CANADA – THOMSON APPEAL – 1993

CANADA – THOMSON APPEAL – 1993 (Return ordered) THOMSON v THOMSON. This is an appeal of the above case where the mother was ordered back to Scotland with the child. The appeal was dismissed with costs. Child is to be returned forthwith. The court indicated that the four month interim custody given to the mother was not justified. (See below)

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Thomson and Thomson (Manitoba Appl. 1993)50 R.F.L. (3d) 143 [1993]; 107 D.L.R. (4th) 695 (C.A.)
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IN THE COURT OF APPEAL OF MANITOBA

Coram: Huband, Twaddle and Helper, JJ.A.

Suit No. AI 93-30-01347

B E T W E E N:

AMANDA LOUISE THOMSON
) M. G. Tadman
(Petitioner) Appellant, ) for the Appellant
) J. A. King
) for the Respondent
– and – ) Appeal heard:
) September 8, 1993
PAUL THOMSON ) Judgment delivered:
) October 18, 1993
(Respondent) Respondent. )

HUBAND J.A.

My colleagues have both set forth their written reasons for
judgment in this case. There is agreement on what I regard as
the major issue. Both would require Mrs. Thomson to endeavour to
establish her right to custody of the child in the courts of
Scotland. They differ as to whether the Manitoba courts should
temporarily stay Mr. Thomson’s application for the return of
the child to Scotland and whether the child must be returned to
Scotland pending an application of Mrs. Thomson for custody.

On these secondary issues I prefer the reasoning of Twaddle J.A.,
and hence I join in dismissing the appeal with costs.

TWADDLE. J.A.

A plane took off from Glasgow airport. Aboard was a baby boy and
his teenaged mother. The mother had recently separated from the
boy’s father and obtained an order from a Scottish court giving
interim custody of the boy to her. She was taking the boy to
visit her parents who had emigrated to Canada only twenty
months before. The young woman may have thought the recent
turmoil in her life was over, but she either did not know about
or overlooked an interdict by the Scottish court forbidding the
removal of her son from Scotland.

Several weeks into the visit with her parents, the young woman
thought about her return to Scotland. She saw a future which she
thought was bleak. Reconciliatlon with her husband seemed
improbable and, in any event, neither she nor her husband had
finished school or taken job training. They had been on welfare
at the time of the separation. The prospect of being an
unemployed, single parent without family support must have
been unnerving, especially when such existence was compared with
her rosy view of the life she might expect in Canada.

A quick phone call to her husband back in Scotland convinced her
that she was right about the improbability of reconciliation.
The promise of her parents to support her and care for her
little boy while she completed her education and sought
employment skills convinced her that she could do more for her
son, and offer him a better future, if she stayed in Canada.
Consequently, having sought legal advice, she applied to the
local court for an order confirming her as the custodial parent.

In the meantime, the boy’s father continued to pursue his goal
of custody. As the mother launched her application here in
Manitoba, the Scottish proceedings reached a final hearing. The
mother did not appear and her lawyer was permitted to withdraw
for lack of instructions. The sheriff – a Scottish judge – heard
proof and awarded custody to the father.

The father now took steps to secure the return of his son to
Scotland. The United Kingdom and Canada both being signatories
to the Convention on the Civil Aspects of International Child
Abduction, the aid of the proper authorities under that
Conventiou was sought and an application made to the Manitoba
Court of Queen’s Bench for an order pursuant to The Child Custody
Enforcement Act, R.S.M. 1987, c. C360, requiring the mother to
return the child forthwith.

As the father proceeded in that way, the mother appealed from the
sheriff’s order. She did not, as far as we are aware, return to
Scotland for the hearing or, assuming that she would have been
permitted to do so, offer an explanation for her absence. Not
surprisingly, her appeal was refused.

The father’s application for the return of the child was heard at
the same time as the mother’s application for custody. The
learned motions judge, Davidson, J., determined firstly that
the child had been wrongfully removed from Scotland and
wrongfully retained in Manitoba and secondly that it was in the
best interests of the child that he remain in his mother’s care
both for the short term and the long. Recognizing that the
child’s long term interests were a matter for the Scottish
courts, Davidson, J. ordered the mother to return the
child forthwith, but gave her interim custody for a four-month
period to enable her to apply in Scotland for a determination of
the child’s long term interests before surrendering the child to
the father.

