SHD v AH, 2019 ABQB 970

Court of Queen’s Bench of Alberta Citation: SHD v AH, 2019 ABQB 970 Date: 20191218 Docket: FL01 31852 Registry: Calgary Between: SHD Applicant - and - AH Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ I. Introduction [ 1 ] On Tuesday, December 3, 2019, I heard a full day special application with viva voce evidence to determine whether or not a child must be returned to Rwanda. The viva voce evidence consisted of each party being cross-examined on their own affidavits.

Each party also filed affidavits from Rwandan trained lawyers addressing the law of Rwanda. [ 2 ] The parties agreed that Rwanda is not a signatory to the Convention on the Civil Aspects of International Child Abduction (the “ Hague Convention ”). Counsel for the mother argued that the only form of treaty or statutory framework I should consider is the Extra-Provincial Enforcement of Custody Orders Act , RSA 2000, c E-14 [ EPECOA ]. The father argued that this Court should not take

jurisdiction and that the proper forum for this dispute remains in Rwanda. [ 3 ] I must decide the proper legal framework applicable to this dispute and then determine whether to grant the father’s application to return the child to Rwanda or the mother’s cross-application to stay in Alberta with the child. II. Background Facts [ 4 ] Both parties are Canadian. They met in Rwanda in late 2011 and were married in May 2015. They spent a few months living in Toronto, Ontario in early 2017 so that the child of the marriage ASD (the “ Child ”), would be born as a Canadian citizen.

Other than the few months in Toronto, the parties have lived in Kigali City, Rwanda since their marriage. They ceased to cohabitate in November 2017. [ 5 ] In June 2018, the mother brought an ex parte application in Rwanda for custody and division of property, separation of assets and full custody of the Child on an emergency basis. The Rwandan Court awarded the mother custody and the father parenting time every Wednesday and Sunday from 8:00 am to 5:00 pm. The Court did not grant the mother’s application to travel for work with the Child without the father’s consent.

The mother appealed this order and an appeal was decided on August 16, 2018 (the “ 2018 Appeal Decision ”). In that decision, the Appeal Court granted custody to the mother and access to the father, but did not specify days and times for the father’s access. The Appeal Court also specified that the father’s access had to be exercised in the mother’s home. The father’s counsel argued that this stipulation was included because the mother represented to the Court that she was still breastfeeding the Child.

In the 2018 Appeal Decision, the Appeal Court granted the mother the ability to travel for work with the Child without the father’s consent. Specifically, the translation of para 24 of the 2018 Appeal Decision states, “[t]he tribunal decides that [the mother] shall travel abroad with her son [name of the Child] while she is on duty in the child’s interest.” [ 6 ] The father appealed the 2018 Appeal Decision, but subsequently withdrew his appeal when the parties entered into a Visitation Rights Agreement mediated by the Rwandan Prosecutor General in January 2019 (the “ Visitation Rights Agreement ”).

The Visitation Rights Agreement was signed by the parties and their respective counsel. It provided the father with parenting time every Wednesday and Sunday from 8:00 am to 5:00 pm on an interim basis. [ 7 ] The mother subsequently refused to abide by the terms of the Visitation Rights Agreement on the grounds she was forced to enter into it.

She testified at the hearing before me that the Visitation Rights Agreement has been declared to be unconstitutional by two Rwandan courts, but did not provide any records or documents to support this assertion. [ 8 ] The parties were divorced in July 2019 when a Divorce, Custody and Property Judgment of the Honourable Judge Simeon Mboninpaye of the Primary Court of Kicukiro (the “ 2019 Judgment ”) was issued following two days of hearing.

The 2019 Judgment awarded custody of the Child to the mother until he reaches 7 years old, while giving the father the right to visit the Child and communicate with him whenever the father wants. The mother was directed to communicate the Child’s whereabouts to the father to ease his ability to visit and communicate with the Child.

At age 7, custody of the Child would go to the father, and the mother would have the same rights given to the father in relation to visitation and communication. [ 9 ] The 2019 Judgment did not address the matter of the mother’s ability to travel with the Child without the father’s consent. [ 10 ] Both parties have appealed aspects of the 2019 Judgment. [ 11 ] The mother has appealed the decision transferring custody to the father when the Child reaches age 7, and she reiterated her request for sole custody.

