CANADA – GIBSON – 1988

Court: Ontario Provincial Court – Family Division
Number: Welland Registry No. 51/83, Ontario Judgments: [1988]
O.J. No. 2481

Applicant: Melissa M. Steigerwalt-Gibson1

and

Respondent: Michael Ebejer2

Date: 14 Dec 1988

IN THE MATTER OF AN APPLICATION for the Enforcement of Custodial
Rights under Section 47 of the CHILDREN’S LAW REFORM ACT, R.S.O.
1980, c. 88 as added to be S.O. 1982, c 20, and amendments thereto
AND IN THE MATTER OF the Convention on the Civil Aspects of
International Child Abduction.

BUDGELL, Provincial Court Judge (Orally):

Melissa M. Steigerwalt-Gibson (Gibson) and Michael Ebejer (Ebejer)
are the parents of Lukas Michael Steigerwalt (Lukas) who was born
on January 28, 1982, in Welland, Ontario. On or bout July 12,
1988, the boy was removed from Savannah, Georgia, in the United
States of America where he was living with his mother, and brought
to Ontario by his father. On July 29, 1988, Mr. Ebejer filed an
application with this court for custody of the boy pursuant to the
provisions of the Children’s Law Reform Act (the Act). The
initial return date was September 28, 1988, but in the interval
the Respondent, who was served with the relevant documents by
prepaid ordinary mail addressed to her at 20 New Market Drive in
Savannah, invoked the provisions of what is commonly referred to
as the Hague Convention which is attached as a schedule to Section
47 of the Act.

It is common ground that Canada and the United States are
signatories to the Convention and that Ontario and Georgia are
parties thereto. Pursuant to the Act, the Ministry of the
Attorney General is the Central Authority for Ontario and
therefore was contacted by appropriate officials in the United
States. This Court was then advised, that it should not decide
the merits of the custody application unless it was determined,
that the Child should not be returned to his mother in Georgia,
pursuant to Article 16 of the Convention which provides that:

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 or unless an application
under this Convention is not lodged within a reasonable time
——————–
1. Applicant in the trial court. “Applicant” means Applicant under the
Hague Convention.

2. Respondent in the trial court. See Note 1.

following receipt of the notice.

I consider Articles 1, 3, 4, 7, 8, 10, 11, 12, 14, 15, 16, 19, 20,
22, 26 and 30 to have some degree of relevance to this proceeding
and they will be referred to as necessary.

At the request of counsel, there were adjournments on September
28th, November 2nd and 9th and a hearing date of November 30the
was arranged. In my view this constituted basic compliance with
Article 11 which contemplates a decision within six weeks time.
On the 30th, I was referred to a nine page affidavit filed by the
mother, with three exhibits attached, namely: a five page home
evaluation report dated July 23, 1987, prepared by the Chatham
County Department of Family and Children Services; a two page
letter dated September 23, 1988, on the letterhead of the
Department of State in Washington, D.C., directed to the Ministry
of the Attorney General for Ontario; and a one page letter to
counsel for the mother from the Georgia Legal Services Programs
dated November 1, 1988. This was the extent of the evidence
presented by the mother and I then heard oral evidence from the
father and his witness. At the outset I was advised that Ebejer
conceded that his removal of the boy was wrongful which, in
effect, reduced my role to considering Article 13 of the
Convention minus clause (a).

After the presentation of evidence and submissions by counsel, I
indicated that my decision was to return the child to his mother
in Georgia and the order was signed on December 2, 1988. I did so
because I was able to make a decision at that time and felt that
the parties should be made aware of it as soon as it was made. I
indicated, however, my wish to give more detailed oral reasons on
December 14, 1988, at 2:30 p.m. because this appeared to be the
first decision of its kind to be rendered by a Canadian court.
Counsel could refer me to only one other case, a Scottish decision
of Lord McCluskey on February 20, 1987, where on a Petition by
Vincenzo Viola it was ordered that the child in question be
returned to Canada. The factual situation is not significant from
my point of view, but it does make reference to and comment on the
relevant Articles of the Convention.

I now propose to expand on my brief reasons of November 30th last
and would first emphasize that my decision is not a decision on
the merits of Ebejer’s custody application, because Article 16
says it cannot be and because Article 19 provides that:

A decision under this Convention concerning the return of the
child shall not be taken to be a determination on the merits
of any custody issue.