The mother appealed. It was contended on her behalf that the
motions judge erred

(i) in not requiring formal proof of the Scottish
orders;

(ii) in finding the child to have had his habitual
residence in, or a real and substantial connection
with, Scotland at the time the final order was
made;

(iii) in finding there to have been a wrongful removal
or retention;

(iv) in not finding either that the child would suffer
rious harm if returned to the custody of the father
or that there was a grave risk that his return would
expose the child to physical or psychological harm
or otherwise place the child in an intolerable
situation;

(v) in putting the Court’s duty under the Convention
in priority to the best interests of the child; and

(vi) in ordering a return of the child before the
Scottish court had made a determination on the
merits.

Proof of the Scottish orders

The mother’s submission that the Manitoba court lacked
jurisdiction in the absence of formal proof of the Scottish
orders is devoid of merit. Section 16 of The Child Custody
Enforcement Act expressly provides that a court here may take
notice, without requiring formal proof, of a decision of an
extra-provincial tribunal. At least in the absence of
contradictory evidence, the sworn testimony of the father’s
Scottish lawyer as to the orders pronounced in his presence and
the faxed copies of the interlocutor sheets (documents on which
the Scottish court’s orders are entered) provided ample proof of
the orders made in Scotland.

Residence and connection

The Convention applies to any child who was, immediately before
any breach of custody rights, habitually resident in another
contracting state. The Act, on the other hand, permits a
Manitoba court to disregard a foreign custody order if, at the
time of the Manitoba application, the child did not have a real
and substantial connection with the foreign state.

On the facts of this case, I do not think it matters which test
is used.

A child does not lose his or her place of habitual residence
merely by moving to another place. In deciding whether a change
has occurred, a court must ordinarily consider both the duration
of the stay in the new place and the intention of the person or
persons with the right to decide the child’s place of residence.

Even if the little boy in the present case was long enough in
Canada to make his residence here habitual, a conclusion I would
have thought difficult to reach, the mother’s decision to remain
here was subject to the success of her application to the
Manitoba court and was made only days before the father obtained
the Scottish order in his favour. And, in any event, the order
of the Scottish court forbidding the boy’s removal from its
jurisdiction qualified whatever custody rights the mother had by
removing the right to decide the boy’s place of residence.

If the question is whether the child had a real and substantial
connection with Scotland at the time when the Manitoba
application for custody was made, the answer is still the same.
The child was born in Scotland of Scottish parents. He resided

there for the first eight months of his life and was, at the time
of his departure, subject to pending custody proceedings in a
Scottish court which had forbidden his removal from Scotland.
Compared to this, his connection with Canada was tenuous.

Wronqful removal or retention

Article 12 of the Convention requires the judicial authority in
the contracting state in which the child is present to order the
return of the child if satisfied that the child has been
wrongfully removed or retained within the meaning of Article 3.
Article 3 provides:

“Article 3

The removal or the retention of a child is to be
considered wrongful where–

(a) it is in breach of rights of custody attributed
to a person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and

(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.

The rights of custody mentioned in sub-paragraph (a)
above, may arise in particular by operation of law or
by reason of a judicial or administrative decision,
or by reason of an agreement having legal effect
under the law of that State.

The wife contends that the child was not wrongfully
removed, within the meaning of the Convention, as she alone was
the custodial parent at the time of the child’s removal. From a
strictly technical viewpoint, she may be right as the father was
not actually exercising any right of custody (as distinct from
access) at the time of the removal. The point is somewhat
academic, however, as clearly the child was wrongfully retained
in Manitoba once the custody order in favour of the father was
made, he then being a person who would actually have been
exercising the right but for the wrongful retention.

Serious harm, etcetera

Although a court of a requested state is ordinarily required to
order the return of a child who has been wrongfully removed or
retained, within the meaning of the Convention, there are
certain exceptions. The Act provides that a Manitoba court may
make a custody order with respect to a child that differs from
that made by a requesting state where it is satisfied that the
child would suffer serious harm if restored to the custody of the
person named in the foreign order of custody. And the Convontion
provides that the court need not do so if there is a grave risk
that the return of the child would expose him or her to physical
or psychological harm or otherwise place the child in an
intolerable situation.