The father has appealed the custody award asking for joint custody and specified access, arguing that the parties cannot agree on parenting time. [ 12 ] On July 31, 2019, the father’s Rwandan counsel sent an email to the mother’s Rwandan counsel requesting specific weekly access time, as well as information respecting the Child’s

schedule so that the father could visit and participate in the Child’s activities. The email also requested up to date medical information regarding the Child. [ 13 ] The mother’s counsel replied by email dated August 13, 2019. In the email, the mother proposed access three days a week, being Tuesday and Thursday evenings from 5 to 7 pm, as well as Sunday mornings from 9 am to noon. No other requested information was provided. [ 14 ] Several days later, without telling the father in advance, the mother traveled to Calgary, Alberta with the Child.

She sent the following email to the father dated August 18, 2019: Dear [father], I hope this message finds you well. I would like to inform you that I have travelled for a work required and authorized home leave with the child to Calgary, Canada as permitted in the court judgement RCA 00111/2018/TG/NYGRE space 16/08/2018. I will be in Calgary for one month. While in Calgary I will be residing with my brother at [Calgary address]. If you would like to speak to [the Child], please let me know and we can decide on a time for you to FaceTime with him every day. You can contact me on [mobile number].

Thank you for your cooperation and understanding. [ 15 ] The mother copied a number of third parties with her email, including the Rwandan High Commission, the Office of the

Canadian High Commission in Rwanda, the Rwanda Investigation Bureau and INTERPOL.

She testified that she also told the Calgary Police Service when she arrived. [ 16 ] The father’s counsel in Kigali, Rwanda sent an email to the mother immediately, challenging the lawful authority upon which she left Rwanda with the Child. [ 17 ] The father also filed an application with this Court seeking to enforce the 2019 Judgment in relation to custody of the Child and to have the Child returned to Rwanda. [ 18 ] The mother filed a cross-application seeking an order enforcing the 2018 Appeal Decision pursuant to EPECOA , and in the alternative, enforcing the 2019 Judgment pursuant to EPECOA once the appeal in Rwanda has been issued.

In the further alternative, the mother asks that the Court exercise its parens patriae jurisdiction by applying the best interests test in relation to the Child. Ultimately, the mother seeks to remain in Canada with the Child. III. Analysis [ 19 ] I will address the relief requested by the mother in her cross-application. A. Should I enforce the 2018 Appeal Decision pursuant to EPECOA ? [ 20 ] Counsel for the mother argued that I should enforce the terms of the 2018 Appeal Decision in accordance with section 2(1) of EPECOA , which states:

(1) A court, on application, shall enforce, and may make any orders it considers necessary to give effect to, a custody order as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by that custody order did not, at the time the custody order was made, have a real and substantial connection with the province, territory, state or country in which the custody order was made. [ 21 ] The mother deposed that her initial plan was to come to Calgary in August 2019 for one month and then return to Rwanda.

She has been staying with her brother in his home, where her parents also reside. The mother, who is employed by the United Nations, argued that she left Rwanda and travelled to Calgary because such travel was her work-sanctioned home leave. Her employer paid for her travel arrangements as part of her employment-related benefits. As a result, the mother’s position is that her travel to Calgary with the Child fell within the scope of her authorization to travel for work without consent of the father granted as part of the 2018 Appeal Decision. B.

Status of the 2018 Appeal Decision [ 22 ] The father retained Donatien Mucyo to provide expert evidence regarding family law and civil procedure in Rwanda. Mr. Mucyo swore affidavits dated November 8 and 21, 2019. The mother retained Florida Kabasinga to provide expert evidence regarding the matters outlined in Mr. Mucyo’s evidence. Ms. Kabasinga swore affidavits dated October 23 and November 23, 2019. Neither Mr. Mucyo nor Ms. Kabasinga appeared at the December 3, 2019 hearing to be cross-examined. The father’s counsel nevertheless challenged Ms.

Kabasinga’s credentials as an expert pointing to an apparent discrepancy in the number of years Ms. Kabasinga has been admitted to the Rwandan bar and her experience in family law matters. In the alternative, the father’s counsel argued that I should ascribe less weight to Ms. Kabasinga’s evidence. [ 23 ] Without the benefit of having either Mr. Mucyo or Ms. Kabasinga appear in person for cross-examination, I am not prepared to rule that either is not qualified to give expert opinion evidence, nor am I prepared to prefer one’s evidence over the other. I have instead considered the evidence of both Mr.

