Miller v Lahaise (Quebec 1996) Superior Court No 700-04-002221-965 ================================================================= CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE NO: 70004002221 SUPERIOR COURT PRESIDING: THE HONOURABLE MR. JUSTICE JEAN ARCHAMBAULT DONALD McDIARMID MILLER Petitioner -vs- JOHANNE LAHAISE Respondent REASONS AND JUDGMENT RENDERED ORALLY ON OCTOBER 11,1996 The Court is seized with an application by Mr. Donald McDiarmid Miller [hereafter called ], pursuant to the Hague Convention on the Civil Aspects of International Child Abduction FN1 [hereafter called the ], for the return of his two children, presently residing with their mother [hereafter called ] in St-Sauveur. Father alleges in his application that the habitual place of residence of the family is in England. Mother contests the application on the grounds that the Hague Convention does not apply to the present situation and that, moreover, the children who are mature, have chosen not to return with father to England but rather remain with her in St-Sauveur. The children were represented by an attorney who has advised the Court of the opinion of the children on whether they wish to return to England. The parties have made a series of admissions, the most relevant being the following: - the parties were married on March 2nd, 1984 in Brampton, Ontario; - the two children, Michele, 12 years of age and Martin, 8 years of age were born from the marriage of the parties; - Michele was born in Laval and is a Canadian citizen, holding both a Canadian and British passport; - Martin was born the United Kingdom, has a dual citizenship and a passport from both countries; - since the birth of Michele, the parties and the children have lived originally in the Province of Quebec. They moved to England at the end of 1985 to return to this province in November 1989. The family returned to England in the summer of 1993 to live in Chelmsford, Essex County; - during this latter period, the children attended school in England near their residence; - the children performed well in school in England; - Martin suffers from dyslexia and his condition requires special tutoring; - at least five times a year, the family would return to the province of Quebec for vacations and to visit mother's relatives. Father's business would bring him to Canada five additional times each year; - the parties own two homes Canada, one of which is located in St-Sauveur, in proximity of mothers parent's, to whom the children are very attached; - on July 11, 1996, mother and the children came to Canada with the knowledge and consent of father and has been residing at the St-Sauveur residence; - In August 1906, mother advised father that she intended to remain in the Province of Quebec with the children, although the airplane tickets purchased included the return flight for mother and Children; - mother's father has assumed the mortgage payment, and electric bills for the St-Sauveur residence, for the months of July, August and September; - under British law, parental responsibility Vests in both father and mother. * * * The evidence has shown that both parties are caring and loving parents and have adequate parents capacities. Mother is 37 years of age and is presently looking for employment. She has registered the children in an English language school, located in the proximity of St-Sauveur. The children are well adapted to their new environment and are doing well in school. Martin is receiving special attention and tutoring both for his dyslexia condition and to improve he skills in the French language. Michele is bilingual. Mother has started a relationship with another man, who has three young daughters. On occasions, this person lives with mother and the children in the St-Sauveur residence. Father is a 62 year old businessman. His business was profitable until one and a half year ago, when he had a falling out with his partner. Since then, the business has not been profitable and has recently been loosing money. The family's residence in England is owned by father's business partner, who has taken eviction proceedings to recover possession of his house. Father is involved in numerous litigation in England in regards to his business. Mother stated that family was living under considerable anxiety and stress because of the adverse financial position of father's business and because of the eviction threat. The children are very attached to mother who has looked after their upbringing since their birth. The relationship of the couple has been compromised a few years before mother's departure. OPINION OF THE CHILDREN The children's attorney has reported that Michele wishes to stay in the Province of Quebec with mother. Martin is more ambivalent but does not want to be separated from his sister. The Court has had the opportunity to meet Michele in chambers, with the consent of the parties. It is apparent that Michele is intelligent, articulate and well reasoned. She is happy in her present surroundings, and has made new friends in school. She confirms that she is very close to her grand-parents, who live near the St-Sauveur residence and whom she visits frequently. The Court has been able to appreciate that she is a mature young girl. She has taught (sic) out the situation and although she loves her father, she has no hesitation to confirm that she wishes to remain in the Province of Quebec with mother. She wishes to maintain a . relationship with father. She also confirmed that Martin is ambivalent about the situation but is certain that he does not wish to be separated from his sister with whom he has an excellent relationship. Given the circumstances, the Court is of the view that the decision of Martin is wise and mature considering he is a youngster of eight years of age. The Court is satisfied that the Hague Convention applies to this situation given the age of the children, and the fact that they had their habitual place of residence in England in July 1996, date of their departure. The governing principle of the Hague convention is clearly stated In Section 20: <<20. Where a child who is in Quebec has been wrongfully removed or retained and where, at the time of the commencement of the proceedings before the Superior Court, a period of less than one year has elapsed from the date of removal or retention, the Superior Court shall order the return of the child forthwith.