CANADA – MILLER – 1996

Miller v Lahaise (Quebec 1996)Superior Court No 700-04-002221-965
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CANADA
PROVINCE OF QUEBEC
DISTRICT OF TERREBONNE
NO: 70004002221

SUPERIOR COURT

PRESIDING: THE HONOURABLE MR. JUSTICE JEAN ARCHAMBAULT

DONALD McDIARMID MILLER
Petitioner

-vs-

JOHANNE LAHAISE
Respondent

REASONS AND JUDGMENT RENDERED ORALLY
ON
OCTOBER 11,1996

The Court is seized with an application by Mr. Donald McDiarmid
Miller [hereafter called ], pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction FN1
[hereafter called the ], for the return of his
two children, presently residing with their mother [hereafter
called ] in St-Sauveur. Father alleges in his application
that the habitual place of residence of the family is in England.

Mother contests the application on the grounds that the Hague
Convention does not apply to the present situation and that,
moreover, the children who are mature, have chosen not to return
with father to England but rather remain with her in St-Sauveur.

The children were represented by an attorney who has advised the
Court of the opinion of the children on whether they wish to
return to England.

The parties have made a series of admissions, the most relevant
being the following:

– the parties were married on March 2nd, 1984 in Brampton,
Ontario;

– the two children, Michele, 12 years of age and Martin, 8 years
of age were born from the marriage of the parties;

– Michele was born in Laval and is a Canadian citizen, holding
both a Canadian and British passport;

– Martin was born the United Kingdom, has a dual citizenship and a
passport from both countries;

– since the birth of Michele, the parties and the children have
lived originally in the Province of Quebec. They moved to England
at the end of 1985 to return to this province in November 1989.
The family returned to England in the summer of 1993 to live in
Chelmsford, Essex County;

– during this latter period, the children attended school in
England near their residence;

– the children performed well in school in England;

– Martin suffers from dyslexia and his condition requires special
tutoring;

– at least five times a year, the family would return to the
province of Quebec for vacations and to visit mother’s relatives.
Father’s business would bring him to Canada five additional times
each year;

– the parties own two homes Canada, one of which is located in
St-Sauveur, in proximity of mothers parent’s, to whom the children
are very attached;

– on July 11, 1996, mother and the children came to Canada with
the knowledge and consent of father and has been residing at the
St-Sauveur residence;

– In August 1906, mother advised father that she intended to
remain in the Province of Quebec with the children, although the
airplane tickets purchased included the return flight for mother
and Children;

– mother’s father has assumed the mortgage payment, and electric
bills for the St-Sauveur residence, for the months of July, August
and September;

– under British law, parental responsibility Vests in both father
and mother.

* * *

The evidence has shown that both parties are caring and loving
parents and have adequate parents capacities.

Mother is 37 years of age and is presently looking for employment.
She has registered the children in an English language school,
located in the proximity of St-Sauveur. The children are well
adapted to their new environment and are doing well in school.
Martin is receiving special attention and tutoring both for his
dyslexia condition and to improve he skills in the French
language. Michele is bilingual.

Mother has started a relationship with another man, who has three
young daughters. On occasions, this person lives with mother and
the children in the St-Sauveur residence. Father is a 62 year old
businessman. His business was profitable until one and a half
year ago, when he had a falling out with his partner. Since then,
the business has not been profitable and has recently been loosing
money. The family’s residence in England is owned by father’s
business partner, who has taken eviction proceedings to recover
possession of his house.

Father is involved in numerous litigation in England in regards to
his business.

Mother stated that family was living under considerable anxiety
and stress because of the adverse financial position of father’s
business and because of the eviction threat.

The children are very attached to mother who has looked after
their upbringing since their birth.

The relationship of the couple has been compromised a few years
before mother’s departure.

OPINION OF THE CHILDREN

The children’s attorney has reported that Michele wishes to stay
in the Province of Quebec with mother. Martin is more ambivalent
but does not want to be separated from his sister.

