K.G. v. C.L.G. [Canada 2002][2002] S.J. No. 326; 2002 SKQB 177
13 International Abduction [USA 2002]
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IN THE MATTER OF enforcing a custody order of an
extra-provincial tribunal pursuant to the Children’s Law
Act, 1997
AND IN THE MATTER OF the International Child Abduction Act,
1996
Between
K.G., applicant
and
C.L.G., respondent
[2002] S.J. No. 326
2002 SKQB 177
Q.B.F.L.D. No. 87 of 2002 J.C.R.
Saskatchewan Court of Queen’s Bench
(Family Law Division)
Judicial Centre of Regina
McIntyre J.
April 29, 2002.
(40 paras.)
Counsel:
Gerald B. Heinrichs, for the applicant K.G.
Helen G. Semaganis, for the respondent C.L.G.
001 McINTYRE J.:- The applicant seeks the following
relief:
1. An order pursuant to Part III of The Children’s
Law Act, 1998 [sic] registering and enforcing a custody
order of a[n] extra-provincial tribunal regarding custody of
the following children: E.S.M. born March 15, 1996 J.E.G.
born December 11, 1998;
2. Insofar as necessary, an order pursuant to The
International Child Abduction Act, 1996, directing an
appropriate remedy in favour of the Applicant as against the
Respondent in regard to the wrongful taking and abduction of
the said children from the state of Montana, USA on or about
February 6, 2002;
3. Such order as may be necessary to ensure lawful,
prompt, and peaceful return of the children to their father
and their home in the State of Montana including but not
limited to a direction and declaration to police and law
enforcement officials that they assist the custodial father;
4. Costs including solicitor-client and
extraordinary costs.
002 The applicant is a member of the Chippewa Cree Tribe
resident on the Rocky Boy’s Indian Reservation, Montana,
United States of America (“Rocky Boy’s”). The respondent is
a member of the Gordon’s First Nation, in the Province of
Saskatchewan, and a registered status Indian pursuant to s.
6 of the Indian Act, R.S.C. 1985, c. I-5. The parties were
married September 9, 1997 on Rocky Boy’s and resided there
together until January, 2001. They have two children, E.S.M.
and J.E.G. The respondent acknowledges that prior to
February 7, 2002, she and their children were habitually
resident on Rocky Boy’s, Montana. The children are members
of the Chippewa Cree Tribe. They are also registered status
Indians under the Indian Act.
003 The parties separated in January, 2001. The
respondent left the marital home and took up temporary
residence in Havre, Montana. The respondent says she was
told she could not stay in the marital home on the
reservation on Rocky Boy’s because she was not a tribal
member. The boys remained with their father on Rocky Boy’s.
On February 1, 2001, the applicant filed a petition for
divorce in the Tribal Court of the Chippewa Cree Tribe,
Rocky Boy’s Reservation, Montana (the “Tribal Court”). On
that day he obtained what would appear to be an ex parte
order granting him temporary custody of the boys. A hearing
was set for February 9, 2001. It appears the hearing was
ultimately scheduled for February 16. The respondent says
she understood this was to be an application for an interim
order. The hearing appears to have lasted five minutes. The
applicant was late, arriving at the conclusion of the
hearing and says she was not allowed to address the Tribal
Court. A March 13, 2001 order of the Tribal Court issued as
a result of the February 16 hearing indicates that the
applicant was granted full custody of the boys “by default”.
004 The respondent says a hearing with respect to the
petition for divorce was held March 23, 2001. She says she
understood that final custody of the children was to be
determined by the Tribal Court at that time as well as
matrimonial property issues. She says she attended the
hearing prepared to make her case for final custody. It is
said that an individual representing the applicant objected
to any discussion of custody on the basis that the matter
had already been dealt with. The respondent says the court
did not engage in any discussion regarding custody and she
was not given an opportunity to make her case for custody of
her children. As a result of the March 23 hearing the Tribal
Court issued a divorce decree April 9, 2001 in which it is
said, inter alia, that the children will be in the
petitioner’s [K.G.’s] care.
005 The respondent resided in Havre, Montana from January
to July, 2001 and the boys lived on Rocky Boy’s with their
father. The respondent saw them on a regular basis. In July,
2001, the parties resumed cohabitation on Rocky Boy’s. There
was filed with this Court a certified copy of an order of
the Tribal Court of September 4, 2001. On the material
before me it is not clear what the context is or why an
order was made at this time given that the parties had
resumed cohabitation. The order is somewhat confusing in
that at one point it says temporary custody of the boys is
granted to K.G. and later on it says full custody is granted
to K.G.
