CASE

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Case Name

K. M and N. M c. His Honour Judge J. Nevins and His Honour Judge D. Main, The Attorney General of Ontario, and E. Beckett

INCADAT reference

HC/E/CA 370

Court

Country

CANADA

Name

Ontario Court of Justice; Divisional Court

Level

Appellate Court

Judge(s)
Southey J.

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

CANADA

Decision

Date

12 June 1996

Status

Final

Grounds

Rights of Custody - Art. 3 | Procedural Matters

Order

Application dismissed

HC article(s) Considered

3 5 15

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290.

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
Rights of Custody held by a Court
Who may Hold Rights of Custody for Convention Purposes?

SUMMARY

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Facts

The children, a girl and boy, were 9 and 1 2/3 at the date of the alleged wrongful removal. They had spent all of their lives in Canada. On 26 September 1995 they were taken to England by their mother and father, (adoptive father in the case of the elder girl).

On 3 October 1995 the father was to be deported from Canada.

On 23 June 1995 the maternal grandmother had applied for access to the children. On 24 August she applied for an order to stop the children being removed from the jurisdiction. These proceedings were adjourned on several occasions until 29 September.

On 11 October the Ontario court awarded sole custody to the grandmother. On 18 December a summons was issued in the English High Court of Justice for the return of the children. The Ontario Court (Provincial Division) was named as plaintiff.

On 23 January 1996, pursuant to Article 15, the Ontario court ruled that the removal of the children was wrongful. The application in England was adjourned because of legal issues raised under Ontario law which were not readily determinable by an English court.

On 3 April the Attorney General for Ontario brought a motion in the Ontario Court (Provincial Division) for leave to intervene in the proceedings and for clarification and confirmation of the order of 22 January 1996 that the removal of the children on 26 September 1995 was wrongful.

The parents applied for judicial review, challenging the jurisdiction of the Provincial Division, seeking to quash the orders of the Ontario Court (Provincial Division) and for an order prohibiting the Ontario Provincial Court from hearing any further matters in respect of the proceedings.

Ruling

Application dismissed; the removal was wrongful as it breached the rights of custody vested in the Ontario Court seized of the proceedings.

Grounds

Rights of Custody - Art. 3

The Provincial Division was exercising rights of custody at the time of the removal of the children on 26 September and those rights of custody were breached by the removal. The parents had further undertaken that they would not leave the jurisdiction of Ontario pending the custody application. The Divisional Court found that the Ontario Court (Provincial Division) had been correct to declare the removal of the children wrongful.

Procedural Matters

It was noted that the use of the Court's name as plaintiff in the English proceedings was a technical legal matter, based upon the opinion of counsel for the Attorney General of Ontario after consultation with the Lord Chancellor's Department. It was added would not give rise to concern that the individual judges of the Ontario Court (Provincial Division) would in any way be impartial when hearing any future actions were the children to be returned.

INCADAT comment

The return application in England failed, see: The Ontario Court v. M. and M. (Abduction: Children's Objections) [1997] 1 FLR 475, [1997] Fam Law 227 [INCADAT Reference: HC/E/UKe 33]. The High Court exercised its discretion under Article 13 not to order the return of the children; grave risk of an intolerable situation and objections of the elder child both being established.

It may be noted that the trial judge in England did express concern as to the application being brought by the Ontario court. This matter was not however the subject of argument.

Rights of Custody held by a Court

Preparation of INCADAT commentary in progress.

Who may Hold Rights of Custody for Convention Purposes?

Preparation of INCADAT commentary in progress.