Hawke and Gamble (Canada 1998) New Westminster, B.C. Registry: E 004559, 28 Sep 1998 25 International Abduction [CDN 1998] =========================================================== Date: 28 Sep 1998 Docket: E004559 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ROBERT ALLEN HAWKE, PETITIONER AND: NINA JO GAMBLE, RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR., JUSTICE R.A. McKINNON Counsel for the Petitioner: W. R. Storey Counsel for the Respondent: J.L. Pratt Place and Date of Hearing: New Westminster, B.C. September 1, 1998 [1] Mr. Hawke alleges that the respondent has unlawfully removed their two children to British Columbia from the State of Texas in the United States of America. He alleges that Texas is their home jurisdiction and invokes s. 55 of the Family Relations Act, R.S.B.C. 1996, C. 128 and Articles 3, 4, 5, 12, 16 and 26 of The Hague Convention on the Civil Aspects of International Child Abduction. He seeks an order that the children, forthwith be returned to Texas. [2] The respondent denies those allegations, claiming that she had the right to remove the children to British Columbia. She submits that the children are presently "habitually" resident in this Province. Alternately she relies upon s. 13 of the Convention arguing that returning the children to the petitioner in Texas would expose them to "grave risk of harm." STATUTE AND CONVENTION [3] Section 55 of the Family Relations Act states: 55. (1) In this section, "convention" means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980. (2) Subject to subsection (4), the provisions of the convention have the force of law in British Columbia. (3) The Attorney General is the Central Authority for British Columbia for the purpose of the convention. (4) The government is not bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings in relation to applications submitted under the convention, except to the extent that the costs are covered under British Columbia's system of legal aid and advice. (5) Subsections (1) to (4) and the convention apply in respect of a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state but do not apply in respect of a child described in subsection (6). (6) Part 3 applies in respect of (a) a child who is in Canada and who, immediately before a breach of custody or access rights, was habitually resident in Canada, (b) a child who, immediately before a breach of custody or access rights, was habitually resident in a state other than a contracting state, (c) a child who, immediately before a breach of custody or access rights, was resident, but not habitually resident, in a contracting state, and (d) any other child affected by an extraprovincial order, other than a child in respect of whom subsections (1) to (4) and the convention apply. (7) The Attorney. General must publish, in Part II of the Gazette, a copy of the convention and the day on which the convention extends to British Columbia. [4] Articles 3, 4, 5, 12 16 and 26 of The Hague Convention state: Article 3 The removal or the retention of a child is to be considered wrongful where-- (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention-- (a) "right of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (b) "rights of access" shall include the right to take a chi1d for a limited period of time to a place other than the child's habitual residence. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed ~from the date of the wrongful removal or retention, the authority concerned shall order the return ~f the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 16. 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. Article 26 Each Central Authority shall bear its own costs in applying this Convention. Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child. However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice. Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise or rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. ISSUES [5] The competing claims of the parties raise the following issues: 1. Which parent actually had custody at the time the children were removed to Canada? 2. Were the children wrongfully removed or retained? 3. Are the children habitually resident in Canada or Texas? 4. Is there a grave risk that the children would be exposed to physical or psychological harm or be otherwise placed in an intolerable situation if returned to their father in Texas? 5. Have the children reached an age and degree of maturity such that it is appropriate to take account of their views? [6] Since a decree of divorce was pronounced by a Texas Court on April 8, 1994 there have been many court applications and orders in both Texas and British Columbia. Each side interprets these applications and decisions in a manner favourable to the individual position taken. Many affidavits were filed. Texas counsel provided differing opinions respecting Texas law. [7] Upon the conclusion of the hearing I indicated that, notwithstanding the desirability to quickly resolve the issue in order that the children be accommodated early in the school year, I had to have time to read each court decision and determine its import and to ascertain what facts I could winnow from the many competing affidavits. Having now done so, I propose to set out my findings respecting these issues. THE LEGAL TRAIL [8] A final decree of divorce was pronounced in Hidalgo County on April 8, 1994. There is no issue that the parties were then both resident in Texas. It was a term of that decree that Mrs. Gamble was awarded sole custody (called sole managing conservator under Texas law) based on the recommendations of a 1993 custody evaluator's report. Mr. Hawke was appointed "possessory conservator" (which entitles him to certain rights, including access rights). Each party was required to provide written notice of change of address on or before the 30th day before the change of