CANADA – O_Sullivan – 1998

O’Sullivan v Anderson (Canada 1998)Vancouver, BC Registry: F 98 0255, 06 Aug 1998
24 International Abduction [CDN 1998]
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Date: 06 Aug 1998
Docket:
F 98 0255
Registry:
Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Oral Reasons for Judgment
Mr Justice R.D. Wilson
Pronounced in Chambers
August 6, 1998

BETWEEN

DEREK FRANCIS O’SULLIVAN, PETITIONER

AND:

CHRISTINE LOUISE ANDERSON, RESPONDENT

Counsel for the Petitioner: W.R. Storey

Counsel for the Respondent: A.M. Lessing

Counsel for the Ministry of Children
and Families: A.L. Thorpe

[1] THE COURT: This is an application by Dr. Derek Francis
O’Sullivan for an order that the child, born into the
relationship between himself and the defendant, Christine
Louise Anderson, be returned to Ireland. I am satisfied that
the order should go. I am so satisfied for the following
reasons.

[2] According to paragraph 43 of the affidavit made by Ms.
Anderson, on 6 August 1998, the child in question in this
petition was born in England, spent her first 10 months in
England, and moved with her then family to Ireland on 28
August 1995. She there remained until 28 March 1998. During
the course of her life in Ireland with her family, the child
did return to England, to visit extended family and friends,
on occasion.

[3] I find that Ireland was the habitual residence of the
child in March 1998.

[4] The petitioner says in his affidavit in support of the
petition, that he and Ms. Anderson separated on or about
March 27, 1998, when he went to France to attend a
conference. Ms. Anderson, without any prior knowledge or
permission from the petitioner, sold all of the household
possessions, including the family car, and left Ireland with
the child. He says that Ms. Anderson “went underground”. He
says that there was no information given to him by Ms.
Anderson on her destination or intentions. Until an
appearance in this court on 31 July 1998, I take it there
had been no direct or indirect contact between Dr.
O’sullivan and the child or Ms. Anderson.

[5] Information came to Dr. O’Sullivan, through a relative
in Ontario, that Ms. Anderson had contacted the relative,
and advised that she was in Canada. As a result of further
inquiries, it, Dr. O’Sullivan learned that Ms. Anderson and
the child were in Surrey.

[6] He commenced these proceedings, and invokes the aid of
the Hague Convention, as incorporated into the law of the
province of British Columbia pursuant to s. 55 of the Family
Relations Act.

[7] The objects of the Convention are clear and, in my
judgment, the reasons for its rules are manifestly sound.
The disruption of the lives of children should be followed
under due process. There was ample time, in my opinion, for
Ms. Anderson to have sorted out the legal affairs with
respect to the child, before departing Ireland.

[8] The primary object of the Convention is to secure the
prompt return of children wrongfully removed. “Wrongfully
removed” includes removal in breach of rights of custody
attributed to a person, jointly or alone, under the law of
the state in which the child was habitually resident,
immediately before the removal or retention.

[9] Dr. O’sullivan says that he had custodial rights as a
joint parent, pursuant to an order of a court in Ireland.
Mr. Lessing argues that there was no actual exercise of any
joint custodial parental rights, under the order, by Dr.
O’Sullivan, immediately before the removal or retention. I
find that I cannot make a determination of that fact on the
information before me. But if I am wrong, and there was no
actual exercise under the order, then I am satisfied that
the law, certainly of this province, is that when parents
live together, they are entitled to the joint custody of a
child of theirs. Dr. O’Sullivan’s material makes clear to me
that the parties were certainly living together prior to the
27 March 1998 when he left to attend a convention.

[10] I therefore find that the removal of the child from
Ireland by Ms. Anderson was wrongful.

[11] Article 12 appears to me to be mandatory. If I come to
the conclusion that there has been a wrongful removal, then
I must order the return of the child to Ireland forthwith.

[12] However, Mr. Lessing has pointed out that Article 13 of
the Convention, the mandatory provisions of Article 12
notwithstanding, confers a discretion not to order the
return of the child if the person opposing the return
establishes a number of factors. Mr. Lessing has invited me
to find that those factors are present in this case.

[13] I have already dealt with the notion that Dr.
O’Sullivan was not actually exercising the custodial rights.
I find that he was. He did not consent to the removal of
the child. But Mr. Lessing argues that there is a grave risk
that the return of the child will expose the child to
physical or psychological harm, or otherwise place the child
in an intolerable situation.