The Court has had the opportunity to meet Michele in chambers,
with the consent of the parties. It is apparent that Michele is
intelligent, articulate and well reasoned. She is happy in her
present surroundings, and has made new friends in school. She
confirms that she is very close to her grand-parents, who live
near the St-Sauveur residence and whom she visits frequently. The
Court has been able to appreciate that she is a mature young girl.
She has taught (sic) out the situation and although she loves her
father, she has no hesitation to confirm that she wishes to remain
in the Province of Quebec with mother. She wishes to maintain a .
relationship with father. She also confirmed that Martin is
ambivalent about the situation but is certain that he does not
wish to be separated from his sister with whom he has an excellent
relationship.

Given the circumstances, the Court is of the view that the
decision of Martin is wise and mature considering he is a
youngster of eight years of age.

The Court is satisfied that the Hague Convention applies to this
situation given the age of the children, and the fact that they
had their habitual place of residence in England in July 1996,
date of their departure.

The governing principle of the Hague convention is clearly stated
In Section 20:

<<20. Where a child who is in Quebec has been wrongfully removed or retained and where, at the time of the commencement of the proceedings before the Superior Court, a period of less than one year has elapsed from the date of removal or retention, the Superior Court shall order the return of the child forthwith.>>

The children must be returned to their habitual place of
residence, if less then one year has elapsed since their removal.

Sections 21 and 22 of Hague Convention contain exceptions to this
principle:

<<21 The Superior Court may refuse to order the return of the child if the person who opposes his or her return establishes that
(1) the person 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

(2) 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.

22 The Superior Court may also refuse to order
the return of the child if

(1) It finds that the child objects to being
returned and has attained an age and degree of
maturity at which it is appropriate to take
account of his or her views;

(2) the return is contrary to the human rights
and freedoms recognized in Quebec.>>

The Courts have established that the exceptions of said Sections
21 and 22 must be interpreted restrictively.

In the present instance, Michele is clearly of the opinion that
she wishes to remain with mother, Martin does not want to be
separated from his sister.
1
Michele’s decision appears to the Court to be reasoned for the
following reasons:

– although she loves father, Michele has a special attachment to
mother with whom she has lived all her life;

– Michele is happy with the current situation. She enjoys living
in St-Sauveur because of her close relationship with her
grandparents. She also likes her new school and has made many new
friends.

– Michele exhibited a signed document by a great number of her
classmates wishing her to stay in Canada;

– Father is involved in litigation in England relating not only to
his business but with the right to occupy his partners home where
the family resides;

– The situation has created great insecurity and tension for all
the family members;

– Father returns to the Province of Quebec for one week every five
weeks for business reasons. Father has a daughter from another
marriage who resides in Ontario whom he visits on regular basis.
The contact with Michele and Martin could therefore be easily
maintained during these regular visits;

– The children are enrolled in school and are receiving proper
education and, in the case of Martin, the special tutoring his
condition requires.

The Court has therefore no fear or concerns for the well being of
the children and there are no reasons why their opinion should not
constitute an important factor in the Court’s decision.

FOR THESE REASONS, THE COURT:

DISMISSES Petitioner’s application;

WITHOUT COSTS.

/s/ Jean Archambault
_________________________
JEAN ARCHAMBAULT, J.S.C.

Mtre Sonia Heyeur
Attorney for Petitioner.
215, St-Laurent Blvd No 2
Montreal, QC H2Y 3T9
TEL: (514) 842-8051

Mtre Carole Trempe
Lalonde, Riendeau, Morissette, Trempe & Provencal
Attorneys for Respondent
450, Laviolette
Saint-Jerome, QC J7Y 2T7
TEL: (514) 436-9443

Mtre Armande Lamberti
Attorney for the children
294, Labelle, No 203
Saint-Jerome, QC J7Z 5L1
TEL: (514) 431-5061

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COMMENT BY WILLIAM M. HILTON

With due respect to the learned judge of the Court of First
Instance, this is the kind of decision that The Convention on the
Civil Aspects of International Child Abduction, done at the Hague
on 25 Oct 1980 [The Convention] was written to prevent.

It has been said that if one is opposing a Petition for Return
under The Convention, one should do what one could to have the
court of first instance treat the matter as a custody proceeding
and argue the best interests of the child, FN2 which is contra to
the express language of The Convention. FN3

The issues that the Court of First Instance relied upon were those
issues that would be considered by a court the custody of a child
is before it: Preferences of the child, their desires, etc. The
decision of the Court of First Instance of Quebec is, in the
language of the court in Murray and Murray (Australia 1993) Court
of Appeal No EA 51 of 1993; [1993] FLC 92-416, FN4 presumptuous and
offensive in the extreme, for it concludes that the best interests
of the children would not be considered by the courts of the
United Kingdom.

Courts of other jurisdiction have routinely held, in similar
circumstances, that one must assume that sister state courts are
no less concerned than this Court with the safety and welfare of
children who are the subjects of custody disputes. Archambault v
Archambault (1990) 407 Mass. 559 [555 N.E.2d 201, 207-208]; Matter
of R.L.S. (Okl.App. 4 Div 1994) 879 P.2d 1258, 1263.

The Court of First Instance’s decision is also contra to the
Perez-Vera Report FN5, at No 34:

“To conclude our consideration of the problems
with which this paragraph deals, it would seem
necessary to underline the fact that the three
types of exception to the rule concerning the
return of the child must be applied only so far
as they go and no further. This implies above
all that they are to be interpreted in a
restrictive fashion if the Convention is not to
become a dead letter. In fact, the Convention
as a whole rests upon the unanimous rejection
of this phenomenon of illegal child removals
and upon the conviction that the best way to
combat them at an international level is to
refuse to grant them legal recognition. The
practical application of this principle
requires that the signatory States be convinced
that they belong, despite their differences, to
the same legal community within which the
authorities of each State acknowledge that the
authorities of one of them – those of the
child’s habitual residence – are in principle
best placed to decide upon questions of custody
and access. As a result, a systematic
invocation of the said exceptions, substituting
the forum chosen by the abductor for that of
the child’s residence, would lead to the
collapse of the whole structure of the
Convention by depriving it of the spirit of
mutual confidence which is its inspiration.”

One also wonders about the propriety of following the desires of a
child, albeit a bright, articulate, twelve year old, in making a
major life choice as to which parent they are to live with. One
should consider just how far one would go in permitting a child of
any age the right to make decisions that are binding on adults:
Does the child get to decide if he or she attends school, goes to
the dentist, gets routine injections, etc? Would the judge, for
example, permit the child to drive his car on a motorway in Quebec
merely because she wished to do so? Children get to decide
between chocolate or vanilla, but not if they get the ice cream.

——————–

1. An Act respecting the Civil Aspects of International and
Interprovencial Child Abduction, R.S.Q., Chap A23.01

2. WMH Footnote: DREAMING THE IMPOSSIBLE DREAM: RESPONDING TO
A PETITION UNDER THE CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION, DONE AT THE HAGUE ON 25 OCT
1980; Presented at the North American Symposium on
International Child Abduction, 30 Sep 01 Oct 1993,
Department of Sate, Washington, D.C. The full text of this
article can be found on the Internet at:
http://www.hiltonhouse.com as Defend.art.txt.

3. WMH Footnote: Art. 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.” See
also 42 U.S.C. 11601(b)(4): “The Convention and this Act
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying
child custody claims.”

4. WMH Footnote: The full text of this case is found on the
Hilton House Web Site as Murray_aus.txt.

5. WMH Footnote: The full text of this report is found on the
Hilton House Web Site as Perez_rpt.txt. This report is
recognized as the official commentary of the Convention.
Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662.