Thomson v. Thomson (Can.Sup. 1994)[1994] 3 S.C.R. 551 [119 D.L.R.4th 253; 6 R.F.L. (4th) 290]
================================================================
AMANDA LOUISE THOMSON
V.
PAUL THOMSON
– and –
THE ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL FOR ONTARIO
and THE ATTORNEY GENERAL OF MANITOBA
CORAM:
The Rt. Honourable Antonio Larner, P.C.
The Hon. Mr. Justice La Forest
The Hon. Mme Justice L `Heureux-Dube
The Hon. Mr. Justice Sopinka
The Hon. Mr. Justice Gonthier
The Hon. Mr. Justice Cory
The Hon. Madam Justice McLachlin
The Hon. Mr. Justice Iacobucci
The Hon. Mr. Justice Major
Appeal heard: January 26, 1994
Judgment rendered: January 26, 1994
Reasons delivered: October 20, 1994
Reasons for judgment by:
The Hon. Mr. Justice La Forest
Concurred in by:
The Rt. Honourable Antonio Lamer, P.C.
The Hon. Mr. Justice Sopinka
The Hon. Mr. Justice Gonthier
The Hon. Mr. Justice Cory
The Hon. Mr. Justice Iacobucci
Concurring reasons by:
The Hon. Mme Justice L’Heureux-Dube
Concurred in by:
The Hon. Madam Justice McLachlin
Concurring reasons by:
The Hon. Mr. Justice Major
Counsel at hearing:
For the appellant: Martin G. Tadman
For the respondent: Jack A. King
Holly D. Penner
For the interveners:
The Attorney General of Canada: Graham Garton, Q.C.
Louise Lussier
The Attorney General for Ontario: Robert H. Ratcliffe
Elizabeth Bucci
The Attorney General of Manitoba: Joan A. MacPhail
Citations
Man. C.A.: (1993). 88 Man. R. (2d) 204, 51 W.A.C. 201, 50 R.F.L.
(3d) 145, 107 D.L.R. (4th) 695, [1993] 8 W.W.R. 385.
Man. Q.B.: (1993), 87 Man. R. (2d) 68, 48 R.F.L. (3d) 308, [1993]
7 W.W.R. 355
PARA-NUMBERING
The paragraph numbering for the judgments rendered in 1994 will
not appear in print in the S.C.R.
Amanda Louise Thomson Appellant
v.
Paul Thomson Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario and
the Attorney General of hIanitoba Interveners
Indexed as: Thomson v. Thomson
File No.: 23794.
Hearing and judugment: January 26, 1994.
Reasons delivered: October 20, 1994.
Present: Lamer C.J. and La Forest, L’Heureux-Dube, Sopinka,
Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
On appeal from the court of appeal for Manitoba
Convention on Civil Aspects of International Child Abduction —
Interpretation and application of Convention — Interaction
between Convention and provincial legislation implementing it —
Convention on the Civil Aspects of International Child Abduction
Can. T.S. 1983 No. 35 — Child Custody Enforcement Act R.S.M. 1987
c. C360, s. 6.
Family law — Custody — Wrongful removal or retention of child —
Scottish court granting mother interim custody of child with
access to father — Insertion of non-removal clause in interim
custody order — Mother removing child from Scotland to Manitoba
— Scottish court later granting father permanent custody of child
— Father applying in Manitoba for return of child to Scotland
under provincial legislation and international convention on child
abduction — Whether removal of child from Scotland constituting
wrongful removal or retention of child — Whether child’s return
would expose him to grave risk of psychological harm — Whether
transitory measures for child’s return within jurisdiction of
Manitoba courts — Convention on the Civil Aspects of
International Child Abduction, Can.
Arts. 3, 12, 13 — Child Custody Enforcement Act R.S.M. 1987 c.
C360 s. 6.
The parties, who were married in Scotland in February 1991, agreed
to separate in September 1992. Each sought custody of their
seven-month-old child. The Scottish court granted interim custody
to the mother and interim access to the father and ordered that
the child remain in Scotland pending a final court order. A few
days later, the mother left Scotland with the child to visit her
parents in Manitoba. Once there, she decided to stay permanently
in Canada and applied for custody of her child in Manitoba. On the
same day in Scotland, the father was granted an ex parte custody
order. He later made an application under the Hague Convention on
the Civil Aspects of International Child Abduction (“Convention”)
and the Manitoba Child Custody Enforcement Act (“CCEA”) for the
return of the child to Scotland. The motion judge in the Manitoba
Court of Queen’s Bench found that the child was wrongfully removed
from Scotland within the meaning of Article 3 of the Convention
and ordered his return forthwith. She noted that, on an interim
basis, it was clearly in the best interests of the child that he
remain in the mother’s care and, under s. 6(c) CCEA, ordered that
interim custody of the child be granted to the mother for a period
of four months to allow her time to proceed with a custody
application in Scotland. The majority of the Manitoba Court of
Appeal dismissed the mother’s appeal and ordered the return of the
child forthwith, indicating that the motion judge’s order giving
the mother four-month interim custody was not justified. The
dissenting judge would have ordered pursuant to s. 6 CCEA that the
mother be awarded interim custody, that the father’s application
be stayed until he agreed to allow the mother interim custodv in
Scotland while she proceeded with a custody application there, and
that she be directed to commence a custody application in Scotland
within two months. The main issue in this appeal is whether the
child should be returned to Scotland under the terms of the
Convention or under other provisions of the CCEA implementing the
Convention in Manitoba.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and
Iacobucci JJ.:
The underlying purpose of the
children 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.
Its primary object is the protection of custody rights, i.e.
“rights relating to the care … of the child and, in particular,
the right to determine the child’s place of residence” (Article
5). Under the Convention the removal of a child is wrongful if it
is in breach of “custody [rights] attributed to a person, an
institution or any other body . . . under the law of the State in
which the child was habitually resident immediately before the
removal or retention” (Article 3(a)). Such custody rights may
arise by operation of law, as well as by judicial or
administrative decision, or agreement (Article 3). Here the
Scottish court in determining the issue of custody had granted the
mother interim custody. When a court is vested with jurisdiction
to determine who shall have custody of a child, it has rights
relating to the care and control of the child and, in particular,
the right to determine the child s place of residence.
Accordingly, the court had rights of custody as defined by Article
5 of the Convention. It preserved its jurisdiction to make a final
determination of custody at a later date by inserting a
non-removal clause into the interim custody order. The Scottish
court was thus “an institution or any other body” having custody
rights and the mother’s removal of the child, beina in breach of
those rights, was wrongful within the meaning of Article 3 of the
Convention. The possibility that the mother did not know she was
violating the Scottish court’s order is irrelevant. This Court
therefore must order the return of the child “forthwith”. However,
from the emphasis placed by the Convention and the preparatory
work on the enforcement of custody, as distinguished from mere
access, a prohibition against removal in a permanent custody order
would raise different issues.
While, as indicated in the preamble of the Convention, “[t]he
interests of children are of paramount importance in matters
relating to their custody”, this should not be interpreted as
giving a court seized with the issue of whether a child should be
returned the jurisdiction to consider the best interests of the
child in the manner the court would do at a custody hearing. This
part of the preamble speaks of the “interests of children”
generally, not the interest of the particular child before the
court. This view is supported by Article 16 of the Convention,
which states that the courts of the requested state shall not
decide on the merits of custody until they have
Convention. It is also entirely consistent with the objects of the
Convention as set out in Article 1.
The custody order granted by the Scottish court in favour of the
father — a “chasing order” — would not, standing alone, have
been sufficient to ground an application under the Convention, as
it could not, in itself, make the retention of the child by the
mother wrongful. Under the Convention, a wrongful retention
generally begins from the moment of the expiration of the period
of access, where the original removal was with the consent of the
rightful custodian of the child. A “chasing order”, issued after
the child has been taken out of the jurisdiction, cannot by itself
make unlawful what was otherwise not contrary to the Convention.
There is nothing in the Convention requiring the recognition of an
ex post facto custody order. The initiative for obtaining a
“chasing order” under the Convention is with the requested state
and this order serves only to clarify for the requested state the
opinion of the requesting state that indeed the continuing
retention was wrongful. The procedures followed by the father in
this case appear more consonant with the language and requirements
of the European Convention dealing with the recognition and
enforcement of custody decisions.
This case does not fall within one of the exceptions set forth in
the Convention to the return of a wrongfully removed child. In
particular, there is no “grave risk that his return would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable situation” (Article 13(b)). While there is
no doubt that the child would suffer some psychological harm in
being torn from his mother’s custody and thrust into that of his
father, the harm is not severe enough to invoke Article 13(b). The
physical or psychological harm contemplated by this Article is
harm to a degree that also amounts to an intolerable situation.
The risk of harm may come from a cause related to the return of
the child to the other parent or from the removal of the child
from his present caregiver but it would only be in the rarest of
cases that the fact the child is now settled in the abductor’s
environment would constitute the level of harm contemplated by the
Convention.
Because of the “chasing order” obtained by the father, however, a
return to the stalus quo as it existed before the wronoful removal
— a prime objective of the Convention — is impossible to achieve
without taking additional action. While the Convention does not
pro-
must be assumed to have sufficient control over its process to
take the necessary action to meet the purpose and spirit of the
Convention. Through the use of undertakings. the requirement in
Article 12 of the Convention that “the authority concerned shall
order the return of the child forthwith” can be complied with in
accordance with that purpose and spirit. Here, this Court has
accepted the father’s undertakinos not to take physical custody of
the child upon his return to Scotland until a court permits such
custody, and to commence proceedings rapidly before a Scottish
court to determine, on a final basis, the issue of the child’s
care and control. These undertakings appeared, in the
circumstances, best calculated to achieve the purpose and spirit
of the Convention.
The Convention and the CCEA establish two regimes. When an
application is made solely under the Convention or solely under
the CCEA, the particular procedure of the regime chosen should
operate independently of the other, though where the CCEA is
selected it may not be improper to look at the Convention in
determining the attitude that should be taken by the courts, since
the legislature’s adoption of the Convention is indicative of its
judgment that international child custody disputes are best
resolved by returning the child to its habitual place of
residence. As well, when, as in this case, applications are made
under both the CCEA and the Convention, the independent procedures
of each regime should not be mixed. The CCEA does not expressly
provide that in the event of conflict the Convention prevails, but
this is unnecessary since there is nothing in the CCEA indicating
that the independent procedure provided by the CCEA should be
referred to when an application is made under the Convention. So,
unless the applicant chooses to abandon it, the application under
the Convention applies. The motion judge and the dissenting judge
in the Court of Appeal therefore could not make an interim custody
order under s. 6 CCEA. The possibility that the end sought by the
dissenting judge could be achieved under the Convention, however,
should not be ruled out. Undertakings may not always be
forthcoming or this course may not be acceptable. In such
circumstances, the time frame for return proposed by the
dissenting judge might well be justified under the Convention.
Per L’Heureux-Dube and McLachlin JJ.:
La Forest J.’s interpretation and application of the Convention to
however, have jurisdiction under s. 6 CCEA to impose transitory
measures for the return of the child to his habitual place of
residence. The Convention has been recognized by the international
community in order to protect the best interests of children. In
Manitoba, the Convention has been implemented by the CCEA, which,
in light of the best interests of children, seeks to expand on the
provisions of the Convention. There is no conflict between the
Convention and the CCEA but, rather, they complement each other.
The two documents must be read in concert and, in doing so, courts
should attempt to arrive at an interpretation that, to the extent
possible, gives full effect to the purpose of the Convention.
Since the Convention and the CCEA do not establish independent
regimes, the jurisdiction of the Manitoba courts hearing an
application under the Convention are not limited to the
considerations set out in the Convention. While, in most cases,
the best interests of the child will be served by a quick and
expedited return of the child to the country of origin with the
aim of decreasing the traumatic nature of the wrongful removal,
there may be circumstances in which immediate return is no longer
in the child’s absolute best interest. Section 6 CCEA provides a
mechanism for addressing this problem. Therefore, under the CCEA,
the Manitoba courts have jurisdiction to make a transitory order
on the condition that such order does not conflict with or
frustrate the objective of prompt return under the Convention and
that it fosters the best interests of the child. The best
interests of the child must prevail at all times and must be the
paramount consideration when enforcing the return of a child
pursuant to the Convention. Undertakings, such as those offered in
this case by the father, do not preclude the Manitoba courts from
imposing transitory measures where necessary when applyint the
Convention. In the circumstances of this case, the transitory
order the dissenting judge in the Manitoba Court of Appeal would
have made was appropriate at the time. To be implemented in a
manner consistent with the purpose of the Convention, however, the
duration of such a transitory order should be as short as
possible. Since at the time of the hearing three months had
already passed since the dissenting judge in the Manitoba Court of
Appeal first proposed the transitory order, the return of the
child should not be further delayed by making a similar transitory
order now. The immediate return of the child to Scotland should be
ordered.
Per Major J.: The mother’s removal of her child from Scotland to
Canada constituted a breach of the custody riahts of the Scottish
court within the meanino of Arti-
Conxention. This Court must therefore order the return of the
child forthwith.
Cases Cited
By La Forest J.
Approved:
B. v. B. (Abduction. Custody Rights), [1993] 2 All E.R. 144
Referred to:
Re K.H. (A Minor) (Abduction), [1990] F.C.R. 990
C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2
All E.R. 465
Lavitch v. Lavitch (1985), 37 Man. R. (2d) 261
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
E. (Mrs.) v. Eve. [1986] 2 S.C.R. 388
C. v. S. (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R.
449 (C.A.), aff’d [1990] 2 All E.R. 961
Re B.-M. (Wardship: Jurisdiction), [1993] 1 F.L.R. 979
Re N. (Child Abduction; Habitual Residence), [1993] 2 F.L.R. 124
In the Marriage of W.M. and G.R. Barraclough (1987), 11 Fam. L.R.
773
Meredith v. Meredith, 759 F.Supp. 1432 (1991)
Gsponer v. Johnstone (1988), 12 Fam. L.R. 755
Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365
Re A. and another (Minors) (Abduction; Acquiescence), [1992] 1 All
E.R. 929
Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401
Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413
Director-General of Family and Community Services v. Davis (1990),
14 Fam. L.R. 381
P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155
G. v. G. (Minors) (Abduction), [1991] Fam. Lalv 519
Young v. Young, [1993] 4 S.C.R. 3
By L’Heureux-Dube J.
Referred to:
Atlorney-General for Canada v. Attorney-General for Ontario,
[1937] A.C. 326
P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155
C. v. C. (Minor; Abduction; Rights of Custody Abroad). [1989] 2
All E.R. 465.
Statutes and Regulations Cited
Act respecting the civil aspects of international and
interprovincial child abduction, S.Q. 1984, c. 12.
