Kubera v. Kubera, (2010) 284 B.C.A.C. 224 (CA)

• Judge: Levine, Chiasson and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 05, 2009
• Jurisdiction: British Columbia
• Citations: (2010), 284 B.C.A.C. 224 (CA);2010 BCCA 118

Kubera v. Kubera (2010), 284 B.C.A.C. 224 (CA);

    481 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MR.035

Andrzej Henryk Kubera (appellant/petitioner) v. Sylwia Anna Kubera (respondent/respondent)

(CA036463; 2010 BCCA 118)

Indexed As: Kubera v. Kubera

British Columbia Court of Appeal

Levine, Chiasson and Frankel, JJ.A.

March 9, 2010.

Summary:

A mother left Poland with her daughter in 2003 for a visit to Canada with the father's agreement. The mother did not return and had lived in British Columbia with the child ever since. The child had not seen her father since she came to Canada. The father sought the child's return to Poland pursuant to s. 55 of the Family Relations Act and the Convention on the Civil Aspects of International Child Abduction.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 958, dismissed the application. The court found that the child was wrongfully retained in Canada by the mother, but the child was now settled in Canada (Convention, art. 12) and should not be returned to Poland. The father appealed.

The British Columbia Court of Appeal dismissed the appeal. The chambers judge considered all of the relevant facts and principles and made no error in concluding that the child was now settled in her new environment and in refusing to order her return to Poland.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - A mother left Poland with her daughter in 2003 for a visit to Canada with the father's agreement - The mother did not return and had lived in British Columbia with the child ever since - The child had not seen her father since she came to Canada - The mother successfully applied for convention refugee status for herself and the child in 2006 - The child was doing well in school, had many friends, and was engaged in many extra-curricular activities - The father sought the child's return to Poland pursuant to s. 55 of the Family Relations Act and the Convention on the Civil Aspects of International Child Abduction - A chambers judge dismissed the application, finding that although the child was wrongfully retained in Canada by the mother, the child was now settled in Canada (Convention, art. 12) and should not be returned to Poland - The child was secure and stable in her new environment - The British Columbia Court of Appeal dismissed the father's appeal - The court agreed with the chambers judge that it had been established, with detailed and compelling evidence, that the child was now settled in her new environment, and the Convention did not require the court to order her return to Poland - The child had spent the past seven years of her life actively integrating, both physically and emotionally, to her new environment and community in Canada - She had legal status in Canada and there was no evidence that her current security and stability would change in the future - There was no longer a basis to assume that Poland, a country she had not lived in or visited since she was three, was a better forum to resolve the outstanding issues of custody and access.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The "now settled" exception in art. 12 of the Convention on the Civil Aspects of International Child Abduction provided that where proceedings were commenced after one year from the date of wrongful removal or retention of the child, the judicial or administrative authority shall order the return of the child unless it was demonstrated that the child was now settled in its new environment - The British Columbia Court of Appeal stated that this exception was a recognition that the interests of a child in not having his or her life disrupted once he or she had settled down in a new environment might, in a certain case, override the otherwise compelling need to protect all children from abduction - After one year, the immediate return envisaged by the Convention was no longer possible - Those policies that were presumed to justify mandatory repatriation in all cases prior to the expiry of the one year period would, with the passage of time, tend to weaken - Those that required consideration of the welfare and interests of the particular child tended to strengthen - The result was that the further one got from the objective of swift repatriation, the greater the likelihood that ordering the child's return would only "accentuate the harm caused by the wrongful relocation" - A court tasked with applying the exception had to determine, therefore, whether in the actual circumstances of the particular case, the balance between these considerations no longer supported what was otherwise a mandatory obligation to return the child - See paragraphs 36 to 39.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The "now settled" exception in art. 12 of the Convention on the Civil Aspects of International Child Abduction provided that where proceedings were commenced after one year from the date of wrongful removal or retention of the child, the judicial or administrative authority shall order the return of the child unless it was demonstrated that the child was now settled in its new environment - The British Columbia Court of Appeal stated that the Convention offered little assistance to a court approaching this difficult task - To determine if a child was "now settled" in its new environment, a "child-centric" factual inquiry had to be undertaken to determine the child's actual circumstances - It was to those circumstances that the policies and objectives of the Convention, which favoured prompt return, had to be applied - The relevant time for the factual assessment of the child's integration in the new environment was the date of the hearing, rather than the date when the application under the Convention was made - The plain language of art. 12 supported that conclusion - The drafters specified that the relevant question was whether the child was "now settled in its new environment" - A determination of whether the child was settled in the new environment could only occur after the court conducting the hearing had found that the child had been "wrongfully removed or retained" - As a result, any decision or demonstration regarding the child's settlement would have to occur at the time of the hearing - See paragraphs 40 to 69.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - The "now settled" exception in art. 12 of the Convention on the Civil Aspects of International Child Abduction provided that where proceedings were commenced after one year from the date of wrongful removal or retention of the child, the judicial or administrative authority shall order the return of the child unless it was demonstrated that the child was now settled in its new environment - A party argued that the very high burden required under art. 12 and that the test of "settling in" had to be very strictly applied, and only overwhelming evidence of a child's integration would suffice to override the otherwise mandatory obligation that demanded return in virtually all cases - The British Columbia Court of Appeal stated that "detailed and compelling evidence" was required to demonstrate that a child was settled in the new environment - The court had to be careful to look beyond the outward appearances and superficial realities to determine the actual degree of settlement - The threshold was high and required more than a mere physical adjustment to surroundings - Nonetheless, the court rejected the suggestion that the "now settled" exception required a level of settlement which was itself "exceptional", beyond the high standard already discussed - It was wrong to say that the evidence of settling in had to "overwhelm" Convention policy - The exceptions were themselves an expression of that policy - Although they had to be interpreted so as not to undermine the effectiveness of the Convention, to impose an additional exceptionality requirement would distort the "careful balances" of the Convention and rob the exceptions it specifically included of their intended effect - See paragraphs 73 to 77.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order (incl. stay of) - [See Family Law - Topic 1963 ].

