Thomson and Thomson (Manitoba Q.B. Fam.Div. 1993) 48 R.F.L. (3d) 308 [1993] ================================================================= COURT OF QUEENS BENCH OF MANITOBA (FAMILY DIVISION) Suit No. FD 93-01-32729 (Winnipeg Centre) BETWEEN: AMANDA LOUISE THOMSON, Petitioner (Wife), - and - PAUL THOMSON, Respondent (Husband). Martin G. Tadman for the Petitioner (Wife) Jack A. King for the Respondent (Husband) Judgment delivered: June 28, 1993 DAVIDSON. J. 1. The issue in this case is the enforcement of extra-provincial custody and/or access orders pursuant to The Child Custody Enforcement Act, R.S.M. 1987, c. C360 (the "Act") and the Convention on the Civil Aspects of International Child Abduction (also known as the Hague Convention, and herein the "Convention"). In particular, the issue is whether 15-month old Matthew Paul Thomson should be returned to Scotland to comply with orders of the Scottish courts. PRELIMINARY ISSUE 2. As a preliminary matter it is argued that a Convention application is a prerequisite to the operation of the provisions of the Act. The Convention is set out in a schedule to the Act, and the provisions of the Convention are law in Manitoba. It is argued that I have no proof of a proper application having been commenced under the Convention and that I should therefore dismiss the application to enforce the extra-provincial order. I accept that I do have appropriate evidence of an application having been made under the Convention, but more importantly, I find that no such application is required. The provisions of the Act can be invoked quite apart from any proceeding under the Convention. and that is abundantly clear from Article 29 of the Convention. which reads: "This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention." CONCLUSION 3. For reasons which follow, I am prepared to recognize the order(s) of the Scottish courts. I am prepared to order the child returned to Scotland, following the statutory scheme to which I will later refer. I am also prepared, however, to make an interim order of custody in favor of Ms. Thomson, based on the best interests of the child, to allow her time to proceed with a custody application in Scotland. FACTS 4. The parties were married February 15, 1991, in Scotland. In fact, they have each always lived in Scotland. Their son Matthew was born on March 22, 1992. They separated September 30, 1992. 5. The following occurred after separation: (1) October 9, 1992 Order for home assessment made by the Sheriff of the Sheriffdom of South Strathclyde Dumfries and Galloway at Stranraer (the "Scottish court") No order of custody Order appears to have contained a non-removal clause (2) November 27, 1992 Interim custody to Ms. Thomson Specified access to Mr. Thomson Non-removal of the child from Scotland (3) December 2, 1992 Ms. Thomson left Scotland, without advising Mr. Thomson, and came to Manitoba, initially planning simply a visit with her parents, who had moved to Wawanesa. Sometime thereafter, she formed the intention to remain in Canada. (4) February 2, 1993 Ms. Thomson filed a petition in Manitoba, seeking custody of the child under The Family Maintenance Act, R.S.M. 1987, c. F20 (5) February 3, 1993 The matter proceeded to a hearing in Scotland. Ms. Thomson's lawyer was allowed to withdraw and the matter proceeded on an uncontested basis, with Mr. Thomson and his mother giving evidence. Order of custody to Mr. Thomson. It appears to be a final order. (6) March 9, 1993 Ms. Thomson filed an appeal of the order, in Scotland Ms. Thomson's counsel first appeared in Manitoba, trying to obtain a without notice order. (7) April 15, 1993 Appeal denied (8) May 27, 1993 Hearing in Manitoba. The two matters that were heard were: (a) a motion of Ms. Thomson asking the court to direct the trial of an issue; in particular, the issue of whether the child would suffer serious harm or be placed in an intolerable situation should the court enforce the Scottish orders. Further, she asked for interim custody pending the trial. (b) an application of Mr. Thomson to enforce the Scottish orders; in particular, that Ms. Thomson return the child to Scotland and pay the costs associated with doing so. Further, he asked to stay her custody proceedings here. 6. I have stated what various orders appear to say. That is because of the state of the record before me. I have a certified copy of a record of proceedings in the Scottish court, some of the provisions of which are difficult to understand. The document is titled "Principal Interlocutor Sheets", and lists, in summary form, what happened on each of the days the matter appeared in court. Some of the language prohibits me from having a full understanding of each and every entry. I do have, however, an affidavit from Mr. Thomson's lawyer in Scotland (Mr. Forster) explaining the most substantive provisions. It is argued that he is not an independent witness and would interpret the provisions in favor of his client. While that may be so, I do not have any contradictory evidence that would cause me to doubt the facts to which he has deposed. While Ms. Thomson would have information with respect to various of the entries, she has chosen not to put that information before the court. She has attempted to strike, from Mr. Forster's affidavit, an explanation of what happened on various court dates (leave to amend her notice of motion which sought expungement, to include paragraphs 8 and 9 of his affidavit, was not granted), but did not file any affidavit material which took issue with the facts as alleged, save and except for the state of her knowledge of some of the proceedings. 