SVI v CMH, 2012 ABQB 227

Court of Queen ’ s Bench of Alberta Citation: SVI v CMH, 2012 ABQB 227 Date: 20120405 Docket: FL01 13616 Registry: Calgary In the Matter of The International Child Abduction Act , S.A., 1986 C. 1-6.5 And in the Matter of the Child IVH Born [...], 2003 Between: SVI Applicant - and - CMH Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________

Nature of the Application [ 1 ] The applicant father, SVI, applies for the return of his daughter, IVH, born [...], 2003, to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction , known simply as the (“ Hague Convention ”). [ 2 ] The Respondent is the child's mother, CMH, who resides with the child in Calgary. [ 3 ] In preparation for the hearing of the Hague application the Court was required to make rulings as to the litigation plan, the choice of parenting expert to conduct a focused assessment, the scope of the parenting expert assessment and the timing of the Hague hearing which will decide the following:

a) Is the child's habitual residence Mexico or Canada?

b) Is the child's retention in Canada wrongful?

c) Do the exceptions found in

Article 13 of the Hague Convention apply? Background [ 4 ] The father and mother were married in Cancun, Mexico on 2 February, 2002. The child, IVH, was born in Mexico. The couple, when living in Cancun, separated in 2005 when IVH was about 3 years old. [ 5 ] The father states that at the time of separation the child was left in his care.

He has been her primary parent since then. [ 6 ] The father and mother were divorced by the Cancun courts on 9 June, 2010. [ 7 ] On 22 September, 2010, the Cancun court made a guardianship and custody order in favour of the father with parenting time for the mother during the summer school vacation. The order also specified that the child was not to leave Mexico without the consent of both parties. [ 8 ] The father says that for the summer of 2011 he permitted the child to come to Canada for parenting time with the mother on the condition that IVH be returned to Mexico by 28 July, 2011.

The mother advised the father on 28 July, 2011, that she was not sending the child back to Mexico. [ 9 ] On 19 December, 2011, the Alberta Central Authority confirmed it had received the father's notification under

Article 16 of the Hague Convention . The Hague Convention Protocol [ 10 ] The object of the Hague Convention is to secure the prompt return of children wrongfully removed or retained in any contracting state, and, to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.

[ 11 ] The Hague Convention hearing is not concerned about the merits of competing custody claims. Instead, it is about deciding on the return of the child to her place of habitual residence so that the courts of that jurisdiction can hear or resolve the custody claims. Put another way, the application is not an inquiry into the merits of either party's claim to custody and a return order is not a determination on the merits of the custody claim (Article 19). [ 12 ] Contracting states are under an obligation to use the most expeditious procedures available (Article 2).

All Hague Convention applications must be treated expeditiously and given priority over other court applications. [ 13 ] Given the expeditious nature of the proceedings, there is greater reliance on documentary evidence and sworn statements and less reliance on oral evidence unless there are exceptional circumstances. [ 14 ] As for remedies,

Article 13 states that the contracting state is not bound to order the return of the child when the party opposing the return application has established that:

a) The party who had custody rights was either 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 grave risk that the return of the child would expose them to physical or psychological harm or otherwise place the child in an intolerable situation. [ 15 ] In addition, the court may decide not to return the child if the child objects to being returned and has reached an age and degree of maturity that its views should be considered. [ 16 ] A person seeking to defend a return application on the basis that the child will suffer harm must show something beyond the usual "harm" of removing the child from a stable environment.

The focus is on how this particular request exposes this particular child to substantial risk of substantial harm. Litigation Plan - Date of Hearing and Issues to be Decided [ 17 ] The hearing of the this application will be set for 2 days commencing 18 June, 2012. [ 18 ] The issues to be decided are:

a) Is the child's habitual residence Mexico or Canada?

b) Is the child's retention in Canada wrongful?

c) Do the exceptions found in

Article 13 of the Hague Convention apply? [ 19 ] There being no exceptional circumstances presented to me that would warrant a viva voce hearing, the application will based on documentary evidence and sworn statements. Choice of Parenting Expert and Scope of Costs of the Assessment

[ 20 ] The parties have agreed to a parenting assessment but not the expert to conduct the assessment. On the basis that this is not an application to determine the merits of a custody dispute, that this court is required to engage the most expeditious process in making its ruling so that availability of the expert is important, and that the costs of the assessment is a factor for both parties, I direct that Registered Psychologist Hanita Dagan conduct a focused assessment on those matters set out in the paragraph 21 below.

The costs of the assessment will be divided evenly without prejudice to either party seeking a return of their portion based on the outcome of the application. [ 21 ] Ms. Dagan is directed to address in her assessment report her comments on:

a) the grave risk of psychological or physical harm to the child or other factors that would place the child in an intolerable situation if she is returned to Mexico;

b) the nature of that possible harm and any measures that can be taken to mitigate the risk of harm to the child;

c) the emotional and cognitive maturity of the child;

d) the child's wishes and ability to coherently object to her return to Mexico and whether her wishes have been tainted in any way. [ 22 ] In conducting the assessment, Ms. Dagan will use her discretion in deciding who she will contact and what materials she will review, keeping in mind the time limits, the focused nature and the purpose for which the assessment is requested. [ 23 ] In my order of 28 March, 2012, I required that affidavit material be filed no later than 23 April, 2012 and that cross-examinations with respect to any affidavits be completed on or before 27 April, 2012.

To address any pre-hearing matters, there will be another case management hearing on 10 May, 2012 at 1:00 p.m. [ 24 ] Costs can be spoken to at the hearing on 18 June, 2012. Heard on the 28 th day of March, 2012. Dated at the City of Calgary, Alberta this 5 th day of April, 2012. Bryan E. Mahoney J.C.Q.B.A.

Appearances: Max Blitt for the Applicant Telmo dos Santos for the Respondent