COURT OF APPEAL FOR ONTARIO
CITATION: Husid v. Daviau, 2012 ONCA 469
DATE: 20120629
DOCKET: M41402 (C55015)
Gillese J.A. (In Chambers)
BETWEEN
Uri Landman Husid
Applicant/Appellant on Appeal (Moving Party)
and
Helene Marie Therese Daviau
Respondent/Respondent on Appeal (Responding Party)
Jeffrey Wilson and Joanna Harris, for the moving party
Phyllis Brodkin and Serena Lein, for the responding party
Heard: June 28, 2012
On motion for access pursuant to ss. 21 and 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, on the appeal from the judgment of Justice Craig Perkins of the Superior Court of Justice, dated January 23, 2012.
Gillese J.A.:
[1] The parties’ child will turn six years old on August 19, 2012. Her father, Mr. Landman Husid, brings a motion in which he seeks, among other things, unsupervised and overnight access with the child from August 19 to August 22, 2012.
[2] Ms. Daviau is the child’s mother. She opposes the motion.
[3] For the reasons that follow, I would dismiss the motion.
Background in Brief
[4] The appellant father lives in Lima, Peru, which was the parties’ former home and where the child was born and lived until September 2010, when she was taken by her mother to Canada. The child and her mother have continued to live in Canada. Mr. Landman Husid has a temporary order for custody of the child in Peru.
[5] Mr. Landman Husid brought an application in Ontario under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983, No. 35 (“Hague Convention”) in which he asked that the child be returned to Peru.
[6] On May 27, 2011, Justice Brownstone of the Ontario Court of Justice dismissed the application (the “May 27, 2011 order”) and allowed the child and her mother to remain in Canada.
[7] In his reasons for decision, Brownstone J. found that the child had been wrongfully retained in Canada within the meaning of article 3 of the Hague Convention. However, he concluded that Ms. Daviau had met the onerous burden under article 13(b) of the Hague Convention of establishing that if the child were returned to Peru, there was a grave risk of physical and psychological harm and that she would be placed in an intolerable situation.
[8] In the May 27, 2011 order, Mr. Landman Husid was given interim supervised access.
[9] Mr. Landman Husid appealed the May 27, 2011 order to the Superior Court of Justice.
[10] On August 30, 2011, by the consent order of Czutrin J., Mr. Landman Husid was granted temporary access to the child, via Skype, three times each week, pursuant to the temporary access order of the Superior Court of Justice on July 14, 2011.
[11] The appeal of the May 27, 2011 order was heard by way of a trial before Perkins J. in November 2011. The trial lasted seven days.
[12] By order dated January 23, 2012, Perkins J. dismissed the appeal (the “order under appeal”). Like Brownstone J., he did so on the basis of article 13(b) of the Hague Convention. He gave lengthy, thoughtful reasons for decision.
[13] Mr. Landman Husid has appealed the order of Justice Perkins. The appeal has been expedited and is scheduled to be heard on August 22, 2012.
The Motion
[14] The matter before the court today is Mr. Landman Husid’s motion in which he seeks a court order providing that:
1. Pending appeal, he shall continue to have skype access to the child during which the mother is not to be present in the room;
2. He shall have an unsupervised summer visit with the child on August 19, 2012, and overnight from August 20 to August 22, 2012;
3. The pick-up and drop-off locations shall be at a public place convenient to both parties;
4. The mother shall provide information to the father by email on a monthly basis about the child’s health, education and welfare;
5. The mother shall provide consent to the release of information from the child’s school, medical and other professionals;
6. He shall receive the costs of the motion.
[15] After hearing the parties orally, I advised that the motion was dismissed, with reasons to follow. These are the promised reasons.
Analysis
Jurisdiction of this Court to Hear the Motion
[16] Mr. Wilson, the appellant’s counsel, brought this motion pursuant to ss. 21 and 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Section 21 of the CLRA gives a parent the right to apply for an order respecting access. It reads as follows:
21. (1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
Section 28 of the CLRA sets out the powers of the court on an application made under s. 21. It reads as follows:
28. (1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons;
(b) by order may determine any aspect of the incidents of the right to custody or access; and
(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
[17] Mr. Wilson submits that this court has the power to grant the relief sought pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 134(2) reads as follows:
On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
[18] However, s. 18(1) of the CLRA defines “court”, for the purpose of custody, access and guardianship matters, to mean “the Ontario Court of Justice, the Family Court or the Superior Court of Justice”.
[19] In accordance with s. 18(1), therefore, the motion should have been taken to the court below.
[20] Mr. Wilson argues that he could not make the motion in the court below because that would amount to attorning to the court’s jurisdiction, the very matter he contests by way of the main appeal. I do not accept this argument. There are a number of access orders in place already. I understand that they were made without prejudice to the father’s right to maintain that he did not attorn to the court’s jurisdiction. If the existing access orders could be made on that basis, I see no reason why the present motion could not also be made on the same basis.
[21] Accordingly, I do not accept that this court has jurisdiction on this motion.
[22] I am reinforced in this view by two considerations.
[23] First, as part of the order under appeal, Perkins J. expressly ordered that the mother’s claim for custody and access should proceed. He directed that if the parties were unable to agree on how to proceed on the matter, a motion for directions should be booked, before him if possible. The order under appeal expressly provides a method by which the parties were to deal with custody and access. This aspect of the order is not under appeal. Its terms govern.
[24] Second, since there is no notice of motion to appeal the temporary access orders that are in place, it appears to me that the motion before the court is a collateral attack on the access orders already in place.
The Merits
[25] Alternatively, if this court does have jurisdiction, I would dismiss the motion.
[26] In my view, if the appellant is given unsupervised access to the child, there is a very real risk he will remove the child to Peru. My view is based primarily on the reasons for decision of Perkins J., which I will not recite. Suffice to say that they include findings that the appellant has taken the law in his own hands on a number of occasions and the last time the child was with her father on an unsupervised visit in Peru in January 2010, he refused to return the child to the mother despite a court order to that effect. Furthermore, there are the findings relating to family violence.
[27] The courts below had good reason to order that access be supervised. I am not persuaded that they erred; I would not disturb the orders.
DISPOSITION
[28] Accordingly, the motion is dismissed. The parties have agreed that there shall be no order as to costs of the motion.
Released: June 29, 2012 (“E.E.G.”)
“E.E. Gillese J.A.”