006 The respondent says that on January 19, 2002 she was
unable to continue in the relationship and left the marital
home on Rocky Boy’s and returned to Saskatchewan. The boys
remained with their father. She says she intended to contest
custody and on or about January 21, 2002, spoke to a clerk
of the Tribal Court and was advised that because they had
been living together common law there was no court order for
custody and that she could petition for custody of the
children. She says she then made arrangements to return to
Rocky Boy’s to take custody of the children and file a
petition. On February 6, 2002, she travelled to Rocky Boy’s
and filed a petition for custody of her children. She took
custody of the children and returned to Gordon’s First
Nation. She said she had every intention of returning to
Rocky Boy’s for the hearing with respect to her petition for
custody. She says that since returning to Saskatchewan she
has been threatened with criminal sanctions if she did not
return the children and has advised the Tribal Court that
she was no longer submitting to their jurisdiction regarding
the custody of their children. She has filed a petition in
Saskatchewan.
007 The applicant says that he was contacted by the
respondent February 5, 2002 and she wanted to make
arrangements to see the boys. He says arrangements were made
for her to see the boys the next day and that she was to
return them by 9:00 p.m. The respondent picked up J.E.G.
from the applicant’s mother’s home about 11:30 a.m. She
apparently took E.S.M. out of school at noon and then
travelled to Saskatchewan with the boys.
008 The Tribal Court held a hearing February 22, 2002, in
respect of the respondent’s petition for custody. The
respondent was not present nor represented. The court order
indicates that since there was a divorce decree of April 9,
2001, her petition would be treated as a request for
modification of the divorce decree and March 4, 2002 was set
as a time for that hearing. An order of the Tribal Court of
March 6, 2002, indicates that the petitioner/mother did not
attend the hearing of March 4, 2002 and her petition was
dismissed.
009 On February 8, 2002, the Tribal Court is said to have
sent a letter to the Punnichy Reserve and Gordon’s Reserve
in Saskatchewan indicating there were potential charges of
kidnapping/custodial interference, being a violation of
Title IV, c. 4.3 of the Chippewa Cree Tribe Law and Order
Code being filed against the respondent. It said the
respondent committed the offence by secretly removing two
minor children from the Rocky Boy’s Indian Reservation
without the consent of the legal custodian, K.G. On February
8, 2002, the Tribal Court issued a warrant to apprehend the
respondent on the basis of a complaint filed with the Court,
charging the respondent with kidnapping.
010 The Children’s Law Act, 1997, S.S. 1997, c. C-8.2
provides, inter alia:
14(1) In this Part and Part IV, “extra-provincial tribunal”
means a court or tribunal established in a jurisdiction
outside Saskatchewan with authority under the laws of that
jurisdiction to make an order granting custody of or access
to a child to any person.
(2) In sections 17 to 20, “custody order” means an order,
or that part of an order, of an extra-provincial tribunal
that grants custody of a child to any person and includes
provisions, if any, granting another person a right of
access or visitation to a child at specific times or on
specific dates.
15(1) For the purposes of making a custody or access order
or for the purposes of Part IV, a court has jurisdiction
where:
(a) the child is habitually resident in Saskatchewan at
the commencement of the application for the order;
(b) although the child is not habitually resident in
Saskatchewan, the court is satisfied that:
(i) the child is physically present in Saskatchewan at
the commencement of the application for the order;
(ii) substantial evidence concerning the best interests of
the child is available in Saskatchewan;
(iii) 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) no application pursuant to section 17 is pending
before the court or may be made within a reasonable time;
(v) no extra-provincial order with respect to custody of
or access to the child has been recognized by a court in
Saskatchewan;
(vi) the child has a real and substantial connection with
Saskatchewan; and
(vii) on the balance of convenience, it is appropriate for
jurisdiction to be exercised in Saskatchewan; or
(c) the parties have consented to the court having
jurisdiction.
(2) a child is habitually resident in the place where he
or she resided;
(a) with both parties;
(b) where the parents are living separate and apart, with
one parent under a custody agreement or order or with the
consent, implied consent or acquiescence of the other; or
(c) with a person other than a parent on a permanent
basis for a significant period of time;
whichever last occurred.
(3) Where the child’s habitual residence cannot be
determined pursuant to clause (2)(a), (b) or (c), the child
is to be considered as habitually resident in the
jurisdiction with which the child has the closest
connection.
(4) The removal or withholding of a child without the
consent of the person entitled to 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.
