Olson v. Olson, 2012 ABQB 767

Court of Queen ’ s Bench of Alberta Citation: Olson v. Olson, 2012 ABQB 767 Date: 20121218 Docket: FL03 34368 Registry: Edmonton Between: Enoch Grant Olson Applicant - and - Sarah Elizabeth Olson Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C.

Read _______________________________________________________ [ 1 ] The matter before me is a Hague Convention hearing respecting the 16 month old child of the parties, E.G.O., born in August, 2011. [ 2 ] The parties are husband and wife having been married in the State of Utah in the United States of America on November 12, 2009. The father, Mr. Olson is a citizen of the United States of America; the mother Ms. Olson is a Canadian citizen.

The child was born in the State of Utah and has dual United States and Canadian citizenship. [ 3 ] The parties have lived in both Canada and the United States since their marriage and the child has also lived in both countries. The father has brought this application alleging that the child was wrongfully removed from Utah by the mother on June 12,

2012. The mother denies this. [ 4 ] Both the United States of America and Canada are signatories to the Hague Convention. The provisions of the Hague Convention have been implemented in the U.S. by 42 U.S.C. § 11601 and in Utah by the Utah Uniform Child Abduction Prevention Act (the “ Utah Act ” ). The Convention has been implemented in the Province of Alberta by the International Child Abduction Act , RSA 2000, c. I-4. (the “ Alberta Act ” ). [ 5 ] Both parties to this application (the “ Parents ” ) have filed affidavits in this application from which I take the following facts: a.

When E.G.O. was born, the parties lived in St. George ’ s Utah; b. The Parents agreed to leave Utah in the fall of 2012 and to move to Edmonton, Alberta. They differ as to whether this move was intended to be temporary or long term; c. The family crossed the border into Canada at Coutts, Alberta on January 2, 2012. As part of the procedure to cross the border, Ms. Olson completed a “ Personal Effects Accounting Document ” . This document indicates that she is a former resident of Canada who is returning to Canada to resume residence on January 2, 2012.

It lists a number of household goods being imported and lists, as well, further goods to follow. The goods listed as being imported include a vehicle, televisions, a crib and mattress, a kitchen aid mixer, camping equipment, and laptops; those to follow include household furniture and appliances. The document gave as the ‘ importer ’ s address ’ the address of Ms. Olson ’ s parents in Edmonton. d. The family left in Utah the items listed on the form as the goods to follow. They were stored in a storage facility; e. The family lived together in Edmonton in a suite in the basement of Ms.

Olson ’ s parents ’ home from January 2012 until the end of May 2012 when Mr. Olson left Canada with the child; f. The couple paid rent to Ms. Olson ’ s parents; g. Mr. Olson enrolled in a Human Resources program at the Northern Institute of Technology ( “ NAIT ” ) in Edmonton. Ms. Olson says this was a two year course. Mr. Olson does not deny that it was scheduled to be a two year course but says that by taking extra courses, he would have finished the program in ten months in December of 2012; h. Mr. Olson was admitted into Canada with a student visa which he obtained at the border on crossing.

His student visa was set to expire in December 2012. After his arrival in Canada, he took various steps to become a permanent resident of Canada, signing the last document necessary on May 30, 2012. Mr. Olson obtained a Canadian tax identification number. i. Ms. Olson had permanent residency status in the United States of America. j. The couple had a U.S. joint bank account which was not closed before their departure. They also had two U.S. credit cards which remained active after they left for Edmonton. k.

The couple registered in Alberta the jeep vehicle they brought across the border, as they had been told was necessary when they crossed the border. The vehicle was insured in Alberta. Mr. Olson continued to use his U.S. drivers ’ licence and did not obtain an Alberta licence. l. Mr. Olson had his church records transferred from Utah to Edmonton. He joined a gym in Edmonton. He registered for Alberta health insurance and obtained a physician in Edmonton. m. The child was also registered for Alberta health insurance and had an Edmonton doctor.

He continued to be registered in a U.S. program for health care called Medicaid. He was also insured by his parents in a U.S. life insurance program called Gerber ’ s. The child saw his Utah physician in early June 2012 when he was taken for a check up by his father. n. Ms. Olson obtained a job in Edmonton at a restaurant and bar and applied for the 28 month Psychiatric Nursing program at Grant MacEwan University in Edmonton. This program was scheduled to commence in September 2012. o. The couple had a trip to Utah planned in June or July of 2012. Ms. Olson was to drive down with the child with Mr.

Olson to follow by air a short while later after finishing his exams in his course. Ms. Olson said one of the reasons for their trip was to pick up their remaining personal effects. Mr. Olson says they intended only to pick up a few things and would leave the rest in storage in Utah. p. Mr. Olson says the couple had always intended to return to the U.S. and had told their families this. He says that their stay in Canada was to be temporary to allow them to work on their marriage and to become educated and get some work experience. He says, as well, that the return was to allow Ms.

