Court: Ontario Provincial Court - Family Division Number: Orangeville Registry No. 101/88; Ontario Judgments: [1989] O.J. No. 353 Applicant: Laurie Anne Hill 1 and Respondent: Murray Hill 2 Date: 08 Feb 1989 (Hearing), 15 Feb 1989 (Judgment) IN THE MATTER OF THE CHILDREN'S LAW REFORM ACT, R.S.O. 1980 C. 68, as amended. FISHER, Provincial Court Judge: The principal issue is whether the court has any jurisdiction to decide who shall have custody of the infant Matthew Hill, born February 24th, 1987. Judgment was rendered on December 21st, 1988 on the day of the hearing. These are my expanded reasons. THE FACTS The Respondent father was born and is now residing in Ontario. The Applicant mother was born and raised in Oregon. The child was born in Orangeville, Ontario where the parties resided for five months after his birth until the summer of 1987 when the family moved to St. Clair Shores, Michigan, U.S.A. In August 1988, the father went to Portland, Oregon and obtained employment. In early September 1988, the father, mother and child moved to the residence of the maternal grandparents until they obtained their own residence in Oregon. From affidavit and vive voce evidence, it is clear that the parties intended to remain in Oregon at least until Matthew was five years old when the father indicated they may return to Michigan where they owned a house. In 1988, the house was leased. The child's medical records were transferred to Oregon and the mother enrolled in community college in Portland. On November 12th, 1988, there was an argument. The father left the house and took the wife's car. The maternal grandmother collected the mother and child and took them to her home. On November 14th, the father removed the child surreptitiously from the maternal grandparent's home and at 11:30 p.m. that evening called the mother's brother saying that he had crossed the Canadian border. -------------------- 1. Respondent in the trial court. "Applicant" means Applicant under the Hague Convention. 2. Applicant in the trial court. See Note 1. The father arrived in Orangeville about the 19th of November and on the 21st the father obtained an ex parte interim order for custody from this court. It was awarded on the basis of certain affidavit evidence in order to fix custody pending a hearing between the parties although the court raised the question of jurisdiction at that time. Meanwhile in Oregon on November 28th, 1988, the mother obtained an ex parte order for custody of the child and restraining order in the circuit court of the State of Oregon from Multnomah County. On December 14th the father returned to court. Service on the mother had been ordered by this court by mail to the mother in Oregon and to a friend near Orangeville. No one appeared for the mother and after the father obtained an uncontested custody order in the morning, the father called the mother in Oregon to tell her what had happened. In the afternoon, counsel for both the mother and father attended in court. The final custody order was stayed and the original interim order of custody to the father was continued. The matter was adjourned to December 21st for argument by both of the parties. The official guardian was not notified in time to attend the hearing on December 21st and the request of the father to adjourn to allow child representation was refused as the mother and the maternal grandmother had arrived from Oregon and any delay would prejudice them. Also, the child was too young to instruct counsel. I understood from the mother's counsel that a representative from he Attorney General who is knowledgeable with respect to the Hague Convention might be available by invitation and at my request she was present. THE LAW The law applicable is the Children's Law Reform Act, R.S.O 1980, C. 68 as amended and the Convention on the Civil Aspect of International Child Abduction (better known as the Hague Convention). The Hague Convention entered into force in Ontario as of December 1st 1983 and in all of the United States on July 1st, 1988. The mother did not directly contact the Attorney General pursuant to the Act and Convention, but retained private counsel. A Charter argument was raised but did not proceed. When we examine the relevant law, we find that it is the international community's attempt to prevent a parent from wrongfully taking a child from the jurisdiction where the parents habitually reside. No custody agreement had been made at the time of the final separation of the parents so that the parents had joint custody of Matthew either under Ontario law or Oregon law (see Oregon Revised Statutes, 109.030). It is of interest to note that in Canada if a person tries to take custody of a child from someone having custody, then Section 282 or Section 283(1) and (2) may label such activity as a criminal offence. The taking of the child by the mother to the maternal grandparents may have been unlawful but the taking of the child by the father to Ontario clearly creates a problem. Two wrongs don't make a right. The obvious remedy of the father was to seek the assistance of the oregon courts where all of the parties resided. Instead he whisked the child off to Ontario, thus triggering the operation of the Children's Law Reform Act and the Hague Convention. The operative section to determine which court has jurisdiction is Section 22: 22(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (a) the child is habitually resident in Ontario at the commencement of the application for the order; (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario. (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. (2) A child is habitually resident in the place where he resided, (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred. (3) The removal or withholding of a child without the consent of the person having 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 who the child removed or withheld. There are three possible jurisdictions. The first is Oregon. All parties were present and living there at the final separation and at that time the parents appeared to have decided to stay there indefinitely. Secondly, Ontario is a possibility as the child was born there, is a Canadian citizen as his father, has lived in Ontario for the first five months of his life and is present in Ontario now. Thirdly, there is Michigan where the parties own a home and have recently lived. Jurisdiction is where the child is habitually