[14] In the affidavit I previously referred to by Ms.
Anderson, she has a description of Dr. O’Sullivan which, in
the ordinary course of events, would raise grave concern in
the mind of the court with respect to Dr. O’Sullivan’s
ability or capacity to carry out adequately the duties and
rights of a custodial parent. The information contained in
that affidavit does not establish, to my satisfaction,
grounds to conclude that the child will be exposed to
physical or psychological harm, or be placed in an
intolerable situation, by returning to Ireland.

[15] First, until Ms. Anderson surreptitiously left Ireland,
she was, according to Dr. O’Sullivan’s information, living
in the same household, although, as she describes it, under
very uncomfortable, intimidating and abusive conditions.
There is no information before me that she took any steps
which could arguably be based upon any realistic notion of
physical or psychological harm, or there being an
intolerable situation, by the child having contact with her
father.

[16] It is also argued by Mr. Lessing that if I order the
return of the child to Ireland, I will disrupt a sibling
relationship with a 12-year-old sister, and this will expose
her to psychological harm. And if I am not satisfied of
that, then Ms. Anderson seeks the opportunity to place
before the court evidence that there will be psychological
harm consequent upon a removal of the child from her
sibling.

[17] There is also information, in the affidavit of Ms.
Anderson, about the notion of capacity to adequately carry
out the duties and rights of a custodial parent, namely, a
brutal element to Dr. O’Sullivan’s character, and an
irresponsible attitude to the consumption of alcoholic
beverages. I am not satisfied that that information
establishes grave risk of physical or psychological harm or
an intolerable situation.

[18] In my judgment, the court in Ireland is the most
appropriate forum to determine the truth or falsity of the
allegations made by Ms. Anderson in her affidavit material.

[19] I agree with Mr. Storey. This family belongs in
Ireland, in the courts of Ireland, where all of the evidence
is available for a rational determination to be made, on the
custodial provisions for this child. Due process should be
followed. There should be an inquiry where all of the
evidence is available. If I am wrong in my interpretation of
the facts of this case in implementing the provisions of the
Convention, then alternatively I hold, under the Family
Relations Act, that this court should decline jurisdiction,
and defer to th& jurisdiction of the courts of Ireland,
where all of the necessary arguments can be made on the
evidence there available. That would be a more rational
resolution of the dispute between these two parents with
respect to this child.

[20] The child will be returned to Ireland forthwith.

[21] The order of Madam Justice Saunders committing the
child into the care of the Director of Children and Families
is vacated.

[22] Now, Mr. Storey, I do not know how the wording of the
minute should be. You seek an order that the child be
delivered to the petitioner in Ireland, but you tell me that
the petitioner is in British Columbia.

(SUBMISSIONS BY COUNSEL)

[23] THE COURT: The following will be the minute of the
order. The child will be returned to Ireland forthwith in
the company of the petitioner, her father.

[24] For the purposes of effecting that transfer, the
Ministry will turn over the care of the child to the
petitioner forthwith. The petitioner will pay t1~e expenses,
the reasonable travel expenses, for the transport of the
respondent to Ireland.

[25] I am mindful of the fact that Dr. O’sullivan did not
create this problem, Mr. Storey, but I agree with Mr.
Lessing. It is a mutual problem. These parents owe it to
this child to get this matter resolved as quickly as
possible. I am satisfied that the only way that that is
going to happen is if Ms. Anderson returns to Ireland and
presses on with litigation as expeditiously as possible.

(SUBMISSIONS BY COUNSEL)

[26] THE COURT: The order will be that Dr. O’Sullivan will
pay for the transport of the family back to Ireland. That
will be arranged immediately in order to get this family
into court, and this problem resolved.

(SUBMISSIONS BY COUNSEL)

[27] THE COURT: As I said this morning, children are
entitled to have parents follow due process in the
resolution of difficulties. If this kind of thing continues
to go on, the children are going to be bounced back and
forth and I am not persuaded that I should depart from the
ordinary situation. Costs will follow the event.

(SUBMISSIONS BY COUNSEL)

[28] THE COURT: At scale 3, yes.

/s/ R.D. Wilson
____________________________________
The Honourable Mr. Justice R.D. Wilson