Court of Queen’s Bench of Manitoba (Family Division)
UNITED STATES OF AMERICA
CANADA - MANITOBA
8 November 2018
Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
Subsection 17(3) of the Child Custody Enforcement Act, C.C.S.M. c. C360.
Pérez‑Vera, Elisa. “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction. Madrid: Hague Conference on Private International Law, 1981.
Ellis v. Wentzell-Ellis, 2010 ONCA 347
Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (Ont. C.A.)
Thomson v. Thomson,  3 S.C.R. 551
2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 - children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.
The father is a U.S. citizen and the mother, a Canadian citizen. They were married in Winnipeg (Canada) in 2014. The father continued to live in Iowa (USA), where the mother joined him in 2015. The two children were born in Iowa in May 2016 and May 2017.
The mother alleged a number of incidents of domestic violence during the years she cohabited with the father, including: arguments, name calling, threats that the father would sleep with other women, threats with respect to the life of her brother or acts of violence that might be committed against her by his family members, allegations that the father hit her in the face multiple times in May 2016 and report that the father, at the hospital, behaved violently because the mother had a male doctor during childbirth. On two different occasions, the mother was offered assistance by law enforcement and a social worker, but she refused the offers.
The father denied the mothers’ allegations, but conceded that their relationship was volatile and he accused the mother of abusing him on several occasions.
On 16 June 2018, the mother left for Winnipeg with the children for what was agreed as a one-month period of time.
In mid-July 2018, the mother advised the father that she did not intend to return to the USA with the children.
On 18 August 2018, the father completed a request for return pursuant to the 1980 Hague Abduction Convention. The father’s application for return was heard by the Court of Queen’s Bench of Manitoba on 19 October 2018. On 1 November 2018, direct judicial communications took place between MacPhail J. in Manitoba and the District Court Judge Lars Anderson of the Sixth Judicial District of Iowa.
Return ordered. The retention was wrongful and no exceptions were established.
The mother conceded that the children were habitually resident in the U.S., that they were wrongfully retained by her in Canada, that the father had rights of custody and that he was exercising these rights. The Court however noted the need for a determination on the applicability of the Convention and the wrongfulness of the retention. Considering that the children were under 16 years of age, that the Convention was in force between the U.S. and Canada, that the children were habitually resident in the U.S. when the mother took them to Canada on 16 June 2018 and when she retained them a month later, the Court concluded that the requirements of article 4 were unquestionably satisfied.
The Court also noted that the evidence was clear that the father had custody rights under the laws of Iowa, that he was exercising those rights at the time of the retention and that he had only agreed that the children could be in Canada for a month. The Court therefore found that the retention was wrongful within the meaning of article 3.
The Court concluded that the mother failed to establish the Article 13(1)(a) exception because the text message communications between the father and the grandfather (the mother’s father) of August 2018, on which the mother relied, did not constitute “clear and cogent evidence of unequivocal consent or acquiescence”. The Court added that the father’s actions also belied any conclusion that he was consenting to or acquiescing in the children remaining indefinitely in Canada.
The Court concluded that the mother failed to establish the Article 13(1)(b) exception.
The Court first recalled the high threshold for establishing an Article 13(1)(b) exception and explained the premise on which Courts must base their analysis: except in extraordinary cases or where evidence is sufficient to establish the contrary, the Courts and the authorities in the state of the children’s habitual residence will be able to take measures to protect the children, including protecting their mother from any domestic violence. The Court also noted that without question, in some cases, the nature of domestic violence will result in the exception being established and noted that such cases generally involve clear evidence of domestic violence, such as photographs of injuries, third party (including police) evidence of violence, medical evidence of injuries, granting and sometimes also beaching of civil protection orders and probation orders, etc.
In the present case, the Court found that the mother had not presented evidence of this nature. It added that, while some of the events she described were serious, the Iowa Court and law enforcement agencies should be trusted to take measures to protect the children. The information obtained through judicial communications confirmed that options were available in Iowa to deal with all the issues of the case, including seeking a civil protection order on an expedited basis and obtaining information and assistance from resources for victims of domestic violence. The evidence presented by the mother also demonstrated the availability of measures of protection in Iowa because she had been contacted by the police and a social worker but had declined their assistance.
Author: Emmanuelle Jacques