Hawke and Gamble (Canada 1998)New Westminster, B.C. Registry: E 004559, 28 Sep 1998
25 International Abduction [CDN 1998]

Date: 28 Sep 1998
Docket: E004559
Registry: New Westminster









Counsel for the Petitioner: W. R. Storey

Counsel for the Respondent: J.L. Pratt

Place and Date of Hearing: New Westminster, B.C.
September 1, 1998

[1] Mr. Hawke alleges that the respondent has unlawfully
removed their two children to British Columbia from the
State of Texas in the United States of America. He alleges
that Texas is their home jurisdiction and invokes s. 55 of
the Family Relations Act, R.S.B.C. 1996, C. 128 and Articles
3, 4, 5, 12, 16 and 26 of The Hague Convention on the Civil
Aspects of International Child Abduction. He seeks an order
that the children, forthwith be returned to Texas.

[2] The respondent denies those allegations, claiming
that she had the right to remove the children to British
Columbia. She submits that the children are presently
“habitually” resident in this Province. Alternately she
relies upon s. 13 of the Convention arguing that returning
the children to the petitioner in Texas would expose them to
“grave risk of harm.”


[3] Section 55 of the Family Relations Act states:

55. (1) In this section, “convention” means
the Convention on the Civil Aspects of
International Child Abduction signed at The
Hague on October 25, 1980.

(2) Subject to subsection (4), the
provisions of the convention have the force
of law in British Columbia.

(3) The Attorney General is the Central
Authority for British Columbia for the
purpose of the convention.

(4) The government is not bound to assume
any costs resulting from the participation
of legal counsel or advisers or from court
proceedings in relation to applications
submitted under the convention, except to
the extent that the costs are covered under
British Columbia’s system of legal aid and

(5) Subsections (1) to (4) and the
convention apply in respect of a child who,
immediately before a breach of custody or
access rights, was habitually resident in a
contracting state but do not apply in
respect of a child described in subsection

(6) Part 3 applies in respect of

(a) a child who is in Canada and who,
immediately before a breach of custody or
access rights, was habitually resident in

(b) a child who, immediately before a
breach of custody or access rights, was
habitually resident in a state other than a
contracting state,

(c) a child who, immediately before a
breach of custody or access rights, was
resident, but not habitually resident, in a
contracting state, and

(d) any other child affected by an
extraprovincial order, other than a child in
respect of whom subsections (1) to (4) and
the convention apply.

(7) The Attorney. General must publish, in
Part II of the Gazette, a copy of the
convention and the day on which the
convention extends to British Columbia.

[4] Articles 3, 4, 5, 12 16 and 26 of The Hague
Convention state:

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
subparagraph (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 4

The Convention shall apply to any child who
was habitually resident in a Contracting
State immediately before any breach of
custody or access rights. The Convention
shall cease to apply when the child attains
the age of 16 years.

Article 5

For the purposes of this Convention–

(a) “right 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 chi1d for a limited period
of time to a place other than the child’s
habitual residence.

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 ~f the
child forthwith.

The judicial or administrative authority,
even where the proceedings have been
commenced after the expiration of the period
of one year referred to in the preceding
paragraph, shall also order the return of
the child, unless it is demonstrated that
the child is now settled in its new

Where the judicial or administrative
authority in the requested State has reason
to believe that the child has been taken to
another State, it may stay the proceedings
or dismiss the application for the return of
the child.

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 or unless an
application under this Convention is not
lodged within a reasonable time following
receipt of the notice.

Article 26

Each Central Authority shall bear its own
costs in applying this Convention.

Central Authorities and other public
services of Contracting States shall not
impose any charges in relation to
applications submitted under this
Convention. In particular, they may not
require any payment from the applicant
towards the costs and expenses of the
proceedings or, where applicable, those
arising from the participation of legal
counsel or advisers. However, they may
require the payment of the expenses incurred
or to be incurred in implementing the return
of the child.

However, a Contracting State may, by making
a reservation in accordance with Article 42,
declare that it shall not be bound to assume
any costs referred to in the preceding
paragraph resulting from the participation
of legal counsel or advisers or from court
proceedings, except insofar as those costs
may be covered by its system of legal aid
and advice.

Upon ordering the return of a child or
issuing an order concerning rights of access
under this Convention, the judicial or
administrative authorities may, where
appropriate, direct the person who removed
or retained the child, or who prevented the
exercise or rights of access, to pay
necessary expenses incurred by or on behalf
of the applicant, including travel expenses,
any costs incurred or payments made for
locating the child, the costs of legal
representation of the applicant, and those
of returning the child.


[5] The competing claims of the parties raise the
following issues:

1. Which parent actually had custody at the time
the children were removed to Canada?

2. Were the children wrongfully removed or

3. Are the children habitually resident in Canada
or Texas?

4. Is there a grave risk that the children would be
exposed to physical or psychological harm or be
otherwise placed in an intolerable situation if
returned to their father in Texas?

5. Have the children reached an age and degree of
maturity such that it is appropriate to take
account of their views?

[6] Since a decree of divorce was pronounced by a Texas
Court on April 8, 1994 there have been many court
applications and orders in both Texas and British Columbia.
Each side interprets these applications and decisions in a
manner favourable to the individual position taken. Many
affidavits were filed. Texas counsel provided differing
opinions respecting Texas law.

