Applying Hague Convention on Child Abduction, Ontario Court of Appeal deferred to U.S. federal courts' ruling to allow teenager just under sixteen who expressed mature and reasonable basis for remaining with his father in Oklahoma rather than return to his mother who lived in Canada, his former habitual residence, at least until U.S. courts have resolved effect of Oklahoma custody order and that of Sri Lankan court
The question in this case is whether an Ontario court should order a child's return to this province for a custody hearing when an appellate court and a trial court in the United States have decided against ordering that child's return. Determining whether to decline jurisdiction in favour of the American courts requires an analysis of the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S 11670; 1343 U.N.T.S 49; 19 I.L.M. 1501 [in force for U.S. July 1,1988] the basis for the U.S. courts' decisions. Canada and the United States are parties to the Convention.
Paul Pitts (Petitioner or F), is an American citizen who resides in Ardmore, Oklahoma. He has been married for nine years to Sabrina Pitts. Ms. Pitts' daughter, Sarah, lives with the family. The Respondent is Samarasinghe De Silva (Respondent or M), a citizen of the Republic of Sri Lanka (formerly Ceylon). M came to Canada as a refugee in 2003 and is now a "landed immigrant." She intends to stay in Canada and hopes to become a citizen. She currently lives in Barrie, Ontario with a daughter.
Jonathan (J) is the 14 year old son of M and F. He was born in Ardmore, Oklahoma on February 16, 1993. M, who was in the United States on a student visa when she gave birth to J, registered him as a citizen of Sri Lanka soon after he was born.
M and F separated shortly after J's birth. A custody dispute arose and M filed family court proceedings in Oklahoma county court. The court ordered both parties not to take J from the court's jurisdiction during those proceedings. M, however, violated this order and took J to Sri Lanka in July 1994. A month later, the state Court granted F custody of J. This order remains unmodified.
F eventually found out where J was living and visited him in Sri Lanka. M next lodged custody proceedings in the Sri Lanka courts. On September 29, 1996, a consent order granted custody of J to M. Like the 1994 Oklahoma order, this order has remained in effect.
For seven years, J lived with M in Sri Lanka. F visited J there several times. In 2003, M took her daughter and J and moved to Canada. In the summer of 2003, J spent two weeks in Oklahoma with F and then returned to Canada. In the summer of 2004, J spent one week in Oklahoma with F and again went back to Canada.
In July 2005, J went to Oklahoma. Though he was due to return to Canada on August 12, J did not return. He has been living in Oklahoma with F for more than two years. He is now 14 years old and attends Ardmore Middle School.
As soon as M realized that J was not going back to Canada, she resorted to the Ontario courts. On August 17, 2005, Ontario Superior Court of Justice made an ex parte order granting M interim and permanent custody of J. In the material filed in support of her motion, M did refer to her Sri Lanka custody order but she neglected to mention the original Oklahoma court order granting custody to F.
M next petitioned an Oklahoma federal court for an order returning J. to her custody in Canada pursuant to the Convention. A full hearing before a Magistrate Judge Kimberly West (MJ) took place in chambers on January 18, 2006. M and F were both present and represented by counsel.
On February 15, 2006, the MJ denied M's petition, for two main reasons. First, the MJ held that M was trying to exploit the Convention for an improper purpose, namely, to circumvent her breach of 1994 the non removal order of the Oklahoma court. "[T]he fact remains [that] Petitioner violated an express and unequivocal court order issued by an Oklahoma court with competent jurisdiction, the existence of which she possessed actual notice [of] and now is trying to evade international law by creating a habitual residence for J to her unfair advantage."
"Second, the MJ gave considerable weight to J's express view that he preferred to stay in Oklahoma. ... In her "Findings of Fact,' the MJ described her interview with J as follows: "During his stay in Oklahoma, J has maintained telephonic contact with Petitioner and J's sister. J expressed to this Court his desire to remain with F because Ardmore has better schools than in Canada and he likes F's house. J appears comfortable in his current surroundings, well settled in school and with friends and genuinely desirous of remaining in Oklahoma."
"J shows no animosity for Petitioner and states [that] Respondents have not spoken ill of her or discourages (sic) J from maintaining mostly unfettered contact with Petitioner and his step sibling. In sum, J demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding. It is the evaluation of this Court that J has demonstrated a sufficient degree of maturity whereby his views and opinions may be given some persuasive weight."
