R.M. v. J.S., 2012 ABQB 669

Court of Queen ’ s Bench of Alberta Citation: R.M. v. J.S., 2012 ABQB 669 Date: 20121030 Docket: FL01 14683 Registry: Calgary Between: R.M. (also known as R.S.) Appellant - and - J.S. Respondent Corrected judgment: A corrigendum was issued on October 31, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ Appeal from the whole of the Order by Provincial Court of Alberta The Honourable Judge R.J. O ’ Gorman Oral Decision given 3 rd day of July, 2012 and subsequent Written Decision Filed on the 3 rd day of July, 2012 ( 2012 ABPC 184 , Docket: 111450391F101001)

Introduction [ 1 ] This is an appeal of a decision not to return a child under the International Child Abduction Act , R.S.A. 2000, c. I - 4 which incorporates the Convention on the Civil Aspects of International Child Abduction , [1983] Can. T.S. No. 35, 1343 U.N.T.S. 89 (commonly called the "Hague Convention"). Background [ 2 ] I will only summarize the facts as the entire history of the matter is well set out in the Written Reasons of Judge O’Gorman. [ 3 ] The parents were married in 2001 and lived in Jerusalem, Israel until they separated in 2006.

They have one child, N.S., who was born in Israel in 2002 and was 10 years of age at the time of the hearing of this matter. [ 4 ] The parties separated in 2006 when the father moved to Canada. They were divorced in Israel in 2008. Issues of custody, access and support were not addressed in the divorce. The child stayed with his mother in Israel after the separation. Starting in 2008, the child spent the summers in Calgary, Alberta with his father. At the end of the summer in 2011, the father did not return the child to Israel. Requests made by the mother for return of the child were not complied with.

As a result, the mother started this action under the Hague Convention for the return of the child. [ 5 ] There were a number of issues before Judge O’Gorman including whether the Hague Convention applied to this situation, whether the mother was exercising rights of custody at the time, and whether the father wrongfully detained the child when he refused to return him at the end of the summer in 2011. Ultimately Judge O’ Gorman determined that the child had been wrongfully detained by his father and should be returned to Israel under

Article 12 of the Hague Convention unless a defence could be raised.

Article 13 of the Hague Convention is a discretionary defence which was raised by the father and the child and relied upon by Judge O’Gorman in refusing to order that the child be returned to Israel. This appeal therefore focuses on Judge O’ Gorman’s

interpretation of

Article 13 and his findings thereunder. [ 6 ]

Article 13 of the Hague Convention reads as follows: 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.

[7] Judge O’Gorman found that the child objected to being returned to Israel and was of an age and maturity wherein it wasappropriate to take accounts of his views. Despite the father’s breach of the Hague Convention, Judge O’Gorman did not order the childbe returned to Israel. [8] At the hearing of this appeal, the father did not make submissions and was not represented by counsel. The child wasrepresented by counsel, Mr M. Blitt and Ms. Z. Baig, as he had been in the hearing in Provincial Court. The mother was represented bycounsel.

Standard of Review [9] The standard of review in this case in relation to errors of law is one of correctness. The standard of review with respect toerrors of fact when relying on affidavit evidence is reasonableness. An appeal court may not interfere with a discretionary trial decisionunless there has been a material error, a serious misapprehension of the evidence or an error of law. (Van de Perre v Edwards, 2001 SCC60 at para 13; MT v Alberta, 2005 ABCA 125 at para 24).

Article 13 of the Hague Convention allows the trial judge to exercise his/herdiscretion. The question then is did the trial judge exercise his discretion correctly. New Evidence [10] Counsel for the child sought to introduce a new affidavit dealing with how European Union (EU) countries deal with thevoice of the child in Hague Convention matters. This affidavit was in response to the Appellant’s argument that how EU countriesinterpret

section 13 of the Hague Convention is influenced by their domestic law where there is an obligation to hear from the child.There is no such obligation in Canada. The Appellant argues that Canada has a much more restrictive

interpretation of the child objectiondefence under

Article 13 of the Hague Convention. [11] Counsel for the mother objected to the introduction of the affidavit as no fresh evidence application had been made and it wasnew information that was not before Judge O’Gorman. Counsel for the child indicted that it was not new evidence and in fact simply aresponse to the argument raised, for the first time, before this court on appeal. I am satisfied that the affidavit is not new evidence butsimply a response to argument raised by the mother in addressing Judge O’Gorman’s decision. Position of the Parties [12] The mother argues that the trial judge relied upon inapplicable precedents, in particular

a) those emanating from EuropeanUnion countries where it is alleged a different standard applies in relation to the voice of children in Hague Convention matters and b)those cases from Canada which deal with the voice of the child in cases other than Hague Convention cases. [13] The mother’s position is that the decision in Den Ouden v Laframboise, 2006 ABCA 403 [Den Ouden], a decision of theAlberta Court of Appeal, applies in this case and has been followed by many other decisions across Canada since that time.

In that case,the two older of 3 children, ages 14, 10 and 5 indicated they were settled here in Canada and did not wish to return to Holland. There wasno independent evidence other than letters from the two children about their views. The trial judge found a lack of evidence with respectto their maturity which would inform their views. The Court of Appeal found that the evidence with respect to the oldest child wassufficient to conclude that she was of sufficient maturity to have her views considered.