…
17(1) Subject to subsection (2), on an application, a
court:
(a) shall enforce a custody order as if the custody order
had been made by the court; and
(b) may make any orders that it considers necessary to
give effect to a custody order as if the custody order had
been made by the court.
(2) The court may refuse to enforce the custody order and
may make any other order for the custody of or access to the
child that it considers necessary if the child is physically
present in Saskatchewan and the court:
(a) is satisfied that the person entitled to the custody
of the child pursuant to the custody order:
(i) was not actually exercising the rights under the
custody order at the time of the removal or retention of the
child; or
(ii) had consented to or subsequently acquiesced in the
removal or retention;
(b) is satisfied, on the balance of probabilities, that
the child would suffer serious harm if the child:
(i) remains in the custody of or subject to access by the
person entitled to custody or access pursuant to the custody
order;
(ii) is returned to the custody of the person entitled to
custody pursuant to the custody order; or
(iii) is removed from Saskatchewan; or
(c) is satisfied that the extra-provincial tribunal that
made the custody order did not, at the time of making the
order, have jurisdiction to do so in accordance with section
15.
18 Where, on an application pursuant to section 17, the
court orders the return of the child, it may:
(a) make any interim orders with respect to custody or
access in the best interests of the child to ensure the
child’s return to the person entitled to custody; and
(b) make an order described in clause (a) conditional on
prompt commencement of action in the jurisdiction of the
habitual residence and attach any other conditions to the
order the court considers appropriate, including conditions
relating to payment of costs for reasonable travel and other
expenses related to the proceedings.
19(1) A person making an application pursuant to section 17
shall file with the application a copy of the custody order
to which the application relates, certified as a true copy
by:
(a) a judge or other presiding officer of the
extra-provincial tribunal; or
(b) the clerk or other official charged with the keeping
of records and orders of the extra-provincial tribunal.
(2) No proof is required of the signature or appointment
of a judge, presiding officer, clerk or other official with
respect to any certificate produced as evidence pursuant to
this section.
(3) For the purpose of an application pursuant to section
17, a court may take notice, without requiring formal proof,
of:
(a) the law of a jurisdiction outside Saskatchewan; and
(b) a decision of an extra-provincial tribunal.
…
21 Where there is a conflict between this Act and The
International Child Abduction Act, 1996, the latter act
prevails.
…
24(1) A court, by order, may direct a sheriff, peace
officer or other person that it considers appropriate to
locate, apprehend and deliver a child to a person specified
by the court for the purpose of giving effect to the rights
of the applicant to custody or access where the court is
satisfied on application that there are reasonable grounds
for believing that a person:
(a) is unlawfully withholding the child from a person
entitled to custody of or access to the child pursuant to an
order or agreement;
(b) who is prohibited by order or agreement from removing
the child from Saskatchewan intends to remove the child or
have the child removed from Saskatchewan; or
(c) who is entitled to access to the child pursuant to an
order or agreement intends to remove the child or to have
the child removed from Saskatchewan and that the child is
not likely to return.
(2) For the purpose of enforcing an order made pursuant
to subsection (1), the court may authorize the sheriff,
peace officer or other person to enter and search any place
where the sheriff, peace officer or other person has
treasonable grounds for believing that the child may be.
(3) An application pursuant to subsection (1) may be made
ex parte where the court is satisfied that it is necessary
that action be taken without delay.
(4) The sheriff, peace officer or other person directed
to act by an order made pursuant to subsection (1) shall do
all things reasonably able to be done to locate, apprehend
and deliver the child in accordance with the order.
(5) Neither the minister responsible for the
administration of The Child and Family Services Act nor any
employee of the minister’s department who is acting in the
course of his or her responsibilities pursuant to that Act
are to be named in an order made pursuant to this section
without the person’s prior written consent.
011 The International Child Abduction Act, 1996, S.S.
1996, c. I-10.11 provides for the coming into force in
Saskatchewan of the Convention on the Civil Aspects of
International Child Abduction (the “Hague Convention”) as of
November 1, 1986, and the provisions of the Hague Convention
are law in Saskatchewan. The Hague Convention provides,
inter alia:
Article 1
The objects of the present Convention are:
a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State;
and
b) to ensure that rights of custody and of access
under the law of one Contracting State are effectively
respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate
measures to secure within their territories the
implementation of the objects of the Convention. For this
purpose they shall use the most expeditious procedures
available.
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 sub-paragraph a),
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) “rights 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 child for a limited period of time to a place other
than the child’s habitual residence.
Article 6
A Contracting State shall designate a Central
Authority to discharge the duties which are imposed by the
Convention upon such authorities.
