Siegel's Family Court Calendar

“We recognize that there is no express duty under the Hague Convention to refuse to return a child on the basis of risk of persecution. The authority afforded under arts. 13(b) and 20 is discretionary in nature. However, as in the refugee extradition context, a child refugee has a prima facie entitlement to protection against refoulement.

Accordingly, in our view, a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child. And, as Némethalso holds, at para. 106, there should be no burden on the child who has refugee status to persuade the application judge that “the conditions which led to the conferral of refugee protection have not changed”.

Nothing in the available Canadian authorities undercuts this conclusion. While several cases have confirmed, correctly, that neither Convention refugee status nor a claim for such status displaces Canada’s obligations under the Hague Convention, none holds that Canada’s non-refoulement obligations are irreconcilable with its obligations under the Hague Convention: see Kubera v. Kubera,2008 BCSC 1340 (CanLII), [2008] B.C.J. No. 1893, 60 R.F.L. (6th) 360 (S.C.), at paras. 63-64, affd on other grounds 2010 BCCA 118 (CanLII), [2010] B.C.J. No. 383, 3 B.C.L.R. (5th) 121 (C.A.); Toiber v. Toiber, 2006 CanLII 9407 (ON CA), [2006] O.J. No. 1191, 208 O.A.C. 391 (C.A.), at paras. 11 and 12; Kovacs, at paras. 106, 109-14; Martinez v. Martinez-Jarquin, [1990] O.J. No. 1385 (Prov. Ct.), at pp. 5-6 (QL).

The need to consider a risk of persecution prior to returning a childunder theHagueConvention is also supported in the English jurisprudence. In S (Children)(Abduction: Asylum Appeal) (Re),[2002] EWCA Civ. 843, [2002] 1 W.L.R. 2548 (C.A.), Laws L.J. commented, at para. 25:

Having regard to the rule as to the paramountcy of the child’s interests arising under s. 1 of the Children Act 1989, I would respectfully suppose that a family judge would at the least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected. We adopt and endorse this observation.”

A.M.R.I. v. K.E.R., 2011 ONCA 417 (CanLII) at 77-80

“As a general rule, in determining whether disposition costs should be deducted from an asset’s value, the analysis should take into account evidence of the probable timing of the asset’s disposition. It is appropriate to deduct disposition costs from net family property “if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them”: Sengmueller v. Sengmueller(1994), 17 O.R. (3d) 208 (C.A.), at pp. 216-17. An allowance for disposition costs from net family property should not be made in the case “where it is not clear when, if ever, a sale or transfer of property will be made”:  McPherson v. McPherson(1988), 63 O.R. (2d) 641 (C.A.), at p. 647.  However, it is not necessary for the court to determine whether the disposition of the assets is inevitable; rather, the court should determine on the basis of the evidence whether it is more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred: Buttar v. Buttar, 2013 ONCA 517, at para. 20”

Bortnikov v. Rakitova, 2016 ONCA 427 at 11

“On the proper test for unconscionability I refer to the words of Schroeder J.A. in Mundinger v. Mundinger, 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 at pp. 609-10, 3 D.L.R. (3d) 338 (C.A.):

The governing principle applicable here was laid down by this Court in the oft-cited case of Vanzant v. Coates (1917), 1917 CanLII 573 (ON CA), 40 O.L.R. 556, 39 D.L.R. 485. It was there held that the equitable rule is that if the donor is in a situation in which he is not a free agent and is not equal to protecting himself, a Court of Equity will protect him, not against his own folly or carelessness, but against his being taken advantage of by those in a position to do so because of their position. In that case the circumstances were the advanced age of the donor, her infirmity, her dependence on the donee; the position of influence occupied by the donee, her acts in procuring the drawing and execution of the deed; and the consequent complete change of a well-understood and defined purpose in reference to the disposition of the donor’s property. It was held that in those circumstances the onus was on the plaintiff to prove by satisfactory evidence that the gift was a voluntary and deliberate act by a person mentally competent to know, and who did know, the nature and effect of the deed, and that it was not the result of undue influence. That onus had not been discharged; and it was therefore held to be unnecessary for the defendant to prove affirmatively that the influence possessed by the plaintiff had been unduly exercised.

The principle enunciated in Vanzant v. Coates, supra, has been consistently followed and applied by the Courts of this Province and the other common law Provinces of Canada. The effect of the relevant decisions was neatly stated by Professor Bradley E. Crawford in a commentary written by him and appearing in 44 Can. Bar Rev. 142 (1966) at p. 143, from which I quote the following extract:

If the bargain is fair the fact that the parties were not equally vigilant of their interest is immaterial. Likewise if one was not preyed upon by the other, an improvident or even grossly inadequate consideration is no ground upon which to set aside a contract freely entered into. It is the combination of inequality and improvidence which alone may invoke this jurisdiction. Then the onus is placed upon the party seeking to uphold the contract to show that his conduct throughout was scrupulously considerate of the other’s interests.

This is slightly different from the test set forth by the trial judge in the case at bar. It is, however, the basis of our modern law of unconscionability and I would unhesitatingly follow it. The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon the husband of acting with scrupulous care for the welfare and interests of the wife. I think not.

We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces the unconscionability. I can find nothing in the reasons for judgment quoted above to denote that advantage taken.”

Rosen v. Rosen, 1994 CanLII 2769 (ON CA) at 12-13