CANADA – THOMSON – 1993 (Return ordered) THOMPSON v THOMSON. Mother took child to Canada from Scotland. Child is ordered back to Scotland. The Court gave interim custody to the mother. (See Mr. Hilton’s footnote) (See below)
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Thomson and Thomson (Manitoba Q.B. Fam.Div. 1993)48 R.F.L. (3d) 308 [1993]
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COURT OF QUEENS BENCH OF MANITOBA
(FAMILY DIVISION)
Suit No. FD 93-01-32729
(Winnipeg Centre)
BETWEEN:
AMANDA LOUISE THOMSON,
Petitioner (Wife),
– and –
PAUL THOMSON,
Respondent (Husband).
Martin G. Tadman for the Petitioner (Wife)
Jack A. King for the Respondent (Husband)
Judgment delivered: June 28, 1993
DAVIDSON. J.
1. The issue in this case is the enforcement of extra-provincial
custody and/or access orders pursuant to The Child Custody
Enforcement Act, R.S.M. 1987, c. C360 (the “Act”) and the
Convention on the Civil Aspects of International Child Abduction
(also known as the Hague Convention, and herein the “Convention”).
In particular, the issue is whether 15-month old Matthew Paul
Thomson should be returned to Scotland to comply with orders of
the Scottish courts.
PRELIMINARY ISSUE
2. As a preliminary matter it is argued that a Convention
application is a prerequisite to the operation of the provisions
of the Act. The Convention is set out in a schedule to the Act,
and the provisions of the Convention are law in Manitoba. It is
argued that I have no proof of a proper application having been
commenced under the Convention and that I should therefore dismiss
the application to enforce the extra-provincial order. I accept
that I do have appropriate evidence of an application having been
made under the Convention, but more importantly, I find that no
such application is required. The provisions of the Act can be
invoked quite apart from any proceeding under the Convention. and
that is abundantly clear from Article 29 of the Convention. which
reads:
“This Convention shall not preclude any person,
institution or body who claims that there has been
a breach of custody or 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.”
CONCLUSION
3. For reasons which follow, I am prepared to recognize the
order(s) of the Scottish courts. I am prepared to order the child
returned to Scotland, following the statutory scheme to which I
will later refer. I am also prepared, however, to make an interim
order of custody in favor of Ms. Thomson, based on the best
interests of the child, to allow her time to proceed with a
custody application in Scotland.
FACTS
4. The parties were married February 15, 1991, in Scotland. In
fact, they have each always lived in Scotland. Their son Matthew
was born on March 22, 1992. They separated September 30, 1992.
5. The following occurred after separation:
(1) October 9, 1992
Order for home assessment made by the Sheriff of the
Sheriffdom of South Strathclyde Dumfries and Galloway at
Stranraer (the “Scottish court”)
No order of custody
Order appears to have contained a non-removal clause
(2) November 27, 1992
Interim custody to Ms. Thomson
Specified access to Mr. Thomson
Non-removal of the child from Scotland
(3) December 2, 1992
Ms. Thomson left Scotland, without advising Mr. Thomson,
and came to Manitoba, initially planning simply a visit
with her parents, who had moved to Wawanesa. Sometime
thereafter, she formed the intention to remain in Canada.
(4) February 2, 1993
Ms. Thomson filed a petition in Manitoba, seeking custody
of the child under The Family Maintenance Act, R.S.M.
1987, c. F20
(5) February 3, 1993
The matter proceeded to a hearing in Scotland. Ms.
Thomson’s lawyer was allowed to withdraw and the matter
proceeded on an uncontested basis, with Mr. Thomson and
his mother giving evidence.
Order of custody to Mr. Thomson. It appears to be a final
order.
(6) March 9, 1993
Ms. Thomson filed an appeal of the order, in Scotland
Ms. Thomson’s counsel first appeared in Manitoba, trying
to obtain a without notice order.
(7) April 15, 1993
Appeal denied
(8) May 27, 1993
Hearing in Manitoba. The two matters that were heard were:
(a) a motion of Ms. Thomson asking the court to direct the
trial of an issue; in particular, the issue of whether the
child would suffer serious harm or be placed in an
intolerable situation should the court enforce the
Scottish orders. Further, she asked for interim custody
pending the trial.
(b) an application of Mr. Thomson to enforce the Scottish
orders; in particular, that Ms. Thomson return the child
to Scotland and pay the costs associated with doing so.
Further, he asked to stay her custody proceedings here.
