Mauna v. Astorga, 2011 ABQB 271

Court of Queen ’ s Bench of Alberta Citation: Mauna v. Astorga, 2011 ABQB 271 Date: 20110419 Docket: FL03 28232 Registry: Edmonton Between: Mauricio Leopoldo Calquin Mauna Applicant - and - Gisela Andrea Soto Astorga Respondent Corrected judgment: A corrigendum was issued on May 3, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _______________________________________________________

I. Introduction [ 1 ] Mr. Mauna makes an application pursuant to the International Child Abduction Act , Statutes of Alberta,

Chapter I 6 .5 (see, RSA 2000, c I-4 , as am. SA 2003, c 16, s. 117(1) ) for the return of his children, Gisella Belen Calquin Soto, born [...], 1998; Cristobal Mauricio Calquin Soto, born [...], 1999; and Maura Florencia Calquin Soto born [...], 2004, all of whom, he says, have been wrongfully retained in Alberta, Canada. The children are Chilean citizens and have passports issued by Chile. [ 2 ] The International Child Abduction Act incorporates the Convention on the Civil Aspects of International Child Abduction ("Convention") , an international convention to which Canada is a signatory.

Given that the provinces in Canada have jurisdiction over children, Alberta adopted the Convention in most respects, and in all respects that are at issue in this case. [ 3 ] The Convention in

Article 1 provides that its objects 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. [ 4 ] The best interests of the children are not to be addressed in Alberta on a return application such as the one before this court. [ 5 ] The Convention requires that the Requesting State be a Contracting State under the Convention . Chile is a Contracting State. [ 6 ] The Convention then requires that Alberta determine if the child was "habitually resident" in Chile at the time of the removal or retention.

In this case, the issue pertains to an alleged wrongful retention. Habitual residence is not an issue between the parties as they all agree that the children were habitually resident in Chile at the time of the retention. [ 7 ] This court must then determine whether there were existing "rights of custody" being exercised by the father, Mr. Mauna, at the time of the retention in Alberta. Again, the parties agree that the father was exercising rights of custody in Chile at the time. There is no doubt that the family lived together until the mother came to Canada with the children, that Mr. Mauna and Ms.

Astorga were married in Chile and that the three children are their children. [ 8 ] Mr. Mauna seeks the following relief: 1. A declaration that the children are habitually resident in Chile; 2. A declaration that the children have been wrongfully removed by the mother from Chile to Canada; 3. Directing the children be returned to their father in Chile; 4. Directing that the mother, Ms. Mauna, forthwith deliver the children to the Central Authority for the Province of Alberta for the purpose of facilitating the children's immediate return to Mr. Mauna in Chile.

[ 9 ] The only issue that must be decided by this court in this application is whether the father made his application pursuant to

Article 12 of the Convention in less than one year from the date on which the children were wrongfully retained in Canada. [ 10 ] It will be for another hearing for the Alberta court to decide the other issues. II. Discussion [ 11 ] We come to the issue which must be decided in this application, that is, has less than 12 months elapsed since the occurrence of the retention? [ 12 ] The underlying purpose of the Convention as set out in the Convention at

Article 1 is to ensure the prompt return of children to the State of the left-behind-parent and to respect the Contracting State's law with respect to the rights of custody of children. It is the goal of the Convention that prompt applications by left-behind-parents will result in return orders in the State to which the children have been brought or in which they have been wrongfully retained. It is for the "home" state of the children to determine their best interests. [ 13 ] In this regard, I have the following evidence. [ 14 ] The Applicant, the father, Mr. Mauna, states that in December 2009 Ms.

Astorga asked Mr. Mauna if she could take the children to Canada to visit her brother, Rodrigo Soto Astorga. The father says that the period of time would coincide with the school break for the children given that the summer holiday for schools in Chile is from December to March. The father says that he agreed that they could travel to Canada on December 7, 2009 and gave a written consent to this. The "Permission to Travel Abroad" provided by Mr. Mauna authorized Ms. Astorga to travel to Canada. The authorization is dated December 7, 2009. There is no date of return set out in the Permission. [ 15 ] Mr.

