Thomson v. Thomson

Thomson v. Thomson
Collection
Supreme Court Judgments
Date
1994-10-20
Report
[1994] 3 SCR 551
Case number
23794
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Manitoba
Subjects
Family law
Notes
SCC Case Information: 23794
Decision Content
Thomson v. Thomson, [1994] 3 S.C.R. 551
Amanda Louise Thomson Appellant
v.
Paul Thomson Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario and
the Attorney General of Manitoba Interveners
Indexed as: Thomson v. Thomson
File No.: 23794.
Hearing and judgment: January 26, 1994.
Reasons delivered: October 20, 1994.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for manitoba
Family law ‑‑ International child abduction ‑‑ Convention on Civil Aspects of International Child Abduction ‑‑ Interpretation and application of Convention ‑‑ Interaction between Convention and provincial legislation implementing it ‑‑ Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ‑‑ Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 6.
Family law ‑‑ Custody ‑‑ Wrongful removal or retention of child ‑‑ Scottish court granting mother interim custody of child with access to father ‑‑ Insertion of non‑removal clause in interim custody order ‑‑ Mother removing child from Scotland to Manitoba ‑‑ Scottish court later granting father permanent custody of child ‑‑ Father applying in Manitoba for return of child to Scotland under provincial legislation and international convention on child abduction ‑‑ Whether removal of child from Scotland constituting "wrongful removal or retention" of child ‑‑ Whether child's return would expose him to grave risk of psychological harm ‑‑ Whether transitory measures for child's return within jurisdiction of Manitoba courts ‑‑ Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Arts. 3, 5, 12, 13 ‑‑ Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 6.
The parties, who were married in Scotland in February 1991, agreed to separate in September 1992. Each sought custody of their seven‑month‑old child. The Scottish court granted interim custody to the mother and interim access to the father and ordered that the child remain in Scotland pending a final court order. A few days later, the mother left Scotland with the child to visit her parents in Manitoba. Once there, she decided to stay permanently in Canada and applied for custody of her child in Manitoba. On the same day in Scotland, the father was granted an ex parte custody order. He later made an application under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention") and the Manitoba Child Custody Enforcement Act ("CCEA") for the return of the child to Scotland. The motion judge in the Manitoba Court of Queen's Bench found that the child was wrongfully removed from Scotland within the meaning of Article 3 of the Convention and ordered his return forthwith. She noted that, on an interim basis, it was clearly in the best interests of the child that he remain in the mother's care and, under s. 6(c) CCEA, ordered that interim custody of the child be granted to the mother for a period of four months to allow her time to proceed with a custody application in Scotland. The majority of the Manitoba Court of Appeal dismissed the mother's appeal and ordered the return of the child forthwith, indicating that the motion judge's order giving the mother four‑month interim custody was not justified. The dissenting judge would have ordered pursuant to s. 6 CCEA that the mother be awarded interim custody, that the father's application be stayed until he agreed to allow the mother interim custody in Scotland while she proceeded with a custody application there, and that she be directed to commence a custody application in Scotland within two months. The main issue in this appeal is whether the child should be returned to Scotland under the terms of the Convention or under other provisions of the CCEA implementing the Convention in Manitoba.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ.: The underlying purpose of the Convention is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence. Its primary object is the protection of custody rights, i.e. "rights relating to the care ... of the child and, in particular, the right to determine the child's place of residence" (Article 5). Under the Convention the removal of a child is wrongful if it is in breach of "custody [rights] attributed to a person, an institution or any other body . . . under the law of the State in which the child was habitually resident immediately before the removal or retention" (Article 3(a)). Such custody rights may arise by operation of law, as well as by judicial or administrative decision, or agreement (Article 3). Here the Scottish court in determining the issue of custody had granted the mother interim custody. When a court is vested with jurisdiction to determine who shall have custody of a child, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. Accordingly, the court had rights of custody as defined by Article 5 of the Convention. It preserved its jurisdiction to make a final determination of custody at a later date by inserting a non‑removal clause into the interim custody order. The Scottish court was thus "an institution or any other body" having custody rights and the mother's removal of the child, being in breach of those rights, was wrongful within the meaning of Article 3 of the Convention. The possibility that the mother did not know she was violating the Scottish court's order is irrelevant. This Court therefore must order the return of the child "forthwith". However, from the emphasis placed by the Convention and the preparatory work on the enforcement of custody, as distinguished from mere access, a prohibition against removal in a permanent custody order would raise different issues.