Child Abduction Act, S.N.S. 19 82, c. 4.
Child Custody Enforcement Act, S . M . 1982, c . 27.
Child Custody Enforcement Act, R.S.M. 1987, c. C360, ss. 3, 4(1),
5, 6, 17.
Children’s Law Reform Amendment Act, 1982, S.O. 1982, c. 20.
Children’s Law Act, S . N . 1988, c . 61.
Custody Jurisdiction and Enforcement Act, S.P.E.I. 1984, c. 17.
Convention on the Civil Aspects of International Child Abduction,
Can. T.S. 1983 No. 35, preamble, Arts. 1, 3, 5, 6, 11, 12, 13, 15,
16, 20, 21.
European Convention on Recognition and Enforcement of Decisions
Concerning Custody of Children and on Restoration of Custody of
Children, Eur. T.S. No. 105
Family Relations Amendment Act, 1982, S.B.C. 1982, c. 8 [am. 1985,
c. 72, s. 20].
Hague International Child Abduction Act, S.A. 1986, c. I-6.5.
International Child Abduction Act, S. N.B. 1982, c. I-12.1.
International Child Abduction Act, S.S. 1986, c. I-10.1.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37,
Arts. 31, 32.
Authors Cited
Anton. A. E. “The Hague Convention on International Child
Abduction” (1981), 30 Int’l & Comp. L.Q. 537.
Black, Vaughan. “Statutory Confusion in International Child
Custody Disputes” (1993), 9 C.F.L.Q. 279.
Cote, Pierre-Andre. The Interpretation of Legislation in Canada,
2nd ed. Cowansville: Yvon Blais, 1992.
Eekelaar, John M. “International Child Abduction by Parents”
(1982), 32 U.T.L.J. 281.
Farquhar, Keith B. “The Haaue Convention on International Child
Abduction Comes to Canada” (1983), 4 Can. J. Fam.L. 5.
Hasue Conference on Private International Law. Actes et Documents
de la Quatorzieme session, t. III, Child Abduction. Preliminary
Documents Nos. 1, 5 and 6. and Explanatory Report. La Haye:
Imprimerie nationale, 1980.
Helzick, Cathy S. “Returning United States Children Abducted to
Foreigrn Countries: The Need to Implement the Hague Convention on
the Civil Aspects of International Child Abduction” (1987), 5
Boston U. Int’l L.J. 119.
Hogo, Peter W. Constitutional Law of Canada, 2rd ed. Scarborough,
Ont.: Carswell, 1992.
Lowe, Nigel, and Michael Nicholls. “Child Abduction: The Wardship
Jurisdiction and the Hague Convention”, [1994] Fam. Law 191.
Manitoba. Manitoba Debates and Proceedings, June 28, 1982, p. 101.
APPEAL from a judgment of the Manitoba Court of Appeal (1993), 88
Man.R. (2d) 204, 51 W.A.C. 204, 50 R.F.L. (3d) 145, 107 D.L.R.
(4th)
the Court of Queen’s Bench, Family Division (1993), 87 Man.R. (2d)
68, 48 R.F.L. (3d) 308, [1993] 7 W.W.R. 355, ordering that the
mother return the child to Scotland. Appeal dismissed .
Martin G. Tadman, for the appellant.
Jack A. King and Holly D. Penner, for the respondent.
Graham Garton. Q.C., and Louise Lussier, for the intervener the
Attorney General of Canada.
Robert H. Ratcliffe and Elizabeth Bucci, for the intervener the
Attorney General for Ontario.
Joan A. MacPhail, for the intervener the Attorney General of
Manitoba .
Solicitors for the appellant: Levine Levene Tadman, Winnipeg.
Solicilors for the respondent: Thompson Dortman Sweatman,
Winnipeg.
Solicitor for the intervener the Attorney General of Canada: John
C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The
Attorney General for Ontario, Toronto.
Solicitor for the intenvener the Attornew General of Manitoba: The
Department of Justice, Winnipeg.
SUPREME COURT OF CANADA
AMANDA LOUISE THOMSON
v.
PAUL THOMSON
– and –
THE ATTORNEY GENERAL OF CANADA,
THE ATTORNEN’ GENERAL FOR ONTARIO and
THE ATTORNEY GENERAL OF MANITOBA
CORAM: The Chief Justice and La Forest, L’Heureux-Dube, Sopinka,
Gonthier. Cory. McLachlin. Iacobucci and Major JJ.
LA FOREST J.:
01 This appeal raises for the first time in this Court the
interpretation and application of the Hague Convention on tile
Civil Aspects of International Child Abduction, Can. T.S. 1983 No.
35, to which Canada is a party. The underlying purpose of the
Convention, as set forth in its preamble, is to protect children
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.
02 The case arises in a context where a baby boy born in
Scotland of Scottish parents was talcen by his mother to Canada in
December 1992 to visit her parents in Manitoba. Once there, she
decided to stay permanently. At the time of the removal of the
child, she had been granted interim custody of the child following
the breakdown of her marriage; the father had, however, been
granted interim access, and the court order contained a
prohibition against the child being taken out of Scotland. The
principal question is whether the child should be returned to
Scotland under the terms of the Con-
other provisions of the Act implementing the Convention in
Manitoba, the Child Custody Enforcement Act, R.S.M. 1987, c. C360.
Facts
03 The appellant, Amanda Louise Thomson, and the respondent,
Paul Thomson. were married in Scotland in February 1991. She was
17; he was 22. Their child, Matthew, was born on March 22, 1992.
From then until July 1992, they all lived with the husband’s
parents. In July 1992, they moved to their own rented
accommodations. Matthew. however, continued to live at his
paternal grandparents home for part of the wee43k; the rest of the
week, he lived with his parents.
04 On Sunday, September 27, 1992, the child was due to be
returned from his grandparents but was not. Three days later, he
had still not been returned. This precipitated a fight between his
parents, and they agreed to separate. The child remained with his
paternal grandparents.
05 Each parent sought custody of Matthew. The mother’s
application was heard before the Stranraer Sheriff Court in
Scotland on October 9, 1992; both parties were represented. A
solicitor was appointed by the court to report on the
circumstances of the child. The report indicates, among other
things, that the mother was the more suitable parent, and had more
drive and ambition than the father; that all parties were on
welfare; that when Matthew was in the custody of his father, it
was his paternal grandmother who cared for him; and that it was
acceptable to the father that Matthew’s grandmother bring up the
child.
06 The Sheriff granted the appellant wife interim custody of
Matthew on November 27, 1992. He also granted the respondent
interim access and ordered that the child remain in Scotland
pending a further court order (the court had evidence that the
mother had been thinking of going to Canada to live with her
parents who had recently emigrated). Neither party appeared in
person at the
when she talked to her lawyer after the hearing, the lawyer was in
a hurry, and told her only “We won! You have custody of Matthew”,
and that Mr. Thomson had been granted visitation rights. The
lawyer is alleged to have told the appellant that she would
provide a report detailing the court’s decision in a “few days”.
On December 2, 1992, without receiving this report, the appellant
left Scotland with Matthew to visit her parents in Manitoba.
07 Some time during the next two months, the appellant formed
the intention to remain with her child in Manitoba. She enrolled
in a Canadian high school and, she deposed, planned to pursue
higher education after graduation. Meanwhile, she and Matthew
lived on the family farm near Wawanesa, Manitoba.
08 On February 3, 1993, the appellant applied for custody of
Matthew in Manitoba. The same day, the custody hearing resumed in
Scotland. At the latter hearing, the respondent husband was
granted an order of custody. The appellant later deposed that she
did not know of this Scottish custody hearing; she did not attend
it; nor did she provide instructions to the lawyer who had
represented her before. Consequently, her counsel was allowed to
withdraw at the hearing. The record disclosed only that the
respondent and his mother presented evidence.
09 On February 95, 1993, the respondent launched a request for
the return of the child under the Hague Convention on the Civil
Aspects of International Child Abduction. The application was
filled out in a manner that, as we shall see, appears to denote a
misunderstanding of the Convention’s language and requirements. In
the letter accompanying the request, the Scottish central
authority (i. e., the body designated in Scotland for dealing with
applications under the Convention) stated that “Under the common
law of Scotland, married parents of a child have joint rights of
custody unless a court orders otherwise.” Later in the document,
Institution (who actually exercised custody before the removal or
retention)” was written the name of the appellant, Amanda Louise
Thomson. Still later, under “Factual or Legal Grounds Justifying
the Request”, was written “Paul Thomson has legal custody of child
as confirmed by order of Stranraer Sheriff Court on February 3,
1993”. As will become apparent, the procedure followed seems to be
more consonant with the language and requirements of the European
Convention dealing with the matter in the European Economic
Community. That approach is not uncommon, at least for British
requests under the Hague Convention. It can. however, result and
has here resulted in difficulties in relation to the return of the
child from Canada.
10 In March 1993, the respondent replied to his wife’s
application for custody in Manitoba with an application under the
Child Custody Enforcement Act and under the Convention for the
return of the child to Scotland. Shortly afterwards, in April
1993, Mrs. Thomson unsuccessfully appealed the custody order in
Scotland (it seems that she instructed her counsel over the
telephone and did not personally appear). The reasons for the
dismissal of the appeal were not part of the record.
Relevant Convention and Statutory Provisions
11 For ease of reference, I set forth here the relevant
provisions of the Convention and the Act:
Convention on the Civil Aspects of International Child Abduction,
Can. T.S. 1983, No. 35
[Preamble]
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount
importance in matters relating to their custody,
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:
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 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.
Article 5
For the purposes of this Convention–
(a) ‘rights of custody’ shall include rights relating to the care
of the person of the child and, in particular, the right to
determine the child’s place of residence;
(b) ‘rights of access’ shall include the right to take a child for
a limited period of time to a place other than the child’s
habitual residence.
Article 11
The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of the proceedings, the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right to
request a statement of the reasons for the delay. If a reply is
received by the Central Authority of the requested State, that
Authority shall transmit the reply to the Central Authority of
the requesting State, or to the applicant, as the case may be.
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
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–
(a) the person, institution or other body 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
(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.
The judicial or administrative authority may also refuse to order
the return of the child if 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 its views.
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 15
The judicial or administrative authorities of a Contracting State
may, prior to the making of an order for the return of the child,
request that the applicant obtain from the authorities of the
State of the habitual residence of the child a decision or other
determination that the removal or retention was wrongful within
the meaning of Article 3 of the Convention, where such a decision
or determination may be obtained in that State. The Central
Authorities of the Contracting States shall so far as practicable
assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a
child in the sense of Article 3, the judicial or administrative
authorities of the Contracting State to which the child has been
removed or in which it has been retained shall not decide on the
merits of rights of custody until it has been determined that the
child is not to be returned under this Convention or unless an
application under this Convention is not lodged within a
reasonable time following receipt of the notice.
Article 20
The return of the child under the provisions of Article 12 may be
refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms.
Article 21
An application to make arrangements for organizing or, securing
the effective exercise of rights of access may be presented to the
Central Authorities of the Contracting States in the same way as
an application for the return of a child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any
conditions to which the exercise of those rights may be subject.
The Central Authorities shall take steps to remove, as far as
possible, all obstacles to the exercise of such rights.
intermediaries, may initiate or assist in the institution of
proceedings with a view to organizing or protecting these rights
and securing respect for the conditions to which the exercise of
these rights may be subject.
Child Custody Enforcement Act, R.S.M. 1987, c. C360
3 A court on application shall enforce, and mav 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.
4(1) 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.
5 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.
6 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 4,
may do anv one or more of the following:
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.
17(1) In this section “convention” means the Convention on the
Civil Aspects of International Child Abduction set out in the
Schedule hereto.
17(2) On. from and after December 1, 1983, the convention is in
force in Manitoba and the provisions thereof are law in Manitoba.
17(3) The Department of the Attorney-General shall be the Central
Authorits for the province for the purpose of the convention.
The Courts Below
Manitoba Court of Queen’s Bench, Family Division (1993), 87 Man.
R. (2d) 68
12 The husband’s application for the return of the child was
heard by Davidson J. of the Manitoba Court of Queen’s Bench both
under the terms of the Convention and under provisions in its
implementing Act, the Child Custody Enforcement Act of Manitoba.
13 At the outset. Davidson J. stated that she was prepared to
recognize the orders of the Scottish courts and dealt with the
objections raised to them in the following manner. Whether or not
the appellant knew of the non-removal clause in the interim order
of November 27, 1992, Mrs. Thomson did know of the access
provisions contained in that order and chose to ignore them. In
addition, Davidson J. found that Mrs. Thomson was wilfully blind
to the proceedings she had instituted in Scotland, and that she
failed to return the child once
contents of the orders of the Scottish court of November 27, 1992
and February 3, 1993.
14 Davidson J. held that both the Convention (Article 12) and
the Act (s. 6) required her to start from the position that she
should enforce orders from other jurisdictions except in limited
circumstances. The former (with which I am principally concerned)
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.
15 Davidson J. had no difficulty holding that the child had
substantial connections with Scotland and not with Manitoba as
contemplated by ss. 3 and 4(1) of the Act. Under these
circumstances she obviously did not find it necessary to consider
whether he “was habitually resident [in Scotland] immediately
before the removal or retention” as required by Article 3(a) of
the Convention. She simply turned to a consideration of whether
any of the exceptions to a requirement to return in the Convention
(Article 13) or the Act (s. 5) were applicable.
16 The latter question involved whether the child had suffered
harm of the nature described in Article 13 of the Convention or s.
5 of the Act sufficient to warrant a refusal to return the child.
She noted that the requisite harm was expressed differently in the
two provisions. Article 13 spoke of a “grave risk” that the return
would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation, whereas s.
5 merely referred to the fact that the child would “suffer serious
harm”. However, she concluded that whatever test w as used. it was
not satisfied on the evidence. The appellant s affidavits, she
of the child, and Davidson J. concluded that the appellant truly
saw the issue of whether the child should remain in Canada as a
best interests issue, rather than harm as contemplated by the Act
or the Convention.
17 Davidson J. further rejected the argument that she was
required to direct a trial on the issue of harm and not decide the
matter herself on the basis of affidavit material. While, she
noted, a trial of the issue had been ordered by the Manitoba Court
of Appeal in Lavitch v. Lavitch (1985), 37 Man. R. (2d) 261, that
case had dealt with children who were 12 and 13 years old and
their ambivalence about resuming a relationship with their father
had to be considered in determining whether their return would
cause them serious psychological harm. However, Davidson J.
continued, the court in that case had indicated that where
children were of such a tender age that their objection should not
be a factor and no serious question of a risk of harm arose, it
would be appropriate for the judge to make the order without
requiring a trial of the issue. That was the situation in the case
before her.
