Court: Supreme Court of Ontario
Number: 67 O.R. (2d) 1; Court File No. 1119/88
Applicant: Earle O. Parsons III
and
Respondent: Sylvia Dolores Styger (Parsons)
Date: 06 Jan 1989
Application for an order for the return of a child pursuant to s.
47 of the Children’s Law Reform Act (Ont.) which incorporates the
Hague Convention on the Civil Aspects of International Child
Abduction;
COUNTER APPLICATION for custody of the child.
Judge: Shapiro D.C.J. (L.J.S.C.)
Family law – Custody – Removal from jurisdiction –
International child abduction – Child born in and residing in
California during parents’ marriage – Parents separating and
mother removing child to Ontario – Removal wrongful under terms
of Hague Convention – Child ordered returned to California where
custody to be determined – Evidence of father’s threat to kill
mother not sufficient to establish child would be exposed to harm
if returned and not warranting trial on issue of harm – Children’s
Law Reform Act R.S.O. 1980, c. 68, s. 47 – The Hague Convention on
Civil Aspects of International Child Abduction, arts. 1, 2, 3, 12,
13, 14.
Constitutional law – Charter of Rights – Mobility rights –
International child abduction – Child with dual American/Canadian
citizenship found wrongfully removed by mother from California
under terms of Hague Convention and ordered returned – Order not
violating mobility rights – Canadian Charter of Rights and
Freedoms, s. 6(1) – Children’@ Law Reform Act, R.S.O. 1980, c. 68,
s. 47 – The Hague Convention on the Civil Aspects of International
Child Adduction, secs. 1, 2, 3, 12, 13, 14.
Constitutional law – Charter of Rights – Fundamental justice
– International child abduction – Child found wrongfully removed
from California under terms of Hague Convention and ordered
returned – Court’s refusal to order trial on issue of whether
return would expose child to harm not violating fundamental
justice – Canadian Charter of Rights and Freedoms, s. 7 –
Children’s Law Reform Act, R.S.O. 1980, c. 68, s. 47 – The Hague
Convention on the Civil Aspects of International Child Abduction,
arts. 1, 2, 3, 12, 13, 14.
The parties were married in 1986 and resided together in
California during their marriage. There was one child of the
marriage, a son who was born in California and had dual
Canadian/American citizenship. The parties separated in September,
1988, and the mother returned to Ontario, taking the child with
her. The mother immediately commenced custody proceedings in
Ontario in the Provincial Court (Family Division). In October the
father instituted divorce proceedings in California, claiming,
inter alia, custody of the child. The California court made a
finding of wrongful removal and retention of the child pursuant to
arts. 3 and 4 of The Hague Convention on the Civil Aspects of
International Child Abduction, but refused to make any order for
custody until the Ontario court determined whether or not to
return the child to California. The father then brought an
application in the Supreme Court of Ontario requesting the return
of the child to California pursuant to the provisions of The Hague
Convention which are incorporated into the Children’s Law Reform
Act, R.S.O. 1980, c. 68, by s. 47. The mother brought a
counter-application seeking dismissal of the main application and
asking for interim and permanent custody of the child. Relying on
evidence that the father had threatened to kill her, the mother
argued that the court should exercise its discretion under art. 13
of The Hague Convention which provides that the court shall not
order the return of the child where to do so would expose the
child to harm. In the alternative, the court was requested to
order a trial on the issue of harm. In addition, the mother argued
that an order for return would violate ss. 6(1) and 7 of the
Canadian Charter of Rights and Freedoms.
Held: the child should be ordered returned to California. If the
mother accompanied the child, the child should remain in the
temporary custody of the mother with reasonable access to the
father pending any other interim or permanent order of a
California court having jurisdiction. If the mother did not
accompany the child, the father should have interim custody with
reasonable access to the mother pending any other order of a
California court.
The court may not rely upon the finding of the California court
that the removal of the child from California was wrongful, but
must come to its own determination on that issue. On the facts of
this case, the removal of the child was wrongful under art. 3 of
The Hague Convention: the child was habitually resident in
California before his removal; at the time of his removal he was
in the joint custody of hie father and mother; the removal was in
breach of the custodial rights of the father which were actually
exercised at the time, and the father did not consent to the
removal. Pursuant to art. 12 of The Hague Convention, the court
was bound to order the return of the child unless pursuant to art.