[7] Upon the conclusion of the hearing I indicated that,
notwithstanding the desirability to quickly resolve the
issue in order that the children be accommodated early in
the school year, I had to have time to read each court
decision and determine its import and to ascertain what
facts I could winnow from the many competing affidavits.
Having now done so, I propose to set out my findings
respecting these issues.


[8] A final decree of divorce was pronounced in Hidalgo
County on April 8, 1994. There is no issue that the parties
were then both resident in Texas. It was a term of that
decree that Mrs. Gamble was awarded sole custody (called
sole managing conservator under Texas law) based on the
recommendations of a 1993 custody evaluator’s report. Mr.
Hawke was appointed “possessory conservator” (which entitles
him to certain rights, including access rights). Each party
was required to provide written notice of change of address
on or before the 30th day before the change of residence,
or, if not possible, on or before the 5th day after the date
the party knew or should have known of the change.

[9] In mid-April 1994, Mrs. Gamble moved to British
Columbia with the children, and claims to have given the
required notice. Mr. Hawke says he was never advised and for
a long period did not know where the children were.

[10] Mrs. Gamble applied for interim custody in British
Columbia. On September 8, 1994, Errico J. of the British
Columbia supreme Court made an ex parte order as follows:

This Court orders that the Plaintiff, Nina
Jo Gamble, shall have interim custody. . .
This Court further orders that the
defendant, Robert Allen Hawke, is not to
have access to the children….

[11] Consequent upon this order, Mrs. Gamble refused to
allow Mr. Hawke access to the children. Mr. Hawke then
applied to the Texas Courts to enforce access. On November
10, 1994, on motion by Mr. Hawke, the Texas Court in Hidalgo
County removed custody from Mrs. gamble and granted it to
Mr. Hawke on an interim basis. The order states:

It is ordered that Nina Jo Gamble, (formerly
Hawke), is removed as the managing
conservator of the children…, and that
Robert Allen Hawke is appointed Temporary
Sole Managing Conservator and Nina Jo Gamble
is appointed Temporary Possessor Conservator
of the children, and that all prior orders
for the support of such children are
superseded by this order.

[12] On April 19, 1995, Mr. Hawke applied before Errico
J. to set aside the ex parte order granted on September 8,
1994 and enforce the terms of the November 10th Texas order.
Judgment was reserved. On August 2, 1995, Errico 3. rendered
judgment which, among other things, commented as follows:

I found that on the affidavits and other
material filed the children were habitually
resident in British Columbia by reason they
resided in British Columbia with the parent
having custody under a court order. I also
found on the balance of probabilities the
children would also suffer serious harm if
the children were removed from the province.
This finding was based on evidence of the
father’s abuse and mental instability.

. . .

The mother has filed a considerable body of
evidence both in support of the original
application and for this application that
supports those allegations. There is
evidence in the form of affidavits of others
that the mother, police, and hospital
reports indicating the father’s attempts at
suicide, his possession of firearms and
there is a social evaluation prepared by an
officer of the Texas Court on October 18,
1993. That report follows an interview with
the children with the mother and father
[sic] and concludes that the mother should
be appointed managing conservator of the
children and that the father be appointed
possessory conservator with reasonable
visitation rights. During the course of the
officer’s interview with the father he
admitted some abuse and that he had trouble
resolving differences by talking over
marital problems with the mother. He also
admitted a suicide attempt after the mother
had left him.

[13] Errico J. went on to conclude that as the evidence
for a custody hearing existed largely in Texas, it was
appropriate for the British Columbia Court to decline
jurisdiction pursuant to s. 40.2 of the Family Relations Act
(as it then was). However, he expressed serious reservations
about the prohibition in the Texas Family Code statute
precluding the courts there from hearing all of this
evidence of instability. Texas law apparently precludes
either party raising pre-divorce decree conduct in
post-decree proceedings. In this respect Errico J.
commented: “To simply order that the Texas order be enforced
in British Columbia without the opportunity for there to be
a trial of the issues of the suitability of the father for
either custody or access would not be in the best interests
of these children.”

[14] Errico J. then provided the following order:

This Court Orders that the ex parte order
which was pronounced by the Honourable Mr.
Justice Errico in connection with this
proceeding on September 8, 1994 is hereby
set aside.

This Court Further Orders that the Orders
which were pronounced by the Honourable
Judge Mancias in the 93rd District Court of
Hidalgo County, Texas on April 8, 1994 and
August 31, 1994 pursuant to which the
Defendant [Hawke] was granted possessory
conservatorship of the infant children of
the marriage. . . shall be enforced and that
the Plaintiff [Gamble] shall deliver the
aforesaid children to the Defendant…

This Court Further Orders that, in order
that the Plaintiff may have an opportunity
to have the issues of custody of and access
to the aforesaid children fully dealt with
by the Court in Texas prior to the delivery
of the said children to the Defendant, the
foregoing provisions of this Order shall not
come into effect until the expiry of a
period of ten months after the date of the
entry of this Order….

[15] On June 6, 1996, the British Columbia Court of
Appeal dismissed Mrs. Gamble’s appeal from the decision by
Errico J. that the Texas Court was the forum conveniens.

