Canada – KELLEY – 1988

Canada – KELLEY – 1988 (return denied on appeal and reconsideration of 13b by trial court) JOHNSON v FOWLER-WINNING, Mother takes child to England. The Mother admits to a wrongful removal. Child is ordered returned to Canada, but in the mean time the mother makes a personal appeal to the Court of Appeal. The Court allowed her appeal. The Court of appeal returned the case to trial court to consider an article 13b defense. The Court found that the defense order 13b “has been established” and did not order the return of the child to Canada. (See Mr. Hiltons comments)


Calgary Civil Sittings

August 31, 1988 and September 2, 1988

ORDERS ACT (“The Act”) R.S.A. 1980, c. E-17; and IN THE MATTER OF


Donald Leon (Ms.) Pat Virtue, J. KERANS, J.A
David Younggren HETHERINGTON, J.A.

– and –

Michele Denise (Ms.) Terry Hagel


(Ms.) S. E. Cunningham
(for Ms. B. Bauer, the Alberta
Central Authority, Intervenor)

APPEAL #10391




The appellant applied to the Court of Queen’s Bench of
Alberta for enforcement of an order of the Superior Court of
California giving him custody of two children born to him and the
respondent. This application was made pursuant to s. 2(1) of the
Extra-Provincial Enforcement of Custody Orders Act. The respondent
opposed this application on the ground that the children would
suffer serious harm if they were placed in the custody of the
appellant. She asked that the order of the California court be
varied pursuant to s. 4 of the Act.

The twin children were born on September 10, 1986, in
Hayward, California, where the parents then lived together. They
separated on May 31, 1987. On June 26, an interim joint custody
order was made and the matter was set for further hearing on
September 24. A few days before that hearing, the respondent
mother left California with the twins. The appellant father did
not locate her again until May of this year. She had come to

Faced with conflicting affidavit evidence with respect to the
question of whether the children would suffer serious harm if they
were placed in the custody of the appellant, Mr. Justice Virtue
ordered the trial of the following issue:

“. . . to determine if the children would suffer serious
harm if the Order granted by the Superior court of
California, County of Alameda, dated September 28, 1987,
were enforced by this Court.”

Before Mr. Justice Virtue the appellant sought enforcement of
the order of the Superior Court of California made on the 24th of
September, 1987, which gave custody of the children in question to
him. Before us, however, counsel for the appellant conceded that
the appellant did not seek the return of the children to him. He
wished the children returned to California so that the Superior
Court of California could hold the hearing with respect to custody
and access which could not be held because the respondent left the
jurisdiction with the children.

A brief summary of the proceedings in California is necessary
for an understanding of his position. On June 5, 1987, the
Superior Court of California granted appellant a temporary order
which included a direction that he and the respondent attend
mediation with Family Court Services. The Mediation Report

— That an order be made awarding the parties joint
custody with temporary primary physical custody to the

— That the children spend increasing amounts of time
with the appellant.

— A schedule for visits by the children with the

— That the children be restricted to Alameda, Santa
Clara, San Francisco, Contra Costa and Solano counties.

— That if the children were found outside of the
counties described above, their sole custody should
revert to the other parent.

— That no passports be issued for the children.

— That copies of the order be sent to the State

— That the matter be reviewed in three months.

On June 26, 1987. a judge of the Superior Court of California
made an order incorporating all of the recommendations contained
in the Mediation Report. Both the appellant and the respondent
consented to these terms and requested that they be included in
the order. The matter was continued to July 29, 1987, for
consideration of support and fees, and to September 24, 1987, for
the review recommended in the Mediation Report.

The respondent then left California with the children. On the
24th of September, 1987, a judge of the Superior Court of
California granted sole legal and physical custody of the children
to the appellant.

The appellant in his original application asked Queen’s Bench
to enforce the latest California Order and relied upon s.2(1) of
the Extra-Provincial Enforcement of Custody Orders Act, R.S.A.
1980 c.E-17, which provides:

2(1) A court, on application by originating notice,
shall enforce, and may make any orders it considers
necessary to give effect to, a custody order as if the
custody order had been made by the court unless it is
satisfied on evidence adduced that the child affected by
that custody order did not, at the time the custody
order was made, have a real and substantial connection
with the province, state or country in which the custody
order was made.

It is clear on the evidence, and counsel for the respondent
concedes, that the children have a real and substantial connection
with California and no such connection with Alberta and that was
the situation in September 1987. Without more, the California
Order should be enforced. The learned Queen’s Bench judge held
that there was more. At the request of the respondent, he invoked
s.4 of that Act, which provides:

4 Notwithstanding anything in this Act, when a court
is satisfied that a child would suffer serious harm if
the child remained in or was restored to the custody of
the person named in a custody order, the court may at
any time vary the custody order or make any other order
for the custody of the child that it considers

We are told that he held that there was enough suspicion of
serious harm to warrant a full hearing on the issue. The appellant
says that this was a reviewable error in the exercise of his
admitted discretion because the material before him did not even
come close to justifying this disposition. The respondent replies
that the material not only warranted such an order, it warranted
also a final determination of serious harm and a decision that
Alberta must take up jurisdiction in this matter for the welfare
of the children.

