Court: Ontario Provincial Court - Family Division Number: Welland Registry No. 51/83, Ontario Judgments: [1988] O.J. No. 2481 Applicant: Melissa M. Steigerwalt-Gibson1 and Respondent: Michael Ebejer2 Date: 14 Dec 1988 IN THE MATTER OF AN APPLICATION for the Enforcement of Custodial Rights under Section 47 of the CHILDREN'S LAW REFORM ACT, R.S.O. 1980, c. 88 as added to be S.O. 1982, c 20, and amendments thereto AND IN THE MATTER OF the Convention on the Civil Aspects of International Child Abduction. BUDGELL, Provincial Court Judge (Orally): Melissa M. Steigerwalt-Gibson (Gibson) and Michael Ebejer (Ebejer) are the parents of Lukas Michael Steigerwalt (Lukas) who was born on January 28, 1982, in Welland, Ontario. On or bout July 12, 1988, the boy was removed from Savannah, Georgia, in the United States of America where he was living with his mother, and brought to Ontario by his father. On July 29, 1988, Mr. Ebejer filed an application with this court for custody of the boy pursuant to the provisions of the Children's Law Reform Act (the Act). The initial return date was September 28, 1988, but in the interval the Respondent, who was served with the relevant documents by prepaid ordinary mail addressed to her at 20 New Market Drive in Savannah, invoked the provisions of what is commonly referred to as the Hague Convention which is attached as a schedule to Section 47 of the Act. It is common ground that Canada and the United States are signatories to the Convention and that Ontario and Georgia are parties thereto. Pursuant to the Act, the Ministry of the Attorney General is the Central Authority for Ontario and therefore was contacted by appropriate officials in the United States. This Court was then advised, that it should not decide the merits of the custody application unless it was determined, that the Child should not be returned to his mother in Georgia, pursuant to Article 16 of the Convention which provides that: 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 -------------------- 1. Applicant in the trial court. "Applicant" means Applicant under the Hague Convention. 2. Respondent in the trial court. See Note 1. following receipt of the notice. I consider Articles 1, 3, 4, 7, 8, 10, 11, 12, 14, 15, 16, 19, 20, 22, 26 and 30 to have some degree of relevance to this proceeding and they will be referred to as necessary. At the request of counsel, there were adjournments on September 28th, November 2nd and 9th and a hearing date of November 30the was arranged. In my view this constituted basic compliance with Article 11 which contemplates a decision within six weeks time. On the 30th, I was referred to a nine page affidavit filed by the mother, with three exhibits attached, namely: a five page home evaluation report dated July 23, 1987, prepared by the Chatham County Department of Family and Children Services; a two page letter dated September 23, 1988, on the letterhead of the Department of State in Washington, D.C., directed to the Ministry of the Attorney General for Ontario; and a one page letter to counsel for the mother from the Georgia Legal Services Programs dated November 1, 1988. This was the extent of the evidence presented by the mother and I then heard oral evidence from the father and his witness. At the outset I was advised that Ebejer conceded that his removal of the boy was wrongful which, in effect, reduced my role to considering Article 13 of the Convention minus clause (a). After the presentation of evidence and submissions by counsel, I indicated that my decision was to return the child to his mother in Georgia and the order was signed on December 2, 1988. I did so because I was able to make a decision at that time and felt that the parties should be made aware of it as soon as it was made. I indicated, however, my wish to give more detailed oral reasons on December 14, 1988, at 2:30 p.m. because this appeared to be the first decision of its kind to be rendered by a Canadian court. Counsel could refer me to only one other case, a Scottish decision of Lord McCluskey on February 20, 1987, where on a Petition by Vincenzo Viola it was ordered that the child in question be returned to Canada. The factual situation is not significant from my point of view, but it does make reference to and comment on the relevant Articles of the Convention. I now propose to expand on my brief reasons of November 30th last and would first emphasize that my decision is not a decision on the merits of Ebejer's custody application, because Article 16 says it cannot be and because Article 19 provides that: A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. He may very well be taking excellent care of his child but I specifically refrained from making inquires in this regard and from letting that issue influence my decision. I indicate here, however, in hope that it may be of some assistance to counsel, that had I determined the child should not be returned to Georgia it would not necessarily follow that Ebejer should succeed in having the