Federal States, States with more than one system of
law or States having autonomous territorial organizations
shall be free to appoint more than one Central Authority and
to specify the territorial extent of their powers. Where a
State has appointed more than one Central Authority, it
shall designate the Central Authority to which applications
may be addressed for transmission to the appropriate Central
Authority within that State.
…
Article 11
The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings
for the return of the children.
…
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 of the child forthwith.
…
Article 13
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 the child’s 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.
…
Article 14
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, or 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.
…
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 19
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.
Article 20
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.
…
Article 29
This Convention shall not preclude any person,
institution or body who claims that there has been a breach
of custody or of access rights within the meaning of Article
3 or 21 from applying directly to the judicial or
administrative authorities of a Contracting State, whether
or not under the provisions of this Convention.
012 The applicant argues he has legal custody of the boys
pursuant to the divorce decree of April 9, 2001, and that
order ought to be enforced pursuant to s. 17 of The
Children’s Law Act, 1997. In the alternative he says the
boys were wrongfully removed from the State of Montana where
they had been habitually resident and a return order should
be made under the Hague Convention.
013 The respondent takes the position there is no order
of the Tribal Court to be enforced as the parties had, in
fact, resumed cohabitation. She also questions whether a
Tribal Court order is enforceable outside of the United
States of America. It is argued that the order may not be
enforceable as it may not have been made in substantial
conformity with the jurisdictional standards of the custody
provisions of the Montana Code Annotated (2001). Insofar as
the Hague Convention is concerned the respondent says that
if Rocky Boy’s is recognized as a separate sovereign entity
in the United States of America, there is no evidence that
it is a contracting state and hence the Hague Convention is
inapplicable to these proceedings.
014 The respondent also says it is important for the
Court to consider the circumstance she and the children will
be placed in if the children are returned to Rocky Boy’s. It
is argued the children will be taken from their mother and
their new sibling (the respondent just gave birth to another
child in Saskatchewan) and they will have limited access to
their mother given the distance between Rocky Boy’s and the
mother’s residence in Saskatchewan. It is further said that,
with the exception of a six month period, the respondent has
been the primary caregiver to these children and is
therefore the psychological parent. It is said this factor
has allowed the children to make a change in residence with
little negative impact and that severing the relationship
between the respondent mother and her young children will
expose the children to psychological harm or otherwise place
them in an intolerable situation. It is also argued the
respondent may not receive a fair custody hearing if she is
required to return to the Tribal Court’s limited
jurisdiction. It is said that for these reasons the Court
ought not to order the return of the children relying upon
Article 13 of the Hague Convention and s. 17(2)(b)(iii) of
The Children’s Law Act, 1997.
015 Subsequent to hearing argument on this matter the
Court asked counsel to address, inter alia, the authority
and jurisdiction of the Tribal Court and whether a custody
order of the Tribal Court is recognized and/or enforceable
in the State of Montana. In response the applicant filed an
affidavit of Professor Maylinn Smith, Professor of Law at
the University of Montana. Professor Smith attests:
4. I would advise this Honourable Court that based
on my legal knowledge and experience I can state that the
Tribal Courts in the United States of America (including the
Tribal Court of the Chippewa Cree Tribe) have jurisdiction
to determine numerous civil and criminal legal issues on
their reservations the same way State and Federal Courts
have their own sphere of jurisdiction. The authority of
Tribal Courts to determine such matters is, in my opinion,
well-settled law in the United States. Their jurisdiction is
affirmed by the United States Supreme Court in several
leading cases including Iowa Mutual Insurance Company v.
LaPlante, 480 U.S. 9 (1987) and National Farmer’s Union
Insurance Co. v. Crow Tribe, 471 U.S. 845 (1985). Child
custody of Indian children on the reservation is squarely
within the jurisdiction of Tribal Courts.
5. Regarding the Trial Court of the Chippewa Cree
Tribe, their authority and jurisdiction over band members or
non-members, on or off the reserve is largely governed by
Title 1, Chapter 2, (2.2), (2.3) of the Chippewa Cree Tribal
Law and Order Code of 1987 a copy of which is attached
hereto as exhibit “A”.
Extract from Exhibit “A”
Chapter 2.
JURISDICTION
…
2.2 Civil Subject Matter Jurisdiction.
Jurisdiction of the Court shall extend to all civil
actions arising in whole or in part within the exterior
boundaries of the reservation or on any other land or
property owned or controlled by the Tribe or adjacent,
dependent Indian communities.
2.3 Personal Jurisdiction.
…
(2) The Court’s civil jurisdiction shall extend to
any person within the exterior boundaries of the Rocky Boy’s
Reservation, and to persons who are parties in causes
arising out of contacts with the reservation in matters in
which the Court has subject matter jurisdiction.