In the course of the hearing before us, it became obvious
that the main issue between the parties in this case is as to
where a full custody hearing should be held. It seems to be common
ground that, in the circumstances of the case, one should be held

That issue turns on s.3, not s.4. S. 3, with s.2,
establishes that custody shall be settled in a place where the
children have a real and substantial connection. Alberta only
accepts jurisdiction to deal with custody if the situation
described in s. 3 is present. That section provides:

3(1) A court may at any time by order vary a custody
order as if the custody order had been made by the court
if it is satisfied

(a) that the child affected by the custody
order does not, at the time the application
for variation is made, have a real and
substantial connection with the province,
state or country in which the custody order
was made or was last enforced, and

(b) that the child has a real and substantial
connection with Alberta or all the parties
affected by the custody order are resident in

(2) A person is not resident in Alberta for the purposes
of subsection (l)(b) when that person is within Alberta
solely for the purpose of making or opposing an
application under this Act.

S. 3, then, tells an Alberta Court when to take jurisdiction.
That is not the office of s. 4. S. 4 authorizes an Alberta Court,
in a case where another court should exercise jurisdiction, to
make an appropriate order when a simple, unconditional order
enforcing the original custody order is not appropriate.

This view of the powers in s. 4 is in harmony with the
purpose and scheme of the Act and with the decided cases in this
jurisdiction. Moreover, that construction leads to a quick
resolution of the harm issue in this case, albeit to an order very
different from that made by the learned Queen’s Bench judge.

Statutes must be given an interpretation consistent with the
purpose of the Act. See Calgary Regional Planning Commission v
Alberta Planning Board et al (1986), 46 Alta. L.R. (2nd) 245 at
250, where Kerans, J.A., speaking for the Court, said

We should try to make statutes work by determining the
object or scheme of the Act and then by giving the words
the meaning which best advances that object or scheme,
provided only that the actual words under review can
reasonably bear that interpretation.

The manifest purpose of the Act is to apply the real and
substantial connection test to determine where custody shall be
decided. If, as the respondent contends, s. 4 charges a court to
assess the long term effect of a custody order as though that
order is not subject to further review from time to time, where
the children have a real and substantial connection then the
“harm” hearing becomes indistinguishable from a “fitness” hearing,
and the court is exercising a jurisdiction, in fact if not in
name, with regard to the custody issue. This, in our view, would
be a subversion of the purpose of the Act.

This issue was perhaps not so important in the past. In this
age, however, a major problem has arisen in Canada, North America
and Europe. A parent in the middle of a custody dispute who has
momentary physical care and control of a child, whether by
accident, abduction, operation of law or otherwise, will often
flee the jurisdiction where both parents were, and attempt to hide
from the other parent. This phenomenon has been addressed by the
United Nations, resulting in the Convention on the Civil Aspects
of International Child Abduction.

This Court, in Read v Read, [1982] 2 W.W.R. 25, held that the
purpose of the Act was to require those who have fled the
jurisdiction of another court to return to that jurisdiction. That
is the overriding consideration that should govern our approach.

In Beairsto v Beairsto, (1982) 65 A.R. 281 at 282, Kerans,
J.A. for the Court said:

This Court in Read v Read said that Queen’s Bench should
not give aid and comfort to those who would breach
custody orders by exercising its admitted jurisdiction,
a jurisdiction which arises whenever a child is actually
in Alberta, in a case where the child is here as a
result of a transportation which was unlawful under a
valid and existing custody order, where adequate relief
is available elsewhere, and where the child otherwise
has no substantial connection with Alberta.

The Court then spoke of the need for “. . . a substantial
risk of serious and immediate physical harm. . .” (at 282) as a
condition for a refusal to return the child to the person with
custody, although this was said in the context where the child was
clearly to be taken back by the custodian to the jurisdiction of
the other court and the only risk was of harm during the return
voyage. That approach is consistent only with the interpretation
of s. 4 now affirmed, and is merely an example of s. 4 at work.

We take comfort in the fact that, since the decision in Read
v Read, Alberta has become a signatory to the Convention on the
Civil Aspects of International Child Abduction, whose express
purpose is the prompt return of abducted children, not merely to
the custodian, but “to the state of their habitual residence”.
Article 13 of the Convention provides that a court of the state to
which the child has been taken may refuse such an order only if
satisfied that the return to the other state would raise a “grave
risk” of “physical or psychological harm or otherwise place the
child in an intolerable situation”. Alberta enacted the
International Child Abduction Act, S.A. 1986, c.I-6.5, which
adopts the Convention and provides in s. 7:

If there is a conflict between this Act and any
enactment, this Act prevails.

