The matter of Ireland v. Ireland was heard by the Ontario Court of Appeal on September 8, 2011. Justice Juriansz provided his judgement on October 3, 2011. The issue at the forefront of this appeal was the appropriateness of the Ontario Superior Court of Justice’s enforcement of a foreign custody Order.
The Respondent father in this case was granted sole legal and physical custody of the parties’ children by the Superior Court of Fulton County in Georgia, U.S.A. and he proceeded to take the children to Georgia to live with him. The Applicant mother in this case was seeking an Order to set aside the decision of the Ontario Superior Court of Justice, which upheld the American Court’s decision, in an effort to have the children return to reside with her in Ontario.
Complicating the situation was the history of abuse between the father and the wife and children.
After marrying in Ontario in 2001 (already having conceived the first of two children) the couple moved to Georgia in the summer of 2007. The parties proceeded to separate in the summer of 2009 as a result of accusations made by the mother whereby she claimed the father physically abused her and the children, and that the paternal grandmother sexually abused the children. The Court in Georgia confirmed the allegations and granted the mother an ex parte protective Order. The mother was also granted temporary custody of the children, as well as temporary spousal and child support.
When the Divorce proceedings were fused together with the child protection proceedings the Court restored the father’s right to access time with the children. The Court also decided that the children were not to be removed from Georgia. After having some immigration problems, the mother was forced back to Ontario – and she took the children with her, thus breaching the Order of the American Court. She commenced proceedings in Ontario, but her matter continued in Georgia also where, in December of 2010, Justice Tuscan awarded sole custody of the children to the father, stating that the mother had failed to establish that her having sole custody of the children was in their best interests. The mother was not present for these proceedings. Justice Tuscan also ordered that the children be returned to Georgia immediately. In Canada, the father moved to have this Order be enforceable, which Justice Ferguson of the Ontario Superior Court of Justice agreed to.
For the purposes of the Appeal, the mother also brought a Motion for third-party disclosure from a number of organizations in Canada and the United States, which was dismissed by Justice Juriansz. She previously also brought an Application seeking to allow her to present viva voce evidence which was denied because the judge felt that it would not be unfair for the mother to continue without the documents she was seeking to introduce. Also contributing to this decision was the fact that Justice Juriansz believed that introducing the documents would not have assisted the mother in establishing the degree of harm necessary to preclude the issuance/enforcement of an Order demanding the return of the children to the jurisdiction where they were residing at the time of separation (in this case, Georgia). Having had her Motion for third-party disclosure dismissed, the mother believed that her grounds for appeal were that Justice Ferguson failed to acknowledge and give effect to Article 13(b) of the Hague Convention, which reads as follows:
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:
b) 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.
Unfortunately for the mother, there had been no request made for the return of the children under the Hague Convention, nor did the father’s request to enforce the Order from Georgia invoke it.
Justice Juriansz pointed out that the mother could rely on Section 43 of the Children’s Law Reform Act, which reads:
Upon Application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm, if
a) the child remains in the custody of the person legally entitled to custody of the child;
b) the child is returned to the custody of the person entitled to custody of the child; or
c) the child is removed from Ontario.
The mother was faced with establishing that the children would suffer serious harm if they were removed from Ontario and returned to the custody of their father. In the eyes of Justice Juriansz, she could not do so. In fact, he went so far as to say the mother’s appeal was a “meritless waste of time.” Her constant delay, absence from the proceedings in Georgia, and her apparent interest in expanding the litigation were all contributing factors to Justice Juriansz decision. In light of the above, the appeal was dismissed and security for costs in the amount of $10,000.00 was also awarded to the father.