Court: Ontario Provincial Court – Family Division
Number: Orangeville Registry No. 101/88; Ontario Judgments:
[1989] O.J. No. 353
Applicant: Laurie Anne Hill 1
and
Respondent: Murray Hill 2
Date: 08 Feb 1989 (Hearing), 15 Feb 1989 (Judgment)
IN THE MATTER OF THE CHILDREN’S LAW REFORM ACT, R.S.O. 1980 C. 68,
as amended.
FISHER, Provincial Court Judge: The principal issue is whether
the court has any jurisdiction to decide who shall have custody of
the infant Matthew Hill, born February 24th, 1987. Judgment was
rendered on December 21st, 1988 on the day of the hearing. These
are my expanded reasons.
THE FACTS
The Respondent father was born and is now residing in Ontario.
The Applicant mother was born and raised in Oregon. The child was
born in Orangeville, Ontario where the parties resided for five
months after his birth until the summer of 1987 when the family
moved to St. Clair Shores, Michigan, U.S.A.
In August 1988, the father went to Portland, Oregon and obtained
employment. In early September 1988, the father, mother and child
moved to the residence of the maternal grandparents until they
obtained their own residence in Oregon. From affidavit and vive
voce evidence, it is clear that the parties intended to remain in
Oregon at least until Matthew was five years old when the father
indicated they may return to Michigan where they owned a house.
In 1988, the house was leased. The child’s medical records were
transferred to Oregon and the mother enrolled in community college
in Portland.
On November 12th, 1988, there was an argument. The father left
the house and took the wife’s car. The maternal grandmother
collected the mother and child and took them to her home.
On November 14th, the father removed the child surreptitiously
from the maternal grandparent’s home and at 11:30 p.m. that
evening called the mother’s brother saying that he had crossed the
Canadian border.
——————–
1. Respondent in the trial court. “Applicant” means Applicant under the
Hague Convention.
2. Applicant in the trial court. See Note 1.
The father arrived in Orangeville about the 19th of November and
on the 21st the father obtained an ex parte interim order for
custody from this court. It was awarded on the basis of certain
affidavit evidence in order to fix custody pending a hearing
between the parties although the court raised the question of
jurisdiction at that time.
Meanwhile in Oregon on November 28th, 1988, the mother obtained an
ex parte order for custody of the child and restraining order in
the circuit court of the State of Oregon from Multnomah County.
On December 14th the father returned to court. Service on the
mother had been ordered by this court by mail to the mother in
Oregon and to a friend near Orangeville. No one appeared for the
mother and after the father obtained an uncontested custody order
in the morning, the father called the mother in Oregon to tell her
what had happened. In the afternoon, counsel for both the mother
and father attended in court. The final custody order was stayed
and the original interim order of custody to the father was
continued. The matter was adjourned to December 21st for argument
by both of the parties.
The official guardian was not notified in time to attend the
hearing on December 21st and the request of the father to adjourn
to allow child representation was refused as the mother and the
maternal grandmother had arrived from Oregon and any delay would
prejudice them. Also, the child was too young to instruct
counsel.
I understood from the mother’s counsel that a representative from
he Attorney General who is knowledgeable with respect to the Hague
Convention might be available by invitation and at my request she
was present.
THE LAW
The law applicable is the Children’s Law Reform Act, R.S.O 1980,
C. 68 as amended and the Convention on the Civil Aspect of
International Child Abduction (better known as the Hague
Convention). The Hague Convention entered into force in Ontario
as of December 1st 1983 and in all of the United States on July
1st, 1988.
The mother did not directly contact the Attorney General pursuant
to the Act and Convention, but retained private counsel.
A Charter argument was raised but did not proceed. When we
examine the relevant law, we find that it is the international
community’s attempt to prevent a parent from wrongfully taking a
child from the jurisdiction where the parents habitually reside.
No custody agreement had been made at the time of the final
separation of the parents so that the parents had joint custody of
Matthew either under Ontario law or Oregon law (see Oregon Revised
Statutes, 109.030).
It is of interest to note that in Canada if a person tries to take
custody of a child from someone having custody, then Section 282
or Section 283(1) and (2) may label such activity as a criminal
offence.
The taking of the child by the mother to the maternal grandparents
may have been unlawful but the taking of the child by the father
to Ontario clearly creates a problem. Two wrongs don’t make a
right. The obvious remedy of the father was to seek the
assistance of the oregon courts where all of the parties resided.
Instead he whisked the child off to Ontario, thus triggering the
operation of the Children’s Law Reform Act and the Hague
Convention.
The operative section to determine which court has jurisdiction is
Section 22:
22(1) A court shall only exercise its jurisdiction to make
an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the
commencement of the application for the order;
(b) although the child is not habitually resident in
Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the
commencement of the application for the order,
(ii) that substantial evidence concerning the best interests
of the child is available in Ontario.
(iii) that no application for custody of or access to the
child is pending before an extra-provincial tribunal in
another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of
or access to the child has been recognized by a court in
Ontario,
(v) that, on the balance of convenience, it is appropriate
for jurisdiction to be exercised in Ontario.
(2) A child is habitually resident in the place where he
resided,
(a) with both parents;
(b) where the parents are living separate and apart, with
one parent under a separation agreement or with the consent,
implied consent or acquiescence of the other or under a court
order; or
(c) with a person other than a parent on a permanent basis
for a significant period of time, whichever last occurred.
(3) The removal or withholding of a child without the
consent of the person having 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 who the child removed or withheld.
