CANADA – DIAB – 1996

Diab vs Benoit (Canada 1996)Prov. of Quebec, Dist. of Terrebonne No 700-04-001386-967
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CANADA
PROVINCE OF QUEBEC
DISTRICT OF TERREBONNE

NO: 700-04-001386-967

SUPERIOR COURT
(FAMILY DIVISION)

May 17, 1996

PRESIDING: THE HONOURABLE
ROGER R BAKER, J.B.C.

YOSRI (YOUSRALLA) DIAB, domiciled
and residing at 19400 Sorenson
Avenue, apt. 105, in the City of
Cupertino, State of California,
United States of America, 95014;

Petitioner

vs

JULIE BENOIT, presently at 740
Nonette Street, in the City of
Ste-Therese, District of
Terrebonne, Province of Quebec;

Respondent

JUDGMENT

The Court is seized with a Motion to Obtain the Forced Return to
California of the children Lissa Sadria Diab and Karl Oscar Moise
Karim Diab in virtue of Articles 18 and following of the Law on
the Civil Aspects of International and Interprovincial Abduction
of Children (R.S.Q. c. A-23.01) (the Act).l

The Motion alleges the following:

1. The Petitioner married the Respondent on September 9, 1989,
City Of Montreal, Province of Quebec;

2. During the common life of the parties the Respondent gave birth
to two children, namely, Diana Badria Diab, born on the 16th day
of September, l990, at Montreal, and Karl Oscar Moise Karim Diab,
born on the 20th day of September, l992, at Laval;

3. Since December 31, 1992, the parties and their children have
been domiciled and residing at 19,400 Sorenson Avenue, apt . 105,
in the City of Cupertino, in the State California, United States
of America;

4. According to the laws in force in the State of California, both
parents exercise jointly the custody and the parental rights with
regard to any child born from of their marriage;

5. On January 18, 1996, Respondent, without the consent or
knowledge of Petitioner, illegally removed the children of the
parties, Lissa and Karl, from their domicile situated at 19,400
Sorenson Avenue, apt. 105, in the City of Cupertino, in the State
of California, United States of America;

6. Respondent took the children to her sister’s residence situated
at 140 Monette Street, in the city of Ste-Therese, District of
Terrebonne;

7. Respondent has refused to return the children of the marriage
to their domicile and residence situated in Cupertino, California
notwithstanding having been requested to do so;

PRIOR PROCEEDINGS BETWEEN THE PARTIES:

1. Mme B. initiated separation and custody proceedings on January
22, 1996 in St-Jerome, Quebec;

2. On January 23, 1996, Mr. D. instituted divorce proceedings
against his wife in California;

PRIOR JUDGMENTS:

1. On January 25, 1996, Judge James W. Stewart of the Superior
Court of California ordered that Mme B. and the children be
present at an emergency screening hearing on February 7, 1996;

2. On February 7, 199s, Judge Stewart recognized California
jurisdiction and ordered the return Mme B. and the children for
March 7, 1996.

3. On February 22, i996, Mr. Justice Durand, sitting in
St-Jerome, Quebec, refused to decline jurisdiction aver the
children, and awarded provisional custody to the mother.

At the hearing before Justice Durand, Mr. D. did not appear and
was represented by counsel only for the purpose of contesting
Quebec jurisdiction,

On March 7, 1996, Judge Stewart awarded interim custody to the
father. At this hearing, Mme B. was not present but was
represented by counsel.

The relevant sections of the Act are the following:

WHEREAS the Convention on the Civil Aspects of International Child
Abduction signed at The Hague on 25 October 1980 aims to protect
children internationally from the harmful effects of their
wrongful removal or retention;

Whereas the Convention establishes procedures to ensure the prompt
return of children to the State of their habitual residence and to
secure protection for rights of access;

Whereas Quebec subscribes to the principles and rules set forth in
the Convention and it is expedient to apply them to the largest
possible number of cases;

1. The object of this Act is to secure the prompt return to the
place of their habitual residence of children removed to or
retained in Quebec or a designated State, as the case may be, in
breach of custody rights.

A further object of this Act is to ensure that the rights of
custody and access under the law of designated State are
effectively respected in Quebec and the rights of custody and
access under the law of Quebec are effectively respected in a
designated State.

2. For the purposes Of this Act,

(1) “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;

(2) “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;

(3) “designated State” means a State, a province or a
territory designated under section 41.

3. The removal or the retention of a child is to be considered
wrongful, within the meaning of this Act, where it is in breach of
rights of custody attributed to one or several persons or bodies
under the law of Quebec or of the designated State in which the
Child was habitually resident immediately before the removal or
retention and where, at the time of removal or retention, those
rights were actually exercised by one or several persons or bodies
or would have been so exercised but for the removal or retention.

