Canada – RS – 1997

R.S. v. P.A.[1997] Q.J. No. 1610
7 International Abduction [CANDA 1997]
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Indexed as: R.S. v. P.A.

Between

R S., petitioner, and

P.A., respondent, and

B.S., mis-en-cause

[1997] Q.J. No. 1610
No. 500-04-004461-969

Quebec Superior Court
District of Montreal
H. Label J.
Oral judgment: March 5, 1997 (8 pp.)

Counsel:

Marion Thibault (Thibault Duquette Brott & Bordelli) for the
petitioner.

Gally Butler-Grant (Samartzidis Jones Butler & Frieddman),
for the respondent.

REASONS FOR JUDMENT

001 H. LABEL J.:– I have before me various motions: in
particular, a Motion for the immediate return of a child:
also a Motion for custody and another one for visitation
rights. I have had time to review the file and the
materials’ that have been submitted to me, as well as to
review both the Convention and the legislation.

002 In this case, the original motion that was submitted
to the Superior Court was a Motion for the immediate return
of a child pursuant to the provision of the statute enacted
by Quebec to give effect to the Hague Convention regarding
the civil aspects of international child abduction: Loi sur
lea aspects civilis de l’enlevement international et
interprovincial d’enfants. L.R.Q., c. 23.01. There are also
two additional motions: one by the mother for custody and
one by the father for access.

003 The parties were married in l987 in Sri Lanka. The
son who is the subject of the dispute, was born on March
20th, 1990. In 1991, the family moved to England where they
applied for refugee status. The parties separated in 1993
and divorce proceedings were instituted in England. On May
13, 1994, the Court issued an order giving effect to an
arrangement with regard to visitation rights whereby the
father would see his son at an access center, and requiring
that a report be prepared by a welfare officer concerning
access and visitation.

004 As far as the records shows, this report was never
prepared and no further contacts took place between the son
and the father, because the mother and the child
disappeared. She was located in Canada, more than a year
later, by the R.C.M.P. At the time, mother and son had
obtained status in Canada as Convention refugees, while the
father’s status in England remains uncertain.

005 The Motion for immediate return of the child to
England was filed with this Court. During the proceedings,
the father agreed that it was in the best interest of the
child that he not be returned to England. In fact, even in
the proceedings underway in England, the father had conceded
that it would be appropriate that the child continue to
reside with his mother; the issue was accede or visitation.

006 Having regard to all the circumstances, this is
certainly a case where pursuant to the provisions of Sec. 21
of the Loi sur lea aspects civilis de l’enlevement
international et interprovincial d’enfants, 1984, c. 12, the
Court may refuse to order the return of the child. This
would appear to be a case where the party seeking the return
of the child, the father, has really consented to the child
not being returned. In any event, the Court finds it
appropriate not to order the return of the child and, having
regard to the submissions of both parties, to give to the
mother custody of the minor child, because to do otherwise
would place the child in an intolerable situation: if he
were returned to England, he might become subject to a
deportation order issued against his father

007 A dispute remains as to the amended Motion by the
father, in which he seeks to have access to his son. He asks
that he be granted the following visitation rights:

“(a) One month during the summer, where the child would come
to England and see the Petitioner;

(b) At any other period of the year if Petitioner has
sufficient means to pay for his son’s fare to England for a
short period of time,”

The mother objects. The child would be too young to travel
to England alone. In addition, she wants to prove that the
father is violent and, presumably, unfit.

008 Affidavits have been filled by both sides. I have
before me the affidavits of the mother and affidavits filed
by one of her uncles and by her brother. It is alleged that
the relationship between the parties had severely
deteriorated and that the father was violent. There are
allegations of violence against the mother but also against
the child. For his part, the father has filed affidavits
from persons who vouch for his good reputation and status
and for his ability to relate well to children.

009 The record shows that the father has been denied a
visitor’s visa to Canada. He can therefore not appear in
Montreal for the hearing before the Superior Court.

010 Counsel for the mother invokes the provisions of the
Quebec Code of Civil Procedure and submits that, because the
issue is custody and access, oral evidence may and must be
received by the Court. Particularly in this case, where the
evidence would be designed to show violent behaviour against
the mother and against the child and an alleged refusal by
the child to see his father because the child would have
said that his father had threatened to kill his mother.
Counsel for the father has invoked precedents under the
Hague Convention in support of the proposition that, in such
circumstances, oral evidence may be inappropriate. Counsel
for the father has objected to the mother being allowed to
tender oral evidence in support of her position. This
evidence would presumably be designed to support her claim
for custody on which no evidence is needed and, presumably,
her objections to the father being granted access to his
son.

