IN THE COURT OF APPEAL OF ALBERTA Calgary Civil Sittings August 31, 1988 and September 2, 1988 IN THE MATTER OF THE EXTRA-PROVINCIAL ENFORCEMENT OF CUSTODY ORDERS ACT ("The Act") R.S.A. 1980, c. E-17; and IN THE MATTER OF AN APPLICATION FOR VARIATION OF THE STATE OF CALIFORNIA, SUPERIOR COURT CUSTODY ORDER GRANTED JUNE 26, 1987, AND MICHELE DENISE WILLIAMS AND DONALD LEON KELLEY AND JAZMIN ASHLEE WILLIAMS-KELLEY AND NICOLE MONIQUE WILLIAMS-KELLEY BORN SEPTEMBER 10, 1986 COUNSEL TRIAL JUDGE COURT Donald Leon (Ms.) Pat Virtue, J. KERANS, J.A KELLEY Blocksom BRACCO, J.A. David Younggren HETHERINGTON, J.A. Appellant - and - Michele Denise (Ms.) Terry Hagel WILLIAMS Respondent (Ms.) S. E. Cunningham (for Ms. B. Bauer, the Alberta Central Authority, Intervenor) APPEAL #10391 ________________________ MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ________________________ THE COURT: The appellant applied to the Court of Queen's Bench of Alberta for enforcement of an order of the Superior Court of California giving him custody of two children born to him and the respondent. This application was made pursuant to s. 2(1) of the Extra-Provincial Enforcement of Custody Orders Act. The respondent opposed this application on the ground that the children would suffer serious harm if they were placed in the custody of the appellant. She asked that the order of the California court be varied pursuant to s. 4 of the Act. The twin children were born on September 10, 1986, in Hayward, California, where the parents then lived together. They separated on May 31, 1987. On June 26, an interim joint custody order was made and the matter was set for further hearing on September 24. A few days before that hearing, the respondent mother left California with the twins. The appellant father did not locate her again until May of this year. She had come to Alberta. Faced with conflicting affidavit evidence with respect to the question of whether the children would suffer serious harm if they were placed in the custody of the appellant, Mr. Justice Virtue ordered the trial of the following issue: ". . . to determine if the children would suffer serious harm if the Order granted by the Superior court of California, County of Alameda, dated September 28, 1987, were enforced by this Court." Before Mr. Justice Virtue the appellant sought enforcement of the order of the Superior Court of California made on the 24th of September, 1987, which gave custody of the children in question to him. Before us, however, counsel for the appellant conceded that the appellant did not seek the return of the children to him. He wished the children returned to California so that the Superior Court of California could hold the hearing with respect to custody and access which could not be held because the respondent left the jurisdiction with the children. A brief summary of the proceedings in California is necessary for an understanding of his position. On June 5, 1987, the Superior Court of California granted appellant a temporary order which included a direction that he and the respondent attend mediation with Family Court Services. The Mediation Report recommended -- That an order be made awarding the parties joint custody with temporary primary physical custody to the respondent. -- That the children spend increasing amounts of time with the appellant. -- A schedule for visits by the children with the appellant. -- That the children be restricted to Alameda, Santa Clara, San Francisco, Contra Costa and Solano counties. -- That if the children were found outside of the counties described above, their sole custody should revert to the other parent. -- That no passports be issued for the children. -- That copies of the order be sent to the State Department. -- That the matter be reviewed in three months. On June 26, 1987. a judge of the Superior Court of California made an order incorporating all of the recommendations contained in the Mediation Report. Both the appellant and the respondent consented to these terms and requested that they be included in the order. The matter was continued to July 29, 1987, for consideration of support and fees, and to September 24, 1987, for the review recommended in the Mediation Report. The respondent then left California with the children. On the 24th of September, 1987, a judge of the Superior Court of California granted sole legal and physical custody of the children to the appellant. The appellant in his original application asked Queen's Bench to enforce the latest California Order and relied upon s.2(1) of the Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 1980 c.E-17, which provides: 2(1) A court, on application by originating notice, shall enforce, and may make any orders it considers necessary to give effect to, a custody order as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by that custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made. It is clear on the evidence, and counsel for the respondent concedes, that the children have a real and substantial connection with California and no such connection with Alberta and that was the situation in September 1987. Without more, the California Order should be enforced. The learned Queen's Bench judge held that there was more. At the request of the respondent, he invoked s.4 of that Act, which provides: 4 Notwithstanding anything in this Act, when a court is satisfied that a child would suffer serious harm if the child remained in or was restored to the custody of the person named in a custody order, the court may at any time vary the custody order or make any other order for the custody of the child that it considers necessary. We are told that he held that there was enough suspicion of serious harm to warrant a full hearing on the issue. The appellant says that this was a reviewable error in the exercise of his admitted discretion because the material before him did not even come close to justifying this disposition. The respondent replies that the material not only warranted such an order, it warranted also a final determination of serious harm and a decision that Alberta must take up