Court: Ontario Supreme Court (High Court of Justice) Number: 987/85; 46 R.F.L. (2d) 263 Applicant: Charmasson and Respondent: Charmasson Date: 26 Jul 1985 ----------------------------------------------------------------- CHARMASSON v. CHARMASSON Ontario Supreme Court [High Court of Justice], Sutherland J. Heard-June 27and 28, 1985. Judgment-July 26, 1985. Infants and children - Custody - Jurisdiction - Effect of foreign judgments - Convention provisions of Child Welfare Act not applying where Convention not in force when original custody determination made and where no notice of wrongful removal given and no application made under Convention - Children's Law Reform Act. The parties were married in 1969 and their child was born in 1974 while both spouses were resident in France. In 1981 the wife took the child from the matrimonial home and moved to Ontario. In a series of custody proceedings the Ontario courts ruled that Ontario was the forum conveniens for the determination of custody. The father was awarded access by a French court and the mother was granted an order by the Ontario courts which gave her sole custody and denied the father access. Subsequently, the father applied to enforce the French judgment awarding him access pursuant to the Convention provisions of the Children's Law Reform Act. Held - Application dismissed. Under art. 16 of the Convention, an Ontario court otherwise having jurisdiction was not required by the Convention to deviate from its procedures for determination of custody, unless it received notice of wrongful removal under the Convention, an application was brought under the Convention and the appropriate documents were served. No such notice. application or documents were given to or served on the appropriate Ontario officials. Accordingly, by its own terms, the Convention was not applicable to effect the jurisdiction of the Ontario courts. Moreover Ontario was not a party to the Convention until after the original custody determination was made, therefore, the Convention did not apply. Cases considered Charmasson v Charmasson 34 O.R. (2d) 498, 25 R.F.L. (2d) 41, [1982] W.D.F.L. 127, 25 C.P.C. 45, 131 D.L.R. (3d) 74 (C.A.) - considered. Henderson v Henderson (1847), 3 Hare 100, 67 E.R. 313 - considered. Heslop v Heslop [1958] O.R. 183, 12 D.L.R. (2d) 59l (C.A.) - referred to. Lyon, re (1969), 3 R.F.L. 71, 72 W.W.R. 156, 10 D.L.R. (3d) 287 (B.C.S.C.) - not applied. McKee v Mckee (1951) A.C. 352, 2 W.W.R. (N.S.) 181, [1951] 1 All E.R. 942, [1951] 2 D.L.R. 657 - referred to. Statutes considered Children's Law Reform Act, R.S.0. 1980, c. 68. Children's Law Reform Amendment Act, 1982 (Ont.). c. 20. Convention on Civil Aspects of International Child Abduction, 1982 (Ont.). c. 20 (Sched.), art. 16. [Note up with 19 Can. Abr. (2d) Infants and Children, VII, 2, c.] APPLICATION to enforce foreign access order. M. Wilson, for applicant. G.A. Timmins, for respondent. S. W. Mercer, for Ministry of Attorney General. (No. 987/85) 26th July 1985. SUTHERLAND J. :- This application is the most recent in a long series of court proceedings in France and Ontario relating to custody of and access to Luc Charmasson, the 11 year old son of the parties. The application was brought by the father on an emergency basis and came on as a Thursday matter in family law motions court. with related requests for leave to give short notice and to effect service by serving counsel for the respondent in Toronto. Counsel for the respondent being present, both requests were granted. The application is based upon the Children's Law Reform Act, R.S.O. 1980, n. 68, as amended, and more particularly, upon the amendments to that act effected by the Children's Law Reform Amendment Act, 1982 (Ont.), c 20, which added Pt. III of the Act. Part III deals with custody, access and guardianship of children, and, among other things, provides that the Convention on the Civil Aspects of International Child Abduction is applicable to Ontario. The amending Act wad assented to on 25th June 1982 and it is common ground that the Convention came into force in Ontario in December 1983. The father seeks to enforce, under the Convention, access rights granted, or purported to have been granted, to him by the judgment of a French court at Marseilles on 13th October 1982. That judgment was upheld by the Court of appeal of Aix-en-Provence on 1st December 1983. In the alternative the applicant seeks to enforce those access rights on the basis of comity of nations, asserting that the courts of Ontario should defer to the judgment of the French court. The respondent brought a cross-motion for an order dismissing the application or in the alternative staying it pending the abandonment or other disposition of an appeal by the father from an order limiting access by the father to the son, made on 27th March 1985 by the Honourable Judge E. Loukidelis in the District Court of Ontario, at the city of Barie, in contested proceedings between the same parties. In further alternative