In our view, the interpretation of s. 4 offered for the
respondent would produce a conflict with the scheme suggested in
the ” Convention. The result of a harm finding under s. 4 should
not be to permit the Court to assert original jurisdiction in
custody. We adopt the views expressed by the Supreme Court of
California in Ferreira v Ferreira (Cal. 1973) 9 Cal.3d 824, 829
[109 Cal.Rptr. 80, 83; 512 P.2d 304, 307]:

If faced with charges supported by competent proof, as
distinguished from conclusory assertions by the party
seeking modification of an existing decree, that the
return of the child to the non-resident parent will
jeopardize or serously endanger the child’s health or
safety, . . . the court should inquire into these
charges and make whatever temporary custody order it
finds necessary to protect the child. But even in cases
in which the court grants temporary custody to the
resident parent, it should not ordinarily resolve the
merits of the controversy as to permanent custody; it
may, on the motion of the non-resident or on its own
motion, stay those proceedings to await the
determination of that matter by the court of the
non-resident parent’s domicile.

We repeat that the review for serious harm authorized by s. 4
is a review of the harm that might come by unconditional
enforcement of the original custody order. It asks questions like
what harm might come during any interval before another court can
act. This, however, is not the only issue. The circumstances of
enforcement vary greatly, and thus so also do the harm issues.

One issue that can arise might relate to perceived inadequacy
in the operation of the law in the other jurisdiction that might
create for the child an “intolerable situation”. Lack of
confidence in the other state is expressly dealt with in Article
20 of the Convention, but it is said for the respondent that the
material before Queen’s Bench raised a question about the
California courts, and that the learned chambers judge intended
that issue to be looked into at the hearing he ordered.

In an affidavit sworn to by the respondent on the 24th of
July, 1988, she stated

“2. THAT I fled from the State of California . . . and
because I could not get the authorities to help me to
prevent these things or stop the ongoing abuse.”

She did not indicate in this paragraph or elsewhere that she
had ever sought help from the courts in California.

In an affidavit sworn to on the same date the respondent’s
mother stated

“8. THAT the situation was deteriorating and the girls
were getting worse and worse and I called my daughter’s
attorney in late August to see what could be done. I was
advised that nothing would be done prior to the late
September 1987 court date. I contacted the police and
was told that short of ‘fatal’ type physical abuse or
hospitalization of the children, they could do nothing.
. . . .”

It does not seem to us that the refusal of the respondent’s
attorney to do anything prior to a court hearing scheduled to take
place within a month can be taken as an indication that the
California courts have failed or would fail to deal effectively
with the custody of the children in question. We reject this
argument as totally unsupported on the material before us; we also
doubt that the learned Queen’s Bench judge gave it credence.

We now turn to the disposition required here. The question
posed by the parties to Queen’s Bench was whether serious harm
might come to the children in this case by enforcement of the
custody order immediately and without condition. The question now
posed, and the only question now posed, is how to get the children
safely back to California. We do not think that there is any point
to more delay in Alberta. We therefore allow the appeal, and make
the orders that follow in substitution of the order of the learned
Queen’s Bench judge.

In summary, this Court finds that the children had real and
substantial connection with the State of California, in the United
States of America and that the Superior Court of California,
County of Alameda has jurisdiction to grant orders regarding
custody and access to the children. We likewise find that they
were removed from the State of California contrary to the express
prohibition of the Superior Court of California. S. 3 of the Act
was not invoked, nor were the grounds for Alberta to take
jurisdiction made out. We conclude that the children must be
returned to the jurisdiction of the Superior Court of California,
County of Alameda for determination of the on-going custody and
access dispute.

With regard to the concern about the allegation of risk of
harm to the children should this Court order that the children be
placed immediately in the custody of the applicant father, we need
not address that concern in view of the concession by the father.
While he seeks the return of the children to California where the
issue of custody and access is to be resolved, he no longer asks
that the children be placed in his care and custody immediately
and for the purpose of transporting them to California. Thus the
issue of their safety en route to California in his hands does not
arise. It should be noted that this concession was not before the
learned chambers judge. Only the choice of another means of
returning the children to California needs to be addressed.

We commend and approve the intervention of the Central
Authority of Alberta and her counsel, who on very short notice and
without formal application attended this hearing. In all the
circumstances of this case we invite her to supervise and assist
in the safe return of the children to the jurisdiction of the
Superior Court of California, County of Alameda so soon as may be
practicable, but in any event no later than 15 days from this
date, unless otherwise ordered. We expressly enjoin and direct the
respondent, Michele Denise Williams to ensure the safe return of
the subject children to the State of California and to the
jurisdiction of the Superior Court of California, County of
Alameda and to ensure further that they remain safely in that
jurisdiction until the matter of the custody and access to those
children is resolved by that Court. We also enjoin Michele Denise
Williams to accept the supervision and assistance of the Central
Authorities of Alberta and California and/or their respective
designees regarding the safe return of the children in accordance
with this Order.

In the event that it becomes necessary to make application to
this Court to clarify or otherwise give effect to this Order,
either party may approach a single member of this Court.