Mahler v. Mahler, (1999) 143 Man.R.(2d) 56 (QBFD)

• Judge: Little, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 21, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 143 Man.R.(2d) 56 (QBFD);1999 CanLII 14255 (MB QB);3 RFL (5th) 428;[1999] MJ No 580 (QL);143 Man R (2d) 56

Mahler v. Mahler (1999), 143 Man.R.(2d) 56 (QBFD)

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. JA.040

Elaine Mary Mahler (petitioner) v. Gregory Alan Mahler (respondent)

(FD 99-01-56814)

Indexed As: Mahler v. Mahler

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Little, J.

December 21, 1999.

Summary:

A father applied under the Hague Conven­tion for an order returning his daughter to their habitual residence in the state of New York.

The Manitoba Court of Queen's Bench, Family Division, granted the application and ordered the child returned to New York state.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from juris­diction - The parties lived in New York state - Under a separation agreement, the parties had joint legal custody of their two daughters with physical care and im­mediate care and supervision with the mother - The mother removed the children to Manitoba where she intended to remain close to her friends and relatives - The father applied under the Hague Convention for an order return­ing the children to New York state - The mother argued that the children were not wrongfully removed, where she had pri­mary care and control of the children - The Manitoba Court of Queen's Bench, Family Division, held that the children were wrongfully removed - The mother did not have sole custody and the father had rights regarding the children's resi­dence - See paragraphs 11 to 21.

Family Law - Topic 2162

Custody and access - Enforcement of orders - International conventions - Hague Convention - The parties lived in New York state and had, pursuant to their sep­aration agreement, joint legal custody of their two daughters with physical care and immediate care and supervision with the mother - The mother removed the children to Manitoba - The father obtained an order in New York giving him temporary sole custody of the children and applied in Manitoba under the Hague Convention for an order returning the children to New York state - The Manitoba Court of Queen's Bench, Family Division, stated that, under the Convention, the court was required to return the children if a wrong­ful removal had occurred unless there would be a grave risk of harm to the children or they would otherwise be placed in an intolerable situ­ation - If a grave risk of harm was estab­lished, the return of the children became discretionary rather than mandatory - See paragraph 3.

Family Law - Topic 2162

Custody and access - Enforcement of orders - International conventions - Hague Convention - The parties lived in New York state - The mother removed the children to Manitoba despite a separation agreement giving the parties joint legal custody with physical care and immediate care and supervision with the mother - The father obtained an order in New York giving him temporary sole custody of the children and applied in Manitoba under the Hague Convention for an order returning the children to New York state - The mother argued that there was a grave risk of harm if the children were returned to New York - She accused the father of alcoholism, lack of financial support and abusive behaviour - She asserted that she would not return to New York even if the children were ordered returned and as a result the younger child would suffer psychological harm by being taken from her caregiver - The Manitoba Court of Queen's Bench, Family Division, ordered the children returned to New York - The risk of harm was managed by dictating undertakings respecting the children's return - See paragraphs 22 to 47.

Family Law - Topic 2163

Custody and access - Enforcement of foreign order - [See both Family Law - Topic 2162 ].

Cases Noticed:

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81; 6 R.F.L.(4th) 290; 119 D.L.R.(4th) 253; [1994] 10 W.W.R. 513, appld. [para. 12, Appendix].

Trapp v. Trapp, 526 N.Y.S.2d 95; 136 A.D.2d 178 (App. Div.), refd to. [para. 15, Appendix].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 20, Appendix].

Hawke v. Gamble, [1998] B.C.T.C. Uned. F25; 43 R.F.L.(4th) 67 (S.C.), refd to. [para. 22, Appendix].

Szalas v. Szabo (1995), 16 R.F.L.(4th) 168 (Ont. C.J. Prov. Div.), refd to. [para. 25, Appendix].

C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 1 W.L.R. 654; [1989] 2 All E.R. 465 (C.A.), refd to. [para. 31, Appendix].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 49 R.F.L.(3d) 117; 18 C.R.R.(2d) 41, refd to. [para. 32, Appendix].

J.A.P. v. R.S.P. (1999), 118 O.A.C. 169; 45 R.F.L.(4th) 404 (C.A.), refd to. [para. 33, Appendix].

P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155; [1992] Fam. Law 197; [1992] 1 F.C.R. 468 (H.C.), refd to. [para. 37, Appendix].

Finizio v. Scoppio-Finizio (1999), 124 O.A.C. 308 (C.A.), refd to. [para. 37, Appendix].

Parsons v. Styger (1989), 67 O.R.(2d) 1 (Ont. H.C.), refd to. [para. 37, Appen­dix].

B. v. B. (Child Abduction: Custody Rights), [1993] 2 All E.R. 144; [1993] Fam. 32 (C.A.), refd to. [para. 37, Appendix].

Chalkley v. Chalkley (1994), 96 Man.R.(2d) 56 (Q.B.), revd. in part (1995), 100 Man.R.(2d) 34; 91 W.A.C. 34; 10 R.F.L.(4th) 442 (C.A.), leave to appeal refused (1995), 191 N.R. 396; 107 Man.R.(2d) 320; 109 W.A.C. 320 (S.C.C.), refd to. [para. 37, Appendix].

Snetzko v. Snetzko (1996), 8 O.T.C. 222; 23 R.F.L.(4th) 448 (Gen. Div.), refd to. [para. 37, Appendix].

L. (Child Abduction) (Psychological Harm), Re, [1993] 2 F.L.R. 401 (H.C.), refd to. [para. 37, Appendix].

A. (A Minor) (Abduction), Re, [1988] 1 F.L.R. 365; 18 Fam. Law 55 (C.A.), refd to. [para. 37, Appendix].

Thorne v. Dryden-Hall (1996), 18 R.F.L.(4th) 15 (B.C.S.C.), refd to. [para. 37, Appendix].

Gordon v. Goertz, [1996] 1 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [Appendix].

Rechsteiner v. Kendell (1998), 75 O.T.C. 114; 39 R.F.L.(4th) 127 (Gen. Div. Fam. Ct.), affd. (1999), 125 O.A.C. 356 (C.A.), refd to. [Appendix].

Statutes Noticed:

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

United Nations Convention on the Civil Aspects of Child Abduction, art. 3 [paras. 2, 11]; art. 5 [paras. 11, 14]; art. 12, art. 13 [para. 3].

Counsel:

Michael Paluk, for the petitioner;

Janet Sigurdson, for the Central Authority of the Province of Manitoba on behalf of Mr. Mahler.

This application was heard before Little, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on De­cember 21, 1999.