13 of the Convention there was a grave risk that the return would
expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation. This case does not
fall within art. 13. There ia no direct evidence that the father
ever harmed the child either physically or psychologically. With
respect to the father’s threat to kill the mother, the evidence is
contradictory and even if accepted, concerned an isolated incident
which did not support an inference that the father would harm the
child. The request for a trial of an issue on this point should be
refused.
There was no violation of s. 6(1) of the Charter. A Canadian
citizen does not have the right to remain in Canada in
contravention of The Hague Convention. There was no violation of
s. 7 of the Charter. The refusal to order a trial on the issue of
harm was not a denial of fundamental justice.
Statutes referred to
Canadian Charter of Rights and Freedoms, SS 6(1), 7
Children’s Law Reform Act, R.S.O. 1980, c. 68, s. 47, Schedule
(enacted 1982, c. 20, s. 1)
Conventions and treaties referred to
The Hague Convention on the Civil Aspects of International Child
Abduction, Preamble, arts. 1, 2, 3, 12, 13, 14.
APPLICATION for an order for the return of a child pursuant to s.
47 of the Children’s Law Reform Act (Ont.) which incorporates The
Hague Convention on the Civil Aspects of International Child
Abduction; COUNTER-APPLICATION for custody of the child.
NOTE: An appeal of the decision of Shapiro D.C.J. to the Ontario
Court of Appeal (Morden, Robins and Griffiths JJ.A) was dismissed
on February 24, 1989. The decision of the court endorsed on the
appeal record is published post, p. 11.
SHAPIRO D.C.J.: The marriage was over, after two and a half years.
Its most valuable asset would appear to be a 21-month-old baby boy
named Cruz. Both parents want custody. The father, Earle O.
Parsons III, resides in the State of California. The mother,
referred to in the proceedings as Sylvia Dolores Styger, lived in
California. At least that was so, until the separation on
September 6, 1988. At that time she returned to her native
Province of Ontario. She took Cruz with her. For ease of
identification the father/husband will be referred to as Parsons.
The mother/wife will be referred to as Styger.
Cruz was born in the United States, in San Jose, California on
March 20, 1987. He has dual Canadian/U.S. citizenship. The parents
had been married in Reno, Nevada, on February 5, 1986. They
resided together in California during their marriage and up to the
time of separation.
On September 8, 1988, Styger commenced custody proceedings in
Ontario, in the Provincial Court (Family Division).
On October 13th, Parsons instituted a divorce petition in the
Superior Court of the State of California for the County of Los
Angeles. He claimed, inter alia, custody of Cruz in these
proceedings. On October 25th and 26th the matter came on for
hearing. Styger did not attend although duly served with a court
order dated October 14th.
On October 31st, Parsons brought an application in the Supreme
Court of Ontario. Among other things he asked for the return of
Cruz to Los Angeles County. On November 14th, Styger brought a
counter-application seeking dismissal of the main application and
asking for interim and permanent custody of the child.
On November 15th, the Honorable Judge J.A. MuUen, as local judge
of this court ordered that the application and counter-application
be adjourned to permit cross-examination on affidavits filed by
Parsons and Styger. These examinations were held. Portions of the
cross-examinations were extensively referred to by counsel when
the application and counter-application came before me. In
addition I had before me the order of Judge Mullen, and the
transcript of the California hearings of October 25th and 26th,
the affidavits of the parties, factum of counsel and respective
case books of law and authorities. I also had the benefit of able
and thorough argument of counsel. I reserved my decision which I
now deliver with reasons.
It should be noted that the order of Judge Mullen contained, inter
alia, an order that the Provincial Court (Family Division)
application for custody brought by Styger be stayed. It also
contained provision for supervised access by Parsons at the home
of Stygers parents in the City of Mississauga, Ontario, “or at any
other place agreed upon between the parties pending determination
of this matted’, as well as telephone access by Parsons.
As for the California hearing, the court presided over by the
Honourable Judge Jill S. Robbins very properly observed:
I am not making any order today, other than the findings,
because I do not want to be in a position of conflict. The
Court believes it is inappropriate to do anything more until
Canada has determined whether it will return the minor child
to the state of California.
The Court has made a finding of wrongful retention and
removal as required by articles 3 and 4 of The Hague
Convention, but this Court’s determination is not biding upon
the Province of Ontario or the Country of Canada.