7. Of particular note is the fact that she has chosen not to include in her affidavit material any reference to a final order having been granted in Scotland, or any reference to the fact that she appealed that unsuccessfully. In fact, her affidavit material would lead the court to believe that nothing happened in Scotland after she was successful in obtaining an interim order. 8. Ms. Thomson says that she did not know that the November 27, 1992 order contained a non-removal clause. She further deposes that she did not know of the final custody hearing on February 3, 1993. Her evidence is that she had a very brief telephone call with her lawyer on November 27, 1992, that her lawyer was in a hurry and simply advised her that she had gained custody and Mr. Thomson had gained access, and that she, Ms. Grier, would provide a written report within a few days. In contrast to that is the affidavit of Mr. Forster, who says he spoke to Ms. Grier shortly after Ms. Thomson left Scotland. He says that Ms. Grier confirmed that she had advised her client of the non-removal provision. Additionally, Mr. Forster says that he spoke to Ms. Grier, on a later occasion, and that Ms. Grier confirmed that she had advised her client of the February 3, 1993 hearing date, and the nature and effect of same. 9. It is difficult to resolve this credibility issue on affidavit material. It is, however, unnecessary to do so. If she did not know of the non-removal clause, or of the final hearing date in February, 1993, at the very least: (a) she knew of the access order made on November 27, 1992 and chose to ignore it on December 2, 1992, when she came to Canada; (b) she was wilfully blind to the course of proceedings which she had instituted in Scotland, as she must have failed to make appropriate, if any, inquiries of a lawyer that apparently continued to act on her behalf throughout; and (c) she failed to return the child once she became aware of the contents of the November 27, 1992 order and, further, after she became aware of the February 3, 1993 order. I have once again used the word "apparently" in reference to Ms. Grier continuing to act for her. In each and every entry on the interlocutor sheets from Scotland, Ms. Grier is noted as counsel. There were at least four appearances, of little consequence, between the orders of November 27, 1992 and February 3, 1993, and she appeared on each of those occasions. Although there are notations which indicate that she was allowed to withdraw on two occasions (including the final hearing of February 3, 1993), she appears to have continued acting. 10. I do not have a copy of an order of either November 27, 1992 or February 3, 1993, or, indeed, an order dismissing the appeal on April 15, 1993. Neither counsel has explained to me why orders were not filed in those matters. However, I have no reason not to proceed to enforce orders which Mr. Forster confirms are in existence, and which Ms. Thomson does not deny. THE LAW 11. The importance of enforcing orders from other jurisdictions cannot be overstated and judges must be cautious not to give in to a common, and sometimes overwhelming, temptation to do what they feel is right, in a given custody dispute, once one of the parties has moved to the jurisdiction. The Act and Convention dictate that we are to enforce orders from other jurisdictions, except in limited circumstances, and those circumstances are spelled out in the Act. As a result, I start from the position that I should enforce the order of February 3, 1993 giving custody to Mr. Thomson. WMH FN01 12. The circumstances in which this court should not enforce an extra-provincial order, or can make an order inconsistent with it (once the initial connection of the child and the extra-provincial jurisdiction is established) are two-fold. The first relates to the connection of the child with this jurisdiction and the second relates to the question of serious harm. In fact, the scheme of the Act is to follow through, sequentially, ss. 3, 4 and 5. Section 3 reads: "A court on application shall enforce, and may make such orders as it considers necessary to give effect to, a custody order made by an extra-provincial tribunal as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by the 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." As it is clear that the child had a real and substantial connection with Scotland when both custody orders were made, nothing in this section would allow me to disregard the Scottish orders. That being established, two sections allow me to make an inconsistent order. 