In Lavitch v. Lavitch (1985), 37 Man.R. (2d) 261, this Court
noted the difference between the exception expressed in the Act
and that expressed in the Convention. Delivering the judgment of
the Court on that occasion, I said (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
Conventlon, the provisions of which, as I have
already noted, are law in Manitoba.”

Lavitch was a case in which the foreign jurisdiction was not a
signatory to the Convention. Nonetheless, the Court held that
the exceptions set out in the Convention were applicable.
Otherwise, we would have had the absurd result of there being
more exceptions where the foreign order was made in a signatory
state than where the foreign order was made in one which is not.

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.

The risk to the little boy, according to his mother, comes both
from his removal from his present environment and from being
placed with his father. The evidence of the latter was so
insubstantial, being relevant only on the issue of best
interests, that it need not be further considered here.

On the issue of whether the little boy’s removal from his present
environment would expose him to harm or place him in an
intolerable situation, the mother relied not only on the evidence
before Davidson, J., but also sought the admission of new
evidence. The new evidence which the mother wished to tender
was that of a developmental pediatrician who was expected to
give a report of his observations of the child and express an
opinion as to the psychological effect of returning him to
Scotland or, more correctly, of removing him from his present
caregivers.

The application for the admission of new evidence was refused.
For my part, it was refused for the same reason as I have for
rejecting the mother’s contention that we may have regard to the
effect on the child of removing him from his present environment:
it is irrelevant.

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.

The language of the Convention requires the person objecting to
the child’s return to establish a grave risk that the child’a
return will expose him to harm or otherwiae place the child in an
intolerable situation. It is the return of the child which must
expose him to harm or place him in an intolerable situation as

distinct from the removal of the child from his present
caregivers.

I accept that, on a construction of the language alone, the
mother’s contention is arguable. It ceases to be, however, when
the consequence is taken into account. At least in the case of a
child of tender years, an extraterritorial 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.

My interpretation of the law is supported by Article 12 of the
Convention which permits a court in the state where the child is
to refuse an order requiring the child’s return if it is
satisfied of two conditions. The first is that more than a year
has elapsed since the child was wrongfully removed or retained:
the second that the child is settled in its new environment. It
follows that the child being settled in its new environment is no
answer to a request for its return where the request was made
within a year.

If I had thought the risk to the child of being removed from
his immediate environment was a relevant consideration, I would
have proposed admitting the new evidence. The fact that it could
have been made available for the hearing before Davidson, J.
would not have deterred me.

Fresh evidence is not ordinarily admitted where it could have
been obtained before the original hearing or where it is not
practically conclusive on a potentially decisive issue. This
rule, predicated on the policy which requires finality to
litigation, was considered in Maitland v. Drozda, [l983] 3 W.W.R.
193 (Sask. C.A.) as applicable to civil as well as criminal
proceedings. I am not so sure, however, that it applies in
every case involving custody of a child.

A court’s jurisdiction over children is a sacred trust. The
lack of due diligence by a party to custody proceedings should
not be allowed to prejudice the welfare of a child. For that
reason, I think the rule against tho admission of new evidence
which, by due diligence, could have been adduced at trial should
not be applied as strictly in a custody case as in others.

The best interests of the child

The guiding principle in all matters dealing with the custody of
a child is that the adjudicating court must make the order which
is in the best interests of the child. Although not always so
articulated, this principle is applicable, as far as I am aware,
not only in Manitoba, but also in all other states which are
signatories to the Convention.

This does not mean, however, that in a case involving the courts
of more than one such state the adjudicating court in each must
make its own enquiry as to the order which would be in the

child’s best interests. The parties to the Convention have
agreed that the concurrent exercise of custody jurisdiction is
not in the best interests of a child. Accordingly, the parties
have agreed to leave the decision as to what order would best
serve the interests of the child to the court of his or her home
jurisdiction. “Home” in this context is the place of the child’s
habitual residence.