He may very well be taking excellent care of his child but I
specifically refrained from making inquires in this regard and
from letting that issue influence my decision. I indicate here,
however, in hope that it may be of some assistance to counsel,
that had I determined the child should not be returned to Georgia
it would not necessarily follow that Ebejer should succeed in
having the custody issue determined by an Ontario court, as
opposed to a court in Georgia. It seems to me that he might very
well have some difficulty, having regard to the history of the
matter, which will be referred to below, and the provisions of the
Act. I do not intend to make detailed reference to specific
sections but in my opinion Section 19(b) and (c), Section 20(4)
and Sections 22, 23, 25, 41 and 46 all create difficulties on one
kind or another for him. It must also be remembered that the
Provincial Court is a creature of statute which must find its
jurisdiction within the four corners of the Act, and does not have
the right to exercise the broad discretion of a superior court to
protect children even if inclined to do so.

The history of the matter in this court appears to be as follows:

1. The mother and father met in 1981 when she was living
in New York State near the Ontario border. They lived
together from time to time but separated eventually and
she moved from New York to Pennsylvania to New Jersey
and then to North Carolina. Lukas was born before she
moved away from Ontario and New York.

2. On November 12, 1982, a Pennsylvania Court made a
provisional order for maintenance of $100.00 per month
for the boy. On April 6, 1983, Ebejer appeared in this
Court and upon his admission of paternity the order was
confirmed effective April 15, 1983. It should be noted
that the reciprocal maintenance legislation does not
deal with custody and it is common ground that there
has never been an order dealing with custody and access
of Lukas.

3. Difficulties were encountered from the outset regarding
payment and it seems fair to say that Ebejer was
reluctant to pay because he was not able to see his
son. Eventually, he came to understand that one pays
to maintain rather than see a child, and his record of
payment since has generally been satisfactory.

4. In North Carolina in 1985, an application was made for
an increase in the support payment and a provisional
order was made for $100.00 per week. Difficulties were
encountered in effecting service upon Ebejer but
eventually it was arranged and the hearing commenced in
this Court on August 2, 1985. A number of issues were
raised by counsel and pursuant to the provisions of the
Reciprocal Enforcement of Maintenance Orders Act, the
matter was returned to North Carolina for the applicant
to give further evidence, specifically with respect to
her ability to contribute, and the needs of the child.
She had by this time married a Robert J. Gibson and
they were the parents of a little girl. Eventually,
the application for an increase in support was
unsuccessful, not because Ebejer could not afford to
pay more but because the applicant had not made out a
case. Therefore, the order continued at $100.00 per
month.

5. There was some suggestion at this time that Ebejer was
in the process of consenting to Mr. Gibson’s adoption
of Lukas, and a further suggestion that he was
considering bringing his own custody application in
North Carolina. Neither matter got very far, the
former presumably because Mrs. Gibson and her husband
separated. She then moved to Georgia where she has
lived with her son since 1986. Mr. Gibson was
apparently granted custody of their daughter and this
was noted by counsel for Ebejer in the current
proceeding. My conclusion, however, based on the home
evaluation report is that this was not because of
Gibson’s inadequacies as a parent.

6. Ebejer did not see his son from 1983 until he took him
from Georgia in 1988. It seems to me that one should
be careful in giving effect to this rather drastic
step.

The circumstances which gave rise to the current proceeding have
their seed in June of 1988 when Ebejer apparently received
telephone calls from both Mr. Gibson and the mother of Gibson, one
Janet Steigerwalt. He interpreted what they said to mean that
Lukas was no receiving appropriate care from his mother and that
he was being abused physically, emotionally and sexually. I do
not have any evidence, sworn or otherwise, from either Robert
Gibson or Janet Steigerwalt but the affidavit of Gibson, albeit
untested, states in paragraph 15 that she had not had any contact
with Mr. Gibson for approximately one year. It is also worth
nothing that the home evaluation report makes no references to
such matters. The affidavit also makes reference to significant
difficulties that Gibson had with the mother, and suggest that
this might have led the mother to take steps to cast her daughter
in a bad light.

