Court of Appeal for Ontario

CITATION: Pitts v. De Silva, 2008 ONCA 9

DATE: 20080110

DOCKET: C46740

MACPHERSON, BLAIR and LAFORME JJ.A.

BETWEEN:

PAUL PITTS

Appellant

and

SAMARASINGHE DE SILVA

Respondent

Brian W. Bond for the appellant

Eric M. Wolfman and Shanthi Senthe for the respondent

Heard: November 15, 2007

On appeal from the order of Justice J. Stephen O’Neill of the Superior Court of Justice (Family Court branch) dated February 1, 2007.

MACPHERSON J.A.:

A. INTRODUCTION

[1] The question in this case is whether an Ontario court should order a child’s return to this province for a custody hearing when an appellate court and a trial court in the United States have decided against ordering that child’s return. Determining whether to decline jurisdiction in favour of the American courts requires an analysis of the Hague Convention on international child abduction, the basis for the U.S. courts’ decisions.

[2] Canada and the United States are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”). The important purposes of the Convention are stated in Article 1:

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 State.

[3] Article 3 of the Convention defines wrongful removal or retention of a child in terms of a breach of the custody rights of a person (usually a parent) “under the law of the State in which the child was habitually resident immediately before the removal or retention”.

[4] The Hague Convention places a strong duty on Contracting States to return children wrongfully removed to or retained in their countries. However, the duty is not absolute; Articles 12, 13 and 20 provide for exceptions to the obligation to return a child: see Thomson v. Thomson, [1994] 3 S.C.R. 551 at pp. 594-95.

[5] The exception in play in this appeal is contained in Article 13(2)[^1]:

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.

[6] In this appeal, the issue of the child’s views about where he desires to live arises in a complicated context involving conflicting custody orders in three countries – the United States, Sri Lanka and Canada – and a good deal of non-compliance with those orders by both parents. Moreover, between August 2005 and April 2007, five different Canadian and American courts have issued seven different and, in important respects, conflicting orders respecting the parties to this case.

B. FACTS

[7] The appellant, Paul Pitts (the father), is an American citizen who resides in Ardmore, Oklahoma. He has been married for nine years to Sabrina Pitts. Ms. Pitts’ daughter, Sarah, lives with the family.

[8] The respondent, Samarasinghe De Silva (the mother), is a citizen of Sri Lanka. She came to Canada as a refugee in 2003 and is now a landed immigrant. She intends to stay in Canada and hopes to become a citizen. She currently resides in Barrie, Ontario with a daughter.

[9] Jonathan is the 14-year-old son of the father and the mother. He was born in Ardmore, Oklahoma on February 16, 1993. The mother, who was in the United States on a student visa when she gave birth to Jonathan, registered Jonathan as a citizen of Sri Lanka soon after he was born.

[10] The mother and father separated shortly after Jonathan’s birth. A custody dispute arose and the mother commenced family court proceedings in Oklahoma. A court order prevented either party from removing Jonathan from the court’s jurisdiction during those proceedings. The mother violated this order and removed Jonathan to Sri Lanka in July 1994. On August 15, 1994, the District Court for the Twentieth Judicial District, Ardmore, Carter County, State of Oklahoma, granted the father custody of Jonathan. This order has never been varied.

[11] The father eventually discovered where Jonathan was living. He visited his son in Sri Lanka. The mother commenced custody proceedings in Sri Lanka. On September 29, 1996, a consent order granted custody to the mother. Like the 1994 Oklahoma order, this order has never been varied.

[12] From 1996 to 2003, when Jonathan was three to ten years old, he lived with his mother in Sri Lanka. His father visited him there on several occasions.

[13] In 2003, the mother, her daughter and Jonathan moved to Canada. In the summer of 2003, Jonathan spent two weeks in Oklahoma with his father and then returned to Canada. In the summer of 2004, Jonathan spent one week in Oklahoma with his father and again returned to Canada.