The rights of custody mentioned in the first paragraph 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 Quebec or of the designated State.

20. Where a child who is in Quebec has been wrongfully removed or
retained and where, at the time of commencement of the proceedings
before the superior Court, a period of less than one year has
elapsed from the date of the removal or retention, the Superior
Court shall order the return of the child forthwith.

The Superior Court, even where the proceedings have been commenced
after the expiration of the period of one year, shall also order
the return of the child, unless it is demonstrated that the child
is now settled in his or her new environment.

21. The Superior Court may refuse to order the return of the
child if the person who opposes his or her return establishes that

(1} the person 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

(2) 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.

25. The Superior Court, after having been notified that a child
has been wrongfully removed or retained in Quebec, shall not
decide on the custody of the child if the conditions set out in
this Act for the return of the Child may be fulfilled or if an
application for his or her return may be made within a reasonable
time.

26. The sole fact that a decision relating to custody has been
given in or is entitled to recognition in Quebec shall not be a
ground for refusing to order the return of a child, but the
Superior Court may take Account of the reasons for that decision
which are relevant to the application of this Act.

28. In ascertaining whether there has been a wrongful removal or
retention. the Superior Court nay take notice directly of the law
of, and of Judicial or administrative decisions, formally
recognized or not in the designated State in which the child is
habitually resident, without recourse to the specific procedures
for the proof of that law or for the recognition of foreign
decisions which would otherwise be applicable.

The basis for the Act is the Hague Convention signed in 1980 (“the
Convention” ) and it is therefore useful and necessary to briefly
describe its purpose.

THE CONVENTION

The first objective 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.

Canada being a signatory to the Convention, effect was given to it
by provincial legislation. The Government of Quebec adopted the
Act in 1984, and by so doing integrated the principles of the
Convention as the law of the Province of Quebec.

The objectives of the Convention are expressed in Chapter I,
article l:

1) securing the return of the children wrongfully removed or
retained in any contracting state;

2) ensuring that the rights of custody and access under the law
of one contracting state are effectively respected in other
contracting states.

A document described as “Questionnaire and Report on international
child abduction by one parent” (or the “Dyer Report”), prepared in
support of the Convention, outlined five circumstances where the
removal of a child from a country in breach of a custody right
should be covered by the Convention. One which is particularly
relevant reads as follows:

*The child was removed by a parent from the country of the child’s
habitual residence to another country without the consent of the
other parent, at a time when no custody decision had yet been
handed down but serious problems between the parents already
existed.* FN1

This is clearly the situation in the case before me. The parties
were still living together under the same roof in Cupertino,
California, when the Respondent without any notice to her husband,
removed the children and brought them to Ste-Therese, Quebec, on
January 18, 1996.

A fundamental question before this Court is whether there was a
wrongful removal on January 18, 1996. In order to succeed in this
Motion, the Petitioner must establish four elements:

1) the children are under the age of 16 (article 5 of the
Act),

2) the United States is a contracting State of the
Convention,

3) the Petitioner had a right of custody over the children
at the date of their removal, (article 3 of the Act), and

4) the habitual residence of the children immediately before
their removal was California. (art. 3).

The parties do not contest the first three elements. Karl is
three and a half years old and Lissa will be six years old in
September 1996. The United States Government ratified the
Convention or July I, 1988. As no proceedings had been taken by
either parent, and as they were not separated, the parties had
joint custody over the children on January 18, 1996, according to
the laws of the State of California. The only issue in dispute as
to the applicability of the Act is whether the habitual residence
of the children was in California or in Quebec .

Neither tile Convention nor the Act have defined the tern
“habitual residence”. It is evident that the notion of habitual
residence must be distinguished from that of domicile. In the case
of Re: J (1990) 2 A.C. 562, Lord Brandon wrote that “this
expression must be understood according to the ordinary and
natural meaning of the two words it contains.” Accordingly, the
Court must be vigilant in respect of testimony of one or both
parents characterizing their intent. Unlike the concept of
domicile, where intention is critical, the notion of residence
should be determined only by where the children lived immediately
before their removal.

The evidence clearly demonstrates that at the time of their move
in January 1993, the parties had taken all their belongings with
them to California and had left nothing behind in Quebec. Mr. D.
had obtained a three-year work visa. At the time of the present
hearing, the father is waiting for his green card in order to
remain in California on a permanent basis.