resident. That phrase is defined in the Act. My reading of the definition and applying it to this case is that the proper jurisdiction is the residence where the child last resided with both parents before the father acted unilaterally. That clearly is Oregon. It may be of interest to examine the professed intention of the parents. Here the mother clearly wished to stay in Oregon near her family. The father in hindsight, may express other intentions but his actions were of a person who intended to remain indefinitely in Oregon, at least until the child was five years old then return to Michigan (not Ontario). There is, however, a second way of looking at the matter. Even if Oregon is the habitual residence of the child, as I have found, the court can sill exercise its jurisdiction under Section 22(b) of the Act. There are six conditions set out in Section 22(1)(b) which because of the conjunctive use of the word "and" all must be met before the court can exercise jurisdiction. The child is in Ontario under Section 22(1)(b)(i). Evidence is available in both Ontario and Oregon under (ii). The child has a real and substantial connection with Ontario under (v). However, under (vi), on the balance of convenience, it is not appropriate for jurisdiction to be exercised in Ontario. There is more substantive evidence concerning the best interests of the child in Oregon. The breakup occurred in Oregon where the witnesses to the final hours of the relationship lived. There were allegations of assault alleged by the mother and inappropriate behaviour alleged by both parent. The brother of the mother appears to be an ally of both the mother and father and he resides in Oregon. Also, an application for custody is pending before the Oregon Court where the child is habitually resident. There is a third possibility. Even though Section 22 is not applicable to assist the father as I have found, the court can still make an order under Section 23 which when read with Section 24, looks at what is in the best interests of the child: 23. Notwithstanding sections 22 and 42, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where, (a) the child is physically present in Ontario; and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if, (i) the child remains in the custody of the person legally entitled to custody of the child, (ii) the child is returned to the custody of the person legally entitled to custody of the child, or (iii) the child is removed from Ontario. 24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. Here the child is present in Ontario but there is no real evidence that the child would suffer serious harm if the child is returned to the mother or is removed from Ontario. In fact, the child has certain health problems that make the conduct of the father in traveling such a long distance with the child not in the child's best interests. Nor was the removal of the child from contact with the mother in the child's best interests. Upon reading the articles of the Hague Convention, I am satisfied that the facts of this case are exactly what the Convention is designed to prevent; that is, a wrongful removal of the child. Further, the Convention allows me to return the child to the State of Oregon, the proper jurisdiction pending a hearing on the merits. Under Section 41 of the Children's Law Reform Act, I am satisfied that the child has been wrongfully removed to Ontario and I am not exercising jurisdiction under any other sections of the Act. I therefore order the child to be delivered forthwith to the mother with proper directions to the police for in implementing this order and I am ordering costs to the mother. With respect to costs it was agreed that the would be fixed by the court. Counsel for the mother submitted a costs brief and an account of fees and disbursements in the amount of $8,970.17. Neither parent is wealthy and the expenditures of legal fees is important in the strategy of parents seeking custody of their children. Therefore the imposition of costs should be considered carefully. In many simple custody matters, costs are not awarded on the basis that a parent should not be penalized for seeking custody and wanting to parent a loved one. The circumstances here are more complex. The conduct of the father has forced the mother to large expenditures to obtain the return of the child. The principle that makes sense to me is that she should be put back to the position she was in prior to the wrongful taking of the child from Oregon. Therefore costs should be awarded, not on a party and party basis but on a solicitor client basis. Hopefully, such an award will also act as a deterrent to others. I will not allow the bill of Paul Molsen, Oregon counsel for the mother as those costs are properly the subject matter of the Oregon litigation. I would allow along with the $400 already agreed on, disbursements in the amount of $470.17 making total disbursements of $870.17. There remains the question of the balance of the account or time spent in court, including a junior counsel. I raised the issue that if the Attorney General had employed counsel in this matter, that costs would be on a Legal Aid scale (see S. 547(2)) but I do not think the mother should be forced to go that route. She has the right to employ her own counsel. Her counsel informed me that there was a question raised here as to whether the Attorney General would have undertaken the matter for the mother. I would not allow a bonus of $1500.00 charged by counsel for being successful in the application. While the Provincial Court Rules may be a guide, I do not think the mother's costs should be less because she is in a Provincial Court. The same amount of work has to be done no matter what court. Further, the stakes are high. It is hard to imagine a more important issue than whether the child should be returned to the mother or remain with the father. Also to be taken into consideration is that both counsel for this mother had to drop everything else they were doing and respond promptly to the father's application for custody. Counsel has also provided a case book of law and authorities and a great deal of material in support of the mother's claim. Taking all these matters into consideration, I assess the bill at $4,500 plus $870.17 disbursements, making a total of $5,370.17 payable forthwith. Fisher, Provincial Court Judge. Counsel: Applicant: Respondent Nancy M. Mossip David S. Thaites