Aulwes v. Mai, 2002 NSCA 127

• Judge: Roscoe, Freeman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 23, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSCA 127;(2002), 209 N.S.R.(2d) 248 (CA)

Aulwes v. Mai (2002), 209 N.S.R.(2d) 248 (CA);

 656 A.P.R. 248

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. NO.046

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

(CA 180806; 2002 NSCA 127)

Indexed As: Aulwes v. Mai

Nova Scotia Court of Appeal

Roscoe, Freeman and Cromwell, JJ.A.

October 23, 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 appealed.

The Nova Scotia Court of Appeal dis­missed the appeal, with the exception of setting aside the order for an immediate return and imposing transitional arrange­ments for the child's return.

Family Law - Topic 1961

Custody and access - Child abduction legislation - General - The Nova Scotia Court of Appeal stated that the fundamen­tal and animated principle of the Conven­tion on the Civil Aspects of International Child Abduction was that "a child's best interests should be determined by the courts of the place of habitual residence" - Any exception to ordering a child return, such as risk of physical or psychological harm or where the child was now "settled in", should be narrowly interpreted so as not to undermine the purpose of the Con­vention - The court stated that "the rele­vant objectives include first, general deterrence of international child abduction by parents; second, prompt return of the child facilitated by precluding full inquiry into the 'best interests' of the child in the state to which the abductor has fled with the child; third, restoration of the status quo; and, fourth, entrusting to the courts of the place of habitual residence the ultimate determination of what the best interests of the child required" - See paragraphs 22 to 32, 68.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - 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 trial judge, in granting the return order, stated that the child was to be returned unless the child was "settled" in its new environment or there was a grave risk of physical or psychological harm or if the child (who was of sufficient age and ma­turity to have her views considered) objected to being returned - The child was admittedly wrongfully removed from her habitual residence - Although the child objected to being returned, that reflected the mother's views and not the child's independent will - 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 and child were both illegally in Canada, the mother's most recent marriage broke up, and she was restricted from working in Canada - "Doing well" in her new home was insuf­ficient to constitute being "settled in" - There was little future stability for the child in Nova Scotia - The Nova Scotia Court of Appeal held that the trial judge did not err in finding no risk of harm and that the child was not "settled in" - See paragraphs 39 to 97.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - [See Family Law - Topic 1963 ].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - The Nova Scotia Court of Appeal stated that "counsel appearing on a Convention application should deal fully with the issue of how the child should be returned if return is or­dered" - Transitional provisions for return of a child had the object of ameliorating any harm to the child result­ing from the return order - Transitional provisions will often be unnecessary - In the usual case, a return order would simply restore the child promptly to the custody of the parent who had been exercising care and control of the child prior to the abduc­tion - If transitional provisions are neces­sary, they are limited to the time frame between the return order and the time the child is taken before the courts in the place of the child's habitual residence - See paragraphs 98 to 105.

Family Law - Topic 2162

Custody and access - Enforcement of orders - International conventions - [See Family Law - Topic 1963 ].

Words and Phrases

Settled in - The Nova Scotia Court of Appeal discussed the meaning and scope of the words "settled in", as found in art. 12 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, as incorporated by the Schedule to the Child Abduction Act, R.S.N.S. 1989, c. 67 - See paragraphs 60 to 94.

Cases Noticed:

De L v. Director General, New South Wales Department of Community Ser­vices and De L (1996), 187 C.L.R. 640 (Aust. H.C.), refd to. [para. 25].

Medhurst v. Markle (1995), 26 O.R.(3d) 178 (Gen. Div.), refd to. [para. 26].

Finizio v. Scoppio-Finizio (1999), 124 O.A.C. 308; 46 O.R.(3d) 226 (C.A.), refd to. [para. 26].

C. v. C., [1987] 1 W.L.R. 654 (Eng. C.A.), refd to. [para. 26].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 27].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 27].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 38].

Soucie v. Soucie, [1995] S.L.T. 414 (Sco. Ext. Div.), refd to. [para. 62].

Mahler v. Mahler (1999), 143 Man.R.(2d) 56; 3 R.F.L.(5th) 428 (Q.B.), affd. (2000), 142 Man.R.(2d) 319; 212 W.A.C. 319 (C.A.), refd to. [para. 75].

New Brunswick (Attorney General) v. Majeau-Prasad (2000), 229 N.B.R.(2d) 296; 592 A.P.R. 296; 10 R.F.L.(5th) 389 (Q.B.), refd to. [para. 76].

Ayala v. Ayala, [1990] O.J. No. 2751 (Prov. Ct.), refd to. [para. 82].

Bielawski v. Lozinska, [1997] O.J. No. 3214 (Prov. Div.), refd to. [para. 82].

French v. Onderik, [1995] O.J. No. 3626 (Prov. Div.), refd to. [para. 82].

N.P. v. A.B.P., [1998] Q.J. No. 4097 (S.C.), refd to. [para. 82].

Szalas v. Szabo, [1995] O.J. No. 1918 (Prov. Div.), refd to. [para. 82].

Director-General Department of Families, Youth and Community Care v. Moore, [1999] Fam. C.A. 284 (Aust. Fam. Ct.), refd to. [para. 82].

P.M.M.(A.P.) v. S.K.L., [2000] Scot. T. No. 124 (Ct. Sess.), refd to. [para. 87].

Statutes Noticed:

Convention on the Civil Aspects of Inter­national Child Abduction, Can. T.S. 1983, No. 35, art. 12, art. 13 [para. 33].

Authors and Works Noticed:

Beaumont, Paul R., and McEleavy, Peter E., The Hague Convention on Inter­national Child Abduction (1999), pp. 203, 204 [para. 65].

Bourque, Stephen, et al., Issues Surround­ing the Return of the Child (and the Custodial Parent), Hague Convention of the Civil Aspects of Child Abduction, Discussion Topic No. 3, September 18-21, 2000, generally [para. 105].

Dicey and Morris, The Conflict of Laws (13th Ed. 2000), para. 19-096 [para. 83].

Pérez-Vera, Elisa, Explanatory Notes (1982), 2 Acts and Documents of the 14th Session of the Hague Conference on Private International Law 426, pp. 429 [para. 29]; 458 [para. 66].

Counsel:

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

Christopher S. Berryman, for the respon­dent;

Myrna L. Gillis, for the third party;

Alan J. Stern, Q.C., for the child, Katie Aulwes.

This appeal was heard on September 11 and October 4, 2002, at Halifax, N.S., before Roscoe, Freeman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On October 23, 2002, Cromwell, J.A., de­livered the following judgment for the Court of Appeal.