Sampley v. Sampley, 2015 BCCA 113

JudgeLowry, D. Smith and Harris, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateFebruary 17, 2015
JurisdictionBritish Columbia
Citations2015 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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10 practice notes
  • Gill v. Kaur, 2022 BCSC 2088
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 1, 2022
    ...of Appeal that a temporary, or time-limited, stay does not shift the child’s habitual residence is applicable: Sampley v. Sampley, 2015 BCCA 113 at paras. 7, 17, 21–23. [142]    The respondent moved to Seattle for the purposes of completing a one-year Fello......
  • Summaries Sunday: OnPoint Legal Research
    • Canada
    • Slaw Canada’s Online Legal Magazine
    • May 3, 2015
    ...case from the British Columbia, Alberta, or Ontario court of appeal. Sampley v. Sampley, 2015 BCCA 113 Areas of Law: Family law; Parental abduction; Hague ~An appellate court will not disturb the factual findings underlying a chambers judge’s order under the Hague Convention, in the absence......
  • Sampley v. Burns, 2018 BCCA 178
    • Canada
    • Court of Appeal (British Columbia)
    • May 10, 2018
    ...ordered that the Child be returned to Montana. An appeal of this order was dismissed by this Court in March of 2015 in reasons indexed as 2015 BCCA 113. [11] The parties then appeared before Judge Wheelis, a District Court judge in Montana to approve a temporary parenting plan. In August 20......
  • L.Y. v R.Y.,
    • Canada
    • Court of King's Bench of Alberta (Canada)
    • April 11, 2024
    ...in the Texan society than to live there with his parents: RVW v CLW 2019 ABCA 273 at paras 13-14 [ RVW v CLW]; Sampley v Sampley, 2015 BCCA 113 at para 17 [ 93 Based on the evidence, the length of time the parties and the children have spent in Texas, and the level of their individual and f......
  • Request a trial to view additional results
8 cases
  • Sampley v. Burns, 2018 BCCA 178
    • Canada
    • Court of Appeal (British Columbia)
    • May 10, 2018
    ...ordered that the Child be returned to Montana. An appeal of this order was dismissed by this Court in March of 2015 in reasons indexed as 2015 BCCA 113. [11] The parties then appeared before Judge Wheelis, a District Court judge in Montana to approve a temporary parenting plan. In August 20......
  • Gill v. Kaur,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 1, 2022
    ...of Appeal that a temporary, or time-limited, stay does not shift the child’s habitual residence is applicable: Sampley v. Sampley, 2015 BCCA 113 at paras. 7, 17, 21–23. [142]    The respondent moved to Seattle for the purposes of completing a one-year Fello......
  • Madrigal v. Castro, 2015 ABQB 312
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 14, 2015
    ...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......
  • Batten v. Batten, 2021 BCSC 2507
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 17, 2021
    ...orders to protect S.B. if a judge is persuaded of the basis for such orders:  L.P.B. at para. 38, citing Sampley v. Sampley, 2015 BCCA 113 at paras. 38–41. [77]        In conclusion, I do not find that Ms. Batten has met her burd......
  • Request a trial to view additional results

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