R.S. v. P.A. [1997] Q.J. No. 1610 7 International Abduction [CANDA 1997] =========================================================== Indexed as: R.S. v. P.A. Between R S., petitioner, and P.A., respondent, and B.S., mis-en-cause [1997] Q.J. No. 1610 No. 500-04-004461-969 Quebec Superior Court District of Montreal H. Label J. Oral judgment: March 5, 1997 (8 pp.) Counsel: Marion Thibault (Thibault Duquette Brott & Bordelli) for the petitioner. Gally Butler-Grant (Samartzidis Jones Butler & Frieddman), for the respondent. REASONS FOR JUDMENT 001 H. LABEL J.:-- I have before me various motions: in particular, a Motion for the immediate return of a child: also a Motion for custody and another one for visitation rights. I have had time to review the file and the materials' that have been submitted to me, as well as to review both the Convention and the legislation. 002 In this case, the original motion that was submitted to the Superior Court was a Motion for the immediate return of a child pursuant to the provision of the statute enacted by Quebec to give effect to the Hague Convention regarding the civil aspects of international child abduction: Loi sur lea aspects civilis de l'enlevement international et interprovincial d'enfants. L.R.Q., c. 23.01. There are also two additional motions: one by the mother for custody and one by the father for access. 003 The parties were married in l987 in Sri Lanka. The son who is the subject of the dispute, was born on March 20th, 1990. In 1991, the family moved to England where they applied for refugee status. The parties separated in 1993 and divorce proceedings were instituted in England. On May 13, 1994, the Court issued an order giving effect to an arrangement with regard to visitation rights whereby the father would see his son at an access center, and requiring that a report be prepared by a welfare officer concerning access and visitation. 004 As far as the records shows, this report was never prepared and no further contacts took place between the son and the father, because the mother and the child disappeared. She was located in Canada, more than a year later, by the R.C.M.P. At the time, mother and son had obtained status in Canada as Convention refugees, while the father's status in England remains uncertain. 005 The Motion for immediate return of the child to England was filed with this Court. During the proceedings, the father agreed that it was in the best interest of the child that he not be returned to England. In fact, even in the proceedings underway in England, the father had conceded that it would be appropriate that the child continue to reside with his mother; the issue was accede or visitation. 006 Having regard to all the circumstances, this is certainly a case where pursuant to the provisions of Sec. 21 of the Loi sur lea aspects civilis de l'enlevement international et interprovincial d'enfants, 1984, c. 12, the Court may refuse to order the return of the child. This would appear to be a case where the party seeking the return of the child, the father, has really consented to the child not being returned. In any event, the Court finds it appropriate not to order the return of the child and, having regard to the submissions of both parties, to give to the mother custody of the minor child, because to do otherwise would place the child in an intolerable situation: if he were returned to England, he might become subject to a deportation order issued against his father 007 A dispute remains as to the amended Motion by the father, in which he seeks to have access to his son. He asks that he be granted the following visitation rights: "(a) One month during the summer, where the child would come to England and see the Petitioner; (b) At any other period of the year if Petitioner has sufficient means to pay for his son's fare to England for a short period of time," The mother objects. The child would be too young to travel to England alone. In addition, she wants to prove that the father is violent and, presumably, unfit. 008 Affidavits have been filled by both sides. I have before me the affidavits of the mother and affidavits filed by one of her uncles and by her brother. It is alleged that the relationship between the parties had severely deteriorated and that the father was violent. There are allegations of violence against the mother but also against the child. For his part, the father has filed affidavits from persons who vouch for his good reputation and status and for his ability to relate well to children. 009 The record shows that the father has been denied a visitor's visa to Canada. He can therefore not appear in Montreal for the hearing before the Superior Court. 010 Counsel for the mother invokes the provisions of the Quebec Code of Civil Procedure and submits that, because the issue is custody and access, oral evidence may and must be received by the Court. Particularly in this case, where the evidence would be designed to show violent behaviour against the mother and against the child and an alleged refusal by the child to see his father because the child would have said that his father had threatened to kill his mother. Counsel for the father has invoked precedents under the Hague Convention in support of the proposition that, in such circumstances, oral evidence may be inappropriate. Counsel for the father has objected to the mother being allowed to tender oral evidence in support of her position. This evidence would presumably be designed to support her claim for custody on which no evidence is needed and, presumably, her objections to the father being granted access to his son. 011 However, having regard to all circumstances of this case and taking into consideration the policy underlying the Hague Convention regarding the civil aspects of international child abduction, as well as the law enacted by Quebec, I come to the conclusion that it would not be appropriate for a judge of the Superior Court, sitting in Montreal, hearing and considering oral evidence in support of a motion to deny to the father access to his son. Particularly when the father is precluded from coming to Montreal to dispute the case against him Particularly when the convention and the law enacted thereunder require the Courts and the authorities to enforce and protect visitation and access rights FN1 Particularly when it is the mother's decision, however understandable, to leave England taking the child with her, which as made it impossible for the father to see his son and for the welfare officer appointed by the English Court to prepare a report which would have allowed a resolution of the dispute concerning the visiting rights of the father. It would not be fair to allow the mother to use oral evidence before this Court to try to build a case against the father when she herself has precluded the conclusion or the continuation of the investigation that was to take place in England. 