Sampley v. Sampley, 2015 BCCA 113
| Judge | Lowry, D. Smith and Harris, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | February 17, 2015 |
| Jurisdiction | British Columbia |
| Citations | 2015 BCCA 113;(2015), 369 B.C.A.C. 147 (CA) |
Sampley v. Sampley (2015), 369 B.C.A.C. 147 (CA);
634 W.A.C. 147
MLB headnote and full text
Temp. Cite: [2015] B.C.A.C. TBEd. MR.044
Michelle Denise Sampley (appellant/respondent in cross-appeal/respondent) v. Matthew Jason Sampley (respondent/appellant in cross-appeal/claimant)
(CA042350; 2015 BCCA 113)
Indexed As: Sampley v. Sampley
British Columbia Court of Appeal
Lowry, D. Smith and Harris, JJ.A.
March 18, 2015.
Summary:
A child was brought to Canada by his mother. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction to have the child returned to the United States.
The British Columbia Supreme Court, in a decision reported [2014] B.C.T.C. Uned. 2434, ordered the child's return subject to a number of conditions. The court also made additional orders, not requested in the petition or response, relating to support and custody. The court ordered each party to bear their own costs. The mother appealed the order requiring her to return the child to the United States. The father cross-appealed those terms of the order making the return of the child conditional on his satisfying child and spousal support, and the various other conditions built into the order, including the order that each party bear their own costs.
The British Columbia Court of Appeal dismissed the appeal and allowed the cross-appeal, except insofar as it related to the costs order.
Family Law - Topic 1961.1
Custody and access - Child abduction legislation - Habitual residence - See paragraphs 16 to 18.
Family Law - Topic 1962
Custody and access - Child abduction legislation - Jurisdiction - See paragraphs 44 to 49.
Family Law - Topic 1965
Custody and access - Child abduction legislation - Return order (incl. stay of) - See paragraphs 19 to 43 and 49 to 53.
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, refd to. [para. 33].
J.A.P. v. R.S.P. (1999), 118 O.A.C. 169; 43 O.R.(3d) 485; 171 D.L.R.(4th) 32 (C.A.), refd to. [para. 35].
Pollastro v. Pollastro - see J.A.P. v. R.S.P.
Cannock v. Fleguel (2008), 242 O.A.C. 221; 2008 ONCA 758, refd to. [para. 37].
V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 39].
Wentzell-Ellis v. Ellis (2010), 262 O.A.C. 136; 2010 ONCA 347, refd to. [para. 40].
Finizio v. Scoppio-Finizio (1999), 124 O.A.C. 308; 179 D.L.R.(4th) 15; 46 O.R.(3d) 226 (C.A.), refd to. [para. 42].
Statutes Noticed:
Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, art. 3 [para. 12]; art. 4 [para. 13]; art. 13 [para. 14]; art. 31 [para. 15].
Authors and Works Noticed:
Browne, Noah L., Relevance and Fairness: Protecting the Rights of Domestic-Violence Victims and Left-Behind Fathers Under the Hague Convention on International Child Abduction (2011), 60 Duke L.J. 1193, generally [para. 32].
Counsel:
G.A. Lang, for the appellant;
J.M. Lalonde, for the respondent.
This appeal was heard in Vancouver, B.C., on February 17, 2015, before Lowry, D. Smith and Harris, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Harris, J.A., on March 18, 2015.
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...decisions from Canadian jurisdictions, notably British Columbia, which can provide guidance. The most recent is Sampley v. Sampley, 2015 BCCA 113, which case confirmed that the correct test was set out in Chan v. Chow, 2001 BCCA 276. In Chan , the Court set out the following test at paras 3......
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Madrigal v. Castro, 2015 ABQB 312
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