Mucyo and Ms. Kabasinga. [ 24 ] Mr. Mucyo deposed that the Rwandan Family Code and civil law system is based on German and Belgian civil law systems, as well as customary laws. Where Rwandan law is not settled, the Rwandan courts are guided by international decisions, specifically those from France and Belgium. Ms. Kabasinga did not take issue with this aspect of Mr. Mucyo’s evidence. [ 25 ] The experts’ views were also aligned regarding the current status of the 2019 Judgment. Ms. Kabasinga described the 2019 Judgment as being “not valid pending the decision on appeal”. Mr.

Mucyo used the word “suspended” to describe the status of the 2019 Judgment as a result of the appeal. Therefore, the experts agreed that since both parties have appealed the 2019 Judgment, its current terms are not presently in effect. [ 26 ] The experts’ views were not aligned regarding the current status of the 2018 Appeal Decision. [ 27 ] According to Mr. Mucyo, once the 2019 Judgment was released, the 2018 Appeal Decision no longer applied because it was an interim decision. Thus, according to Mr.

Mucyo, the appeal of the 2019 Judgment had the effect of suspending both the 2019 Judgment as well as the 2018 Appeal Decision. Specifically, Mr. Mucyo deposed: Accordingly, once an interim decision is taken, it is only valid up until the decision in the principal suit is pronounced. If the principal decision is appealed the interim order which is also dependent on the principal decision will also be suspended in accordance with

Article 155 of the same law, which states that: “an appeal that is admitted has the effect of returning a case to the situation as it was before the judgement, but only as to issues that are the subject-matter of appeal.” It would also make no sense to allow an interim ruling taken as a provisional measure to supersede the principal suit’s decision in light of the fact that

summary proceedings do not deal with a full evidentiary record.

[ 28 ] In her affidavit, Ms. Kabasinga described the 2018 Appeal Decision as being the result of a procedure invoked as a “temporary measure to ensure that spouses seeking divorce can seek and obtain temporary custodial, child support, and property and separation arrangements while undergoing divorce proceedings”. It is her position that since the 2019 Judgment is under appeal, then the terms of the 2018 Appeal Decision are in effect and are still valid until the appeal decision is rendered.

This includes the granting of custody to the mother and the provision allowing the mother to travel for work with the Child without the consent of the father. [ 29 ] As noted above, since neither Ms. Kabasinga or Mr. Mucyo were cross-examined on their affidavits or appeared at the December 3 hearing for such purpose, I am unable to arrive at a conclusion regarding the status of the 2018 Appeal decision. In any event, a question still remains as to the scope of the 2018 Appeal Decision. C. Scope of the 2018 Appeal Decision [ 30 ] Mr. Mucyo and Ms.

Kabasinga seem to disagree on the scope of the 2018 Appeal Decision, including in regards to the use of the term “custody” in Rwandan law. Mr. Mucyo’s affidavit indicates that the notion of “custody” in Rwandan law refers to physical custody, and otherwise, raising children is still a shared responsibility of the parents notwithstanding a divorce.

He points to the following language at para 29 of the 2019 Judgment, albeit under appeal, as supporting this point: After hearing session of the parties and the lawyers in their defense, the Court finds that the [Child] was born of [the father] and [the mother] on 14/04/2017, thus he is two (2) years old; the Court finds that, though a decision is taken on their divorse, they shall not deny the rights of the [Child] to his parents, they have the responsibility to bring him up and give him appropriate education, in particular that “The child has right to adequate development.

Every parent has the responsibility to care for the child as of conception to ensure appropriate child development”, as it is in the provision of

Article 4 of the Law Nᵒ71/2018 of 31/08/2018 on the protection of the child, therefore the child [name] shall stay in the custody of his mother until he is seven (7) years old; [sic in original] [ 31 ] Conversely, Ms.

Kabasinga deposed in her October 23, 2019 affidavit at para 23: Until a final divorce decision is handed down by a court of law in Rwanda, there is no requirement, in accordance with the [2018 Appeal Decision], for [the mother] to seek consent from [the father] before leaving Rwanda. ⁶ Requiring [the father’s] consent would defeat the purpose of granting temporary sole custody of [the Child] to [the mother] pending a final divorce decision. [ 32 ] Ms. Kabasinga’s footnote refers to the provision in the 2018 Appeal Decision allowing the mother to travel with the Child “on duty” without the father’s consent.