[14] In 2005, Jonathan went to Oklahoma on July 29. He was due to return to Canada on August 12. He did not return. He has lived in Oklahoma with his father for more than two years. He is now 14 years old and attends Ardmore Middle School.

[15] The mother immediately resorted to the Ontario courts when she realized that Jonathan was not returning home. On August 17, 2005, Eberhard J. of the Superior Court of Justice made an ex parte order granting interim and permanent custody of Jonathan to the mother. In the material filed in support of her motion, the mother included the Sri Lanka custody order in her favour. However, she said nothing about the original Oklahoma court order granting custody to the father.

[16] The mother then brought a petition to the United States District Court for the Eastern District of Oklahoma seeking an order returning Jonathan to her custody in Canada pursuant to the Hague Convention. A full hearing before Magistrate Judge Kimberly West took place on January 18, 2006. The mother and father were both present and were represented by counsel. Following the hearing, both parties submitted proposed findings of fact and conclusions of law.

[17] On February 15, 2006, Judge West released a 17-page decision. She denied the mother’s petition, essentially for two reasons.

[18] First, Judge West held that the mother was attempting to use the Hague Convention for an improper purpose, namely, to overcome her violation of the non-removal order of the Oklahoma court in 1994:

[T]he fact remains Petitioner violated an express and unequivocal court order issued by an Oklahoma court with competent jurisdiction, the existence of which she possessed actual notice [of] and now is attempting to circumvent international law by creating a habitual residence for Jonathan to her unfair advantage.

[19] Second, Judge West attached considerable weight to Jonathan’s express view that he preferred to stay in Oklahoma. With the consent of the parties, Judge West had interviewed Jonathan in camera in her chambers. A law clerk and court reporter were in attendance, but not the parties or their counsel.

[20] In the “Findings of Fact” section of her judgment, Judge West described the interview with Jonathan in this fashion:

During his stay in Oklahoma, Jonathan has maintained telephonic contact with Petitioner and Jonathan’s sister. Jonathan expressed to this Court his desire to remain with Respondents because Ardmore has better schools than in Canada and he likes Respondents’ house. Jonathan appears comfortable in his current surroundings, well-settled in school and with friends and genuinely desirous of remaining in Oklahoma. Jonathan shows no animosity for Petitioner and states Respondents have not spoken ill of her or discourages Jonathan from maintaining mostly unfettered contact with Petitioner and his step-sibling. In sum, Jonathan demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding. It is the evaluation of this Court that Jonathan has demonstrated a sufficient degree of maturity whereby his views and opinions may be given some persuasive weight. [Footnote omitted.]

[21] In the “Conclusions of Law” section of her judgment, Judge West stated:

This Court has also considered Jonathan’s expressed opinions as to his status in accordance with Article 13(b) of the Hague Convention. 42 U.S.C. § 11603(e)(2)(A). This Court observed Jonathan to be a bright, expressive child with a well-developed understanding of his situation and the positions of his parents. He has attained an age and degree of maturity to so consider his views. Unlike Petitioner, this Court did not find Jonathan to be particularly swayed by lavish gifts and wealth in forming an opinion that the schools were better in Oklahoma, he enjoyed his friends and activities and his home. He is well-settled in his environment in Oklahoma with Pitts without apparent adult indoctrination. Allowing him to remain with Pitts while an Oklahoma court determines custodial issues between his parents is in his best interests at this time.

[22] In the meantime, the father had appealed Eberhard J.’s original Canadian order, granting the mother interim and permanent custody. The appeal was heard by this court on November 10, 2006. This court set aside the permanent custody component of the order. The court also stayed the component of the order requiring the father to return Jonathan to Canada forthwith, provided that the father moved to set aside this component.

[23] On January 23, 2007, O’Neill J. heard the father’s motion. The transcript of the day-long hearing covers 206 pages. The motion judge released a comprehensive 13-page decision on February 1, 2007 – an impressive accomplishment in a contested child custody proceeding.

