Eleonora Vaccaro v. Salvatore Vaccaro
Read the full judgment text of CACV 78/1979 on BabelCite. This Court of Appeal judgment was delivered on 19 March 1980.
1. This is an appeal against an order of Silke, J. made upon an originating summons whereby the father of two children sought that they be made wards of court and that they be sent back to Ontario, Canada, they being Canadian citizens and they having been brought here by the mother.
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CACV000078/1979
----------------- Coram: Huggins and McMullin, JJ.A. and Cons, J. Date of Judgment: 19 March 1980 ----------------- JUDGMENT ----------------- Huggins, J.A. : 1. This is an appeal against an order of Silke, J. made upon an originating summons whereby the father of two children sought that they be made wards of court and that they be sent back to Ontario, Canada, they being Canadian citizens and they having been brought here by the mother. 2. The basic facts upon which this case arose are as follows. The father and mother are Canadian citizens of Italian extraction. They were married on 14th September 1968 in Montreal. The children were born respectively on 9th July 1969 and 1st June 1972 in Montreal. They also are Canadian citizens. On 15th June 1979 the mother collected the children from school and, without the consent of the father, flew with them to Hong Kong. She had, while in Canada, been working for a Mr. J. and had formed an attachment to him. Mr. J. was then a married man but has since obtained a decree absolute of divorce. He also came to Hong Kong and he and the mother have lived in Hong Kong with the children. It is fair to say that up to now that seems to have been a very happy alliance and the children are clearly happy to live in Hong Kong with Mr. J. and the mother. However, on 4th July 1979 an order was made by a Judge of the Supreme Court of Ontario that custody of these children be given to the father and requiring that the children be brought back to the jurisdiction of the Ontario courts. The mother was served with those proceedings and could have contested custody then and there if she had been so minded, but she preferred to do nothing and to fight in Hong Kong if and when the need arose. She says that the fundamental reason why she brought the children to Hong Kong and also the reason why she did not contest the proceedings in Canada was that she had been told that the factors upon which the issue of custody would be decided in the Canadian courts were not favourable to her or in the best interests of the children. I think that she wrongly so believed, if indeed she did so believe. On such information as is available to us I am satisfied that the jurisdiction in custody matters in Ontario is similar to that in Hong Kong and is founded upon the welfare of the child. 3. That is the test in every case in our jurisdiction. It applies equally to what is known as a "kidnapping" case where a child has been taken out of the jurisdiction of one court into that of another: see In re C (Minors) 1977 3 W.L.R. 561. This, of course, is a "kidnapping" case, the mother having taken the children out of the jurisdiction of the Ontario courts without obtaining any leave so to do. A "kidnapping", however, is an element which must always be considered, because the removal of a child from its environment is disruptive and, as a general rule, detrimental to the welfare of the child: see In re T (Infants) 1968 Ch. 704. Nevertheless, the court may grant custody to the wrongdoer if there are factors which indicate that it would not be in the best interests of the child to return it from whence it came: see In re E (D) 1967 Ch. 761, where it was said that to take away the child in the circumstances of that case would have been "disastrous". 4. It is contended here that the court should not have ordered the return of the children to Canada in the absence of a full enquiry. The judge took the view that a full enquiry into the allegations of unsuitability which were made against the father as a person to be given custody of the children ought to be made in Canada and that the Supreme Court of Ontario was the forum conveniens, and on that basis he said that all he had to decide was whether there was evidence that serious harm might result if the children were returned, since a possibility of such harm might outweigh the other relevant factors. I agree with him as to that. It is then said that it was for the father to prove that no serious harm would result from returning the children and that it was not for the mother to prove that harm might result. For my part, I doubt whether the burden of proof really comes into the matter, for the judge has to weigh the risk of harm and the strength of any evidence that harm might result will inevitably affect his assessment of the risk. If that be wrong, then I take the view that the burden was on the mother, who was the wrongdoer in bringing the children out of the jurisdiction of the Canadian courts, and not upon the father. In the present case the learned judge thought that the risk of harm was negligible and I see no reason to dissent from that view. I agree with the learned judge that it is desirable that a full enquiry should be held in the courts of Ontario. 