6. Tribal Court orders and judgments are routinely
recognized and enforced by both State and Federal Courts in
Montana based on the principle of comity. A custody order of
a tribal court in Montana is recognized under the comity
principle in a U.S. Federal Court. A custody order of a
Tribal Court can be recognized in Montana District Courts as
a foreign judgement [sic] and thereupon has full legal
effect throughout the state. Some states, however, recognize
Tribal Court judgments with full faith and credit as if they
came from their own superior court. Oklahoma, South Dakota
and Wyoming are such states.
016 The respondent also filed the affidavit of Daniel
Belcourt, a member of the Bar of the State of Montana and a
Tribal attorney to the Chippewa Cree Tribe. He attests:
3. The children subject to this application (E.S.M.
and J.E.G.) are members of the Chippewa Cree Tribe.
4. Based on my legal knowledge and information I can
affirm that the United States of America is a signatory and
contracting state to the Convention on the Civil Aspects of
International Child Abduction (Hague Convention #28). Both
the State of Montana and the Chippewa Cree Tribe are within
and part of the United States of America. The State of
Montana and the Chippewa Cree Tribe are within and part of
the contracting state under the said Convention.
5. In the United States any court relief or remedy
under this Convention can be sought in either State or
Federal Courts. The two courts have concurrent jurisdiction.
A judgment or order of a U.S. Federal Court is enforceable
and of full force and effect on a Reservation including the
Chippewa Cree Tribe. A Montana State Court order or judgment
can be registered in the Tribal Court as a foreign judgment
upon the proper application and thereupon is enforceable on
the Reservation.
017 Underlying both the Hague Convention and the
provisions of The Children’s Law Act, 1997 dealing with the
enforcement of extra-provincial custody orders is the notion
that the jurisdiction in which a child was habitually
resident ought to determine custody issues. A parent is not
permitted to try and gain an advantage by virtue of removing
a child from that jurisdiction. Both the Hague Convention
and The Children’s Law Act, 1997 recognize limited
circumstances in which it would not be appropriate to return
a child to that jurisdiction. Section 19 of The Children’s
Law Act, 1997 and Article 14 of the Hague Convention make
provision for this Court to take judicial notice of the laws
of the other jurisdiction without requiring proof of that
law.
018 Absent the question of being members of the Chippewa
Cree Tribe, the jurisdiction to deal with custody of
children habitually resident in Montana is vested in the
Montana District Court.
019 The constitution and bylaws of the Chippewa Cree
Indians of the Rocky Boy’s Reservation, Montana, provides,
inter alia:
PREAMBLE
We, the original and adopted members of the Rocky
Boy’s Band of Chippewa enrolled upon the Rocky Boy’s
Reservation in the State of Montana, in order to exercise
our rights to self-government, to administer all tribal
affairs to the best advantage of the individual members, and
to preserve and increase our tribal resources, do ordain and
establish this Constitution of the Chippewa Cree Tribe of
the Rocky Boy’s Reservation, Montana.
ARTICLE I – TERRITORY
The jurisdiction of the Chippewa Cree Tribe of the
Rocky Boy’s Reservation, Montana, shall extend to the
territory within the Rocky Boy’s Reservation as established
by Act of September 7, 1916 (39 Stat. 739), amending the Act
of February 11, 1915 (38 Stat. 807), in the State of
Montana, and to such lands as have been or may hereafter be
acquired and added to the Reservation by law.
…
ARTICLE XII – JUDICIAL BRANCH
SECTION 1. There shall be established a Judicial
Branch within the tribal government to enforce ordinances
and laws of the Business Committee, the Election Board
and/or to administer justice through a tribal court. The
Judicial Branch shall also provide an appellant body for
tribal members who are aggrieved by decisions of the tribal
court.
Professor Smith attested that the jurisdiction of the
Tribal Court with respect to Band members and non-members is
largely governed by the Chippewa Cree Tribal Law and Order
Code of 1987, referred to above.
Hague Convention
020 The United States of America is a contracting state
under the Hague Convention. This includes persons habitually
resident in the State of Montana. I need not address the
precise constitutional status of Rocky Boy’s for the purpose
of the Hague Convention. In this particular instance there
was no request by the central authority in the United States
of America to the central authority in Saskatchewan to
enforce the provisions of the Hague Convention. The
applicant made application directly to this Court, as
permitted by Article 29.
