Nikoladze v. Kekelia, 2018 ONCJ 225

ONTARIO COURT OF JUSTICE CITATION: Nikoladze v. Kekelia , 2018 ONCJ 225 DATE: 2018 04 06 COURT FILE No.: Toronto DFO-15 12803-A1 BETWEEN: GEORGE NIKOLADZE Applicant — AND — TATIA KEKELIA Respondent Before Justice M. L. Cohen Ruling released on April 6, 2018 Mr. David K. Sherr........................................................ counsel for the applicant Mr. Michael Zalev and Ms. Sarah Boyle.........................................

Amicus Curiae COHEN, M.L., J.: [ 1 ] This motion within a Children’s Law Reform Act application raises the question of the permissible ambit of a domestic court’s response to a possible misinterpretation of the principles of the Hague Convention [1] (the “ Convention ”) by a foreign court. [ 2 ] The applicant is the father of Mikheil Nikoladze, born December 27, 2012. The respondent is the child’s mother. The parties are citizens of Georgia (the country), but the applicant and child also hold Canadian citizenship.

The Mother holds a Canadian permanent resident visa. [ 3 ] The family had moved from Georgia to Canada in September, 2014. In January, 2015, the mother took Mikheil to visit her family in Georgia with the consent of the father. Once there, she advised the father she would not be returning to Canada with him. [ 4 ] The father immediately sought a remedy in this court under the Children’s Law Reform Act .

On March 27, 2015, Katarynych, J. made an order without notice to the mother, granting the father temporary custody of the child, and requiring the mother to return the child to the father’s care no later than April 6, 2015. Justice Katarynych found that the child was ordinarily resident in Toronto, and had been in the care of both parents, prior to the mother’s departure with him. [ 5 ] Despite having been served with the Order, the mother elected to ignore the Ontario proceedings and the Order.

The father then commenced an application in Georgia for an order directing the return of the child to Ontario pursuant to the Hague Convention . The father’s CLRA application has remained on adjournment. [ 6 ] In his motion, the father asks for an order affirming that the earlier order of March 27, 2015, remains in force.

Specifically, he asks this court to order: • that the province of Ontario remains Mikheil’s habitual residence pursuant to section 22 (2) of the Children’s Law Reform Act ; • that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of the

Children’s Law Reform Act; • that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody andaccess orders affecting him; • that the applicant has rights of custody and access to him; and that the child should be returned forthwith to the province of Ontario. [7] This is my second ruling on the motion. The first, which resulted in an adjournment, and which sets out much of thebackground, was made July 12, 2017. That decision is reported at Nikoladze v. Kekelia, 2017 ONCJ 475 .

The purpose of theadjournment was to permit the filing of further evidence, including a translated version of the decision of the Hague application court –the Tbilisi City Court. Although no further evidence was tendered, the decision of the application court has now been filed. [8] As the respondent was not participating in the action, on consent, I appointed Amicus Curiae to assist the Court. Amicus hasbeen appointed, and I am grateful for his assistance. [9] The application Court found that the child had been wrongfully retained by the mother in Georgia, in contravention of

Article 3of the Convention. Despite this finding, the Tbilisi City Court refused to order the return of the child, as required by

Article 12, basedupon the exception in

Article 13(b). [10] The applicant appealed the decision to the Tbilisi Appeal Court. The Appeal Court upheld the decision of the application court.The father’s request for leave to appeal to the Supreme Court of Georgia was denied. The father has now appealed the ruling of theGeorgian court to the European Court of Human Rights, based on an alleged breach of

Article 8 of the European Convention on HumanRights. [11] Notwithstanding the decision of the Georgian court, the applicant continues to seek a remedy in this court under the Children’sLaw Reform Act.

He has been advised by counsel in Georgia that the Order requested would assist his claim before the European HumanRights tribunal. [12] The father argues that the proceedings in Georgia are tainted by procedural unfairness and misinterpretation of the Convention.With respect to procedural unfairness, he relies on an opinion from the office of the Public Defender in Georgia which states thatapplication court applied lax evidentiary standards, relied on questionable evidence, and exhibited bias in favour of the mother.

As Ihave not seen the evidence filed in the Georgian Court, nor reviewed any transcript of the proceeding, I cannot comment on this branchof the father’s argument. [13] With respect to the misinterpretations of the Convention, the father states that, contrary to Hague jurisprudence, the GeorgianCourt applied a “best interests” analysis, and an insufficiently stringent risk of harm test, in evaluating the mother’s claim under Article13(b).

In these circumstances, he argues that, notwithstanding the principle of comity which is at the heart of the Convention, theOntario Court is not bound to defer to the Georgian Court, and can assert its continuing jurisdiction to determine the issue of custody inOntario. [14] The applicant also asks the court to find the respondent in contempt of the order of March 27, 2015.