jurisdiction in this matter for the welfare of the children. In the course of the hearing before us, it became obvious that the main issue between the parties in this case is as to where a full custody hearing should be held. It seems to be common ground that, in the circumstances of the case, one should be held somewhere. That issue turns on s.3, not s.4. S. 3, with s.2, establishes that custody shall be settled in a place where the children have a real and substantial connection. Alberta only accepts jurisdiction to deal with custody if the situation described in s. 3 is present. That section provides: 3(1) A court may at any time by order vary a custody order as if the custody order had been made by the court if it is satisfied (a) that the child affected by the custody order does not, at the time the application for variation is made, have a real and substantial connection with the province, state or country in which the custody order was made or was last enforced, and (b) that the child has a real and substantial connection with Alberta or all the parties affected by the custody order are resident in Alberta. (2) A person is not resident in Alberta for the purposes of subsection (l)(b) when that person is within Alberta solely for the purpose of making or opposing an application under this Act. S. 3, then, tells an Alberta Court when to take jurisdiction. That is not the office of s. 4. S. 4 authorizes an Alberta Court, in a case where another court should exercise jurisdiction, to make an appropriate order when a simple, unconditional order enforcing the original custody order is not appropriate. This view of the powers in s. 4 is in harmony with the purpose and scheme of the Act and with the decided cases in this jurisdiction. Moreover, that construction leads to a quick resolution of the harm issue in this case, albeit to an order very different from that made by the learned Queen's Bench judge. Statutes must be given an interpretation consistent with the purpose of the Act. See Calgary Regional Planning Commission v Alberta Planning Board et al (1986), 46 Alta. L.R. (2nd) 245 at 250, where Kerans, J.A., speaking for the Court, said We should try to make statutes work by determining the object or scheme of the Act and then by giving the words the meaning which best advances that object or scheme, provided only that the actual words under review can reasonably bear that interpretation. The manifest purpose of the Act is to apply the real and substantial connection test to determine where custody shall be decided. If, as the respondent contends, s. 4 charges a court to assess the long term effect of a custody order as though that order is not subject to further review from time to time, where the children have a real and substantial connection then the "harm" hearing becomes indistinguishable from a "fitness" hearing, and the court is exercising a jurisdiction, in fact if not in name, with regard to the custody issue. This, in our view, would be a subversion of the purpose of the Act. This issue was perhaps not so important in the past. In this age, however, a major problem has arisen in Canada, North America and Europe. A parent in the middle of a custody dispute who has momentary physical care and control of a child, whether by accident, abduction, operation of law or otherwise, will often flee the jurisdiction where both parents were, and attempt to hide from the other parent. This phenomenon has been addressed by the United Nations, resulting in the Convention on the Civil Aspects of International Child Abduction. This Court, in Read v Read, [1982] 2 W.W.R. 25, held that the purpose of the Act was to require those who have fled the jurisdiction of another court to return to that jurisdiction. That is the overriding consideration that should govern our approach. In Beairsto v Beairsto, (1982) 65 A.R. 281 at 282, Kerans, J.A. for the Court said: This Court in Read v Read said that Queen's Bench should not give aid and comfort to those who would breach custody orders by exercising its admitted jurisdiction, a jurisdiction which arises whenever a child is actually in Alberta, in a case where the child is here as a result of a transportation which was unlawful under a valid and existing custody order, where adequate relief is available elsewhere, and where the child otherwise has no substantial connection with Alberta. The Court then spoke of the need for ". . . a substantial risk of serious and immediate physical harm. . ." (at 282) as a condition for a refusal to return the child to the person with custody, although this was said in the context where the child was clearly to be taken back by the custodian to the jurisdiction of the other court and the only risk was of harm during the return voyage. That approach is consistent only with the interpretation of s. 4 now affirmed, and is merely an example of s. 4 at work. We take comfort in the fact that, since the decision in Read v Read, Alberta has become a signatory to the Convention on the Civil Aspects of International Child Abduction, whose express purpose is the prompt return of abducted children, not merely to the custodian, but "to the state of their habitual residence". Article 13 of the Convention provides that a court of the state to which the child has been taken may refuse such an order only if satisfied that the return to the other state would raise a "grave risk" of "physical or psychological harm or otherwise place the child in an intolerable situation". Alberta enacted the International Child Abduction Act, S.A. 1986, c.I-6.5, which adopts the Convention and provides in s. 7: If there is a conflict between this Act and any enactment, this Act prevails. In our view, the interpretation of s. 4 offered for the respondent would produce a conflict with the scheme suggested in the " Convention. The result of a harm finding under s. 4 should not be to permit the Court to assert original jurisdiction in custody. We adopt the views expressed by the Supreme Court of California in Ferreira v Ferreira (Cal. 1973) 9 Cal.3d 824, 829 [109 Cal.Rptr. 80, 83; 512 P.2d 304, 307]: If faced with charges