[16] On July 2, 1996, Mrs. Gamble returned the children
to Texas and proceeded to file motions there for a transfer
of jurisdiction over the file to British Columbia.

[17] On September 3-4, 1996, Hidalgo County Court ordered
that jurisdiction be transferred to British Columbia.

[18] On September 10, 1996 that Court provided an
amendment to its earlier order as follows:

On the 3rd day of September, 1996, this
court heard and considered Nina Jo Hawke,
A.K.A. Nina Jo Gamble, Movants motion to
transfer continuing exclusive jurisdiction
in suit affecting parent/child relationship.
This court hereby transfers the continuing
exclusive jurisdiction in the suit affecting
the parent/child relationship of the above
named children from Hidalgo County, Texas to
British Columbia, Canada.

[19] On September 10, 1996 Mrs. Gamble filed a motion
requesting the British Columbia Supreme Court take
jurisdiction and give her custody with restricted supervised
access to Mr. Hawke. This motion was adjourned by Hogarth J.
pending appeal by Mr. Hawke of the September 10, 1996 Texas
order, transferring jurisdiction to British Columbia.

[20] On October 4, 1996 the 93rd Judicial District Court
in Hidalgo County, Texas re-considered the transfer of
jurisdiction to British Columbia. Prior to reviewing the
jurisdictional issue, the Court confirmed the custodial
arrangements. The Court stated:

The court finds that its order of November
10, 1994 [granting Mr. Hawke custody] fully
determined the matters of custody and
support and purports to be a final
adjudication of all matters in controversy
and contains no provision for any further
hearings on conservatorship or anything

The court further finds that there is
nothing in the order which appears to
contemplate that at a later date the court
will issue a conservatorship order which is
final, or is not labeled temporary, nor is
there any provision that a hearing will be
held for such purpose.

The court further finds that the order
contains no hint of any limitation on the
duration of its temporary conservatorship;
no specified time is stated, nor is the
duration related to any external condition,
such as completion of investigation, release
from a hospital, or the like.

It is therefore ordered that Nina Jo Gamble
is removed as managing conservator of the
children. . .and that Robert Allen Hawke is
appointed sole managing conservator and Nina
Jo Gamble is appointed sole possessory
conservator of the children, and that all
prior orders for the support of such
children are superseded by this order.

[21] On a motion to re-consider the earlier order
transferring jurisdiction, the same Court (93rd Judicial
District) concluded that jurisdiction would be transferred
to British Columbia. The order stated:

On this the 15th day of October, 1996, this
court considered Movants motion for
rehearing or new trial on the September 5th,
1996, order to transfer jurisdiction.
Accordingly, the court hereby orders Movants
request for a new trial and/or rehearing is
denied. This court declines to exercise
jurisdiction over the suit affecting
parent/child relationship concerning the
above-named parties.

[22] At this juncture there was an apparent vacuum
respecting jurisdiction. Hidalgo County had declined
jurisdiction in favour of British Columbia but the British
Columbia Supreme Court had earlier determined that Texas was
the proper forum. Mr. Hawke decided to resolve this by
applying to the 105th Judicial District in Nueces County
Texas. That court determined that it could take jurisdiction
and issued the following restraining order:

. . . Respondent [Mrs. Gamble] is hereby
immediately restrained, from: Pursuing
custody litigation outside the jurisdiction
as venue is proper in Nueces County, Texas.
Texas would be the home state, but for
Respondent’s wrongful retention of the
children; United States is the Country of
habitual residence of the children.

[23] An application was then brought by Mrs. Gamble
before Preston J. of the British Columbia Supreme Court on
October 31, 1996. She sought variation of Errico J.’s
earlier order and an order for interim custody.

[24] Preston J. commented in his judgment about the “long
and convoluted proceedings” that “brought no credit
whatsoever to the parties.” He particularly concluded that
Mr. Hawke had misled the Nueces court by failing to apprise
them of the true state of affairs, that is, that although
there -may have temporarily been a vacuum in jurisdiction,
there was no suggestion whatever that the British Columbia
Courts would decline jurisdiction in the face of the
invitation by Hidalgo County to re-acquire it. He then made
an order vesting this court with jurisdiction and granted
Mrs. Gamble interim custody.

[25] The interim order was conditional upon setting aside
the Nueces Court order which, it was no doubt assumed, would
be done, once that court was fully apprised of events.

[26] On December 5, 1996, the court in Nueces County
determined that the custody order of November 10, 1994 was a
“final order” and continued to enjoin Mrs. Gamble from
filing applications regarding the children anywhere but in
Nueces County. It reaffirmed its earlier determination that
notwithstanding knowledge that British Columbia had taken
jurisdiction, Texas was the proper forum. A final hearing to
determine custody was set for June 9, 1997.

[27] Mrs. Gamble was persuaded (she says for tactical
reasons) to attorn to the Nueces County jurisdiction. On
December 2nd, 1996, she signed an affidavit swearing that
she would not pursue litigation in any other jurisdiction
until this matter was resolved. According to affidavit
evidence filed in the case at bar, she did so on the
understanding that the Nueces Court could not possibly
conclude ,that it had jurisdiction and further, that any
final order made against her would be corrected on appeal.
She also claims that if she did not do this, she would be
denied access to the children.

