r v. E. A., 2011 QCCA 729

Droit de la famille — 111062 2011 QCCA 729 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021100-102 (500-04-049899-090) DATE: April 14, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. NICOLE DUVAL HESLER, J.A. L. M. APPELLANT – Defendant/Petitioner v. E. A.

RESPONDENT – Plaintiff/Respondent and THE ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] THE COURT: On appeal from a judgment of the Superior Court, District of Montréal (the Honourable Madam Justice Eva Petras), rendered on September 17, 2010 refusing to return the child to Mexico. [ 2 ] For the reasons of Dalphond and Bich, JJ.A., and Duval Hesler, J.A.; [ 3 ] DISMISSES the appeal without costs. PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. NICOLE DUVAL HESLER, J.A. Mtre Aline U. K.

Quach Blackburn & Associés, avocats For the Appellant Mtre Peter Shams Peter Shams Avocat Mtre Cory Verbauwhede Grenier Verbauwhede avocats inc. For the Respondent Mtre Nancy Brûlé Bernard, Roy (Justice-Québec) For the Impleaded party

Date of hearing: February 11, 2011 REASONS OF DALPHOND AND BICH, JJ.A. [4] The Hague Convention is a complete international codification of what must be done in the best interest of an abducted childby signatory countries. In principle, the return of children wrongfully removed from their habitual residence is in their best interest.However, the Convention provides for some limited exceptions that must be interpreted narrowly. The Quebec Act respecting the civilaspects of international and interprovincial child abduction, R.S.Q., ch. A-23.01, is a mere internalisation of the Convention ratified byCanada and its

interpretation is subject to the same principles. [5] In the instant case, the evidence shows that the mother, who has taken primary responsibility for the care of the child sinceher birth, was subject to physical abuse (some in presence of the child), verbal abuse and threats by the father whose hostility towards hisformer wife, for reasons unlikely to disappear, is clearly demonstrated. At one point, the father even kidnapped the child and there is noindication that a recurrence could be prevented.

Relatives, including some of the mother herself, have participated in her mistreatmentand the local authorities have shown an unwillingness or inability to respond and to protect the mother. [6] Thus, the exception to the return of the child provided at s. 21(2) of the Act, which corresponds to s. 13(

b) of the HagueConvention as interpreted in Pollastro v. Pollastro, (1999), (ON CA), 43 O.R. (3d) 485 (Ont. C.A.), applies. In otherwords, if returned to her habitual place of residence, there is a grave risk that the child would be exposed to an intolerable situation. [7] For these reasons, like our colleague Duval Hesler J.A., we would dismiss the appeal without costs. PIERRE J. DALPHOND, J.A. __________________________________ MARIE-FRANCE BICH, J.A.

REASONS OF DUVAL HESLER J.A. [8] Because the Mexican Courts have now thrown out the charge of corruption and exploitation of a minor which Appellant, thefather, and relatives of Respondent, the mother, had lodged against Respondent, and which the lower courts had maintained, Appellantalleges that a large part of the reasons of the judge of first instance for refusing to return the child to Mexico no longer apply. [9] The argument is fairly reductive.

Apart from the criminal charges which Appellant laid against Respondent in Mexico, thereremain the issues of the fabricated evidence which he presented in support of such charges and in order to obtain custody of the child inMexico, of conjugal violence and of ostracism and discrimination suffered by the Respondent because of her being in a relationship withanother woman.

I would add that such violence, ostracism and discrimination was suffered by Respondent not only at the hands ofAppellant, but also at the hands of members of her own family at the behest of Appellant, who would stop at nothing in his war againsther lifestyle. Paragraph 34 of the judgment a quo is fairly explicit in this respect: 34] There were multiple declarations filed by relatives of both the mother, including her parents and one sister, and of the father tosupport the father's complaint.

