered a very bad, poorly reasoned decision that’s going to have serious implications across the country and shape the way abducted children are dealt with in the future, which completely contradicts the principles of the Hague Convention.”

He added that he likely will not seek leave to appeal Farsi. “It was a unanimous decision and I think it’s too soon after Balev,” said Bookman. “I don’t think there’s any chance the Supreme Court is going to be interested in redefining the Hague Convention. In Balev, there was a very comprehensive dissent, which more or less predicted that Farsi was going to be the fallout from the majority’s decision.”

“I don’t think that our courts are properly analyzing the convention and the elements of the Balev decision, merely because there’s a lot of inexperience,” he added. “I’ve been on several Hague (Convention) appeals in Ontario, and find that when I get a panel that has some experience on the convention, I get a more balanced decision than when I get a panel that has never looked at the convention or is slightly familiar with it.”

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