CANADA – HUTCHINSON – 1989

Court: Supreme Court of Ontario
Number: Court File No. 527-89

Applicant: Donald Caroll Hutchison 1

and

Respondent: Kandy Bissonette Hutchison 2

Date: 25 Apr 1989

REASONS FOR JUDGMENT

THE HONOURABLE STANTON HOGG, DCJ.

The applicant wife applies for custody and interim custody of
Christopher Bissonette and Donald Kyle Hutchison.

Christopher Bissonette is the applicant’s child of a former
marriage. Donald Kyle Hutchison born some four years later is a
child of her current marriage.

The respondent, applicant by cross-application, applied for an
order pursuant to section 47 of the Children’s Law Reform Act,
returning the child Donald to him.

Section 47 of the Children’s Reform Act brings into effect the
“Hague Convention”, which is designed to deal with international
Child Abduction.

Both Ontario and Tennessee are signatories to this Convention.

Section 47(9) states:

“Where there is a conflict between this section and any other
enactment, this section prevails.”.

In matter of this nature the Convention should be considered by
the Court before dealing with applications for custody brought in
this jurisdiction.

To avoid confusion I will refer to “the husband” and to “the wife”
rather than “the respondent and applicant by cross-application”.

The husband and wife are American citizens and the wife also has
Canadian citizenship and after bringing the child to Canada she
applied for an obtained Canadian citizenship for the child.
——————–
1. Respondent in the trial court. “Applicant” means Applicant under the
Hague Convention.

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

I find the child was habitually resident in Tennessee before
removal. Both parents had custody of the child.

The wife separated from the husband, took the child to her
sister’s for a few days, and then came to Canada. The husband
commenced legal action in the State of Tennessee and the wife
applied to this Court for custody of the child. As I have stated
th+ application pursuant to the Hague Convention must be dealt
with first.

The wife’s counsel argues that the husband did not exercise
custody at the time the child was taken by the wife to her sister.

Article 3 of the Convention states:

The removal or the retention of a child is to be considered
wrongful where:

“(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.”

I find that the exercise of custody by the husband continued after
the wife took the child to her sister’s and in any event would
have been so exercised but for the removal or retention.

I do not accept the proposition that if one, spouse leaves the
marital home, takes a child to her mothers or to another relative,
the other spouse immediately ceases to exercise custody.

The wife’s counsel argues pursuant to Article 13 of the Convention
that the requested State is not bound to order the return of the
child if

“(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.”

lt is argued that because the child will be separated from the
other child that the wife brought into the marriage, I should find
pursuant to Article 13 that the child should not be returned.

There is no evidence before me that would cause me to come to the
conclusion that there is such grave risk to the child to not order
the return of the child.

After the wife brought the child to Ontario, the husband applied
for and obtained in Tennessee, a Divorce and an Order for Custody
of the child. The wife made efforts to obtain a Tennessee lawyer
but did not do so before the Court issued its Order which it did
within a legal time although the husband and his lawyer moved
swiftly on the matter.

The wife now has obtained a lawyer in Tennessee to assist her
concerning the custody of the child.

lt would be improper and indeed impertinent of me to suggest what
action a court in Tennessee will take. I have faith that the Court
in Tennessee will come to a right and proper decision in any
matter that is brought before it. I can understand the speed with
which the husband acted as I can understand the actions of the
wife. Both parties being upset as most are when a marriage is
breaking up.

I hope and trust that the question of custody will be opened up
and reviewed by the Court and that both parties will have an
opportunity to have the matter dealt with on the merits.

In my view the situation in this case is similar to that of
Parsons v. Styger, a decision of my brother Judge Shapiro, and I
note that in that case the wife appealed to the Court of Appeal
which upheld the trial Judge’s decision.

In summary I find that prior to the removal, the child was
habitually present in Tennessee and in joint custody of the
husband and wife. I find that the removal of the child was
wrongful and came within the ambit of the “Hague Convention on
Civil Aspects of International Child Abduction.” I find that there
is no evidence before me to come to the conclusion that there
would be physical or psychological harm in the child being
returned.

The Convention states that there should be a prompt return of the
child.

lt is not my function to deal with the merits of the custody. That
is for the Court of the State where the child was habitually
resident before he was removed.

I therefore order that the child be returned to the father in the
State of Tennessee within ten days from this date, and that the
wife, if she so wishes, may take the child to Tennessee. In the
event that she does not do so or does not wish to do so, the
husband may take possession of the child in the Province of
Ontario.

Under all the circumstances I do not think this is a proper case
to award costs.

/s/ Stanton Hogg
________________________________
The Honourable Stanton Hogg, DCJ

Bracebridge: April 25th, 1989

Counsel:

For Applicant: For Respondent:

Michael Fitton, Q.C. Michael Anne MacDonald
Barristor and Solictor Barrister and Solicitor
Box 1109 Box 990
5 Chancery Lane 6 Dominion St.
Bracebridge, ONT P0B 1C0 Bracebridge, ONT P0B 1C0
(705) 645-5211 (705) 645)-2286
FAX (805) 645-8021 FAX (705) 645-5541

Robert Simpson
Attorney At Law
531 S. Gay Street
Knoxville, TN 37902
(615) 637-3900