Date: 20020627
Docket: CA 180806
NOVA SCOTIA COURT OF APPEAL
[Cite as: C.L. M. v. J.E.A., 2002 NSCA 95]
BETWEEN:
C. L. M.
Applicant/Appellant
- and -
Respondent
- and -
A. D. M.
Third Party
REASONS FOR JUDGMENT
Counsel: Craig M. Garson, Q.C. for the appellant
Christopher S. Berryman for the respondent
Myra L. Gillis for the third party
Allan J. Stern, Q.C. for the child, K.
Application Heard: June 20, 2002
Decision Delivered: June 27, 2002
FLINN, J.A. (In Chambers):
[1] This is an application for stay of execution of an order of Justice Goodfellow of the Supreme Court of Nova Scotia pending the hearing and disposition of an appeal from that order.
[2] Justice Goodfellow ordered an 11 year old female child (K.) to be returned, forthwith, to her habitual residence in Iowa, U.S.A., pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. These provisions of the Hague Convention are in force in Nova Scotia by virtue of the provisions of the Child Abduction Act (R.S. c. 67).
[3] The appellant, C. L. S., (formerly C. L. M.) is a medical doctor and the mother of the child, K..
[4] Dr. S. and the respondent, J. A., were married in Iowa, U.S.A. on November 1, 1990. The child K. was born on January 14, 1992. Mr. A. and Dr. S. separated in September 1992. On April 24, 1993 the Iowa District Court for Madison County granted Dr. S.’s petition for divorce. The custodial arrangements with respect to K. were that Mr. A. and Dr. S. were named “joint legal custodians” of K., with Dr. S. having “physical care.”
[5] In July 1995 Dr. S. fled Iowa, with K.. Eventually, they arrived in British Columbia, where Dr. S. met the third party, A. M., also a medical doctor. In October 1996 they were married, and on May 14, 1997 E. A. M. was born of that marriage. In July 1997 Dr. M., Dr. S., K. and E. moved to Nova Scotia. In May 2001 Dr. S. and Dr. M. separated and divorce proceedings are ongoing with respect to that marriage.
[6] When Mr. A. learned of the location, in Nova Scotia, of Dr. S. and his daughter K., he brought the proceeding which is the subject of this appeal, claiming that his daughter, K., was wrongfully removed from her habitual residence of Iowa, and that she be returned forthwith.
[7] The relevant provisions of the Hague Convention are as follows:
Article 1
The objects of the present Convention are:
(a) to secure the prompt return of children wrongfullyremoved to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under thelaw of one Contracting State are effectively respected in the other Contracting States.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishesthat:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would exposethe child to physical or psychological harm or otherwise placethe child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. (Emphasis Added)
[8] Dr. S. opposed K.’s return to Iowa on three grounds:
1. that there was a grave risk that K.’s return to Iowa would expose her to physical or psychological harm or otherwise place her in an otherwise intolerable situation (Article 13(b));
2. that K. objected to being returned to Iowa and she had attained an age and degree of maturity which made it appropriate to take into account her views (Article 13); and
3. that the evidence demonstrated that K. is now “settled in [her] new environment” (Article 12).
[9] There is one further fact which I will note here to complete the picture. As Justice Goodfellow noted:
There has been a measure of litigation between [Doctor S. and the third party Doctor M.] and particularly in relation to their daughter, E.. Doctor M. was concerned with respect to the possible absconding by Doctor S. with their daughter, E., and there have been a number of Interim Orders, the consistent feature of which neither party is to remove either children, K. or E., from the Province of Nova Scotia without Order of the Court.
[10] The most recent interim order, by consent, provides that the child E. shall remain with Dr. M. “until further agreement of the parties or court order.” The order also provides for the facilitation of supervised access with E.’s mother, Dr. S..