021 In Struweg v. Struweg, [2001] S.J. No. 380, 2001 SKQB
283; (2000), 208 Sask.R. 243 (Q.B.) this Court observed at
para. 27:
[27] In proceedings under the Hague Convention it is
incumbent upon the applicant to establish that the child was
habitually resident in the requesting State immediately
before any breach of custody or access rights (Article 4)
and that there was a wrongful removal or retention of the
child as contemplated by Article 3. Once it has been
determined that a child has been wrongfully removed or
retained the Hague Convention mandates the court to order
the child’s return forthwith (Article 12) unless the case
fits into one of the exceptions set forth in Articles 12, 13
or 20. In this regard the onus is on the parent who would
resist the return order. The exceptions are summarized in
Thomson v. Thomson, supra [ [1994] 3 S.C.R. 551], at pp.
594-5 as follows:
1. More than a year has elapsed between the removal
and the commencement of judicial proceedings and it can be
demonstrated that the child is now settled into his new
environment: Article 12;
2. 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:
Article 13(a);
3. The person, institution or other body having the
care of the person of the child had acquiesced in the
removal or retention: Article 13(a);
4. 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:
Article 13(b);
5. The child objects to being returned and has
attained an age and degree of maturity at which it is
appropriate to take into account its views: Article 13;
6. The return of the child would “not be permitted
by the fundamental principles of the requested State
relating to the protection of human rights and fundamental
freedoms”: Article 20.
022 The respondent acknowledges the boys were habitually
resident in Rocky Boy’s, Montana, prior to their leaving
Montana in February. Article 3 of the Hague Convention
provides that the removal of a child is considered wrongful
when it is in breach of rights of custody attributed to a
person either jointly or alone under the law of the state in
which the child was habitually resident before the removal.
As observed in Struweg, supra, at para. 29:
[29] With respect to whether there may be a breach of
custody rights described in Article 3, Thomson, supra, at p.
580 it is stated:
Custody, as understood by the Convention, is a broad
term that covers the many situations where a person lawfully
has the care and control of a child. The breach of rights of
custody described in Article 3, it will be remembered, are
those attributed to a person, an institution or any other
body by the law of the state where the child was habitually
resident immediately before the removal or retention.
Article 3 goes on to say that custody may arise by operation
of law. The most obvious case is the situation of parents
exercising the ordinary care and control over their child.
It does not require any formal order or other legal
document, although custody may also arise by reason of a
judicial or administrative decision, or by agreement.
023 Prior to the boys’ removal, they resided either in
the joint care of their parents or the care of their father.
Separate and apart from any question of the efficacy of the
Tribal Court orders, the applicant exercised the ordinary
care and control of a parent over these children.
Accordingly, there was a wrongful removal of these children
from the State of Montana. In the circumstances, I need not
make any finding with respect to the jurisdiction of the
Tribal Court or the efficacy of the orders it made.
024 As to the question of whether any of the exceptions
have been made out, the only potential issue is whether
there is a grave risk that return of the children would
expose them to physical or psychological harm or otherwise
place them in an intolerable situation. The Supreme Court of
Canada in Thomson v. Thomson, supra, observed in this regard
at pp. 596-7:
It has been generally accepted that the Convention
mandates a more stringent test than that advanced by the
appellant. In brief, although the word “grave” modifies
“risk” and not “harm”, this must be read in 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
Article 13(b) is harm to a degree that also amounts to an
intolerable situation…. In Re A. (A Minor) (Abduction),
supra, [ [1988] 1 F.L.R. 365 (Eng. C.A.)] Nourse L.J., in my
view correctly, expressed the approach that should be taken,
at p. 372:
… the risk has to be more than an ordinary risk, or
something greater than 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
situation’
025 Pollastro v. Pollastro (1999), 43 O.R. (3d) 485
(C.A.) makes it clear that the decision of whether to return
a child under the Hague Convention is not based on who
should have custody. The evidence of the respective parents’
parenting capacity or lack thereof while more germane to a
custody determination does remain contextually relevant to
an assessment of whether return places a child at grave risk
of harm or would otherwise place the child in an intolerable
situation. Turner v. Frowein, Docket No. FA-97-0081430,
Connecticut Superior Court, J.D. of Middlesex at Middletown,
June 25, 1998 (unreported), makes reference to a prior
decision out of that jurisdiction of Panazatou v. Panazatou,
Docket No. 713571, Superior Court, J.D. of Hartford, April
29, 1997, Barrall J. (unreported) in which the court found
that the child’s habitual residence was Greece but did not
order the child returned because the mother proved by clear
and convincing evidence the return of the child to Greece
would cause a grave risk of physical and psychological harm.