Olson to reconnect with and obtain support from her parents. He says that he and his wife intended to buy a home in the U.S. on their return and discussed relocating to various states in the southwestern United States. q. Ms. Olson says that their intention was to remain in Canada indefinitely and they discussed buying a home in Edmonton. She

says that Mr. Olson had a newspaper route in Edmonton to supplement their income and would comment about neighbourhoods in Edmonton where he delivered newspapers that he thought would be desirable areas to buy a home in. r. On May 31, 2012, Mr. Olson went into Ms. Olson ’ s place of employment and was told that she had left early with an unknown male. He returned to their residence, packed all of the child ’ s clothing, toys and food and most of his own personal belongings, took the child and drove south, crossing the border late that evening.

He told the Canadian border guard that the child ’ s mother was aware that the child was with him and would follow a few days later. s. He drove to Utah and became difficult to contact for a number of days. He says he informed Ms. Olson ’ s parents en route that he and the child were going to return to Utah because he had become concerned that Ms. Olson was nursing the child when she was high on drugs or alcohol and he thought this was a danger to the child. He says her parents ’ were concerned as well by their daughter ’ s behaviour and supported what he was doing. t. Mr.

Olson was two weeks short of completing his first semester at NAIT when he left. He did not write his scheduled exams. He had registered in and paid for the summer semester in the program. He did not attend this. u. Ms. Olson says that she had no idea that Mr. Olson intended to take the child across the border when he did and that Mr. Olson must have lied to take the child across the border. Her parents acknowledge that they had some contact with Mr.

Olson while he was en route between Edmonton and Utah but deny that they were supportive of his plan and say that they were shocked he had left with the child when they were out of the home for the evening babysitting their other grandchildren and were very anxious about the entire situation. Ms. Olson says that Mr. Olson also took considerable funds they had set aside to pay rent and withdrew the maximum daily amounts from their joint bank accounts for the next few days. Ms. Olson says that Mr. Olson also took the papers necessary for her to enter the United States. v. Ms.

Olson was still nursing the child at the time. w. Ms. Olson made immediate efforts to seek the return of the child as soon as she realized what had occurred. She notified the border crossing officials and filed a missing children report. She hired legal counsel in both Utah and Alberta. She applied ex parte in the Court of Queen ’ s Bench of Alberta in Edmonton for an order to return the child to Alberta. This order was granted. On June 11, 2012, she applied to a Utah court under the Utah Act for confirmation of the Alberta order. This was granted. x. On June 12, 2012, the child was returned to the mother.

She left immediately for Canada with the child. The child and the mother remain in Edmonton, Alberta. y. The father filed for divorce in Utah on June 8, 2012. His petition was rejected because he had not been physically resident in Utah for at least three months at the time, a pre-requisite to filing. z. On June 29, 2012, the father filed a petition to establish child custody, parenting time and child support in the Utah courts. The mother filed a motion to dismiss this application. Her motion has not been heard. aa. On August 10, 2012, the mother filed a claim under the Family Law Act , RSA 2003, c.

F-4.5 in Edmonton for a parenting and child support order. The father has refused to attorn to the jurisdiction of the Alberta courts. bb. On October 12, 2012, the father filed a further petition for divorce in Utah. cc. The father filed the present application under the Alberta Act in Edmonton on the direction of an Edmonton judge, Madam Justice A. B. Moen who is charged with the responsibility of dealing in Alberta with Hague Convention matters. She case managed this matter to today ’ s hearing. Her direction resulted after a telephone case conference between her and the Utah judge, Judge Eric A.

Ludlow who had involvement in the Utah court matters. All other substantive family law proceedings in both Alberta and Utah were stayed pending the outcome of the hearing in this matter, with the agreement of both the Utah judge and the Alberta judge. [ 6 ] The application filed by the father at the direction of Justice Moen and as a result of the discussion between Justice Moen and Judge Ludlow is for an order under the Alberta Act to return the child to Utah and to his care. By s. 2 of the Alberta Act, the Hague Convention applies in Alberta. The Convention is annexed as a

schedule to the Alberta Act. [ 7 ] The parties are agreed that both the United States and Canada are “ Contracting States ” as this term is used in the Convention and that the child is less than 16 years old as required for the Convention to operate. They also agree that the United States is the Requesting State under the Convention. [ 8 ] By

article 3 a of the Convention, the “ removal..of a child is to be considered wrongful where ” “ it is a breach of rights of custody attributed to a person..under the law of the State in which the child was habitually resident immediately before the removal or retention ” . The major question for adjudication, therefore, is whether the child was “ habitually resident ” in the United States, in this case the state of Utah, at the time of his removal.