[28] According to Mrs. Gamble, it was for this reason she
consented to a discontinuance of her Family Relations Act
applications in British Columbia (see consent order of Singh
J. December 20, 1996). Following that dismissal a consent
order was granted by the District Court in Nueces County on
December 26, 1996. Mr. Hawke was given custody with access
to Mrs. Gamble. Both were enjoined from removing the
children from Texas. A final hearing was set for June 9,

[29] Subsequent applications for appellate relief were
denied at two appeal levels simply because the matter
remained interlocutory and not final. The appeal courts took
the position that they could not adjudicate until a final
order was made by the Nueces District Court.

[30] In April, 1997 a custody report prepared for the
Nueces Court recommended that custody be granted to Mr.
Hawke. Mrs. Gamble then withdrew her application for
custody. On May 28, Mrs. Gamble challenged the jurisdiction
of Nueces County but, the Nueces Court concluded it had
jurisdiction. Mrs. Gamble’s applications for appellate
relief and particularly to restrain the Nueces Court from
further proceedings were subsequently dismissed (she claims
for procedural reasons previously referred to). On June 6,
1997 she removed the children to British Columbia and
obtained an order from Preston J. on June 11th, 1997 for
interim custody with no access to Mr. Hawke. This petition
was then issued June 18, 1997.


[31] Article 3 of The Hague Convention (above) provides:

The removal or 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.

[32] Article 5 then provides that “right of custody”
includes the right to determine the child’s place of

[33] Three conditions must be satisfied for a return of
the children under the Hague Convention.

1. the applicant must have custody rights to the child;

2. the child must have been /wrongfully removed or
retained; and

3. the child must have been habitually resident in a
contracting state immediately before any breach of
custody or access rights.


[34] In Thomson v. Thomson (1994), 119 D.L.R. (4th) 253
(S.C.C.), the parents and child lived in Scotland.
Following the breakdown of the marriage, the mother obtained
interim custody in Scotland. The interim order restrained
her from removing the child from the country. The mother
took the child to Canada without the father’s consent. She
later applied for custody in Manitoba. The father obtained a
“chasing order” for custody in Scotland and brought an
application under The Hague Convention to enforce his
rights. The court held that the child had been wrongfully

[35] La Forest J. stated that custody is a broad term
that covers many situations where a person lawfully has the
care and control of the child. He referred to the Dyer
Report, preliminary document prepared on international child
abduction by one parent. That report stated five types of
situations constituting “child abduction” where the
custodial parent is deprived of his or her right of custody.
For purposes of this petition, these include situations

1. The child was abducted by a parent from the
judicially determined custodian in one country and
removed to another, where no conflicting custody
decision has been handed down.

2. The child was retained by the non-custodial parent
or other relatives beyond a legal visitation period,
in a country other than that in which the child
habitually resided.

3. The child was abducted by a parent from the legal
custodian in one country and removed to another,
where the abductor has been granted custody under a
conflicting order in that other country or a third

At p. 275 La Forest J. states:

From the emphasis placed in the Convention
and the preparatory work on the enforcement
of custody, as distinguished from mere
access, the proper view would appear to be
that the mandatory return dictated by the
Convention is limited to cases where the
removal is in violation of the custody
rights of a person, institution or other

[36] In determining which parent has custody, the courts
look at a variety of factors, including the jurisdiction
where the divorce and other custody proceedings are
occurring; the rights of a custodial parent in the
appropriate jurisdiction; whether the abductor parent has
made any undertakings in the jurisdiction purporting to make
a custody order; and whether or not a parent has attorned to
that jurisdiction.

[37] In W.(V.) v. S.(D.) (1996), 134 D.L.R. (4th) 481
(S.C.C.) L’Heureux-Dube J. comments on the definition of
custody provided in The Hague Convention. At p. 496 she

However, although the Convention adopts an
original definition of “rights of custody”,
the question of who holds the “rights
relating to the care of the person of the
child” or the “right to determine the
child’s place of residence” within the
meaning of the Convention is in principle
determined in accordance with the law of the
state of the child’s habitual place of

[38] In Z.(D.) v. Z.(J.) (1994), 99 B.C.L.R. (2d) 287
(B.C.S.C.), the child was resident in Germany where his
mother had custody. Following an access visit, the father
refused to return the child to his mother on the basis of
sexual abuse allegations. The father traveled with the child
to British Columbia and obtained interim custody through an
ex parte order. Cooper J. held that the child had been
wrongfully removed and that there was no evidence of grave
risk preventing the child’s return. In making that finding,
Cooper J. held that the father had attorned to the
jurisdiction of the German court when he exercised his right
of access under the terms of the court’s order. Therefore,
he wrongfully retained the child when he refused to return
the child after the access visit.

[39] In B. V. B., [1993] 2 All E.R. 144 (C.A.), the
mother removed her child from Canada to England, after she
had given an undertaking to the Canadian court not to remove
the child from the jurisdiction without court order. The
English Court of Appeal held that the removal of the child
was unlawful because “the removal by the mother had been
done precipitately at the very time when the child’s future
care was already under consideration by the Canadian court
which itself had right of custody at the time”. The court
found that the Canadian court (Ontario) was seized of the
matter in the context of the divorce proceedings, and as
such the child had been wrongfully removed from its habitual

[40] In Zimmerman v. Zimmerman, [1992] B.C.J. No. 1983
(B.C.S.CJ, the father consented in writing that the child
could move to Germany with the mother. He later made an
application under the Hague Convention for return of the
child, claiming he was pressured into signing the consent.
Cooper J. concluded that the consent was freely given,
though reluctantly. He stated:

In summary, I find that the husband, while
he may have been entitled to exercise
custody of Jarid, within the meaning of
s.34(1) (b) of the Family Relations Act,
intentionally and freely varied that right
on entering into the agreement in writing on
April 7, 1992. I find no evidence of duress,
in the sense that he acted under compulsion
through fear of personal suffering or any
injury, actual or threatened.