residence, or, if not possible, on or before the 5th day after the date the party knew or should have known of the change. [9] In mid-April 1994, Mrs. Gamble moved to British Columbia with the children, and claims to have given the required notice. Mr. Hawke says he was never advised and for a long period did not know where the children were. [10] Mrs. Gamble applied for interim custody in British Columbia. On September 8, 1994, Errico J. of the British Columbia supreme Court made an ex parte order as follows: This Court orders that the Plaintiff, Nina Jo Gamble, shall have interim custody. . . This Court further orders that the defendant, Robert Allen Hawke, is not to have access to the children.... [11] Consequent upon this order, Mrs. Gamble refused to allow Mr. Hawke access to the children. Mr. Hawke then applied to the Texas Courts to enforce access. On November 10, 1994, on motion by Mr. Hawke, the Texas Court in Hidalgo County removed custody from Mrs. gamble and granted it to Mr. Hawke on an interim basis. The order states: It is ordered that Nina Jo Gamble, (formerly Hawke), is removed as the managing conservator of the children..., and that Robert Allen Hawke is appointed Temporary Sole Managing Conservator and Nina Jo Gamble is appointed Temporary Possessor Conservator of the children, and that all prior orders for the support of such children are superseded by this order. [12] On April 19, 1995, Mr. Hawke applied before Errico J. to set aside the ex parte order granted on September 8, 1994 and enforce the terms of the November 10th Texas order. Judgment was reserved. On August 2, 1995, Errico 3. rendered judgment which, among other things, commented as follows: I found that on the affidavits and other material filed the children were habitually resident in British Columbia by reason they resided in British Columbia with the parent having custody under a court order. I also found on the balance of probabilities the children would also suffer serious harm if the children were removed from the province. This finding was based on evidence of the father's abuse and mental instability. . . . The mother has filed a considerable body of evidence both in support of the original application and for this application that supports those allegations. There is evidence in the form of affidavits of others that the mother, police, and hospital reports indicating the father's attempts at suicide, his possession of firearms and there is a social evaluation prepared by an officer of the Texas Court on October 18, 1993. That report follows an interview with the children with the mother and father [sic] and concludes that the mother should be appointed managing conservator of the children and that the father be appointed possessory conservator with reasonable visitation rights. During the course of the officer's interview with the father he admitted some abuse and that he had trouble resolving differences by talking over marital problems with the mother. He also admitted a suicide attempt after the mother had left him. [13] Errico J. went on to conclude that as the evidence for a custody hearing existed largely in Texas, it was appropriate for the British Columbia Court to decline jurisdiction pursuant to s. 40.2 of the Family Relations Act (as it then was). However, he expressed serious reservations about the prohibition in the Texas Family Code statute precluding the courts there from hearing all of this evidence of instability. Texas law apparently precludes either party raising pre-divorce decree conduct in post-decree proceedings. In this respect Errico J. commented: "To simply order that the Texas order be enforced in British Columbia without the opportunity for there to be a trial of the issues of the suitability of the father for either custody or access would not be in the best interests of these children." [14] Errico J. then provided the following order: This Court Orders that the ex parte order which was pronounced by the Honourable Mr. Justice Errico in connection with this proceeding on September 8, 1994 is hereby set aside. This Court Further Orders that the Orders which were pronounced by the Honourable Judge Mancias in the 93rd District Court of Hidalgo County, Texas on April 8, 1994 and August 31, 1994 pursuant to which the Defendant [Hawke] was granted possessory conservatorship of the infant children of the marriage. . . shall be enforced and that the Plaintiff [Gamble] shall deliver the aforesaid children to the Defendant... This Court Further Orders that, in order that the Plaintiff may have an opportunity to have the issues of custody of and access to the aforesaid children fully dealt with by the Court in Texas prior to the delivery of the said children to the Defendant, the foregoing provisions of this Order shall not come into effect until the expiry of a period of ten months after the date of the entry of this Order.... [15] On June 6, 1996, the British Columbia Court of Appeal dismissed Mrs. Gamble's appeal from the decision by Errico J. that the Texas Court was the forum conveniens. [16] On July 2, 1996, Mrs. Gamble returned the children to Texas and proceeded to file motions there for a transfer of jurisdiction over the file to British Columbia. [17] On September 3-4, 1996, Hidalgo County Court ordered that jurisdiction be transferred to British Columbia. [18] On September 10, 1996 that Court provided an amendment to its earlier order as follows: On the 3rd day of September, 1996, this court heard and considered Nina Jo Hawke, A.K.A. Nina Jo Gamble, Movants motion to transfer continuing exclusive jurisdiction in suit affecting parent/child relationship. This court hereby transfers the continuing exclusive jurisdiction in the suit affecting the parent/child relationship of the above named children from Hidalgo County, Texas to British Columbia, Canada. [19] On September 10, 1996 Mrs. Gamble filed a motion requesting