Whether the Petitioner indicated to his wife his intention to stay
in California for only three years is of no importance in
determining the habitual residence of the children. Both children
had been living with their parents in Cupertino, California for
three years. Lissa was registered at Faria School since September
1995, and the child Karl attended Play and Learn Playschool since
September 1994.

Respondent’s counsel has argued that the two children were not
habitually residents, but “temporary” residents of Cupertino,
California, thus creating a distinction not existing in the Act or
in the Convention.

Respondent, in asserting that California was only temporary and
therefore not habitual, would make the children entirely without
residence anywhere in the world. These children, from 1993 to
1996, were not refugees in California who had temporarily sought
refuge after fleeing a hostile and tyrant state. On the contrary,
all the evidence leads to the inescapable conclusion that as of
January 18, 1996, the day of their removal œrom California to
Quebec, the habitual residence of Lissa and Karl was California.

The Court is of the opinion that the members of this family were
neither visitors nor tourists in California. Therefore, the
children’s habitual residence immediately before their removal was
California.

The court concludes that the removal of the children Karl and
Lissa, on January 18, 1996, without the consent or the knowledge
of their father, and in violation of his custody rights,
constitutes wrongful removal in virtue of Section 3 of the Act.

According to Section 20 of the Act, the Court “shall” order the
immediate return of the children. However, Section 21(2) creates
an exception if the Respondent can establish that the return of
the two children to California would expose them to a grave risk
of psychological or physical harm or would otherwise place them in
an intolerable situation.

In Thompson v Thompson, Mr. Justice La Forest describes the term
“grave risk” in correlation with the notion of intolerable
situation as follows:

*In brief, although the word “grave” modifies “risk” [. . . .],
this must be read in conjunction with the clause “or otherwise
place the Child in an intolerable situation”. The use or the word
“otherwise” points inescapably to the conclusion that the physical
or psychological harm contemplated by the first clause of Section
13(b) [of the Convention] is harm to a degree that also amounts to
an intolerable situation.* FN2

In other words, there must be a grave risk of physical or
psychological harm caused to the Children.

Once a determination in made that the Act applies, the burden of
proof shifts to Respondent (under section 21) .

In its written brief (Rule 18), Respondent alleges that a return
to California would expose the children to grave risk of physical
or psychological harm for three reasons:

1- custody has already been granted to the Respondent who has no
employment in the United states and thus the children would be
placed in an intolerable situation;

2- Mr. D., the Petitioner, told Mme B. on many occasions that he
intended to take the children to live in Egypt which is not a
signatory to the Convention;

3- the Petitioner (the father) does not have the financial means
to support the children.

In respect of the first two above, there is not a scintilla of
evidence.

As to the Respondents third reason not to return the children,
that is the financial incapacity of the father, the evidence
discloses that Petitioner earned $16,000.00 U.S. in 1994, and
$40,000.00 in 1995. This latter amount was unsubstantiated by any
documentation.

I have no hesitation whatever in saying that the signatories to
the Convention did not have in mind the protection of children of
well-off parents only, leaving exposed and incapable of applying
for the return of a kidnapped child, the parent without wealth
whose child was so abducted. The assertion by Respondent that
financial weakness is a valid reason not to return a child under
the Act is repugnant.

Therefore, this Court concludes that the Respondent has not shown
that the returning the two children to California would result in
exposing them to a grave risk of physical or psychological harm or
would otherwise place them in an intolerable situation. As such,
the Respondent has not met the onus to establish the exception set
out in Section 13(b) of the Convention or in Section 21 (2) of the
Act.

Respondent, by serving a Notice of Intention on the Attorney
General of Quebec under Art. 95 C. C. P., has asked the Court to
declare unconstitutional Sections 1 and 20 of the Act as being in
violation of section 6 (1) of the Canadian Charter of Rights and
Freedoms.

The essence of the argument is that no Canadian citizen can be
forced to leave our soil against his or her free will. Respondent
argues that a grant of the application before me would be a
violation of the children’s Charter rights. In support of its
proposition, Respondent cites the case of The United States v
Cotroni [1989] 1 R.C.S. 1469. This is an extradition case, and it
does not support the proposition raised by Respondent.

Sending little children back to a parent from whom they have,
under international and domestic law, been illegally abducted, is
not quite the same, it seems to me, as forcing an accused criminal
off Canadian soil to face justice. The former is for the benefit
and protection of the children leaving, while in the extradition
situation we have a somewhat unwilling traveler.

The Act violates no right protected by the Charter,

I listened with great interest to Mme B.’s counsel expression of
concern that if the children were ordered to return to California,
she might be somewhat at a disadvantage for having refused to
comply with Judge Stewart’s order to return with the children.