18 Davidson J. then dealt with the appellant’s contention that
the child was not wrongfully removed within the meaning of Article
3 of the Convention, which I repeat:
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
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.
19 Custody and access are thus defined in Article 5:
Article 5
For the purposes of this Convention:
(a) “rights of custody” shall include rights relating to the
care of the person of the child and, in particular, the right to
determine the child’s place of residence;
(b) “rights of access” shall include the right to take a child
for a limited period of time to a place other than the child’s
habitual residence.
20 Davidson J. held that the appellant’s custody right was a
restricted one, which took away her right to determine the child’s
place of residence. Hence, by removing Matthew, Mrs. Thomson had
breached a term of her right of custody. and thus his removal was
wrongful within the terms of the Convention. The removal being
wrongful, the subsequent retention was also wrongful. In obiter,
Davidson J. rejected the appellant’s argument that, by the time of
the February 3, 1993 order in Scotland, the child was habitually
resident in Manitoba.
21 On this basis, Davidson J. ordered the return of the child
to Scotland. She then went on to consider the terms and conditions
of the return that could be dictated by a Manitoba court under s.
6(c) of the Child Custody Enforcement Act. In her view, that
provision allowed her to make such interim custody order as would
be in the best interests of the child. While on the evidence
before her she believed it would, in the long-term, be in
Matthew’s best interests to remain in the custody of his mother,
the issue was for the Scottish courts to determine. She thought,
however, that on an interim basis it was clearly in the best
interests of the child that he not be abruptly removed from his
mother’s care. On that basis, she ordered that
custody of the child be granted to Mrs. Thomson, but that the
child was to be returned to the jurisdiction in Scotland where the
order was made. To ensure that Mrs. Thomson proceeded
expeditiously to have matters resolved in Scotland, Davidson J.
further ordered that her interim custody order would expire in
four months.
Manitoba Court of Appeal (1993), 88 Man.R. (2d) 204
22 On the appeal to the Court of Appeal. Twaddle J.A., for the
majority, first disposed of the argument that the Manitoba court
required formal proof of the Scottish order to give the Manitoba
court jurisdiction. The Act, he noted, expressly provides that the
court may take notice of such orders. He had no more difficulty
with the issue of the residence of the child, whether considered
in terms of the Convention or the specific provisions of the Act.
Like Davidson J., he held that the child was a resident of
Scotland and not Manitoba.
23 On the issue of wrongful removal, Twaddle J.A. held that
while the wife might well be technically right in her contention
that the child was not wrongfully removed, since she alone was the
custodial parent, the point was somewhat academic since the child
was clearly wrongly retained in Manitoba once the custody order in
favour of the father was made.
24 Turning then to the exceptions to the requirement to return
the child in the Act and the Convention, Twaddle J.A., at p. 208,
quoted what he had said in Lavitch, supra, at p. 265: In the case
of an application to enforce the order of a jurisdiction bound by
the Convention, a court might allow for the differences between
the Act and the Convention by construing the Act broadly to give
effect to the tenor and plain intent of the Convention, the
provisions of which, as I have already noted, are law in Manitoba.
In the result, the exceptions in the Act and those in the
Convention must be read together. As ‘serious harm’ to the little
boy in this case would necessarily be preceded by a grave risk of
harm to him, it is only necessary to consider the exceptions set
out in the Convention.
25 The mother had sought to introduce new evidence before the
Court of Appeal from a medical doctor specializing in
developmental pediatrics regarding the harm the child would suffer
by being removed from his primary caregiver, but the court refused
categorizing the evidence as “irrelevant” for the following
reasons (at pp. 208-9):
The risk contemplated by the Convention must come, in my opinion,
from a cause related to the return of the child to the other
parent. This construction is required both by the language of the
Convention and by the consequence of construing it otherwise.
. . .
At least in the case of a child of tender years, an
extra-territorial order of custody, could never be enforced if the
risk of harm from the removal of the child from its present
caregivers was to be allowed for. It is almost always that the
removal of a very young child from its immediate environment, or
from those with whom the child has become familiar, will cause
some temporary psychological trauma. Those who signed the
Convention could not have intended this as a ground for not
enforcing an order. Such a result would negate the Convention’s
purpose.
26 Twaddle J.A. continued that although the guiding principle
in all matters dealing with the custody of a child is that the
adjudicating court must take the order which is in the best
interests of the child, the parties to the Convention have agreed
that the concurrent exercise of custody jurisdiction is not in the
best interests of a child (pp. 209-10). As regards judicial
comity, he held that if the Convention is fully applicable, the
court in the requested state must accept the other court’s order
as having been made in accordance with the guiding principle. That
court, he added, must also accept that the child’s future welfare
will be safeguarded by the court in its home jurisdiction.
27 Finally, Twaddle J.A. found that the remedies available
under s. 6 of the Act give more flexibility than the requirement
in Article 12 of the Convention, which requires that the child be
returned “forthwith”. He noted that, although the Scottish court
purported to have given a “final” order, from which the
appellant’s appeal was dismissed, the case had never been heard on
its merits, and it was probable that the Scottish court would wish
to do this. However, he doubted that this event would transpire
until the appellant returned the child to Scotland. Thus he
ordered the return of the child forthwith, and chided Davidson J.
for having given an order “worded in such a way as to suggest that
it is intended to have continued effect after the child’s return
to the foreign jurisdiction” (p. 212).
28 The dissenting judge, Helper J.A., took a different approach
to the issue of whether there had been a wrongful removal of the
child from Scotland. In her view, the Scottish court had retained
its jurisdiction to determine custody, and it was for that reason
that the removal from Scotland was wrongful.
29 Helper J.A.’s reasons are otherwise largely confined to the
terms of the order to return the child to Scotland. Reading the
obligation to return in Article 1 of the Convention in the light
of its preamble, which recognizes the paramount importance of the
interests of children along with the desire to protect children
internationally from their wrongful removal, she held that the
governing principles are twofold: the recognition and enforcement
of extraprovincial custody orders, and the protection of the best
interests of children.
30 The Act. she thought, gave effect to these principles. The
interim procedures set out in s. 6 of the Act, she held, allow a
Manitoba court to take cognizance of the w elfare of children
while still observing the requirements of the Convention to return
children to the state of their habitual residence. She stated, at
p. 215:
a result of their parents’ wrongdoing. In giving effect to
extra-provincial custody orders, courts must recognize that a
possible by-product of the black letter application of the Act and
the Convention is undue stress and, in some cases. actual trauma
suffered b young children who have no voice in the courtroom. The
corollary to the direction in the Convention that the signatories
wish to protect children from the harmful effects of their
wrongful removal or retention is the reality that children must
also be protected from harmful changes that are incomprehensible
to them.
31 The combined effect of the Scottish and Manitoba orders here
would be Matthew’s removal from his mother’s care immediately upon
his return to Scotland to be placed with his father and cared for
by his grandparents, now strangers to him. Matthew would not be
well served by thus allowing, him to be bounced between
caregivers. Accordingly. Helper J.A. would have ordered that the
appellant be awarded interim custody, that the respondent’s
application be stayed until he agreed to allow the appellant
interim custody in Scotland while she proceeded with a custody
application there. and that the appellant be directed to commence
a custody application in Scotland within two months.
The Appeal to this Court
32 The appellant sought and was granted leave to appeal to this
Court. The leave application and the hearing of the appeal were
both heard on an expedited basis, and judgment u as rendered
immediately after the hearing dismissing the appeal subject to
undertakings made by the respondent to which I shall later refer.
That judgment was given with reasons to follow. These are the
reasons.
33 The case raises a number of broad issues regarding the
purpose, application and interpretation of the Convention and its
interrelationship with the Act implementing it in Manitoba. It
also raises several more specific issues,relating to:
(1) the nature of the custody required by the Convention and
whether there was custody suf-
operation of the Conventionin this case;
(2) whether the child had been wrongfully removed from Scotland or
wrongfully retained in Manitoba so as to bring the case within
theoperation of the Convention;
(3) whether the return of the child would cause harm to the child
sufficient within the terms of the Convention or the Act to
warrantrefusal to return him; and
(4) the power of a court to which the application for return is
made to accord remedies to ameliorate difficulties the child might
incur from the return.
34 I shall begin with the general issues concerning the
Convention, then deal with the particular issues before returning
to the interrelationship betweenthe Convention and the Act.
Background to the Hague Convention
35 By the mid-1970s, the problem of international parental
child abduction had reached such proportions that the Commonwealth
Law Ministers described it as being of “immense social importance
and requiring concrete early action” (Hague Conference on Private
International Law, Actes et Documents de la Quatorzieme session,
t. III, Child Abduction (1982) (hereinafter “Actes et Documents”),
at p. 15, n. 6). At a meeting of a Special Commission of the Hague
Conference on Private International Law held in January 1976, the
Expert of Canada proposed that the Hague Conference undertake the
preparation of an international treaty dealing with the problem of
the abduction of children by one of their parents. The proposal
was received with interest, and the Hague Conference Secretariat
proceeded with a study of the legal and social aspects of the
problem. A 1978 international study conducted bv the Permanent
Bureau of the Hague Conference on Private International Law was
informed of the following reported cases of abductions: Australia
(10), Belgium (15), Denmark (8), France (75); the scale of the
problem in the United Kingdom was indicated by the fact that in a
12 month period the Home Office was asked to
precautions in airports and ports in 691 cases involving 69
different countries; see A. E. Anton, “The Hague Convention on
International Child Abduction” (1981), 30 Int’l & Comp. L.Q. 537.
Though, as Anton has pointed out, these numbers were relatively
small, the risk of harm to the child and the certainty of distress
to the parents made it imperative that governments coordinate
their efforts to prevent this evil. At all events, the numbers
showed signs of increasing. For example, between 1982 and 1984
(the United States did not implement the treaty until 1988), the
number of American citizens seeking the return of abducted
children from abroad doubled, and in 1986 there were 276 reported
cases of parental child abduction in the United States; see C. S.
Helzick, “Returning United States Children Abducted to Foreign
Countries: The Need to Implement the Hague Convention on the Civil
Aspects of International Child Abduction” (1987), 5 Boston U.
Int’l L.J. 119.
36 In March 1979 the Conference convened a Special Commission
to examine the matter and to consider possible solutions. At a
further meeting of the Special Commission in November 1979 a
preliminary draft Convention was prepared which formed the basis
for discussion at the Fourteenth Session of the Hague Conference
in October 1980.
37 At that session representatives of 28 states prepared a
draft Convention on the Civil Aspects of International Child
Abduction which the Conference adopted by a unanimous vote on
October 24, 1980. The Convention was immediately made available
for signature by states, and Canada was one of four states to sign
it on October 25, 1980. Scotland implemented the Convention in
1986.
38 In Canada, effect was given to the Convention by provincial
statutes. Manitoba, we saw, made it part of its law by virtue of
s. 17 of its Child Custody Enforcement Act which contains other
provisions for the enforcement of extraprovincial orders. I shall
refrain here from discussing the
the provisions of the Convention and the Act, but before getting
into the specific issues raised by the parties, it is useful to
make a few general remarks about the interpretation of
international treaties and conventions adopted in domestic
legislation.
Structure and Interpretation
39 By and large, international treaties are interpreted in a
manner similar to statutes. This is evident from a perusal of
Article 31 of the Vienna Convention on the Law of Treaties. Can.
T.S. 1980 No. 37, which reads:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
theircontext and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble
and annexes:
(a) any agreement relating to the treaty which w as madebetween
all the parties in connexion with the conclusion ofthe treaty: . .
.
There is a significant difference, however, in the use that may be
made of the legislative history and other preparatory material.
Article 32 provides that such material can be used to confirm the
meaning found under Article 31, or to resolve an ambiguity or
obscurity or avoid a result that is manifestly absurd or
unreasonable. It reads:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances
of its conclusion, in order to confirm the meaning resulting from
the application of article 31, or to determine the meaning when
the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
40 It would be odd if in construing an international treaty to
which the legislature has attempted to give effect, the treaty
were not interpreted in the manner in which the state parties to
the treaty must have intended. Not surprisingly, then, the
parties made frequent references to this supplementary means of
interpreting the Convention, and I shall also do so. I note that
this Court has recently taken this approach to the interpretation
of an international treaty in Canada (Attorney General) I. Ward,
[1993] 2 S.C.R. 689.
41 The travaux preparatoires to the Hague Convention are found
in the Hague Conference on Private International Law Actes et
Documents, supra. Also of interest is the article by Anton, chair
of the Special Commission, “The Hague Convention on International
Child Abduction”, supra.
42 I now turn to a closer examination of the purpose of the
Convention. The preamble of the Convention thus states the
underlying goal that document is intended to serve: “[T]he
interests of children are of paramount importance in matters
relating to their custody”. In view of Helper J.A.’s remarks on
this matter, however, I should immediately point out that this
should not be interpreted as giving a court seized with the issue
of whether a child should be returned the jurisdiction to consider
the best interests of the child in the manner the court would do
at a custody hearing. This part of the preamble speaks of the
“interests of children” generally, not the interest of the
particular child before the court. This view gains support from
Article 16, which states that the courts of the requested state
shall not decide on the merits of custody until they have
determined that a child is not to be sent back under the
Convention. I would also draw attention to the fact that the
preamble goes on to indicate the manner in which its goal is to be
advanced under the Convention by saying:
Desiring to protect children internationally from the harmful
effects of their wrongful removal or retention
establish procedures to ensure their prompt return to the State of
their habitual residence, as Bell as to secure protection for
rights of access . . .
43 The foregoing is entirely consistent with the objects of the
Convention as set out in its first Article. Article 1 sets out two
objects: (a) securing the return of children wrongfully removed to
or retained in any contracting state; and (b) ensuring that the
rights of custody and access under the law of one contracting
state are effectively respected in other contracting states.
Anton, supra, at pp. 542-43, indicates that prompt return was
intended to be predominant:
The Special Commission also considered – and, until recently, this
would have been an equally novel proposition for judges in common
law countries – that the courts of the State addressed should
order the return of the child, subject to certain limited
exceptions, despite the possibility that further inquiries might
disclose that the child’s welfare would be better secured by its
remaining in that State. . . . [T]he primary purpose of the
Convention [is], namely, as Article 1 (a) states, to secure the
prompt return of children wrongfully removed to or detained in a
Contracting State. The Commission started from the assumption that
the abduction of a child will generally be prejudicial to its
welfare. It followed that, when a child has been abducted from one
country to another, international mechanisms should be available
to secure its return either voluntarily or through court
proceedings.
44 It is clear from the wording of the preamble and Article 3
of the Convention, cited supra, and from the travaux preparatoires
that the primary object of the Convention is the enforcement of
custod! rights. Article 3 provides that the removal or retention
of a child is to be considered wrongful where “it is in breach of
rights of custody attributed to a person, an institution or am.