the British Columbia Supreme Court take jurisdiction and give her custody with restricted supervised access to Mr. Hawke. This motion was adjourned by Hogarth J. pending appeal by Mr. Hawke of the September 10, 1996 Texas order, transferring jurisdiction to British Columbia. [20] On October 4, 1996 the 93rd Judicial District Court in Hidalgo County, Texas re-considered the transfer of jurisdiction to British Columbia. Prior to reviewing the jurisdictional issue, the Court confirmed the custodial arrangements. The Court stated: The court finds that its order of November 10, 1994 [granting Mr. Hawke custody] fully determined the matters of custody and support and purports to be a final adjudication of all matters in controversy and contains no provision for any further hearings on conservatorship or anything else. The court further finds that there is nothing in the order which appears to contemplate that at a later date the court will issue a conservatorship order which is final, or is not labeled temporary, nor is there any provision that a hearing will be held for such purpose. The court further finds that the order contains no hint of any limitation on the duration of its temporary conservatorship; no specified time is stated, nor is the duration related to any external condition, such as completion of investigation, release from a hospital, or the like. It is therefore ordered that Nina Jo Gamble is removed as managing conservator of the children. . .and that Robert Allen Hawke is appointed sole managing conservator and Nina Jo Gamble is appointed sole possessory conservator of the children, and that all prior orders for the support of such children are superseded by this order. [21] On a motion to re-consider the earlier order transferring jurisdiction, the same Court (93rd Judicial District) concluded that jurisdiction would be transferred to British Columbia. The order stated: On this the 15th day of October, 1996, this court considered Movants motion for rehearing or new trial on the September 5th, 1996, order to transfer jurisdiction. Accordingly, the court hereby orders Movants request for a new trial and/or rehearing is denied. This court declines to exercise jurisdiction over the suit affecting parent/child relationship concerning the above-named parties. [22] At this juncture there was an apparent vacuum respecting jurisdiction. Hidalgo County had declined jurisdiction in favour of British Columbia but the British Columbia Supreme Court had earlier determined that Texas was the proper forum. Mr. Hawke decided to resolve this by applying to the 105th Judicial District in Nueces County Texas. That court determined that it could take jurisdiction and issued the following restraining order: . . . Respondent [Mrs. Gamble] is hereby immediately restrained, from: Pursuing custody litigation outside the jurisdiction as venue is proper in Nueces County, Texas. Texas would be the home state, but for Respondent's wrongful retention of the children; United States is the Country of habitual residence of the children. [23] An application was then brought by Mrs. Gamble before Preston J. of the British Columbia Supreme Court on October 31, 1996. She sought variation of Errico J.'s earlier order and an order for interim custody. [24] Preston J. commented in his judgment about the "long and convoluted proceedings" that "brought no credit whatsoever to the parties." He particularly concluded that Mr. Hawke had misled the Nueces court by failing to apprise them of the true state of affairs, that is, that although there -may have temporarily been a vacuum in jurisdiction, there was no suggestion whatever that the British Columbia Courts would decline jurisdiction in the face of the invitation by Hidalgo County to re-acquire it. He then made an order vesting this court with jurisdiction and granted Mrs. Gamble interim custody. [25] The interim order was conditional upon setting aside the Nueces Court order which, it was no doubt assumed, would be done, once that court was fully apprised of events. [26] On December 5, 1996, the court in Nueces County determined that the custody order of November 10, 1994 was a "final order" and continued to enjoin Mrs. Gamble from filing applications regarding the children anywhere but in Nueces County. It reaffirmed its earlier determination that notwithstanding knowledge that British Columbia had taken jurisdiction, Texas was the proper forum. A final hearing to determine custody was set for June 9, 1997. [27] Mrs. Gamble was persuaded (she says for tactical reasons) to attorn to the Nueces County jurisdiction. On December 2nd, 1996, she signed an affidavit swearing that she would not pursue litigation in any other jurisdiction until this matter was resolved. According to affidavit evidence filed in the case at bar, she did so on the understanding that the Nueces Court could not possibly conclude ,that it had jurisdiction and further, that any final order made against her would be corrected on appeal. She also claims that if she did not do this, she would be denied access to the children. [28] According to Mrs. Gamble, it was for this reason she consented to a discontinuance of her Family Relations Act applications in British Columbia (see consent order of Singh J. December 20, 1996). Following that dismissal a consent order was granted by the District Court in Nueces County on December 26, 1996. Mr. Hawke was given custody with access to Mrs. Gamble. Both were enjoined from removing the children from Texas. A final hearing was set for June 9, 1997. [29] Subsequent applications for appellate relief were denied at two appeal levels simply because the matter remained interlocutory and not final. The appeal courts took the position that they could not adjudicate until a final order was made by the Nueces District Court. [30] In April, 1997 a custody report prepared for the Nueces Court recommended that