While, as indicated in the preamble of the Convention, "the interests of children are of paramount importance in matters relating to their custody", this should not be interpreted as giving a court seized with the issue of whether a child should be returned to the jurisdiction to consider the best interests of the child in the manner the court would do at a custody hearing. This part of the preamble speaks of the "interests of children" generally, not the interest of the particular child before the court. This view is supported by Article 16 of the Convention, which states that the courts of the requested state shall not decide on the merits of custody until they have determined that a child is not to be sent back under the Convention. It is also entirely consistent with the objects of the Convention as set out in Article 1.
The custody order granted by the Scottish court in favour of the father ‑‑ a "chasing order" ‑‑ would not, standing alone, have been sufficient to ground an application under the Convention, as it could not, in itself, make the retention of the child by the mother wrongful. Under the Convention, a wrongful retention generally begins from the moment of the expiration of the period of access, where the original removal was with the consent of the rightful custodian of the child. A "chasing order", issued after the child has been taken out of the jurisdiction, cannot by itself make unlawful what was otherwise not contrary to the Convention. There is nothing in the Convention requiring the recognition of an ex post facto custody order. The initiative for obtaining a "chasing order" under the Convention is with the requested state and this order serves only to clarify for the requested state the opinion of the requesting state that indeed the continuing retention was wrongful. The procedures followed by the father in this case appear more consonant with the language and requirements of the European Convention dealing with the recognition and enforcement of custody decisions.
This case does not fall within one of the exceptions set forth in the Convention to the return of a wrongfully removed child. In particular, there is no "grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation" (Article 13(b)). While there is no doubt that the child would suffer some psychological harm in being torn from his mother's custody and thrust into that of his father, the harm is not severe enough to invoke Article 13(b). The physical or psychological harm contemplated by this Article is harm to a degree that also amounts to an intolerable situation. The risk of harm may come from a cause related to the return of the child to the other parent or from the removal of the child from his present caregiver but it would only be in the rarest of cases that the fact the child is now settled in the abductor's environment would constitute the level of harm contemplated by the Convention.
Because of the "chasing order" obtained by the father, however, a return to the status quo as it existed before the wrongful removal ‑‑ a prime objective of the Convention ‑‑ is impossible to achieve without taking additional action. While the Convention does not provide specifically for remedial flexibility, a court must be assumed to have sufficient control over its process to take the necessary action to meet the purpose and spirit of the Convention. Through the use of undertakings, the requirement in Article 12 of the Convention that "the authority concerned shall order the return of the child forthwith" can be complied with in accordance with that purpose and spirit. Here, this Court has accepted the father's undertakings not to take physical custody of the child upon his return to Scotland until a court permits such custody, and to commence proceedings rapidly before a Scottish court to determine, on a final basis, the issue of the child's care and control. These undertakings appeared, in the circumstances, best calculated to achieve the purpose and spirit of the Convention.
The Convention and the CCEA establish two regimes. When an application is made solely under the Convention or solely under the CCEA, the particular procedure of the regime chosen should operate independently of the other, though where the CCEA is selected it may not be improper to look at the Convention in determining the attitude that should be taken by the courts, since the legislature's adoption of the Convention is indicative of its judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence. As well, when, as in this case, applications are made under both the CCEA and the Convention, the independent procedures of each regime should not be mixed. The CCEA does not expressly provide that in the event of conflict the Convention prevails, but this is unnecessary since there is nothing in the CCEA indicating that the independent procedure provided by the CCEA should be referred to when an application is made under the Convention. So, unless the applicant chooses to abandon it, the application under the Convention applies. The motion judge and the dissenting judge in the Court of Appeal therefore could not make an interim custody order under s. 6 CCEA. The possibility that the end sought by the dissenting judge could be achieved under the Convention, however, should not be ruled out. Undertakings may not always be forthcoming or this course may not be acceptable. In such circumstances, the time frame for return proposed by the dissenting judge might well be justified under the Convention.