13. Section 4(1) reads: "Notwithstanding the existence of a custody order affecting a child made by an extra-provincial tribunal, a court on application may make a custody order in respect of the child that differs from the custody order made by the extra-provincial tribunal, if it is satisfied (a) that the child affected does not, at the time the application is made, have a real and substantial connection with the province, state or country in which the custody order made by the extra-provincial tribunal was made or was last enforced; and (b) that the child has a real and substantial connection with Manitoba or all the parties affected by the custody order are habitually resident in Manitoba." To make an order under this section, I would have to find that the child did not, on February 3, 1993, have a real and substantial connection with Scotland, and had a real and substantial connection with Manitoba. I can dispose of this issue easily on the facts. The child was born in Scotland, always lived in Scotland, and came to Canada only in December, 1992. Ms. Thomson brought the child here in December for a visit only, and sometime thereafter, but prior to swearing an affidavit on January 22, 1993, she decided to remain here permanently. The child has lived most of his life in Scotland, had only been in Canada two months prior to the application for custody being made here, and it is clear that the real and substantial connection of the child is with the country of Scotland, and not the Province of Manitoba. 14. Section 5 reads as follows: "Notwithstanding any other provision of this Act, where 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 made by an extra provincial tribunal, the court may make a custody order in respect of the child that differs from the custody order made by the extra-provincial tribunal." It is to this issue that most of the argument was addressed. 15. Because the issue of serious harm is reserved to the Manitoba court, it is argued that I should direct a trial of that issue, and not decide the matter on affidavit material. It is pointed out that there appear to be inconsistent tests set out in s. 5 of the ACT and Article 13 of the Convention, and that the lesser test should apply. In particular, while s. 5 of the ACT uses the words "serious harm", Article 13 of the Convention states, in part, the following: "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: (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. If I were to apply the lesser test, I would not need to find serious harm, or even a grave risk of physical or psychological harm, but merely an "intolerable situation". 16. While it is not necessary for me to decide the issue, as I do not find that either test has been met, the Manitoba Court of Appeal decision in Lavitch v. Lavitch (1985), 37 Man.R. (2d) 261, provides guidance, our Court of Appeal having discussed the very issue of the apparent inconsistencies between the ACT and the Convention. In particular, the Court of Appeal has stated "... that the legislative intent was to make the circumstances and exceptions of the Convention applicable to all cases of enforcement of foreign custody orders and that the ACT should be construed accordingly. In the result, a Manitoba court need not order the return of a child to a foreign jurisdiction in those circumstances set out in the ACT or the Convention .... " (p. 265) 17. I am not prepared to order the trial of the issue because there is no real allegation of either serious harm or an intolerable situation. The affidavit material of Ms. Thomson does not even allege, let alone prove, one or the other of these elements. Both of her affidavits clearly state why she believes Matthew's best interests would be served if he remained in Canada. Her affidavits are worded in exactly those terms. I accept that she need not use the words "serious harm" or "intolerable situation" to establish her claim, and that she need only provide the appropriate facts from which the court can find serious harm or an intolerable situation. However, the tenor and language of her affidavits convince me, not that she is concerned about any serious harm or an intolerable situation, but that she truly sees the issue of remaining in Canada as a best interests issue. 17. Without intending to be exhaustive in listing her evidence, but to give the flavor of it, she states that Mr. Thomson has never bathed the baby or changed a diaper; that he is unemployed and on welfare, with only a grade 11 education and no ambition to improve himself; that he spent too much money during the marriage fixing up his car; that he had connived at keeping the child with his parents, and away from her, for a week prior to their separation; that the area of Scotland in which Mr. Thomson lives is depressed, with no reasonable opportunities for employment or education; that he had been threatening and intimidating her prior to separation; that he had threatened to take the child to England; and that the caravan they had lived in was cold and drafty and singularly unsuitable for a child (Mr. Thomson now lives with his parents, as the parties did for part of the marriage). 19. Despite current allegations of safety issues, Ms. Thomson called her husband, after she had been in Canada several weeks, to suggest that she return to Scotland and attempt a reconciliation. 