CANADA - ONTARIO
Ontario Court of Justice
Justice George J. Brophy
UNITED KINGDOM - SCOTLAND
CANADA - ONTARIO
9 September 2010
Rights of Custody - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Undertakings
Return ordered with undertakings offered
s. 46 Children’s Law Reform Act, R.S.O. 1990, c. C-12; s. 1 & 2 Children (Scotland) Act 1995, c. 36 (U.K.).
Finizio v. Scoppio-Finizio,  O.J. No. 3579
Jackson v. Graczyk, 2007 ONCA 388
Lombardi v. Mehnert, 2008 ONCJ 164
Maletic v Dini, 2008 ONCJ 798
Thomson v. Thomson,  3 S.C.R. 551
Wedig v. Gaukel,  O.J. No. 1547
3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over.
The parents have dual British and Canadian citizenship. The children are triplets, born in February 2002 in Canada.
The family moved to Scotland in February 2005, after the retirement of the father. The children attended school and took part in normal community activities in Scotland. The father stayed at home while the mother went to work.
The couple separated on 27 December 2008. The father left the family home and moved into an apartment. After the separation, the father continued to have ample contact with the children.
On 17 March 2009, one of the children alleged that her father had touched her inappropriately on a number of occasions. The child protection services in Glasgow began an investigation into the allegation. The father was told not to have any contact with the children. This was not pursuant to a court order, but was simply advice from the government services charged with the responsibility of investigating the matter.
The mother consulted a lawyer. A Court issued a restraining order called an “interdict” on 10 June 2009, which prevented the father from having contact with the mother and the children while the decision remained outstanding.
Between 14 and 21 August 2009, while the father was in Spain, the mother removed the children to Ontario, Canada. The father reported the matter to the police and made an application under the Hague Convention on 20 October 2009. Notification was given to the Central Authority in Canada by notice dated 25 November 2009. The Hague return proceedings began in the Ontario Court of Justice on 30 July 2010.
The parents agreed that the children were habitually resident in Scotland at the time of removal.
Return ordered. The removal was wrongful and the article 13(1)(b) exception was not established.
Author: Emmanuelle Jacques
The Court concluded that the father had rights of custody with respect to the children. It first recalled that to determine rights of custody, courts are directed to look at the law of the state of habitual residence and that they should interpret the exercise of custody rights broadly.
The Court than examined the law of Scotland with respect to custody, set out in sections 1 and 2 of the Children (Scotland) Act 1995, c. 36 (U.K.). It found that both parents have significant concurrent responsibilities with respect to their children; that each of them may exercise those rights without the consent of the other unless there is a court order stating otherwise; and that no person is entitled to remove children from the United Kingdom without the consent of the other parent.
In the present case, the Court reasoned that the father had the right to have the children living with him or to maintain personal relations and have direct contact with the children and that there was no court order restricting his rights as a parent (the interdict gave no obvious direction with respect to parental rights).
The Court concluded that the children were wrongfully removed from Scotland as contemplated by Article 3 on the basis that:
The Court found that returning the children to Scotland would not expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.
The Court reviewed a set of reports from the Glasgow City Council Social Work Services Child Protection division that provided a record of the preliminary investigation undertaken by that agency. Having observed that these were comprehensive reports that spoke well of the agencies conducting them, the Court concluded that the appropriate child protection services were available in Scotland and so it could “impose undertakings to assist the return and to protect the children in the transitional period before the court in Scotland takes over”.
Upon their return, the social service agencies and the court in Scotland would be in the position of protecting the children and putting in place an appropriate plan to serve their needs.
Moreover, the Court noted that there was nothing in the evidence that suggested that the material well-being of the children would be diminished by a return to Scotland.
The Court explained that it had jurisdiction to impose undertakings to assist the return of the children and to protect them in the transitional period before the court in Scotland took over.
The father undertook to arrange for and pay the air fare for the mother and three children and to provide independent housing for them upon their return to Glasgow.
The Court ordered that: