Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 SCR 551
Amanda Louise Thomson Appellant
v.
Paul Thomson Respondent
and
The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Manitoba Interveners
Indexed as: Thomson v. Thomson
Hearing and judgment: January 26, 1994.
Reasons delivered: October 20, 1994.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for manitoba
Family law ‑‑ International child abduction ‑‑ 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. T.S. 1983 No. 35, Arts. 3, 5, 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 custody 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 Convention 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. 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, being 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, "the 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 to 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 determined that a child is not to be sent back under the 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 status quo as it existed before the wrongful removal ‑‑ a prime objective of the Convention ‑‑ is impossible to achieve without taking additional action. While the Convention does not provide specifically for remedial flexibility, a 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. 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 undertakings 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‑Dubé and McLachlin JJ.: La Forest J.'s interpretation and application of the Convention to the present case is agreed with. The Manitoba courts, 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 applying the Convention. In the circumstances of this case, the transitory order the dissenting judge in the 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 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 rights of the Scottish court within the meaning of Article 3 of the Convention. 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), 1985 129 (MB CA), 37 Man. R. (2d) 261; Canada (Attorney General) v. Ward, 1993 105 (SCC), [1993] 2 S.C.R. 689; E. (Mrs.) v. Eve, 1986 36 (SCC), [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 (H.L.); 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. Law 519; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3.
By L'Heureux‑Dubé J.
Referred to: Attorney‑General for Canada v. Attorney‑General for Ontario, 1937 362 (UK JCPC), [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. 1982, c. 4.
Child Custody Enforcement Act, R.S.M. 1987, c. C360, ss. 3, 4(1), 5, 6, 17.
Child Custody Enforcement Act, S.M. 1982, c. 27.
Children's Law Act, S.N. 1988, c. 61.
Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20.
Constitution Act, 1867, s. 132.
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, preamble, Arts. 1, 3, 5, 11, 12, 13, 15, 16, 20, 21.
Custody Jurisdiction and Enforcement Act, S.P.E.I. 1984, c. 17.
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].
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.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Eekelaar, John M. "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281.
Farquhar, Keith B. "The Hague Convention on International Child Abduction Comes to Canada" (1983), 4 Can. J. Fam. L. 5.
Hague Conference on Private International Law. Actes et documents de la Quatorzième session, t. III, Child Abduction. La Haye: Imprimerie nationale, 1982.
Helzick, Cathy S. "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.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
Lowe, Nigel, and Michael Nicholls. "Child Abduction: The Wardship Jurisdiction and the Hague Convention", [1994] Fam. Law 191.
Manitoba. Legislative Assembly. Standing Committee on Law Amendments, vol. XXX No. 6, June 28, 1982, p. 101.
APPEAL from a judgment of the Manitoba Court of Appeal (1993), 1993 3396 (MB CA), 88 Man. R. (2d) 204, 51 W.A.C. 204, 50 R.F.L. (3d) 145, 107 D.L.R. (4th) 695, [1993] 8 W.W.R. 385, upholding a decision of the Court of Queen's Bench, Family Division (1993), 1993 14733 (MB QB), 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.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
//La Forest J.//
La Forest J. -- This appeal raises for the first time in this Court the interpretation and application of the Hague Convention on the 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.
The case arises in a context where a baby boy born in Scotland of Scottish parents was taken 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 Convention or under other provisions of the Act implementing the Convention in Manitoba, the Child Custody Enforcement Act, R.S.M. 1987, c. C360.
Facts
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 week; the rest of the week, he lived with his parents.
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.
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.
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 hearing. The appellant later deposed that 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.
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.
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.
On February 25, 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, under the space for "Requesting Individual or 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.
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
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,
Desiring to protect children internationally 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, 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.
In considering the circumstances referred to in this 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 . . . .
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 fulfilment 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.
The Central Authorities, either directly or through 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.
The Child Custody Enforcement Act, R.S.M. 1987, c. C360
3 A court on application shall enforce, and may make such orders as it considers necessary to give effect to, a custody order made by an extra-provincial tribunal as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by the custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made.
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 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.
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 Authority for the province for the purpose of the convention.
The Courts Below
Manitoba Court of Queen's Bench, Family Division (1993), 1993 14733 (MB QB), 87 Man. R. (2d) 68
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.
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 she became aware of the contents of the orders of the Scottish court of November 27, 1992 and February 3, 1993.
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.
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.
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 was used, it was not satisfied on the evidence. The appellant's affidavits, she observed, were worded in terms of the "best interests" 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.
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), 1985 129 (MB CA), 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.
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 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.
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.
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.
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 interim 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), 1993 3396 (MB CA), 88 Man. R. (2d) 204
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.
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.
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.
He then added:
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 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.
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 make 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.
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).
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.
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.
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 welfare 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:
. . . 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 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
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 was 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.
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 sufficient to trigger the operation of the Convention in this case;
(2) whether the child had been wrongfully removed from Scotland or wrongfully retained in Manitoba so as to bring the case within the operation 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 warrant refusal 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.
I shall begin with the general issues concerning the Convention, then deal with the particular issues before returning to the interrelationship between the Convention and the Act.
Background to the Hague Convention
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 Quatorzième 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 by 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 take 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.
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.
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.
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 interrelation between 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
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
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
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 was made between all the parties in connexion with the conclusion of the 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.
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) v. Ward, 1993 105 (SCC), [1993] 2 S.C.R. 689.
The travaux préparatoires 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.
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 to 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 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. . . .
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 retained in any 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.
It is clear from the wording of the preamble and Article 3 of the Convention, cited supra, and from the travaux préparatoires that the primary object of the Convention is the enforcement of custody 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 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". Such rights of custody are given effect through proceedings for the return of the child under Article 12.
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
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 or administrative decision, or by agreement.
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 without 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 was 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 drawn 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)).
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 child in 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 types 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.
In my 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
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.
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.
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.
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.
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.
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 that the child was not to be removed from Ontario without leave of 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 removing 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 by 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.]
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 primary protection to custody rather than access was intended.
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 difficulty institutions in various countries may have in knowing 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 they were acting in accordance with Canadian law.
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 of residence" (emphasis added).
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 recognized as being held either jointly or alone. Neill L.J. thus 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 without 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.
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, eg. within the Commonwealth of Australia'.
That case presented more compelling facts than the present case. There, it will be observed, the parents were joint guardians under an agreed provision that the child should not be removed from the country. Here the father under the court order appears to have had only a right of access, which the Convention does not equate with custody.
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
