Popperl v. Popperl, (1982) 15 Man.R.(2d) 145 (CA)

• Judge: Freedman, C.J.M., Monnin and Matas, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 01, 1982
• Jurisdiction: Manitoba
• Citations: (1982), 15 Man.R.(2d) 145 (CA)

Popperl v. Popperl (1982), 15 Man.R.(2d) 145 (CA)

MLB headnote and full text

Popperl v. Popperl

Indexed As: Popperl v. Popperl

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Matas, JJ.A.

April 5, 1982.

Summary:

A mother took her two children, one from the mother's previous marriage, on a vacation and did not return. The father, a British Columbia resident, located the wife and children in Manitoba and took one child back to British Columbia without the mother's consent. The mother had started custody proceedings but the father ignored them. Once in British Columbia, the father obtained a custody order. The mother obtained a custody order in Manitoba and a writ of habeas corpus for the child's return. The husband appealed.

The Manitoba Court of Appeal allowed the appeal and quashed the writ of habeas corpus.

Editor's Note: For a related case see Popperl v. Popperl (1981), 14 Man.R.(2d) 145.

Barristers and Solicitors - Topic 655

Duty to court - Duty to disclose proceedings - The Manitoba Court of Appeal stated that lawyers, as officers of the court, have a duty to disclose to the court all relevant proceedings which are going on in other courts - See paragraph 33.

Family Law - Topic 2118

Custody and access to children - Jurisdiction - Where children are outside the jurisdiction - The Manitoba Court of Appeal held that the jurisdiction of the Manitoba Court of Queen's Bench to issue a writ of habeas corpus for the return of a child, does not, as a general rule, extend to persons ordinarily resident outside the province - See paragraph 47.

Habeas Corpus - Topic 4

General - Purpose of writ - The Manitoba Court of Appeal discussed the nature and purpose of a writ of habeas corpus - See paragraphs 34 to 45.

Habeas Corpus - Topic 1510

Bars to issue of writ - Where custody ordered by a court - A father, resident in British Columbia, obtained a British Columbia court order for custody of his child - The mother obtained an interim custody order in Manitoba and a writ of habeas corpus directing the father to return the child to Manitoba - The father appealed the issuance of the writ of habeas corpus - The Manitoba Court of Appeal allowed the appeal and quashed the writ, holding that the proper procedure for the child's return would be an application by the mother in British Columbia - See paragraph 50.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Conduct - A father removed his child from Manitoba while ignoring and evading notice of the mother's court application for custody in Manitoba - The father obtained a custody order in British Columbia - The wife obtained a custody order in Manitoba and a writ of habeas corpus for the child's return - The Manitoba Court of Appeal allowed the husband's appeal to quash the writ of habeas corpus, but refused to award him costs, because of his conduct - See paragraph 49.

Cases Noticed:

R. v. Leishman, [1958] O.W.N. 23, refd to. [para. 37].

Zwillinger v. Schulof, [1963] V.R. 407, refd to. [para. 37].

Glasson v. Scott, [1973] 1 N.S.W.L.R. 689, refd to. [para. 37].

A. et al. v. B., [1979] 1 N.S.W.L.R. 57, consd. [para. 37].

Re Hilker (1914), 26 O.W.R. 385, consd. [para. 39].

McGuire v. McGuire et al., [1953] O.R. 328 (Ont. C.A.), consd. [para. 41].

Re Harding (1929), 63 O.L.R. 518 (Ont. C.A.), refd to. [para. 42].

Re Vadera and Vadera (1971), 23 D.L.R.(3d) 289, refd to. [para. 43].

Kovacs v. Graham (1981), 33 A.R. 43, consd. [para. 44].

Re Wright (1964), 49 D.L.R.(2d) 460, consd. [para. 45].

R. v. Clement (1981), 38 N.R. 302; 10 Man.R.(2d) 92; 23 C.R.(3d) 193 (S.C.C.), refd to. [para. 48].

Statutes Noticed:

Family Maintenance Act, S.M. 1978, c. 25; C.C.S.M., c. F-20 [para. 6].

Habeas Corpus Act, R.S.O. 1970, c. 197 [para. 43].

Infants Act, R.S.O. 1927, c. 186 [para. 42].

Infants Act, R.S.O. 1970, c. 222 [para. 43].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 11, p. 770, para. 1455 [para. 34].

Harvey, D.A. Cameron, The Law of Habeas Corpus in Canada (1974), pp. 25 and 26 [para. 36]; 91 [para. 22].

Sharpe, R.J., The Law of Habeas Corpus (1976), pp. 191-192 [para. 35].

Counsel:

W.P. Riley, for the appellant;

M.E. Kucher, for the respondent.

This case was heard on February 1, 1982, by FREEDMAN, C.J.M., MONNIN and MATAS, JJ.A., of the Manitoba Court of Appeal. On April 5, 1982, MATAS, J.A., delivered the following decision for the Court of Appeal.