Mauna states that the children were to return to Chile on February 28, 2010, in order for them to re-commence school, which began on March 10, 2010. He stated that he understood from Ms. Astorga that she would return sometime around February 28, 2010 and certainly prior to the beginning of the school year in Chile on February 25, 2010. She had not advised Mr. Mauna, he said, of any specific date or provided him with any confirmation of a return ticket for specific date. Finally, he states that it was only at the time school started that he believed that she was not returning the children. [ 16 ] Mrs.

Astorga states that when she and the children left Chile in January 2010, they had return tickets for February 28, 2000 and was her intention to return to Chile following their vacation. She states that the new school term started February 25, 2010 and that Mr. Mauna agreed before their departure from Chile that the children would miss the first few days of the term but would be back in school for March 3, 2010. [ 17 ] On February 28, 2010, Mr. Mauna called her several times at the residence in which they were staying in Canada. [ 18 ] While she was in Canada Ms. Astorga decided to stay in Canada. [ 19 ] Mr.

Mauna filed his application in the Court of Queen's Bench of Alberta on March 1, 2011. [ 20 ] The Convention states at

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 proceedingsbefore the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed fromthe date of the wrongful removal or retention, the authority concerned shall order the return of the child forth with [Emphasis mine]. [21] It is the

interpretation of

Article 12 that is at issue before this court. In order for Mr.

Mauna to have validly filed his March 1,2011 application in less than one year, he would have had to have been aware that the children had been wrongfully retained in Canadaon March 2, 2010 or later: Thomson v Thomson, (SCC), [1994] 3 SCR 551, 119 DLR (4th) 253 at para 83, M.(V.B.) v.J.(D.L.), 2004 NLCA 56, [2004] 240 Nfld & PEIR 147; Blanc v Morgan, 2010 WL 2696 791 at para 10 (US Dist Ct, Tennessee);Hamel-Smith v Gonsalves, 2000 ABQB 269, 185 DLR (4th) 713 at para 39; Lozinska v Bielawski (1998), (ONSCDC), 56 OTC 59 at para 5 (Ont HC) (QL); Astudillo v Bayas, (1997), (ON SC), 28 OTC 389 at para 6 (Ont HC)(QL). [22] By Ms.

Astorga's admission, she had discussed with Mr. Mauna that the children would miss the first few days of term butwould be back in school for March 3, 2010. Therefore, the date on which he would have become aware that the children were notreturning, according to Ms. Astorga, would have to have been March 3, 2010. By Mr. Mauna's evidence he expected the children toreturn around February 28 and certainly prior to March 10, 2010. March 3, 2010 falls within this expected period. [23] I find that the date of the wrongful retention was March 3, 2010. [24] The Alberta

Interpretation Act, R.S.A. 2000, c.

I-8, s. 22(7) provides for computation of time and stipulates that: If an enactment provides that anything is to be done within a time after, from, of or before a specified day, the time does not include thatday. [25] Our Court of Appeal has also clarified the process of calculating time limits and provided guidance in when it noted, in thecontext of a two-year limitation period, that "the limitation period continued until midnight of the second anniversary of the event givingrise to the cause of action" and that the limitation period can be said to "expire" on the day following the second anniversary of thetriggering event: Zoeteman v Feist, 2009 ABCA 311, 13 Alta LR (5th) 203 at paras 7-8; and, Walton v Cote (1991), (ON CA), 28 M.V.R. (2d) 1, (Ont.

C.A.) at para. 1, aff'g,(1989), 20 M.V.R. (2d) 171 (Ont. H.C.) at para. 11. [26] Going by this

interpretation, the midnight of March 3, 2011 will be one year from when Mr. Mauna became aware of thewrongful retention, which I have found was March 3, 2010. In effect, an application made by Mr. Mauna under the provisions of Article12 of the International Child Abduction Act before midnight of March 2, 2011 would have been valid as one made in less than one year:Hixson v Morin, 1974 ALTASCAD 15 , [1975] 1 WWR 377, [1974] 3 WWR 672, 5 AR 377 (Supreme Court of Canada); andFredericton (City) v Ferris, 2010 NBCA 55, 362 NBR (2d) 342. [27] Therefore, Mr.