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”. Such rights of custody are given effect
through proceedings for the return of the child under Article 12.
45 By contrast, the Convention leaves the enforcement of access
rights to the administrative channels of Central Authorities
designated by the state parties to the Convention. The duties of
these central authorities, set forth in Article 21, are, unlike
situations involving custody rights, not to return the child
forthwith, but rather to cooperate “to promote the peaceful
enjoyment of access rights and the fulfilment of any conditions to
which the exercise of those rights may be subject”, including the
initiation of or assistance “in the institution of proceedings
with a view to organizing or protecting these rights and securing
respect for the conditions to which the exercise of these rights
may be subject”.
Custody
46 Custody, as understood by the Convention, is a broad term
that covers the many situations where a person lawfully has the
care and control of a child. The breach of rights of custody
described in Article 3, it will be remembered, are those
attributed to a person. an institution or any other body by the
law of the state where the child was habitually resident
immediately before the removal or retention. Article 3 goes on to
say that custody may arise by operation of law. The most obvious
case is the situation of parents exercising the ordinary care and
control over their child. It does not require any formal order or
other legal document, although custody may also arise by reason of
a judicial oradministrative decision, or by agreement.
47 From the preparatory work, it seems clear, at least in some
cases, that the removal of a child from a country in the face of a
court order prohibiting it was intended to be covered by the
Convention. Thus in the Preliminary Document No. 1 “Questionnaire
and Report on international child abduction by one parent” (the
“Dyer Report”), a survey of conference members was conducted in
which five types of situations considered to constitute “child
abduction” for the purposes of the questionnaire were described. I
set them forth here, noting that the fifth is directly relevant:
A The child was removed by a parent from the country of the
child’s habitual residence to another country w ithout the consent
of the other parent, at a time when no custody decision had yet
been handed down but serious problems between the parents already
existed.
B The child alas abducted by a parent from the judicially
determined custodian in one country and removed to another, where
no conflicting custody decision had been handed down.
C The child was retained by the non-custodial parent or other
relatives beyond a legal visitation period, in a country other
than that in which the child habitually resided.
D The child was abducted by a parent from the legal custodian
in one country and removed to another, where the abductor has been
granted custody under a conflicting order in that other country or
in a third country.
E The child was removed by a parent from one country to
another in violation of a court order which expressly prohibited
such removal. [Emphasis added.]
(Actes et Documents supra, at p. 9. )
Preliminary Document No. 5 “Conclusions dragon from the
discussions of the Special Commission of March 1979 on legal
kidnapping”, in referring to the five types of abductions
mentioned in the Dyer Report’s survey, expresses the view that
“the Convention should cover all types” (Actes et Documents,
supra, at p. 163 (emphasis in original)).
48 It by no means follows, however, that the Convention applies
to every case where a child is removed from one country to another
where a court order prohibits it. From the emphasis placed in the
Convention and the preparatory work on the enforcement of custody,
as distinguished from mere access, the proper view would appear to
be that the mandatory return dictated by the Convention is limited
to cases where the removal is in violation of the custody rights
of a person, institution or other body. That is the view adopted
by Anton, supra, at pp. 546 and 554-55, who stated:
It is clear also from the definitions of custody and access in
Article 5 that the removal or retention of a
breach merely of access rights would not be a wrongful removal or
retention in the sense of Article 3.
The Convention contains no mandatory provisions for the support of
access rights comparable with those of its provisions which
protect breaches of rights of custody. This applies even in the
extreme case where a child is taken to another country by the
parent with custody rights and is so taken deliberately with a
view to render the further enjoyment of access rights impossible.
Anton’s view gains support from the fact that the other four
tripes of situations identified in the Dyer Report’s survey as
constituting “child abduction” are all of a kind where the
custodial parent is deprived of her or his right of custody.
49 In mv view, that is the correct approach and, accordingly, I
propose to deal with the issue of whether there was a wrongful
removal of Matthew on this basis.
Wrongful Removal
50 Before turning to the issue of whether there was an
infringement of custody rights warranting the return of Matthew
under the Convention, I would like to dispose briefly of two
issues that were raised in the courts below.
51 The first of these concerns the possibility that the
appellant did not know she was violating the Scottish court’s
order. In my view, this is irrelevant. Nothing in the nature of
mens rea is required; the Convention is not aimed at attaching
blame to the parties. It is simply intended to prevent the
abduction of children from one country to another in the interests
of children. If the removal of the child was wrongful in that
sense, it does not matter what the appellant’s view of the
situation was.
52 The second preliminary issue relates to the dispute
regarding whether Matthew’s residence was in Scotland or in
Manitoba at the relevant time. On the facts of this case. I agree
with the courts below that this issue is also without substance.
53 I turn then to the issue of whether there was a removal of
Matthew from Scotland constituting a breach of custody rights
there. The appellant argued that Matthew’s removal cannot be
considered wrongful under the Convention because the appellant had
interim custody. For the respondent, reference was made to the
letter of the central authority in Scotland that a parent had
custody of a child until a court ordered otherwise. The
difficulty, however, is that before Matthew’s removal from
Scotland, there was a court order awarding interim custody to his
mother, leaving the respondent father with a mere right of access.
Under these circumstances, the Court must determine what the law
is as best it can by reference to relevant decisions.
54 Three approaches have been taken in the case law. Common to
all three is that the courts have shown a strong disposition to
give effect to the spirit of the Convention. The first is to the
effect that a removal in breach of a non-removal clause is
contrary to the terms of the Convention because such a removal is
in breach of the custodial parent’s own right of custody. This is
arguably the approach adopted by Davidson J. in the present case.
She stated. at p. 76:
. . . 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.
55 A similar approach was adopted by Ewbank J. of the English
High Court (Family Division) in Re K. H. (A Minor) (Abduction),
[1990] F. C. R. 990. In that case, the parents of an infant
daughter, residing in Ontario, separated, and the mother gained
interim custody of the child but with the condition
the court. In violation of this clause, the mother brought the
child to England. On the request of the English court under
Article 15, the office of the Attorney General in Ontario sent a
certificate and an affidavit, stating its opinion of the effect of
the non-removal clause under Canadian law. Accepting this
submission, Ewbank J. summarized the Attorney General of Ontario’s
view as follows, at p. 992:
. . . it is the opinion of the Crown Law Officer that the mother’s
conduct in removin;, the child from the Province of Ontario
constituted a wrongful removal within the meaning of Article 3 of
the Convention in that it was a breach of the rights of custody
attributed to her under the law of the Province bv reason of a
judicial decision. Her rights of custody under the order of
September 19, 1989 were rights of custody within the Province of
Ontario which specifically provided by the order of the court that
the child was not to be removed from Ontario, and in removing the
child the mother was in breach of the rights of custody which she
had been granted. [Emphasis added.]
56 I confess to having some discomfort with this approach. By
providing that “at the time of removal or retention those rights
[of custody] were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or retention”,
Article 3 would seem to imply that the rights breached must have
belonged to someone other than the breaching party. That reading
is confirmed by the structure of the Convention as well as by the
comments of those engaged in the drafting of the Convention, from
which it appears that primaryprotection to custody rather than
access was intended.
57 It must, however, be remembered that the request for return
in this case appears to have been based on the approach set forth
in the cases just cited. Mrs. Thomson, the request reads, was the
person whose custody rights were breached. The validity of this
approach, I noted, was contested on a substantive basis, but it
was never argued that it vitiated the request for the return of
the child as such. For my part, I do not think one should insist
on technical precision in matters of form, given the
precisely what the courts in another country may require. Here the
request adequately informed the courts of the situation, whatever
its form or whatever the theory under which the requesting state
was acting, and I think the request was properly acted upon. This
is all the more compelling because on the basis of the statement
of law given by the Canadian authorities in Re K H., supra, there
was reason for the authorities in Scotland to think theywere
acting in accordance with Canadian law.
58 The second and third approaches mentioned hold that “the
right to determine the child s place of residence” is a custody
right divisible from the right to care for the person of the
child, and by virtue of a non-removal clause, this right vests in
either the access parent (the second approach), or the court (the
third approach). These approaches gain support from the open-ended
wording of Article 5: “”rights of custody” shall include rights
relating to the care of the person of the child and, in
particular, the right to determine the child’s place ofresidence”
(emphasis added).
59 In C. v. C. (Minor. Abduction: Rights of Custody Abroad),
[1989] 2 All E.R. 465 (C.A.), the court accepted the second
approach, that the access parent (the father) gained a right of
custody within the meaning of the Convention. There, the parties
had married in England in 1978 and moved to Australia in 1979. In
1982 they became the parents of a son. They separated in 1986. A
consent order made by the Australian Family Court directed that
the father and the mother were to remain joint guardians of the
child, the mother to have day-to-day custody; neither parent was
to remove the child from Australia without the consent of the
other. In 1988 the mother removed the child to England without the
father’s consent. The English Court of Appeal, while not presented
with any evidence of Australian law, noted that, under Article 3
of the Convention, custody rights are specifically
put the matter, at p. 472:
I am satisfied that this right to give or withhold consent to any
removal of the child from Australia, coupled with the implicit
right to impose conditions, is a right to determine the child’s
place of residence. and thus a right of custody within the meaning
of arts 3 and 5 of the convention. I am further satisfied that
this conclusion is in accordance with the objects of the
convention and of the 1985 Act. Until last August this child was
habitually resident in Australia. In 1986 the Family Court of
Australia made orders relating to his custody. which included an
agreed provision that he should not be removed from Australia w
ithout the father’s consent. In my judgment. the enforcement of
that provision falls plainly within the objects which the
convention and the 1985 Act are seeking to achieve.
60 Lord Donaldson M.R. concurred, stating at p. 473:
‘Custody, as a matter of non-technical English, means ‘Safe
keeping, protection; charge, care, guardianship’ (I take that from
the Shorter Oxford English Dictionary); but ‘rights of custody’ as
defined in the convention includes a much more precise meaning,
which will, I apprehend, usually be decisive of most applications
under the convention. This is ‘the right to determine the child’s
place of residence’. This right may be in the court, the mother,
the father, some caretaking institution, such as a local
authority, or it may, as in this case, be a divided right, in so
far as the child is to reside in Australia, the right being that
of the mother but, in so far as any question arises as to the
child residing outside Australia, it being a joint right subject
always, of course, to the overriding rights of the court. If
anyone, be it an individual or the court or other institution or a
body, has a right to object, and either is not consulted or
refuses consent, the removal will be wrongful within the meaning
of the convention. I add for completeness that a ‘right to
determine the child’s place of residence’ (using the phrase in the
convention) may be specific’ the right to decide that it shall
live at a particular address, or it may be general, en. ‘within
the Commonwealth of Australia’.
61 That case presented more compelling facts than the present
case. There, it will be observed, the parents were joint guardians
under an agreed prov-
removed from the country. Here the father under the court order
appears to have had only a right of access, which theConvention
does not equate w ith custody.
62 The third approach, that the effect of the insertion of a
non-removal clause in an interim custody order is to retain a
right of custody in the court, was adopted by the English Court of
Appeal in B. v. B. (Abduction: Custody, Rights), [1993] 2 All E.R.
144. There, the mother and father married in England in 1977 and
moved to Ontario in 1981, where they became Canadian citizens.
Their son was born in 1985. The parties separated in 1990. In
January 1991 a consent order granted interim custody to the mother
with liberal access to the father, and included an order
preventing the child’s removal from Ontario. In May 1991 the
mother sought final custody and leave of the court to remove the
child to England. That motion was returnable on June 27, 1991. In
her affidavit, the mother stated: ” I have no intention of leaving
this jurisdiction without an appropriate order of this honourable
court.” On June 27 the motions judge adjourned the hearing of the
substantive issues but ordered that the child “shall not be
removed from the jurisdiction in the interim”. The hearing was to
resume July 2, 1992. On that day, the judge gave directions for
the substantive hearing to continue at a later date in a new
venue. His order continued the interim custody of the wife and
specified the access times of the husband. It did not, however,
include a non-removal clause. The next day, the wife left for
England with the child.
63 Sir Stephen Brown P. of the English Court of Appeal held, at
p. 149:
In my view this was the plainest example of an unlawful removal.
The mother herself appears to have thought so, for she later
stated that she regretted having taken that step at that time. It
is suggested that she did not appreciate the legal position,
although she was in receipt of legal advice at the time. It seems
to me that the court
this time in the sense that it had the right to determine the
child’s place of residence, and it was in breach of that right
that the mother removed the child from its place of habitual
residence .
64 I am fully in agreement with this statement. It seems to me
that when a court has before it the issue of who shall be accorded
custody of a child, and awards interim custody to one of the
parents in the course of dealing with that issue, it has rights
relating to the care and control of the child and, in particular,
the right to determine the child’s place of residence. It has long
been established that a court may be a body or institution capable
of caring for the person of a child. As I explained in E. (Mrs.)
v. Eve, [1986] 2 S.C.R. 388, the Court of Chancery has long
exercised wardship over children in need of protection in the
exercise of its parens patriae jurisdiction. But I see no need to
rely on jurisdiction emanating from this doctrine, which has
understandably “puzzled and concerned” other Contracting Parties;
wardship, as we know it, does not apparently exist in Scotland;
see Nigel Lowe and Michael Nicholls, “Child Abduction: The
Wardship Jurisdiction and the Hague Convention”, [1994] Fam. Lau
191, at p. 191.
65 This Court heard no evidence on the legal effect under
Scottish law of the insertion of the non-removal clause in the
interim custody order granted to Mrs. Thomson on November 27,
1992. Therefore we must interpret the clause without aid. from
general principles and by analogy to Canadian law. Under Canadian
law, a non-removal clause may be placed in an interim order of
custody to preserve the court s jurisdiction to make a final
determination of custody. It seems to me that when a court is
vested with jurisdiction to determine who shall have custody of a
child, it is while in the course of exercising that jurisdiction,
exercising rights of custody within the broad meaning of the term
contemplated by the Convention. In the words of Article 3(b), “at
the time of the removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exer-
earlier, the travaux preparatoires envision this situation.
66 All of this seems particularly appropriate in the case at
bar. The non-removal clause here reads simply: “Of new Grants
interim interdict quoad crave 2 ad interim against the Defender
from removing the said Matthew Paul Thomson furth of Scotland”
(emphasis in original). Given the underscoring twice of the word
‘interim’, it seems clear that the non-removal clause was inserted
into the custody order of November 27, 1992 to preserve
jurisdiction in the Scottish court to decide the issue of custody
on its merits in a full hearing at a later date. Thus the Scottish
court became “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”
having custody rights within the meaning of Article 3. The
preservation of the access rights of the respondent would be
merely a corollary effect of the clause. The appellant’s removal
of Matthew therefore constituted a breach of the custody right of
the Scottish court within the meaning of Article 3 of the
Convention. Article 12 of the Convention, therefore, charges this
Court to order his return “forthwith”.