In any event, Ebejer and his friend, Donald LaPlante (LaPlante),
were planning a holiday in Florida and they decided to go by way
of Savannah so that Ebejer could see his son. LaPlante stated in
his evidence that he made it clear to Ebejer before they left that
he wanted no part in taking the [missing text] surveying the
situation in Savannah for just [missing text] in advance to
contact Gibson, LaPlante made the decision to take the boy and
bring him to Ontario. I had an opportunity to observe LaPlante in
the witness box and am of the view that he and Ebejer are sincere
individuals who acted at all times in what they perceived to be
Lukas’s best interests and welfare. I find it strange, however,
that there would have been any discussion on about taking the boy
if Ebejer did not have it on his mind. It is my view that it is
logical to conclude that he did, because according to his evidence
both Mr. Gibson and Janet Steigerwalt asked him to come to Georgia
and take Lukas away. Notwithstanding all of this, it is my
conclusion that the decision by LaPlante to take Lukas and leave
was a spur of the moment decision based on completely inadequate
information and his description of what they saw in Georgia with
respect to Lukas falls far, far short from justifying the taking.
His description is as follows. The apparent home of Gibson was
found but it was clear she had moved and a neighbor indicated a
lack of knowledge as to where but indicated that Janet Steigerwalt
lived nearby. Janet Steigerwalt’s home was located and LaPlante
was appalled at its filth. It is clear, however, that Lukas did
not live there because Janet Steigerwalt said she had not seen him
in two or three months. A phone number was obtained for Gibson
but a gentleman advised she was at work and would not be home
until about 6:00 p.m. Janet Steigerwalt eventually obtained
information that Lukas was at the Y.M.C.A. and this is confirmed
in paragraph 24 of the affidavit of the applicant, where she
states her son had been attending a summer “Y” camp. Janet
Steigerwalt, along with Ebejer and LaPlante, then went to the “Y”
and took Lukas. Ebejer’s evidence was to the effect that his son,
whom he had not seen in five years, rushed to him, threw his arms
around him and said, “Take me to Canada.” I found this somewhat
unusual and it seems to me that LaPlante was likely more accurate
when he stated it took some time for Ebejer and his son to hit it
off. LaPlante made some inquires of a social worker and of people
who knew the family generally. It seems to me that at this point
in time LaPlante, who I am satisfied was the decision maker, was
prepared to believe th bad-mouthing of Gibson and made the
decision to leave and drive almost nonstop to Ontario, eventually
arriving in Port Colborne where Ebejer lives. Obviously to me at
least this was not the way to do things and I note that LaPlante
was aware, when the decision to leave was made, that thee would be
at least on and one half hours before the applicant became aware
that Lukas was gone. I say this because the decision to leave was
made at 4:30 p.m. and he had information that Gibson would not be
home from work until approximately 6:00 p.m.

I made reference earlier to the concession by Ebejer that his
removal of his son from Georgia was wrongful. In my opinion, this
was the only logical position to take, since although the mother
did not have a custody order, she had taken care of her son since
birth and had him i her sole care since at least 1983 as between
herself and Ebejer. In addition, the law of Georgia as set out in
the letter from the Department of State seems to be that the
mother in this case cannot be deprived of custody without Ebejer
commencing proceedings there. Article 14 says:

In ascertaining whether there has been a wrongful removal or
retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take
notice directly of the law of, and of judicial or
administrative decisions, formally recognized or not in the
State of the habitual residence of the child, without
recourse to the specific procedures for the proof of that law
or for the recognition of foreign decisions which would
otherwise be applicable.

My view is that the article permits me to recognize the law of
Georgia as I have. It is also my view that there were a number of
ways for Ebejer to ensure that his son, whom he had not seen in
five years, was properly protected and removed from an
inappropriate environment, if indeed he was in one, without taking
the drastic step of bringing him all the way to Ontario. By way
of example, I note that there are social agencies in Georgia.

It seems to me that the activity on July 12, 1988, is exactly what
the Convention is designed to discourage and eliminate, and if
courts are not prepared in appropriate circumstances to give
effect to it, then there is no real purpose in the Convention.
Common sense would also, in my opinion, rule out the steps taken
by Ebejer and Laplante. Indeed, Ebejer stated that when he saw
the conditions in Georgia, his emotions ran wild and he left for
Canada with the boy. The fact of the matter, however, is that the
boy was taken from the Y.M.C.A. in Georgia and neither Ebejer nor
LaPlante saw his home, nor did they make any contact with his
mother. Instead, relying on very general statements from people
they did not know they in effect kidnapped Lukas from his mother
and his home. Ebejer stated in evidence that Lukas is
destructive, aggressive and has an inappropriate knowledge of
drugs and sexual matters. It si far from clear that this is so,
but the home evaluation report indicates that Lukas may have
special needs without suggesting that his mother has caused those
special needs, or does not attempt to meet them. Indeed, the
contrary would seem to be true in the mind of Helen Washington who
prepared the report.

