Aulwes v. Mai, 2002 NSCA 95

• Judge: Flinn, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 20, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSCA 95;(2002), 206 N.S.R.(2d) 312 (CA)

Aulwes v. Mai (2002), 206 N.S.R.(2d) 312 (CA);

 645 A.P.R. 312

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. AU.007

Cheryl Lynn Mai (applicant/appellant) v. John Emil Aulwes (respondent) and Andrew David Mai (third party)

(CA 180806; 2002 NSCA 95)

Indexed As: Aulwes v. Mai

Nova Scotia Court of Appeal

Flinn, J.A.

June 27, 2002.

Summary:

Parents of a now 11 year old girl were married in Iowa in 1990 and separated in 1992. They divorced and joint custody was awarded. The mother, intent on denying the father access, went "underground" and fled to Canada with the child after allegations of abuse of the child by the father were investi­gated and found unsubstantiated. The mother used fraudulent passports and fictitious names and remained undetected until found in Nova Scotia in July 2001. The father applied under the Child Abduction Act, which incorporated the Convention on the Civil Aspects of International Child Abduc­tion, for an order requiring the return of the child to Iowa.

The Nova Scotia Supreme Court, in a judgment reported (2002), 204 N.S.R.(2d) 349; 639 A.P.R. 349, ordered the return of the child. The child was admittedly wrong­fully removed from her habitual residence. Although the child wished to remain in Nova Scotia, those views were the views of her mother and not an expression of her inde­pendent will. The court found no basis to exercise its discretion to refuse to order a return of the child. There was no grave risk of physical or psychological harm if the child was returned and the mother failed to establish that the child was "settled in" her new environment. The mother applied to stay execution of the order pending an ap­peal.

The Nova Scotia Court of Appeal, per Flinn, J.A., granted a stay.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The parents of a now 11 year old girl were married in Iowa in 1990 and separated in 1992 - They divorced and joint custody was awarded - In 1995, the mother, ob­sessed with denying the father access, surreptitiously fled to Canada with the child after allegations that the father physi­cally and sexually abused the child were investigated and found unsubstantiated - The mother used fictitious names and re­mained undetected until found in Nova Scotia in July 2001 - The father applied under the Child Abduction Act for an or­der that the child be returned - The Nova Scotia Supreme Court granted the return order, finding that the child was not "settled" in her new environment, there was no grave risk of physical or psycho­logical harm if returned and the child's objections to being returned were her mother's, not her own - The mother ap­pealed and sought a stay of the return order pending the appeal - The Nova Scotia Court of Appeal, per Flinn, J.A., granted a stay - There were arguable issues on appeal, failure to grant a stay would render the appeal nugatory and the appeal was to be heard in three months on an ex­pedited basis, which favoured maintain­ing the status quo.

Family Law - Topic 2162

Custody and access - Enforcement of or­ders - International conventions - [See Family Law - Topic 1965 ].

Practice - Topic 5948

Judgments and orders - Enforcement of or­ders - Stay of - [See Family Law - Topic 1965 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending ap­peal - When appellant entitled to stay - [See Family Law - Topic 1965 ].

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 16].

Millett v. Millett (1974), 9 N.S.R.(2d) 26 (C.A.), refd to. [para. 19].

Routledge v. Routledge (1986), 74 N.S.R.(2d) 290; 180 A.P.R. 290 (C.A.), refd to. [para. 19].

Ryan v. Ryan (1999), 175 N.S.R.(2d) 370; 534 A.P.R. 370 (C.A.), refd to. [para. 20].

Ellis v. Ellis (1998), 163 N.S.R.(2d) 397; 487 A.P.R. 397 (S.C.), refd to. [para. 20].

Children's Aid Society of Halifax v. B.M.J. (2000), 189 N.S.R.(2d) 192; 590 A.P.R. 192 (S.C.), refd to. [para. 20].

Falkiner et al. v. Director of Income Main­tenance (Ont.) et al. (2000), 136 O.A.C. 100; 189 D.L.R.(4th) 377 (C.A.), refd to. [para. 24].

J.A.P. v. R.S.P., [1998] O.A.C. Uned. 457 (C.A.), refd to. [para. 26].

A.F.J.C. v. G.M., [1999] O.J. No. 2657 (C.A.), refd to. [para. 26].

Maharaj v. Maharaj (2001), 146 O.A.C. 317 (C.A.), refd to. [para. 26].

McCulloch v. McInnes, Cooper & Robertson (2000), 186 N.S.R.(2d) 398; 581 A.P.R. 398 (C.A.), refd to. [para. 31].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 62.10 [para. 15].

Convention on the Civil Aspects of Inter­national Child Abduction, Can. T.S. 1983, No. 35, art. 1, art. 12, art. 13, art. 16 [para. 7].

Counsel:

Craig M. Garson, Q.C., for the appellant;

Christopher S. Berryman, for the respon­dent;

Myra L. Gillis, for the third party;

Alan J. Stern, Q.C., for the child, Kathryn Marie Aulwes.

This application was heard on June 20, 2002, in Chambers before Flinn, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on June 27, 2002.