The California court did however make the following pertinent
findings:
The court makes the following findings pursuant to the
Convention on the Civil Aspects of International Child
Abduction, also known as The Hague Convention. In addition to
the findings made earlier this morning and in addition to the
testimony elicited on October 25, 1988, the court finds that
the removal and retention of Anthony Cruz Parsons, born March
20, 1987, is and continues to be wrongful; that the conduct
of the respondent Sylvia Dolores Parsons, in removing said
child is actionable conduct and constitutes a breach of the
custody rights of the petitioner.
The court further finds that at the time of the removal
and/or retention and the continuing retention the custody
rights of the petitioner were actually exercised by the
petitioner and would have continued to be exercised but for
the wrongful removal and retention.
The court further finds that the rights of custody as
referred to herein arise by operation of law in California,
particularly Civil Code Section 197 granting mothers and
fathers equal rights to custody.
The court further finds pursuant to the testimony as well as
the written declaration that pursuant to art. 4 of The Hague
Convention, the minor child, Anthony Cruz Parsons, was
habitually resident in the contracting State, which is The
United States of America and in the Territory which is
California and in particular in Los Angeles County, and that
he was, in fact, a habitual resident immediately before the
breach of custody rights.
The Court further finds that the policy of the Convention
which is to protect children from the harmful effects of
their wrongful removal or retention would in fact be served
by the prompt return of Anthony Cruz Parsons to the State of
his habitual residence and the territory of his habitual
which is the State of California.
These findings are made pursuant to art. 3, art. 4, and art.
13 of The Hague Convention of October 25, 1980.
The court makes the further additional findings that the
petitioner is a resident and domicile of the State of
California, County of Los Angeles; that the petitioner,
respondent and the minor child since birth resided in the
State of California; that were this a matter brought under
The Uniform Child Custody Jurisdiction Act the court would
find that California is the home state of said child.
While the court cannot find significant connections in
California due to the youth of the child and the work
schedule of the petitioner, the Court can find a variety of
connections to [this state more predominant that any possible
connection to] the Country of Canada. The mere presence of
party in another state or country is not sufficient to confer
jurisdiction in that country.
The court believes that California and particularly Los
Angles County is an appropriate forum to hear and determine
the merits of the custody issue.
Counsel has requested that this court make certain findings
pursuant to The Ontario Children’s Law Reform Act. Just as I
would not pretend to make findings of another country’s
statutes with which I haven’t been provided, I would
certainly hope that other countries would not try to do the
same with respect to our statutes with which they have not
been provided. The court declines to make any findings as
requested concerning The Ontario Children’s Law Reform Act,
believing that the appropriate judicial authority in the
Ontario Province is certainly more skilled in that area than
this court could ever be.
The court does not believe that any other state or country
has significant contact with Anthony. The Court further finds
that at the time of his wrongful retention and removal
Anthony Cruz Parsons was living in a stable, healthy and
wholesome environment with both the petitioner and
respondent.
The court further finds that notwithstanding the petitioner’s
alleged disability which prevents him from parenting, that in
fact petitioner is capable of and has indeed taken care of
daily needs of the minor child without requiring assistance,
except to the extent parents require baby-sitting assistance.
The California court very courteously offered to confer with this
court to discuss the application of The Hague Convention. Although
I appreciate the spirit of the offer and I am sure it would have
been of assistance, since neither of the parties nor their counsel
would perforce be present, I am obliged to decline. Therefore, I
must conclude that the responsibility of interpretation and
application of The Hague Convention on the matter before this
court must rest solely with this court.
Both Ontario and California are signatories to the aforementioned
Convention, Ontario in 1983 and California as of July 1, 1988.
The Hague Convention is incorporated in The Children’s Law Reform
Act (Ontario). Section 47 of The Act specifically declares the
Convention to be “in force in Ontario and the provisions thereof
are law in Ontario”.
The portions of the Convention are applicable to the facts of this
case are the Preamble and arts. 1, 2, 3, 12, 13 and 14.
The heading and the Preamble read:
CONVENTION OF THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION
The States signatory to the present Convention,
Firmly convinced that the interests of children are of
paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful
effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the
State of their habitual residence, as well as to secure
protection for rights of access,
Have resolved to conclude a Convention to this effect and
have agreed upon the following provisions:
The Convention is then divided into chapters. Chapter I is the
“Scope of the Convention” and contains five articles.
Articles 1, 2 and 3 are relevant and read:
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) above,
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.
The next relevant Articles are 12, 13 and 14. They are found
within Chapter III – “Return of Children”.