6. I have stated what various orders appear to say. That is
because of the state of the record before me. I have a certified
copy of a record of proceedings in the Scottish court, some of the
provisions of which are difficult to understand. The document is
titled “Principal Interlocutor Sheets”, and lists, in summary
form, what happened on each of the days the matter appeared in
court. Some of the language prohibits me from having a full
understanding of each and every entry. I do have, however, an
affidavit from Mr. Thomson’s lawyer in Scotland (Mr. Forster)
explaining the most substantive provisions. It is argued that he
is not an independent witness and would interpret the provisions
in favor of his client. While that may be so, I do not have any
contradictory evidence that would cause me to doubt the facts to
which he has deposed. While Ms. Thomson would have information
with respect to various of the entries, she has chosen not to put
that information before the court. She has attempted to strike,
from Mr. Forster’s affidavit, an explanation of what happened on
various court dates (leave to amend her notice of motion which
sought expungement, to include paragraphs 8 and 9 of his
affidavit, was not granted), but did not file any affidavit
material which took issue with the facts as alleged, save and
except for the state of her knowledge of some of the proceedings.
7. Of particular note is the fact that she has chosen not to
include in her affidavit material any reference to a final order
having been granted in Scotland, or any reference to the fact that
she appealed that unsuccessfully. In fact, her affidavit material
would lead the court to believe that nothing happened in Scotland
after she was successful in obtaining an interim order.
8. Ms. Thomson says that she did not know that the November 27,
1992 order contained a non-removal clause. She further deposes
that she did not know of the final custody hearing on February 3,
1993. Her evidence is that she had a very brief telephone call
with her lawyer on November 27, 1992, that her lawyer was in a
hurry and simply advised her that she had gained custody and Mr.
Thomson had gained access, and that she, Ms. Grier, would provide
a written report within a few days. In contrast to that is the
affidavit of Mr. Forster, who says he spoke to Ms. Grier shortly
after Ms. Thomson left Scotland. He says that Ms. Grier confirmed
that she had advised her client of the non-removal provision.
Additionally, Mr. Forster says that he spoke to Ms. Grier, on a
later occasion, and that Ms. Grier confirmed that she had advised
her client of the February 3, 1993 hearing date, and the nature
and effect of same.
9. It is difficult to resolve this credibility issue on affidavit
material. It is, however, unnecessary to do so. If she did not
know of the non-removal clause, or of the final hearing date in
February, 1993, at the very least:
(a) she knew of the access order made on November
27, 1992 and chose to ignore it on December 2,
1992, when she came to Canada;
(b) she was wilfully blind to the course of
proceedings which she had instituted in Scotland,
as she must have failed to make appropriate, if
any, inquiries of a lawyer that apparently
continued to act on her behalf throughout; and
(c) she failed to return the child once she became
aware of the contents of the November 27, 1992
order and, further, after she became aware of the
February 3, 1993 order.
I have once again used the word “apparently” in reference to Ms.
Grier continuing to act for her. In each and every entry on the
interlocutor sheets from Scotland, Ms. Grier is noted as counsel.
There were at least four appearances, of little consequence,
between the orders of November 27, 1992 and February 3, 1993, and
she appeared on each of those occasions. Although there are
notations which indicate that she was allowed to withdraw on two
occasions (including the final hearing of February 3, 1993), she
appears to have continued acting.
10. I do not have a copy of an order of either November 27, 1992
or February 3, 1993, or, indeed, an order dismissing the appeal on
April 15, 1993. Neither counsel has explained to me why orders
were not filed in those matters. However, I have no reason not to
proceed to enforce orders which Mr. Forster confirms are in
existence, and which Ms. Thomson does not deny.
THE LAW
11. The importance of enforcing orders from other jurisdictions
cannot be overstated and judges must be cautious not to give in to
a common, and sometimes overwhelming, temptation to do what they
feel is right, in a given custody dispute, once one of the parties
has moved to the jurisdiction. The Act and Convention dictate that
we are to enforce orders from other jurisdictions, except in
limited circumstances, and those circumstances are spelled out in
the Act. As a result, I start from the position that I should
enforce the order of February 3, 1993 giving custody to Mr.
Thomson. WMH FN01
12. The circumstances in which this court should not enforce an
extra-provincial order, or can make an order inconsistent with it
(once the initial connection of the child and the extra-provincial
jurisdiction is established) are two-fold. The first relates to
the connection of the child with this jurisdiction and the
second relates to the question of serious harm. In fact, the
scheme of the Act is to follow through, sequentially, ss. 3, 4
and 5. Section 3 reads:
“A court on application shall enforce, and may make
such orders as it considers necessary to give
effect to, a custody order made by an
extra-provincial tribunal as if the custody order
had been made by the court unless it is satisfied
on evidence adduced that the child affected by the
custody order did not, at the time the custody
order was made, have a real and substantial
connection with the province, state or country in
which the custody order was made.”