Per L'Heureux‑Dubé and McLachlin JJ.: La Forest J.'s interpretation and application of the Convention to the present case is agreed with. The Manitoba courts, however, have jurisdiction under s. 6 CCEA to impose transitory measures for the return of the child to his habitual place of residence. The Convention has been recognized by the international community in order to protect the best interests of children. In Manitoba, the Convention has been implemented by the CCEA, which, in light of the best interests of children, seeks to expand on the provisions of the Convention. There is no conflict between the Convention and the CCEA but, rather, they complement each other. The two documents must be read in concert and, in doing so, courts should attempt to arrive at an interpretation that, to the extent possible, gives full effect to the purpose of the Convention. Since the Convention and the CCEA do not establish independent regimes, the jurisdiction of the Manitoba courts hearing an application under the Convention are not limited to the considerations set out in the Convention. While, in most cases, the best interests of the child will be served by a quick and expedited return of the child to the country of origin with the aim of decreasing the traumatic nature of the wrongful removal, there may be circumstances in which immediate return is no longer in the child's absolute best interest. Section 6 CCEA provides a mechanism for addressing this problem. Therefore, under the CCEA, the Manitoba courts have jurisdiction to make a transitory order on the condition that such order does not conflict with or frustrate the objective of prompt return under the Convention and that it fosters the best interests of the child. The best interests of the child must prevail at all times and must be the paramount consideration when enforcing the return of a child pursuant to the Convention. Undertakings, such as those offered in this case by the father, do not preclude the Manitoba courts from imposing transitory measures where necessary when applying the Convention. In the circumstances of this case, the transitory order the dissenting judge in the Court of Appeal would have made was appropriate at the time. To be implemented in a manner consistent with the purpose of the Convention, however, the duration of such a transitory order should be as short as possible. Since at the time of the hearing three months had already passed since the dissenting judge in the Court of Appeal first proposed the transitory order, the return of the child should not be further delayed by making a similar transitory order now. The immediate return of the child to Scotland should be ordered.
Per Major J.: The mother's removal of her child from Scotland to Canada constituted a breach of the custody rights of the Scottish court within the meaning of Article 3 of the Convention. This Court must therefore order the return of the child forthwith.
Cases Cited
By La Forest J.
Approved: B. v. B. (Abduction: Custody Rights), [1993] 2 All E.R. 144; referred to: Re K.H. (A Minor) (Abduction), [1990] F.C.R. 990; C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465; Lavitch v. Lavitch (1985), 37 Man. R. (2d) 261; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; C. v. S. (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R. 449 (C.A.), aff'd [1990] 2 All E.R. 961 (H.L.); Re B.‑M. (Wardship: Jurisdiction), [1993] 1 F.L.R. 979; Re N. (Child Abduction: Habitual Residence), [1993] 2 F.L.R. 124; In the Marriage of W. M. and G. R. Barraclough (1987), 11 Fam. L.R. 773; Meredith v. Meredith, 759 F.Supp. 1432 (1991); Gsponer v. Johnstone (1988), 12 Fam. L.R. 755; Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365; Re A. and another (Minors) (Abduction: Acquiescence), [1992] 1 All E.R. 929; Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401; Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413; Director‑General of Family and Community Services v. Davis (1990), 14 Fam. L.R. 381; P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155; G. v. G. (Minors) (Abduction), [1991] Fam. Law 519; Young v. Young, [1993] 4 S.C.R. 3.
By L'Heureux‑Dubé J.
Referred to: Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155; C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465.
Statutes and Regulations Cited
Act respecting the civil aspects of international and interprovincial child abduction, S.Q. 1984, c. 12.
Child Abduction Act, S.N.S. 1982, c. 4.
Child Custody Enforcement Act, R.S.M. 1987, c. C360, ss. 3, 4(1), 5, 6, 17.
Child Custody Enforcement Act, S.M. 1982, c. 27.
Children's Law Act, S.N. 1988, c. 61.
Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20.
Constitution Act, 1867, s. 132 .