The first paragraph of art. 12 reads:
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 reads in part:
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 its return
establishes that–…
(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…
In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into
account the information relating to the social background of
the child provided by the Central Authority or other
competent authority of the child’s habitual residence.
Article 14 reads:
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, and 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.
Applying the Convention and thus the Children’s Law Reform Act
to the facts of this case, I have no difficulty in making the
following findings of fact:
1. The child Cruz, immediately before his removal, was
habitually resident in the State of California.
2. At the time of his removal Cruz was in the joint custody of
Parsons and Styger and lived with both parents at their
matrimonial residence.
3. The removal was in breach of the custodial rights of Parsons
which were “actually exercised at the time”.
4. Parsons not having consented, the removal was wrongful and
designed to deprive him of his joint custodia] right.
5. The right of custody of Parsons is entitled to secure
protection and to be effectively respected.
6. The removal being from the State of California to the
Province of Ontario was international in nature and came
within the ambit of The Hague Convention on the Civil Aspects
of International Child Abduction.
The Province of Ontario is a contracting state to the Convention.
Therefore “a judicial authority” (a competent court) within the
province coming to the aforesaid conclusions and making the
above-mentioned findings, is obligated to “(shall) order the
return of the child forthwith”.
There is, however, a saving provision. This is found in the
“notwithstanding” clause of art. 13. If “there is a grave risk
that [the] return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation”, the judicial authority is not bound to order the
return of the child.
Mr. Brannigan, counsel for Styger, argues that the present case is
a proper one wherein this court should exercise this discretion
and not order the return. In the alternative, Mr. Brannigan
suggests that the least I should do is order a trial of an issue
on this point. In the very full and ample material before me,
there is no direct evidence that Parsons ever harmed the child
either physically or psychologically. Indeed I would find, if
called upon to make a conclusion upon the material before me, that
both parsons and Styger are loving and concerned parents. I do
not go beyond this because I am not dealing with the matter of
permanent custody. That will be for another tribunal at another
time, no doubt on additional evidence.
I specifically referred to there being no direct evidence that
Parsons ever harmed the child. Mr. Brannigan asks me to draw the
inference that Cruz would be exposed to harm or placed in an
intolerable situation on the basis of certain allegations of
Styger as to the propensity or capacity of Parsons for violence.
In support of this, it is alleged that Parsons had threatened to
kill Styger. The evidence on this point is contradictory. Even if
accepted, it cannot be taken out of context and at best it was one
isolated instance. Not unexpectedly in a matrimonial matter, both
spouses make uncomplimentary allegations against each other. It
would be rather unusual in a strongly contested case, if this were
not done. Particularly if custody were an issue.
The onus is upon the party making the allegation that the child
would be harmed or in an intolerable situation. I find that this
onus has not been made out directly or by inference if if the
alleged isolated past threat had in fact been made. Cynically, it
might be said that the marriage is a rare one wherein in the heat
of anger, such expressions might not have been used. That is a far
cry from evidence of actual intent. There was no such supporting
evidence here. In any event there was never any expression, verbal
or otherwise, of any harm to the child. I must therefore find
that the “notwithstanding’ clause has not been established.
I do no accede to the request for the trial of an issue on this
point. It would entail additional delay and expense. Had the
evidence been stronger, I may have considered such request as
having more merit. In refusing it, I have also considered the
wording of the Convention which in the Preamble refers to
procedures to ensure “prompt return” and in art. 2, that the
contracting states “shall use the most expeditious procedures
available”. Nor do I think that in this case justice is being
sacrificed on the altar of expediency.
Article 13 in its concluding paragraph states that
“the judicial and administrative authorities shall take into
account the information relating to the social background of
the child provided by the Central Authority or other
competent authority of the child’s habitual residence.”
Although parents would certainly be competent to give social
background and they have done so in their evidence in this case,
art. 13 refers no doubt to independent professionals. The
transcript of the California hearing of October 25th and 26th was
all that was available to me from California, “the child’s
habitual residence”. There was in our court file a psychological
report of an Ontario psychologist, Dr, Barbara Landau of Toronto.
Attached to it was a most impressive curriculum vitae as to the
qualifications of Dr. Landau. The report is dated October 28,
1988. In it Dr. Landau addresses herself to the “probable impact
on a child of approximately one and a half . . being removed from
his family setting and separated fro more than two months from a
parent”.
Dr. Landau forthrightly states that she has seen neither the
parents nor the child. Her observations are based on clinical
experience and researched literature. They may be quite pertinent
on the issues of custody and access, but they do not assist me
very much on the question of return.