[41] My review of the many court orders leads me to
conclude that as of June 6, 1997, when the children were
removed from Texas, the only outstanding custody order was
the order from Hidalgo County made October 15, 1996
confirming that Mr. Hawke had sole custody. That order was
confirmed by the Nueces County Court on December 26, 1996.
This latter order specifically prohibited either party from
removing the children from the jurisdiction pending further
order of the court.

[42] There is no dispute that according to s. 153.132 of
the Texas Family Code, a “sole managing conservator”
(custodial parent) has the right to establish the primary
residence of children.

[43] Although Mrs. Gamble had successfully transferred
jurisdiction to British Columbia in October, 1996, and had
obtained an order for interim custody subject to the removal
of the Nueces County restraining order, she voluntarily
discontinued her British Columbia proceedings on December
20, 1996. I am unable to conclude, as alleged by Mrs.
Gamble’s counsel, that her discontinuance was anything other
than voluntary.

[44] On December 2, 1996, Ms. Gamble provided an
undertaking to the Nueces Court that she would not commence
or continue any litigation in any other jurisdiction while
the custody application was pending in that court. This
undertaking was contained in an affidavit to the court and
when I consider that, together with her discontinuance in
British Columbia, I conclude that she attorned to the
jurisdiction of the Texas court and that she was bound by
the October 15, 1996 custody order. In addition, though she
pursued her custody application in the Texas Courts for a
time, she withdrew it in April, 1997. At the time she
removed the children to British Columbia, she was exercising
her access rights under the terms of the custody order of
October, 1996 (confirmed in December, 1996).

[45] Thus I have concluded that as of June 6, 1997, the
only valid, enforceable custody order named Mr. Hawke as
sole managing conservator of the children. Although it
appears there may be some inter-Texas jurisdictional
wrangling, which is best left to the Texas Courts to sort
out, the fact remains that the Nueces District Court merely
confirmed the initial grant of custody given Mr. Hawke by
the Hidalgo Court. I note as well that although Mrs. Gamble
attempted to have the Nueces decision overturned at the
appellate level, the appeal courts declined to hear the
substantive issue. They concluded that the trial court had
to first make a final order before they could acquire


[46] In Thomson (above) La Forest J. spends a
considerable amount of time discussing the concept of
“wrongful removal” in the context of non-removal clauses
inserted into interim custody orders. In that case, the
parent with interim custody removed the child from the
country, contrary to the non-removal order, raising
questions of whether the Convention protects rights of
access. At p. 280 he states:

Under Canadian law, a non-removal clause may
be placed in an interim order of custody to
preserve the court’s jurisdiction to make a
final determination of custody. It seems to
me that when a court is vested with
jurisdiction to determine who shall have
custody of a child, it is while in the
course of exercising that jurisdiction,
exercising rights of custody within the
broad meaning of the term contemplated by
the Convention. In the words of art. 3(b),
“at the time of the removal or retention
those rights were, actually exercised either
jointly or alone, or would have been so
exercised but for the removal or retention.”
[emphasis added in original]

[47] La Forest J. held that the mother’s removal of the
child constituted a breach of the custody rights of the
foreign courts.


[48] I accept that the only outstanding order for custody
at the time the children were removed to British Columbia
(on the last occasion) was from Hidalgo County, issued
October, 1996. This was subsequently confirmed by the Nueces
County Court in December, 1996 when Mr. Hawke was named sole
managing conservator. Under the Texas Family Code, the sole
managing conservator has the exclusive right to determine
the residence of the children. Further, under the terms of
the Nueces County order, both parties were enjoined from
removing the children from the jurisdiction.

[49] I hold that when Mrs. Gamble removed the children
from Texas, she was breaching Mr. Hawke’s rights to
determine the residence of the children and further she was
breaching the non-removal clause. Thus her removal of the
children was wrongful because it breached the custody rights
vested in the Nueces County Court, see Thomson (above).


[50] The Convention contains no definition of “habitual
residence”. However, that definition must be interpreted in
light of the definition of “habitually resident” in s. 44(2)
and (3) of the Family Relations Act. It states:

(2) A child is habitually resident in the
place where the child resided

(a) with both parents,

(b) if the parents are living separate and
apart, with one parent under a separation
agreement or with the implied consent of the
other parent or under a court order.

whichever last occurred.

(3) The removal or withholding of a child
without the consent of the person who has
custody of the child does not alter the
habitual residence of the child unless there
has been acquiescence or undue delay in
commencing due process by the person from
whom the child is removed or withheld.