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, preamble, Arts. 1, 3, 5, 11, 12, 13, 15, 16, 20, 21.
Custody Jurisdiction and Enforcement Act, S.P.E.I. 1984, c. 17.
European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, Eur. T.S. No. 105.
Family Relations Amendment Act, 1982, S.B.C. 1982, c. 8 [am. 1985, c. 72, s. 20].
International Child Abduction Act, S.A. 1986, c. I‑6.5.
International Child Abduction Act, S.N.B. 1982, c. I‑12.1.
International Child Abduction Act, S.S. 1986, c. I‑10.1.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, Arts. 31, 32.
Authors Cited
Anton, A. E. "The Hague Convention on International Child Abduction" (1981), 30 Int'l & Comp. L.Q. 537.
Black, Vaughan. "Statutory Confusion in International Child Custody Disputes" (1993), 9 C.F.L.Q. 279.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Eekelaar, John M. "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281.
Farquhar, Keith B. "The Hague Convention on International Child Abduction Comes to Canada" (1983), 4 Can. J. Fam. L. 5.
Hague Conference on Private International Law. Actes et documents de la Quatorzième session, t. III, Child Abduction. La Haye: Imprimerie nationale, 1982.
Helzick, Cathy S. "Returning United States Children Abducted to Foreign Countries: The Need to Implement the Hague Convention on the Civil Aspects of International Child Abduction" (1987), 5 Boston U. Int'l L.J. 119.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
Lowe, Nigel, and Michael Nicholls. "Child Abduction: The Wardship Jurisdiction and the Hague Convention", [1994] Fam. Law 191.
Manitoba. Legislative Assembly. Standing Committee on Law Amendments, vol. XXX No. 6, June 28, 1982, p. 101.
APPEAL from a judgment of the Manitoba Court of Appeal (1993), 88 Man. R. (2d) 204, 51 W.A.C. 204, 50 R.F.L. (3d) 145, 107 D.L.R. (4th) 695, [1993] 8 W.W.R. 385, upholding a decision of the Court of Queen's Bench, Family Division (1993), 87 Man. R. (2d) 68, 48 R.F.L. (3d) 308, [1993] 7 W.W.R. 355, ordering that the mother return the child to Scotland. Appeal dismissed.
Martin G. Tadman, for the appellant.
Jack A. King and Holly D. Penner, for the respondent.
Graham Garton, Q.C., and Louise Lussier, for the intervener the Attorney General of Canada.
Robert H. Ratcliffe and Elizabeth Bucci, for the intervener the Attorney General for Ontario.
Joan A. MacPhail, for the intervener the Attorney General of Manitoba.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
//La Forest J.//
La Forest J. -- This appeal raises for the first time in this Court the interpretation and application of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, to which Canada is a party. The underlying purpose of the Convention, as set forth in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.
The case arises in a context where a baby boy born in Scotland of Scottish parents was taken by his mother to Canada in December 1992 to visit her parents in Manitoba. Once there, she decided to stay permanently. At the time of the removal of the child, she had been granted interim custody of the child following the breakdown of her marriage; the father had, however, been granted interim access, and the court order contained a prohibition against the child being taken out of Scotland. The principal question is whether the child should be returned to Scotland under the terms of the Convention or under other provisions of the Act implementing the Convention in Manitoba, the Child Custody Enforcement Act, R.S.M. 1987, c. C360.
Facts
The appellant, Amanda Louise Thomson, and the respondent, Paul Thomson, were married in Scotland in February 1991. She was 17; he was 22. Their child, Matthew, was born on March 22, 1992. From then until July 1992, they all lived with the husband's parents. In July 1992, they moved to their own rented accommodations. Matthew, however, continued to live at his paternal grandparents' home for part of the week; the rest of the week, he lived with his parents.
On Sunday, September 27, 1992, the child was due to be returned from his grandparents but was not. Three days later, he had still not been returned. This precipitated a fight between his parents, and they agreed to separate. The child remained with his paternal grandparents.