the respondent sought a shorter adjournment to permit the filing of additional material. After brief introductory submissions, I deferred further submissions and a ruling on the cross-motion until after argument of the main application. The emergency nature of the application was based on two grounds. The first was that the father had been in Canada since December 1984 and his visa was about to expire without his having once met his son in that period. The second reason was that the mother intended to take the son out of Ontario on 1st July 1985 to attend a summer course of several weeks duration. After lengthy submissions I adjourned the matter until the following morning, so that I could deal with other emergency matters set down for that day, and so that I could have the benefit of the views of Mr. Wayne Mercer, barrister, of the Ministry of the Attorney General. That ministry is the Central Authority for Ontario for the purpose of the Convention and Mr. Mercer is the person charged with overseeing and performance by the ministry of its duties in that regard. After Mr. Mercer had been kind enough to attend on short notice on the Friday morning to make submissions as to the applicability of the Convention and as to some of the history of the litigation between the parties, I recessed this matter until the end of the day, for the dual purpose of allowing counsel, and especially, counsel for the applicant, to prepare further submissions with regard to points raised Mr. Mercer, and of allowing me to proceed with the other matters set down for that day. Thus, haltingly, submissions were completed late in the afternoon of the Friday preceding the intended Monday departure from Ontario of the mother and the son. The issues are three: (i) Whether the Convention is applicable; (ii) Whether apart from the Convention the common law as to comity of nations requires that Ontario courts defer to the order of the French court as to the access rights of the father; and (iii) The extent to which the issues sought to be raised by the father are res judicata. In my judgment the application must be dismissed. The issues enumerated above I decide as follows: 1. For reasons to be given below, the Convention is not applicable to this case. 2. The issue of comity has been authoritatively determined against the applicant by the decision of the Court of Appeal in Charmasson v Charmasson, 34 O.R. (2d) 498, 25 R.F.L. (2d) 41, [1982] W.D.F.L. 127, 25 C.P.C. 45, 131 D.L.R. (3d) 74, where it was decided not only that Ontario was forum conveniens but also that the applicant by entering an unconditional appearance impliedly recognized that fact. The Court of Appeal directed the District Court of the county of Brant to assume jurisdiction over the issue of the custody of the son. and impliedly also over the question of access at a time where the mother and son were in Ontario and there was no outstanding order of a French court. In giving the judgment of the Court of appeal, Lacourciere J.A. noted, at p. 502, that in Heslop v Heslop [1958] O.R. 183. 12 D.L.R. (2d) 591, that court had adopted the Privy Council decision in McKee v Mckee [1951] A.C. 352, 2 W.W.R. (N.S.) 181. [1951] 1 All E.R. 942. [195I] 2 D.L.R. 657, as to the effect of comity of nations where the child is in Ontario and there is an outstanding custody order of a foreign court. In the result the law that is binding upon me is that in such circumstances there is, apart from the Convention, a wide discretion in the Ontario court to make any order that it believes to be in the best interests of the child, notwithstanding that a custody order has been made by a foreign court. As stated by Lacourciere J.A., the foreign order must be given grave consideration, but it is not determinative of the issue. The Court of Appeal decision in Charmasson is an authoritative and complete answer to the submission of counsel for the applicant that on the comity issue I should follow the decision of the Supreme Court of British Columbia in Re Lyon (1969), 3 R.F.L. 71, 72 W.W.R. 156, 10 D.L.R. (3d) 287, where the Supreme Court of Canada decision in Mckee v Mckee was preferred to the decision of the Privy Council in that case. Moreover, as stated, it was found in Charmasson that at the material time no custody order of a foreign court as to Luc Charmasson was outstanding or pending. 