As the request for acontempt finding was first raised in argument before me, was without notice to the respondent, and was not supported by any formalmotion, I am dismissing that claim. [15] Amicus argues that the applicant’s motion raises the question of whether and when an Ontario Court can find that a foreignjurisdiction has not met its treaty obligations. He points out that there is no claim for substantive relief – rather the father is effectivelyseeking a declaration from the Ontario Court of Justice that Georgia has misapplied the principles of the Convention.

Amicus submitsthat while the court may have the jurisdiction to make the orders requested in some circumstances, it should refrain from doing sobecause: the Ontario Court of Justice may not have jurisdiction to order declaratory relief, because the declaration will not settle any“live controversy” between the parties, and because there is no possibility of enforcement of any order the court may make.Furthermore, Amicus questions the propriety of opining on the issues before the European Court, and of making an order that may beviewed as criticizing a foreign court.

In the result, Amicus proposes that the father’s application be dismissed, or stayed, to be revived inthe event of a change in circumstances. [16] The issues in this case arise from the Georgian Court’s characterization of the objects of the Convention and its

interpretation ofthe

Article 13(

b) exception – an

interpretation which flows from that Court’s general misinterpretation of the Convention, and from themanner in which the Georgian Courts resolved the interplay between the Convention and other international treaties to which Georgia isa signatory. [17] In arriving at its determination, the applications Court relied upon the

preamble to The Hague Convention, and

Article 13(b),the Civil Procedure Code of Georgia, the Convention on the Rights of the Child, Clause 2 of

Article 6, and

Article 8 of the EuropeanConvention of Human Rights. [18] I reproduce here all but the provisions of the Georgian domestic legislation which were not made available to me. I also includeArticle 1 of the Convention which describes its objects, although

Article 1 was not specifically referred to by the Tbilisi City CourtJudge. [19] From the Hague Convention: The

preamble: The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally 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, as well as to secure protection for rights of access,

Article 1 The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States .

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; or

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. [ 20 ] From the Convention on the Rights of the Child :

Article 6 2. States Parties shall ensure to the maximum extent possible the survival and development of the child [ 21 ] From the European Convention of Human Rights :

ARTICLE 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. [ 22 ] Before I turn to a review of the decisions of the Georgian applications court, and appeals court, I want to summarize the generally understood framework of the Hague Convention . [ 23 ] Consonant with its title, the purpose of the Hague Convention is to address the civil aspects of child abduction.

The Convention is intended to establish procedures to ensure the prompt return of children who have been wrongfully removed or retained to the State of their habitual residence, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. (Article 1) [ 24 ] The Explanatory Report on the Hague Convention is helpful in clarifying that the two purposes set out in the

preamble can be regarded as one single object considered at two different times; whilst the prompt return of the child answers to the desire to re- establish a situation unilaterally and forcibly altered by the abductor, effective respect for rights of custody and of access belongs on the preventive level, in so far as it must lead to the disappearance of one of the most frequent causes of child abductions (par. 16) [ 25 ] The objectives of the Convention are grounded in the notion that an effective way of deterring child abduction is to deprive the abductor’s actions of any practical or juridical consequences by promptly restoring the status quo prior to the wrongful removal.

Thus, in most cases, the Convention allows a final decision on custody to be taken by the authorities of the child's habitual residence [2] . [ 26 ] The Convention is not intended to regulate the problem of awarding custody rights [3] .

It rests implicitly upon the principle that any debate on the merits of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal. [4] It presumes that the courts of the child’s habitual residence are capable of resolving custody disputes [5] . [ 27 ] Thus, when the Convention states that “the interests of children are of paramount importance in matters relating to their custody,” it is addressing the interests of children generally to protection from the harmful effects of their wrongful removal or retention, and not the interests of the child before the court [6] .

Indeed the Convention clearly states in

Article 19 that A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

[28] This is not to say that issues affecting a child’s best interests have no place in a Hague adjudication. [29] The Convention articulates exceptions to the general principle of prompt return, but the exceptions are limited.

Thus a courtmay refuse to order the return of a child where the proceedings have been commenced after the expiration of the period of one year fromthe date of the wrongful removal, and it is demonstrated that the child is now settled in its new environment (Article 12), or if it findsthat the child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of itsviews (Article 13).

Importantly for the within application, a court may refuse to order the return of the child where “there is a grave riskthat his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation”(Article 13(b)).

