Law Times

Law Times • may 14, 2018 Page 7 www.lawtimesnews.com The new approach to Hague Convention cases BY MARTA SIEMIARCZUK F amily law cases are increasing when it comes to the wrongful re- moval of children from the place they habitually live, likely in large part due to increasing mobility of families in a global community. Looking at the courts recently, there has been a definite shift to expand the law on how Hague Convention matters are dealt with. In the recent Court of Appeal case of Zafar v. Saiyid, 2018 ONCA 352, the parties were married with two young chil- dren. They lived in England. In the sum- mer of 2016, Qurratul Ain Saiyid took the children on vacation to Canada to visit her parents with her husband's consent. In August of that summer, she informed Zafar that their marriage was over and that she would not be returning to Eng- land with the children. Zafar brought an application in Ontario, under the Hague Convention. Saiyid argued that, under Article 13(b) of the Hague Convention, although the children were ordinarily resident in England, they ought not be or- dered to return because Mahmud Zafar posed a "grave risk" to their physical and psychological safety, an allegation denied by Zafar. The judge held that he could not as- sess the risk of harm on affidavits alone, but, moreover, he held that it was not his role to conduct such a risk assess- ment because those would be issues for determination by the Court in England in resolving custody and access and his role was limited to addressing the court's jurisdiction over the children. The application judge ordered Saiyid to return to England with the children by Dec. 1, 2017, failing which Zafar would have sole custody of the children and be entitled to travel with them back to England. The crux of the appeal was whether the judge erred by not conducting a risk assessment in respect of the children. The second issue on appeal was whether the judge erred by acting outside of his jurisdiction in ordering Saiyid her- self to go back to England with the chil- dren. Pending appeal, Saiyid returned to England with the children. However, Saiyid wanted the appeal dealt with in any event to address the findings made against her by the application judge as they would be prejudicial to the custody and access proceedings in England. Applications under the Hague Con- vention are meant to address whether or not the children are properly in the jurisdiction or whether they need to be returned because they were wrongly re- moved from their place of habitual resi- dence. They are not generally meant to address issues of custody and access. However, an analysis under the Hague (even if it is determined that the children were wrongfully removed from their place of habitual residence) cannot turn a blind eye to the physical and psychological well-being of children. This was confirmed by the Court of Appeal where the court unanimously held that it was an error for the application judge to not make a determi- nation of risk of harm. The court went further, indicating that if affidavit evidence was insufficient to determine the truth, then an oral hearing ought to have been considered by the judge. This decision comes on the heals of a recent Supreme Court of Canada deci- sion, Office of the Children's Lawyer v. Balev, 2018 SCC 16, which was also a Hague Convention case. In Balev, the family had resided in Germany for many years. The children were born in Ger- many. The father gave the mother consent to come to Canada with the children for a school year in order to allow them to study in Canada. Ultimately, their mother chose not to return and Hague Conven- tion proceedings were commenced in Ontario, which ended up before the Su- preme Court. In an earlier article, I endorsed the Court of Appeal's approach as being both the correct approach in law but also for practical reasons. However, according to the Supreme Court, we were both wrong. The Supreme Court has now indicated that the "parental intention" approach in assessing the location of a child's habitual residence is not the approach that Cana- dian courts should take. Rather, a hybrid approach should be used under Article 3 of the Hague Convention, namely both the circumstances of the children and the intentions of the parents as to the chil- dren's habitual residence. The Supreme Court also indicated that there is no set rule that unilateral actions of one parent may change the children's habitual resi- dence — this is very new law. With these two recent cases, there is a clear shift in the law. The lower courts are now clearly directed to look much deeper at the situation as a whole, something that was previously reserved for general cus- tody and access proceeding, including direction to hold oral hearings if affidavit evidence is insufficient to assess matters. I still believe that this approach encroaches on the "best interests" test under the Chil- dren's Law Reform Act, and certainly crit- ics of this approach would argue that this is not the purpose of the Hague, except in very narrow situations of harm from a re- turn order. However, this is now the new approach for Canadian courts and, as a result, we need to change our thinking on Hague Convention cases. LT uMarta Siemiarczuk is a lawyer practis- ing family law litigation and collabora- tive family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Legal education could do with more competition BY FRED WU T he Canadian law degree, as we know it, needs to be seriously re-thought, and a future Ryerson law school might be just the kind of disruption our legal education market needs. The crux of any opposition to approving Ryerson's new enterprise was that the Law Society