[11] In his decision on Mr. A.’ application under the Hague Convention, Justice Goodfellow decided:
1. that there is not a shred of doubt that Dr. S. wrongfully removed K. from her habitual residence in the State of Iowa;
2. that Dr. S. has failed to establish the level of “grave risk of physical or psychological harm” or otherwise intolerability necessary to invoke Article 13 of the Convention and deny its application;
3. that, with respect to the discretion of the court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age of and degree of maturity at which it is appropriate to take into account its views, Justice Goodfellow decided:
(a) that he was not at all satisfied that the expression by K. is of her own free will and that in any event this is not a case for the exercise of discretion where there is, as he found, no grave risk to K.’s return to Iowa; and
(b) as Justice Goodfellow said “if I were to give in to the expression by K., it would virtually mean that in every case the child could simply state, ‘he/she did not wish to be uprooted and wanted to stay where they were’ and that such an expression would prevail”;
4. that, in his words, Justice Goodfellow found “in the totality of the factual situation in this case, the onus on the absconding parent to demonstrate that the child is now settled in its new environment within what I conclude is required for a finding of ‘settled in’ falls markedly short. The stability, duration (i.e. Article 16) and degree of certainty required of ‘settled in’ that it is generally necessary, is not present in the totality of circumstances in this case”;
5. that an order would issue (which was in fact issued on June 5, 2002) pursuant to the provisions of the Hague Convention providing for the return, forthwith, of the child K. to Iowa, U.S.A.
[12] For the purposes of this appeal it is acknowledged by Dr. S. that K. has been “wrongfully removed” from her habitual residence in Iowa, U.S.A. within the meaning of Article 1 of the Hague Convention.
[13] Dr. S.’s counsel raises several grounds of appeal in the notice of appeal from Justice Goodfellow’s decision. Essentially, there are three issues:
1. whether there are errors of law by the trial judge in his assessment of the child’s objection to being returned under Article 13 of the Convention;
2. whether there are errors of law by the trial judge in failing to give appropriate weight to certain uncontradicted evidence, in misapprehending critical aspects of other evidence; and in applying the wrong legal test to be met as to whether the child K. was “settled in [her] new environment” under Article 12 of the Convention; and
3. whether the trial judge erred in allowing his adverse finding of credibility against Dr. S. to become the overriding consideration in arriving at his decision, rather than in considering whether the evidence presented established the exceptions put forward under Articles 12 and 13 of the Hague Convention.
[14] I will now consider what is the appropriate test to be used in deciding how and whether I will exercise my discretion in granting a stay of Justice Goodfellow’s order pending the hearing and disposition of this appeal. I note, here, that neither I nor counsel could find a case where a judge of this court has considered an application for a stay of execution of a judgment under the Hague Convention pending the hearing and disposition of an appeal of that judgment.
[15] Civil Procedure Rule 62.10 deals with stays of execution and provides, in part, as follows:
62.10. (1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from.
(2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise.
(3) An order under rule 62.10(2) may be granted on such terms as the Judge deems just.
[16] The standard by which an application for a stay of execution of a judgment in a civil case was set out by Justice Hallett in Fulton Insurance Agencies Limited v. Purdy (1991), 100 N.S.R. (2d) 341.
[17] It is clear that the basis upon which the test enunciated in Fulton was developed is the American Cyanamid test for an interlocutory injunction.
[18] Justice Hallett described the test as follows:
In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either:
(1) satisfy the Court on each of the following:
(i) that there is an arguable issue raised on the appeal;
(ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and
(iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted;
the so-called balance of convenience or:
(2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.
[19] The test is different for granting an application to stay the execution of a judgment in a case involving the custody of children. That was pointed out by Justice Hallett in Fulton, and he referred to the cases of Millett v. Millett (1974), 9 N.S.R. (2d) 26 (N.S.C.A.) and Routledge v. Routledge (1986), 74 N.S.R. (2d) 290 (N.S.C.A.). In each of those cases the court used the test that “there need to be circumstances of a special and persuasive nature to grant a stay.”
[20] This test, in custody cases, was also referred to by Justice Bateman in Ryan v. Ryan (1999), 175 N.S.R. (2d) 370 and by myself in Ellis v. Ellis (1998), 163 N.S.R. (2d) 397 and Children’s Aid Society of Halifax v. B.M.J., (2000), 189 N.S.R. (2d) 192.
[21] As was said the Children’s Aid Society case at ¶ 31:
There is, at least, one very good reason why the test for granting an application to stay the execution of a judgment in a custody case is different. The question of custody of a child is a matter which peculiarly lies within the discretion of the judge who hears the case. The ultimate issue in such a case -- the best interests of the child -- is fact driven. The trial judge has the opportunity, generally denied to an appellate tribunal, of seeing the parties and investigating the child's circumstances. For these reasons the court of appeal shows considerable deference to the decision of a trial judge in custody matters.