It follows from Ms. Kabasinga’s evidence that she disagrees with the notion that “custody” in Rwandan law refers only to physical custody. [ 33 ] Even if I accept Ms.

Kabasinga’s broad notion of the word “custody”, I still do not accept the mother’s argument that I should enforce the terms of the 2018 Appeal Decision under EPECOA and therefore, allow the mother to stay in Calgary with the Child. [ 34 ] When the father’s application was first addressed in morning chambers, the mother swore an affidavit dated September 3, 2019 indicating that she fully intended to return to Rwanda with the Child, and she attached as an exhibit return airline tickets showing a planned return on September 17, 2019. [ 35 ] The mother subsequently swore an affidavit dated September 10, 2019 changing her position, indicating that she wished to remain in Alberta with the Child. [ 36 ] When cross-examined on what precipitated the change in position, the mother testified that she changed her mind because she finally had enough with the father and his family.

She took issue with the father’s current application alleging child abduction, the father’s separate litigation in Alberta alleging constructive trust in relation to property held by her brother, and the father’s sister pressing forward with litigation against the mother in Ontario regarding expenses allegedly incurred by the father’s sister when the Child was born in Toronto. [ 37 ] When challenged during cross-examination, the mother reluctantly acknowledged that there had been no new developments or changes between the time she swore the September 3 and the September 10 affidavits.

In any event, it is clear on the evidence that the mother changed her position and I do not accept that the mother may now remain in Canada with the Child as a result of the terms of the 2018 Appeal Decision, even if its terms remain in effect. Once the mother was no longer in Calgary for home leave or other work-related purposes, and expressed the view that she wished to remain in Calgary with the Child, the term allowing the mother to travel outside of Rwanda for work with the Child without the father’s consent no longer applied. This is consistent with para 23 of Ms.

Kabasinga’s October 23 affidavit when she referred to the provision in the 2018 Appeal Decision allowing work-related travel without consent. Therefore, enforcing that 2018 Appeal Decision would not give the mother the rights she seeks, as the 2018 Appeal Decision did not allow for relocation with the Child by the mother. D. Should I enforce the terms of the 2019 Judgment once the appeal has been concluded? [ 38 ] As already noted, both Mr. Mucyo and Ms. Kabasinga agree that the terms of the 2019 Judgment are not presently in effect because it is under appeal.

There is no evidence before me as to what is happening in the appeal and when a decision might be issued, although some of the parties’ appeal materials have been attached as exhibits to their affidavits. Of course, I also have no information as to the likely outcome of the appeal. [ 39 ] The mother’s request to enforce the 2019 Judgment pursuant to EPECOA once the appeal has been concluded in Rwanda essentially asks me to act in a prospective manner, notwithstanding that there are many unanswered questions.

Given this, I am not prepared to issue an order now purporting to enforce the 2019 Judgment pursuant to EPECOA once the appeal has been concluded.

E. Should I exercise this Court’s parens patriae jurisdiction and apply the bestinterests test? [40] The mother’s counsel argued that I should nevertheless exercise this Court’s parens patriae jurisdiction and apply the bestinterests of the child test. From the mother’s perspective, such an analysis should lead me to conclude that the Child should be permittedto remain in Canada with the mother. [41] The Supreme Court of Canada’s decision in E (Mrs) v Eve, (SCC), [1986] 2 SCR 388, 31 DLR (4th) 1 [Eve]remains the leading authority addressing the nature and scope of parens patriae jurisdiction.

In Eve, LaForest J wrote at 426: The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannotcare for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, forhis or her “benefit” or “welfare”. [42] He further wrote at 427: Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion toexercise it is unlimited. It must be exercised in accordance with its underlying principle.

Simply put, the discretion is to do what isnecessary for the protection of the person for whose benefit it is exercised; [citations omitted]. The discretion is to be exercised for thebenefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution thatmust be redoubled as the seriousness of the matter increases.

This is particularly so in cases where a court might be tempted to actbecause failure to do so would risk imposing an obviously heavy burden on some other individual. [43] Based on foregoing, this Court’s parens patriae jurisdiction should only be exercised if necessary to protect the welfare of theChild. [44] The mother’s counsel relied upon the decision LCM v JNS, 2008 ABQB 459 [LCM] where Justice McMahon consideredwhether custody, access and related issues pertaining to an infant child should be heard in Alberta or in the United Arab Emirates(“UAE”). The UAE was not a signatory to the Hague Convention.

