D.R. v. A.A.K., (2006) 396 A.R. 33 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 24, 2006
• Citations: (2006), 396 A.R. 33 (QB);2006 ABQB 286

D.R. v. A.A.K. (2006), 396 A.R. 33 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MY.033

In The Matter Of the Hague Convention on the Civil Aspects of International Child Abduction;

And In The Matter Of A.L.R. born September 2001.

D.R. (plaintiff) v. A.A.K. (defendant)

(0501 09437; 2006 ABQB 286)

Indexed As: D.R. v. A.A.K.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

January 24, 2006.

Summary:

A child was born in France to unmarried parents in September 2001, after they separated. The mother was a Canadian citizen working and living in France. The father was a French citizen. During ongoing custody and access proceedings in French courts, the mother denied the father access on the basis of his alleged sexual touching of the child. When the mother learned that police were looking for her with a warrant to enforce court-ordered access, she fled with the child to Calgary to stay with her extended family. The mother applied under the Domestic Relations Act for sole custody of the child. In 2005, the father applied under the International Child Abduction Act (Hague Convention) for an order that the wrongfully removed child be returned to France. The mother relied on article 13(b) of the Hague Convention, which provided that the court could refuse to return a child where there existed a grave risk that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The Alberta Court of Queen's Bench dismissed the father's application. The mother had no choice but to remove the child from the jurisdiction. The mother met the heavy onus under article 13(b) of establishing that returning the child to France would expose the child to a grave risk of physical and psychological harm and would place the child in an intolerable situation. The court was satisfied that the alleged sexual abuse occurred. French authorities failed to take adequate precautions to protect the child pending resolution of the alleged sexual abuse and were unwilling to do so in the future.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See second Family Law - Topic 1968 ].

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - A child was born in France to unmarried parents in September 2001, after they separated - The mother was a Canadian citizen working and living in France - The father was a French citizen - During ongoing custody and access proceedings in French courts, the mother denied the father access on the basis of his alleged sexual touching of the child - When the mother learned that police were looking for her with a warrant to enforce court-ordered access, she fled with the child to Calgary - The mother applied under the Domestic Relations Act for sole custody of the child - The father applied under the International Child Abduction Act (Hague Convention) for an order that the wrongfully removed child be returned to France - The mother relied on article 13(b) of the Hague Convention, which provided that the court could refuse to return a child where there existed a grave risk that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation - The Alberta Court of Queen's Bench dismissed the father's application - French authorities failed to take adequate precautions to protect the child pending resolution of the allegation of sexual improprieties - The mother had no choice but to remove the child from the jurisdiction - The court was satisfied that sexual touching occurred - Returning the child to France before the allegations were resolved would expose the child to a grave risk of physical and psychological harm and would place the child in an intolerable situation - The court was not satisfied that French authorities had taken, or were willing in the future to take, adequate steps to ensure protection of the child.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - Article 13(b) of the Hague Convention, a Schedule to the International Child Abduction Act, provided that the court was not required to return a wrongfully removed child to another jurisdiction if it would result in a "grave risk" that the child would be exposed to "physical or psychological harm or otherwise place the child in an intolerable situation" - The Alberta Court of Queen's Bench stated that "the court must maintain a clear distinction between a standard custody and access analysis ('best interests of the child') and the factors required to decide jurisdiction for custody and access issues under Article 13(b) of the Convention. In the latter, the issue at Bar, the defence is to be interpreted narrowly, a 'grave risk of harm' equates directly to the creation of 'an intolerable situation', the standard is an extremely stringent one, and the onus rests on the one seeking to rely on the defence. Although the test is not 'best interests of the child', it is clear, however, that the focus must be on the particular child and the risk of harm that individual is alleged to face in the event of a return. The cases suggest that matters such as alcoholism, lack of financial support, confrontational and abusive behaviour to the other parent, even if proved, would not necessarily satisfy the grave risk test, but that serious physical abuse, emotional abuse or neglect of the child by a custodial parent clearly would. The cases also illustrate the use of undertakings to manage any alleged risk of 'grave harm' or unwarranted short term harm and control return of the child to the original State." - See paragraph 41.

Family Law - Topic 1968

Custody and access - Child abduction legislation - Evidence - Article 13(b) of the Hague Convention, a Schedule to the International Child Abduction Act, provided that the court was not required to return a wrongfully removed child to another jurisdiction if it would result in a "grave risk" that the child would be exposed to "physical or psychological harm or otherwise place the child in an intolerable situation" - The Alberta Court of Queen's Bench held that evidence of a mere possibility of a "grave risk" of harm was not sufficient - The person opposing return must prove the "grave risk" on a balance of probabilities - See paragraph 13.

Family Law - Topic 1968

Custody and access - Child abduction legislation - Evidence - Article 13(b) of the Hague Convention, a Schedule to the International Child Abduction Act, provided that the court was not required to return a wrongfully removed child to another jurisdiction if it would result in a "grave risk" that the child would be exposed to "physical or psychological harm or otherwise place the child in an intolerable situation" - A mother fled France with her child after allegations that the father sexually abused the child - The father applied under the Hague Convention for a return of the child - The mother conceded that but for her article 13(b) "defence", a return order was appropriate - At issue was the admissibility of hearsay statements of what the now 4.5 year old child said to third parties about her father's conduct - The Alberta Court of Queen's Bench held that the statements were admissible on the basis that they were both necessary and reliable - The child was unable to testify by reason of age and psychological harm - The child was unlikely motivated to fabricate the statements - The child had the personality, intelligence and understanding to know what was done to her was wrong - The probative value of the statements significantly outweighed their prejudicial effect - See paragraphs 15 to 25.

Family Law - Topic 2162

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

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 15].