It is therefore not the function of a court in a requested state
to concern itself with the best interests of the child. The
function of such a court is to determine whether the Convention
applies and, if it does, whether the case is nonetheless one
which falls within an exception. Then, if the Convention is fully
applicable, the court in the requested state must accept the
other court’s order as having been made in accord with the
guiding principle. That court must also accept that the child’s
future welfare will be safeguarded by the court in its home
jurisdiction.

Davidson, J. was therefore quite correct in saying that she could
not take into account what she thought were the long-term best
interests of the child. Having found that the child had been
wrongfully retained contrary to the Scottish custody order and
that no exception applied, she had but one alternative to
ordering the child’s return, an alternative which will be
considered under the final ground of appeal.

The return of the child before a determination on the merits

The one alternative course the learned motions judge had was that
prescribed by section 6 of the Act which enabled her, instead of
ordering the child’s return, to stay the father’s application on
condition that the mother proceed in Scotland for a resolution of
the custody issue on its merits.

The relevant part of section 6 is as follows:

“6. Upon application, a court,

(a) that is satisfied that a child has been
wrongfully removed to or is being wrongfully
detained in Manitoba …

may do any one or more of the following:

(c) Make such interim custody order as the court
considers is in the best interests of the
child.

(d) Stay the application subject to,

(i) the condition that a party to the
application promptly commence or
proceed with a similar proceeding
before an extra-provincial tribunal,
or

(ii) such other conditions as the court
considers appropriate.”

This section of the Manitoba legislation is not easily
reconcilable with Article 12 of the Convention which requires the
judicial authority of the contracting state where the child is,
if no exception applies, to order the return of the child
forthwith. As any apparent conflict cannot be resolved by
holding that the Manitoba law prevails, the Convention having
been adopted as law here, it follows that the section must be
construed as permitting a deferral of a child’s return only where
such deferral is consistent with the Convention’s objects.

I have already expressed my view that the Convention is
premised on the theory that the interests of a child are best
determined by the court in the jurisdiction of its habitual
residence. The object of the Convention is to ensure that courts
in other contracting states respect such a determination and,
where appropriate, order the return of a child who has been
wrongfully removed from the jurisdiction of its habitual
residence or wrongfully retained outside of it.

It would not, however, be disrespectful of the foreign order to
delay its implementation where that order was only an interim one
or one which, though purporting to be final, was not made after a
full hearing on the merits. Such orders are subject to variation
and, until a truly final determination has been made, the return
of the child might be both unnecessary and unduly harmful to the
child.

The potential harm to the child arises from its removal first
from one caregiver to another and then back again if the foreign
order is varied. If there is some uncertainty as to what the
final order will be, consideration should be given to a stay
which will preserve the status quo.

The preservation of the status quo can only be justified,
however, if there is a real prospect of the foreign court
varying its custody order. It would be futile to delay the
return of the child where its eventual return is inevitable.
There is thus an onus, in my opinion, on the person who proposes
the delay to establish that there is a genuine issue outstanding,
that the foreign court retains jurisdiction to decide it and that
the foreign court will be disposed to do so without the return of
the child.

In the present case, the award of custody to the father was made
after a hearing at which the mother was neither present nor
represented. The Scottish court heard proof, most probably of
the father’s suitability as a custodian, but the mother’s
wrongful departure from the country must also have been a factor.
I say this because the court-ordered report had been favourable
to the mother and interim custody awarded to her. The appeal, if
on the record, must have been groundless. In these
circumstances, the issue of custody not having been decided on
its merits, it is likely that the nother’s application for a
variation would be heard and that it would have some chance of
success.

That is not, however, the end of the matter. This is a case in
which the mother removed the child out of Scotland in
contravention of an order forbidding it. The mother says she
did not know of that order, but that is an issue which only

the Scottish court can decide. The question now is whether the
Scottish court will be diaposed to hear an application by the
mother to vary the custody order if the child is not returned to
Scotland first. I think that unlikely. In any event, the
mother’s onus to convince us otherwise has not been met, an onus
which might have been met by the opinion of Scottish counsel
confirming, if it is so, the willingness of the Scottish court to
consider a variation application in circumstances like the
present.

