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CUSTODY AND ACCESS - Offences and penalties - Child abduction - Hague Convention - Practice and procedure - Appeals - Stay of order pending appeal

Tuesday, January 02, 2018 @ 8:22 AM  


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Motion by the appellant mother for a stay of an order to return the parties' children to Tennessee. The parties' children were born in February 2015 and February 2017. In July 2017, the mother took the two children from Tennessee to Mississauga without the father's knowledge or consent. They resided with the mother's mother. The father applied for return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The mother alleged that the children had no habitual residence due to the family's nomadic lifestyle. She further alleged that the children's return to Tennessee would expose them to a serious risk of physical or psychological harm, or otherwise place them in an intolerable situation. The application judge declined to conduct a viva voce trial. The judge concluded that the children were habitually resident in Tennessee and concluded that their return would not expose the children to risk of harm. The mother appealed and moved for a stay of the return order pending determination of her appeal. The mother relied upon evidence of a 20-year immigration ban prohibiting her entry to the United States. The father's criminal record barred him from entering Canada.

HELD: Motion dismissed. The application judge’s conclusion that the children were habitually resident in Tennessee was reasonable and amply supported by the record. The decision to determine the father's application on the basis of the written record was entitled to deference. Although the mother's appeal was not frivolous, it was not likely to succeed. There was no reason to believe that the Tennessee courts would not base a custody or place of residence decision without full consideration of the children's best interests with input from both of the parties. Prolonged jurisdictional wrangling was not in the children's best interests. Moreover, the irreparable harm arising from the children's non-contact with the father weighed against a stay. The defects that the mother attributed to the father as a parent were not of sufficient severity to cause a risk of imminent harm were the children returned to Tennessee before trial. The interests of justice did not favour a stay of the return order.

Paschel v. Paschel, [2017] O.J. No. 6421, Ontario Court of Appeal, G.I. Pardu J.A.(In Chambers), December 7, 2017. Digest No. TLD-January12018001