Garcia Perez v. Polet,

• Jurisdiction: Manitoba
• Judge: Steel, J.A.
• Court: Court of Appeal (Manitoba)
• Citation: (2014), 310 Man.R.(2d) 48 (CA),2014 MBCA 82
• Date: 07 August 2014

Garcia Perez v. Polet (2014), 310 Man.R.(2d) 48 (CA);

      618 W.A.C. 48

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. SE.015

Marco Antonio Garcia Perez (applicant/respondent) v. Jean Polet and Bert Polet (respondents/respondents) and Melinda Joy Polet (respondent/appellant)

(AF 14-30-08222; 2014 MBCA 82)

Indexed As: Garcia Perez v. Polet

Manitoba Court of Appeal

Steel, J.A.

August 11, 2014.

Summary:

In June 2013, the court found that a child had been wrongfully removed or abducted by the child's maternal grandparents to Manitoba from Hawaii. The grandparents conceded that the child had been wrongfully removed. The stated reason for the abduction was that the father had initiated child protection proceedings due to the child's allegedly inappropriately sexualized behaviour. The court ordered the child's return to Hawaii under the Hague Convention on the Civil Aspects of International Child Abduction. However, the mother and child were turned back at the border for having over-stayed their visitor status in the U.S. In June 2014, the parties brought a number of motions, including the mother's request that the court rescind the return order and the father's request for a financial contribution from the grandparents regarding the costs of the process of obtaining a visa for the child.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2014), 308 Man.R.(2d) 111, confirmed its June 2013 return order. The court ordered the grandparents to pay $10,000 forthwith to the father's counsel to be held in trust for the father's travel costs regarding the child's visa. The mother appealed and moved for an order staying the return order pending the appeal.

The Manitoba Court of Appeal, per Steel, J.A., denied the motion.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - In moving for a stay of a return order under the Hague Convention on the Civil Aspects of International Child Abduction, the mother relied in part on the parens patriae jurisdiction of the court - The Manitoba Court of Appeal, per Steel, J.A., stated, "Parens patriae jurisdiction of the court is ousted when the legislation assumes this jurisdiction. The court only retains jurisdiction to intervene on behalf of children where the state has not legislated [or] where there is a gap in the legislation. In this case, Canada is a signatory to the Hague Convention and Manitoba, adopting that the Hague Convention has agreed in an international forum that we will abide by its provisions. The court cannot intervene in contravention of legislation on point." - See paragraphs 41 and 42.

Family Law - Topic 1962

Custody and access - Child abduction legislation - Jurisdiction - [See Courts - Topic 2004].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - In June 2013, the court found that a child had been wrongfully removed or abducted by the child's maternal grandparents to Manitoba from Hawaii and ordered the child's return to Hawaii under the Hague Convention on the Civil Aspects of International Child Abduction - However, the mother and child were turned back at the border for having over-stayed their visitor status in the U.S. - In June 2014, the mother asked the court to rescind the return order, asserting that the exception in art. 13(b) of the Convention applied because the child's connection to the father had diminished with time, the child would have to return to Hawaii without the mother and the child (presently aged eight) did not wish to do so - Allen, J., confirmed the June 2013 return order - The mother appealed and moved for an order staying the return order pending the appeal - The Manitoba Court of Appeal, per Steel, J.A., denied the motion - Allen, J.'s findings of fact and credibility deserved deference - Her decision not to hear the child's wishes was a discretionary one - Her determination that the mother had not established that separating the child from her mother pending the mother's visa application carried with it a "grave risk of psychological harm" or would place the child in an intolerable situation was a decision well supported by the law and facts - The appeal did not raise an arguable case that had a reasonable chance of success - See paragraphs 16 to 32.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - In June 2013, the court found that a child had been wrongfully removed or abducted by the child's maternal grandparents to Manitoba from Hawaii and ordered the child's return to Hawaii under the Hague Convention on the Civil Aspects of International Child Abduction - However, the mother and child were turned back at the border for having over-stayed their visitor status in the U.S. - In June 2014, the mother asked the court to rescind the return order, asserting that the exception in art. 13(b) of the Convention applied because the child's connection to the father had diminished with time, the child would have to return to Hawaii without the mother and the child (presently aged eight) did not wish to do so - Allen, J., confirmed the June 2013 return order - The mother appealed and moved for an order staying the return order pending the appeal - The Manitoba Court of Appeal, per Steel, J.A., denied the motion - On the issue of irreparable harm, the court noted that Allen, J., had found that the child and father had a relationship and had maintained contact throughout the separation - She was being returned to her habitual residence where she had stepsiblings, a half brother and a stepmother - It was up to the Hawaiian court to determine custody and Hawaii was where most of the potential witnesses in an eventual custody trial resided - See paragraphs 33 to 37.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - In June 2013, the court found that a child had been wrongfully removed or abducted by the child's maternal grandparents to Manitoba from Hawaii and ordered the child's return to Hawaii under the Hague Convention on the Civil Aspects of International Child Abduction - However, the mother and child were turned back at the border for having over-stayed their visitor status in the U.S. - In June 2014, the mother asked the court to rescind the return order, asserting that the exception in art. 13(b) of the Convention applied because the child's connection to the father had diminished with time, the child would have to return to Hawaii without the mother and the child (presently aged eight) did not wish to do so - Allen, J., confirmed the June 2013 return order - The mother appealed and moved for an order staying the return order pending the appeal - The Manitoba Court of Appeal, per Steel, J.A., denied the motion - The court rejected the mother's assertion that the balance of convenience favoured a stay because the outcome of her visa application should be known in the next few weeks or months and the appeal could be heard in the next few months - The Hague Convention's purpose was the child's prompt return - As the child would not suffer grave harm if returned without her primary caregiver, the balance of convenience favoured the father - See paragraphs 38 to 40.