012 In any event, the child is now nearly seven and, obviously, both his situation and that of the father have changed. It is normally in the beet interest of a child, particularly a young boy, that he remain in contact with his father. It is certainly in line with the policies; embodied in the Hague Convention and the Quebec statute, as well as the Quebec Civil Code, that steps should be taken, if at all possible, to maintain contact between father and child. 013 However, before making any decision with regard to access and visitation rights, this Court must be able to assess the parental ability of the father and his capacity to receive the child and to care for him. The Court will also need assistance in ascertaining whether there exists a suitable procedure to permit a resumption of contacts between the child and his father, having regard to the fact that the child is still very young and that he hasn't seen his father for a long period of time. Suitable procedures are necessary to ensure the safe return of the child, if he must travel to England to meet his father. It is obvious that the British authorities are in a better position to provide much of the needed information, as well as to put in place suitable procedures to permit a resumption of contacts and to ensure the safe return of the child at the end of the visit. It may also be necessary to inquire from the authorities as to whether suitable travel documents can be provided to the child. At this stage, the Court recognizes that Counsel may not be prepared to provide to the Court information or submissions on these points. Therefore, I propose to make an interim order and to adjourn the case in order to permit Counsel to file further submissions. 014 FOR THESE REASONS, THE COURT: DECLARES that it is not appropriate to order the return of the child to England; GIVES custody of the minor child to the mother P.A.; ORDERS Mrs. P.A. not to leave jurisdiction and not to remove the child from jurisdiction and to advise the Court of any change of address; ORDERS that I remain seized with the case in order to decide the remaining issues, notably access; INVITES Counsel to file further submissions with the Court regarding the procedure to be followed before making a final decision concerning access; COSTS TO FOLLOW. H. LeBEL J. QL Update: 970606 qp/qi/s/evd fam COMMENT BY WILLIAM M. HILTON FELLOW, INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS This case is one of the many that holds that it is proper to use affidavits in hearings involving The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. Indeed, this case points out the obvious, that it would be decidedly unfair to the out of country party to permit oral testimony of the (usually) abducting parent while essentially depriving the victim parent of the same privilege. The court also finds that the fact that a child can be deported with his parent is sufficient to invoke an Art. 13(b) defense. It would be presumed that this would only apply in cases where the place to which the parent was being deported to was a ". . . zone of war, famine, or disease." Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060. The court then invites counsel to obtain further information concerning the child from the place where the father lives so that the court can make a proper evaluation of the access rights. To this end the following language of the Uniform Child Custody Jurisdiction Act (UCCJA) may be of interest: ========================== START ========================= SECTION 20 [Assistance to Courts of Other States.] (a) Upon request of the court of another state the courts of this State which are competent to hear custody matters may order person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State [or may order social studies to be made for use in a custody proceeding in another state] . A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced [and any social studies prepared] shall be forwarded by the clerk of the court to the requesting court. (b) A person within this State may voluntarily give his testimony or statement in this State for use in a custody proceeding outside this state. (c) Upon request of the court of another state a competent court of this State may order a person in this State to appear alone or with the child in a custody proceeding in another state. The court may condition compliance with the request upon assurance by the other state that state travel and other necessary expenses will be advanced or reimbursed. COMMENT Section 20 is the counterpart of section 19. It empowers local courts to give help to out-of-state courts in custody cases. See comments to sections IS and 19. The references to social studies have been placed in brackets so that states without authorization to make social studies outside of juvenile court proceedings may omit them if they wish. Subsection (b) reaffirms the existing freedom of persons within the United States to give evidence for use in proceedings elsewhere. It is derived from section 3.02 (b) of the Interstate and International Procedure Act, 9B U.L.A. 327 (1966). ========================= END =========================== As all states of the United States have adopted the UCCJA, presumably such information could be obtained by invoking this section. While this section may not be in effect in other nations, the concept should be readily adaptable to The Convention since it further's one of the aims: To provide for access to children. -------------------- 1. Sections 31 to 33.