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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Sampley v. Sampley, 2015 BCCA 113

Areas of Law: 

Family law; Parental abduction; Hague Convention

~An appellate court will not disturb the factual findings underlying a chambers judge’s order under the Hague Convention, in the absence of palpable or overriding error or the application of the wrong legal test or principle.~

BACKGROUND:  The Appellant, Michelle Sampley, and the Respondent, Matthew Sampley, were married in Alberta in 2010. The Appellant is Canadian, while the Respondent is American. While the couple were living in Alaska, they had a child together. In October 2011, they moved to Washington State, where they lived until September 2013. The Respondent was then transferred with work to Montana, and the family moved there together. The house into which they relocated proved uninhabitable. On the Appellant’s evidence, she told the Respondent she would go to British Columbia with the child. The Respondent described the move somewhat differently, saying that the Appellant only intended to go to British Columbia while the home was being upgraded, and that she only took basic clothing and toys with her, as would be sufficient for an approximately three-week stay. When the Appellant did not return, the Respondent brought an application for an order under the Hague Convention that the child be returned to Montana. This order was granted, and the judge made additional orders with respect to child and spousal support and the costs of returning the child to Montana. The chambers judge outlined the background and considered the evidence in light of the objects of the Hague Convention, being to secure the prompt return of children wrongfully removed to or retained in any contracting state, and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. He analysed and applied the relevant provisions of the Hague Convention and jurisprudence interpreting those provisions, and was satisfied on the evidence that the child’s habitual residence was Billings, Montana. The chambers judge was satisfied that the removal of the child to British Columbia was a temporary one, and he was not persuaded that the Respondent acquiesced in the retention of the child there. The Respondent cross-appealed, contending that the judge erred in making orders that had not been applied for, and in not awarding him costs.

APPELLATE DECISION: The appeal was dismissed and the cross-appeal allowed except insofar as it related to the costs order. The Appellant alleged several grounds of appeal, including that the judge erred in his analysis of the child’s habitual residence, in concluding that the Respondent had not acquiesced in the child’s relocation, in failing to respect an order of the Montana court that it had no jurisdiction over the child’s custody, and in failing to give effect to Article 13(b) of the Hague Convention, which allows a court to refuse to return a child where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Court of Appeal noted that the chambers judge’s order rested on a series of factual findings. The Court observed that it could not interfere with those findings in the absence of a finding that the chambers judge had committed a palpable and overriding error in making them, or had proceeded on the wrong legal principle or applied the wrong legal test to them. The Court considered the chambers judge’s finding with respect to the child’s habitual residence reasonable and open to the judge on the evidence. Similarly, the Court found no palpable or overriding error in any of the judge’s other findings of fact, and noted that the Appellant did not dispute that she originally moved to Canada on a temporary basis. The Appellant pointed to evidence that the Respondent had suggested she stay in British Columbia when he visited at Christmas and that he encouraged her to seek employment while there, along with other evidence she submitted showed that the Respondent consented or acquiesced to the child remaining in Canada. The Court was not persuaded, and found that it was open to the chambers judge to find as he did. The Appellant also contended that the chambers judge erred by failing to consider her evidence that the Respondent had been violent and abusive in his relationship with her and the child, such that there was a demonstrated grave risk that returning the child would expose him to harm or otherwise put him in an intolerable situation. She also sought to introduce as evidence a Child Custody Assessment from the Respondent’s previous relationship. The Respondent denied the Appellant’s allegations, and the chambers judge excluded that Assessment. The Court of Appeal declined to interfere with his exercise of discretion in so doing. The Court applied the test established in the Supreme Court of Canada decision in Thomson v. Thomson and subsequent jurisprudence to determine that the alleged incidents of abuse, assuming they occurred, were not sufficiently serious to warrant applying the exemption in Article 13(b). The Court allowed the Respondent’s cross-appeal but chose not to disturb the costs order, given the discretion owed to such orders in the Supreme Court.

Counsel Comments:

Comments provided by Georgialee Lang,
Counsel for the Appellant:

Sampley v. Sampley is a case with odd twists and turns, presenting circumstances that gave rise to an appeal and a cross-appeal from a Supreme Court order that Ms. Sampley return to the State of Montana with her 3-year-old son, subject to certain conditions, after moving with her husband’s consent to Elko, British Columbia in September 2013.

In February 2014 Ms. Sampley returned to Billings to pick up her pets and to bring her work clothes to Elko, as she had found work as a heavy- duty mechanic. Mr. Sampley approved of her employment and facilitated the pick up of the work items. However, by March of 2014 it became apparent to Mr. Sampley that his wife was reluctant to return to Billings with their son.

Shortly thereafter, he brought a court action in Montana for custody, however, under the Uniform Child Custody Jurisdiction and Enforcement Act, the Court declined jurisdiction, as the child had not resided in Montana for the requisite six months. The child had resided in Montana for only five days.