As it is clear that the child had a real and substantial
connection with Scotland when both custody orders were made,
nothing in this section would allow me to disregard the Scottish
orders. That being established, two sections allow me to make an
inconsistent order.
13. Section 4(1) reads:
“Notwithstanding the existence of a custody order
affecting a child made by an extra-provincial
tribunal, a court on application may make a custody
order in respect of the child that differs from the
custody order made by the extra-provincial
tribunal, if it is satisfied
(a) that the child affected does not, at the time
the application is made, have a real and
substantial connection with the province, state or
country in which the custody order made by the
extra-provincial tribunal was made or was last
enforced; and
(b) that the child has a real and substantial
connection with Manitoba or all the parties
affected by the custody order are habitually
resident in Manitoba.”
To make an order under this section, I would have to find that the
child did not, on February 3, 1993, have a real and substantial
connection with Scotland, and had a real and substantial
connection with Manitoba. I can dispose of this issue easily on
the facts. The child was born in Scotland, always lived in
Scotland, and came to Canada only in December, 1992. Ms. Thomson
brought the child here in December for a visit only, and sometime
thereafter, but prior to swearing an affidavit on January 22,
1993, she decided to remain here permanently. The child has lived
most of his life in Scotland, had only been in Canada two months
prior to the application for custody being made here, and it is
clear that the real and substantial connection of the child is
with the country of Scotland, and not the Province of Manitoba.
14. Section 5 reads as follows:
“Notwithstanding any other provision of this Act,
where a court is satisfied that a child would
suffer serious harm if the child remained in or was
restored to the custody of the person named in a
custody order made by an extra provincial tribunal,
the court may make a custody order in respect of
the child that differs from the custody order made
by the extra-provincial tribunal.”
It is to this issue that most of the argument was addressed.
15. Because the issue of serious harm is reserved to the Manitoba
court, it is argued that I should direct a trial of that issue,
and not decide the matter on affidavit material. It is pointed out
that there appear to be inconsistent tests set out in s. 5 of the
ACT and Article 13 of the Convention, and that the lesser test
should apply. In particular, while s. 5 of the ACT uses the words
“serious harm”, Article 13 of the Convention states, in part, the
following:
“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.
If I were to apply the lesser test, I would not need to find
serious harm, or even a grave risk of physical or psychological
harm, but merely an “intolerable situation”.
16. While it is not necessary for me to decide the issue, as I do
not find that either test has been met, the Manitoba Court of
Appeal decision in Lavitch v. Lavitch (1985), 37 Man.R. (2d) 261,
provides guidance, our Court of Appeal having discussed the very
issue of the apparent inconsistencies between the ACT and the
Convention. In particular, the Court of Appeal has stated
“… that the legislative intent was to make the
circumstances and exceptions of the Convention
applicable to all cases of enforcement of foreign
custody orders and that the ACT should be construed
accordingly. In the result, a Manitoba court need
not order the return of a child to a foreign
jurisdiction in those circumstances set out in the
ACT or the Convention …. ” (p. 265)
17. I am not prepared to order the trial of the issue because
there is no real allegation of either serious harm or an
intolerable situation. The affidavit material of Ms. Thomson does
not even allege, let alone prove, one or the other of these
elements. Both of her affidavits clearly state why she believes
Matthew’s best interests would be served if he remained in Canada.
Her affidavits are worded in exactly those terms. I accept that
she need not use the words “serious harm” or “intolerable
situation” to establish her claim, and that she need only provide
the appropriate facts from which the court can find serious harm
or an intolerable situation. However, the tenor and language of
her affidavits convince me, not that she is concerned about any
serious harm or an intolerable situation, but that she truly sees
the issue of remaining in Canada as a best interests issue.
17. Without intending to be exhaustive in listing her evidence,
but to give the flavor of it, she states that Mr. Thomson has
never bathed the baby or changed a diaper; that he is unemployed
and on welfare, with only a grade 11 education and no ambition to
improve himself; that he spent too much money during the marriage
fixing up his car; that he had connived at keeping the child with
his parents, and away from her, for a week prior to their
separation; that the area of Scotland in which Mr. Thomson lives
is depressed, with no reasonable opportunities for employment or
education; that he had been threatening and intimidating her prior
to separation; that he had threatened to take the child to
England; and that the caravan they had lived in was cold and
drafty and singularly unsuitable for a child (Mr. Thomson now
lives with his parents, as the parties did for part of the
marriage).