3. The question of comity of nations, as it bears upon the jurisdiction of the courts of Ontario to award custody and determine access rights, with respect to the son is res judicata between the parties. It is also likely that the applicant is estopped because of the extended meaning of res judicata under the doctrine of Henderson v Henderson (1847), 3 Hare 100, 67 E.R. 313 from asserting under the Convention rights of access to the son because the Convention could have been, but was not, argued by the applicant before Loukidelis D.C.J. in March of this year. There is no need for me to decide the latter point as it was not developed in the argument. The question of the applicability of the Convention will be dealt with on its merits. After the completion of the submissions of counsel I endorsed the record as follows: "Application is dismissed. without preJudice to the applicant's right to attempt to have the issue of the Hague Convention added to the grounds of appeal of the decision of the Honourable Judge Loukidelis. Brief reasons to be endorsed hereon in the near future. Party and party costs to the respondent." The reference to the appeal should have reflected my opinion that, in all the circumstances of the litigation between the parties, it would be an abuse of the process of the court for the applicant to appeal this decision without either having abandoned the pending appeal of the above-mentioned decision of Loukidelis D.C.J. or having sought leave to have any appeal from this decision heard together with the appeal from the decision of Loukidelis D.C.J. An additional endorsement has been made to that effect. These reasons, although not endorsed on the record, are the ones promised in that endorsement. I shall say no more on the issues of comity and res judicata, but turn now to the background and reasons with respect to the issue of the applicability of the Convention. The early history of the legal proceedings between the parties with regard to the break-up of their marriage and orders as to custody of the son is outlined in the judgment of Lacourciere J.A. in Charmasson. The history of the bitter battles that later ensued over custody and access was reviewed by Loukidelis D.C.J. in his above-mentioned oral reasons for judgment. It is unnecessary to repeat that history as only certain of its highlights are relevant to the question of the applicability of the Convention. The parties were married in 1969 and their son, Luc, was born in 1974 while both were resident in France. Luc is a citizen of both France and Canada. The marriage was a stormy one and in June 1980 the wife obtained an order of non-reconciliation from a matrimonial affairs court in Marseilles, France, authorizing her to divorce the husband within three months, failing which the husband was allowed a further three-month period in which to take the initiative and divorce the wife. That order became void as a result of an attempt at reconciliation by the parties. In March 1981 the wife left the matrimonial home, taking Luc with her, and set up residence in Brantford. Ontario. On 1st April 1981 she obtained an ex parte order from His Honour Judge Pringle of the District Court for interim custody of Luc. Pringle D.C.J. ordered that notice be served on the husband. On the return of the motion, on 26th May 1981, the husband"s counsel consented to an adjournment and the continuation of the interim custody order. The matter came on in September 1981, in contested proceedings, and Fanjoy Co. Ct. J. declined to assume jurisdiction and ordered that Luc be returned to his father in France. Execution of that order was stayed pending the result of an appeal to the Court of Appeal. The appeal resulted in the decision in Charmasson v Charmasson referred to above. As outlined above, the Court of Appeal found that the courts of Ontario had a discretionary jurisdiction which should be exercised, and noted that when the wife left France there was no valid custody order in effect and there were no custody proceedings pending in France. The Court of Appeal directed that the County Court of the county of Brant assume jurisdiction over the issue of the custody of Luc and that the wife retain interim custody. In accordance with the order of the Court of Appeal the matter came on in April 1982 in the County Court of the county of Brant in contested proceedings before Higgins Co. Ct. J. [27 R.F.L. (2d) 241, [1982] W.D.F.L. 856] who awarded custody to the wife and the husband jointly and ordered that Luc was to spend each academic year residing with his mother in Ontario. and every school summer vacation and every second Christmas vacation with his father. The mother did not comply with that order in a timely way, delaying Luc's departure for France. After Luc's visit to his father in France late in 1982 or early 1983 the father did not return the child to the mother for approximately one year. The mother secured Luc's return to her in Canada only after further legal proceedings in France, and only after the father, subsequent to the decision of the French court, had sought to frustrate the execution of that decision by holding the mother's French lawyer and that lawyer's daughter hostage for some six hours. Before the commencement of the school summer vacation in 1984, the mother obtained, ex parte, an order of the Honourable Judge W. F. Thompson in the County Court of the county of Brant varying the above-mentioned 15th April 1982 order of Higgins Co. Ct. J. by awarding interim sole custody to the mother and by providing that in the interim the father had no rights of access. Thompson Co. Ct. J. also directed that a