67 It will be observed that I have underlined the purely
interim nature of the mother’s custody in the present case. I
would not wish to be understood as saying the approach should be
the same in a situation where a court inserts a non-removal clause
in a permanent order of custody. Such a clause raises quite
different issues. It is usually intended to ensure permanent
access to the non-custodial parent. The right of access is, of
course, important but, as we have seen, it was not intended to be
given the same level of protection by the Convention as custody.
The return of a child in the care of a person having permanent
custody will ordinarily be far more disruptive to the child since
the child
residence long after the custody order was made. The situation
also has serious implications for the mobility rights of the
custodian.
Wrongful Retention
68 In light of my determination that the removal of Matthew was
wrongful, it is not in strictness necessary to deal with wrongful
retention. However, in view of the argument concerning the effect
of the February 3, 1993 order of the Scottish court in faour of
the father, I think it is important to discuss this issue.
69 The respondent argued that the appellant’s retention of
Matthew after the Scottish court’s order of February 3, 1993 was
wrongful within the meaning of Article 3 because it was in breach
of rights the respondent would have exercised if not for the
retention. Neither side placed any evidence before this Court as
to the reasons of the Scottish court in granting the order of
February 3 which flies in the face of the Solicitor’s report
indicating that the appellant is the more suitable parent. The
lower courts assumed, and the appellant argued, that this custody
decision was made solely for the purpose of bolstering the
respondent’s application under the Hacue Convention. This type of
order is known internationally as a “chasing order”.
70 Since the Hague Convention’s reference to “wrongful
retention” is somewhat ambiguous, it must be read in light of the
background to the Convention. The drafters of the Convention did
not wish to follow the approach of the Council of Europe’s
Convention on Recognition and Enforcement of Decisions Concerning
Custody of Children and on Restoration of Custody of Children,
Eur. T. S. No. 105, which bases the return of children on the
recognition of custody decisions or orders of the request-
“chasing order”. Anton, supra, explains (at pp. 541-49):
. . . in many abduction cases there will have been no anterior
custody decision: the right breached may have been a right
conferred by law. The Council of Europe Convention comes into
operation only where there is a custody decision to recognise and
enforce, and meets the problem presented bv the possible absence
of an anterior decision by providing, for the recognition and
enforcement under the Convention of a retrospective decision (the
so-called “chasing order”) relating to the custody of the child
and declaring his removal to have beenunlawful. The Special
Commission at The Hague, however, considered that it would be
wrong to require a person seeking the return of an abducted child
to go first to the courts of the State of the habitual residence
of the child to obtain a “chasing order” Although, therefore,
under Article 15 of the Hague Convention, the courts of a State to
which applications for the return of a child have been made may
call for a “chasing order”, this is merely an option. They are
likely to avail themselves of it only when they have substantial
doubts which cannot otherwise be resolved.
71 Article 15, allowing for the requested state to seek a
“chasing order” from the requesting state, is as follows:
Article 15
The judicial or administrative authorities of a Contracting State
may, prior to the malting of an order for the return of the child,
request that the applicant obtain from the authorities of the
State of the habitual residence of the child a decision or other
determination that the removal or retention was wrongful within
the meaning of Article 3 of the Convention, where such a decision
or determination may be obtained in that State. The Central
Authorities of the Contracting States shall so far as practicable
assist applicants to obtain such a decision or determination.
72 The provision, it will be observed, contemplates that the
initiative for obtaining a chasing order is with the requested
state. and that the order is intended to determine whether the
removal or retention was wrongful. In short, for the purposes of
the Convention, a “chasing order” serves to
the requested state the opinion of the requesting state that
indeed the continuingretention was wrongful.
73 There is nothing in the Convention requiring the recognition
of an ex post facto custody order of foreign jurisdictions. And
there are several statements in the supplementary material to
support the view that “wrongful retention” under the Hague
Convention does not contemplate a retention becoming wrongful only
after the issuance of a “chasing order”. According to the report
of Professor Perez-Vera on the Preliminary draft Convention
(Preliminary Document No. 6 “Report of the Special Commission”)
the situations to which “wrongful retention” under the Hague
Convention was intended to refer are quite straightforward and
conform to common sense. She states:
As a result, an analytical approach seems to be the most
appropriate for getting into the gist of the matter in an area
where legal terminology could become either too complex or too
simple. As a basis for this approach, we shall consider just two
elements which coexist in all the situations we have to face and
which, in such a way, may be deemed to constitute the unalterable
nucleus of the problem.
[Describing “removal”] In the first place, and in all cases, we
have the removal of a child away from the normal social
environment in which he lived in the care of a custodian (or
institution) who exercised over him a legal right of custody.
[Describing “retention”] Naturally, we must assimilate to this
situation the case of a refusal to return the child after a
sojourn abroad. where the sojourn has been made with the consent
of the rightful custodian of the child’s person. In both cases.
the outcome is the same: the child has been removed from the
social and family background which shaped his life.
Secondly. the person who removed the child . . . hopes to obtain
the right of custody, from the authorities of the country where
the child has been taken . . . [in order to] legalize the factual
situation he has created . . . [Emphasis added.]
(Actes et Docunments, supra, at p . 172. )
74 To paraphrase. a wrongful retention begins from the moment
of the expiration of the period of access, where the original
removal was with the <593> consent of the rightful custodian of
the child. This interpretation is repeated in the “Commentary on
the Draft” in the Report of the Special Commission, which states:
In the first place, the reference to wrongfully ‘retained’
children tends to cover the case of a child who is in a different
place from that of his habitual residence, with the consent of the
rightful custodian, and who has not been returned by the
non-custodian parent.
(Actes et Documents, supra, at p. 187.)
Similarly, the Explanatory Report on the Convention states:
The fixing of the decisive date in cases of wrongful retention
should be understood as that on which the child ought to have been
returned to its custodians or on which the holder of the right of
custody refused to agree to an extension of the child’s stay in a
place other than that of its habitual residence.
(Actes et Documents, supra, at pp. 458-59.)
At page 429, it adds: “The Convention . . . places at the head of
its objectives the restoration of the status quo . . . “.
75 Accordingly, I conclude that the order granted by the
Scottish court in favour of the father on February 3, 1993,
standing alone, would not have been sufficient to ground an
application under the Hague Convention, as it could not,in itself,
make the retention wrongful.
76 As noted earlier, I am aware of a number of cases, like the
present, where the British authorities appear to have assumed that
a “chasing order” issued after the child has been taken out of the
jurisdiction can by itself make unlawful what was otherwise not
contrary to the Convention; see C. v. S. (Minor: Abduction:
Illegitimate Child), [1990] 2 All E.R. 449 (C.A.), aff’d [1990] 2
All E.R. 961 (H.L.); Re B.-M. (Wardship: Jurisdiction), [1993] 1
F.L.R. 979 (H.C. (Fam. Div.)); and Re N. (Child Abduction:
Habitual Residence), [1993] 2 F.L.R. 124 (C.A.). In particular,
since this case was argued, a number of British and Australian
cases have come to my attention where wardship proceedings in
England have been used as “chasing <594> orders” after the removal
of a child to establish wrongful retention whether by or against
the person having the right of custody at the time of the removal;
see, for example, Re B.-M., supra; and In the Marriage of W.M. and
G.R. Barraclough, [1987] 11 Fam. L.R. 773 (Fam. Ct. Aust. ). I
refrain from commenting further about these cases, but I simply
observe that such an approach taken against a custodial parent
(other than one acting on an interim basis, as here) appears at
first blush to be directed to protecting interests other than
custody rights, to which the remedy of return of the child is
confined under the Convention. Should such a situation arise here,
it would have to be very carefully scrutinized to see if this
conformed to the letter and spirit of the Convention. I observe
that in a recent United States case, the court there refused to
honour a request for return under such circumstances; see Meredith
v. Meredith, 759 F.Supp. 1432 (D. Ariz. 1991).
Exceptions to the Return of a Wrongfully Removed Child
77 Having determined that Matthew was wrongfully removed under
the terms of the Convention, Article 12 of the Convention mandates
this Court to order his return “forthwith” unless his case fits
into one of the exceptions set forth in Articles 12, 13 and 20.
These are (see John M. Eekelaar, “International Child Abduction by
Parents” (1982), 32 U.T.L.J. 281, at p. 311):
1. More than a year has elapsed between the removal and the
commencement of judicial proceedings and it can be demonstrated
that the child is now settled into his new environment: Article
12;
2. The person, institution or other body having the care of the
person of the child was not actually exercising the custody rights
at the time of removal or retention: Article 13(a);
<595> 3. The person . . . having the care of the person of the
child had acquiesced in the removal or retention: Article 13(a);
4. 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: Article 13(b);
5. The child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take into account
of its views: Article 13;
6. The return of the child would ” not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms”: Article 20.
As well, it will be remembered. there is the exception in s. 5 of
the Manitoba Act that if the court is satisfied that a child would
suffer serious harm from leaving or placing the child with the
person named in an extra provincial order, it must make another
custody order.
78 The only exceptions into which it is claimed Matthew fits
are that of “serious harm” under the Manitoba Act or “a grave risk
. . . [of] physical or psychological harm ” under the Convention.
It is argued that Matthew’s separation from his mother, who has
been his primary caretaker for the past 13 months, will cause such
harm, and that such separation is the necessary consequence of an
order of return, due to the currency of the Scottish custody order
in favour of the father of February 3, 1993. I shall deal with the
matter on the basis that both tests of harm are applicable to the
present proceedings; I shall have more to say about this later.
79 As noted by Davidson J., the tests for harm under the
Manitoba Act and the Convention are not expressed in the same
terms. The former requires that the “child would suffer serious
harm if the child remained in or was restored to the custody . .
.”. The latter requires “a grave risk that his <596> or her return
would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation”. Twaddle
J.A. disposed of the problems raised by this variance by stating.
at p. 908: “As ‘serious harm’ to the little boy in this case would
necessarily be preceded by a grave risk of harm to him, it is only
necessary to consider the exceptions set out in the Convention.”
In view of the findings that the facts here did not meet the tests
of harm either as expressed in the Convention or the Act. I need
not delve into this issue. I content myself by saying that I agree
that the inconsistencies between the Convention and the Act are
not so great as to mandate the application of a significantly
different test of harm. Because of this and because, as I will
explain later, it is in my view the only relevant exception, I
will consider only case law under the “harm” exception of the
Convention, on which in any case the appellant essentially relied.
80 It has been generally accepted that the Convention mandates
a more stringent test than that advanced by the appellant. In
brief, although the word “grave” modifies “risk” and not “harm”,
this must be read in conjunction with the clause “or otherwise
place the child in an intolerable situation”. The use of the word
“otherwise” points inescapably to the conclusion that the physical
or psychological harm contemplated by the first clause of Article
13(b) is harm to a degree that also amounts to an intolerable
situation. Examples of cases that have come to this conclusion
are: Gsponer v. Johnstone (1988), 12 Fam. L.R. 755 (Fam. Ct. Aust.
(Full Ct.)); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365
(Eng. C.A.); Re A. and another (Minors) (Abduction: Acquiescence),
[1992] 1 All E.R. 929 (C.A.); Re L. (Child Abduction)
(Psychological Harm), [1993] 2 F.L.R. 401 (End. H.C. (Fam. Div.));
Re N. (Minors) (Abduction), [1991] 1 F. L. R. 4 1 3 (Eng. H. C .
(Fam. Div.)); Director-General of Family and Community Services v.
Davis (1990). 14 Fam. L.R. 381 (Fam. Ct. Aust. (Full <597> Ct.));
C. V. C., supra, In Re A. (A Minor) (Abduction), supra, Nourse
L.J., in my view correctly, expressed the approach that should be
taken. at p. 372:
. . . the risk has to be more than an ordinary risk, or something
greater than would normally be expected on taking a child away
from one parent and passing him to another. I agree . . . that not
only must the risk be a weighty one, but that it must be one of
substantial, and not trivial, psychological harm. That, as it
seems to me, is the effect of the words for ‘otherwise place the
child in an intolerable situation’.
81 I hasten to add, however, that I do not accept Twaddle J.
A.’s assessment that the risk contemplated by the Convention must
come from a cause related to the return of the child to the other
parent and not merely from the removal of the child from his
present caregiver. As this Court stated in Young v. Young, [1993]
4 S.C.R. 3, from a child centred perspective, harm is harm. If the
harm were severe enough to meet the stringent test of the
Convention, it would be irrelevant from whence it came. I should
observe, however, that it would only be in the rarest of cases
that the effects of “settling in” to the abductor s environment
would constitute the level of harm contemplated by the Convention.
By stating that before one year has elapsed the rule is that the
child must be returned forthwith, Article 12 makes it clear that
the ordinary effects of settling in, therefore, do not warrant
refusal to surrender. Even after the expiration of one year,
return must be ordered unless, in the words of the Convention, “it
is demonstrated that the child is now settled in its new
environment “.
82 In the case at bar. there is no doubt that Matthew would
suffer some psychological harm in being torn from his mother’s
custody and thrust into that of his father, especially in light of
the possibility that, on a re-hearing, the Scottish court may
award final custody back to the mother. To paraphrase Helper J.A.,
it is not good for a child to be bounced from one caregiver to
another. This problem has been recognized by other courts. In Re
L., supra, the father was American and the mother British. <598>
They had lived in Texas where the child was born in 1991. The
mother wrongfully removed the child to England. The father applied
under the Hague Convention for the return of the child, and the
mother resisted the application under the exception in Article
13(b). The mother adduced evidence from two developmental
psychologists that to separate a mother from a 19 month old would
cause the child grave psychological harm. The court held that this
evidence went to the merits of a custody hearing. The court
determined that the risk of harm to the child would only arise if
the mother refused to accompany the child or was denied a visa to
do so. Even so, the court held that the harm was not severe enough
to invoke Article 13(b). At page 405, it stated:
Even if she still failed [to accompany the child to Texas or] to
obtain a visa, I do not accept that there is a grave risk that
Thomas would be exposed to psychological harm of the necessary
degree, or be placed in an intolerable situation of the necessary
degree. After all, he will be collected by his father here, and
taken to Texas, and then will be cared for by his father and by
his paternal grandmother thereafter.
In light of the undertakings of the father in Re L. to pay the
mother’s airfare, to pay interim support money. and to vacate the
matrimonial home in Texas for her to stay there with the child
until the custody hearing the court was satisfied that the child s
interests were safeguarded while the Convention was honoured.