[9] The term “habitual residence” has been the subject of judicial determination in both Alberta and in the U.S. In Anderson v.Anderson, 1987 ABCA 52 , 77 A.R. 256, the Alberta Court of Appeal was called upon to consider the meaning of the words“last joint habitual residence” as used in the Alberta Matrimonial Property Act, RSA 2000, c. M-8. In Anderson a wife who was thenresident in the State of Hawaii and had obtained an Hawaiian divorce, applied in Alberta for division of matrimonial property. Theparties had originally lived in Alberta but went to Hawaii where the wife settled but the husband did not.

He returned to Alberta, wentback to Hawaii, then to California and finally to Oregon. On a preliminary question, the Court had to determine if the Alberta courts hadjurisdiction under s. 3 of the Matrimonial Property Act. [10] While in Anderson the Court was not dealing with the Hague Convention, it acknowledged that the term as used in theMatrimonial Property Act came into Canadian law from that Convention and commented at para 8 that “habitual residence” “involvesonly a present intention of residence”.

The Court contrasted the term “habitual residence” with the older concept of “domicile” which “isconcerned with whether there is a future intention to live elsewhere”. The Court said that “habitual residence” requires a “weakeranimus” than “domicile”. [11] At paras 10 through 12, the Court also contrasted the term “habitual residence” with that of mere “residence”. Ultimately,the Chief Justice, speaking for the Court concluded that the term “habitual residence” ... refers to the quality of residence. Duration may be a factor depending on the circumstances.

It requires an animus less than thatrequired for domicile; it is a mid-point between domicile and residence, importing somewhat more durable ties than the latter term...Allof the factors showing greater or less present intention of permanence must be weighed. [12] In deHaan v. Gracia 2004 ABQB 74, Power, J of this Court had to consider a situation where a father sought the return underthe Convention of two children to France from Alberta.

For the definition of “habitual residence” the Court quoted with approval at para41 from a decision of the English High Court of Justice in In re Bates, No C.A. 122/89: There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that thelaw requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed hispurpose while settled may be for a limited period.

Education, business or profession, employment, health, family or merely love of theplace spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is thatthe prupose of living where one does has a sufficient degree of continuity to be properly described as settled. [13] This approach is consistent with the U.S. approach. In Mozes v. Mozes, 239 F. 3d 1067 (9th Cir. 2001) Kozinski, CJ said: [T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.

This is consistentwith the view held by many courts that a person can only have one habitual residence at a time under the Convention. [14] Mr. Olson argues that he and Ms. Olson had no joint settled intention to remain in Canada. They always intended to return tothe U.S. and intended to remain only temporarily in Canada. Thus, he says the habitual residence of the child remained Utah. [15] Applying the

definitions and the factors set out in the case law I have quoted from and the other case law to which I wasreferred, to the facts here, I am satisfied that the habitual residence of the child in June of 2012 was Alberta. [16] There is much contradictory evidence in the affidavits sworn by the various parties. However, I am satisfied on the basis ofthe uncontradicted evidence that the parties made a joint decision to move to Canada. They did not cut all ties to Utah and may not havedecided to stay in Canada permanently but they did leave Utah with the settled intention of taking up residence in Edmonton.

Theyestablished ties in Edmonton which make this clear. Importantly, Mr. Olson undertook a course of study which even on his ownevidence, would have required him to stay in Edmonton until December of 2012. His intention, after that, again on his own evidence,was to try to find a job. Ms. Olson obtained a job and was working. She had applied for a course of 28 months duration. Mr. Olson doesnot contradict her evidence in this regard. This evidence satisfies me that the parties had established a sufficient degree of continuitywith Alberta for it to be their habitual residence.

At the end of May, they were in Alberta with the settled purpose of remaining here for

at least some period of time. Even when he left Mr. Olson ’ s evidence was that he was going to Utah early for their vacation and expected Ms. Olson to follow. He did not say that he left Alberta with no intention of returning. The child ’ s habitual residence remained Alberta. While Mr. Olson changed his mind shortly after and decided to stay in Utah, that unilateral decision cannot affect the habitual residence of the child. [ 17 ] As a consequence, because the child ’ s habitual residence remained in Alberta, Ms.

Olson ’ s removal of the child from Utah cannot be termed ‘ wrongful ’ under s. 3 of the Convention. The application is dismissed. Heard on the 14 th day of December, 2012. Dated at the City of Edmonton, Alberta this 18 th day of December, 2012. D.C. Read J.C.Q.B.A. Appearances: Bryan Carter Legal Family Crisis Clinic for the Applicant Dave J. Rechlo Cleall Barristers and Solicitors for the Respondent