19. Despite current allegations of safety issues, Ms. Thomson
called her husband, after she had been in Canada several weeks, to
suggest that she return to Scotland and attempt a reconciliation.
20. The detailed, court-ordered assessment of Peter Matthews does
not mention or allude to any safety issues whatsoever. It
recommends that Ms. Thomson have custody because she is the better
parent. It finds no particular fault with Mr. Thomson, except to
the extent that he has less ambition than his wife, and relies too
heavily on his parents in caring for the child – hardly serious
harm or an intolerable situation. In fact, the child had lived
half-time with the grandparents for a few months leading up to the
separation, and the assessment stated that the baby was thriving.
21. The Lavitch case is particularly instructive on the way our
court should approach this issue. In that case, the parties were
divorced in 1979 and the children were the subject of a joint
custody order, with the mother having the primary physical care of
the children. There was a restriction against removing the
children from southern California. In 1985, Mrs. Lavitch left
California and came to Manitoba, applied here and obtained an ex
parte order of custody, and applied for a continuation of that
order until trial. Meanwhile, the husband had obtained an ex parte
order in California awarding him sole custody, and he applied in
Manitoba for enforcement of the California orders.
22. The motions judge found that it was in the best interests of
the children to remain with Mrs. Lavitch, but that the
administration of justice could only be served by her being
required to return to California to bring custody proceedings
there. He found that the children wished to remain with their
mother and were, at best, ambivalent about a relationship with
their father. He ordered that Mrs. Lavitch proceed with a custody
application expeditiously in California, but that she have interim
custody.
23. The Court of Appeal overturned that order, and directed a
trial on the issue
“… as to whether or not the order of the Superior
Court of California should be enforced (which will
involve the questions of risk of harm to the
children, of them being put in an intolerable
situation and of whether or not they have attained
the age and degree of maturity at which it is
appropriate to take account of their views and
whether or not they do object to being returned to
California).” (p. 267)
The comments with respect to age and degree of maturity, and
whether or not they object to being returned to California, relate
to other criteria set out in the Convention to which I have
previously not referred, as they are not relevant to this case.
24. The Court of Appeal found that the motions judge
“… gave too much consideration to the importance
of recognizing the order of an extra-provincial
tribunal and insufficient consideration to the risk
of harm to the children or of placing them in an
intolerable situation. He gave no consideration to
the objections of the children or to their degree
of maturity which would have entitled him to take
account of their views. The effect of the interim
order was to surrender to the Superior Court of
California the custody jurisdiction without a
decision first being made as to the issues reserved
to the Manitoba court for decision.” (p. 266)
25. Twaddle, J.A., speaking for the court, went on further to say
however:
“If the children were of such a tender age that
their objections should not be a factor and if no
serious question of there being a risk of harm to
them arose (other grounds for refusing to order the
return of the children under the ACT or the
Convention not arising), it would be appropriate to
make an order of the nature made by the learned
judge in this case.” (p. 266) (emphasis mine)
26. Applying that statement to the facts of this case, I find:
(a) that Matthew is obviously of such a tender age
that his objection would not be a factor;
(b) there is no serious question of a risk of harm;
and
(c) there are no other grounds under the ACT or
Convention for refusing to order the return of the
child. The case would therefore direct, or at least
allow, that it is appropriate in this case, and
based on my findings, to make an order of the
nature made by the learned trial judge in that
case.
27. The differences in the factual bases between that case and
this are readily apparent. In particular, the motions judge found
that the children (who were 12 and 13) wished to remain with their
mother and were, at best, ambivalent about the relationship with
their father. He further found that emotional, if not physical,
harm might come to the children if he gave effect to the
California order. As a result, two of the criteria in the Act or
Convention, which would have allowed him to make a custody order
inconsistent with the California order, were, in fact, present.
Given his acknowledgment of those issues, the Court of Appeal
found that the matter should proceed to trial to further explore
those matters, rather than deciding them on affidavit evidence. In
summary, the court said:
“Only where there is a bona fide allegation of risk
of harm to children or objection by a child of an
age of discretion or other condition precedent
contained in the Act or Convention will a Manitoba
court consider the objection to enforcement ….”