The court considered the circumstances which would be faced
by the child and the mother if they returned to Greece.
Because the mother faced a possible contempt order if she
returned and also lacked the means to support herself and
her child in Greece, the court found that the child would
face a grave risk if returned.
026 I am also mindful of the comments in Finizio v.
Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.) at paras. 34
and 35:
[34] Third, there is simply no basis for suggesting that
the Italian courts are not well-suited to deal with
matrimonial issues, including support, custody and access. I
agree with Jennings J. who said in Medhurst v. Markle
(1995), 26 O.R. (3d) 178 at p. 182, 17 R.F.L. (4th) 428 at
p. 432 (Gen. Div.):
It is to be presumed that the courts of another
contracting state are equipped to make, and will make,
suitable arrangements for the child’s welfare.
[35] The English courts have taken a similar position on
this issue. In C. v. C. (Abduction: Rights of Custody),
[1987] 1 W.L.R. 654 at p. 664 (C.A.), Lord Donaldson of
Lymington M.R. said:
It will be the concern of the court of the State to
which the child is to be returned to minimize or eliminate
this harm and, in the absence of compelling evidence to the
contrary or evidence that it is beyond the powers of those
courts in the circumstances of the case, the courts of this
country should assume that this will be done. Save in an
exceptional case, our concern, i.e., the concern of these
courts, should be limited to giving the child the maximum
possible protection until the courts of the other country –
Australia in this case – can resume their normal role in
relation to the child.
027 The respondent seeks to invoke the exception on the
basis that the relationship between her and the boys will be
severed or restricted if there is a return order. To put the
matter in perspective it must be remembered that until the
separation of the parties the boys were in the care of both
parents. During the separation the boys lived with their
father. The respondent chose to remove the children from the
jurisdiction. Her actions would have the effect of severing
or limiting the relationship between the boys and their
father. An application under the Hague Convention is not a
determination as to what may be the appropriate custodial or
parenting arrangement. It is a question of which
jurisdiction ought to determine such issues. The evidence
did not indicate that the respondent fled with the children
to avoid physical or psychological harm to the children. The
respondent chose to marry, have children and reside in the
State of Montana. A return of the children to Montana could
lead to a severance or limitation of the relationship
between the respondent and the boys if the respondent
chooses not to return to Montana, chooses to live in
Saskatchewan or, she argues, because she may not receive a
fair hearing from the Tribal Court. In these circumstances
the decision to leave the jurisdiction and to seek to reside
elsewhere with the children without a determination as to
custodial rights having been made by the state in which the
children were habitually resident, is a choice the
respondent made and could be seen as an attempt to preempt
the right of the state of habitual residence to determine
custodial rights. She cannot, in the circumstances of this
application, seek to invoke an exception to a return order
on that basis.
028 Insofar as she suggests she may not receive a fair
hearing from the Tribal Court, it is presumed that the
appropriate judicial body in the state of habitual residence
will determine custody issues appropriately and in
accordance with the best interests of the children involved.
The respondent has not demonstrated that this will not
occur. Mere speculation is not a basis upon which an
exception will be found.
029 To be clear this Court need not make any
determination as to the appropriate court or tribunal in
Montana to determine custodial rights. Montana is the
appropriate jurisdiction to determine custodial issues and
it is for the law of that jurisdiction to determine the
appropriate forum. It must be remembered that the respondent
acknowledges she was initially prepared to have the issue
determined in Montana.
030 The respondent has not met the onus of establishing
an exception to a return order. There will be a return order
on the terms to be set forth at the conclusion of this
judgment. The Children’s Law Act, 1997
031 To seek to enforce an extra-provincial custody order
in Saskatchewan, as if it were an order of this Court, an
applicant must establish that there is an order made by a
court or tribunal established in a jurisdiction outside
Saskatchewan with authority under the laws of that
jurisdiction to make such an order. The court may refuse to
enforce the custody order if the respondent establishes any
of the grounds enumerated in s. 17(2). The respondent here
relies upon s. 17(2)(b)(iii), namely that the boys would
suffer serious harm if removed from Saskatchewan.
032 As previously noted, the children were habitually
resident in Montana prior to being removed to Saskatchewan.
Section 17(2)(c) provides that this Court may refuse to
enforce an extra-provincial custody order if the
extra-provincial tribunal did not, at the time of making the
order, have jurisdiction to do so in accordance with s. 15.
At the time of the divorce decree and at the time of
commencement of those proceedings, it is clear that the
State of Montana had jurisdiction to make a custody order.