The Convention at the outset states that the interests of children
are of paramount importance, and that all children are to be
protected from their wrongful removal or retention, and
establishes procedures to have them returned to their habitual
residence, which in this case is Georgia. Article 1 makes it
clear that Ontario should respect the law of Georgia. It is not
necessary to consider Article 3 in detail because of the admission
that he removal from Georgia was wrongful, and because the
decision is not going to be permitted for reasons stated. Article
7, and Article 10 to some extent regarding voluntary return,
refers to co-operation amongst Central Authorities. In my opinion
this is not significant once the issue is raised in a courtroom.
In other words, if co-operative efforts are not successful outside
the courtroom, the court can only make a decision based on legal
principles as opposed to expectations of co-operation. In this
case, the child removed from Georgia was located in Ontario and
the central authority has assisted the mother in placing her
position in front of the court, pursuant to the provisions of
Article 8.

Article 12 would seem to make it mandatory for this court to
return the child to Georgia because less than one year has elapsed
form the removal to the date of commencement of the proceedings.
Article 13, hover, make it in appropriate to do so without giving
the remover the opportunity to have a day in court. The
provisions of Article 15 were complied with, although unnecessary
in the final analysis because of the admission of wrongful
removal. Article 20 would not seem to be relevant with respect to
proceedings involving Canada and the United States, even if the
child was found to be living in Georgia in the circumstances
alleged by Ebejer. It says:

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.

The general provisions of the Convention have to do with costs and
expense, and I am prepared after I complete my reasons to
entertain any submissions which counsel may make in this regard.

To go back then, my decision to return the child is based on what
I have said above and on my view that the grave risk referred to
in Article 13(b) is not present. It says:

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–

(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.

It is my conclusion that to make such a determination based on the
factual situation upon which Ebejer and LaPlante acted would be
dangerous in the extreme. I say this even tough “grave” means
something of quite severe and threatening nature. My conclusion
is that the situation referred to in Article 13(b) does not exist
here, even allowing for the fact that Gibson’s affidavit has not
been tested, and realizing that affidavits are sometimes tailored
to the particular interests of the make. Article 13 goes on to
say that:

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.

Ebejer says that his son wishes to stay in Canada but I note that
the boy is not yet seven. I did not feel it appropriate for me to
interview the boy, nor did I ask the office of the Official
Guardian to interview him and represent him because I am not
dealing at this point with the merits of a custody application.
The Article finally refers to information about the social
background of the child. All I have in this regard is what is in
the affidavit marked Exhibit One, and there is little or nothing
in the home evaluation report to support the contention of Ebejer.
I have previously commented on the evidence of Ebejer and
LaPlante, and all of this led me to conclude that the child should
be returned to Georgia.

After hearing submission for counsel, I am of the view that in
this factual situation there should be an award of costs in favour
of the applicant. I make the award because it is clear that the
respondent Ebejer acted very much inappropriately in removing the
child from Georgia, and he and LaPlante knew they were on very
shaky ground in doing so. I have already indicated that in my
opinion they did not act maliciously but it seems to me they
should have known there were more appropriate ways to deal with
the situation.

A hearing has been held and counsel for Gibson had to prepare for
it, and Gibson herself incurred significant expense, I am told,
for long distance telephone calls. Her counsel conceded however,
properly in my view, that $500.00 or phone calls might be
considered excessive. I suppose one could infer from the
Convention (Article 26) that the public purse should be
responsible for legal costs but I do not interpret that as going
beyond the initial outlay to get matters started and certainly not
in such a way as to preclude reimbursement from an unsuccessful
party.

In any event, having been advised of my intention to award costs,
counsel agreed they should be fixed as opposed to having them
taxed. I have no quarrel with Mr. Quinn’s submission that the
award for his legal fees should be $500.00 and the total award
will be $850.00, including disbursements.

Budgell, Provincial Court Judge.

Counsel:

Applicant: Respondent:

Joseph W. Quinn Barbara Thurston