Cases Noticed:

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 32].

Aulwes v. Mai (2002), 209 N.S.R.(2d) 248; 656 A.P.R. 248; 220 D.L.R.(4th) 577; 2002 NSCA 127, refd to. [para. 32].

J.E.A. v. C.L.M. - see Aulwes v. Mai.

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. 33].

Shortridge-Tsuchiya v. Tsuchiya (2010), 283 B.C.A.C. 117; 480 W.A.C. 117; 2010 BCCA 61, refd to. [para. 35].

N. (Minors), Re (Abduction), [1991] 1 F.L.R. 413 (Fam. Div.), refd to. [para. 45].

H., Re (Abduction: Child of Sixteen), [2000] 2 F.L.R. 51 (U.K.), refd to. [para. 59].

M., Re, [2008] 1 All E.R. 1157; 379 N.R. 96; [2007] UKHL 55, refd to. [para. 61].

Director-General, Department of Families, Youth and Community Care v. Thorpe, [1997] F.L.C. 92-785 (Aust. Fam. Ct.), refd to. [para. 62].

Wojcik v. Wojcik (1997), 959 F. Supp. 413 (E.D. Mich.), refd to. [para. 62].

Director-General, Department of Community Services v. M. and C. and the Child Representative, [1998] F.L.C. 92-829 (Aust. Fam. Ct.), refd to. [para. 63].

Cannon v. Cannon, [2004] EWCA Civ. 1330 (C.A.), refd to. [para. 64].

Bielawski v. Lozinska, [1997] O.J. No. 3214 (C.J. Prov. Div.), refd to. [para. 74].

V.W. v. D.S., [1993] R.J.Q. 2076; 58 Q.A.C. 168 (C.A.), affd. [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 74].

Statutes Noticed:

Convention on the Civil Aspects of International Child Abduction (Hague Convention), Can. T.S. 1983, No. 35, art. 12 [paras. 30, 51].

Hague Convention - see Convention on the Civil Aspects of International Child Abduction.

Authors and Works Noticed:

Beaumont, Paul R., and McEleavy, Peter E., The Hague Convention on International Child Abduction (1999), p. 203 [paras. 38, 90].

Hague Conference on Private International Law, Actes et Documents de la Quatorizième session, Child Abduction (1982), t. III, pp. 288, 292 [para. 91].

Lamont, Ruth, Re M and Beyond: Managing Return When a Child has Settled Following Abduction (2009), 31 J. Soc. Welfare & Fam. L. 73, generally [para. 61].

Pérez-Vera, Elisa, Explanatory Report, in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session (The Hague), pp. 426, 458 [para. 96].

Schuz, Rhona, In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention (2008), 20 C.F.L.Q. 64, generally [para. 101].

Schuz, Rhona, The Hague Child Abduction Convention: Family Law and Private International Law (1995), 44 Int'l & Comp. L.Q. 771, p. 778 [para. 38].

Counsel:

W.R. Storey, for the appellant;

D.J. O'Donnell, for the respondent.

This matter was heard at Vancouver, British Columbia, on November 5, 2009, before Levine, Chiasson and Frankel, JJ.A., of the British Columbia Court of Appeal. Levine, J.A., delivered the following reasons for the Court of Appeal on March 9, 2010.