D.R.H. et al. v. Superintendent of Family and Child Services et al. (1984), 41 R.F.L.(2d) 337 (B.C.C.A.), refd to. [para. 15].

MacPhail v. Director of Child Welfare (P.E.I.) (1986), 60 Nfld. & P.E.I.R. 32; 181 A.P.R. 32; 3 R.F.L.(3d) 181 (P.E.I.C.A.), refd to. [para. 15].

M.(W.) v. Director of Child Welfare (P.E.I.) - see MacPhail v. Director of Child Welfare (P.E.I.).

W.M. v. Director of Child Welfare (P.E.I.) - see MacPhail v. Director of Child Welfare (P.E.I.).

R. v. Morehouse (I.F.) (2003), 353 A.R. 198; 2004 ABQB 97, refd to. [para. 17].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 17].

Ferguson v. Ranger Oil Ltd. (1997), 193 A.R. 210; 135 W.A.C. 210 (C.A.), refd to. [para. 17].

J.M., Re, [1995] A.J. No. 170 (C.A.), refd to. [para. 17].

Ford et al. v. Kennie et al. (2002), 210 N.S.R.(2d) 50; 659 A.P.R. 50; 2002 NSCA 140, refd to. [para. 17].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 20].

R. v. Tran (Q.D.) (2001), 190 N.S.R.(2d) 18; 594 A.P.R. 18; 150 C.C.C.(3d) 481 (C.A.), refd to. [para. 22].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 22].

R. v. Morrissey, [2001] O.J. No. 498 (C.J.), refd to. [para. 24].

R. v. Gurtler (G.R.) (1996), 149 Sask.R. 116 (Q.B.), refd to. [para. 24].

R. v. Campeau (1983), 42 A.R. 81 (C.A.), refd to. [para. 25].

R. v. Lavallee (1990), 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 25].

R. v. Abbey (1982), 43 N.R. 30; 68 C.C.C.(2d) 394 (S.C.C.), refd to. [para. 25].

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. 28].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 30].

A. v. Central Authority for New Zealand, [1996] 2 NZLR 517 (C.A.), refd to. [para. 31].

D.P. v. Commonwealth Central Authority; J.L.M. v. Director General New South Wales Department of Community Services, [2001] C.L.R. 401 (A.H.C.), refd to. [para. 31].

J.A.P. v. R.S.P. (1999), 118 O.A.C. 169 (C.A.), refd to. [para. 32].

Pollastro v. Pollastro - see J.A.P. v. R.S.P.

Sierra v. Sierra, [2001] O.T.C. Uned. 502 (Sup. Ct.), refd to. [para. 33].

K.J.G. v. K.J.B., [2000] A.J. No. 290 (Q.B.), refd to. [para. 34].

Friedrich v. Friedrich (1996), 78 F.3d 1060, refd to. [para. 34].

Rodriguez v. Rodriguez (1999), 33 F.Supp.2d 456 (D. Md.), refd to. [para. 35].

Blondin v. Dubois (1998), 19 F.Supp.2d 123 (S.D.N.Y.), refd to. [para. 36].

Blondin v. Dubois (2001), 238 F.3d 153 (U.S. App.), refd to. [para. 37].

Finizio v. Scoppio-Finizio (1999), 124 O.A.C. 308 (C.A.), refd to. [para. 38].

Mahler v. Mahler (1999), 143 Man.R.(2d) 56 (Q.B.), affd. (2000), 142 Man.R.(2d) 319; 212 W.A.C. 319 (C.A.), refd to. [para. 39].

J.T.Z. v. S.K., [2001] A.R. Uned. 221; 2001 ABQB 607, refd to. [para. 40].

Moller v. Despoja-Moller, [2001] O.J. No. 5170 (Sup. Ct.), refd to. [para. 44].

Aulwes v. Mai (2002), 209 N.S.R.(2d) 248; 656 A.P.R. 248; 2002 NSCA 147, affing. (2002), 204 N.S.R.(2d) 349; 639 A.P.R. 349; 2002 NSSC 128, refd to. [para. 45].

Seipp v. Seipp, [2002] B.C.T.C. 669; 2002 BCSC 669, refd to. [para. 46].

J.R.C. v. L.C.M.C. (2003), 233 Nfld. & P.E.I.R. 1; 693 A.P.R. 1; 2003 NSSCTD 173, [para. 49, footnote 10].

Rechsteiner v. Kendell (1998), 75 O.T.C. 114 (Gen. Div. Fam. Ct.), affd. (1999), 125 O.A.C. 356 (C.A.), refd to. [para. 50].

Struweg v. Struweg (2001), 208 Sask.R. 243; 2001 SKQB 283 (Fam. Div.), refd to. [para. 51].

Authors and Works Noticed:

Beaumont and McEleavy, The Oxford Monographs in Private International Law: The Hague Convention on International Child Abduction (1999), c. 9, p. 140 [para. 29]; 142 [para. 42].

Hague Conference on Private International Law, The Latin American Judges' Seminar on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague: HCCH, 2004), para. 2 [para. 26]; 4, 5 [para. 31].

Pérez-Vera, Elisa, Hague Conference on Private International Law (Permanent Bureau), Explanatory Report (1982), paras. 16 [para. 26]; 34 [para. 31]; 35 [para. 26]; 113 to 118 [para. 31].

United States, State Department Office of Children's Issues, Common Law Judicial Conference on International Parental Child Abduction, Washington D.C., 17-21 (2000), para. 2 [para. 26].

Counsel:

Sarah J. King D'Souza, for the plaintiff;

Brian A.F. Edy, for the defendant.

This application was heard from January 14-24, 2006, before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who orally decided the matter on January 24, 2006, with written reasons provided on April 24, 2006.