The question then becomes whether the Tribal Court had
jurisdiction under the laws of the State of Montana to make
a custody order.
033 It would appear the Tribal Court has the authority
under the laws of the State of Montana although the material
is not as clear as it might be. The material filed indicates
that a Tribal Court has jurisdiction over custody of Indian
children on a reservation. It further says a Tribal Court
judgment “can be recognized” in Montana District Courts, as
a foreign judgment. The respondent suggests that there may
be situations in which state law may supersede that of the
Tribal Court with respect to protection of the rights of a
parent of an Indian child. In the circumstances, I have
concluded I need not determine if a custody order of the
Tribal Court is eligible for enforcement pursuant to s. 17
as I have determined that it is appropriate to make a return
order to the State of Montana pursuant to the Hague
Convention. If there are any issues to be resolved in
Montana as to which court or tribunal ought to exercise
jurisdiction in these circumstances, it is for Montana to
make those determinations.
034 While clearly obiter I want to make a number of
observations. The respondent argued that she believed there
was no custody order in effect in Montana because of the
resumption of cohabitation subsequent to the divorce decree.
As I have indicated, Montana is clearly the appropriate
jurisdiction to determine custody issues. As previously
noted, the lack of a custody order is no impediment to the
enforcement of custodial rights under the Hague Convention.
Thomson, supra, at para. 51 observed that the fact a parent
who removed a child from a jurisdiction does not know they
were violating a court order of that jurisdiction is not
relevant to an application under the Hague Convention.
035 Insofar as the respondent argues that enforcement of
an extra-provincial custody order in Saskatchewan would not
be appropriate on the basis the children would suffer
serious harm if removed from Saskatchewan, I refer to the
previous observations with respect to similar provisions
which exist in the Hague Convention. In my view the same
considerations would apply to s. 17(2)(b)(iii). It would
not, in the circumstances before the Court, constitute a
reason not to enforce an extra-provincial custody order.
Conclusion
036 There will be a return order to the State of Montana.
In making a return order, the Court can require undertakings
of the parties to deal with the transition between the
return order and the time at which the custody issue comes
before the appropriate judicial body in the state of a
child’s habitual residence. (Struweg, supra, at paras. 60
and 64.) In making a return order the court is not
determining who ought to have custody but through the use of
undertakings can seek to minimize the disruption of return
for the children involved until the appropriate court can
address custody and parenting issues. In Struweg, supra,
there were extensive undertakings required.
037 In this instance undertakings would not be
appropriate because of the uncertainty which exists given
various events which have occurred in Montana. As noted,
there is a divorce decree and a custody order. It is for the
appropriate entity in Montana to determine the efficacy of
such order. There is also the matter of what appears to be
charges facing the respondent before the Tribal Court and a
warrant issued to apprehend the respondent also issued by
the Tribal Court. This Court is in no position to reach any
conclusions as to the efficacy of these proceedings with
respect to someone who is not resident on the reservation.
At the same time, this Court recognizes these may well be
legitimate proceedings which the respondent will have to
address and in that context the Court cannot ignore these
proceedings.
038 It is hoped that upon return of the children to
Montana it will be recognized that there has not been a
determination made as to an appropriate parenting
arrangement in the context of having heard and considered
the representations of both parents. The best interests and
welfare of children is best served where there is a
continuing relationship with both parents, assuming they are
both adequate parents. It must also be remembered that
E.S.M. and J.E.G. now have another sibling. It will be in
their best interests that they continue to have a meaningful
relationship with their new sibling. Once E.S.M. and J.E.G.
are returned to the State of Montana, it is hoped further
consideration will be given to whether the charges and the
warrant are truly appropriate in the circumstances.
039 There will be an order for the return of E.S.M., born
March 15, 1996 and J.E.G., born December 11, 1998, to the
State of Montana, United States of America, within seven
days of the date of this order. In the event that the
respondent does not personally return the children, they
shall be delivered to the care of their father, K.G. In the
event the children have not been returned to Montana within
seven days, the matter may be referred back to me by
contacting the local registrar so that a further order may
be made.
040 The applicant seeks the costs of these proceedings.
In the circumstances there will be no order as to costs. The
respondent was prepared to address the custody issue before
the Tribal Court. It is clear she was deprived of that
opportunity. There was clearly a lack of judiciousness in
the proceedings. There was also no denial of the
respondent’s assertion she was told by a clerk of the Tribal
Court that given their resumption of cohabitation there was
no outstanding custody order. None of this excuses removal
of the children as Montana is clearly the forum in which to
determine custody issues. However, in my view costs would
not be appropriate.
McINTYRE J.