Law Times

PAGE 12 FOCUS JUNE 23, 2008 / LAW TIMES Pollastro's had varying degrees of success BY GRETCHEN DRUMMIE Law Times n 1999, Phyllis Brodkin suc- cessfully argued a woman who fled to Ontario with her child — claiming "grave risk" from domestic violence under the Hague Convention if they were sent back to California — should stay here. It was the Pollastro v. Pol- lastro decision, and at the time the Ontario Court of Appeal said this defence should carry the day in these particular circumstances. "We thought it would give women a better chance at explain- ing away why they did that [fled with their children in an abusive situation]," says Brodkin, a partner at McDonald & Partners LLP in Toronto, a specialist in such cases. "It is essential when one looks at the convention to be aware of the purpose and policy goals behind the convention, which is to insulate children in contracting states from the negative effect of parental abduction across inter- national borders," says Brodkin. "However, there is a question as I to whether or not a return should be looked at differently when a woman has fled an abusive situa- tion with a child." It's been nearly 10 years, and while it was initially hoped the article 13(b) defence would make a difference for abused women, that indeed there should be a separate test for those leaving abusive situations, it hasn't really turned out that way. Pollastro has indeed often been raised in cases, but it's had "varying degrees of success," says Brodkin. "The risk was so manifestly clear in Pollastro that the case can easily be distinguished on the facts," says Brodkin in a recent paper for the Ontario Bar Associa- tion's continuing legal education. "It has turned out to be the excep- tion rather than the rule. There are many cases involving the conven- tion that go unreported. Based on our review of 21 reported deci- sions since 1999, there are only four decisions in which the court invoked the Pollastro test to order that the children not be returned." And then it happened last Phyllis Brodkin says that when the Hague Convention was draft- ed, it was not contemplated that the majority of the abductors of children would be women. March in a case in which ironi- cally Brodkin was on the other side of the equation. In Lom- bardi v. Mehnert, Ontario Court of Justice Margaret McSorley ordered a woman claiming abuse, who fled New York with her child, should stay here, in spite of Brodkin's protestations on behalf of the husband. The result is, while it's not a high court decision like Polas- tro, "it was a good discussion of it. And it means maybe people are starting to pay attention that maybe it should be looked at a little more," says Brodkin. In Lombardi, McSorley noted that unlike Pollastro the mother did not immediately flee New York with her child, but rather went to a shelter for safety. The father contacted her at the shelter and the situation "is as bad if not worse than the situation was for Ms. Pol- lastro in California," said McSorley in the written decision. She added that the father has "shown a com- plete disregard for court orders in his admitted breaches of several protection orders over the years. I am not convinced that any under- taking would protect the mother and the child from [the father] under these circumstances." In her findings, McSorley added that "returning the child to New York even subject to under- takings would expose the child to a grave risk of physical or psycho- logical harm and place the child in an intolerable situation. Therefore invoking article 13(b) I am not prepared to order that the mother return the child to New York." Brodkin says that when the convention was drafted it was not contemplated that the major- ity of the abductors would be women. "I've often wondered if it was really they were thinking of men jumping on planes and kidnapping the children. [But] I've done hundreds of these cases, and I started to realize most of the abductors are women. The statis- tics are shocking. Women were the ones who were taking their children and they were doing what's normal, whatever abuse they felt they were having, they' "no, no." In fact, you can't just go home. "It's abduction and it's a very bad thing to do," says Brodkin, adding that, prior to Pollastro, she thought, "There's something wrong here. The article 13(b) defence, which means you shouldn't send a child back if there's risk of harm, the courts were saying, 'No, New York can handle it; California can handle it,' and we just sent them back. They'll deal with it there. I felt it never worked." fly home to their mom or dad; it's just an instinctive thing to do." But the convention says that's a d caseAlert - Family Law An easy to use electronic service that keeps you up-to-date with the latest decisions in family law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the family law area which are linked to the case digest and the full text decision in pdf format. Click "Access online products" to sign up Child Support Guidelines Service Terry W. Hainsworth Provides commentary and analysis, including reference to reported and unreported cases arranged topically, and includes the full text of the Federal Child Support Guidelines (excluding tables) in a separate appendix for easy reference. Divorce Act Manual Terry W. 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It also takes you through each step of the process, providing practical advice on how to effectively represent clients in mediation. www.canadalawbook.ca CA016 www.lawtimesnews.com CA016 (LT 1-2x4).indd 1 6/18/08 11:05:48 AM LT0623 threshold test under article 13 (b) is a high one, and the evidence that must be marshalled to meet that test must be strong, sound and corroborated," said Brodkin's paper. "In his annotation to M. (V.B.) v. J. (D.L.) the late Prof. [James] McLeod writes that Cana- dian courts have insisted on strong evidence of risk of harm before refusing to return a child pursu- ant to article 13. Unsubstantiated innuendos or suggestions of dan- ger are insufficient. The court in Mahler v. Mahler confirms that the onus is on the party who removed the children to prove on a balance of probabilities that the children would be exposed to harm or oth- erwise placed in an intolerable situ- ation if returned." One must be ready to respond quickly to an application, as those pursuant to the convention are expedited. "Counsel will have little time to amass a significant amount of information between the time you are served with the application and the hearing date. It would be best to have all the information ready to respond and even better to initiate the custody application putting all the information for- ward as quickly as possible." Brodkin says the whole issue The cases since confirm "the is "pretty awful stuff and these women who leave, you should understand their instincts are to just go home to their families and then they're sent back." The bottom line, she says, is the test under the convention is based on the fact the return of children to their habitual residences is in their interest. So, "unless one can provide, as was the situation in the Pollastro case, extensive, credible evidence of a parent's physical and verbal abuse, uncontrollable tem- per, hostility, irrationality or com- pletely unreliable and irresponsible parenting, the defence will not likely be successful." LT

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