[24] In his motion, the father sought an order setting aside Eberhard J.’s temporary order on the basis that the Ontario courts lacked jurisdiction to deal with Jonathan’s custody because of the continuing validity and alleged primacy of the 1994 Oklahoma custody order in his favour. The motion judge rejected this argument. The father had not really challenged Eberhard J.’s jurisdiction in his previous appeal to this court. Moreover, the history and facts made it clear that Jonathan’s habitual residence was Ontario which gave the Ontario courts jurisdiction to determine the question of Jonathan’s custody.

[25] During the hearing, the father advanced an alternative argument, namely, that, even if Ontario courts had jurisdiction, the motion judge should decline jurisdiction in favour of the Oklahoma courts. In support of this submission, the father’s counsel referred to Article 13(2) of the Hague Convention. About midway through the hearing, the motion judge signalled to the parties that he did not accept this submission. In his view, the Ontario courts were the proper forum for determining Jonathan’s custody; there was no serious issue of declining jurisdiction in favour of the Oklahoma courts. In his written decision a week following the hearing, the motion judge did not elaborate on this issue.

[26] The formal order flowing from the motion judge’s decision provides:

1. The Order of Justice M.P. Eberhard dated August 17, 2005 is varied as follows:

I. The Applicant, Samarasinghe De Silva, shall have temporary custody of the child, Paul Jonathan De Silva Pitts, born February 16, 1993, as set out in the order of the Court of Colombo, Sri Lanka, dated September 24, 1996.

II. The said child is to be apprehended and returned to the custody of the Applicant mother forthwith.

III. The Ontario Provincial Police, Toronto Police Force, Barrie Police Service, the State Police Force in Oklahoma, Federal Law Enforcement Authorities and Police with jurisdiction in Oklahoma, or Police in any jurisdiction where the child may be found, shall cooperate in the apprehension and return of the above noted child to the Applicant mother.

2. An expedited custody trial is ordered to be heard at the sittings of the Superior Court of Justice in Barrie, Ontario, Canada, commencing the week of April 10, 2007.

3. The Respondent is entitled to exercise an access visit with the child between the date of the child’s return to Barrie, Ontario and the date that the trial proceedings commence in April 2007. The Applicant and counsel for the Respondent may work out the terms and time of an access visit. The Respondent is entitled to have e-mail and regular telephone contact with the child. If an agreement cannot be reached, counsel for Mr. Pitts may apply to the Court for a specific order to set out the terms and time for access.

4. The Applicant and Respondent shall take immediate steps to retain independent legal counsel in Ontario, or a person who has an appropriate expertise and background in working with children to meet with the child upon his return to Barrie for the purposes of setting up a process to ascertain the child’s wishes, views and preferences in this matter. This person is to be jointly retained by both parties. If an agreement cannot be reached on who that person is, either parent may apply to this court for directions and if necessary, an order appointing the suitable individual.

[27] Both the father and the mother took immediate steps following release of the motion judge’s order. The father appealed the order. The mother filed the order and sought its confirmation in the District Court of Carter County for the State of Oklahoma – the same court that issued the 1994 custody order in the father’s favour. On February 21, 2007, Judge Robert Highsmith denied confirmation of the motion judge’s order. Although the record before us does not disclose any released reasons, the court’s formal order provides, inter alia:

[T]his Court …FINDS as follows:

5. The Carter County District Court obtained initial jurisdiction to make the Custody Order entered on August 4, 1994. By virtue of the Court acquiring initial jurisdiction, the Carter County District Court has exclusive and continuing jurisdiction over custody matters involving Jonathan.

6. This Court takes judicial notice of the Findings and Recommendation dated February 15, 2006, and the Order dated March 9, 2006, both entered by the United States District Court for the Eastern District of Oklahoma, Case No. CIV 06-004-WH, wherein the federal court, in its Order dated March 9, 2006, ordered that Jonathan shall remain with Respondent and his wife, “pending resolution of custodial issues with the District Court in and for Carter County, Oklahoma.”