Miss Powell, counsel for Parsons, draws attention to art. 14 and
the finding of the California court that the removal of the child
was wrongful. Although under art. 14 I may take notice of this, I
should state that I have arrived at my similar conclusion
independent of this finding.
It seems today that it is a rare case indeed in which reference is
not made to some aspect of the Canadian Charter of Rights and
Freedoms.. The present case is therefor no exception. Mr.
Brannigan cites ss. 6(1) and 7 of the Charter.
Section 6(1) reads:
(6)1 Every citizen of Canada has the right to enter, remain
in and leave Canada.
Counsel agreed that the child Cruz Parsons has dual citizenship.
As a Canadian citizen does he have the right to remain in Canada
in defiance of The Hague Convention? I think not. No more so than
a Canadian citizen could defeat a Canadian court extradition order
to a treaty co-signatory member. In addition to the Province of
Ontario being a signatory to The Hague Convention on the Civil
Aspects of International Child Abduction, the Dominion of Canada
was also a signatory. The Convention came into force both
federally and provincially on the same date, namely December 1 ,
1983.
Section 7 of the Charter reads:
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
Mr. Brannigan argues that s. 7, particularly when read with s. 6,
justifies the trial of an issue before this court. For reasons
earlier stated I consider that this case should be decided by this
court on the material presently before it, without any further
delay or cost. I do not consider the refusal to order the trial of
an issue to be a denial of fundamental justice.
Counsel cited reported and unreported cases in their material and
argument. Unfortunately there is little case-law on the point
in issue and none directly within the present factual situation. I
therefore refrain from any references. Fortunately the Convention
is clearly worded and its intent and purpose quite obvious. It
meets the present situation. An order will therefore go that
Anthony Cruz Parsons be returned forthwith to Los Angeles
County in the State of California. Considering his age and the
concerned parenting of the mother, I presume that she will
accompany him. If so, he may remain in her temporary custody in
Los Angeles County with reasonable access to the father
(including telephone access), pending any other interim or
permanent order of a California court having jurisdiction.
If the mother does not accompany the child Cruz, then interim
custody shall be that of the father with reasonable access to the
mother (including telephone access), pending any other interim or
permanent order of a California court having jurisdiction.
If, however, there is a reconciliation between the parents and if
they can agree, then there could be interim joint custody to the
parents. This would also be dependent upon any other interim or
permanent order of a California court having jurisdiction.
Counsel spoke to the matter of the costs of the present
application and counter-application. Both counsel indicated that
if their client were unsuccessful there should be no costa against
the client. Their submissions as to costs if the client were
successful was otherwise. Considering the nature of this
application, the relative novelty of it before our courts and the
fact that each parent sincerely believed that he or she was acting
in the best interests of the child, I conclude that there should
be no costs attached to the order herein and that each party
should pay his and her own costs.
Application allowed; counter-application dismissed.
____________________
Parsons v. Styger
[Indexed as: Parsons v. Styger]
[Ante, p. 1]
NOTE: An appeal of the above-cited judgment of Shapiro D.C.J. to
the Ontario Court of Appeal (Morden, Robins and Griffiths, JJ.A.)
was dismissed on February 24 1989. The decision of the court
endorsed on the appeal record was as follows.
Judge Shapiro gave careful consideration to this matter. It is
clear that the child was “wrongfully removed” within the meaning
of this term in the Convention and there was ample evidence to
justify the judge’s conclusion respecting the application of art.
13(b). We think, also, that the judge appropriately exercised his
discretion in refusing to direct the trial of an issue.
The appeal is dismissed with costs.
In the circumstances, we do not think that this is an appropriate
case to grant leave to appeal from the costs order. The motion is
dismissed without costs.
Counsel:
For Applicant: For Respondent:
Susan S. Powell, Esq. Colm J. Brannigan, Esq.
43 Queen St. West No. 101 – 380 Bovaird Drive
Brampton, Onrtario L6Y 1L9 Brampton, Ontario L6Z 2S8
(416) 846-4991
Donald S. Eisenberg
Attorney At Law
811 W. 7th St., 11th Floor
Los Angeles, CA 90017
(213) 622-2114
FAX (213) 622-2125
William M. Hilton, CFLS
Attorney At Law
Box 269
Santa Clara, CA 95052
(408) 246-8511
FAX (408) 246-0114