The complaint and various declarations stated that X risked becoming a lesbian because she was livingwith a lesbian, that the child was being dressed as a boy, that her head was shaved, that she played with inappropriate toys (balls, toy carsor planes, for example), that she did not wear earrings, as well as other accusations which the mother alleges were nothing more thandiscriminatory or homophobic. [10] Adding to this mix the fact that Appellant kidnapped the child in Mexico without informing Respondent of her whereaboutsduring three weeks, it is difficult to find fault with the trial judge's principal findings, concerning the situation of the child, at paragraphs[183] and following of the judgment a quo. [11] For reasons which she carefully detailed, the judge concluded that the child would be placed in an intolerable situation andrisk psychological and emotional harm were she to be returned to Mexico. [12] Appellant fails to demonstrate that the factual findings of the first judge contain a palpable and overriding error. [13] Appellant says that he now concedes that the mother should have custody, but he carefully avoids mentioning that he consentsto her spouse continuing to be a part of the mother's and of the child's lives.

In addition, he has not done anything before the Mexicancourts to operate a change of custody and he did not retract his false statements before the federal court which overturned the mother'sconviction, even though he was a named party to the appeal proceedings. He is a spousal abuser. The Superior Court judge found that he

had lied under oath. Up to now, this party has shown bad faith. Deeds speak louder than words. [ 14 ] Even absent a criminal conviction of the mother (which, incidentally, entailed a possible sentence of several years in jail and the automatic loss of parental authority), the likelihood of no access by the mother to the child upon a return to Mexico remains extremely high. As stated in the opinion of Raul F. Garza Serna, "[t]he Amparo Court's findings that the evidence filed in support of the criminal accusations can be relied on in family courts by Mr. M. remains. As such, Mr.

M. or even the Family court, proprio motu , could use the Amparo judge's findings against Ms. A.. [...] In any event, nothing would prevent Mr. M. from filing another criminal accusation against Ms.

A. based on 'new facts or evidence' ". [ 15 ] The restoration of the situation existing prior to the removal of the child from Mexico, i.e., of the child living in Mexico with her mother and the mother's female spouse, is therefore highly unlikely. [ 16 ] As was decided in the case of Pollastro vs Pollastro [1] , it is relevant, in deciding whether or not to return a child under the exceptions provided in the Hague Convention, to consider whether such a return would place her in an intolerable situation, and for that purpose, "to take into account the serious possibility of physical or psychological harm coming to the parent on whom the child is totally dependant." [2] [ 17 ] In the case at hand, the first judge expanded on the notion of psychological harm in paragraphs 187 and following of her judgment.

I find the following extracts to be of particular interest: [187] The Supreme Court of Canada in Thomson v. Thomson established the framework in Canada for interpreting what constitutes psychological harm and also clarified that it is the risk of psychological harm that must be grave, not that the psychological harm has to be grave. The Supreme Court added that the psychological harm would also normally lead to or become an intolerable situation. [188] Obviously, the psychological harm or the intolerable situation can be linked to the return of the child to her habitual residence, but, according to Thomson v.

Thomson , the risk of psychological harm or being placed in an intolerable situation can result from the removal of a child from the caregiving parent. The Supreme Court then cited itself in Young v.

Young and stated that from the point of view of a child, "harm is harm", it does not matter where the source of harm arises. [ 18 ] The first judge went on to point out that the child would not be able to see her second mother, who had been acting as such for more than two years, as the father would have no desire for "Ms S.'s continued involvement in X's life and no court in the State of Querétaro is likely to ensure such contact.

This would also no doubt cause the child distress." (Judgment a quo , par. 190). [ 19 ] Instead, as the first judge pointed out, the child would likely hear unfavourable and destructive things about her mother, would be in close contact with the members of her father's and her mother's families, who denounced her mother in writing to the Mexican authorities, accusing her of criminal corruption of a child, and who painted a picture of a mother who was irresponsible, negligent, unnatural and was harming her child (par. 191 et seq. of the judgment a quo ). [ 20 ] It is difficult, in view of the above, to find that the first judge was in error in considering that the return of the child to Mexico would entail a grave risk that she be exposed to harm or otherwise placed in an tolerable situation, as envisaged by

article 13 of the Hague Convention. [ 21 ] I would therefore dismiss the appeal, without cost in view of the nature of the matter at issue. NICOLE DUVAL HESLER, J.A.