copy of his order be served upon the Official Guardian so that the latter could attend upon the return of the originating motion and make submissions as to whether he should be appointed to represent the interests of the child. The order of Thompson Co. Ct. J. stated that it was without prejudice to the rights of the respondent father to move to vary it. lt was not the father but the mother who sought a variation in the order of Higgins Co. Ct. J. The mother sought a permanent, as opposed to interim, basis and an order that the father was to have no access rights. The motion came on, after notice to the father, before the Honourable Judge H.D. Logan in the County Court for the county of Simcoe who heard counsel for the applicant and an agent of the Official Guardian. No one appeared for the respondent father although duly served. Logan Co. Ct. J. varied the order of Higgins Co. Ct. J. so as to award sole custody to the mother and so as to provide that the respondent father was to have no rights of access, without prejudice to the right of the father to move to vary Logan Co. Ct. J.'s order as he might be advised. The father commenced proceedings in the District Court of Ontario by notice of motion dated 5th January 1985, seeking an order setting aside the order of Logan Co. Ct. J. and the restoration of the order of Higgins Co. Ct. J. The cross-motion of the mother sought, among other things: (i) A declaration that pursuant to R. 71.05 of the Rules of Civil Procedure the proper place of hearing was the District Court at the city of Barrie in the county of Simcoe, where the child was ordinarily resident: and (ii) Separate representation for the child. The matter came on in the city of Barrie on 27th March 1985, before Loukidelis D.C.J., who made his ruling, with lengthy and careful oral reasons, the following day. Loukidelis D.C.J. rejected the father's contention that he had failed through error to appear in the proceedings before Logan Co. Ct. J., and found that the father had been involved with the Ontario courts before that in connection with questions of custody and access with respect to Luc, specifically when involved in the four-day hearing before Higgins Co. Ct. J. With respect to the proceedings before Logan Co. Ct. J. it was found by Loukidelis D.C.J. that the father had proper notice. Loukidelis D.C.J. also found that the motion coming on before him had not been brought forthwith as required by the rules. Furthermore Loukidelis D.C.J. found that the circumstances had changed considerably since Higgins Co. Ct. J.'s order had been made, in April 1982. Having the benefit of an intervening assessment of the child and hearing the recommendations of the representative of the Official Guardian, as well as hearing submissions from counsel for each parent, Loukidelis D.C.J. found with respect to custody that there had been material changes in circumstances since Higgins Co. Ct. J.'s order, that Logan Co. Ct. J.'s variation order was validly made in a proceeding of which the father had proper notice, and that the circumstances had not changed materially between the making of Logan Co. Ct. J.'s order and the hearing before Loukidelis D.C.J. Accordingly, he did not vary Logan Co. Ct. J.'s variation order in so far as it awarded sole custody to the mother. With respect to access, Loukidelis D.C.J. had the benefit of the assessment and of the representations of the Official Guardian and found that Luc did not wish access visits from or to the father at that time. The learned judge was unwilling to force Luc into access visits against Luc's expressed wishes. In his reasons Loukidelis D.C.J. noted the duty of the mother, as custodial parent, to encourage a climate in which access visits could take place and stated that access by the father would be permitted with the child's consent and under strictly supervised conditions arranged by the Official Guardian's office. The father was also allowed continued access by mail and it was ordered that telephone access be established, to involve telephone contacts between father and son on a monthly basis. Except for the changes with respect to supervised access with the child's consent and provisions for telephone access. Loukidelis D.C.J. refused to vary the order of Logan Co. Ct. J. The respondent wife's application for an order for security for costs was adjourned sine die and could be brought on at a time when a future application to vary is brought before the to be dealt with on such an application. There is nothing in the record, including the lengthy reasons of Loukidelis D.C.J., to suggest that the above-mentioned Convention was pleaded or argued in any of the prior proceedings in Ontario with regard to custody or access with respect to Luc. The father has appealed the order of Loukidelis D.C.J. by an undated notice of appeal served on 24th April 1985 upon the offices of counsel for the respondent mother. The notice of appeal makes no reference to the Convention. At the hearing of this