supported by competent proof, as distinguished from conclusory assertions by the party seeking modification of an existing decree, that the return of the child to the non-resident parent will jeopardize or serously endanger the child's health or safety, . . . the court should inquire into these charges and make whatever temporary custody order it finds necessary to protect the child. But even in cases in which the court grants temporary custody to the resident parent, it should not ordinarily resolve the merits of the controversy as to permanent custody; it may, on the motion of the non-resident or on its own motion, stay those proceedings to await the determination of that matter by the court of the non-resident parent's domicile. We repeat that the review for serious harm authorized by s. 4 is a review of the harm that might come by unconditional enforcement of the original custody order. It asks questions like what harm might come during any interval before another court can act. This, however, is not the only issue. The circumstances of enforcement vary greatly, and thus so also do the harm issues. One issue that can arise might relate to perceived inadequacy in the operation of the law in the other jurisdiction that might create for the child an "intolerable situation". Lack of confidence in the other state is expressly dealt with in Article 20 of the Convention, but it is said for the respondent that the material before Queen's Bench raised a question about the California courts, and that the learned chambers judge intended that issue to be looked into at the hearing he ordered. In an affidavit sworn to by the respondent on the 24th of July, 1988, she stated "2. THAT I fled from the State of California . . . and because I could not get the authorities to help me to prevent these things or stop the ongoing abuse." She did not indicate in this paragraph or elsewhere that she had ever sought help from the courts in California. In an affidavit sworn to on the same date the respondent's mother stated "8. THAT the situation was deteriorating and the girls were getting worse and worse and I called my daughter's attorney in late August to see what could be done. I was advised that nothing would be done prior to the late September 1987 court date. I contacted the police and was told that short of 'fatal' type physical abuse or hospitalization of the children, they could do nothing. . . . ." It does not seem to us that the refusal of the respondent's attorney to do anything prior to a court hearing scheduled to take place within a month can be taken as an indication that the California courts have failed or would fail to deal effectively with the custody of the children in question. We reject this argument as totally unsupported on the material before us; we also doubt that the learned Queen's Bench judge gave it credence. We now turn to the disposition required here. The question posed by the parties to Queen's Bench was whether serious harm might come to the children in this case by enforcement of the custody order immediately and without condition. The question now posed, and the only question now posed, is how to get the children safely back to California. We do not think that there is any point to more delay in Alberta. We therefore allow the appeal, and make the orders that follow in substitution of the order of the learned Queen's Bench judge. In summary, this Court finds that the children had real and substantial connection with the State of California, in the United States of America and that the Superior Court of California, County of Alameda has jurisdiction to grant orders regarding custody and access to the children. We likewise find that they were removed from the State of California contrary to the express prohibition of the Superior Court of California. S. 3 of the Act was not invoked, nor were the grounds for Alberta to take jurisdiction made out. We conclude that the children must be returned to the jurisdiction of the Superior Court of California, County of Alameda for determination of the on-going custody and access dispute. With regard to the concern about the allegation of risk of harm to the children should this Court order that the children be placed immediately in the custody of the applicant father, we need not address that concern in view of the concession by the father. While he seeks the return of the children to California where the issue of custody and access is to be resolved, he no longer asks that the children be placed in his care and custody immediately and for the purpose of transporting them to California. Thus the issue of their safety en route to California in his hands does not arise. It should be noted that this concession was not before the learned chambers judge. Only the choice of another means of returning the children to California needs to be addressed. We commend and approve the intervention of the Central Authority of Alberta and her counsel, who on very short notice and without formal application attended this hearing. In all the circumstances of this case we invite her to supervise and assist in the safe return of the children to the jurisdiction of the Superior Court of California, County of Alameda so soon as may be practicable, but in any event no later than 15 days from this date, unless otherwise ordered. We expressly enjoin and direct the respondent, Michele Denise Williams to ensure the safe return of the subject children to the State of California and to the jurisdiction of the Superior Court of California, County of Alameda and to ensure further that they remain safely in that jurisdiction until the matter of the custody and access to those children is resolved by that Court. We also enjoin Michele Denise Williams to accept the supervision and assistance of the Central Authorities of Alberta and California and/or their respective designees regarding the safe return of the children in accordance with this Order. In the event that it becomes necessary to make application to this Court to clarify or otherwise give effect to this Order, either party may approach a single member of this Court.