20. The detailed, court-ordered assessment of Peter Matthews does not mention or allude to any safety issues whatsoever. It recommends that Ms. Thomson have custody because she is the better parent. It finds no particular fault with Mr. Thomson, except to the extent that he has less ambition than his wife, and relies too heavily on his parents in caring for the child - hardly serious harm or an intolerable situation. In fact, the child had lived half-time with the grandparents for a few months leading up to the separation, and the assessment stated that the baby was thriving. 21. The Lavitch case is particularly instructive on the way our court should approach this issue. In that case, the parties were divorced in 1979 and the children were the subject of a joint custody order, with the mother having the primary physical care of the children. There was a restriction against removing the children from southern California. In 1985, Mrs. Lavitch left California and came to Manitoba, applied here and obtained an ex parte order of custody, and applied for a continuation of that order until trial. Meanwhile, the husband had obtained an ex parte order in California awarding him sole custody, and he applied in Manitoba for enforcement of the California orders. 22. The motions judge found that it was in the best interests of the children to remain with Mrs. Lavitch, but that the administration of justice could only be served by her being required to return to California to bring custody proceedings there. He found that the children wished to remain with their mother and were, at best, ambivalent about a relationship with their father. He ordered that Mrs. Lavitch proceed with a custody application expeditiously in California, but that she have interim custody. 23. The Court of Appeal overturned that order, and directed a trial on the issue "... as to whether or not the order of the Superior Court of California should be enforced (which will involve the questions of risk of harm to the children, of them being put in an intolerable situation and of whether or not they have attained the age and degree of maturity at which it is appropriate to take account of their views and whether or not they do object to being returned to California)." (p. 267) The comments with respect to age and degree of maturity, and whether or not they object to being returned to California, relate to other criteria set out in the Convention to which I have previously not referred, as they are not relevant to this case. 24. The Court of Appeal found that the motions judge "... gave too much consideration to the importance of recognizing the order of an extra-provincial tribunal and insufficient consideration to the risk of harm to the children or of placing them in an intolerable situation. He gave no consideration to the objections of the children or to their degree of maturity which would have entitled him to take account of their views. The effect of the interim order was to surrender to the Superior Court of California the custody jurisdiction without a decision first being made as to the issues reserved to the Manitoba court for decision." (p. 266) 25. Twaddle, J.A., speaking for the court, went on further to say however: "If the children were of such a tender age that their objections should not be a factor and if no serious question of there being a risk of harm to them arose (other grounds for refusing to order the return of the children under the ACT or the Convention not arising), it would be appropriate to make an order of the nature made by the learned judge in this case." (p. 266) (emphasis mine) 26. Applying that statement to the facts of this case, I find: (a) that Matthew is obviously of such a tender age that his objection would not be a factor; (b) there is no serious question of a risk of harm; and (c) there are no other grounds under the ACT or Convention for refusing to order the return of the child. The case would therefore direct, or at least allow, that it is appropriate in this case, and based on my findings, to make an order of the nature made by the learned trial judge in that case. 27. The differences in the factual bases between that case and this are readily apparent. In particular, the motions judge found that the children (who were 12 and 13) wished to remain with their mother and were, at best, ambivalent about the relationship with their father. He further found that emotional, if not physical, harm might come to the children if he gave effect to the California order. As a result, two of the criteria in the Act or Convention, which would have allowed him to make a custody order inconsistent with the California order, were, in fact, present. Given his acknowledgment of those issues, the Court of Appeal found that the matter should proceed to trial to further explore those matters, rather than deciding them on affidavit evidence. In summary, the court said: "Only where there is a bona fide allegation of risk of harm to children or objection by a child of an age of discretion or other condition precedent contained in the Act or Convention will a Manitoba court consider the objection to enforcement ...." (p. 267) 28. Having decided that there is no reason not to enforce the order of the Scottish court, I turn to s. 6 of the Act. It provides: "Upon application, a court, (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Manitoba; or (b) that may not exercise jurisdiction under section may do any one or more of the following: (c) Make such interim custody order as the court considers is in the best interests of the child. (d) Stay the application subject to, ( i ) the condition that a party to the application promptly commence or proceed expeditiously with a similar proceeding before an extra-provincial tribunal, or (ii) such other conditions as the court considers appropriate. (e) Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application." 