Each parent sought custody of Matthew. The mother's application was heard before the Stranraer Sheriff Court in Scotland on October 9, 1992; both parties were represented. A solicitor was appointed by the court to report on the circumstances of the child. The report indicates, among other things, that the mother was the more suitable parent, and had more drive and ambition than the father; that all parties were on welfare; that when Matthew was in the custody of his father, it was his paternal grandmother who cared for him; and that it was acceptable to the father that Matthew's grandmother bring up the child.
The Sheriff granted the appellant wife interim custody of Matthew on November 27, 1992. He also granted the respondent interim access and ordered that the child remain in Scotland pending a further court order (the court had evidence that the mother had been thinking of going to Canada to live with her parents who had recently emigrated). Neither party appeared in person at the hearing. The appellant later deposed that when she talked to her lawyer after the hearing, the lawyer was in a hurry, and told her only "We won! You have custody of Matthew", and that Mr. Thomson had been granted visitation rights. The lawyer is alleged to have told the appellant that she would provide a report detailing the court's decision in a "few days". On December 2, 1992, without receiving this report, the appellant left Scotland with Matthew to visit her parents in Manitoba.
Some time during the next two months, the appellant formed the intention to remain with her child in Manitoba. She enrolled in a Canadian high school and, she deposed, planned to pursue higher education after graduation. Meanwhile, she and Matthew lived on the family farm near Wawanesa, Manitoba.
On February 3, 1993, the appellant applied for custody of Matthew in Manitoba. The same day, the custody hearing resumed in Scotland. At the latter hearing, the respondent husband was granted an order of custody. The appellant later deposed that she did not know of this Scottish custody hearing; she did not attend it; nor did she provide instructions to the lawyer who had represented her before. Consequently, her counsel was allowed to withdraw at the hearing. The record disclosed only that the respondent and his mother presented evidence.
On February 25, 1993, the respondent launched a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction. The application was filled out in a manner that, as we shall see, appears to denote a misunderstanding of the Convention's language and requirements. In the letter accompanying the request, the Scottish central authority (i.e., the body designated in Scotland for dealing with applications under the Convention) stated that "Under the common law of Scotland, married parents of a child have joint rights of custody unless a court orders otherwise." Later in the document, under the space for "Requesting Individual or Institution (who actually exercised custody before the removal or retention)" was written the name of the appellant, Amanda Louise Thomson. Still later, under "Factual or Legal Grounds Justifying the Request", was written "Paul Thomson has legal custody of child as confirmed by order of Stranraer Sheriff Court on February 3, 1993." As will become apparent, the procedure followed seems to be more consonant with the language and requirements of the European Convention dealing with the matter in the European Economic Community. That approach is not uncommon, at least for British requests under the Hague Convention. It can, however, result and has here resulted in difficulties in relation to the return of the child from Canada.
In March 1993, the respondent replied to his wife's application for custody in Manitoba with an application under the Child Custody Enforcement Act and under the Convention for the return of the child to Scotland. Shortly afterwards, in April 1993, Mrs. Thomson unsuccessfully appealed the custody order in Scotland (it seems that she instructed her counsel over the telephone and did not personally appear). The reasons for the dismissal of the appeal were not part of the record.
Relevant Convention and Statutory Provisions
For ease of reference, I set forth here the relevant provisions of the Convention and the Act:
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35
[Preamble]
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:
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.
Article 3
The removal or the retention of a child is to be considered wrongful where:
(a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 5
For the purposes of this Convention:
(a)"rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b)"rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
. . .
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a)the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b)there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention . . . .
Article 20
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Article 21
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
The Child Custody Enforcement Act, R.S.M. 1987, c. C360
3 A court on application shall enforce, and may make such orders as it considers necessary to give effect to, a custody order made by an extra-provincial tribunal as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by the custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made.
4(1) Notwithstanding the existence of a custody order affecting a child made by an extra-provincial tribunal, a court on application may make a custody order in respect of the child that differs from the custody order made by the extra-provincial tribunal, if it is satisfied
(a) that the child affected does not, at the time the application is made, have a real and substantial connection with the province, state or country in which the custody order made by the extra-provincial tribunal was made or was last enforced; and
(b) that the child has a real and substantial connection with Manitoba or all the parties affected by the custody order are habitually resident in Manitoba.