Justice McMahon wrote the following at para 19: Of course, this Court has an inherent jurisdiction over issues relating to children by virtue of the doctrine of parens patriae and thechild’s presence now in Alberta.… [45] Justice McMahon then concluded that in determining whether jurisdiction should be surrendered by a Court with parenspatriae jurisdiction to the courts of a non-Hague Convention signatory state, the overarching principle is the best interests of the child. Indoing so, he referred to the Eve decision.

Justice McMahon also went on to say, under the heading parens patriae, that when anotherstate has jurisdiction by virtue of the child’s habitual residence, two questions arise: (1) can Alberta take jurisdiction?; and (2) shouldAlberta take jurisdiction? I now turn to these two questions.

i) Can Alberta take jurisdiction? [46] In relation to the first question, the mother argued that the father attorned to the jurisdiction when he filed his application toenforce the 2019 Judgment. Of course, the father disputes this, arguing that he simply seeks return of the Child to Rwanda so that theappellate court in Rwanda may decide the custody and access issues, but such action should not be taken as attornment. The mother alsoargues that the Child has a real and substantial connection to Alberta, because the Child is physically present in Alberta and the partiesand Child are all Canadians.

In this respect, the mother’s counsel points to Yassin v Loubani, 2006 BCCA 509, leave to appeal to SCCrefused, [2007] SCCA No 19, where the Court wrote at para 1: The question at the heart of this appeal is whether, among the obligations of citizenship (the parties to this appeal both being Canadiancitizens pursuant to s.3(1)(

c) of the Citizenship Act, RSC 1985, c C-29), is the obligation to submit to the jurisdiction of one of theQueen’s courts, here the Supreme Court of British Columbia, in the matter of custody of children who are themselves Canadian citizens;to put it another way, do the Queen’s courts have a right founded both on the duty of allegiance of the parents and on the Crown’s parenspatriae jurisdiction over children who are themselves Canadian citizens, to exercise jurisdiction by making an interim order for custodywhen the children at the time of making the order were neither “habitually resident” nor physically present within the jurisdiction.

In myopinion, for the reasons which follow, the answer to the question, however framed, is “yes”. [47] Based on Eve and LCM, it is clear that Alberta can always take jurisdiction where a child is physically present in the provinceand the welfare of the child requires court intervention. Here, I am not certain that the circumstances warrant action.

Even if I concludethat Alberta can take jurisdiction over this matter, whether under parens patriae jurisdiction or because I am satisfied that the father hasattorned or the real and substantial connection test has been met, I must still go on to answer the question of whether Alberta should takejurisdiction. ii) Should Alberta take jurisdiction? [48] In order to answer this question, I must consider whether Alberta or Rwanda is the forum conveniens.

This term was definedby the Alberta Court of Appeal in United Oilseed Products Ltd v Royal Bank of Canada (1988), 1988 ABCA 207 , 87 AR 337at para 99, 60 Alta LR (2d) 73 (CA) as meaning “that forum which is more suitable for the ends of justice”. This has been found to beapplicable in the context of custody and divorce proceedings: Alexiou v Alexiou (1996), (AB KB), 41 Alta LR (3d)90, [1996] AJ No 696. a. Does Rwanda still have jurisdiction?

[ 49 ] Before addressing whether Alberta should take jurisdiction, I must address whether Rwanda still has jurisdiction. [ 50 ] The mother argued that Rwanda no longer has jurisdiction and relied on Ms. Kabasinga’s affidavit, which stated that the Rwandan courts cannot order the Child’s return to Rwanda, since the Child is now in his home country, Canada. Therefore, the mother submitted that there is no need to undertake a forum conveniens analysis. [ 51 ] I do not accept that Rwanda no longer has jurisdiction in relation to the parties’ custody and access issues.

It is uncontroverted that both parties have submitted appeals of the 2019 Judgment. In addition, the mother acknowledged during cross-examination that she has counsel in Rwanda continuing to appear on her behalf in relation to ongoing proceedings. Her counsel made an appearance on October 31, 2019 and again in early December, 2019. It is clear that the mother continues to this day to take steps in Rwanda relative to the ongoing custody and access proceedings. Thus, it is necessary to consider forum conveniens . b.