Remedies
83 As discussed earlier, the “chasing order” issued by the
Scottish court complicates matters in the case at bar, for it
makes one objective of the Convention, a return to the status quo
as it existed before the wrongful removal, impossible to achieve
without taking additional action. The Convention does not provide
specifically for remedial flexibility because it is based on the
primary assumption that the wrongful removal of a child
necessarily has harmful effects (see the preamble; <599> see also
Anton, supra, at p. 543). In interpreting the Convention, courts
have recognized that frequently an unqualified return order can be
detrimental to the short term interests of the child in that it
wrenches the child from its de facto primary caregiver. As Helper
J.A. put it, at p. 215, “children must not be made to suffer twice
over as a result of their parents’ wrongdoing”. The younger the
child, the greater the need for the courts’ concern. This is
especially so in fact patterns like the present to which the
travaux preparatoires refer to as “in effect, the reverse of the
usual child abduction case” (Dyer Report, Actes et Documents,
supra, p. 40).
84 Given the preamble’s statement that “the interests of
children are paramount”, courts of other jurisdictions have deemed
themselves entitled to require undertakings of the requesting
party provided that such undertakings are made within the spirit
of the Convention: see Re L., supra; C. v. C., supra; P. vs P.
(Minors) (Child Abduction), [1992] 1 F.L.R. 155 (Eng. H.C. (Fam.
Div.)); and Re A. (A Minor) (Abduction), supra. Through the use of
undertakings, the requirement in Article 12 of the Convention that
“the authority concerned shall order the return of the child
forthwith” can be complied with, the wrongful actions of the
removing party are not condoned, the long-term best interests of
the child are left for a determination by the court of the child’s
habitual residence, and any short-term harm to the child is
ameliorated.
85 Mr. Thomson has offered the following undertakings through
his solicitors which this Court has accepted:
(a) He will not take physical custody of Matthew upon Matthew’s
return to Scotland and not until a Court permits such custody.
(b)That he will commence such proceedings as will enable the Court
of competent jurisdiction in Scotland to determine within
approximately 5 weeks of <600> Matthew’s return on an interim or
final basis, the issue of Matthew’s care and control.
Interaction Between Convention and Manitoba Act
86 Davidson J. made a four-month interim custody order in
favour of the appellant. The interveners before this Court
disagreed on whether the Manitoba Court of Queen’s Bench had
jurisdiction to grant such an order. This difference of opinion
arises from the interpretation of s. 6 of the Manitoba Act (which
allows such interim orders as are in the best interests of the
child) and the interpretation of Articles 19 of the Convention
(which demands that a wrongfully removed child must be returned
“forthwith”) and 16 (which states that a court charged with
determining a case by application of the Convention “shall not
decide on the merits of rights of custody” unless it has first
determined that the child is not to be returned under the
Convention). The Attorneys General of Canada submits that, if a
conflict exists between these provisions, the Convention must
prevail. The Attorney General of Manitoba submits that in such a
case, the Manitoba legislation must prevail.
87 Professor Vaughan Black in his article “Statutory Confusion
in International Child Custody Disputes” (1993), 9 C.F.L.Q. 279,
at pp. 279-80, describes the problem created by the provincial
enactments of the Convention:
The problem arises because in some cases two distinct statutory
regimes present themselves as applicable. In the mid-1980s, all
Canadian provinces and territories adopted legislation
implementing the Hague Convention on the Civil Aspects of
International Child Abduction. This legislation was enacted on top
of existing statutes dealing with matters of child custody. Those
existing statutes typically had some provisions dealing with
questions of territorial complexity. Specifically, the existing
statutes contained provisions dealing with the questions of when
the provinces’ courts could and should take jurisdiction over a
geographically complex custody case, and the related matter of the
circumstances in which foreign custody orders should be accorded
recognition. In some provinces, . . . the Hague Convention is
found in the same statute as the general <601> custody provisions.
In others, the Convention was enacted in a separate statute
confined to the promulgation of that treaty. In either event – at
least in those cases where the foreign country in question is a
contracting state under the Convention – international custody
cases appear to present the problem of two applicable statutes.
88 The preliminary draft Convention that had been completed by
the Hague Conference Special Commission in November 1979 was
submitted to the Uniform Law Conference of Canada in August 1980
by its Committee on International Conventions on Private
International Law (see K. B. Farquhar, “The Hague Convention on
International Child Abduction Comes to Canada” (1983), 4 Can J.
Fang L. S). The Uniform Law Conference agreed upon the text of a
“Uniform Act” to implement the Hague Convention. Four provinces
(New Brunswick, Nova Scotia, Saskatchewan and Alberta) enacted
legislation that paralleled the Uniform Act, including its
provision that, in the event of a conflict between the Convention
and any other enactment, the Convention prevailed: International
Child Abduction Act, S.N.B. 1982, c. I-12.1; Child Abduction Act,
S.N.S. 1982, c. 4; International Child Abduction Act, S.S. 1986,
c. I-10.1; and International Child Abduction Act, S.A. 1986, c.
I-6.5.
89 Quebec chose not to enact the Convention at all, but to
legislate equivalent provisions: An Act respecting the civil
aspects of international and interprovincial child abduction, S.Q.
1984, c. 12. The five remaining provinces (Manitoba, Ontario.
British Columbia, Prince Edward Island and Newfoundland) adopted
the Convention in a more general statute dealing with the civil
aspects of child abduction: Child Custody Enforcement Act, S.M.
1982, c. 27 (now R.S.M. 1987, c. C360); Children’s Law Reform
Amendment Act, 1982, S.O. 1982, c. 20; Family Relations Amendment
Act, 1982, S.B.C. 1982, c. 8, as am. by S.B.C. 198:, c. 72, s. 20;
Custody Jurisdiction and Enforcement Act, S.P.E.I. 1984, c. 17:
and The Children’s Law Act, S.N. 1988, c. 61. Of these five,
Ontario, Prince Edward Island and New- <602> foundland’s
enactments all contain the provision that, in the event of a
conflict between the Convention and any other legislative scheme,
the Convention prevails. Only the British Columbia and Manitoba
Acts do not contain such supremacy provisions.
90 Black (supra at p. 286) asserts that the difference of view
between the provinces that enacted the Convention simpliciter and
those that grafted it onto a more expansive legislative scheme
stem from the fact that:
A province might wish to enact legislation which imposes an
obligation to order the return of abducted children which is
“stricter” – that is, subject to narrower exceptions – than the
obligation imposed by the Convention. Parties seeking an order for
return pursuant to such laws should not then be faced with an
argument that one of the exceptions in the Convention operates to
preclude that relief. In other words, the Convention enacts
minimal obligations to order the return of abducted children, and
does not operate to preclude the enactment of more stringent
obligations. [Emphasis in original.]
91 However, the situation described by Black, where a province
might hypothetically wish to enact provisions narrower than those
of the Convention, is the reverse situation to that of the case at
bar. It was argued before us that, because the two pieces of
legislation were not pleaded as alternatives, and because Manitoba
has enacted enforcement provisions looser than those of the
Convention, the Manitoba Court of Queen’s Bench has jurisdiction
to make an interim custody order that is in contravention of the
requirements of Articles 12and 16 of the Convention.
92 It is, in strictness, not necessary to decide whether the
provisions of the Child Custody Enforcement Act conflict with the
provisions of the Convention in the case at bar. The four months
of interim custody granted to the appellant by Davidson J. have
expired, as have the two months Helper J.A. would have granted.
Although this case has been expedited, the appellant has had de
facto cus- <603> tody of Matthew in Canada for 13 months. The
respondent has undertaken not to enforce any right to custody he
might have under Scottish law until a full hearing_ of the matter
if the appellant accompanies the child back to Scotland. Whether
she accompanies Matthew or not, the appellant must return the
child to Scotland “forthwith “.
93 I think it advisable, however, to set forth my views on the
interrelationship of the Convention and the other provisions of
the Act in circumstances such as arose here. As I see it, those
provisions and the Convention operate independently of one
another. This result appears obvious when an application is made
solely under the Convention or solely under the Act. One procedure
may provide advantages that the other does not. When a particular
procedure is chosen, however, it should operate independently of
the other, though where the provisions of the Act are selected it
may not be improper to look at the Convention in determining the
attitude that should be taken by the courts, since the
legislature’s adoption of the Convention is indicative of the
legislature’s judgment that international child custody disputes
are best resolved by returning the child to its habitual place of
residence; see G v. G (Minors) (Abduction), [1991] Fam. Law 519
(C. A.), at p. 519; and Black, supra, at pp. 290-91.
94 In the present case, applications were made under both the
provisions of the Act and the Convention. and the courts below
attempted to deal with both at the same time. Such mixing of
independently devised comprehensive procedures is seldom helpful,
and what is more important I do not think it is called for by the
Act. It is true that unlike the Uniform Act, the Manitoba Act does
not expressly provide that in the event of conflict the Convention
prevails, but I do not think this is necessary where an
application is made under the Convention. There is nothing in the
Act indicating that when an application is made under the
Convention, the independent procedure provided by the Act (which,
unlike the Convention, is more <604> narrowly directed at the
enforcement of custody orders) should be referred to. By adopting
the Convention, then, the legislature must be taken to do w hat it
requires: promptly return a child wrongfully removed from its
state of habitual residence to that state. Unless the applicant
chooses to abandon it. the application under the Convention
applies. Black, supra, at pp. 281-82, thus puts the matter:
The Convention simply requires that, subject to a narrow list of
exceptions. children wrongfully removed from the country of their
habitual residence be promptly returned to that state. The courts
in the contracting state where the “abducted” children are present
have an obligation to order such return. Article 16 of the
Convention makes it clear that where there is an application for
the return of a child, such application takes precedence over any
custody application:
After receiving notice of a wrongful removal or retention of a
child …. the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which
it has been retained shall not decide on the merits of rights of
custody until it has been determined that the child is not to be
returned under this Convention . . .
Thus, an application for return pursuant to the Convention
preempts a local custody application. Only if the application for
return is refused – either because the Convention is held to be
inapplicable or because one of its narrow exceptions is found to
operate – should a custody application proceed. Since the court
which decided to grant an order for return of the children
pursuant to the Convention would obviously not both order such
return and then proceed to determine custody, a successful
application under the Convention entails declining any custody
jurisdiction the court might otherwise possess. [Emphasis in
original.]
95 Thus, as I see it, Davidson J. or Helper J.A. could not make
an interim custody order under s. 6 of the Act. I am not, however,
prepared to completely discount the possibility that the end
sought by Helper J.A. could not be achieved under the Convention.
Ordinarily, it is neither necessary nor desirable to proceed
otherwise than with the utmost expedition. That is because in most
cases <605> (as the situations described in the Dyer Report,
supra, illustrate), the child will be returned to its
custodian-its ordinary caregiver. And, in cases of interim
custody, the interim custodian will normally accompany the child
back. As Helper J.A. pointed out, what makes this case difficult
is that the “chasing order” makes the intended operation of the
Convention impossible.
96 Because of the “chasing order” obtained by the applicant,
the restoration of the status quo, which in the words of the
Explanatory Report, supra, at p. 429, “The Convention . . . places
at the head of its objectives” cannot be achieved. Faced with this
situation, the court must be assumed to have sufficient control
over its process to take the necessary action to meet the purpose
and spirit of the Convention. Here this Court accepted
undertakings made by the applicant which in the circumstances
before it appeared best calculated to achieve that end. However,
such undertakings may not always be forthcoming or for one reason
or another this course may not be acceptable. That is why I would
not rule out the possibility that, in circumstances such as these,
the time frame for return proposed by Helper J.A. might be
justified under the Convention. I observe that Article 11
contemplates a period of six weeks when the authorities in the
requesting state may enquire about delay.
Disposition
97 At the conclusion of the oral argument, judgment was
delivered as follows:
The appeal is dismissed on the undertaking made to the Court
by respondent through his counsel. Counsel will deposit with the
Registrar no later than tomorrow at noon a signed undertaking in
the terms before the Court. Madame Justice L’Heureux-Dube would
have agreed with Madame Justice Helper’s disposition of the case
in reference to the undertaking.
Reasons and determination as to costs to follow.
98
no order as to costs.
The reasons of L’Heureux-Dube and McLachlin JJ. were delivered by
L’Heureux-Dube J.
99 As my colleague La Forest J. has pointed out, this appeal
concerns the problem of international abduction of children in
violation of the Convention on the Civil Aspects of International
Child Abduction, Can. T.S. 1983 No. 35 (“Convention”), which, in
the province of Manitoba. is implemented through TheChild Custody
Enforcement Act, R.S.M. 1987, c. C360 (“CCEA”).
100 Here, the appellant mother, who was granted interim custody
of her eight-month-old son Matthew from the courts in Scotland on
November 27, 1992, flew to Canada with her son on December 2, 1992
in breach of the court order which restricted her from leaving
Scotland. The respondent father is now seeking his son’s return to
Scotland. He relies upon the Convention and upon an ex parte final
custody order granted to him by the Scottish courts after his wife
and son had left Scotland. The question before this Court is
whether the Convention applies to the facts of this case and, if
so, whether transitory measures for the return of the child to his
habitual place of residence are within the jurisdiction of the
courts in Manitoba pursuant to the CCEA.
101 As appears from the judgment rendered orally from the bench
on Januarv 26. 1994, we are all in agreement that this appeal
should be dismissed and that the Convention is applicable to the
circumstances of this case. In this respect, I wish to stress that
I am in full agreement with my colleague La Forest J.’s
interpretation of the Convention as well as the application of the
Convention to the present set of circumstances. Specifically, I
agree with his interpretation of the terms “wrongful removal” and
“wrongful retention” in the Convention and his interpretation of
the Article 1 3(b) exemption under the Convention. Furthermore, I
stress my agreement with his comments at pp. 589 – 590 concerning
the mobility rights of women. I
of a non-removal clause in a permanent order of custody does not
result in a right of custody being retained by the court and
therefore does not result in a wrongful removal, as defined in the
Convention, in circumstances where the custodial parent moves with
the child to a new jurisdiction.
102 While I concur with my colleague’s interpretation and
application of the Convention to the present set of circumstances,
I nonetheless express some reservations as regards his view of the
jurisdiction of the Manitoba courts to impose transitory measures
pursuant to the CCEA for the return of the child to his habitual
place of residence. I believe that the Manitoba courts have
jurisdiction to make such transitory orders where they are
necessary to protect the best interests of the child. provided. of
course, that the purpose and terms of these orders do not hamper
the objectives of the Convention and that the return of the child
to the proper jurisdiction not be delayed to the point of
frustrating the purpose of the convention. In the circumstances of
this case, Helper J.A. of the Manitoba Court of Appeal was, in my
view, justified in adopting the following transitory order in her
dissenting judgment:
1. interim custody of the child Matthew is granted to Mrs.
Thomson; 2. Mr. Thomson s application to return Matthew to
Scotland is staved on the understanding that his application mav
be brought forward upon evidence that he consents to an order in
Scotland allow ing Mrs. Thomson interim custody; and 3. Mrs.