custody issue determined by an Ontario court, as opposed to a court in Georgia. It seems to me that he might very well have some difficulty, having regard to the history of the matter, which will be referred to below, and the provisions of the Act. I do not intend to make detailed reference to specific sections but in my opinion Section 19(b) and (c), Section 20(4) and Sections 22, 23, 25, 41 and 46 all create difficulties on one kind or another for him. It must also be remembered that the Provincial Court is a creature of statute which must find its jurisdiction within the four corners of the Act, and does not have the right to exercise the broad discretion of a superior court to protect children even if inclined to do so. The history of the matter in this court appears to be as follows: 1. The mother and father met in 1981 when she was living in New York State near the Ontario border. They lived together from time to time but separated eventually and she moved from New York to Pennsylvania to New Jersey and then to North Carolina. Lukas was born before she moved away from Ontario and New York. 2. On November 12, 1982, a Pennsylvania Court made a provisional order for maintenance of $100.00 per month for the boy. On April 6, 1983, Ebejer appeared in this Court and upon his admission of paternity the order was confirmed effective April 15, 1983. It should be noted that the reciprocal maintenance legislation does not deal with custody and it is common ground that there has never been an order dealing with custody and access of Lukas. 3. Difficulties were encountered from the outset regarding payment and it seems fair to say that Ebejer was reluctant to pay because he was not able to see his son. Eventually, he came to understand that one pays to maintain rather than see a child, and his record of payment since has generally been satisfactory. 4. In North Carolina in 1985, an application was made for an increase in the support payment and a provisional order was made for $100.00 per week. Difficulties were encountered in effecting service upon Ebejer but eventually it was arranged and the hearing commenced in this Court on August 2, 1985. A number of issues were raised by counsel and pursuant to the provisions of the Reciprocal Enforcement of Maintenance Orders Act, the matter was returned to North Carolina for the applicant to give further evidence, specifically with respect to her ability to contribute, and the needs of the child. She had by this time married a Robert J. Gibson and they were the parents of a little girl. Eventually, the application for an increase in support was unsuccessful, not because Ebejer could not afford to pay more but because the applicant had not made out a case. Therefore, the order continued at $100.00 per month. 5. There was some suggestion at this time that Ebejer was in the process of consenting to Mr. Gibson's adoption of Lukas, and a further suggestion that he was considering bringing his own custody application in North Carolina. Neither matter got very far, the former presumably because Mrs. Gibson and her husband separated. She then moved to Georgia where she has lived with her son since 1986. Mr. Gibson was apparently granted custody of their daughter and this was noted by counsel for Ebejer in the current proceeding. My conclusion, however, based on the home evaluation report is that this was not because of Gibson's inadequacies as a parent. 6. Ebejer did not see his son from 1983 until he took him from Georgia in 1988. It seems to me that one should be careful in giving effect to this rather drastic step. The circumstances which gave rise to the current proceeding have their seed in June of 1988 when Ebejer apparently received telephone calls from both Mr. Gibson and the mother of Gibson, one Janet Steigerwalt. He interpreted what they said to mean that Lukas was no receiving appropriate care from his mother and that he was being abused physically, emotionally and sexually. I do not have any evidence, sworn or otherwise, from either Robert Gibson or Janet Steigerwalt but the affidavit of Gibson, albeit untested, states in paragraph 15 that she had not had any contact with Mr. Gibson for approximately one year. It is also worth nothing that the home evaluation report makes no references to such matters. The affidavit also makes reference to significant difficulties that Gibson had with the mother, and suggest that this might have led the mother to take steps to cast her daughter in a bad light. In any event, Ebejer and his friend, Donald LaPlante (LaPlante), were planning a holiday in Florida and they decided to go by way of Savannah so that Ebejer could see his son. LaPlante stated in his evidence that he made it clear to Ebejer before they left that he wanted no part in taking the [missing text] surveying the situation in Savannah for just [missing text] in advance to contact Gibson, LaPlante made the decision to take the boy and bring him to Ontario. I had an opportunity to observe LaPlante in the witness box