Mr. Sampley then filed a Hague Convention application in British Columbia wherein he sought access to his son, but not custody. Shortly thereafter he abandoned the initial Hague filing and brought a second application under the Hague Convention seeking the return of his son to Montana.

On November 5, 2014, Mr. Justice Cole, in an oral judgment, ordered Ms. Sampley to return with the child to Montana, however, the terms and conditions of her return were most unusual.

She was to return in three weeks in order to find accommodation in Billings and afford access to Mr. Sampley, however, she was not to do so until Mr. Sampley provided her with sufficient funds and a vehicle to make the 8- hour trip from Elko, B.C. to Billings.

After scouting out a home she was to return to Elko and prepare to return permanently to Billings, however, this order was subject to numerous conditions, including:

  1. That Mr. Sampley pay child support and spousal support in prescribed amounts and that if arrears were owing she would not be obliged to return to Billings;
  2. That Mr. Sampley provide her with sufficient funds to pay first and last months rent in Billings;
  3. That Mr. Sampley provide her with funds to travel from Elko to Billings, including the provision of a motor vehicle;

An appeal was filed, but a “stay” of the return order was not necessary, as Mr. Sampley did not comply with all the ordered conditions.

The Court of Appeal directed the terms of an expedited appeal, something that is typical in abduction appeals and in January 2015 Mr. Sampley brought an application to the Court of Appeal to remove Appellant’s counsel, as he deposed he had a telephone conversation with Appellant’s counsel prior to the BCSC hearing, wherein he disclosed confidential information to her.

His application was dismissed, mainly because the Appellant had already filed her Factum and her counsel swore she had no recollection of the specifics of the alleged phone call, although she recalled speaking to a gentleman from Montana.

The grounds of appeal included:

  1. That the habitual residence of the child was not Montana, as found by the Chambers judge, because the child had formed no connection, there was no “settled intention” given the five-day motel stay;
  2. That to return the child to Montana in the face of a Montana court order refusing to accept jurisdiction over custody of the child, was nonsensical;
  3. That Mr. Sampley had acquiesced to Ms. Sampley remaining in B.C. with their son, as evidenced by his delay in applying for the child’s return, his initial Hague application for access only, and his support of his wife in obtaining employment in B.C.;
  4. That the Chambers judge had ignored significant evidence of domestic violence, making no mention of it in his Reasons, handed down a month and a half after his oral judgment.

Mr. Sampley’s cross-appeal related to the allegedly onerous financial conditions related to the child’s return, in the absence of pleadings or argument in the court below with respect to same.

On February 17, 2015 the Court of Appeal dismissed Ms. Sampley’s appeal, a finding that was not unexpected given the Court’s direction to Respondent’s counsel during the hearing, to make oral submissions only with respect to the issue of domestic violence. The Cross-Appeal was allowed and the conditions of return were vacated.”

Comments provided by Jamie Lalonde,
C
ounsel for the Respondent (Appellant on Cross-Appeal)

“This appeal deals with several significant and unique legal concepts relating to the Hague Convention on the Civil Aspects of International Child Abduction, including jurisdiction, acquiescence of the removal of the child, habitual residence of the child, conditions for the return of the child to the US, allegations of domestic abuse, and the mother’s US immigration status.

Although all the above legal issues are intriguing, I find the following legal issues in this case to be of greatest significance:

First, the issues of habitual residence, acquiescence, and jurisdiction are intimately related and are at the core of the dispute in this case. Notably, both courts in this case determined that the US, and specifically Billings, Montana, was the child’s habitual residence, even though the parties had spent only five days in Billings prior to the child’s removal to Canada. A brief synopsis of the facts on these issues are as follows: Immediately prior to the removal of the child, the parties moved from Washington State to Montana, and then approximately five days after moving to Montana the mother took the child to Canada. An interesting point is that the father initially agreed to allow the child to go to Canada; however, this consent was based on a mutual understanding between the parties that the mother and child would return to Montana at a later date.

Second, the chambers judge in this case ordered that the child be returned to Billings, Montana; however, the return of the child was subject to the father fulfilling certain conditions, namely: pay child support to the mother, pay spousal support to the mother, pay the costs associated with the mother’s and child’s return to Montana, provide the mother with suitable transportation and insurance to return to Montana, and pay the first and last month’s rent for the mother’s accommodation in Billings. The Court of Appeal held that the chambers judge erred by ordering that these payments be conditions precedent for the return of the child. By doing so, the Court of Appeal is affirming the most crucial and overarching aspect of the Hague Convention – the return of a child who has been wrongfully removed.

The Court of Appeal further held that utilizing such conditions as a method for requiring the father to pay certain expenses is an inappropriate method for achieving such a purpose. This confirms the typical Hague Convention practice of issuing undertakings that assist in facilitating the return of the child. Rather than having certain conditions be met prior to the return of the child, the courts typically require one party to provide certain “promises” or undertakings in order to assist in the return of the child.”

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