application counsel for the farther indicated that the adjourned request for security for costs might affect the question of whether or not to proceed with that appeal. Counsel for the applicant father indicated, without disagreement from counsel for the respondent, that security for costs was now required to be posted in respect of an application based upon the Convention. Before me, counsel for the applicant father did not state that the appeal had been or would be abandoned, although the subject was raised by counsel for the respondent mother. It was my impression that counsel for the applicant either had no instructions with respect to the abandonment of the appeal or that her instructions were that she was to be non-committal on the subject in the hope that the father would be able to ride both horses, that is, be able to bring an application based on the Convention and involving no security for costs and, if successful, abandon the appeal, but if unsuccessful still have the unabandoned appeal as an available alternative. With that background I turn to the consideration of the Convention. Mr. Mercer of the Ministry of the Attorney general was familiar with aspects of the long struggle between the parties, having been involved earlier both by reason of direct requests of the applicant and by virtue of inquires and submissions made by officials of the Central Authority for France under the Convention. He expressed doubt as to the jurisdiction of the French courts to make the custody and access orders purported have been made by them, but did not press the point as he was of the view that a clearer answer to the issue before me lay elsewhere. It was submitted by Mr. Mercer that the Convention does not speak to a situation in which there is a conflict between orders of courts of two countries or jurisdictions adherent to the Convention where such orders were made in accordance with the laws of the respective countries or jurisdictions. In this regard attention was drawn to art. 16 of the Convention, stating as follows: After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Mr. Mercer submits that under that art. 16 an Ontario court otherwise having jurisdiction is not required by the Convention to deviate from what would have been its procedures in the determination of a custody or access issue, unless it has received notice under the Convention and, within a reasonable time following the notice, an application under the Convention. He further stated that rules under the Convention require the service of documentary evidence as part of an application under art. 16. As the official in charge of the Ministry of the Attorney General, he further advised that no such notice, application or documents were given to or served upon the Ontario courts in question or the Central Authority for Ontario under the Convention before Ontario courts first took jurisdiction or in any of the subsequent proceedings of the Ontario courts where the issue was the variation of custody or access rights theretofore granted with respect to Luc by an Ontario court. It was the submission of Mr. Mercer that by its own terms the Convention was not applicable to affect the jurisdiction of Ontario courts to make orders as to custody and access with regard to Luc Charmasson. There is nothing in the record to suggest that immediately prior to the making of the custody order made by Higgins Co. Ct. J. in Apr 1982, there was outstanding, or pending, a custody order of a French court. In my view the husband could not in good faith have brought such proceedings in France after the December 1981 decision of our Court of Appeal in Charmasson v Charmasson. As noted, that decision not only found Ontario was forum conveniens but also found that the father had attorned to the jurisdiction by entering an unconditional appearance and participating fully before Fanjoy Co. Ct. J. and on the appeal itself. With respect to the Convention I accept the above-mentioned the submissions of Mr. Mercer in their entirety and hold that, even if the Convention had been in force in Ontario at the time of Higgins Co.Ct.J.'s order in April 1983 and even if there had then been standing a custody order of a French court, the Convention would not have been applicable as a constraint upon the court presided over by Higgins Co. Ct. J., neither the notice nor application and supporting documentation were filed as contemplated by art. 16 of the Convention and the related rules under the Convention. The Convention is not applicable firstly because Ontario was not a party or adherent to it until after the decision of Higgins Co. Ct. J., and secondly because requirements of the Convention constituting conditions precedent to its becoming applicable in a particular matter had not been complied with at the material time. In view of the disposition of the father's application. the mother's cross-motion was dismissed without costs. Application dismissed. Counsel: Applicant: Respondent M. Wilson G. A. Timmins