29. I am satisfied that pursuant to s. 6(a) or s. 6(b), I may make an interim order. Particularly with respect to s. 6(a), 1 am satisfied that the child has been wrongfully removed to or is being wrongfully retained in Manitoba. 30. Ms. Thomson argues that the removal or retention is not wrongful, based on Article 3 of the Convention. It states, in part: "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 ..." 31. She argues that she did not remove the child: (a) in breach of the November 27, 1992 order because that order gave her custody. While she removed the child contrary to the non-removal provisions of an order, she argues that that is not wrongful as it is not stated to be wrongful in the Act or Convention. (b) in breach of the February 3, 1993 order because the child had already been in Canada for two months at the time that order was made. 32. She argues that she did not retain the child: (a) in breach of the November 27, 1992 order, once again because it gave her custody. (b) in breach of the February 3, 1993 order because to do so she would have to be in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the retention, and she argues that the child was habitually resident in Manitoba immediately before the February 3, 1993 order. 33. I find that the child was both wrongfully removed and, subsequently, wrongfully retained, and in particular: (a) the removal was in breach of rights of custody in the November 27, 1992 order because the custody awarded to Ms. Thomson was not unconditional. I see non-removal restrictions generally as a term of custody. Further, rights of custody are specifically defined in Article 5 as including "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence". Ms. Thomson was clearly given rights of custody which restricted her right to determine the child's place of residence and she is clearly in breach of that restricted right of custody. (b) the retention was in breach of rights of custody in the February 3, 1993 order, as I cannot accept that "under the law of the State in which the child was habitually resident immediately before the ... retention" can be interpreted to mean Manitoba. To accept that interpretation would be to accept that a parent is entitled to hide a child in Manitoba long enough to establish a habitual residence here for the child, and then argue successfully that they can only be guilty of retaining that child contrary to a Manitoba order and no other. Nothing could be further from the intent of the Act and Convention. 34. Having made the determination that the child has been wrongfully removed or retained, s. 6(c) of the Act allows me to make such interim custody order as is in the best interests of the child. I believe, on the evidence before me, that it is in the best interests of the child to remain, in the long-term, in the custody of his mother. That issue is not for me to determine, however, and the Scottish courts will determine what is in the continuing best interests of the child. On an interim basis, however, it is clearly in the best interests of the child that he not be removed from his mother's care, because he has been solely in her care for the last seven months (albeit as a result of her actions, that is not relevant to the child's best interests). The child appears to be happy and healthy in his mother's care and to abruptly terminate that care could not possibly be beneficial to the child pending a custody determination. As a result, I order that the interim custody of the child be granted to Ms. Thomson. The child is to be returned to the jurisdiction in Scotland in which the order was made, and to ensure that she proceeds expeditiously to have matters resolved in Scotland, I am prepared to arbitrarily grant custody to her for a period of four months only, at which time my order will expire. 35. While it has not been made clear to me by counsel what proceedings may be available to Ms. Thomson in Scotland given that a final order has been granted and appealed, we must presume that the Scottish court will grant audience to her to determine this very important issue, which has not been fully determined there on the merits. /s/ C. M. Davidson Footnote by Wm. M. Hilton -------------------- 1. What ever may be the practice in this Court, The Convention is not a means of enforcing a custody determination of the Habitual Residence. Its sole purpose, other than at Art. 21 (Access) is to cause the return of a child who has been "Wrongfully" removed or retained from its Habitual Residence to that Habitual Residence.