Forums Conveniens [ 52 ] In LCM , relative to the forum conveniens analysis, Justice McMahon wrote the following at para 27: Several cases have enumerated the relevant factors in the Family Law context: 1. Location of witnesses, 2. Location where the parties have lived, 3. Location where the evidence will be found, 4. Physical presence of the child in Alberta, 5. The length of time the child has been in Alberta, 6. The strength of the child’s bonds to the persons and circumstances in each jurisdiction, 7. Whether the removal of the child was wrongful, 8.

Whether removal of the child to another jurisdiction was justifiable, 9. Where it can be most quickly and inexpensively resolved, 10. Whether moving the child to another jurisdiction would cause the child harm. [citations omitted] [ 53 ] This list is substantively similar to the factors that the father’s counsel argued I must consider, as enumerated in JPR v YMS , 2015 ABPC 283 [ JPR ] . [ 54 ] A fulsome consideration of these factors leads me to the conclusion that Rwanda is the forum conveniens and accordingly, the Alberta Courts should not exercise jurisdiction in relation to this matter.

In reaching this conclusion, I have considered the following: (

a) Although the parties and the Child are Canadian, the parties met and were married in Rwanda and lived with the Child in Rwanda for the duration of their marriage, except for the few months they were in Toronto in order for the Child to be born as a Canadian citizen. (

b) While the Child is now physically present in Alberta, the mother admitted in cross-examination that the Child had never been in Alberta prior to August of this year. (

c) The parties have been engaged in several motions and other legal proceedings in Rwanda in, unfortunately, high conflict circumstances. The legal proceedings are now at an advanced stage, a trial has been concluded and the matter is now before the appellate court in Rwanda. Therefore, the current custody and access issues can be resolved most quickly and inexpensively by continuing the proceedings in Rwanda. Neither party adduced evidence to credibly suggest otherwise. (

d) Prior to coming to Alberta, the Child attended a day-care type of school, was involved in the community mosque and participated in other activities, such as swimming lessons. The mother testified that she enrolled the Child in many of those activities, and made a consistent effort to bring the Child to the mosque, including for the express purpose of giving the father access time with the Child. Conversely, the mother did not adduce any evidence suggesting that the Child has been enrolled in activities since being in Calgary.

Nevertheless, since being in Calgary, the mother and Child have been living with the mother’s brother and parents. I accept that the Child has likely been developing bonds with the mother’s family since being in Calgary. (

e) In view of the Child residing primarily in Rwanda and engaging in activities there, it is reasonable to infer that most witnesses or evidence relevant to the determination of custody and access are located in Rwanda. (

f) The mother has argued that she was authorized by the 2018 Appeal Decision to travel to Calgary with the Child as her home leave without consent of the father. However, she clearly changed her mind between September 3 and September 10, as evidenced by her affidavits. While the removal of the Child from Rwanda may not have been wrongful at first instance, in my view, the mother’s legal position under the 2018 Appeal Decision changed when she decided to permanently stay in Calgary and no longer return the Child to Rwanda. (

g) The mother testified that after the divorce proceedings in Rwanda, she was emotionally and physically exhausted. She needed a break and she needed the support of her family that lives in Calgary. She further explained during cross-examination that even

while on home leave, she was not able to escape the father’s harassment because she was immediately confronted with allegations ofchild abduction. While I accept that the divorce proceedings and ongoing confrontation with the father and his family have not been easyfor the mother, in my view, that does not justify permanent removal of the Child to Alberta. (

h) With respect to whether moving the Child back to Rwanda would cause the Child harm, I consider it significant that themother acknowledged during cross-examination that the father is a good parent and has a loving relationship with the Child. The motheralso confirmed that the Child was happy in Rwanda, although she added that the Child has also been happy since arriving in Calgary. (

i) The mother acknowledged that the father has never subjected her to physical violence, although she did argue that thefather’s almost daily emails seeking access and constant reports or complaints to authorities about child abduction or her leaving Rwandawithout his knowledge constituted harassment.