custody be granted to Mr. Hawke. Mrs. Gamble then withdrew her application for custody. On May 28, Mrs. Gamble challenged the jurisdiction of Nueces County but, the Nueces Court concluded it had jurisdiction. Mrs. Gamble's applications for appellate relief and particularly to restrain the Nueces Court from further proceedings were subsequently dismissed (she claims for procedural reasons previously referred to). On June 6, 1997 she removed the children to British Columbia and obtained an order from Preston J. on June 11th, 1997 for interim custody with no access to Mr. Hawke. This petition was then issued June 18, 1997. THE HAGUE CONVENTION [31] Article 3 of The Hague Convention (above) provides: The removal or retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. [32] Article 5 then provides that "right of custody" includes the right to determine the child's place of residence. [33] Three conditions must be satisfied for a return of the children under the Hague Convention. 1. the applicant must have custody rights to the child; 2. the child must have been /wrongfully removed or retained; and 3. the child must have been habitually resident in a contracting state immediately before any breach of custody or access rights. THE LAW RESPECTING CUSTODY [34] In Thomson v. Thomson (1994), 119 D.L.R. (4th) 253 (S.C.C.), the parents and child lived in Scotland. Following the breakdown of the marriage, the mother obtained interim custody in Scotland. The interim order restrained her from removing the child from the country. The mother took the child to Canada without the father's consent. She later applied for custody in Manitoba. The father obtained a "chasing order" for custody in Scotland and brought an application under The Hague Convention to enforce his rights. The court held that the child had been wrongfully removed. [35] La Forest J. stated that custody is a broad term that covers many situations where a person lawfully has the care and control of the child. He referred to the Dyer Report, preliminary document prepared on international child abduction by one parent. That report stated five types of situations constituting "child abduction" where the custodial parent is deprived of his or her right of custody. For purposes of this petition, these include situations where: 1. The child was abducted by a parent from the judicially determined custodian in one country and removed to another, where no conflicting custody decision has been handed down. 2. The child was retained by the non-custodial parent or other relatives beyond a legal visitation period, in a country other than that in which the child habitually resided. 3. The child was abducted by a parent from the legal custodian in one country and removed to another, where the abductor has been granted custody under a conflicting order in that other country or a third country. At p. 275 La Forest J. states: From the emphasis placed in the Convention and the preparatory work on the enforcement of custody, as distinguished from mere access, the proper view would appear to be that the mandatory return dictated by the Convention is limited to cases where the removal is in violation of the custody rights of a person, institution or other body. [36] In determining which parent has custody, the courts look at a variety of factors, including the jurisdiction where the divorce and other custody proceedings are occurring; the rights of a custodial parent in the appropriate jurisdiction; whether the abductor parent has made any undertakings in the jurisdiction purporting to make a custody order; and whether or not a parent has attorned to that jurisdiction. [37] In W.(V.) v. S.(D.) (1996), 134 D.L.R. (4th) 481 (S.C.C.) L'Heureux-Dube J. comments on the definition of custody provided in The Hague Convention. At p. 496 she stated: However, although the Convention adopts an original definition of "rights of custody", the question of who holds the "rights relating to the care of the person of the child" or the "right to determine the child's place of residence" within the meaning of the Convention is in principle determined in accordance with the law of the state of the child's habitual place of residence. [38] In Z.(D.) v. Z.(J.) (1994), 99 B.C.L.R. (2d) 287 (B.C.S.C.), the child was resident in Germany where his mother had custody. Following an access visit, the father refused to return the child to his mother on the basis of sexual abuse allegations. The father traveled with the child to British Columbia and obtained interim custody through an ex parte order. Cooper J. held that the child had been wrongfully removed and that there was no evidence of grave risk preventing the child's return. In making that finding, Cooper J. held that the father had attorned to the jurisdiction of the German court when he exercised his right of access under the terms of the court's order. Therefore, he wrongfully retained the child when he refused to return the child after the access visit. [39] In B. V. B., [1993] 2 All E.R. 144 (C.A.), the mother removed her child from Canada to England, after she had given an undertaking to the Canadian court not to remove the child from the jurisdiction without court order. The English Court of Appeal held that the removal of the child was unlawful because "the removal by the mother had been done precipitately at the very time when the child's future care was already under consideration by the Canadian court which itself had right of custody at the time". The court found that the Canadian court (Ontario) was seized of the matter in the context of the divorce proceedings, and as such the child had been wrongfully removed from its habitual residence. [40] In Zimmerman v. Zimmerman, [1992] B.C.J. No. 1983 (B.C.S.CJ, the father consented in writing that the child could move to Germany with the mother. He later made an application under the Hague Convention for return of