[51] In his case comment on Thomson (above), J.G. McLeod
notes that habitual residence has been interpreted in the
cases to mean the child’s usual home or wherever the child’s
life is centered. At p. 407 he notes:

In most, if not all cases, this place will
be where the child lived with his or her
parents in a family setting before the
breakdown of the marriage. One parent cannot
unilaterally change the child’s habitual
residence by surreptitiously relocating the
child. Some authority exists that the parent
who had custody of a child could change the
child’s residence as an incident of custody.
In Carter v. Brooks [Cites omitted], the
Ontario Court of Appeal removed any
uncertainty about the point that may have
existed. It held that the custodial parent
did not have a right to change unilaterally
the child’s residence. The child’s residence
was too important a factor for one parent to
have control over it. Change in residence
required parental agreement or a court

[52] In her article Hague International Child Abduction
Convention: A Progress Report (1994), 57 (3) Law and
Contemporary Problems 210, L. Silberman notes that the
question of what constitutes a child’s habitual residence is
a question of pure fact which differs from the question of
domicile. Silberman also states that the existence of a
custody order does not determine habitual residence. At p.
231 she writes that when a parent takes a child from one
state to another, there is no requirement of return if the
new-state qualifies as that of habitual residence.

[53] In Hoskins V. Boyd, [1996] B.C.J. No. 1865
(B.C.S.C.), affirmed [1997] B.C.J. 958 (B.C.C.A.), the child
was born in Canada to a Canadian mother and American father.
The mother and child returned to the father’s home in
Oregon. While in Oregon, the father obtained interim
custody, while the mother was granted supervised access.
During a supervised visit, the mother removed the child to
Canada. The issue before Sigurdson J. was whether the child
was habitually resident in Oregon at the time of his removal
to British Columbia.

[54] Sigurdson J. referred to the case of Spini v. Spini,
[1994] N.B.J. No. 567 (N.B.Q.B.) in which the New Brunswick
Court of Queen’s Bench followed the definition of “habitual
residence” set out by Lord Justice Balcombe in Re: N. (Child
Abduction: Habitual Residence), [1993], 2 F.L.R. 124
(C.A.). At p. 129 his Lordship said:

I now refer to the decision of the House of
Lords in the well-known case of Re J. [1990]
2 A.C. 562, sub nom. C. V. S. A Minor)
(Abduction), [1990] 2 F.L.R. 442 and- in
particular to the speech of Lord Brandon of
Oakbrook at pp. 578F and 454B respectively.
He says:

The first point is that the expression
“habitually resident’ as used in Article 3
of the Convention, is nowhere defined. It
follows, I think, that the expression is not
to be treated as a term of art with some
special meaning, but is rather to be
understood according to the ordinary and
natural meaning of the two words it
contains. The second point is that the
question whether a person is or is not
habitually resident in a specified country
is a question of fact to be decided by
reference to all the circumstances of a
particular case. The third point is that
there is a significant difference between a
person ceasing to be habitually resident in
country A, and his subsequently becoming a
resident in country B. A person may cease to
be habitually resident in country A in a
single day if he or she leaves with a
settled intention not to return to it but to
take up long-term residence in country B
instead. Such a person cannot, however,
become habitually resident in country B in a
single day. An appreciable period of
time and a settled intention will be
necessary to enable him or her to become so.
During that appreciable period of time the
person will have ceased to be habitually
resident in country B. The fourth point is
that, where a child of J’s age is in the
sole lawful custody of the mother, this
situation with regard to habitual resident
will necessarily be the same as hers.

[55] Upon consideration of this definition, Sigurdson J.
held that to the extent that the habitual residence of the
child corresponded to the habitual residence of the mother
in that case, the question that had to be answered was
whether the mother either had a settled intention to reside
in Oregon, or had resided in Oregon with a sufficient degree
of continuity to be properly described as settled. He
reviewed the circumstances, including the fact that the
child had been in the United States for approximately one
third of his life; that the mother had relocated to Oregon;
that the mother was employed in Oregon; and that the mother
had taken steps to satisfy United States immigration
requirements. He then decided that the child had been
habitually resident in Oregon, and therefore, the removal of
the child from Oregon was wrongful.

[56] In Re: Kinnersley-Turner and Kinnersley-Turner
(1996), 140 D.L.R. (4th) 678 (Ont. C.A.), the mother
obtained custody in England after divorce. She obtained a
consent order to move the child permanently to Canada and
moved in 1989. She then returned to England several times
with the stated intention of living there but each time came
back to Canada. On an occasion when she “resided” in
England, the father brought custody proceeding there. The
mother thereupon moved to Canada with the child without
notice to the father or the English courts.

[57] The Ontario Court of Appeal affirmed a trial court
decision that she had wrongfully removed the child from her
habitual residence and ordered a return to England. In
determining that the child was habitually resident in
England, Osborne J.A. looked at factors such as: the mother
had bought a one-way air ticket back to England; she had
enrolled the child in school; and she had arranged for
accommodation. He concluded:

Although the appellant seems to have moved
about with some frequency after her return
to England, Alaana clearly resided in
England from September, 1995 to January,
1996. The duration of her residence was
sufficient to render it habitual.

[58] Counsel for the mother cited Nielsen v. Nielsen
(1971), 1 OR. 541 (Ont. H.C.) for the proposition that the
term “ordinarily resident” has been defined as that place
where the child last resided with his or her parents. The
court there was concerned with an issue of jurisdiction for
purposes of hearing a custody application. I do not accept
that it can have any application to a consideration of
articles under The Hague Convention, which was proclaimed
some ten years after Nielsen.