Mauna commenced his application in less than one year from the date on which he became aware of or oughtto have become aware of the fact that the children had been wrongfully retained in Canada. [28] Counsel has urged me to give

Article 12 a liberal

interpretation given the policy reasons underlying the Convention as I setout above. In particular, it is not the purpose of the Convention to ensure the best interests of children. Courts in Canada often assumethat this is the underlying purpose of the Convention. Further, counsel for the mother suggests that this is the underlying purpose of theConvention. It is not. The underlying purpose of the Convention as set out in the Convention at

Article 1 is to ensure the prompt returnof children to the State of the left-behind-parent and to respect the Contracting State's law with respect to the rights of custody ofchildren. It is the goal of the Convention that prompt applications by left-behind-parents will result in return orders in the State to whichthe children have been brought or in which they have been wrongfully retained. It is for the "home" state of the children to determinetheir best interests. [29] Therefore, this court must resist the temptation to determine the best interests of the children. [30] In the case before this Court, there is simply no evidence that Ms. Astorga advised Mr. Mauna prior to March 3, 2010 that

she was keeping the children in Canada. [ 31 ] Therefore, I find, that Mr. Mauna commenced his application before the Court of Queen's Bench in Alberta "less than one year" having elapsed from the date of the wrongful retention. [ 32 ] Having found that the application was commenced within less than one year, this court must then turn its attention to the exceptions to the return. [ 33 ] Where an application has been commenced within less than one year,

Article 12 requires this court to order the return of the children forthwith. [ 34 ] Given the circumstances, this court is not obliged to determine whether the children are settled in Canada:

Article 12. [ 35 ]

Article 13 provides certain exceptions. Two exceptions apply in this case: 1. Whether there is a grave risk that the return of the children in this case to Chile would expose them to physical or psychological harm or otherwise place the children in an intolerable situation: at

Article 13 (b); 2. If the children have attained an age and degree of maturity at which it is appropriate to take account of their views, and the child objects to being returned, this court may refuse to order the return of that child or those children. [ 36 ] These latter two questions will be decided by another judge of this court. In order for evidence to be provided to this court concerning the views of the children and the maturity of the children, I order the children's counsel, Ms. Patricia Hebert, to obtain a report from an appropriate psychologist. III.

Conclusion [ 37 ] I declare that the application made by Mr. Mauna for the return of his three children was made in less than one year from the date of the wrongful retention of the children in Canada. [ 38 ] I am directing that there be a hearing by another judge of this court to determine the following two questions: 1. Whether there is a grave risk that the return of the children in this case to Chile would expose them to physical or psychological harm or otherwise place the children in an intolerable situation: at

Article 13 (b); 2. If the children have attained an age and degree of maturity at which it is appropriate to take account of their views, and the child objects to being returned, this court may refuse to order the return of batch child or those children. [ 39 ] I will discuss with counsel the timing for the provision of the necessary evidence to be led by the parties at that hearing and the timing of the hearing itself.

Heard on the 12 th day of April, 2011. Dated at the City of Edmonton, Alberta this 19 th day of April, 2011. A.B. Moen J.C.Q.B.A. Appearances: Zelma Hardin for the Applicant Karen Swartzenberger for the Respondent Denise Harwardt for the Central Authority _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice A.B. Moen _______________________________________________________ Paragraph [12] was changed to read the following: [12] The underlying purpose of the Convention as set out in the Convention at

Article 1 is to ensure the prompt return of children to the State of the left-behind-parent and to respect the Contracting State's law with respect to the rights of custody of children. It is the goal of the Convention that prompt applications by left-behind-parents will result in return orders in the State to which the children have been brought or in which they have been wrongfully retained. It is for the "home" state of the children to determine their best interests.