the child, claiming he was pressured into signing the consent. Cooper J. concluded that the consent was freely given, though reluctantly. He stated: In summary, I find that the husband, while he may have been entitled to exercise custody of Jarid, within the meaning of s.34(1) (b) of the Family Relations Act, intentionally and freely varied that right on entering into the agreement in writing on April 7, 1992. I find no evidence of duress, in the sense that he acted under compulsion through fear of personal suffering or any injury, actual or threatened. CONCLUSION RESPECTING CUSTODY [41] My review of the many court orders leads me to conclude that as of June 6, 1997, when the children were removed from Texas, the only outstanding custody order was the order from Hidalgo County made October 15, 1996 confirming that Mr. Hawke had sole custody. That order was confirmed by the Nueces County Court on December 26, 1996. This latter order specifically prohibited either party from removing the children from the jurisdiction pending further order of the court. [42] There is no dispute that according to s. 153.132 of the Texas Family Code, a "sole managing conservator" (custodial parent) has the right to establish the primary residence of children. [43] Although Mrs. Gamble had successfully transferred jurisdiction to British Columbia in October, 1996, and had obtained an order for interim custody subject to the removal of the Nueces County restraining order, she voluntarily discontinued her British Columbia proceedings on December 20, 1996. I am unable to conclude, as alleged by Mrs. Gamble's counsel, that her discontinuance was anything other than voluntary. [44] On December 2, 1996, Ms. Gamble provided an undertaking to the Nueces Court that she would not commence or continue any litigation in any other jurisdiction while the custody application was pending in that court. This undertaking was contained in an affidavit to the court and when I consider that, together with her discontinuance in British Columbia, I conclude that she attorned to the jurisdiction of the Texas court and that she was bound by the October 15, 1996 custody order. In addition, though she pursued her custody application in the Texas Courts for a time, she withdrew it in April, 1997. At the time she removed the children to British Columbia, she was exercising her access rights under the terms of the custody order of October, 1996 (confirmed in December, 1996). [45] Thus I have concluded that as of June 6, 1997, the only valid, enforceable custody order named Mr. Hawke as sole managing conservator of the children. Although it appears there may be some inter-Texas jurisdictional wrangling, which is best left to the Texas Courts to sort out, the fact remains that the Nueces District Court merely confirmed the initial grant of custody given Mr. Hawke by the Hidalgo Court. I note as well that although Mrs. Gamble attempted to have the Nueces decision overturned at the appellate level, the appeal courts declined to hear the substantive issue. They concluded that the trial court had to first make a final order before they could acquire jurisdiction. THE WRONGFUL REMOVAL ISSUE -- THE LAW [46] In Thomson (above) La Forest J. spends a considerable amount of time discussing the concept of "wrongful removal" in the context of non-removal clauses inserted into interim custody orders. In that case, the parent with interim custody removed the child from the country, contrary to the non-removal order, raising questions of whether the Convention protects rights of access. At p. 280 he states: Under Canadian law, a non-removal clause may be placed in an interim order of custody to preserve the court's jurisdiction to make a final determination of custody. It seems to me that when a court is vested with jurisdiction to determine who shall have custody of a child, it is while in the course of exercising that jurisdiction, exercising rights of custody within the broad meaning of the term contemplated by the Convention. In the words of art. 3(b), "at the time of the removal or retention those rights were, actually exercised either jointly or alone, or would have been so exercised but for the removal or retention." [emphasis added in original] [47] La Forest J. held that the mother's removal of the child constituted a breach of the custody rights of the foreign courts. CONCLUSION RESPECTING WRONGFUL REMOVAL [48] I accept that the only outstanding order for custody at the time the children were removed to British Columbia (on the last occasion) was from Hidalgo County, issued October, 1996. This was subsequently confirmed by the Nueces County Court in December, 1996 when Mr. Hawke was named sole managing conservator. Under the Texas Family Code, the sole managing conservator has the exclusive right to determine the residence of the children. Further, under the terms of the Nueces County order, both parties were enjoined from removing the children from the jurisdiction. [49] I hold that when Mrs. Gamble removed the children from Texas, she was breaching Mr. Hawke's rights to determine the residence of the children and further she was breaching the non-removal clause. Thus her removal of the children was wrongful because it breached the custody rights vested in the Nueces County Court, see Thomson (above). WHERE WAS THE HABITUAL RESIDENCE OF THE CHILDREN AT THE RELEVANT TIME? [50] The Convention contains no definition of "habitual residence". However, that definition must be interpreted in light of the definition of "habitually resident" in s. 44(2) and (3) of the Family Relations Act. It states: (2) A child is habitually resident in the place where the child resided (a) with both parents, (b) if the parents are living separate and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order. whichever last occurred. (3) The removal or withholding of a child without the consent of the person who has custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. [51] In his case comment on Thomson (above), J.G. McLeod notes that habitual residence has been interpreted in the cases to mean the child's usual home or wherever the child's life is centered. At p. 407 he notes: In most, if not all cases, this place will be where the child lived with his or her parents in a family setting before the breakdown of the marriage. One parent cannot unilaterally change the child's habitual residence by surreptitiously relocating the child. Some authority exists that the parent who had custody of a child could change the child's residence as an incident of custody. In Carter v. Brooks [Cites omitted], the Ontario Court of Appeal removed any uncertainty about the point that may have existed. It held that the custodial parent did not have a right to change unilaterally the child's residence. The child's residence was too important a factor for one parent to have control over it. Change in residence required parental agreement or a court order. [52] In her article Hague International Child Abduction Convention: A Progress Report (1994), 57 (3) Law and Contemporary Problems 210, L. Silberman notes that the question of what constitutes a child's habitual residence is a question of pure fact which differs from the question of domicile. Silberman also states that the existence of a custody order does not determine habitual residence. At p. 231 she writes that when a parent takes a child from one state to another, there is no requirement of return if the new-state qualifies as that of habitual residence. [53] In Hoskins V. Boyd, [1996] B.C.J. No. 1865 (B.C.S.C.), affirmed [1997] B.C.J. 958 (B.C.C.A.), the child was born in Canada to a Canadian mother and American father. The mother and child returned to the father's home in Oregon. While in Oregon, the father obtained interim custody, while the mother was granted supervised access. During a supervised visit, the mother removed the child to Canada. The issue before Sigurdson J. was whether the child was habitually resident in Oregon at the time of his removal to British Columbia. [54] Sigurdson J. referred to the case of Spini v. Spini, [1994] N.B.J. No. 567 (N.B.Q.B.) in which the New Brunswick Court of Queen's Bench followed the definition of "habitual residence" set out by Lord Justice Balcombe in Re: N. (Child Abduction: Habitual Residence), [1993], 2 F.L.R. 124 (C.A.). At p. 129 his Lordship said: I now refer to the decision of the House of Lords in the well-known case of Re J. [1990] 2 A.C. 562, sub nom. C. V. S. A Minor) (Abduction), [1990] 2 F.L.R. 442 and- in particular to the speech of Lord Brandon of Oakbrook at pp. 578F and 454B respectively. He says: The first point is that the expression "habitually resident' as used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of a particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming a resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country B. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, this situation with regard to habitual resident will necessarily be the same as hers. [55] Upon consideration of this definition, Sigurdson J. held that to the extent that the habitual residence of the child corresponded to the habitual residence of the mother in that case, the question that had to be answered was whether the mother either had a settled intention to reside in Oregon, or had resided in Oregon with a sufficient degree of continuity to be properly described as settled. He reviewed the circumstances, including the fact that the child had been in the United States for approximately one third of his life; that the mother had relocated to Oregon; that the mother was employed in Oregon; and that the mother had taken steps to satisfy United States immigration requirements. He then decided that the child had been habitually resident in Oregon, and therefore, the removal of the child from Oregon was wrongful. [56] In Re: Kinnersley-Turner and Kinnersley-Turner (1996), 140 D.L.R. (4th) 678 (Ont. C.A.), the mother obtained custody in England after divorce. She obtained a consent order to move the child permanently to Canada and moved in 1989. She then returned to England several times with the stated intention of living there but each time came back to Canada. On an occasion when she "resided" in England, the father brought custody proceeding there. The mother thereupon moved to Canada with the child without notice to the father or the English courts. [57] The Ontario Court of Appeal affirmed a trial court decision that she had wrongfully removed the child from her habitual residence and ordered a return to England. In determining that the child was habitually resident in England, Osborne J.A. looked at factors such as: the mother had bought a one-way air ticket back to England; she had enrolled the child in school; and she had arranged for accommodation. He concluded: Although the appellant seems to have moved about with some frequency after her return to England, Alaana clearly resided in England from September, 1995 to January, 1996. The duration of her residence was sufficient to render it habitual. [58] Counsel for the mother cited Nielsen v. Nielsen (1971), 1 OR. 541 (Ont. H.C.) for the proposition that the term "ordinarily resident" has been defined as that place where the child last resided with his or her parents. The court there was concerned with an issue of jurisdiction for purposes of hearing a custody application. I do not accept that it can have any application to a consideration of articles under The Hague Convention, which was proclaimed some ten years after Nielsen. CONCLUSION RESPECTING HABITUAL RESIDENCE [59] I find that the children were habitually resident in Texas with their parents until the divorce and before Mrs. Gamble's move to Prince Rupert. At the time that Mrs. Gamble first moved with the children