[22] The different test, enunciated above for cases involving custody of children, does not apply in the present application before me. The ultimate issue in the matter before Justice Goodfellow was not a determination of what was in the best interests of the child, K. — a fact driven determination. Rather, it was to determine if the child, K., had been wrongfully removed from her habitual residence; and, if so, whether any of the exceptions to the application of the Hague Convention were applicable in this case.
[23] In my view, the test set out in Fulton is the appropriate one to determine the issue before me.
[24] The judges of the Ontario Court of Appeal apply a similar test to the test set out in Fulton in considering those case where they are dealing with an application for a stay of execution pending appeal. In the case of Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community and Social Services) (2000), 189 D.L.R. (4th) 377, Osborne, A.C.J.O. said at ¶ 5:
In RJR-MacDonald, the Supreme Court summarized its earlier decision in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at 127-29, 38 D.L.R. (4th) 321 sub nom. Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[25] Essentially this test, as in the case of Fulton, was developed on the basis of the test for an interlocutory injunction.
[26] I have made reference to the test used in the Ontario Court of Appeal because there are three recent decisions from judges of that court, in chambers, granting stays of execution of judgments issued under the Hague Convention, pending the hearing and disposition of appeals from those judgments (see: Pollastro v. Pollastro, [1998] O.J. No. 4753 (Charron, J.A.); A.F.J.C. v. G.M., [1999] O.J. No. 2657 (Weiler, J.A.); and Maharaj v. Maharaj, [2001] O.J. No. 1875 (McMurtry, C.J.O.)).
[27] In each of these three Ontario cases, the Ontario Appeal Court chambers judge issued a stay of execution of a judgment issued under the Hague Convention, pending the hearing and disposition of an appeal from that judgment, because:
1. the appeal raised a serious issue; and
2. if the stay were not granted the appeal would be nugatory, and in this sense the appellant would suffer irreparable harm; and
3. the judge decided that the appeal could be heard expeditiously, keeping any further delay at a minimum, and as a result the balance of convenience favoured the appellant.
[28] I see no difference, in substance, between the test used in Ontario and the test set out in Fulton simply because of the use of the phrase “serious issue” which is referred to in Ontario, and the phrase “arguable issue,” which is referred to in the Fulton test.
[29] In Pollastro, Justice Charron said the following at ¶ 3:
The respondent argues that a more stringent test should be met before a stay is granted given Canada's obligation under the treaty to deal with such matters expeditiously. The nature of the proceeding is obviously a relevant consideration on the stay application. It is my view, however, that the treaty obligation to secure "the prompt return of children" in appropriate cases does not translate into a more stringent test on a stay application. Rather, the obligation should be fulfilled by hearing the appeal as expeditiously as possible.
[30] This manner of dealing with such an application by Justice Charron in Pollastro was approved and applied by Justice Weiler in A.F.J.C. and by Chief Justice McMurtry in Maharaj.
[31] Notwithstanding the able submissions of counsel for Mr. A., I am satisfied that the notice of appeal filed by counsel for Dr. S. raises arguable issues. As Justice Cromwell said in MacCulloch v. McInnes, Cooper and Robertson (2000), 186 N.S.R. (2d) 398 at ¶ 4:
What is required is a notice of appeal which contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal: see Freeman, J.A., in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171; 349 A.P.R. 171 (C.A.). It is not my role as a Chambers judge hearing a stay application to enter into a searching examination of the merits of the appeal or to speculate about its probable outcome but simply to determine whether the arguable issue threshold has been reached.
[32] It is also clear that if the stay of execution of Justice Goodfellow’s order was not granted, and the child K. was returned to Iowa, the appeal would be nugatory, and, in that sense, the appellant will suffer irreparable harm.
[33] During the hearing of this application, and with the co-operation of counsel, I was able to set this appeal down for hearing on an expedited basis. The appeal will be heard on September 11, 2002, which is just over three months from now. Therefore, since this appeal can be heard in just over three months and, as a result, any further delay in the treaty obligation to secure the prompt return of the child, can be kept at a minimum, the balance of convenience, in the circumstances of this case, clearly favours maintaining the status quo until the appeal is heard.
[34] I will, therefore, exercise my discretion in favour of granting an order which will provide that the order of Justice Goodfellow dated June 5, 2002 which provides that the child K. be returned forthwith to the State of Iowa, United States of America, be stayed pending the hearing and disposition of this appeal.
[35] Costs of this application will be in the cause of the appeal.
Flinn, J.A.