CASE

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Case Name

Chalkley v. Chalkley (1995) ORFL (4th) 422; leave refused [1995] SCCA No. 33

INCADAT reference

HC/E/CA 14

Court

Country

CANADA

Name

Court of Appeal of Manitoba

Level

Appellate Court

Judge(s)
Huband, Lyon, Helper JJ.A.

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

CANADA

Decision

Date

13 January 1995

Status

Final

Grounds

Grave Risk - Art. 13(1)(b)

Order

-

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to

-

INCADAT comment

Exceptions to Return

General Issues
Impact of Convention Proceedings on Siblings and Step-Siblings

SUMMARY

Summary available in EN | FR | ES

Facts

The children, both girls, were 14 1/3 and 2 1/3 at the date of the alleged wrongful removal. The older girl, a child from the mother's previous relationship, had lived in Manitoba for the first eleven years of her life. The parties had married in Manitoba on 28 August 1990 and moved to England in November 1990. The natural child of the parties was born in England on 26 November 1991.

On 14 December 1992 the father adopted the older child. The father left the marital home on 3 January 1994 but continued to see the children. The parties did not enter into any agreement. In February 1994 the mother took the children to Canada.

On 25 August 1994 the Manitoba Queen's Bench dismissed the father's application for the return of the girls. The Article 13(1)(b) exception had been made out in respect of the older girl who had severe physical and psychological problems.

The father appealed.

Ruling

The appeal as it related to the older child was dismissed. The appeal as it related to the younger child was allowed. The court ordered the return of the younger child to England, notwithstanding that the siblings would be separated.

Grounds

Grave Risk - Art. 13(1)(b)

An Article 13 exception applies to a "child" who is the subject of an application for return. It does not speak of "children" or "siblings". The provisions of the Convention as implemented in Canada are to be applied separately and distinctly to each child who is wrongfully removed. The evidence to be considered is the evidence relevant to that child and the risk to that child, not the evidence as it relates to a sibling or other family member. To successfully oppose her husband's application for the younger child's return, the mother was required to establish that the child's return to England would result in a grave risk of exposure to physical or psychological harm or place her in an intolerable situation. The evidence relating to the younger child fell far short of meeting the expectations of Article 13(1)(b). All of the evidence related to the older child. The children could be separated, at least on a temporary basis.

INCADAT comment

For a consideration of cases where the separation of siblings has been refused or allowed see: Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction" OUP, Oxford, 1999, p. 198.

Impact of Convention Proceedings on Siblings and Step-Siblings

Preparation of INCADAT commentary in progress.