The Court of Appeal found however that it wasnot surprising that the children were content in their new Canadian environment and did not want to be disrupted but to allow that as areason to exercise discretion under

Article 13 of the Hague Convention would “ ...undercut the fundamental objective of the HagueConvention. That would lead other parents to believe that they may abduct their children, go to another country, settle there, and thenrely on the children’s contentment to avoid being returned to the jurisdiction which should properly deal with their custody andresidence. We cannot encourage such conduct.” (Den Ouden, supra, at para 16) [14] The mother refers to a number of other decisions decided after Den Ouden which all directed the return of the children forsimilar reasons.

These include Toiber v Toiber, (ON CA), 208 OAC 391, 25 RFL (6th) 44, Crnkovich v Hortensius, (ON SC), 62 RFL (6th) 351, 172 A.C.W.S. (3d) 682, Droit de la famille - 082843, 2008 QCCS 5320, and Garelli vRahma, (ON SC), 28 RFL (6th) 455, 148 A.C.W.S. (3d) 267.

[ 15 ] Counsel for the mother also argues: 1) The trial judge relied on an English decision ( WF v RJ, BF and RF , [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153) where the objection to return by younger children was found determinative of the issue as well as Canadian cases involving private custody disputes where the voices of the children are more often considered or at least heard in proceedings; 2) The trial judge dismissed the grave risk argument of the father and therefore was required to dismiss the child’s objections since many of the factors cited by the trial judge in assessing the child’s views were the same factors raised by the father in the grave risk category; ( 2008 QCSC 5320, Superior Court of Québec , HC/E/ CA 926) 3) The evidence relied upon by the trial judge came from the child through his counsel.

The mother argues that counsel is in a conflict. The evidence is not independent such as from a doctor or psychologist. Counsel for the child is an advocate for the child’s wishes. 4) The father has had an opportunity to influence the child’s views since the child had resided with him for a year at the time of the initial hearing and has not seen his mother in that time. [ 16 ] Counsel for the child responds that he was appointed by the court and interviewed the child without preconceived ideas. He did not simply put forward the child’s wishes.

In fact, the Order that appointed him as independent counsel for the child specifically indicated at paragraph 2, that counsel would provide independent legal services for the purpose of considering the child’s views and protecting the child’s interests without being bound by the child’s directives or objectives. His questions of the child were provided to him by a psychologist whom he retained to assist with the questions. He found the facts of this case to be unique given the child’s racial and cultural background and where he was living in Israel. He found no undue influence by the father.

He found the child to be mature for his age, bright and articulate when it came to describing his concerns about returning to Israel. [ 17 ] It is argued by counsel for the child that Judge O’Gorman correctly considered and applied the case law, he did not misapprehend the facts and his findings were reasonable on the evidence before him. There is no basis in law to overturn his decision. Decision [ 18 ] This is a most difficult case. Counsel for the mother describes the father’s behavior in withholding the child at the end of the summer holidays in 2011 as “egregious”. I agree.

He should have returned the child as he had each summer before and then made his application for custody to the court in Israel so that his son could come to live with him in Canada. Clearly Judge O’Gorman was of the same view, having dismissed all of the father’s arguments under the Hague Convention. The Hague Convention does however provide a defence to the return of the child even when such return is found appropriate.

Article 13 is part of the Hague Convention. It has to have a purpose. It cannot simply be ignored. Two pre conditions must be met however: the child must object to the return and the court must find that the child is of sufficient age and maturity where it is appropriate to take account of his views. [ 19 ] Counsel for the mother was of the view that the trial judge was overly influenced by cases where the child’s view was simply accepted as determinative. I do not read those cases that way. In none of the cases cited was the child’s view determinative. It was a factor to consider.

As indicated by Baroness Hale of Richmond in Re M (Abduction: Zimbabwe) , [2007] UKHL 55, [2008] 1 FLR 251 at para 46 : ...Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the produce of the other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight her objections are likely to carry.

But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

[ 20 ] Judge O’Gorman prepared extensive reasons for judgment. He considered all of the case law presented. He found that N.S. was of an age and maturity where his views should be considered. He did not find they were determinative. He considered the circumstances as a whole. He did not find there was undue influence by the father. He found the grounds of objection set forth by the child to be articulate and well considered. For those reasons, he found the defence had been made out and refused to order the return of the child [ 21 ] I do not find that the standard of review has been met.

The findings of fact by Judge O’Gorman are reasonable on the evidence before him, and he correctly applied the law to those findings. [ 22 ] The appeal is dismissed. Heard on the 18 th day of October, 2012. Dated at the City of Calgary, Alberta this 30th day of October, 2012. C.L. Kenny J.C.Q.B.A. Appearances: Jocelyn L. Hill for the Appellant Max Blitt/Zarish Baig for the Respondent J.S. Self Represented Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of

The Honourable Madam Justice C.L. Kenny _______________________________________________________ Page 6: Delete: Max Blitt Replace With: Max Blitt/Zarish Baig