I recognize, of course, that the past sins of the mother should
not be heaped on the little boy. They are relevant only to the
extent that they have a bearing on the mother’s suitability as
his guardian. The little boy’s best interests alone will govern
the decision. Nonetheless, I do not think the Scottish court
will be inclined to hear the mother’s application to vary the
existing order until she returns the child to Scotland. This is
particularly true when regard is had to the options open to the
court. Instead of awarding custody to the father in Scotland or
to the mother in Canada, the court may decide that, having
regard to the boy’s Scottish heritage and the advantage to him of
being within the reach of his father, custody be awarded to the
mother provided she remains in Scotland.

In the circumstances, I am not convinced that there is sufficient
likelihood of the Scottish court making a final decision without
the boy’s return as would justify a deferral of it. In my view,
the learned motions judge was right in ordering his return
forthwith.

Interim custody

Although not the subject of an appeal by the father, I think
something should be said about the order of interim custody made
by the learned motions judge. Where such an order accompanies
another for the child’s immediate return, it should not extend
beyond the time reasonably required to arrange the return. Nor
should it be 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.

The order made by Davidson, J. was in truth an order designed to
permit the mother to return on her own to Scotland to take
proceedings there. In other words, it contradicted the order
that the child be returned forthwith. The proper course, if
otherwise justified, would have been to stay the father’s
application until the mother’s application in Scotland had been
heard.

For the reasons already given, I do not think a stay of the
father’s application was justified. An order giving interim
custody to the mother for a four-month period had the same effect
as a stay. Such an order was no more justified than a stay of
the father’s application.

Conclusion

It so happens that the order for the child’s return was stayed
pending this appeal. The time left in the order of interim

custody is now no longer than that reasonably necessary to
arrange for the return. In the circumstances, there is no need
to change the orders made.

I would dismiss the appeal with costs.

HELPER, J.A.

The principles which govern applications under The Child Custody
Enforcement Act, R.S.M. 1987, c. C360 (the Act) and
accompanying Convention on tho Civil Aspects of International
Child Abduction (the Convention) are:

1. the recognition and enforcement of extra-provincial
custody orders, and

2. the protection of the interests of children.

On occasion, the application of these principles to the facts
presented may result in conflict. Should that be the case, the
Court is called upon to apply the provisions of both the Act and
the Convention in such a way as to minimize that conflict.

The order under appeal exemplifies a case where greater attention
to the recognition and enforcement of an extra-provincial
custody order results in the apparent neglect of the interests of
the child.

THE FACTS

The parties were married in Whithorn, Scotland on February 15,
1991. Their child, Matthew Paul Thomson, was born on March 22,
1992. Between July, 1992, and September 30, 1992, a pattern had
developed whereby Matthew resided at the home of his paternal
grandparents from Thursday to Sunday of each week and with his
parents from Sunday to Thursday. Mr. and Mrs. Thomson became
embroiled in an argument which led to their separation following
Mr. Thomson’s refusal to return the child to the marital home on
September 30, 1992. Each applied for custody of Matthew in
Scotland.

At the first custody hearing on October 9, 1992, the presiding
officlal appointed Mr. Peter Matthews to prepare a report
respecting the circumstances of the child. The matter was
adjourned to November 27, 1992 on two conditions: 1. the child
was to remain in Scotland, and 2. Mr. Thomson was to make
Matthew available to Mrs. Thomson for visitation. Despite
the terms of the adjournment and the fact that Matthew had not
seen his mother since September 24th, Mr. Thomson did not allow
his wife access to the child until October 15, 1992.

Sheriff Noble granted interim custody of Matthew to Mrs. Thomson
on November 27, 1992. He granted interim access to Mr. Thomson
and ordered that Matthew remain in Scotland pending a further
court order.

Shortly thereafter, on December 2, 1992, Mrs. Thomson departed
Scotland with Matthew to visit her parents who had emigrated to
Manitoba. Although there is some evidence to the contrary,
Mrs. Thomson disputes knowledge of the prohibition against

removing Matthew from Scotland at the time she left for Canada.
She applied for custody of Matthew in Manitoba on February 3,
1993. Whether Mrs. Thomson’s selection of February 3, 1993
occurred by coincidence or by planning is unknown, but it was
also the day that the custody hearing resumed in Scotland.