Each of these Articles provide an exception to the general rule, and because of their exceptional nature, are to be strictlyconstrued in order to protect the integrity of the Convention itself. [30] The Supreme Court of Canada in the leading case of Thomson v Thomson, [1994] 3 SCR 551, (SCC),concluded after a review of international jurisprudence that the following was generally accepted

interpretation of

Article 13(b): . . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from oneparent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and nottrivial, psychological harm. That, as it seems to me, is the effect of the words `or otherwise place the child in an intolerable situation'. [31] In Rayo Jabbaz v. Rolim Mouammar, (ON CA), the Ontario Court of Appeal stated that “The use of theterm “intolerable” speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.” [32] A claim under

Article 13(

b) should not devolve into a custody dispute. Thus, in Hughes v Hughes, 2014 BCCA 196, the BritishColumbia Court of Appeal stated that

Article 13 is narrow in scope. It sets out grounds upon which the foreign state may refuse to return the child to the requesting state. Itdoes not authorize an “autonomous review” of the merits of the custody dispute… (par. 94) [33] I turn now to the question of the interplay of the Hague Convention, with other international treaties[7]. [34] Amicus has submitted a decision from the European Court of Human Rights dealing with the

interpretation of

Article 13(

b) by aGeorgian Court, G.S. v. GEORGIA, Application No. 2361, Fourth Section, European Court of Human Rights. I have reviewed thatdecision, as well as the reasons in the case of X v. Latvia ([GC], no. 27853/09 referred to therein, which is a decision of the GrandChamber of the European Court of Human Rights. These cases engage

Article 13(

b) of the Hague Convention, the Convention on theRights of the Child, and

Article 8 of the European Convention on Human Rights. [35] In the case of X v. Latvia, the Grand Chamber addressed the question of the relationship between the European Convention onHuman Rights, the Hague Convention, and the Convention on the Rights of the Child. As in A.M.R.I., a combined and harmoniousapplication of the international instruments, which has regard to the purpose of the instrument, and its impact on the protection of therights of children and parents, was favoured. 95.

The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the twoparents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters …taking into account,however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate returncorrespond to a specific conception of “the best interests of the child”… [36] The Grand Chamber states that there is a broad consensus internationally in support of the idea that in all decisions concerningchildren, their best interests must be paramount, and that this philosophy is inherent in the Hague Convention ...which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his orher country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimesprove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically inthe event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in anintolerable situation (Article 13, first paragraph, (b)).(par. 97) [37] The court also emphasized at paragraph 107, that where a claim is advanced under

Article 13(

b) Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, butsufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly …is necessary. [38] The case of G.S. v Georgia is of interest because it involved similar reasoning by the application court to that in the case at bar.In G.S. v Georgia, the European Court found that the decision-making process under the Hague Convention of the Tbilisi City Court andthe Georgian Supreme Court did not meet the procedural and positive requirements inherent in

Article 8 of the European Convention onHuman Rights. In referring to the court’s

interpretation of

Article 13(b), the tribunal stated that ...the exceptions to return under the Hague Convention must be interpreted strictly (see the Explanatory Report on the HagueConvention...) Thus, the harm referred to in

Article 13 § b of the Convention cannot arise solely from separation from the parent whowas responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet thegrave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in

Article 13 (b)concerns only the situations which go beyond what a child might reasonably bear … (par. 56)

[39] Having reviewed these principles, I turn to the reasons of the application Court and the Tbilisi Appeal Court. Reasons of the Tbilisi City Court – The Application Court [40] The applications court concluded that the child had been wrongfully retained in Georgia, but refused to order the return of thechild, as required by

Article 12 which states that: Where a child has been wrongfully removed or retained in terms of

Article 3 and, at the date of the commencement of the proceedingsbefore the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed fromthe date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. [41] The applicants’ claim for return of the child was rejected based on the respondent’s claim under

Article 13(

b) of theConvention. [42] In its reasons, the application Court states, inter alia, that ...the main goal of the existence of the convention on civil aspects of international child abduction is first of all to provide the safety ofthe child’s interest, living in safe, calm, proper environment and accordingly, when regulating the dispute with the convention this is theoutcome which should be achieved.

In presented dispute - the genuine care in the care of the youngster, Mikheil Nikoladze, is to create a healthy and safe environment forhim, which is the concern of the parents and the competent authorities of the state. It is determined there is the tense and conflict relationship between parents, Tatia Kekalia felt unsafe and isolated in Canada. In Georgiathe child is in a caring, loving environment. Between the mother and the child there is strong attachment. The child’s mother, TatiaKekelia, feels protected in her homeland and in an environment of her close people.

Based on the explanation [of the father] it is determined that living of the [child] without his mother, taking into consideration his age, isunimaginable and his request aims the return of the child and mother to Canada.

It is also considered by the court that [the mother] is notwilling to live in Canada.” The return of the youngster, Mikheil Nikoladze, to Canada without his mother contradicts to his preferential interests, since the presentdevelopment stage of the child is the basis of the establishment of the child’s personality, when insufficient time spent with his mother,the person to which the child is the closest to, will be disastrous and affect the formation of the individual’s life.” Reasons of the Tbilisi Appeals Court [43] The father appealed the decision to the Tbilisi Appeal Court.

