CANADA – CORNFELD – 2001(Return ordered) (Art. 13b) (Zone of War) CORNFELD v CORNFELD The father applies to the Canadian court for the return of his children. The court rules that the “evidence is clear that the children are being wrongfully retained in Ontario by the respondent and such retention constitutes a wrongful retention or removal within the meaning of article 3 of the Hague Convention”. The mother’s Art. 13b argument was also rejected by the court. Children ordered returned.
================================================================
Cornfeld and Cornfeld (Canada 2001)Superior Court of Justice – Ontario
File No: 01-FA-10575
Date: 2001 11 30
17 International Abduction [Canada 2001]
================================================================
SUPERIOR COURT OP JUSTICE – ONTARIO
COURT FILE NO: 01-FA-10575
DATE: 30 Nov 2001
RE: CORNFELD V CORNFELD
BEFORE: Mr. Justice Ferrier
COUNSEL: John T. Syrtash for the applicant
Andrew K. Dekerty for the respondent
ARGUED: November 29, 2001
ENDORSEMENT
[1] The facts are fully developed in the affidavits filed and
concisely summarized in the factums of the parties.
[2] The respondent sought an adjournment of this motion and
application but that request was denied, The reasons are as
follows:
[3] The applicant served a further motion record on November
28, 2001. In that motion record, the appellant challenged the
validity of the respondent’s experts on the subject of
psychological harm to the children, by reason of the fact that
the experts had not had contact with the children, in effect had
not examined them and therefore the opinions were not
sustainable. The applicant also filed further opinion evidence of
an expert on Israeli law.
[4] In reference to the first aspect, the respondent sought
an adjournment to obtain a psychological assessment. The proposed
assessor is available to start in the second week of December. He
says he needs 60 hours. It is obvious that the assessment will
take at least a few weeks (he does not say how soon it can be
completed) and perhaps, in the court’s experience as much as two
to three months. If the assessment supports the respondent’s
position, no doubt the applicant may well want a further
assessment.
[5] Hague Convention applications ought to be dealt with on
an expedited basis for obvious reasons. Adjournments for long
periods should be avoided.
[6] Also, I am not satisfied that even with an assessment, or
two assessments, the court will be any better able to decide the
application.
[7] As to the request for further time to obtain legal
opinion in response to that filed by the applicant, I note that
the respondent has had since November 13, 2001 to obtain a legal
opinion. The respondent knew or ought to have known that opinion
evidence was required, even before the affidavit of the applicant
of November 28 2001. Further, counsel for the respondent does
not appear to have even contacted an expert for such purposes.
Counsel did not suggest in argument that the opinion evidence
filed by the applicant was wrong.
[8] For the above reasons, the adjournment was denied.
[9] As to the merits of the applIcation, the evidence is
clear that the children are being wrongfully retained in Ontario
by the respondent and such retention constitutes a wrongful
retention or removal within the meaning of article 3 of the Hague
Convention.
[10] This leaves the major issue, whether the respondent has
satisfied the onus upon her of establishing, under article 13(b)
that there is a “grave risk that her return would expose the
children to physical or psychological harm, or otherwise place
the children in an intolerable situation”.
[11] The respondent has filed her own affidavit, and evidence
of others, concerning the situation in IsraeL The evidence is
dramatic and extensive testimony to the impact of terrorist
attacks on daily life In Israel. These attacks continued even as
this application was being argued. She and her former husband
have lived in Israel since 1976 and the children have lived there
all of their lives. There has been great turmoil and violence in
Israel during that entire period, at times escalating
substantially during specific conflicts, referred to in the
material. This, says the applicant, is nothing new for these
children and this family. In earlier heightened conflict perIods,
the respondent did not see fit to remove the children from
Israel.
[12] The respondent took no steps in israel to have the
Israeli courts determine whether a move out of israel was
appropriate.
[13] Her response to the argument that violence in Israel has
been present for many years, is that the recent escalation of
violence, over the past several months, brings grave risk to the
children of a kind not experienced in Israel previously – and
that this explains why she has acted now.
[14] In my view, in measuring the risk to determine whether or
not it is “grave” it is important to consIder the environment to
which a parent or the parents voluntarily exposed the children
previously. In my view it is fair to conclude on the evidence
that living in Israel at any time over the past 25 years had
rIsks of harm associated with it. The parents did not seek to
remove their children from that environment.
[15] The Shorter Oxford Dictionary defines “risk~ as:
Risk – (noun) – Hazard, danger, exposure to mischance or
peril
The verb definition is
Risk – To hazard, endanger, to expose to the chance of
injury or loss.
“Grave” Is defined as:
Heavy, important … highly serious.
[16] In the context of article 13(b), the words in the article
can be rephrased to read: “highly serious danger that the child
would suffer physical or psychological injury”
[17] I note that the article is not absolute. It is not
necessary, to invoke the clause, to establish that harm will in
fact occur
[18] One must not overlook the objects of the Convention:
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
[19] TakIng into account the words of the article and the
Oxford definition as above noted, it is my view that in order to
successfully invoke article 13(b) the respondent must establish
on a balance of probabilities that there is a very strong
likelihood that harm will occur.
[20] I am riot satisfied that the respondent has met that
onus.
[21] I also refer to the recent decision of an Argentine
court, ordering the return of children to Israel (Altheim v
Altheim). Other courts have also ordered the return of children
to israel. See Freier v. Freier and Watkins v. Watkins
applicant’s casebook).
[22] ApplIcation granted with costs.
/s/ Ferrier J.
—————————–
Ferrier J.