In the Conclusions of Law section of her judgment, the MJ stated: "This Court has also considered [J's] expressed opinions as to his status in accordance with Article 13(b) of the Hague Convention. This Court observed J to be a bright, expressive child with a well developed understanding of his situation and the positions of his parents. He has attained an age and degree of maturity to so consider his views. Unlike M, this Court did not find J to be particularly swayed by lavish gifts and wealth in forming an opinion that the schools were better in Oklahoma, he enjoyed his friends and activities and his home. He is well settled in his environment in Oklahoma with [F] without apparent adult indoctrination. Allowing him to remain with [F] while an Oklahoma court determines custodial issues between his parents is in his best interests at this time."
F appealed the order. M filed the order and sought its confirmation in the Carter County Court for the State of Oklahoma " the same court that issued the 1994 custody order in F's favor. On February 21, 2007, a Judge denied confirmation of the motion judge's order.
It will be recalled that Judge West had decided against M on two bases " [1] the continuing validity and primacy of the original 1994 Oklahoma custody order and [2] J's views as given credit pursuant to Article 13(2) of the Hague Convention. The Tenth Circuit disagreed with the first basis for Judge West's decision. The Court stated that the normal focal point for determining a question of custody is the habitual residence of the child at the relevant time, which in J's case was Canada. Accordingly, Judge West erred by placing too much reliance on the 1994 Carter County custody order in favor of F.
However, the Tenth Circuit strongly endorsed the second basis for Judge West's decision, namely, her ascertainment of, and proper regard for, J's views and preferences. After a detailed review of Article 13(2) of the Hague Convention, case law interpreting this article, and Judge West's process for determining J's views and preferences followed by her assessment of them, the Circuit Court concluded:
"While a father's largesse could naturally be a factor in a child's decision, our reading of the record suggests this was taken into consideration by the magistrate judge. Moreover, the fact [that] J and his father have discussed relocation over a period of time, and that J returned to Canada during the period of those ongoing discussions, convince us that this was a considered decision on J's part and represents his honest wishes. We are also mindful of the [MJ's] opportunity to observe J in person, and we accord great deference to the court's findings based on that experience."
Given the court's duty to consider J's best interest and to determine whether he was of sufficient age and maturity to weigh in on this matter, we find no error in the district court's ultimate conclusion that J should remain in Oklahoma while Oklahoma courts decide the custody matter. We hold that, under the unusual circumstances of this case, it is appropriate to refuse repatriation to Canada solely on the basis of J's desire to stay in Oklahoma.
In the view of the Canadian Court, the sole issue on this appeal is whether the Ontario courts should decline jurisdiction in this contested custody matter in favor of the Oklahoma courts.
"Among the most important factors guiding courts' decisions to decline jurisdiction is comity " the deference owed to the legitimate judicial acts of other countries: see Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S. C. R. 897, 912 15 (S.C.C.), Antares Shipping Corp. v. "Capricorn"'(The) (1976), [1977] 2 S. C. R. 422, 448 (S.C.C.); Beals v. Saldanha, [2003] 3 S. C. R. 416 (S.C.C.). Comity is at the core of this case. The Superior Court order under appeal orders American authorities to return J to Canada. Decisions by U.S. federal courts at the trial and appellate level say the opposite; they decline to order J's return. The key question in this case is therefore whether this court should defer to the Tenth Circuit's decision to refuse to return J to Canada under the Hague Convention."
"Beyond the overarching principle of comity, the Hague Convention's effectiveness depends on there being a general respect for the decisions under the Convention by the courts of the Contracting State to which the child has been removed. It is these courts that have primary responsibility for adjudicating Hague Convention applications: see Caruso v. Caruso, [2006] O.J. No. 5311 (Ont. S. C. J.)."
"The combination of comity, on the one hand, and of the need to preserve the Hague Convention's effectiveness, on the other, calls for courts to avoid interfering, as much as possible, with foreign interpretations of the Convention. As such, this court should respect the Tenth Circuit's decision not to order J's return to Canada unless that decision evinces a clear misinterpretation of the Hague Convention or fails to meet a minimum standard of reasonableness."
"The starting point in any case involving the Hague Convention must be to recognize its predominant objective " securing the prompt return of abducted children to the country where they habitually reside. As expressed by La Forest J. in Thomson , supra, at p. 559: "The underlying purpose of the Convention, as set forth in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.' The Convention is founded on the assumption that a wrongfully removed or retained child's best interests will usually lie in the child's prompt return to the country of habitual residence, and that the deterrent effect on wrongful removals or retentions of the Convention's mandatory return procedure will also serve the interests of children generally: see W. (V.) c. S. (D.), [1996] 2 S. C. R. 108 (S.C.C.) at ¶ 77."