>> The children must be returned to their habitual place of residence, if less then one year has elapsed since their removal. Sections 21 and 22 of Hague Convention contain exceptions to this principle: <<21 The Superior Court may refuse to order the return of the child if the person who opposes his or her return establishes that (1) the person 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 (2) 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. 22 The Superior Court may also refuse to order the return of the child if (1) 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 his or her views; (2) the return is contrary to the human rights and freedoms recognized in Quebec.>> The Courts have established that the exceptions of said Sections 21 and 22 must be interpreted restrictively. In the present instance, Michele is clearly of the opinion that she wishes to remain with mother, Martin does not want to be separated from his sister. 1 Michele's decision appears to the Court to be reasoned for the following reasons: - although she loves father, Michele has a special attachment to mother with whom she has lived all her life; - Michele is happy with the current situation. She enjoys living in St-Sauveur because of her close relationship with her grandparents. She also likes her new school and has made many new friends. - Michele exhibited a signed document by a great number of her classmates wishing her to stay in Canada; - Father is involved in litigation in England relating not only to his business but with the right to occupy his partners home where the family resides; - The situation has created great insecurity and tension for all the family members; - Father returns to the Province of Quebec for one week every five weeks for business reasons. Father has a daughter from another marriage who resides in Ontario whom he visits on regular basis. The contact with Michele and Martin could therefore be easily maintained during these regular visits; - The children are enrolled in school and are receiving proper education and, in the case of Martin, the special tutoring his condition requires. The Court has therefore no fear or concerns for the well being of the children and there are no reasons why their opinion should not constitute an important factor in the Court's decision. FOR THESE REASONS, THE COURT: DISMISSES Petitioner's application; WITHOUT COSTS. /s/ Jean Archambault _________________________ JEAN ARCHAMBAULT, J.S.C. Mtre Sonia Heyeur Attorney for Petitioner. 215, St-Laurent Blvd No 2 Montreal, QC H2Y 3T9 TEL: (514) 842-8051 Mtre Carole Trempe Lalonde, Riendeau, Morissette, Trempe & Provencal Attorneys for Respondent 450, Laviolette Saint-Jerome, QC J7Y 2T7 TEL: (514) 436-9443 Mtre Armande Lamberti Attorney for the children 294, Labelle, No 203 Saint-Jerome, QC J7Z 5L1 TEL: (514) 431-5061 ================================================================= COMMENT BY WILLIAM M. HILTON With due respect to the learned judge of the Court of First Instance, this is the kind of decision that The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] was written to prevent. It has been said that if one is opposing a Petition for Return under The Convention, one should do what one could to have the court of first instance treat the matter as a custody proceeding and argue the best interests of the child, FN2 which is contra to the express language of The Convention. FN3 The issues that the Court of First Instance relied upon were those issues that would be considered by a court the custody of a child is before it: Preferences of the child, their desires, etc. The decision of the Court of First Instance of Quebec is, in the language of the court in Murray and Murray (Australia 1993) Court of Appeal No EA 51 of 1993; [1993] FLC 92-416, FN4 presumptuous and offensive in the extreme, for it concludes that the best interests of the children would not be considered by the courts of the United Kingdom. Courts of other jurisdiction have routinely held, in similar circumstances, that one must assume that sister state courts are no less concerned than this Court with the safety and welfare of children who are the subjects of custody disputes. Archambault v Archambault (1990) 407 Mass. 559 [555 N.E.2d 201, 207-208]; Matter of R.L.S. (Okl.App. 4 Div 1994) 879 P.2d 1258, 1263. The Court of First Instance's decision is also contra to the Perez-Vera Report FN5, at No 34: "To conclude our consideration of the problems with which this paragraph deals, it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration." One also wonders about the propriety of following the desires of a child, albeit a bright, articulate, twelve year old, in making a major life choice as to which parent they are to live with. One should consider just how far one would go in permitting a child of any age the right to make decisions that are binding on adults: Does the child get to decide if he or she attends school, goes to the dentist, gets routine injections, etc? Would the judge, for example, permit the child to drive his car on a motorway in Quebec merely because she wished to do so? Children get to decide between chocolate or vanilla, but not if they get the ice cream. -------------------- 1. An Act respecting the Civil Aspects of International and Interprovencial Child Abduction, R.S.Q., Chap A23.01 2. WMH Footnote: DREAMING THE IMPOSSIBLE DREAM: RESPONDING TO A PETITION UNDER THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, DONE AT THE HAGUE ON 25 OCT 1980; Presented at the North American Symposium on International Child Abduction, 30 Sep 01 Oct 1993, Department of Sate, Washington, D.C. The full text of this article can be found on the Internet at: http://www.hiltonhouse.com as Defend.art.txt. 3. WMH Footnote: Art. 19: "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." See also 42 U.S.C. 11601(b)(4): "The Convention and this Act empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 4. WMH Footnote: The full text of this case is found on the Hilton House Web Site as Murray_aus.txt. 5. WMH Footnote: The full text of this report is found on the Hilton House Web Site as Perez_rpt.txt. This report is recognized as the official commentary of the Convention. Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662.