and am of the view that he and Ebejer are sincere individuals who acted at all times in what they perceived to be Lukas's best interests and welfare. I find it strange, however, that there would have been any discussion on about taking the boy if Ebejer did not have it on his mind. It is my view that it is logical to conclude that he did, because according to his evidence both Mr. Gibson and Janet Steigerwalt asked him to come to Georgia and take Lukas away. Notwithstanding all of this, it is my conclusion that the decision by LaPlante to take Lukas and leave was a spur of the moment decision based on completely inadequate information and his description of what they saw in Georgia with respect to Lukas falls far, far short from justifying the taking. His description is as follows. The apparent home of Gibson was found but it was clear she had moved and a neighbor indicated a lack of knowledge as to where but indicated that Janet Steigerwalt lived nearby. Janet Steigerwalt's home was located and LaPlante was appalled at its filth. It is clear, however, that Lukas did not live there because Janet Steigerwalt said she had not seen him in two or three months. A phone number was obtained for Gibson but a gentleman advised she was at work and would not be home until about 6:00 p.m. Janet Steigerwalt eventually obtained information that Lukas was at the Y.M.C.A. and this is confirmed in paragraph 24 of the affidavit of the applicant, where she states her son had been attending a summer "Y" camp. Janet Steigerwalt, along with Ebejer and LaPlante, then went to the "Y" and took Lukas. Ebejer's evidence was to the effect that his son, whom he had not seen in five years, rushed to him, threw his arms around him and said, "Take me to Canada." I found this somewhat unusual and it seems to me that LaPlante was likely more accurate when he stated it took some time for Ebejer and his son to hit it off. LaPlante made some inquires of a social worker and of people who knew the family generally. It seems to me that at this point in time LaPlante, who I am satisfied was the decision maker, was prepared to believe th bad-mouthing of Gibson and made the decision to leave and drive almost nonstop to Ontario, eventually arriving in Port Colborne where Ebejer lives. Obviously to me at least this was not the way to do things and I note that LaPlante was aware, when the decision to leave was made, that thee would be at least on and one half hours before the applicant became aware that Lukas was gone. I say this because the decision to leave was made at 4:30 p.m. and he had information that Gibson would not be home from work until approximately 6:00 p.m. I made reference earlier to the concession by Ebejer that his removal of his son from Georgia was wrongful. In my opinion, this was the only logical position to take, since although the mother did not have a custody order, she had taken care of her son since birth and had him i her sole care since at least 1983 as between herself and Ebejer. In addition, the law of Georgia as set out in the letter from the Department of State seems to be that the mother in this case cannot be deprived of custody without Ebejer commencing proceedings there. Article 14 says: In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. My view is that the article permits me to recognize the law of Georgia as I have. It is also my view that there were a number of ways for Ebejer to ensure that his son, whom he had not seen in five years, was properly protected and removed from an inappropriate environment, if indeed he was in one, without taking the drastic step of bringing him all the way to Ontario. By way of example, I note that there are social agencies in Georgia. It seems to me that the activity on July 12, 1988, is exactly what the Convention is designed to discourage and eliminate, and if courts are not prepared in appropriate circumstances to give effect to it, then there is no real purpose in the Convention. Common sense would also, in my opinion, rule out the steps taken by Ebejer and Laplante. Indeed, Ebejer stated that when he saw the conditions in Georgia, his emotions ran wild and he left for Canada with the boy. The fact of the matter, however, is that the boy was taken from the Y.M.C.A. in Georgia and neither Ebejer nor LaPlante saw his home, nor did they make any contact with his mother. Instead, relying on very general statements from people they did not know they in effect kidnapped Lukas from his mother and his home. Ebejer stated in evidence that Lukas is destructive, aggressive and has an inappropriate knowledge of drugs and sexual matters. It si far from clear that this is so, but the home evaluation report indicates that Lukas may have special needs without suggesting that his mother has caused those special needs, or does not attempt to meet them. Indeed, the contrary would seem to be true in the mind of Helen Washington who prepared the report. The Convention at the outset states that the interests of children are of paramount