Family Law - Topic 1968

Custody and access - Child abduction legislation - Evidence - The court found that a child had been wrongfully removed or abducted by the child's maternal grandparents to Manitoba from Hawaii and ordered the child's return to Hawaii under the Hague Convention on the Civil Aspects of International Child Abduction -The mother appealed and moved for a stay of the return order pending the appeal - In opposing the motion, Manitoba filed an affidavit from Post, who had attended the reunification of the child with her father and described the meeting - The mother asserted that the court should not consider the Post affidavit or the portions of the father's affidavit that described the meeting because they were filed so late that the mother had not had an opportunity to respond - The Manitoba Court of Appeal, per Steel, J.A., denied the mother's request - The mother had asked for relief on an urgent basis and for an abridgment of the time for filing and service - She could not now ask for an adjournment to allow the filing of material in response - See paragraphs 41 to 45.

Practice - Topic 8955.1

Appeals - Stay of proceedings pending appeal - Test for "merit to the appeal", "arguable issues", etc. - [See first Family Law - Topic 1965].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See second Family Law - Topic 1965].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See third Family Law - Topic 1965].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 13].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 13].

Leis v. Leis (2011), 275 Man.R.(2d) 55; 538 W.A.C. 55; 2011 MBCA 109, refd to. [para. 13].

Mahler v. Mahler (1999), 143 Man.R.(2d) 56; 3 R.F.L.(5th) 428 (Q.B.), 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. 26].

A.R. v. S.K. (1998), 58 O.T.C. 184 (Gen. Div.), refd to. [para. 27].

R.M. v. J.S. (2013), 566 A.R. 230; 597 W.A.C. 230; 2013 ABCA 441, refd to. [para. 29].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 41].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 46].

Oliver, Derksen, Arkin v. Fulmyk (1995), 126 D.L.R.(4th) 123 (Man. C.A.), refd to. [para. 46].

Authors and Works Noticed:

Hague Conference on Private International Law, Guide to Good Practice under Hague Convention on the Civil Aspects of International Child Abduction, Part IV, Enforcement (1980), <http://www.hcch.net/>, pp. 23, 24 [para. 51].

Counsel:

L.I.Z. Pinksy and K.M. Clarke, for the appellant;

E.G. Rice, for the respondent, M.A. Garcia Perez;

N.B. Fishman, for the respondents, J. Polet and B. Polet;

J.V. Sigurdson, for Central Authority for the Province of Manitoba.

This motion was heard in Chambers on August 7, 2014, by Steel, J.A., of the Manitoba Court of Appeal, who pronounced the following decision on August 11, 2014, with written reasons delivered on September 10, 2014.