At that hearing, Mr. Thomson was granted a final order of
custody. Mrs. Thomson did not attend the hearing nor did she
provide instructions to her counsel who had represented her
previously. Her counsel was allowed to withdraw at the hearing.
The record discloses only that Mr. Thomson and his mother
presented evidence. No reasons for the decision appear on the
record. However, I have no difficulty in concluding that Mrs.
Thomson’s actions in departing Scotland with Matthew, contrary to
the terms of the interim custody order, played a part in that
decision.

In March, 1993, Mr. Thomson replied to his wife’s application for
custody in Manitoba with an application under the Act and the
Convention seeking Matthew’s return to Scotland. In April, Mrs.
Thomson unsuccessfully appealed the custody order in Scotland.
The reasons for the dismissal of the appeal are not part of the
record. I am unable to determine whether the appeal proceeded on
the available record, whether fresh evidence was allowed at the
appeal hearing or whether Mrs. Thomson had asked for and was
denied a trial on the merits.

The competing applications came on for hearing in Manitoba on May
27, 1993. As I earlier noted, Mr. Thomson did not seek to have
the custody issue decided on its merits in the Manitoba courts.
He simply sought the return of the child to Scotland on the basis
of his order of custody.

On June 28, 1993, Davidson J. pronounced the order from which the
appeal is taken. She ordered Matthew’s return to Scotland
forthwith, granted interim custody to Mrs. Thomson until
October 28, 1993, and dismissed her application for an order
directing the trial of an issue to determine whether Matthew
would suffer “serious harm” (s. 5 of the Act) or be placed “in
an intolerable situation” (Art. 13(b) of the Convention) should
the Scottish order be enforced. I digress for a moment in my
recitation of the chronology of events to point out that should a
Manitoba court find the evidence does establish the “child would
suffer serious harm” or be placed in “an intolerable
situation” upon being restored to the custody of the person named
in a custody order, the legislation permits the court to
pronounce a contrary custody order or to refuse the request to
return the child to the original jurisdiction.

At the commencement of the hearing of this appeal, Mrs. Thomson
sought to introduce the evidence of Dr. Kenneth McRae, a medical
doctor specializing in developmental pediatrics, in support of
her submission that the order to return the child to Scotland
would result in a qrave risk to Matthew or place him in an
intolerable situation in accordance with Art. 13(b) of the
Convention. That motion was denied as the evidence in support of
the motion did not meet the test established in Maltland v.
Drozda, [1983] 3 W.W.R. 193 (Sask.C.A.) for the admission of
fresh evidence. The material submitted in support of the motion
does not indicate that the evidence which Mrs. Thomson sought to

introduce would have been determinative of the issues before this
Court. The material also failed to explain why the evidence
could not have been adduced at trial. Although the Court is
entitled to exercise some flexibility in determining the
admissibility of fresh evidence when the interests of young
children are at issue, in this case I was not persuaded that the
evidence Mrs. Thomson wished to place before the Court was
sufficiently relevant or determinative of the issues as to
warrant its admission absent any extenuating circumstances.

THE LEGISLATION

Section 2 of the Act states:

Purposes.

2. The purposes of this Act are,

(a) to recognize that the concurrent exercise of
jurisdiction by judicial tribunals of more than one
province, territory or state in respect of the custody
of the same child ought to be avoided;

(b) to discourage the abduction of children as an
alternative to the determination of custody rights by
due process;

(c) to provide for the more effective enforcement of
custody orders; and,

(d) to provide for the recognition and enforcement of
custody and access orders made outside Manitoba.

Despite the clear wording of s. 2, the court is entitled to
consider the best interests of a child and is empowered to made
an interim order of custody in the face of a finding that a child
has been wrongfully removed to or retained in Manitoba. Section
6 reads as follows:

Interim powers of court.

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,
may do any one or more of the following:

(c) Make such interim custody order as the court considers
is in the best interests of the child.

(d) Stay the application subject to,

(i) the condition that a party to the
application promptly commence or proceed
expeditiously with a similar proceeding before
an extra-provincial tribunal, or

(ii) such other conditions as the court considers
appropriate.