While the father’s behaviour contacting third parties regarding the mother (includingcontacting the First Lady of Rwanda and Rwandan Minister of Foreign Affairs) and constantly emailing the mother is problematic inseveral respects, the mother agreed during cross-examination that the Rwandan Judge who issued the 2019 Judgment rejected herassertion that the father harassed her. The mother emphasized that she is appealing this aspect of the 2019 Judgment. (

j) With respect to the father’s right to visit the Child, the mother stated in cross-examination that the father has been inCalgary three times since filing his motion materials in September, 2019, which she argued was clear evidence the father can afford totravel to Calgary to visit the Child. In my view, this demonstrated a cavalier attitude on the part of the mother regarding the father’svisitation rights and his ability to spend meaningful time with the Child. (

k) It is clear from the evidence that there are significant issues between the mother and her mother-in-law. The mother allegesthat she was kicked out of her mother-in-law’s home on November 10, 2017 after a fight that ultimately led to the mother leaving thehome wearing her slippers and carrying the Child. The father followed, apologized and asked her to return to the home. It is also allegedthat the mother-in-law then drove her car and started to yell at the mother. The mother-in-law allegedly got out of the car, physicallyabused the mother and tried to snatch the Child away from her.

The mother filed a police report regarding this incident and while thefather disputed that the events occurred exactly as the mother described, what is notable is that the mother wrote that while in the house,the father prevented his own mother from beating and touching the mother. She also wrote that while on the street, the father againgrabbed his own mother and told her to leave the mother alone.

In other words, according to the mother’s own account, the father actedin a protective manner towards her as against his own mother. [55] My conclusion that the Alberta Courts should not take jurisdiction in this matter is, in my view, consistent with the approachoutlined by the Alberta Court of Appeal in Read v Read, 1981 ABCA 275 at para 29: …We do recognize that, in determining what is in the best interests of the child, the “real and substantial connection” may be held to besevered. This is particularly so if the court is satisfied that to hold otherwise is likely to result in serious injury to the child.

However, weagree with the view of Christine Davies in her

article “Interprovincial Custody” (1978) 56 Can Bar Rev 17, where she says at pp 20-21: The typical interprovincial ‘kidnap’ case involves a child who is ordinarily resident in one province and physically present in another. Aswe have seen, the courts of both provinces have jurisdiction to make a custody order. What factors will weigh with the court indetermining whether to exercise that jurisdiction? It has been said that in matters of this sort two considerations must be kept in mind.The first is the welfare of the child. The second is that there must be a fair and proper administration of justice.

The welfare of the childis generally best served if the custody dispute is heard in the province where the best evidence is available. This is usually the provincewherein the child is ordinarily resident rather than that where he is physically present. The consideration of the fair and properadministration of justice is particularly relevant when a child is brought into a province other than that of his ordinary residence in orderto evade process about to issue or contrary to the terms of a custody order.

In such a situation it would seem that unless harm to the childis anticipated, the appropriate course for the court to take is to make an order directing that the child be taken back to the jurisdictionfrom whence he was taken. It would seem then that where a child has been unilaterally removed from the province, wherein he wasordinarily resident and taken to another province, then, unless the child has been within that other province for a considerable period oftime, or harm to the child is anticipated, that province should decline to embark upon a full custody hearing.

Rather, the court shouldorder the child returned to the jurisdiction from whence he was taken or into the custody of the parent from whom he has been abducted,on whatever conditions the court deems suitable. [Emphasis added] [56] While the Court of Appeal’s remarks were made in the context of considering an interprovincial matter, in my view, thesecomments are equally applicable to the current matter involving a non-Hague Convention country. [57] This approach also recognizes the importance of avoiding multiplicity of proceedings and is in line with the principle ofcomity.

As Judge Jordan noted in ET v GT, 2018 ABPC 147 at paras 12-13: The Supreme Court of Canada in Morguard Investments Ltd. v DeSavoye (SCC), [1990] 3 SCR 1077 adopted theruling of the Supreme Court of the United States in Hilton v Guyot, 159 US 113 (1895) at pp 163-64 wherein Gray, J. stated: “Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon theother.

But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation,having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under theprotection of its laws… Fortunately, some of my brethren occasionally reach deep into that well of knowledge we are all presumed to have but which somepossess to a greater extent than the rest of us, and refer to it.

See Moen J in the matter of Martodam v Martodam, 2007 ABQB 100 at par.39: The analysis of forum conveniens therefore recognizes the twin purposes in international law of comity and mutual recognition. [58] The application of the forum conveniens analysis leads me to conclude that Alberta should not take jurisdiction in this case. Inmy view, this determination also serves the welfare of the Child and the fair and proper administration of justice, as referenced in Read.

c. Other considerations [ 59 ] There is one further argument raised by the mother in regards to the question of whether the Alberta courts should take jurisdiction. She pointed to the 2019 Judgment awarding custody of the Child to the father at age 7 without an analysis to determine whether this would be in the Child’s best interests, and argued that this Court must consider this as being incompatible with Canadian family law principles.