to Canada, she was the custodial parent (managing conservator) and had the right to determine their residence. Given her intentions at the time, it could be argued that the children's status changed between 1994 and 1996 to "habitually resident in Canada." However, an important qualification to this position is Mr. Hawke's allegation that he seriously objected to the move and was never given the requisite notice under Texas law. The only evidence before me is that Mrs. Gamble deposes that she notified the Texas Court. [60] The children's residence between 1994 and 1996, however, is not the issue. I am satisfied that whatever might be said about their residential status then, it was changed when they returned to Texas pursuant to a valid, court order in August, 1996. They remained in their "home" state until removed to Canada by Mrs. Gamble in July 1997. [61] I conclude, on the strength of Kinnersley-Turner (above), that the children's Texas residency between August, 1996 and July, 1997 is sufficient to declare them "habitually" resident in Texas. Mrs. Gamble's assertion that they are "habitually" resident in Canada given the time they have resided here since July, 1997 is defeated both by s. 44(3) of the Family Relations Act and the case law cited. IS THERE A GRAVE RISE THE CHILDREN WILL BE EXPOSED TO PHYSICAL OR PSYCHOLOGICAL HARM? [62] The Convention provides that, notwithstanding any finding a child must be returned to a home state, if there is grave risk of harm, then no such order should be made. Article 13 states: 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-- (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (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. [63] The phrase "grave risk" was considered by La Forest J. in Thomson (above). In that case, he emphasized that the test for "grave risk" is NOT the best interest of the child test. Rather, the function of the court is to determine whether or not the Convention applies and, if so, whether the case falls into any of the exceptions listed. At p. 286, paragraph (e) he stated: In brief, although the word "grave" modifies "risk" and not "harm", this must be read.4n conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of art. 13(b) is harm to a degree that also amounts to an intolerable situation. [64] He then went on to approve the approach taken by Nourse L.J. in Re: A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.). In Re: A., Nourse L.J. states: . . . the risk has to be more than an ordinary risk, or something greater that would normally be expected on taking a child away from one parent and passing him to another. I agree. . .that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words "or otherwise place the child in an intolerable situation". [65] La Forest 3. noted that it is only in the rarest of cases that the effects of "settling in" to the abductor's environment (and the psychological effect of being separated from the abductor) would constitute the level of harm contemplated by the Convention. [66] In her article, (above), Silberman refers to the Australian case of Gsponer v. Johnstone 12 Fam. L. Rep. 755, 766 (Austl. Fam. Ct. Melbourne, December 23, 1988). In that case, the court considered the question of "grave risk" versus "best interests of the child". The court states: There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child's welfare. Indeed, the entry by Australia into the Convention with other countries may justify the assumption that the Australian government is satisfied to that effect. Thus, allegations about inappropriate conduct on the part of the parent in the requesting state are irrelevant. CONCLUSION RESPECTING GRAVE RISK [67] There is conflicting evidence as to the nature and degree of harm these children would face if returned to Texas. Mrs. Gamble refers to: 1. A police report detailing spousal assault in 1988; 2. A restraining order obtained against Mr. Hawke in 1988; 3. A police report detailing a suicide attempt by Mr. Hawke; 4. A police report detailing Mr. Hawke's evasion of visiting rights; 5. Letters from the children's doctor in British Columbia; 6. The 1993 custody evaluator's report recommending custody to Mrs. Gamble; 7. Affidavits from Mrs. Gamble, her husband, her mother-in-law and her mother setting out various conversations with Mr. Hawke, threats made by him and living conditions in Texas; 8. The judgment of Errico J. of August 1, 1995 concluding the children would suffer serious harm based on the evidence of the father's abuse and mental instability. 9. Report of a Texas Behavioral Consultant. [68] Mrs. Gamble (and her Texas attorney) also allege that risk will occur because Texas law precludes her from adducing evidence of (mis)conduct by Mr. Hawke that occurred prior to the divorce decree. This concern was also expressed by Errico J. [69] Mr. Hawke provided a 1997 report and recommendations of a custody evaluator, familiar with all the pre-divorce matters, that concluded Mrs. Gamble's concerns were unfounded. That report recommended custody to Mr. Hawke. He also provided affidavit evidence in support of his character. [70] Much of the material presented by Mrs. Gamble on this issue goes primarily to the "best interests" of the children, a consideration I am not entitled to assess under a Hague Convention application. The claims of domestic violence and mental instability obviously go to the "risk" issue but considering the material in response, I am unable to accept that a "grave risk of harm. ..." pursuant to article 13 has been established. THE VIEWS OF THE CHILDREN [71] Article 13 contains a provision that entitles the court to refuse an order to return a child, if the court finds the child objects to being returned AND (my emphasis) "has attained an age and degree of maturity at which it is appropriate to take account of its views". [72] No age is provided in the Convention, nor