The Appeal court did not interfere with the finding that the childhad been illegally retained in Georgia. The only issue was whether the exception under

Article 13 (

b) applied. The Appeal Court upheldthe decision of the application judge as follows: The court is opposed to the child’s return to Canada since, according to the conclusion submitted by the Vake-Saburtalo Social ServiceAgency of June 3, 2015, and the conclusion of independent psychologist Khatuna Dolidze, it has been determined that frequenttransitions will cause stress for [the child] at his critical stage of development, and will pose risks to his psychological well-being. At thistime, it is important for the child to remain with his mother.

Breaching the connection between mother and child will only lead tonegative consequences. The Plaintiff failed to substantiate his objections and cannot deny the possibility that, by separating by separating his son from themother, the child’s rights and interests will be violated. Furthermore, the Plaintiff failed to prove that the child’s return to Canada willprotect the interests of the child or the parents. [44] It is certainly arguable that the Georgian Courts applied an

interpretation of the Convention which upends its objectives byapplying an unrestricted best interests/custody test as the principal factor in its decision not to order the return of the child. It is alsoarguable that the Georgian courts applied an incorrect test in applying

Article 13(b). If so found, such conclusions could amount, in myview, to a finding that the Georgian Court “evinces a clear misinterpretation of the Convention.” (Pitts v. De Silva, 2008 ONCA 9, [2008] O.J. No. 36 (Ont. CA). Such a finding might then open the door for this court to reassert its jurisdiction over theparties’ custody/access dispute – a jurisdiction that has been preempted by the Hague application. (Jabbaz v. Mouammar, (ONCA). [45] I am well aware that respect for the principle of comity is essential for the effective operation of the Hague Convention.

Thatprinciple requires courts in contracting states to accord deference to the lawful judicial decisions of other contracting states: Hughes vHughes, 2014 BCCA 196.

[46] As the British Columbia Court of Appeal observed Treaties are not designed to pit jurisdictions against each other, but to facilitate cooperation. (par.88) [47] I am also struck by the formulation in X v.

Latvia, which I repeat here: The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the twoparents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters …taking into account,however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate returncorrespond to a specific conception of “the best interests of the child” [48] I appreciate that there must be a “margin of appreciation” afforded to States in matters involving the

interpretation ofinternational conventions. This maxim supports a posture of restraint in criticizing foreign judgments. On the other hand, in matters ofsuch consequence as child abduction, the requirement for deference cannot be absolute. [49] While it remains possible that the Pitt v Da Silva test is met in the instant case, there is a strong reason to avoid adjudicatingthat question at this time. The Hague application has concluded, and the Georgian appeal process has been exhausted.

Nevertheless, theintegrity of the Georgian Court’s decision remains before a tribunal having jurisdiction to consider the process, and the decision, and theappropriate remedy if a breach is found. In such circumstances, I agree with Amicus that at this time it is inappropriate for this court toopine on the very issue before that tribunal.

Deference to the European Court of Human Rights is also a matter of comity. [50] Recognizing the complexities of this situation, and desirous of a ruling that will bolster his claim to the European Court ofHuman Rights, the applicant asks the Court to affirm: ● that the Province of Ontario has jurisdiction to make orders for custody of and access to Mikheil pursuant to section 22 (1) of theChildren’s Law Reform Act; ● that Mikheil has no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody andaccess orders affecting him; ● that the applicant has rights of custody and access to him; and ● that Mikheil should be returned forthwith to the province of Ontario. [51] The applicant believes such an order will bolster his case at the European Court of Human Rights.

However, I agree withAmicus that the relief sought is in the nature of a declaration. A declaratory order is a judicial statement confirming or denying a legalright of the Applicant. The Courts of Justice Act reserves the power to make binding declarations of right to the Court of Appeal and theSuperior Court exclusively (section 97). As a judge of a statutory court I do not have the jurisdiction to make a declaration. [52] In my view, the most appropriate disposition in this case is to stay the proceedings in the Ontario Court of Justice pending theoutcome in the European Court of Human Rights.

Released: April 6, 2018 Signed: Justice M. L. Cohen 1Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction [2] Explanatory Report on the Hague Convention by Elisa Perez-Vera, par. 16 [3] Explanatory Report on the Hague Convention, par. 19 [4] Ibid, par.19 [5] See A.M.R.I. v. K.E.R., 2011 ONCA 417 par. 49 [6] In Canadian jurisprudence this principle is established in the case of Thomson v. Thomson, (SCC), [1994] 3 SCR551(SCC) see also A.M.R.I. v.

K.E.R., 2011 ONCA 417 , at par.49 where the court accepts that "[adhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, andprovides children with the greatest possible stability in the instance of a family breakdown": Cannock, at para. 23.(par 50)” [7] A similar issue was before the Ontario Court of Appeal in the case of A.M.R.I. v. K.E.R., 2011 ONCA 417