While this appears to be a different approach from Canadian family law principles, I do not consider there to be a significant enough concern to compel the Alberta Courts to take jurisdiction over this matter. The mother has appealed this very aspect of the 2019 Judgment and the appeal is outstanding. Further, the Child is presently two years old, and other legal proceedings or decisions may be made over the next five years depending on the evidence available in the future. It is notable that Ms. Kabasinga does not depose that the best interests of the Child are not considered under Rwandan legal principles.

Instead, Ms. Kabasinga’s affidavits make it clear that the law of Rwanda considers the best interests of the Child in some fashion. For example, para 10 of Ms. Kabasinga’s October 23, 2019 affidavit expressly refers to Articles 224 and 225 of Law No. 32/2016 of 28/18/2016 Governing Persons and Family (“ Family Law ”), which includes “best interests of the children” language. Ms.

Kabasinga also deposes at para 18 of the same affidavit, “The law in Rwanda is quite categorical that for a child of six years and below, in the best interests of the child, custody is granted to the mother, unless there is evidence to show that the best interests of the child would be in danger” and she refers to

Article 243 of the Family Law which states”…children under the age of six (6) years must live with their mother unless the interests of the children are in danger.” [ 60 ] Finally, I must comment on the credibility of the parties. [ 61 ] I have some concerns respecting the father’s credibility. He demonstrated a reluctance to answer certain questions during cross-examination. Further, I have concerns about his past behaviour towards the mother and his seemingly conflicting evidence on his employment status and financial situation.

I note the mother made allegations that the father has engaged in fraudulent and illegal activity. [ 62 ] I have more concerns regarding the mother’s credibility. I found the mother to be unnecessarily argumentative when responding to some questions. On other occasions, she was not responsive to questions. [ 63 ] In addition, although the mother provided an explanation during cross-examination, I consider the mother’s affidavit evidence regarding the expiry of her Ugandan passport to be misleading.

In the mother’s affidavit dated November 13, 2019, the mother deposed at para 20: …My Ugandan passport expires on December 28, 2019. Attached hereto and marked as Exhibit “13” is a copy of my Uganda passport. I have further been advised and verily believe to be true that the immigration laws in Uganda have recently been changed.

It would be necessary for me to go back to Uganda, obtain a National Identity Card as well as additional paperwork as well as spend time in Uganda to renew my passport. [ 64 ] The father’s affidavit sworn November 22, 2019 indicates that Exhibit 13 is an older version of the mother’s passport, and he attached as an exhibit a copy of her renewed passport, which is valid until August 8, 2026. The mother explained during cross- examination that she was misinformed because she thought her passport was void.

She now understands that her current passport is valid but she will have to renew her passport by travelling to Uganda to obtain a National Identity Card. Even if I accept the mother’s explanation, that still does not explain why she would swear that her Ugandan passport was to expire at the end of 2019 and attach a copy of an old passport as an exhibit to her affidavit. IV.

Disposition [ 65 ] I conclude that the Child must be returned to Rwanda, as the Alberta Court should not take jurisdiction over this matter. [ 66 ] Although the father has asked that he be permitted to return to Rwanda with the Child with the assistance of the Calgary Police Service, I do not consider that necessary. Counsel for the mother indicated at the end of the hearing on December 3 that the mother will return to Rwanda with the Child if so ordered. I understand that there are logistical issues that must be addressed for the mother and Child to return to Rwanda.

The mother is directed to immediately take steps to identify all logistical issues and create a plan for how those will be addressed. I direct the parties to contact my office in order to arrange for a one-hour attendance before me as soon as possible, and not later than the week of January 6, in order to address those logistical issues and next steps. [ 67 ] I also understand that Madam Justice Grosse previously ordered each of the parties to deposit their passports, including the Child’s passport, with their respective counsel in Calgary.

Counsel shall continue to hold all passports until further direction of the Court. Heard on the 3 rd day of December, 2019. Dated at the City of Calgary, Alberta this 18 th day of December, 2019. L. Bernette Ho J.C.Q.B.A.

Appearances: Rupert N. Joshi and F. Hudani for the Applicant Max Blitt, QC for the Respondent