CANADA – CORNFELD – APPEAL – 2001

CANADA – CORNFELD – APPEAL – 2001 Return ordered) (Art.13b) (Zone of War) (OnAppeal) CORNFELD v CORNFELD. The mother seeks a stay of the order of Ferrier J. dated November 30, 2001 pending the disposition of her appeal. The court saw “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”. The motion is therefore dismissed.

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Cornfeld and Cornfeld (Canada 2001)Ontario Court of Appeal Docket No M28020 (C37348)
Date: 2001 12 04
18 International Abduction [Canada 2001]
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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