O'Sullivan v Anderson (Canada 1998) Vancouver, BC Registry: F 98 0255, 06 Aug 1998 24 International Abduction [CDN 1998] =========================================================== Date: 06 Aug 1998 Docket: F 98 0255 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Mr Justice R.D. Wilson Pronounced in Chambers August 6, 1998 BETWEEN DEREK FRANCIS O'SULLIVAN, PETITIONER AND: CHRISTINE LOUISE ANDERSON, RESPONDENT Counsel for the Petitioner: W.R. Storey Counsel for the Respondent: A.M. Lessing Counsel for the Ministry of Children and Families: A.L. Thorpe [1] THE COURT: This is an application by Dr. Derek Francis O'Sullivan for an order that the child, born into the relationship between himself and the defendant, Christine Louise Anderson, be returned to Ireland. I am satisfied that the order should go. I am so satisfied for the following reasons. [2] According to paragraph 43 of the affidavit made by Ms. Anderson, on 6 August 1998, the child in question in this petition was born in England, spent her first 10 months in England, and moved with her then family to Ireland on 28 August 1995. She there remained until 28 March 1998. During the course of her life in Ireland with her family, the child did return to England, to visit extended family and friends, on occasion. [3] I find that Ireland was the habitual residence of the child in March 1998. [4] The petitioner says in his affidavit in support of the petition, that he and Ms. Anderson separated on or about March 27, 1998, when he went to France to attend a conference. Ms. Anderson, without any prior knowledge or permission from the petitioner, sold all of the household possessions, including the family car, and left Ireland with the child. He says that Ms. Anderson "went underground". He says that there was no information given to him by Ms. Anderson on her destination or intentions. Until an appearance in this court on 31 July 1998, I take it there had been no direct or indirect contact between Dr. O'sullivan and the child or Ms. Anderson. [5] Information came to Dr. O'Sullivan, through a relative in Ontario, that Ms. Anderson had contacted the relative, and advised that she was in Canada. As a result of further inquiries, it, Dr. O'Sullivan learned that Ms. Anderson and the child were in Surrey. [6] He commenced these proceedings, and invokes the aid of the Hague Convention, as incorporated into the law of the province of British Columbia pursuant to s. 55 of the Family Relations Act. [7] The objects of the Convention are clear and, in my judgment, the reasons for its rules are manifestly sound. The disruption of the lives of children should be followed under due process. There was ample time, in my opinion, for Ms. Anderson to have sorted out the legal affairs with respect to the child, before departing Ireland. [8] The primary object of the Convention is to secure the prompt return of children wrongfully removed. "Wrongfully removed" includes removal in breach of rights of custody attributed to a person, jointly or alone, under the law of the state in which the child was habitually resident, immediately before the removal or retention. [9] Dr. O'sullivan says that he had custodial rights as a joint parent, pursuant to an order of a court in Ireland. Mr. Lessing argues that there was no actual exercise of any joint custodial parental rights, under the order, by Dr. O'Sullivan, immediately before the removal or retention. I find that I cannot make a determination of that fact on the information before me. But if I am wrong, and there was no actual exercise under the order, then I am satisfied that the law, certainly of this province, is that when parents live together, they are entitled to the joint custody of a child of theirs. Dr. O'Sullivan's material makes clear to me that the parties were certainly living together prior to the 27 March 1998 when he left to attend a convention. [10] I therefore find that the removal of the child from Ireland by Ms. Anderson was wrongful. [11] Article 12 appears to me to be mandatory. If I come to the conclusion that there has been a wrongful removal, then I must order the return of the child to Ireland forthwith. [12] However, Mr. Lessing has pointed out that Article 13 of the Convention, the mandatory provisions of Article 12 notwithstanding, confers a discretion not to order the return of the child if the person opposing the return establishes a number of factors. Mr. Lessing has invited me to find that those factors are present in this case. [13] I have already dealt with the notion that Dr. O'Sullivan was not actually exercising the custodial rights. I find that he was. He did not consent to the removal of the child. But Mr. Lessing argues that there is a grave risk that the return of the child will expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. [14] In the affidavit I previously referred to by Ms. Anderson, she has a description of Dr. O'Sullivan which, in the ordinary course of events, would raise grave concern in the mind of the court with respect to Dr. O'Sullivan's ability or capacity to carry out adequately the duties and rights of a custodial parent. The information contained in that affidavit does not establish, to my satisfaction, grounds to conclude that the child will be exposed to physical or psychological harm, or be placed in an intolerable situation, by returning to Ireland. [15] First, until Ms. Anderson surreptitiously left Ireland, she was, according to Dr. O'Sullivan's information, living in the same household, although, as she describes it, under very uncomfortable, intimidating and abusive conditions. There is no information before me that she took any steps which could arguably be based upon any realistic notion of physical or psychological harm, or there being an intolerable situation, by the child having contact with her father. [16] It is also argued by Mr. Lessing that if I order the return of the child to Ireland, I will disrupt a sibling relationship with a 12-year-old sister, and this will expose her to psychological harm. And if I am not satisfied of that, then Ms. Anderson seeks the opportunity to place before the court evidence that there will be psychological harm consequent upon a removal of the child from her sibling. [17] There is also information, in the affidavit of Ms. Anderson, about the notion of capacity to adequately carry out the duties and rights of a custodial parent, namely, a brutal element to Dr. O'Sullivan's character, and an irresponsible attitude to the consumption of alcoholic beverages. I am not satisfied that that information establishes grave risk of physical or psychological harm or an intolerable situation. [18] In my judgment, the court in Ireland is the most appropriate forum to determine the truth or falsity of the allegations made by Ms. Anderson in her affidavit material. [19] I agree with Mr. Storey. This family belongs in Ireland, in the courts of Ireland, where all of the evidence is available for a rational determination to be made, on the custodial provisions for this child. Due process should be followed. There should be an inquiry where all of the evidence is available. If I am wrong in my interpretation of the facts of this case in implementing the provisions of the Convention, then alternatively I hold, under the Family Relations Act, that this court should decline jurisdiction, and defer to th& jurisdiction of the courts of Ireland, where all of the necessary arguments can be made on the evidence there available. That would be a more rational resolution of the dispute between these two parents with respect to this child. [20] The child will be returned to Ireland forthwith. [21] The order of Madam Justice Saunders committing the child into the care of the Director of Children and Families is vacated. [22] Now, Mr. Storey, I do not know how the wording of the minute should be. You seek an order that the child be delivered to the petitioner in Ireland, but you tell me that the petitioner is in British Columbia. (SUBMISSIONS BY COUNSEL) [23] THE COURT: The following will be the minute of the order. The child will be returned to Ireland forthwith in the company of the petitioner, her father. [24] For the purposes of effecting that transfer, the Ministry will turn over the care of the child to the petitioner forthwith. The petitioner will pay t1~e expenses, the reasonable travel expenses, for the transport of the respondent to Ireland. [25] I am mindful of the fact that Dr. O'sullivan did not create this problem, Mr. Storey, but I agree with Mr. Lessing. It is a mutual problem. These parents owe it to this child to get this matter resolved as quickly as possible. I am satisfied that the only way that that is going to happen is if Ms. Anderson returns to Ireland and presses on with litigation as expeditiously as possible. (SUBMISSIONS BY COUNSEL) [26] THE COURT: The order will be that Dr. O'Sullivan will pay for the transport of the family back to Ireland. That will be arranged immediately in order to get this family into court, and this problem resolved. (SUBMISSIONS BY COUNSEL) [27] THE COURT: As I said this morning, children are entitled to have parents follow due process in the resolution of difficulties. If this kind of thing continues to go on, the children are going to be bounced back and forth and I am not persuaded that I should depart from the ordinary situation. Costs will follow the event. (SUBMISSIONS BY COUNSEL) [28] THE COURT: At scale 3, yes. /s/ R.D. Wilson ____________________________________ The Honourable Mr. Justice R.D. Wilson