There are three possible jurisdictions. The first is Oregon. All
parties were present and living there at the final separation and
at that time the parents appeared to have decided to stay there
indefinitely. Secondly, Ontario is a possibility as the child was
born there, is a Canadian citizen as his father, has lived in
Ontario for the first five months of his life and is present in
Ontario now. Thirdly, there is Michigan where the parties own a
home and have recently lived.
Jurisdiction is where the child is habitually resident. That
phrase is defined in the Act. My reading of the definition and
applying it to this case is that the proper jurisdiction is the
residence where the child last resided with both parents before
the father acted unilaterally. That clearly is Oregon. It may be
of interest to examine the professed intention of the parents.
Here the mother clearly wished to stay in Oregon near her family.
The father in hindsight, may express other intentions but his
actions were of a person who intended to remain indefinitely in
Oregon, at least until the child was five years old then return to
Michigan (not Ontario).
There is, however, a second way of looking at the matter. Even if
Oregon is the habitual residence of the child, as I have found,
the court can sill exercise its jurisdiction under Section 22(b)
of the Act. There are six conditions set out in Section 22(1)(b)
which because of the conjunctive use of the word “and” all must be
met before the court can exercise jurisdiction.
The child is in Ontario under Section 22(1)(b)(i). Evidence is
available in both Ontario and Oregon under (ii). The child has a
real and substantial connection with Ontario under (v). However,
under (vi), on the balance of convenience, it is not appropriate
for jurisdiction to be exercised in Ontario. There is more
substantive evidence concerning the best interests of the child in
Oregon. The breakup occurred in Oregon where the witnesses to the
final hours of the relationship lived. There were allegations of
assault alleged by the mother and inappropriate behaviour alleged
by both parent. The brother of the mother appears to be an ally
of both the mother and father and he resides in Oregon. Also, an
application for custody is pending before the Oregon Court where
the child is habitually resident.
There is a third possibility. Even though Section 22 is not
applicable to assist the father as I have found, the court can
still make an order under Section 23 which when read with Section
24, looks at what is in the best interests of the child:
23. Notwithstanding sections 22 and 42, a court may exercise
its jurisdiction to make or to vary an order in respect of
the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the
balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally
entitled to custody of the child,
(ii) the child is returned to the custody of the person
legally entitled to custody of the child, or
(iii) the child is removed from Ontario.
24. (1) The merits of an application under this Part in
respect of custody of or access to a child shall be
determined on the basis of the best interests of the child.
Here the child is present in Ontario but there is no real evidence
that the child would suffer serious harm if the child is returned
to the mother or is removed from Ontario. In fact, the child has
certain health problems that make the conduct of the father in
traveling such a long distance with the child not in the child’s
best interests. Nor was the removal of the child from contact
with the mother in the child’s best interests.
Upon reading the articles of the Hague Convention, I am satisfied
that the facts of this case are exactly what the Convention is
designed to prevent; that is, a wrongful removal of the child.
Further, the Convention allows me to return the child to the State
of Oregon, the proper jurisdiction pending a hearing on the
merits.
Under Section 41 of the Children’s Law Reform Act, I am satisfied
that the child has been wrongfully removed to Ontario and I am not
exercising jurisdiction under any other sections of the Act. I
therefore order the child to be delivered forthwith to the mother
with proper directions to the police for in implementing this
order and I am ordering costs to the mother.
With respect to costs it was agreed that the would be fixed by the
court.
Counsel for the mother submitted a costs brief and an account of
fees and disbursements in the amount of $8,970.17. Neither parent
is wealthy and the expenditures of legal fees is important in the
strategy of parents seeking custody of their children. Therefore
the imposition of costs should be considered carefully.
In many simple custody matters, costs are not awarded on the basis
that a parent should not be penalized for seeking custody and
wanting to parent a loved one. The circumstances here are more
complex. The conduct of the father has forced the mother to large
expenditures to obtain the return of the child. The principle
that makes sense to me is that she should be put back to the
position she was in prior to the wrongful taking of the child from
Oregon. Therefore costs should be awarded, not on a party and
party basis but on a solicitor client basis. Hopefully, such an
award will also act as a deterrent to others. I will not allow
the bill of Paul Molsen, Oregon counsel for the mother as those
costs are properly the subject matter of the Oregon litigation.
I would allow along with the $400 already agreed on, disbursements
in the amount of $470.17 making total disbursements of $870.17.
There remains the question of the balance of the account or time
spent in court, including a junior counsel.
I raised the issue that if the Attorney General had employed
counsel in this matter, that costs would be on a Legal Aid scale
(see S. 547(2)) but I do not think the mother should be forced to
go that route. She has the right to employ her own counsel. Her
counsel informed me that there was a question raised here as to
whether the Attorney General would have undertaken the matter for
the mother.
I would not allow a bonus of $1500.00 charged by counsel for being
successful in the application. While the Provincial Court Rules
may be a guide, I do not think the mother’s costs should be less
because she is in a Provincial Court. The same amount of work has
to be done no matter what court. Further, the stakes are high.
It is hard to imagine a more important issue than whether the
child should be returned to the mother or remain with the father.
Also to be taken into consideration is that both counsel for this
mother had to drop everything else they were doing and respond
promptly to the father’s application for custody. Counsel has
also provided a case book of law and authorities and a great deal
of material in support of the mother’s claim.
Taking all these matters into consideration, I assess the bill at
$4,500 plus $870.17 disbursements, making a total of $5,370.17
payable forthwith.
Fisher, Provincial Court Judge.
Counsel:
Applicant: Respondent
Nancy M. Mossip David S. Thaites