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AFFAIRE

Texte complet non disponible

Nom de l'affaire

2008 QCCS 3562, Superior Court of Québec (District of Montreal)

Référence INCADAT

HC/E/CA 913

Juridiction

Pays

Canada

Nom

Cour d'appel de Montréal (Canada)

Degré

Première instance

États concernés

État requérant

États-Unis d'Amérique

État requis

Canada

Décision

Date

21 July 2008

Statut

Définitif

Motifs

Droit de garde - art. 3 | Risque grave - art. 13(1)(b)

Décision

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Article(s) de la Convention visé(s)

3 13(1)(b)

Article(s) de la Convention visé(s) par le dispositif

13(1)(b)

Autres dispositions

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Jurisprudence | Affaires invoquées

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Publiée dans
http://www.canlii.org/en/qc/qccs/doc/2008/2008qccs3562/2008qccs3562.html

RÉSUMÉ

Résumé disponible en EN

Facts

The children, two girls and one boy, were 4, 9 and 12 years old at the time of the alleged wrongful removal. The mother had lived with the biological father of the two younger children for 12 years, first in Canada and since 2001 in Florida.

They had married in 1998. In May 2008, the mother left the family home in Florida with her three children and sought refuge in a shelter, alleging that her husband was extremely abusive both physically and psychologically towards her and the children. Since her complaints had not been accepted by the local police, the mother went to Canada (Québec) with the children where she had family.

In June 2008 the father applied for the return of the three children to Florida claiming rights under the Convention. In regard to the oldest child this was on an "in loco parentis" basis.

The children were placed under the protection of the child protection authorities in Québec which determined that the children had been subjected to psychological ill-treatment as defined in the Youth Protection Act and that their security or development had been comprised.

The child protection authorities in Québec established contact with officials of the Department of Family and Children Services in Florida which indicated that they would follow up the case should the children be returned to Florida. The father instituted divorce proceedings in Florida, with a hearing scheduled for 23 July, 2008.

Ruling

Return ordered with regards to the two younger children subject to undertakings; the removal was wrongful and the standard required under Article 13(1)(b) of the Convention to indicate that the children would face a grave risk of harm had not been met. Application dismissed with regard to the oldest child.

Grounds

Rights of Custody - Art. 3

The Court rejected the father's contention concerning his right to claim the return of the oldest child on an in loco parentis basis, stating that the jurisprudence and doctrine presented at the hearing, particularly on the question of inchoate rights under the Convention, were not sufficient. The Court agreed however to make provisional measures regarding the oldest child based on its jurisdiction to ensure the child's protection in cases of emergency or serious inconvenience.

Grave risk  -Art. 13(1)(b)
 The Art. 13 (1)(b) exception must be construed restrictively; there must be clear and convincing evidence that there was a grave risk, which was more than a serious one, that the return would expose the child to physical or psychological harm, or otherwise place him in an intolerable situation.

The risk must be of such importance that it could not be circumvented by the judge imposing appropriate conditions in the return order. Given that the Court's role was not to determine whether there had been abuse or violence but whether the return posed a grave risk, the allegations of abuse or violence were insufficient as such to deny the motion for return.

The Court found that although the evidence presented by the mother was insufficient to support the application of the exception, it was sufficient to warrant particular conditions to ensure the children's safe return to Florida pending the decision of the competent court on the issues of custody and access.

These conditions included the establishment of collaboration between the child protection authorities in Québec and Florida; the placement of the children in a secure confidential location upon their return to Florida; an undertaking by the father not to see or try to see or contact the children; an undertaking by the father to pay for the mother's travel to Florida and two nights stay for the purposes of attending the 23 July 2008 divorce proceedings hearing.

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

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