of Ontario should not now be allowing new law schools — not when fewer and fewer debt-laden licensing candidates find articles, not when more and more we find that racialized minorities bear the brunt of such exclusion. These are valid concerns. Understandably, many hesi- tate to rely on the largely untested Law Practice Pro- gram to provide the requisite leg up we would want for our new calls. Still, whatever the woes of lawyer licens- ing in the coming few years, we know we have a safety net in the LPP. In any event, such policy considerations are im- material to the approval decision per se. The LSO ex- ists primarily to ensure the professional competence of those licensed, not the professional success of those seeking licensure. Fortunately, these two values go hand in hand here. Irrespective of that narrow ques- tion before the LSO, Ryerson Law has the potential to bolster the profession on both fronts. And the greater danger would have been in ignoring this opportunity to incentivize existing law schools to adapt to a chang- ing profession. It's almost banal to point out the shifting techno- logical landscape underlying our industry. Machine- learning software and artificial intelligence can out- perform humans in accuracy and speed at a growing number of legal tasks. Once more widely available, AI mechanization will begin to become a standard for professional diligence. The AI earthquake will rock law practice for everyone, but especially the junior lawyers often saddled with mechanical tasks. Legal education can adapt in at least two ways. First, law schools should teach the human elements of law, those not soon supplanted by AI. Second, law schools should teach legal tech. Ryerson Law is competition, hopefully eliciting some response. Competition can be good, I'm told. When Land Rover's Range Rover entered the North American car market, the entry prompted Ford to build the Explorer, which became one of Ford's most successful models. So goes the parable from that one episode of The West Wing. You see, of course, I was never really taught busi- ness. Law programs include business law but not law business. No person-to-person part of private practice is em- phasized in law school. Yes, some schools have a to- ken required ADR course. Sometimes, interviewing and counselling is available as an elective. Marketing? Business development? Entrepreneurship? They are nowhere to be found in any law school's academic cal- endar. These human elements of practice are what differ- entiate us from automated legal service providers. No computer can engage with a client's interests between the lines of their emails. No computer can shake a hand. No computer can build rapport — not yet, anyway. Such training has implications broader than just ad- aptation to new technology. Underrepresented minori- ties in law school, the least likely to have family connec- tions in law practice, could have better exposure to law practitioner culture and be better acclimated to the le- gal job market. Junior lawyers could be better prepared to found or develop their own practices and better serve underserved communities. Our law graduates should also be able to use and capitalize on legal tech. If law schools prioritized legal tech training, young lawyers could be the first to adopt time- and cost-saving technology and outperform the outmoded practices. Our profession's concerns in equality, access to jus- tice and law graduate marketability could all be amelio- rated — if legal education contemplated law graduates entering law practice. In legal academic culture, there is a false dichotomy between training legal thinkers and producing practice-ready lawyers. In a three- year program, law schools can do both, and they should do better. A nascent law faculty comes with no entrenched or stagnant culture, and that's why Ryerson Law is good news. As a new entrant in legal education, Ryerson will develop its curriculum de novo. What's more, Ryerson expressly brings a mission of advancing innovation and technology in its law school. Other law schools will follow suit or fall behind. At least, I hope, they'll be prompted to more purposefully re-examine their own curricula. Maybe, they'll develop their own Ford Explorer. I note one caveat, as there's a missing piece. Law school applicants should be given the metrics to make an informed decision. Without transparency in out- comes, we risk our universities exploiting students for an economic cushion, in particular where law facul- ties' tuition revenue is diverted to finance non-law pro- grams. To the extent that universities expound career out- comes in selling their law degrees, such representations should be evidenced by empirical data. For example, Ontario colleges are required to pub- licize key performance indicators for their programs: graduate satisfaction, student satisfaction, employer satisfaction, employment rate and graduation rate. These data are gathered by an independent research firm. Ontario law schools should be required to do the same. This kind of accountability should focus law schools' attention. I might be wrong about Ryerson Law, and a future JD from any Ontario school might become an escalator to nowhere. But, in that case, prospective law students should really be told before they get on. LT uFred Wu is an intellectual property and technology lawyer, practising with a leading IP boutique in London, UK. He advises on tech rights and co-ordinates multi- jurisdictional patent litigation primarily serving the bio- technology and pharmaceutical sectors. He tweets about IP and tech law @effwu. u SPEAKER'S CORNER COMMENT Family Law Marta Siemiarczuk

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