Cornfeld and Cornfeld (Canada 2001) Ontario Court of Appeal Docket No M28020 (C37348) Date: 2001 12 04 18 International Abduction [Canada 2001] ================================================================ COURT OF APPEAL FOR ONTARIO Docket No: M28020 (C37348) Date: 04 Dec 2001 RE: Yosef Cornfeld (Applicant/Respondent in appeal) vs Ruth Cornfeld (Respondent/Appellant) BEFORE: Charron J.A. (In Chambers) COUNSEL Andrew C Dekany, for the appellant John T Syrtash and Itzik Basman, for the respondent HEARD: December 3, 2001 Application for a stay of the order of Justice Lee L Ferrier made on November 30, 2001. ENDORSEMENT [1] The appellant seeks a stay of the order of Ferrier J. dated November 30, 2001 pending the disposition of her appeal. The order under appeal provides for the return of three of the parties' children to Israel pursuant to the terms of The Hague Convention, together with related relief. It is common ground between the parties that the appellant must meet the usual tripartite test in order to be successful on this motion: see Pollastro v. Pollastro, [1998] O.J. No. 4753; Maharaj v. Maharaj, [2001] O.J. No. 1875. Mrs. Cornfeld must therefore satisfy the court that a) there is a serious issue for determination on the appeal; b) irreparable harm would be occasioned if the stay were not granted; and c) the balance of convenience favours the granting of a stay. In my view, the appellant does not meet the test. [2] With respect to the first branch of the test, it is my view that the appeal does not raise any serious questions for determination. Several grounds of appeal are raised in the Notice of Appeal. I will comment on them briefly. [3] Two of the grounds relate to the application judge's refusal to grant an adjournment of the hearing. The appellant sought an adjournment for the purpose of having a psychological assessment of the children done and for the purpose of obtaining her own legal opinion on the law of Israel. [4] The applications judge refused to adjourn the hearing to allow the making of a psychological assessment far two reasons: first, Hague Convention applications ought to be dealt with on an expedited basis "for obvious reasons" and adjournments for long periods should be avoided; second, the court would not be in any better position to decide the application with one or even two assessments. It is my view that the record fully supports the application judge's decision on thIs point. The application essentially turned on the current state of affairs in Israel in relation to terrorist attacks and its potential long-term impact on the children. Both parties presented evidence on this point, including expert opinion evidence, and the applications judge was justified in finding that the matter could, and should, be decided on the basis of the existing record. [5] The applications Judge also refused the appellant's request to grant an adjournment to obtain a legal opinion in response to that flied by Mr. Corufeld on November 28, 2001 because he was of the view that Mrs. Cornfeld knew or ought to have known from the time she was served with the material on November 13, 2001 that opinion evidence was required. Further, she bad not even contacted an expert for such purpose. The applications judge's refusal to grant an adjournment on this basis was entirely discretionary and well within his purview to make. Further, there is nothing to suggest that he did not exercise his discretion judicially. It was indeed obvious from the commencement of these proceedings that Mr. Cornfeld was alleging that Mrs. Cornfeld's actions in not returning the children to Israel at the conclusion of their three-week vacation to Canada constituted a wrongful retention or removal within the meaning of Article 3 of the Hague Convention. The rights of the parties are defined under Article 3 in reference to the "law of the State in which the child was habitually resident immediately before the removal or retention". Hence the law of Israel was obviously relevant from the beginning and it was open to Mrs. Cornfeld to obtain her own opinion on the matter if indeed she intended to contest that aspect of the application. Instead, her response to the application was entirely framed in terms of the risk of harm to the children if they returned to their home state and a plea to the court to exercise its discretion under Article 13 not to return the children. In these circumstances, it was entirely open to the applications judge to refuse her late request for an adjournment for the purpose of obtaining further legal advice. [6] A number of grounds of appeal relate to the applications judge's findIng of fact and his failure to find on the evidence that there was "a grave risk" that returning the children to the current situation in Israel "would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation" within the meaning of Article 13(b) of the Convention The scope of appellate intervention with respect to findings of fact made by a judge in first instance is limited. In my view, the grounds of appeal that relate to the applications judge's finding of fact do not raise any serious question for determination on the appeal. His findings were reasonable and entirely supported by the record. [7] Finally, I see no merit to the contention that the applications judge imposed a more onerous test than that contemplated by Article 13(b) when he stated that the appellant "must establish on a balance of probabilities that there is a very strong likelihood that harm will occur." His words, particularly when taken in the context of his entire reasons, are consistent with the test set out by the Supreme Court of Canada in Thomson v. Thomson, [1994] 3 S.C.R. 551, [8] The second branch of the test can easily be met in this case. Obviously, the refusal of the stay will render The appeal moot and, in this sense, irreparable harm will ensue to the appellant. I do not agree, however, with the appellant's additional submission (communicated to me by letter sent subsequent to the argument and responded to by the respondent) that this consequence triggers the application of Rule 61.16(2.2) thereby requiring that the motion be beard by a panel of three judges. The decision on this motion may finally determine the issue of the stay pending the appeal but it does not finally determine the appeal within the meaning of this Rule. [9] Finally, it is my view that the balance of inconvenience does not favour the appellant's position. All of the questions raised by the appellant concerning the best interests of the children and the present custodial arrangements can be dealt with by a court of competent jurisdiction in Israel. In the meantime, it is of paramount importance and in keeping with the objectives of the Hague Convention that the children, who were born and who have lived all their lives in Israel, be returned promptly to their family, their school, their familiar environment and their culture. [10] In my view, a stay of Ferrier J's decision pending the appeal is not justified. For the same reasons, I see no justification for granting the request that a temporary stay be granted pending any possible review of this decision by a panel of this court. In practical terms, such a temporary stay would be tantamount to granting the relief requested and should likewise be justified. [11] The motion is therefore dismissed with costs on a party-and-party basis. For the convenience of the parties, I fix the costs at $2,000. /s/ Louise Charron, J.A. Comment by: Wm. M. Hilton 27 Apr 2002 This case is of significance for the following reasons: 1. Its discussion on the "Zone of War" defense that is regularly raised in these cases. 2. Delays should not be allowed or at best severely limited. 3. A prima facie case that the appeal be successful should be made out by the appellant if a stay pending the appeal is to be granted. This condition is similar to that of Csoka v Superior Court (Scott-Robson) (Cal.App. 4 Dist 3 Div 2000), Fourth Appellate District of California where there were comparable facts, found on this website as Csoka_CA.txt