[59] I find that the children were habitually resident in
Texas with their parents until the divorce and before Mrs.
Gamble’s move to Prince Rupert. At the time that Mrs. Gamble
first moved with the children to Canada, she was the
custodial parent (managing conservator) and had the right to
determine their residence. Given her intentions at the time,
it could be argued that the children’s status changed
between 1994 and 1996 to “habitually resident in Canada.”
However, an important qualification to this position is Mr.
Hawke’s allegation that he seriously objected to the move
and was never given the requisite notice under Texas law.
The only evidence before me is that Mrs. Gamble deposes that
she notified the Texas Court.

[60] The children’s residence between 1994 and 1996,
however, is not the issue. I am satisfied that whatever
might be said about their residential status then, it was
changed when they returned to Texas pursuant to a valid,
court order in August, 1996. They remained in their “home”
state until removed to Canada by Mrs. Gamble in July 1997.

[61] I conclude, on the strength of Kinnersley-Turner
(above), that the children’s Texas residency between August,
1996 and July, 1997 is sufficient to declare them
“habitually” resident in Texas. Mrs. Gamble’s assertion that
they are “habitually” resident in Canada given the time they
have resided here since July, 1997 is defeated both by s.
44(3) of the Family Relations Act and the case law cited.


[62] The Convention provides that, notwithstanding any
finding a child must be returned to a home state, if there
is grave risk of harm, then no such order should be made.
Article 13 states:

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.

[63] The phrase “grave risk” was considered by La Forest J.
in Thomson (above). In that case, he emphasized that the
test for “grave risk” is NOT the best interest of the child
test. Rather, the function of the court is to determine
whether or not the Convention applies and, if so, whether
the case falls into any of the exceptions listed. At p. 286,
paragraph (e) he stated:

In brief, although the word “grave” modifies
“risk” and not “harm”, this must be read.4n
conjunction with the clause “or otherwise
place the child in an intolerable
situation”. The use of the word “otherwise”
points inescapably to the conclusion that
the physical or psychological harm
contemplated by the first clause of art.
13(b) is harm to a degree that also amounts
to an intolerable situation.

[64] He then went on to approve the approach taken by
Nourse L.J. in Re: A. (A Minor) (Abduction), [1988] 1 F.L.R.
365 (Eng. C.A.). In Re: A., Nourse L.J. states:

. . . the risk has to be more than an
ordinary risk, or something greater that
would normally be expected on taking a child
away from one parent and passing him to
another. I agree. . .that not only must the
risk be a weighty one, but that it must be
one of substantial, and not trivial,
psychological harm. That, as it seems to me,
is the effect of the words “or otherwise
place the child in an intolerable

[65] La Forest 3. noted that it is only in the rarest of
cases that the effects of “settling in” to the abductor’s
environment (and the psychological effect of being separated
from the abductor) would constitute the level of harm
contemplated by the Convention.

[66] In her article, (above), Silberman refers to the
Australian case of Gsponer v. Johnstone 12 Fam. L. Rep. 755,
766 (Austl. Fam. Ct. Melbourne, December 23, 1988). In that
case, the court considered the question of “grave risk”
versus “best interests of the child”. The court states:

There is no reason why this court should not
assume that once the child is so returned,
the courts in that country are not
appropriately equipped to make suitable
arrangements for the child’s welfare.
Indeed, the entry by Australia into the
Convention with other countries may justify
the assumption that the Australian
government is satisfied to that effect.
Thus, allegations about inappropriate
conduct on the part of the parent in the
requesting state are irrelevant.


[67] There is conflicting evidence as to the nature and
degree of harm these children would face if returned to
Texas. Mrs. Gamble refers to:

1. A police report detailing spousal assault in

2. A restraining order obtained against Mr. Hawke
in 1988;

3. A police report detailing a suicide attempt by
Mr. Hawke;

4. A police report detailing Mr. Hawke’s evasion of
visiting rights;

5. Letters from the children’s doctor in British

6. The 1993 custody evaluator’s report recommending
custody to Mrs. Gamble;

7. Affidavits from Mrs. Gamble, her husband, her
mother-in-law and her mother setting out various
conversations with Mr. Hawke, threats made by
him and living conditions in Texas;

8. The judgment of Errico J. of August 1, 1995
concluding the children would suffer serious
harm based on the evidence of the father’s abuse
and mental instability.

9. Report of a Texas Behavioral Consultant.

[68] Mrs. Gamble (and her Texas attorney) also allege
that risk will occur because Texas law precludes her from
adducing evidence of (mis)conduct by Mr. Hawke that occurred
prior to the divorce decree. This concern was also expressed
by Errico J.

[69] Mr. Hawke provided a 1997 report and recommendations
of a custody evaluator, familiar with all the pre-divorce
matters, that concluded Mrs. Gamble’s concerns were
unfounded. That report recommended custody to Mr. Hawke. He
also provided affidavit evidence in support of his

[70] Much of the material presented by Mrs. Gamble on
this issue goes primarily to the “best interests” of the
children, a consideration I am not entitled to assess under
a Hague Convention application. The claims of domestic
violence and mental instability obviously go to the “risk”
issue but considering the material in response, I am unable
to accept that a “grave risk of harm. …” pursuant to
article 13 has been established.