importance, and that all children are to be protected from their wrongful removal or retention, and establishes procedures to have them returned to their habitual residence, which in this case is Georgia. Article 1 makes it clear that Ontario should respect the law of Georgia. It is not necessary to consider Article 3 in detail because of the admission that he removal from Georgia was wrongful, and because the decision is not going to be permitted for reasons stated. Article 7, and Article 10 to some extent regarding voluntary return, refers to co-operation amongst Central Authorities. In my opinion this is not significant once the issue is raised in a courtroom. In other words, if co-operative efforts are not successful outside the courtroom, the court can only make a decision based on legal principles as opposed to expectations of co-operation. In this case, the child removed from Georgia was located in Ontario and the central authority has assisted the mother in placing her position in front of the court, pursuant to the provisions of Article 8. Article 12 would seem to make it mandatory for this court to return the child to Georgia because less than one year has elapsed form the removal to the date of commencement of the proceedings. Article 13, hover, make it in appropriate to do so without giving the remover the opportunity to have a day in court. The provisions of Article 15 were complied with, although unnecessary in the final analysis because of the admission of wrongful removal. Article 20 would not seem to be relevant with respect to proceedings involving Canada and the United States, even if the child was found to be living in Georgia in the circumstances alleged by Ebejer. It says: The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. The general provisions of the Convention have to do with costs and expense, and I am prepared after I complete my reasons to entertain any submissions which counsel may make in this regard. To go back then, my decision to return the child is based on what I have said above and on my view that the grave risk referred to in Article 13(b) is not present. It says: Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-- (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is my conclusion that to make such a determination based on the factual situation upon which Ebejer and LaPlante acted would be dangerous in the extreme. I say this even tough "grave" means something of quite severe and threatening nature. My conclusion is that the situation referred to in Article 13(b) does not exist here, even allowing for the fact that Gibson's affidavit has not been tested, and realizing that affidavits are sometimes tailored to the particular interests of the make. Article 13 goes on to say that: The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Ebejer says that his son wishes to stay in Canada but I note that the boy is not yet seven. I did not feel it appropriate for me to interview the boy, nor did I ask the office of the Official Guardian to interview him and represent him because I am not dealing at this point with the merits of a custody application. The Article finally refers to information about the social background of the child. All I have in this regard is what is in the affidavit marked Exhibit One, and there is little or nothing in the home evaluation report to support the contention of Ebejer. I have previously commented on the evidence of Ebejer and LaPlante, and all of this led me to conclude that the child should be returned to Georgia. After hearing submission for counsel, I am of the view that in this factual situation there should be an award of costs in favour of the applicant. I make the award because it is clear that the respondent Ebejer acted very much inappropriately in removing the child from Georgia, and he and LaPlante knew they were on very shaky ground in doing so. I have already indicated that in my opinion they did not act maliciously but it seems to me they should have known there were more appropriate ways to deal with the situation. A hearing has been held and counsel for Gibson had to prepare for it, and Gibson herself incurred significant expense, I am told, for long distance telephone calls. Her counsel conceded however, properly in my view, that $500.00 or phone calls might be considered excessive. I suppose one could infer from the Convention (Article 26) that the public purse should be responsible for legal costs but I do not interpret that as going beyond the initial outlay to get matters started and certainly not in such a way as to preclude reimbursement from an unsuccessful party. In any event, having been advised of my intention to award costs, counsel agreed they should be fixed as opposed to having them taxed. I have no quarrel with Mr. Quinn's submission that the award for his legal fees should be $500.00 and the total award will be $850.00, including disbursements. Budgell, Provincial Court Judge. Counsel: Applicant: Respondent: Joseph W. Quinn Barbara Thurston