(e) Order a party to return the child to such place as the
court considers appropriate and, in the discretion of
the court, order payment of the cost of the reasonable
travel and other expenses of the child and any parties
to or witnesses at the hearing of the application.

Article 1 of the Convention sets out the objects as:

(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 … are
effectively respected….

The preamble, however, states that “the interests of children are
of paramount importance in matters relating to their custody,”
and the signatory States wish “to protect children
internationally from the harmful effects of their wrongful
removal or retention…. ”

Once an applicant has established the right to proceed under the
Act or the Convontion or both, the court must give effect to the
extra-provincial custody order absent evidence that enforcement
may have an adverse effect upon the well-being of the child or
children in question. Parents cannot and will not be rewarded
for acting in contravention of existing custody orders. On the
other hand, children must not be made to suffer twice over as 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 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. The court is entitled to take
judicial notice of the fact that very young children have a
concept of time and place only to the extent of their immediate
surroundings and circumstances. Abrupt and repeated changes in
the person or persons who serve as a young child’s caregivers or
in his or her surroundings, or in both, without some constancy,
are to be avoided.

Article 12 of the Convention recognizes that not all
extra-provincial custody orders should be enforced. That
provision implicitly acknowledges the harm that can be inflicted
upon children who are uprooted from an established home.

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 preceding paragraph,
shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new
environment.

THE SUBMISSIONS

Mrs. Thomson initiated her submission with an attack upon Mr.
Thomson’s status to bring an application seeking Matthew’s return
to Scotland under either the Act or the Convention. The essence
of her submission on this issue was: 1. her bringing Matthew to
Manitoba from Scotland was not in breach of the interim order of
November 27, 1992; and 2. the interim order preserved no
custody rights in Mr. Thomson, merely his right of access which
she is prepared to grant in Canada. Therefore, he had no right
to bring an application under the Convention seeking Matthew’s
return to Scotland.

The provision granting interim custody and the prohibition
against Matthew’s removal from Scotland are inextricably tied
together in the same order. The scottish court imposed, as a
condition of interim custody, the prohibition against Matthew’s
removal. It preserved its jurisdiction to determine the custody
issue. Mrs. Thomson travelled to Manitoba in contravention of
that custody order. Whether she did so knowingly, if that
question remains an issue, will have to be determined at trial.
Whether her actions reflect on her ability to parent effectively
may also be a question for determination at trial.

However, the terms of the November, 1992 order are not
determinative of Mr. Thomson’s status to proceed under the
Convention. I need not concern myself with the parties status or
conduct in December, 1992.

Article 3 of the Convention deals with both wrongful removal and
wrongful retention. Even if there were merit in Mrs. Thomson’s
submission dealing with Mr. Thomson’s status pursuant to the
interim custody order, the fact remains that she continued to
retain Matthew in Canada contrary to a final custody order
granted to Mr. Thomson in February, 1993. Mr. Thomson filed
his application seeking Matthew’s return to Scotland after he had
secured that order. In February, 1993, he had acquired status to
bring his application in Manitoba.

No court to date has had the opportunity to conduct a full
custody hearing in this case. The scottish order of November 27,
1992 appears to have been pronounced following the presentation
of documentary evidence. Mrs. Thomson had no representation and
presented no evidence to the Scottish court at the February 3,
1993 hearing. I can only assume that custody was granted to Mr.
Thomson following Mrs. Thomson’s wrongful removal of the child
from the jurisdiction. Davidson J. reached conclusions regardinq
Matthew’s best interests based on conflicting and inconclusive
documentary evidence, evidence that was not specifically directed
to the custody issue. Davidson J. was entitled to consider
Matthew’s best interests in limited circumstances. Once she had
determined that Mr. Thomson was entitled to seek Matthew’s return
under the legislation, she could consider the effect of the
enforcement of the Scottish order upon Matthew’s best interests.

The Scottish courts have the jurisdiction to determine the
custody issue both on the short and on the long term. The
Scottish courts have the authority to conduct a full hearing at
which both parties are represented and are able to bring before
the court all of the evidence relevant to Matthew’s past and

current conditions, his present and future needs and the present
and future ability of each of his parents to meet those needs.