in the Family Relations Act, though the latter in s. 24(1) (b) provides that the child's views may be considered "if appropriate". Under the Texas Family Code, S. 153.008, a child 12 years of age or older may choose the managing conservator, subject to the approval of the court. [73] In Thorne v. Dryden-Hall (1995), 18 R.F.L. (4th) 15 (B.C.S.C.), children aged 8 and 10 were permitted to express their views. The trial judge determined that the 10 year old was of a sufficient age that her views ought to be considered. He determined however, that the children's "views" were so influenced by the mother that he could not rely upon them. CONCLUSION RESPECTING THE VIEWS OF THE CHILDREN [74] The children at bar are 10 and 7 years of age. Perhaps the 10 year old is of sufficient maturity to express a view but I fear I have no training that would permit me to gauge whether the view expressed would truly be his own. I declined an invitation to conduct interviews with the children. [75] The best forum to ascertain the wishes of the children is in a custody trial where experts capable of assessing these things are called to give evidence and have that evidence tested by cross-examination. Other than claims by Mr. and Mrs. Gamble, and her mother, there presently is no independent, reliable evidence before me concerning the wishes of the children CONCLUSION (76) I conclude therefore, that the infant children of the marriage, namely Michael Aaron Hawke, born June 7, 1988 and Kimberly Nicole Hawke, born October 24, 1990, have been wrongfully removed to and are being wrongfully retained in the jurisdiction of this Honourable Court. [77] I am prepared to make further orders consequent upon that finding, but prefer that the parties develop a form of order appropriate to that determination. Various forms of relief were sought in the petition but no submissions made respecting the form of order. [78] If no agreement can be reached on the form of order, and particularly the time and method of delivery of the children to Texas and to whom they should be delivered, then the parties have liberty to apply. /s/ Ronald A. McKinnon ________________________ R.A. McKinnon, J. =========================================================== 28 May 1999 Comment by Wm. M. Hilton This case is a good, basic case on the proper operation of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. My one "grumble" would be in the BC Court's statement at [62] where the Court held that if there was a finding under Art. 13, then no order for return ". . . should be made . . ." A finding under Art. 13 does not prevent the court from returning the child, a finding under Art. 13 only changes the return from mandatory to discretionary and even then the bias would be to return the child absent a strong showing to the contra. Overall the requested forum points out that the evidence that covers the disputed issues is in Texas, the requesting forum. The BC Court, in a comprehensive but brief discussion, goes over the elements of a request for return under The Convention and the defenses to that return. In doing so the BC Court touches on each of the following: 1. Habitual Residence of the children and factors that are to be considered. 2. Rights of Custody over the children and whose law is to be followed. 3. Art. 13(b) and what is required under this article. 4. Art. 13, 3rd paragraph, the "age and maturity" exception. Habitual Residence (H/R) In discussing H/R the BC Court holds that it is a question of fact and then cites the facts that can be used to determine if there had been a shift of H/R from the requesting to the requested forum before the wrongful act took place. The BC Court, despite the finding that it is a "factual" issue, does note that with young children the intent of their parents may be critical. The BC Court discusses two ways H/R can shift: By actual intent of all parties concerned in leaving Forum A and traveling to Forum B and secondly by the passage of time in Forum B coupled with acts that one would objectively say were proof of a change of H/R. The BC Court then lists the factors in this case and comes to the conclusion that H/R did not change before the wrongful act. Rights of Custody The BC Court does an analysis of various decisions that have discussed rights of custody and, rightly so, comes to the conclusion that one must look to the law of the requested forum (here Texas) for a determination of whether or not there was a right of custody and who had that right. Grave Risk -- Art. 13(b) Allegations of parental unfitness were made, not an unusual set of facts. The BC Court held that while these may have reflected upon the parenting ability of the requesting parent, they were issues that were best resolved by the court of the requesting state since that is where the evidence of these allegations could be found. The BC Court made it very clear that, under The Convention, the BC Court could not inquire into the custody and/or visitation aspects of this case. The BC Court holds that the burden of proof is substantial and more than "ordinary" evidence would be required. In this regard see 42 U.S.C. 11603(e)(2)(A) (clear and convincing evidence required). Age and Maturity In this case the children were 10 and 7. I believe that the BC Court's finding on this is to the point: [74] The children at bar are 10 and 7 years of age. Perhaps the 10 year old is of sufficient maturity to express a view but I fear I have no training that would permit me to gauge whether the view expressed would truly be his own. I declined an invitation to conduct interviews with the children. For a similar view see Tahan v Duquette (N.J.Super. 1992) 259 N.J. Super. 328 [613 A.2d 486] where the court stated: "Similarly, see Article 13 of the Convention excuses the duty to return if a child of appropriate age and maturity objects. This standard simply does not apply to a nine-year old child."