011 However, having regard to all circumstances of this
case and taking into consideration the policy underlying
the Hague Convention regarding the civil aspects of
international child abduction, as well as the law enacted by
Quebec, I come to the conclusion that it would not be
appropriate for a judge of the Superior Court, sitting in
Montreal, hearing and considering oral evidence in support
of a motion to deny to the father access to his son.
Particularly when the father is precluded from coming to
Montreal to dispute the case against him Particularly when
the convention and the law enacted thereunder require the
Courts and the authorities to enforce and protect visitation
and access rights FN1 Particularly when it is the mother’s
decision, however understandable, to leave England taking
the child with her, which as made it impossible for the
father to see his son and for the welfare officer appointed
by the English Court to prepare a report which would have
allowed a resolution of the dispute concerning the visiting
rights of the father. It would not be fair to allow the
mother to use oral evidence before this Court to try to
build a case against the father when she herself has
precluded the conclusion or the continuation of the
investigation that was to take place in England.

012 In any event, the child is now nearly seven and,
obviously, both his situation and that of the father have
changed. It is normally in the beet interest of a child,
particularly a young boy, that he remain in contact with his
father. It is certainly in line with the policies; embodied
in the Hague Convention and the Quebec statute, as well as
the Quebec Civil Code, that steps should be taken, if at all
possible, to maintain contact between father and child.

013 However, before making any decision with regard to
access and visitation rights, this Court must be able to
assess the parental ability of the father and his capacity
to receive the child and to care for him. The Court will
also need assistance in ascertaining whether there exists a
suitable procedure to permit a resumption of contacts
between the child and his father, having regard to the fact
that the child is still very young and that he hasn’t seen
his father for a long period of time. Suitable procedures
are necessary to ensure the safe return of the child, if he
must travel to England to meet his father. It is obvious
that the British authorities are in a better position to
provide much of the needed information, as well as to put in
place suitable procedures to permit a resumption of contacts
and to ensure the safe return of the child at the end of the
visit. It may also be necessary to inquire from the
authorities as to whether suitable travel documents can be
provided to the child. At this stage, the Court recognizes
that Counsel may not be prepared to provide to the Court
information or submissions on these points. Therefore, I
propose to make an interim order and to adjourn the case in
order to permit Counsel to file further submissions.

014 FOR THESE REASONS, THE COURT:

DECLARES that it is not appropriate to order the return of
the child to England;

GIVES custody of the minor child to the mother P.A.;

ORDERS Mrs. P.A. not to leave jurisdiction and not to remove
the child from jurisdiction and to advise the Court of any
change of address;

ORDERS that I remain seized with the case in order to decide
the remaining issues, notably access;

INVITES Counsel to file further submissions with the Court
regarding the procedure to be followed before making a final
decision concerning access;

COSTS TO FOLLOW.

H. LeBEL J.
QL Update: 970606
qp/qi/s/evd
fam

COMMENT BY WILLIAM M. HILTON
FELLOW, INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS

This case is one of the many that holds that it is proper to
use affidavits in hearings involving The Convention on the
Civil Aspects of International Child Abduction, done at the
Hague on 25 Oct 1980 [The Convention].

Indeed, this case points out the obvious, that it would be
decidedly unfair to the out of country party to permit oral
testimony of the (usually) abducting parent while
essentially depriving the victim parent of the same
privilege.

The court also finds that the fact that a child can be
deported with his parent is sufficient to invoke an Art.
13(b) defense. It would be presumed that this would only
apply in cases where the place to which the parent was being
deported to was a “. . . zone of war, famine, or disease.”
Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060.

The court then invites counsel to obtain further information
concerning the child from the place where the father lives
so that the court can make a proper evaluation of the access
rights. To this end the following language of the Uniform
Child Custody Jurisdiction Act (UCCJA) may be of interest:

========================== START =========================

SECTION 20 [Assistance to Courts of Other States.]

(a) Upon request of the court of another state the courts of
this State which are competent to hear custody matters may
order person in this State to appear at a hearing to adduce
evidence or to produce or give evidence under other
procedures available in this State [or may order social
studies to be made for use in a custody proceeding in
another state] . A certified copy of the transcript of the
record of the hearing or the evidence otherwise adduced [and
any social studies prepared] shall be forwarded by the clerk
of the court to the requesting court.

(b) A person within this State may voluntarily give his
testimony or statement in this State for use in a custody
proceeding outside this state.

(c) Upon request of the court of another state a competent
court of this State may order a person in this State to
appear alone or with the child in a custody proceeding in
another state. The court may condition compliance with the
request upon assurance by the other state that state travel
and other necessary expenses will be advanced or reimbursed.

COMMENT

Section 20 is the counterpart of section 19. It empowers
local courts to give help to out-of-state courts in custody
cases. See comments to sections IS and 19. The references to
social studies have been placed in brackets so that states
without authorization to make social studies outside of
juvenile court proceedings may omit them if they wish.
Subsection (b) reaffirms the existing freedom of persons
within the United States to give evidence for use in
proceedings elsewhere. It is derived from section 3.02 (b)
of the Interstate and International Procedure Act, 9B U.L.A.
327 (1966).

========================= END ===========================

As all states of the United States have adopted the UCCJA,
presumably such information could be obtained by invoking
this section. While this section may not be in effect in
other nations, the concept should be readily adaptable to
The Convention since it further’s one of the aims: To
provide for access to children.

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1. Sections 31 to 33.