It is my view that Davidson J. made no error in holding that Mrs.
Thomson’s evidence did not establish a “grave risk” that
Matthew’s return to Scotland would expose him to “physical or
psychological harm” or “an intolerable situation.” Her evidence
is relevant to the custody issue which will determine Matthew’s
best interests on the long term, an issue which has never been
fully canvassed.

However, I do agree with Mrs. Thomson’s submission that a narrow
interpretation of those terms as they are used in Article 13 of
the Convention should be rejected. I also agree that the
legislation does not oblige the Manitoba court to order the
return of the child simply because a party has not established an
exception to enforcement under the Convention. 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
responsibility of protecting young children when determining the
appropriate remedy for applicants under the Act and the
Convention.

The real risk to Matthew is the effect upon him of repeated
changes in his caregivers. The evidence shows that both parents
have been able to provide nurturing, loving homes for Matthew.
Mr. Thomson is residing with his parents who have cared for
Matthew on a part-time basis and who have provided a home in
which he had thrived. Mrs. Thomson was deemed by both the
Scottish and Manitoba courts to be the parent best able to meet
Matthew’s needs on an interim basis. The real harm that Matthew
may suffer in this case is the effect upon him of being removed
from his mother’s care upon her return to Scotland, of being
placed back into his paternal grandparents’ home in the guise of
his father’s care until the Scottish courts have had an
opportunity to conduct a full custody hearing and of being
returned to his mother’s care once again upon her being found the
better parent on the long term. I identify that scenario as
harmful to Matthew in light of his history to date. However,
such a result involves pure speculation on my part. Such
speculation does not establish the “grave risk” of “physical or
psychological harm” as set out in Art. 13(b) of the Convention,
but it does raise my concerns for this child.

Having identified the real harm that Matthew may suffer, I am of
the view that the motions judge overlooked Matthew’s short-term
interests in ordering his immediate return to Scotland. It is
also my view that the terms of the order are inconsistent with
each other.

Davidson J. ordered interim custody to Mrs. Thomson for a period
of four months contrary to the Scottish order and concurrently
ordered the child to be returned to Scotland. I have no doubt
the Scottish custody order will override the Manitoba interim
order upon Matthew’s return to Scotland. The effect of the June
28, 1993 order will be Matthew’s removal from his mother’s care
immediately upon his return to Scotland. He will 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 Matthew’s needs. The very real possibility exists that
following a full custody hearing, the Scottish court will again
return Hatthew to his mother’s care, this time on 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. Surely, it is the obligation of both this Court and the
Scottish court to protect Matthew from repeated changes in the
persons charged with his well-being and in his home environment
until a final determination is made.

While the courts must respect and enforce extraprovincial orders,
the courts must also protect vulnerable children at the same
time. I assume, without having any evidence to the contrary,
that the test in Scotland for the determination of custody is
similar to the test used in Manitoba, that is, the best interests
of the child. For that reason, Matthew should be protected
against a further physical change pending a final determination
on the merits by a Scottish court. The matter ought to proceed
in Scotland at Mrs. Thomson’s initiation as soon as possible.

The Court is empowered to stay Mr. Thomson’s application to
return Matthew to Scotland on condition that Mrs. Thomson proceed
forthwith in Scotland with a custody application. On an interim
basis, it is in Matthew’s best interest that the status quo as
it existed prior to Mrs. Thomson’s departure from Scotland be
restored and that Matthew remain in the custody of his mother
until the Scottish court has finally disposed of the custody
issue. There is no information before us to advise whether the
custody application in Scotland may proceed by affidavit evidence
or whether the presence of the parties is required. If, in fact,
Mrs. Thomson is required to return to Scotland to proceed with
her custody application and if it is shown to this Court that Mr.
Thomson is prepared to consent to Matthew’s remaining in his
mother’s care on an interim basis in Scotland, his application in
this Court may be brought on for early disposition.

In the result, I would allow the appeal. I would set aside the
order of June 28, 1993, and make the following order: 1. interim
custody of the child Matthew is granted to Mr. Thomson; 2. Mr.
Thomson’s application to return Matthew to Scotland is stayed on
the understanding that his application may be brought forward
upon evidence that he consents to an order in Scotland
allowing 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. In the circumstances of this case, there will be no
costs.