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that by reason of the continuing and exclusive jurisdiction of the Carter County District Court over custody matters involving Jonathan, the Superior Court of Barrie, Ontario, Canada, did not have jurisdiction to determine such custody matters, and accordingly the Canadian Judgments entered by the Superior Court of Barrie, Ontario, Canada, are hereby denied confirmation. [Citations omitted.]

[28] The final step in the American side of the proceedings took place on April 6, 2007, when a three-judge panel of the United Stated Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) dismissed the mother’s appeal from the decision of Judge West of the District Court.

[29] It will be recalled that Judge West had decided against the mother on two bases – the continuing validity and primacy of the original 1994 Oklahoma custody order and Jonathan’s views as given credit pursuant to Article 13(2) of the Hague Convention.

[30] The Tenth Circuit court disagreed with the first basis for Judge West’s decision. Circuit Judge Porfilio stated that the normal focal point for determining a question of custody is the habitual residence of the child at the relevant time, which in Jonathan’s case was Canada. Accordingly, Judge West erred by placing too much reliance on the 1994 Carter County custody order in favour of the father.

[31] However, the Tenth Circuit strongly endorsed the second basis for Judge West’s decision, namely, her ascertainment of, and proper regard for, Jonathan’s views and preferences. After a detailed review of Article 13(2) of the Hague Convention, case law interpreting this article, and Judge West’s process for determining Jonathan’s views and preferences followed by her assessment of them, Circuit Judge Profilio concluded:

While a father’s largesse could naturally be a factor in a child’s decision, our reading of the record suggests this was taken into consideration by the magistrate judge. Moreover, the fact Jonathan and his father have discussed relocation over a period of time, and that Jonathan returned to Canada during the period of those ongoing discussions, convince us that this was a considered decision on Jonathan’s part and represents his honest wishes. We are also mindful of the magistrate judge’s opportunity to observe Jonathan in person, and we accord great deference to the court’s findings based on that experience. Given the court’s duty to consider Jonathan’s best interest and to determine whether he was of sufficient age and maturity to weigh in on this matter, we find no error in the district court’s ultimate conclusion that Jonathan should remain in Oklahoma while Oklahoma courts decide the custody matter. We hold that, under the unusual circumstances of this case, it is appropriate to refuse repatriation to Canada solely on the basis of Jonathan’s desire to stay in Oklahoma. [Citation omitted.]

[32] The most recent step on the Canadian side occurred when the custody hearing ordered by the motion judge to be held in the Superior Court in Barrie came before Wildman J. on April 18, 2007. On consent, the hearing was adjourned so the father’s appeal could be heard and determined by this court. Wildman J. endorsed the record as follows:

Ms. Gunerajah – AM

Mr. Bond – RF

A custody trial is scheduled to start today in this matter. However, there are a number of problems.

(1) Ms. G. has just received the retainer & is unavailable to start a custody trial. She needs an adjournment.

(2) When this trial was scheduled, Justice O’Neill anticipated the Okla. Ct. would enforce his order & return the child here, so that he would have a chance to experience life in Ont with his mother before the trial. Both parties agree that, as the C is now 14, his views & preferences should be considered by the Ct in deciding where he should live.

However, the Okla. Ct has not enforced O’Neill J’s order & both the trial & appellate Cts in Okla take the position that Okla has exclusive jurisdiction to deal with this matter. Therefore, should a custody trial proceed here, the only evidence about the C’s wishes would appear to be what was conveyed to the Okla Ct – he wants to stay in Okla.

(3) The F has brought a motion that the Ont. Ct does not have JN &, if it finds it does, the Ct should decline it in the unique circumstances of this case. One of those circumstances is that the F has an appeal of O’Neill J’s order pending in the Ont CA.