(p. 267)
28. Having decided that there is no reason not to enforce the
order of the Scottish court, I turn to s. 6 of the Act. It
provides:
“Upon application, a court,
(a) that is satisfied that a child has been
wrongfully removed to or is being wrongfully
retained in Manitoba; or
(b) that may not exercise jurisdiction under
section
may do any one or more of the following:
(c) Make such interim custody order as the court
considers is in the best interests of the child.
(d) Stay the application subject to,
( i ) the condition that a party to the application
promptly commence or proceed expeditiously with a
similar proceeding before an extra-provincial
tribunal, or
(ii) such other conditions as the court considers
appropriate.
(e) Order a party to return the child to such place
as the court considers appropriate and, in the
discretion of the court, order payment of the cost
of the reasonable travel and other expenses of the
child and any parties to or witnesses at the
hearing of the application.”
29. I am satisfied that pursuant to s. 6(a) or s. 6(b), I may
make an interim order. Particularly with respect to s. 6(a), 1 am
satisfied that the child has been wrongfully removed to or is
being wrongfully retained in Manitoba.
30. Ms. Thomson argues that the removal or retention is not
wrongful, based on Article 3 of the Convention. It states, in
part:
“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
…”
31. She argues that she did not remove the child:
(a) in breach of the November 27, 1992 order
because that order gave her custody. While she
removed the child contrary to the non-removal
provisions of an order, she argues that that is not
wrongful as it is not stated to be wrongful in the
Act or Convention.
(b) in breach of the February 3, 1993 order because
the child had already been in Canada for two months
at the time that order was made.
32. She argues that she did not retain the child:
(a) in breach of the November 27, 1992 order, once
again because it gave her custody.
(b) in breach of the February 3, 1993 order because
to do so she would have to be in breach of rights
of custody attributed to a person under the law of
the State in which the child was habitually
resident immediately before the retention, and she
argues that the child was habitually resident in
Manitoba immediately before the February 3, 1993
order.
33. I find that the child was both wrongfully removed and,
subsequently, wrongfully retained, and in particular:
(a) the removal was in breach of rights of custody
in the November 27, 1992 order because the custody
awarded to Ms. Thomson was not unconditional. I see
non-removal restrictions generally as a term of
custody.
Further, rights of custody are specifically defined
in Article 5 as including “rights relating to the
care of the person of the child and, in particular,
the right to determine the child’s place of
residence”. Ms. Thomson was clearly given rights of
custody which restricted her right to determine the
child’s place of residence and she is clearly in
breach of that restricted right of custody.
(b) the retention was in breach of rights of
custody in the February 3, 1993 order, as I cannot
accept that “under the law of the State in which
the child was habitually resident immediately
before the … retention” can be interpreted to
mean Manitoba. To accept that interpretation would
be to accept that a parent is entitled to hide a
child in Manitoba long enough to establish a
habitual residence here for the child, and then
argue successfully that they can only be guilty of
retaining that child contrary to a Manitoba order
and no other. Nothing could be further from the
intent of the Act and Convention.
34. Having made the determination that the child has been
wrongfully removed or retained, s. 6(c) of the Act allows me to
make such interim custody order as is in the best interests of the
child. I believe, on the evidence before me, that it is in the
best interests of the child to remain, in the long-term, in the
custody of his mother. That issue is not for me to determine,
however, and the Scottish courts will determine what is in the
continuing best interests of the child. On an interim basis,
however, it is clearly in the best interests of the child that he
not be removed from his mother’s care, because he has been solely
in her care for the last seven months (albeit as a result of her
actions, that is not relevant to the child’s best interests). The
child appears to be happy and healthy in his mother’s care and to
abruptly terminate that care could not possibly be beneficial to
the child pending a custody determination. As a result, I order
that the interim custody of the child be granted to Ms. Thomson.
The child is to be returned to the jurisdiction in Scotland in
which the order was made, and to ensure that she proceeds
expeditiously to have matters resolved in Scotland, I am prepared
to arbitrarily grant custody to her for a period of four months
only, at which time my order will expire.
35. While it has not been made clear to me by counsel what
proceedings may be available to Ms. Thomson in Scotland given that
a final order has been granted and appealed, we must presume that
the Scottish court will grant audience to her to determine this
very important issue, which has not been fully determined there on
the merits.
/s/ C. M. Davidson
Footnote by Wm. M. Hilton
——————–
1. What ever may be the practice in this Court, The
Convention is not a means of enforcing a custody
determination of the Habitual Residence. Its sole
purpose, other than at Art. 21 (Access) is to cause
the return of a child who has been “Wrongfully”
removed or retained from its Habitual Residence to
that Habitual Residence.