Summaries Sunday: OnPoint Legal Research

DateMay 03, 2015

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important 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 Convention

~An appellate court will not disturb the factual findings underlying a chambers judge’s order under the Hague Convention, in the absence of palpable or overriding error or the application of the wrong legal test or principle.~

BACKGROUND: The Appellant, Michelle Sampley, and the Respondent, Matthew Sampley, were married in Alberta in 2010. The Appellant is Canadian, while the Respondent is American. While the couple were living in Alaska, they had a child together. In October 2011, they moved to Washington State, where they lived until September 2013. The Respondent was then transferred with work to Montana, and the family moved there together. The house into which they relocated proved uninhabitable. On the Appellant’s evidence, she told the Respondent she would go to British Columbia with the child. The Respondent described the move somewhat differently, saying that the Appellant only intended to go to British Columbia while the home was being upgraded, and that she only took basic clothing and toys with her, as would be sufficient for an approximately three-week stay. When the Appellant did not return, the Respondent brought an application for an order under the Hague Convention that the child be returned to Montana. This order was granted, and the judge made additional orders with respect to child and spousal support and the costs of returning the child to Montana. The chambers judge outlined the background and considered the evidence in light of the objects of the Hague Convention, being to secure the prompt return of children wrongfully removed to or retained in any contracting state, and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. He analysed and applied the relevant provisions of the Hague Convention and jurisprudence interpreting those provisions, and was satisfied on the evidence that the child’s habitual residence was Billings, Montana. The chambers judge was satisfied that the removal of the child to British Columbia was a temporary one, and he was not persuaded that the Respondent acquiesced in the retention of the child there. The Respondent cross-appealed, contending that the judge erred in making orders that had not been applied for, and in not awarding him costs.

APPELLATE DECISION: The appeal was dismissed and the cross-appeal allowed except...

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