5 Notwithstanding any other provision of this Act, where a court is satisfied that a child would suffer serious harm if the child remained in or was restored to the custody of the person named in a custody order made by an extra-provincial tribunal, the court may make a custody order in respect of the child that differs from the custody order made by the extra-provincial tribunal.
6 Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Manitoba; or
(b) that may not exercise jurisdiction under section 4,
may do any one or more of the following:
(c) Make such interim custody order as the court considers is in the best interests of the child.
(d) Stay the application subject to,
(i) the condition that a party to the application promptly commence or proceed expeditiously with a similar proceeding before an extra-provincial tribunal, or
(ii) such other conditions as the court considers appropriate.
(e) Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
17(1) In this section "convention" means the Convention on the Civil Aspects of International Child Abduction set out in the Schedule hereto.
17(2) On, from and after December 1, 1983, the convention is in force in Manitoba and the provisions thereof are law in Manitoba.
17(3) The Department of the Attorney-General shall be the Central Authority for the province for the purpose of the convention.
The Courts Below
Manitoba Court of Queen's Bench, Family Division (1993), 87 Man. R. (2d) 68
The husband's application for the return of the child was heard by Davidson J. of the Manitoba Court of Queen's Bench both under the terms of the Convention and under provisions in its implementing Act, the Child Custody Enforcement Act of Manitoba.
At the outset, Davidson J. stated that she was prepared to recognize the orders of the Scottish courts and dealt with the objections raised to them in the following manner. Whether or not the appellant knew of the non-removal clause in the interim order of November 27, 1992, Mrs. Thomson did know of the access provisions contained in that order and chose to ignore them. In addition, Davidson J. found that Mrs. Thomson was wilfully blind to the proceedings she had instituted in Scotland, and that she failed to return the child once she became aware of the contents of the orders of the Scottish court of November 27, 1992 and February 3, 1993.
Davidson J. held that both the Convention (Article 12) and the Act (s. 6) required her to start from the position that she should enforce orders from other jurisdictions except in limited circumstances. The former (with which I am principally concerned) reads:
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
Davidson J. had no difficulty holding that the child had substantial connections with Scotland and not with Manitoba as contemplated by ss. 3 and 4(1) of the Act. Under these circumstances she obviously did not find it necessary to consider whether he "was habitually resident [in Scotland] immediately before the removal or retention" as required by Article 3(a) of the Convention. She simply turned to a consideration of whether any of the exceptions to a requirement to return in the Convention (Article 13) or the Act (s. 5) were applicable.
The latter question involved whether the child had suffered harm of the nature described in Article 13 of the Convention or s. 5 of the Act sufficient to warrant a refusal to return the child. She noted that the requisite harm was expressed differently in the two provisions. Article 13 spoke of a "grave risk" that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, whereas s. 5 merely referred to the fact that the child would "suffer serious harm". However, she concluded that whatever test was used, it was not satisfied on the evidence. The appellant's affidavits, she observed, were worded in terms of the "best interests" of the child, and Davidson J. concluded that the appellant truly saw the issue of whether the child should remain in Canada as a best interests issue, rather than harm as contemplated by the Act or the Convention.
Davidson J. further rejected the argument that she was required to direct a trial on the issue of harm and not decide the matter herself on the basis of affidavit material. While, she noted, a trial of the issue had been ordered by the Manitoba Court of Appeal in Lavitch v. Lavitch (1985), 37 Man. R. (2d) 261, that case had dealt with children who were 12 and 13 years old and their ambivalence about resuming a relationship with their father had to be considered in determining whether their return would cause them serious psychological harm. However, Davidson J. continued, the court in that case had indicated that where children were of such a tender age that their objection should not be a factor and no serious question of a risk of harm arose, it would be appropriate for the judge to make the order without requiring a trial of the issue. That was the situation in the case before her.
Davidson J. then dealt with the appellant's contention that the child was not wrongfully removed within the meaning of Article 3 of the Convention, which I repeat:
Article 3
The removal or the retention of a child is to be considered wrongful where:
(a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b)at the time of removal or retention those rights were actuall