"However, the Convention provides for exceptions to the mandatory return of abducted or wrongfully retained children to their country of habitual residence. Four exceptions permitting non return relate (I) to children who have become settled in their new environment (Article 12); (ii) to a situation where the custodial parent in the country of habitual residence was not exercising custody rights at the time of removal or retention, or consented or subsequently acquiesced to the removal or retention (Article 13(1)(a)); (iii) to a situation where there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13(1)(b)); and (iv) to a situation where return would violate the fundamental principles of the requested country relating to the protection of human rights and fundamental freedoms (Article 20)."
"A fifth exception, central to this appeal, is contained in Article 13(2) of the Convention which provides: "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."
"The primary reason Article 13(2) exists is simple: given that the Convention applies only to people under age 16 (Article 4), it would not make sense to apply the return mechanism with its full force to children close to age 16. The Convention's reporter, Elisa Perez Vera, in her "Explanatory Report' in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at ¶ 30, describes Article 13(2) as "absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.'"
"Article 13(2) requires a court to engage in two inquiries: (1) does the child object to being returned; and (2) has the child attained an age and degree of maturity at which it is appropriate to take account of his or her views?"
"[The MJ] undertook both of these inquiries. [As noted above], she conducted an in camera interview in her chambers with J. ... J was a few days short of his thirteenth birthday when this interview took place."
"Judge West stated that J "demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding.' He showed no animosity towards [M] He was not improperly influenced by [F]. Thus, Judge West concluded, J had attained an age and degree of maturity "whereby his views and opinions may be given some persuasive weight.' J's views, ... included "his desire to remain in Oklahoma with [F]. Accordingly, Judge West refused to order J's return to Canada. A year later, the U.S. Court of Appeals for the Tenth Circuit dismissed M's appeal from Judge West's order."
"In my view, the Tenth Circuit's decision merits deference. It is not a clear misinterpretation of the Hague Convention and does not fail to meet a minimum reasonableness standard."
"There can be no doubt that J had "attained an age and degree of maturity at which it is appropriate to take account of his views.' ... The parties agreed that Judge West should interview J, a clear sign that they recognized his maturity and the relevance of his views. I note, parenthetically, that the Children's Law Reform Act, R.S.O. 1990, c. C 12, s. 64(2), specifically permits a court to interview a child to determine the child's views and preferences in a custody proceeding. ... The Tenth Circuit affirmed this component of Judge West's reasoning. I see no basis for challenging this conclusion of the two U.S. courts."
On the second issue, Judge West recorded J as expressing "his desire to remain with [his father]" and, later, "his desire to remain in Oklahoma with [his father]".
"It might be contended that a "desire' to remain in Oklahoma is not the same as an objection to returning to Ontario, which is what Article 13(2) requires. However, such a distinction is strained. Judge West recorded J's reasons for preferring to stay in Oklahoma, including his comfort in his father's home and his satisfaction with his school, activities and friends in Ardmore. On her description, J compared his life in Oklahoma with the possibility of living in Ontario and came out in favor of Oklahoma. In these circumstances, a fair conclusion is that J's "desire' to stay in Oklahoma comprehends an objection to returning to Ontario, at least at this point in his life."
"For these reasons, I conclude that Judge West's invocation of Article 13(2) of the Hague Convention to refuse to order J's return to Ontario, and the Tenth Circuit's affirmation of that decision, deserve deference from this court."
"I make one final observation. If the parties cannot resolve their dispute, a custody hearing on the merits must take place in the appropriate Oklahoma court. As the Tenth Circuit court emphasized, the original 1994 Oklahoma court order granting custody of J to F no longer governs."
"Accordingly, a new custody hearing in Oklahoma will be necessary if the dispute cannot be resolved. J will be 15 years old next month. His opinion regarding where he wants to live will be even more than highly persuasive " it will probably be determinative. Accordingly, the parties should seriously consider a means of fairly ascertaining J's views without further delay, expense and conflict so that both parents can be actively involved in J's life."
"I would allow the appeal. The Ontario courts should decline their admitted jurisdiction in this contested custody dispute in favor of the Oklahoma courts." [¶¶ 35 51].
Citation: De Silva v. Pitts, 2008 CarswellOnt 41; 2008 ONT. C. A. 9 (January, 2008).
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