For all these reasons, all agree I cannot start a custody trial today. Provided the F moves expeditiously to have his Ont appeal heard, all agree it is best to have a decision before the F’s motion about JN is heard. In addition, counsel agree that they would like the CA to determine the JN motion at the same time as the appeal, should the CA agree to do so.

[33] When the appeal was argued in this court, the father abandoned the submission that the Ontario courts did not have jurisdiction to determine the custody of Jonathan.

C. ISSUE

[34] The sole issue on this appeal is whether the Ontario courts should decline jurisdiction in this contested custody matter in favour of the Oklahoma courts.

D. ANALYSIS

[35] Among the most important factors guiding courts’ decisions to decline jurisdiction is comity – the deference owed to the legitimate judicial acts of other countries: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897 at pp. 912-15; Antares Shipping Corp. v. The Ship “Capricorn”, [1977] 2 S.C.R. 422 at p. 448; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. Comity is at the core of this case. The Superior Court order under appeal orders American authorities to return Jonathan to Canada. Decisions by U.S. federal courts at the trial and appellate level say the opposite; they decline to order Jonathan’s return. The key question in this case is therefore whether this court should defer to the Tenth Circuit’s decision to refuse to return Jonathan to Canada under the Hague Convention.

[36] Beyond the overarching principle of comity, the Hague Convention’s effectiveness depends on there being a general respect for the decisions under the Convention by the courts of the Contracting State to which the child has been removed. It is these courts that have primary responsibility for adjudicating Hague Convention applications: see Caruso v. Caruso, [2006] O.J. No. 5311 (S.C.J.).

[37] The combination of comity, on the one hand, and of the need to preserve the Hague Convention’s effectiveness, on the other, calls for courts to avoid interfering, as much as possible, with foreign interpretations of the Convention. As such, this court should respect the Tenth Circuit’s decision not to order Jonathan’s return to Canada unless that decision evinces a clear misinterpretation of the Hague Convention or fails to meet a minimum standard of reasonableness.

[38] The starting point in any case involving the Hague Convention must be to recognize its predominant objective – securing the prompt return of abducted children to the country where they habitually reside. As expressed by La Forest J. in Thomson, supra, at p. 559: “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.” The Convention is founded on the assumption that a wrongfully removed or retained child’s best interests will usually lie in the child’s prompt return to the country of habitual residence, and that the deterrent effect on wrongful removals or retentions of the Convention’s mandatory return procedure will also serve the interests of children generally: see W. (V.) v. S. (D.), [1996] 2 S.C.R. 108 at para. 77.

[39] However, the Convention provides for exceptions to the mandatory return of abducted or wrongfully retained children to their country of habitual residence. Four exceptions permitting non-return relate (i) to children who have become settled in their new environment (Article 12); (ii) to a situation where the custodial parent in the country of habitual residence was not exercising custody rights at the time of removal or retention, or consented or subsequently acquiesced to the removal or retention (Article 13(1)(a)); (iii) to a situation where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13(1)(b)); and (iv) to a situation where return would violate the fundamental principles of the requested country relating to the protection of human rights and fundamental freedoms (Article 20).

[40] A fifth exception, central to this appeal, is contained in Article 13(2) of the Convention which, for ease of reference, I set out again:

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.

[41] The primary reason Article 13(2) exists is simple: given that the Convention applies only to people under age 16 (Article 4), it would not make sense to apply the return mechanism with its full force to children close to age 16. The Convention’s reporter, Elisa Pérez-Vera, in her “Explanatory Report” in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at para. 30, describes Article 13(2) as “absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.”

[42] Article 13(2) requires a court to engage in two inquiries: (1) does the child object to being returned; and (2) has the child attained an age and degree of maturity at which it is appropriate to take account of his or her views?

[43] Judge West of the United States District Court for the Eastern District of Oklahoma undertook both of these inquiries. With the consent of the parties, she conducted an in camera interview in her chambers with Jonathan. Her law clerk and a court reporter were also present. Jonathan was a few days short of his thirteenth birthday when this interview took place.