Thomson is directed to commence her application for custody in
Scotland within two months of this order and to proceed as
expeditiously as possible.
((1993). 88 Man. R. (2d) 204, at p. 218.)
103 Helper J.A. adopted this order so as to protect the best
interests of the child (Matthew), a concern which, as I will
explain later, is central to both the Convention and the CCEA. She
found that such an order was necessary because of the “chasing
order” issued by the Scottish courts on February 3, 1993, after
the appellant and Matthew had left Scotland. This “chasing order”
provided the respondent with final custody of Matthew. How-
it the court did not consider the merits of the custody issue and
in particular the best interests of the child. Helper J.A.,
commenting on this “chasing order” and the effect it could have
upon Matthews return under the Convention, observed (at p. 217):
The effect of the June 28, 1993 order mill be Matthev”s removal
from his mother’s care immediately upon his return to Scotland. He
mill be placed with his father whom he has not seen since November
1992 and will be cared for by his paternal grandparents, now
strangers to him. Two different courts have determined that Mrs.
Thomson can best meet Matthews needs. The very real possibility
exists that following a full custody hearing, the Scottish court
mill again return Matthew to his mother’s care, this time in the
long term. He will again be forced to experience change. I am
strongly of the view that the possibility of such a result ought
to be avoided.
Faced with this situation. Helper J.A. adopted the transitory
order described above so as to protect Matthew s best interests.
which after all, are of paramount importance according both to the
preamble of the Convention and the Manitoba CCEA .
104 My colleague La Forest J. also acknowledges the difficult
situation created by the “chasing order”, which, as he noted, was
issued to bolster the respondent’s application under the
Convention. To overcome this difficulty and to protect Matthew s
best interests, my colleague found it sufficient to rely on
undertakings from the respondent father to the effect that Matthew
would remain in his mother’s custody upon his return to Scotland.
Commenting on the use of such undertakings, La Forest J. stated
(at p. 599):
Through the use of undertakings, the requirement in Article 12 of
the Convention that “the authority concerned shall order the
return of the child forthwith” can be complied uith… and any
short-term harm to the child is ameliorated.
105 However, while La Forest J. found that undertakings from the
father were sufficient in this case to protect Matthews best
interests, he noted that there might be some instances where
undertakings
circumstances he would not rule out the possibility that “the time
frame for return proposed by Helper J.A. might be justified under
the Convention”. (p. 605)
106 I, however, would go further than my colleague. Rather than
merely leaving open the possibility that transitory measures may
sometimes be justified under the Convention. I believe that the
Manitoba courts do have jurisdiction to impose transitory measures
under s. 6 CCEA in circumstances where such measures are necessary
to protect the best interests of the child, do not depart from the
spirit and purpose of the Convention. and do not overly delay the
returnof the child to the proper jurisdiction.
107 The facts of this case present a situation where, given the
“chasing order” and the absence of undertakings by the father at
the time of the previous hearings, transitory measures mere
appropriate. Specifically, in the circumstances of this case, the
transitory order proposed by Helper J.A. of the Manitoba Court of
Appeal was appropriate. How ever! in saving this I u ant to make
it clear that the delay in the return of Matthew under such a
transitory order should be as short as possible. In the
circumstances of this case, I believe Matthew’s return has already
been sufficientyv delayed. Consequently, I agree with the majority
thatMatthew should now- be returned immediately.
108 Finally, I do not share my colleague’s view that transitory
measures become unnecessary in the face of undertakings such as
those offered in this case by Mr. Thomson through his solicitors.
These undertakings, which my colleague has reproduced in his
reasons, do not, in my view, preclude the Manitoba courts from
imposing transitory measures where necessary when applying the
Convention.
109 Given these premises. a discussion of the interplay between
the CCEA and the Convention seems essential and will be at the
forefront of my analysis
The Implementation of the Convention
110 As my colleague has pointed out, the necessity of
international agreements with regard to the abduction of children
has been abundantly demonstrated particularly in recent years. The
increase in rapid international transportation the freer crossing
of international boundaries, the continued decrease in
documentation requirements when entering foreign jurisdictions,
the increase in “international families”, where parents are of
different countries of origin, and the escalation of family
break-ups world wide, all serve to multiply the number of
international abductions. (Hague Conference on Private
International Law, Actes et documents de la Quatorzieme session,
t. III, Child Abduction (1982), Preliminary Document No. I
“Questionnaire and Report on international child abduction by one
parent”, at pp. 18-19.) In turn, the effects of abduction are as
numerous and varied as the causes. In the end, abduction may
thwart a hearing of the custodial determination on the merits,
children may suffer severe emotional consequences from the
traumatic event of being whisked away to an unfamiliar location
far from their usual circumstances and, further, if the
international community does not act quickly and in a uniform
manner, children may never be returned to their country of origin
and their custodial parent.
111 It is with this concern in mind that, in 1976, Canada
suggested at the Hague Conference on Private International Law
that a solution to these problems be explored. Four years later,
on October 25, 1980, the Hague Convention on the Civil Aspects of
International Child Abduction was signed.
112 Federal treaty-making power is found in s. 132 ofthe
Constitution Act, 1867 which provides that:
132. The Parliament and Government of Canada shall have all
Powers necessary or proper for performing the Obligations of
Canada or of any Province thereof, as part of the British Empire,
towards Foreign Countries, arising under Treaties between the
Empire and such Foreign Countries,
treaties between the Empire and such Foreign Countries.
Although this provision makes it clear that the treaty-making
power lies within federal jurisdiction it has. nevertheless, been
suggested that a concurrent provincial jurisdiction for
treaty-making may exist for matters within provincial control.
According to Professor Hogg in Constitutional Law of Canada (3rd
ed. 1992) at p. 283, however:
. . . it suffices to say that the provincial claim has never been
accepted by the federal government, and the federal government
does in fact exercise exclusive treaty-making powers.
113 Regardless of this exclusive jurisdiction, federal
treaty-making power is, nonetheless, limited by the constitutional
division of powers. As has long been set out in the Labour
Conventions Case (Attorney-General for Canada v. Attorney- General
for Ontario. [1937] A.C. 326 (P.C.), at p. 348):
But in a State where the Legislature does not possess absolute
authority, in a federal State where legislative authority is
limited by a constitutional document, or is divided up between
different Legislatures in accordance with the classes of
subject-matter submitted for legislation. the problem is complex.
The obligations imposed by treaty man have to be performed, if at
all, by several Legislatures; and the executive have the task of
obtaining the legislative assent not of one Parliament to whom
they may be responsible, but possibly of several Parliaments to
whom they stand in no direct relation.
This complication is particularly apposite to the situation at
hand and is expanded upon by Professor Hogg. supra. in the
following passage at p. 294:
… the federal government cannot ensure the performance of
treaties which require legislation within the legislative
competence of the provinces.
This does not mean that Canada is always precluded from signing,
ratifying or performing treaties upon subjects within the
legislative competence of the provinces. The federal government
can consult with the provinces
obligations which would require provincial implementation, and if
all provinces (or all affected provinces) agree to implement a
particular treaty, then Canada can adhere to the treaty without
reservation.
114 Thus. in light of the above. although the federal government
had the necessary jurisdiction to sign the Convention, it remains
within the jurisdiction of the individual provinces to implement
the Convention. As my colleague has pointed out, New Brunswick,
Nova Scotia, Saskatchewan and Alberta implemented the Convention
by enacting legislation in line with the Uniform Act, a text
agreed upon to implement the Convention in a uniform manner and
which includes a provision that, in the event of conflict between
the Convention and any other enactment, the Convention is to
prevail (International Child Abduction Act, S.N.B. 1982, c.
I-12.1; Child Abduction Act, S.N.S. 1982, c. 4; International
Child Abduction Act, S.S. 1986. c. I-10.1; and International Child
Abduction Act, S.A. 1986, c. I-6.5). Approaching the matter
somewhat differently, Quebec did not enact the Convention but,
rather implemented An Act respecting the civil aspects of
international and interprolincial child abduction, S.Q. 1984, c.
12, which encompassed equivalent provisions. Finally, Manitoba,
Ontario, British Columbia, Prince Edward Island and Newfoundland
enacted the Convention through a more expansive provincial
legislative scheme concerning civil aspects of child abduction
(The Child Custody Enforcement Act, S.M. 1982, c. 27 (now R.S.M.
1987, c. C360); Children’s Law Reform Amendment Act, 1982, S.O.
1982, c. 20; Family Relations Amendment Act, S.B.C. 1982, c. 8, as
am. by S.B.C. 1985, c. 72, s. 20; Custody Jurisdiction and
Enforcement Act, S.P.E.I. 1984, c. 17; and The Children’s Law Act,
S.N. 1988 c. 61). The Ontario, Prince Edward Island and
Newfoundland Acts include provisions that provide that the
Convention is to prevail in the event of a conflict between it and
any other enactment. No such provision is included in the British
Columbia and Manitoba Acts.
115 The potential for conflict arising out of the provincial
implementation of federally negotiated treaties is a real
possibility and has been discussed by Professor Vaughan Blact: in
his article “Statutory Confusion in International Child Custody
Disputes” (1993), 9 C.F.L.Q. 279, at pp. 279-80, particularly with
respect to the Convention:
The problem arises because in some cases two distinct statutory
regimes present themselves as applicable. In the mid-1980s, all
Canadian provinces and territories adopted legislation
implementing the Hague Convention on the Civil Aspects of
International Child Abduction. This legislation was enacted on top
of existing statutes dealing with matters of child custody. Those
existing statutes typically had some provisions dealing with
questions of territorial complexity. Specifically, the existing
statutes contained provisions dealing with the questions of u hen
the provinces’ courts could and should take jurisdiction over a
geographically complex custody case, and the related matter of the
circumstances in which foreign custody orders should be accorded
recognition. In some provinces… the Hague Convention is found in
the same statute as the general custody provisions. In others. the
Convention was enacted in a separate statute confined to the
promulgation of that treaty. In either event — at least in those
cases where the foreign country in question is a contracting state
under the Convention — international custody cases appear to
present the problem of two applicable statutes.
Accordingly. I now turn to an examination of the interplay between
the Convention and the CCEA. a matter on which I reach a somewhat
different conclusion than my colleague La Forest J.
Interplay between the Convention and the CCEA
116 This case raises the question of whether or not s. 6 CCEA
provides the Manitoba courts with jurisdiction to make transitory
orders in light of the best interests of the child when applying
the Convention. Section 6 CCEA reads:
6. Upon application, a court,
(a) that is satisfied that a child had been wrongfully removed to
or is being wrongfully retained in Manitoba; or
(b) that may not exercise jurisdiction under section 4,
(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
pas ment of the cost of the reasonable travel and other expenses
of the child and and parties to or witnesses at the hearing of the
application. [Emphasis added.]
Articles 11 and 12 of the Convention read:
Article 11
The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of the proceedings. the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right to request
a statement of the reasons for the delay. If a reply is received
by the Central Authority of the requested State, that Authoritv
shall transmit the reply to the Central Authority of the
requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the time 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 vear has
elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period
of one year referred to in the preced-
shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested
State has reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the
application for the return of the child. [Emphasis added.]
117 It is pursuant to s. 6(c) CCEA that Davidson J. of the
Manitoba Court of Queen’s Bench made a four month interim custody
order in favour of the appellant mother while, at the same time,
ordering that the child be immediately returned to Scotland
pursuant to the Convention.
118 On appeal. the Manitoba Court of Appeal did not dispute the
court’s jurisdiction to make a transitory order under s. 6 CCEA
when considering an application for return under the Convention.
It did, however, question whether one would be appropriate in the
case at hand. Twaddle J.A., writing for the majority of the Court
of Appeal, held that s. 6 CCEA did not provide the court with a
multitude of options but, rather, simply enabled the court to
delay the return of the child until after a final determination of
custody is made in circumstances where “the return of the child
might be both unnecessary and unduly harmful to the child” (p.
211). Twaddle J.A. was not convinced, however, that there was a
“sufficient likelihood of the Scottish court making a final
decision without the boy’s return as would justify a deferral of
it” (p. 212). Consequently, he ordered that the child be returned
to Scotland forthwith. With regard to the order of interim
custody, he was of the view that such an order contradicted the
goal of return “forthwith” and, thus, had the same effect as the
stay and was therefore unjustified. He stated that where “an order
[for interim custody] accompanies another [order] for the child s
immediate return, it should not extend beyond the time reasonably
required to arrange the return” (p. 212). Furthermore, he added
that it should not “be worded in such a way as to suggest that it
is intended to have
return to the foreign jurisdiction” (p. 212).
119 Helper J.A., differed from the majority, not so much with
regard to the principles in determining the interrelation between
the CCEA and the Convention, but rather, as to their application.
She concluded that the court could and should temporarily stay the
respondent s application for the return of the child to Scotland,
pending the appellant’s application for custody of the child in
Scotland. In her view, the court was entitled to consider the best
interests of the child and was empowered to make an interim order.
She stated (at p. 215):
In giving effect to extra-provincial custody orders, courts must
recognize that a possible by-product of the black letter
application of the Act and the Convention is undue stress and, in
some cases, actual trauma suffered by young children who have no
voice in the courtroom. The corollary to the direction in the
Convention that the signatories wish to protect children from the
harmful effects of their wrongful removal or retention is the
reality that children must also be protected from harmful changes
that are incomprehensible to them.
With regard to the interrelation between the Convention and the
CCEA, she held (at p. 217):
The Convention and the Act must be read together. Each case must
be decided on its own facts. The courts are charged with the grave
responsibilit) of protecting young children when determining the
appropriate remedy for applicants under the Act and the
Convention.
She concluded that Davidson J. overlooked Matthew’s short-term
interests in ordering his immediate return to Scotland. She
believed that the Scottish custody order would override Davidson
J.’s interim order and that as a result Matthew would be removed
from his mother’s care and custody and placed in that of his
father. In her view, the best method of protecting Matthew’s best
interests would be to stay the respondent s application for return
until such time as custody proceedings had been disposed of on the
merits in Scotland. In the alternative, she expressed a
willingness to permit the application for return to be brought
forward if
having interim custody in Scotland.
120 As is apparent from this brief overview of the judgments
below, an examination of the interaction and the potential
conflict between the CCEA and the Convention is crucial to the
determination of the questions in this appeal.
121 In response to this issue, two divergent approaches are
taken by the Attorney General of Canada and the Attorney General
for the province of Manitoba. On the one hand, the Attorney
General of Manitoba submits that the Convention is implemented
through the CCEA and must be interpreted in light of the statutory
language of the CCEA. Such an interpretation should, where
possible, avoid any conflict between the Convention and the CCEA.