It is important to me that the children’s beet interest be served.
This is the central criteria for any issue relating to a child`s
care or safety, whether it is in virtue of the Act, or any
Canadian legislation and case law of which I am aware. I felt it
necessary to inform myself on the procedural status in the
California Court system of the parties before me, and whether or
not bane Mme B’s rights were impaired as a result of her actions.

I telephoned Judge Stewart in California who assured me that this
would not be the case were I to order the return. He then offered
to sign an additional order clarifying his March 7, 1996 Order
that would ensure it is an interim order only. What follows is the
text of Judge Stewart’s Order signed today, May 17, 1996.

FILED MAY 17 1996
STEPHEN V. LOVE
County Clerk
Santa Clara County

by__M. TERRY Deputy

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SANTA CLARA

In re Marriage of: NO. FL 055808

Petitioner: YOSRI DIAB

and

Respondent: JULIE BENOIT

ORDER

On May 16, 1996, this Judge spoke with the Honorable Roger Baker,
Federal Judge in Canada. He is reviewing the Petitioner’s claim
that, under the Hague Treaty, California has jurisdiction over the
two minor children, Lissa and Karl.

This Court wishes to clarify the order filed on March 7, 1996.
That order greeted the Petitioner father sole legal and sole
physical custody of the two children. This was done after the
mother refused to return the children to California, and the Judge
in Canada, with whom I spoke on the telephone, indicated that he
felt he was not bound by the Uniform Child Custody Jurisdiction
Act.

That custody order filed Match 7, 1996, is a mere interim order
until a full and complete evaluation of this case can he made,
including psychological testing. Under California law, a permanent
child custody or visitation order cannot be made without mediation
first occurring . (California Family Code Sections 3170 and 3175)
The former orders the court to set every case for mediation in .
which custody and access are in dispute. Section 3175 requires
that mediation be set before or concurrent with any hearing on
custody. By local rule, evaluation follows failed mediation .

Thus, the Court Orders as follows:

1. If the Canadian Court returns the children to California, the
parties shall report to Department 119 on the first court day
after the children return, at 9:00 a.m., for an emergency
screening to set another interim order to establish a parenting
plan while this Court does a complete evaluation including
psychological testing.

2. The children may remain in the mothers custody pending the
emergency screening.

DATED: May 17, 1996
(S) James w. Stewart
JAMES W. STEWART
Judge of the Superior Court

The Court is gratified by the clarifying order issued today in
California, as it meets the most important concerns of the
Respondent.

I am advised that the emergency screening to which Judge Stewart
refers in para. 1 (page 2) of his order should take approximately
one hour, after which a new interim order will immediately issue.
I am also advised that under California law there is no legal
impediment to the custodial parent leaving the country with the
children. In other words, should the Respondent obtain interim
custody of the two children in California, she has the right to
seek Court permission to reside in Canada with the children,
provided I expect that she comply with any order dealing with
access rights by the father.

The initial process is very expediteous and therefore inexpensive.
There appears to be no reason why the entire interim process
cannot be completed within a few days of Mme B”s return to
California with the children.

FOR THESE REASONS, THE COURT:

ORDERS the return of Lissa D. and Karl D. to Cupertino California
no later than May 27, 1996;

ORDERS the Respondent to accompany the children;

ORDERS the Respondent to advise Petitioner as to her arrival date
so that both parties may engage legal counsel on a timely basis;

ORDERS Respondent to comply with Judge Stewart’s Order of May 17,
1996, referred to herein above;

ORDERS Petitioner immediately to give to Respondent the children’s
Canadian passports.

ORDERS Provisional Execution notwithstanding appeal;

THE WHOLE WITHOUT COSTS.

Roger E. Baker, J.S.C.

Editor’s Note: Matter is on appeal, hearing set for 19 Sep 1996.

Counsel:

Me Teresa Raimo
1 Carre Westmount, Bureau 1290
Westmount (Quebec) H3Z 2P9
TEL: (514) 846-1013
Attorney for Petitioner

Me Andre Champagne
LaPointe, Schachter, Champagne & Talbot
511, Place d’Armes, Bureau 100
Montreal (Quebec) HEY 2W7
TEL: (514) 288-8200
Attorney for Respondent

Me Michele Lavergne, Me Guy Lamb
Bernard, Roy & Associes
1 rue Notre-Dame est, Bureau 8.00
Montreal (Quebec) HEY 1B6
TEL: (514) 393-2336
Attorneys for Mis en Cause

——————–
1. Thompson v Thompson (Canada 1994) 3 S.C.R. p 551 at p. 580,
581.

2. [1994] 3 S.C.R. 551, at page 596