[44] Judge West stated that Jonathan “demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding.” He showed no animosity towards his mother. He was not improperly influenced by his father. Thus, Judge West concluded, Jonathan had attained an age and degree of maturity “whereby his views and opinions may be given some persuasive weight.” Jonathan’s views, as recorded by Judge West, included “his desire to remain in Oklahoma with [his father]”. Accordingly, Judge West refused to order Jonathan’s return to Canada. A year later, the United States Court of Appeals for the Tenth Circuit dismissed the mother’s appeal from Judge West’s order.

[45] In my view, the Tenth Circuit’s decision merits deference. It is not a clear misinterpretation of the Hague Convention and does not fail to meet a minimum reasonableness standard.

[46] There can be no doubt that Jonathan had “attained an age and degree of maturity at which it is appropriate to take account of his views.” When Judge West presided over the hearing in January 2006, Jonathan was a few days shy of 13. The parties agreed that Judge West should interview Jonathan, a clear sign that they recognized his maturity and the relevance of his views. I note, parenthetically, that the Children’s Law Reform Act, R.S.O. 1990, c. C-12, s. 64(2), specifically permits a court to interview a child to determine the child’s views and preferences in a custody proceeding. Finally, Judge West, who interviewed Jonathan, described him as “a bright, expressive child with a well-developed understanding of his situation and the positions of his parents.” Accordingly, Judge West concluded that Jonathan had attained an age and maturity “whereby his views and opinions may be given some persuasive weight.” The Tenth Circuit affirmed this component of Judge West’s reasoning. I see no basis for challenging this conclusion of the two U.S. courts.

[47] On the second issue, Judge West recorded Jonathan as expressing “his desire to remain with [his father]” and, later, “his desire to remain in Oklahoma with [his father]”.

[48] It might be contended that a “desire” to remain in Oklahoma is not the same as an objection to returning to Ontario, which is what Article 13(2) requires. However, such a distinction is strained. Judge West recorded Jonathan’s reasons for preferring to stay in Oklahoma, including his comfort in his father’s home and his satisfaction with his school, activities and friends in Ardmore. On her description, Jonathan compared his life in Oklahoma with the possibility of living in Ontario and came out in favour of Oklahoma. In these circumstances, a fair conclusion is that Jonathan’s “desire” to stay in Oklahoma comprehends an objection to returning to Ontario, at least at this point in his life.

[49] For these reasons, I conclude that Judge West’s invocation of Article 13(2) of the Hague Convention to refuse to order Jonathan’s return to Ontario, and the Tenth Circuit’s affirmation of that decision, deserve deference from this court.

[50] I make one final observation. If the parties cannot resolve their dispute, a custody hearing on the merits must take place in the appropriate Oklahoma court. As the Tenth Circuit court emphasized, the original 1994 Oklahoma court order granting custody of Jonathan to the father no longer governs. Accordingly, a new custody hearing in Oklahoma will be necessary if the dispute cannot be resolved. Jonathan will be 15 years old next month. His opinion regarding where he wants to live will be even more than highly persuasive – it will probably be determinative. Accordingly, the parties should seriously consider a means of fairly ascertaining Jonathan’s views without further delay, expense and conflict so that both parents can be actively involved in Jonathan’s life.

E. DISPOSITION

[51] I would allow the appeal. The Ontario courts should decline their admitted jurisdiction in this contested custody dispute in favour of the Oklahoma courts.

[52] The appellant does not seek costs on the appeal; accordingly, there should be no order as to costs.

RELEASED: January 10, 2008 (“JCM”)

“J.C. MacPherson J.A.”

“I agree R.A. Blair J.A.”

“I agree H.S. LaForme J.A.”

[^1]: Although there is no “(2)” in the text version of Article 13, most of the cases and academic authors refer to the provision as Article 13(2). The structure of the article also supports this usage.