[71] Article 13 contains a provision that entitles the
court to refuse an order to return a child, if the court
finds the child objects to being returned AND (my emphasis)
“has attained an age and degree of maturity at which it is
appropriate to take account of its views”.

[72] No age is provided in the Convention, nor in the
Family Relations Act, though the latter in s. 24(1) (b)
provides that the child’s views may be considered “if
appropriate”. Under the Texas Family Code, S. 153.008, a
child 12 years of age or older may choose the managing
conservator, subject to the approval of the court.

[73] In Thorne v. Dryden-Hall (1995), 18 R.F.L. (4th) 15
(B.C.S.C.), children aged 8 and 10 were permitted to express
their views. The trial judge determined that the 10 year old
was of a sufficient age that her views ought to be
considered. He determined however, that the children’s
“views” were so influenced by the mother that he could not
rely upon them.


[74] The children at bar are 10 and 7 years of age.
Perhaps the 10 year old is of sufficient maturity to express
a view but I fear I have no training that would permit me to
gauge whether the view expressed would truly be his own. I
declined an invitation to conduct interviews with the

[75] The best forum to ascertain the wishes of the
children is in a custody trial where experts capable of
assessing these things are called to give evidence and have
that evidence tested by cross-examination. Other than claims
by Mr. and Mrs. Gamble, and her mother, there presently is
no independent, reliable evidence before me concerning the
wishes of the children


(76) I conclude therefore, that the infant children of
the marriage, namely Michael Aaron Hawke, born June 7, 1988
and Kimberly Nicole Hawke, born October 24, 1990, have been
wrongfully removed to and are being wrongfully retained in
the jurisdiction of this Honourable Court.

[77] I am prepared to make further orders consequent upon
that finding, but prefer that the parties develop a form of
order appropriate to that determination. Various forms of
relief were sought in the petition but no submissions made
respecting the form of order.

[78] If no agreement can be reached on the form of order,
and particularly the time and method of delivery of the
children to Texas and to whom they should be delivered, then
the parties have liberty to apply.

/s/ Ronald A. McKinnon
R.A. McKinnon, J.


28 May 1999

Comment by Wm. M. Hilton

This case is a good, basic case on the proper operation of
The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The

My one “grumble” would be in the BC Court’s statement at
[62] where the Court held that if there was a finding under
Art. 13, then no order for return “. . . should be made . .
.” A finding under Art. 13 does not prevent the court from
returning the child, a finding under Art. 13 only changes
the return from mandatory to discretionary and even then the
bias would be to return the child absent a strong showing to
the contra.

Overall the requested forum points out that the evidence
that covers the disputed issues is in Texas, the requesting

The BC Court, in a comprehensive but brief discussion, goes
over the elements of a request for return under The
Convention and the defenses to that return. In doing so the
BC Court touches on each of the following:

1. Habitual Residence of the children and factors that
are to be considered.

2. Rights of Custody over the children and whose law is
to be followed.

3. Art. 13(b) and what is required under this article.

4. Art. 13, 3rd paragraph, the “age and maturity”

Habitual Residence (H/R)

In discussing H/R the BC Court holds that it is a question
of fact and then cites the facts that can be used to
determine if there had been a shift of H/R from the
requesting to the requested forum before the wrongful act
took place.

The BC Court, despite the finding that it is a “factual”
issue, does note that with young children the intent of
their parents may be critical.

The BC Court discusses two ways H/R can shift: By actual
intent of all parties concerned in leaving Forum A and
traveling to Forum B and secondly by the passage of time in
Forum B coupled with acts that one would objectively say
were proof of a change of H/R.

The BC Court then lists the factors in this case and comes
to the conclusion that H/R did not change before the
wrongful act.

Rights of Custody

The BC Court does an analysis of various decisions that have
discussed rights of custody and, rightly so, comes to the
conclusion that one must look to the law of the requested
forum (here Texas) for a determination of whether or not
there was a right of custody and who had that right.

Grave Risk — Art. 13(b)

Allegations of parental unfitness were made, not an unusual
set of facts. The BC Court held that while these may have
reflected upon the parenting ability of the requesting
parent, they were issues that were best resolved by the
court of the requesting state since that is where the
evidence of these allegations could be found.

The BC Court made it very clear that, under The Convention,
the BC Court could not inquire into the custody and/or
visitation aspects of this case.

The BC Court holds that the burden of proof is substantial
and more than “ordinary” evidence would be required. In
this regard see 42 U.S.C. 11603(e)(2)(A) (clear and
convincing evidence required).

Age and Maturity

In this case the children were 10 and 7. I believe that the
BC Court’s finding on this is to the point:

[74] The children at bar are 10 and 7 years
of age. Perhaps the 10 year old is of
sufficient maturity to express a view but I
fear I have no training that would permit me
to gauge whether the view expressed would
truly be his own. I declined an invitation
to conduct interviews with the children.

For a similar view see Tahan v Duquette (N.J.Super. 1992)
259 N.J. Super. 328 [613 A.2d 486] where the court stated:

“Similarly, see Article 13 of the Convention
excuses the duty to return if a child of
appropriate age and maturity objects. This
standard simply does not apply to a
nine-year old child.”