However, if a conflict is unavoidable, the CCEA should prevail. As
a result, the Attorney General of Manitoba submits that s. 6 CCEA
applies to applications, in Manitoba, under the Convention.
122 The Attorney General of Canada, on the other hand, submits
that the CCEA and the Convention establish two independent schemes
for the enforcement of foreign custody orders. Thus, to the extent
that the claim falls under the Convention, interim orders could
not be made under s. 6 CCEA.
123 My colleague La Forest J. appears to adopt the submissions
of the Attornev General of Canada. At page 603 he states:
I thins; it advisable. how ever. to set forth my v ieu s on the
interrelationship of the convention and the other provisions of
the Act in circumstances such as arose here. As I see it, those
provisions and the Convention operate independently of one
another. This result appears obvious when an application is made
solely under the Convention or solely under the Act. One procedure
may provide advantages that the other does not. When a particular
procedure is chosen, however, it should operate independently of
the other . . .
124 With respect, I cannot agree. In my opinion, the CCEA and
the Convention do not establish two independent regimes. Instead,
since the Convention is implemented in Manitoba by means of the
CCEA, the two must be read in concert. Of course, in doing so
courts should attempt to arrive at an interpretation that. to the
extent possible, gives full effect to the purpose of the
Convention. This interpretive guideline has been described by
P.-A. Cote in The Interpretation of Legislation in Canada (2nd ed.
1991), at p. 308, as follows:
According to the Canadian constitutional system, both the federal
Parliament and the provincial legislatures may enact statutes that
contradict the country s international obligations. A statute is
not void or inoperative simply because it violates international
custom or convention. There is a presumption, however. that the
legislature does not intend such a result. Given two possible
interpretations, the one respecting a state’s international
obligations is to be favoured. [Emphasis added.]
The Provisions of the CCEA and the Convention
125 A review of the preamble of the Convention makes it clear
that the best interests of the child are a paramount
consideration:
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 u rongful 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
haveagreed upon the following provisions: [Emphasis added.]
While, as my colleague notes, the preamble refers to the best
interests of children generally, and not to the best interests of
any particular child, I cannot believe that the intention vitas to
ignore the best interests of individual children.
126 Regardless, what is clear is that the Convention intends to
protect the best interests of children by providing for their
prompt return if they are taken from their state of residence in
breach of custody rights. To this end, the Convention precludes an
investigation by the haven state into the merits of the claim as
to rights of custody. A. E. Anton, the Chair of the Commission
which drafted the Convention. in “The Hague Convention on
International Child Abduction” (1981), 30 Int’l & Comp. L.Q. 537,
at p. 543, comments on the drafters’ intent:
The Commission started from the assumption that the abduction of a
child mill generally be prejudicial to its welfare. It followed
that, u hen a child has been abducted from one country to another,
international mechanisms should be available to secure its return
either voluntarily or through court proceedings.
127 As I already noted, in my opinion the Convention and the
CCEA through which it is implemented in Manitoba must be read in
concert, each informing the interpretation of the other. In
Manitoba, the two do not establish independent regimes. This
interpretive approach is simplified by the fact that both are
premised on the best interests of the child. The CCEA simply
expands upon the Convention by providing an additional mechanism
to act in accordance with the best interests of the child. This
mechanism does not conflict with the provision of prompt return
under the Convention. It cannot be contrary to the objectives of
the Convention to provide transitory measures in order to protect
the child from the harmful effects of separation from the removing
parent. Both returning the child and providing for transitory
measures act to further the child’s best interests. This is
particularly apposite in situations such as this one where it is
the parent who has custody of the child, here a very young child,
who removes the child from the jurisdiction.
128 In addition, as the Attorney General of Manitoba suggests,
this expansion of the transitory role of courts, pursuant to the
CCEA, when enforcing the Convention, was clearly in accordance
with the
chose simply to implement the Convention, Manitoba chose to expand
upon its provisions, or, to use the language of my colleague, to
provide “enforcement provisions looser than those of the
Convention” (emphasis in original). This intention is clear from
the comments of then Attorney General Roland Penner in response to
questions with regard to the interrelation betweenthe CCEA and the
Convention:
With respect to the point made about conflict between the Act and
the Convention, it is my impression — I’ll put this as a question
— is it not the case. in both of the examples used by you, Mr.
Riley, that in fact the bill that we re proposing gives greater
protection and that the Convention is a minimum? What we’re doing
is going beyond the Convention in both those instances.
I don’t think that there is that potential for conflict. It is
always possible of course that there is some conflict that may be
perceived between one section of an Act and another, but then that
falls to be decided by the ordinary rules of statutory
interpretation. However, we ll monitor the situation. It was the
intention of this bill not to restrict. but to enlarge the
protective mechanisms of the Convention and I think substantially
that will happen. [Emphasis added.]
(Legislative Assembly of Manitoba. Standing Committee on Law
Amendments, vo. XXX No. 6, June 28, 1982, at p. 101.)
129 Both the wording of the Convention and the CCEA provide
support for the complementary interpretation of the two. First,
the precise wording of s. 6 CCEA adopts the same terminology as
that of the Convention by making reference to the wrongful removal
and retention of the child, thus stressing the fact that the
court’s jurisdiction to make transitory orders pursuant to s. 6 is
to be available regardless of whether the Convention is
applicable.
130 In addition, the wording of the Convention itself provides
support for the complementary interpretation of the CCEA and the
Convention and for the
conflict between the two. Article 12 of the Convention buttresses
this dialectic and flexible approach in so far as it provides
that, when a child has been in the haven jurisdiction for over a
year and has settled into the new environment, it may not be in
the child’s best interest to be returned to the state of origin.
given the time elapsed since the abduction. This exception brings
into focus the fact that the aim of the Convention is the
protection of the interests of children and is particularly
important given that this accommodating measure is found within
the same section which emphasizes return “forthwith”.
131 Article 12 recognizes that the interests of children may
differ from case to case and is therefore consistent with an
interpretation of the interplay between the Convention and the
CCEA which acknowledges that, in some situations, immediate return
without transitory measures will not be in the best interests of
the child. The emphasis placed upon prompt return in the
Convention must be interpreted in light of the paramount objective
of the best interests of children and in light of the express
wording of the CCEA through which the Convention was enacted in
Manitoba. and should not mean return without regard for the
immediate needs or circumstances of the child. Although, no doubt,
the quick return of a child wrongly removed is critical, a slight
delay occasioned by a transitory order made in the best interests
of the child can be justifiable under the Convention if the
circumstances of the case so indicate.
132 As well. Article I I of the Convention, which states that an
explanation may be requested for a delay of over six weeks in the
return of the child, is consistent with my interpretation of the
interplay between the CCEA and the Convention in that it supports
the view that the return of the child cannot be expected to be
immediate but only that it must be timely and proceed as quickly
as practical.
133 Having examined the interrelationship between the CCEA and
the Convention, I find it impossible to agree with my colleague La
Forest J. that the CCEA and the Convention establish two separate
application under the Convention is limited to the considerations
set out in the Convention and, therefore that, if the Convention
applies, the court may not look to the CCEA to make orders in
addition to those provided for by the Convention. It is, simply,
not in line with the purpose of the Convention to suggest that.
once a determination has been made with regard to the fact that a
child has been wrongfully removed, Article 12 of the Convention
requires that the child be returned “forthwith”, without any
consideration of other remedies, such as those under s. 6 CCEA.
Neither is Article 16, which states that a court should not decide
on the merits of the rights of custody, violated in any way by a
transitory order of stay or of interim custody granted in the best
interests of the child, provided of course. as is the case here.
that the purpose of the transitory order not be to hamper the
objectives of the Convention and that the return of the child in
the proper jurisdiction not be delayed to the point of frustrating
the purpose of the Convention.
134 The CCEA provides an avenue for the implementation of
transitory processes in the best interests of a child to resolve
difficulties which the Convention itself appears to foresee. In
most cases, the best interests of the child will be served by a
quick and expedited return of the child to the country of origin
in the aim of decreasing the traumatic nature of the wrongful
removal. Nonetheless, there may be circumstances in which
immediate return is no longer in the child s absolute best
interest. Section 6 CCEA provides a mechanism for addressing this
problem. In my opinion, there is no conflict beta een the
Convention and the CCEA and the two documents can act together in
a harmonious interplay. The extra remedies provided for in the
CCEA, to the extent that the remedies are consistent with the
objectives of the Convention, are equally available to a court
which has decided to return the child but wishes to shield the
child in his or her best interests, in so far as is possible, from
the immediate negative effects of separation from the removing
parent. Recognizing the interactive relationship between the CCEA
and the Convention enables courts to achieve the objec-
and, at the same time, to consider the best interests of the
child. Section 6 CCEA enables the Manitoba courts to enforce the
Convention in a manner which is in the best interests of the child
and which recognizes the human consequences of a return order
under the Convention and, in turn, which attempts to facilitate
the process for the child. In this regard, I very much agree with
Helper J.A.’sstatement at p. 215 that:
In giving effect to extra-provincial custody orders, courts must
recognize that a possible by-product of the black letter
application of the Act and the Contention is undue stress and, in
some cases, actual trauma suffered by young children w ho have no
voice in the courtroom.
Clearly, this focus should not be lost in the application of the
Convention.
135 Turning now to the case at hand, I note that we are dealing
with a very young child who has been in Manitoba, separated from
his father, since December 2, 1992. Clearly, this case presents a
situation where transitory measures such as those proposed by
Helper J.A. were appropriate in order to buffer the child’s return
and protect his best interests. However, such transitory measures
must be implemented in a manner consistent with the purpose of the
Convention. As a result, their duration should be as short as
possible. Consequently, while I believe that at the time it was
appropriate for Helper J.A. to adopt the transitory order she did,
I do not believe such an order would be appropriate at this time
because I would not wish to further delay the return of the child.
Thus, I, like the majority, dismiss the appeal, but note that at
the time and in the circumstances, the orderproposed by Helper
J.A. was appropriate.
136 Returning for a moment to the question of the appropriate
duration of transitory orders, I wish to briefly comment on the
transitory order first proposed by Davidson J. The Court of Appeal
judgments of both Twaddle and Helper JJ.A. expressed certain
reservations with this transitory order. I agree with many of
these comments. In addition, I
to stress that the four month duration of Davidson J. s transitory
order was, in my opinion, excessive in light of the Convention.
Undertakings
137 The final point that must be examined is the effect the
respondent father s undertakings may have on the above
determination. In order to facilitate the return of Matthew to
Scotland, the respondent has undertaken not to take physical
custody of the child upon his return to Scotland and not until a
court permits such custod!. He has also undertaken to bring
proceedings in Scotland that will enable a court to determine
within approximately five weeks of Matthew’s return the issue of
his care and control. My colleagues are of the view that such
undertakings are sufficient to remedy any difficulties that may
arise as a result of implementing return under the Convention and
that they render unnecessary a transitory order such as that
proposed by Helper J.A. I disagree.
138 Undertakings such as those of the respondent in this case
are to be commended. They are often made in cases where an
applicant seeks the return of a child under the Convention. They
have been approved of, for example, in P. v. P. (Minors) (Child
Abduction), [1992] 1 F.L.R. 155 (Eng. H.C. (Fam. Div.)), where the
order for return was contingent upon certain undertakings.
Similarly, undertakings were also approved of in C. v. C. (Minor:
Abduction. Rights of Custody Abroad). [1989] 2 All E.R. 465
(C.A.), at pp. 469-70, in which Butler-Sloss L.J. held:
Those [undertakings], as far as they go, are very valuable, and,
if I mav say so, for my part, show the good intent that he has for
the welfare of his child and to return him to the jurisdiction of
the Australian court. In my view, those undertakings should go
somewhat further. and the undertakings that I for my part think
should be required of this father, as a prerequisite for the
return of the child. and without which I would consider the child
should not be expected to return, are as follows…. [Emphasis
added.]
139 In the case at hand, I note that, while the undertakings
offered by the respondent may provide some assurance that the
interests of the child will be protected, it is only when the
child is returned to Scotland that they will take effect, if, in
fact, they are respected. Although in no way am I suggesting that
the respondent mill not respect his undertakings and neither do I
have any doubt that they mere made in good faith, it remains that,
since the Manitoba courts have jurisdiction to mal;e transitory
orders in virtue of the CCEA, they must consider the best may to
insure that the child s best interests are taken into account upon
ordering the return from the haven state to the requesting
country. Therefore, even if the undertakings before us had been in
front of Helper J.A., which they were not, I believe that she
would have been justified in making the order she proposed, given
in particular that the undertakings by the respondent will only
take effect once the child is returned to Scotland, will therefore
be difficult to enforce, and do not provide for interim and
transitory measures pending thereturn.
Conclusion
140 In conclusion, as set out above, the Convention has been
recognized by the international community in order to protect the
best interests of children. In Manitoba. the Convention has been
implemented by the CCEA, which, in light of the best interests of
children, seeks to expand on the provisions of the Convention.
There is no conflict between the Convention and the CCEA but,
rather, the, complement each other. According to the CCEA, the
Manitoba courts, in this particular instance, had jurisdiction to
make a transitory order on the condition that such order did not
conflict with or frustrate the objective of prompt return under
the Convention and that it fostered the best interests of the
child. Such transitory orders are available to the court pursuant
to the CCEA and, in the proper circumstances, are consistent with
the wording and intent of the Convention. The Convention as well
as the CCEA make it absolutely clear that the best interests of
the child must prevail at all times and must be the paramount con-
to the Convention. Helper J.A. was well within her jurisdiction
to adopt such a transitory order in Matthew’s best interests,
independent of the undertakings by the respondent before our
court. She exercised that jurisdiction properly given the facts of
this case.
141 Nonetheless, since at the time of this hearing it had
already been three months since Helper J.A. first proposed her
order and an order such as Helper J.A.’s is to be transitory in
nature, I would not further delay the return of the child by
making a similar transitory order. Therefore, I join my colleagues
in dismissing this appeal and ordering the immediate return of
Matthew to Scotland.
The following are the reasons delivered by
MAJOR J.:
142 I agree with Mr. Justice La Forest that the appellant’s
removal of her son, Matthew, from Scotland to the province of
Manitoba in Canada, constituted a breach of the custody right of
the Scottish court within the meaning of Article 3 of the Hague
Convention on the Civil Aspects of International Child Abduction,
Can. T.S. 1983, No. 35. Article 12 of the Convention, therefore,
charges this Court to order his return forthwith.
Appeal dismissed.
Solictors for the appellant: Levine Levene Tadman, Winnieg.
Solicitors for the respondent Thompson Dorfman Sweatman, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: John
C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario:
The Attorney General for Ontario, Toronto.
Solicitor for the intrvener the Attorney General of Manitoba: The
Department of Justice, Winnipeg.