5. We were asked to see the children. We have done so, and very delightful children they are too. I had some doubts as to the propriety of our seeing the children and as to what effects our seeing them could have upon our decision. The view I take is this, that it was right to see them in order to ascertain whether the view which we had tentatively formed was manifestly wrong because of the possibility of changed circumstances since the trial. The learned judge had a long interview with the children and he came to the conclusion that they ought to go back. The view that I have formed is the same. The children are obviously very attached to the mother. They would prefer to remain in Hong Kong with the mother and with Mr. J. Nevertheless, if they have to return to Canada it is not the leaving of Hong Kong which causes them anxiety: it is the possibility of leaving the mother and they would be quite happy to live in Canada with the mother. What, of course, will happen we do not know, but in my judgment the proper order for the judge to make was that which he did make - that the children be returned. We have had to consider whether the fact that there has been a delay of five months since the hearing before the judge should alter the situation. It is, perhaps, regrettable that no formal application was made for an expedited hearing of this appeal, but, in any event, I am not satisfied that the delay which has occurred has produced anything which should alter the order which should be made in this court. The children no doubt have grown rather deeper roots than they had five months ago, but they are attached, as I say, more to the mother than to the place and I do not think that we ought to alter the order which the learned judge made. I would, however, suggest that there ought to be a stay of execution of this order until the Easter holidays so that the children can complete this term at school. McMullin, J.A.: 6. I agree with what has been said by the learned President. There is nothing that I wish to add. I would also agree on the question of stay. Cons, J.: 7. I, too, have come to the conclusion that the appeal ought to be dismissed for very much the same reasons that had been expressed by my Lord President. I will not weary you with them now but I will reduce them to writing in due course. I agree with the order for stay which was also suggested. 19th March 1980.
----------------- Coram: Huggins and McMullin, JJ.A. and Cons, J. Date of Judgment: 19 March 1980 ----------------- JUDGMENT ----------------- Cons, J.: 8. The basic principle in any proceedings where the custody or upbringing of an infant is in question is that the welfare of the infant is the first and paramount consideration. "Kidnapping" cases are no exception. The fact of kidnapping is in itself no more than one of the relevant factors to be considered. 9. But kidnapping, unlike most if not all other relevant factors, cannot be confined exclusively to itself. By its very nature it brings into immediate effect other relevant factors. Some examples of these are listed by Buckley, L.J. in In re L (Minors)(1). He then continues (at p.926):
10. That was the initial approach adopted by Silke, J. below. We are told he insistently emphasized the need to deal with the matter quickly. His notes confirm this. However, at the first hearing the mother, by her affidavit, made certain allegations. These were, firstly, that the Canadian courts would apply principles which were not necessarily in the best interests of the children. And, secondly, that the father was dishonest, given to smoking marijuana and took little or no interest in the children. 11. The judge was unwilling to make a summary order without some enquiry into these allegations. He therefore adjourned for further affidavits and for a report from the welfare authorities here. These were furnished by the next hearing. An affidavit from a Canadian lawyer showed that in fact Canadian law was not dissimilar to our own. And the judge found that the other affidavits were, on both sides, not satisfactory. A lengthy interview with the children persuaded him that until the kidnapping the family had been a "normal happy family" and that the mother's allegations were exaggerated. In those circumstances he thought it was in the best interests of the children to make a summary order for their return. 12. It is said that he should not have done so without a full enquiry. With respect this argument takes us no further, for the very object of a summary order is to avoid the delays inherent in such an enquiry. Then it is said that he should not have made even a summary order on the evidence before him, that the father, by not coming here to offer himself for cross-examination, had not shown that the order would not harm the children. Again with respect, this argument is based on a false premise. If there is a burden on anyone at all when a judge is minded to make a summary order, then in my view it must necessarily be on the kidnapping party, and to show why an immediate return is not in the best interests of the children. On such material as was put before him at the time the judge took the view that an immediate return was in their best interests. I think he was correct. 13. That decision was taken now a little over five months ago. We do not know why the matter has taken so long to reach this court. The judge did his best by limiting the stay for lodging an appeal to only seven days. However it might be wise in the future also to obtain an undertaking that if an appeal is lodged, an application will at the same time be made to expedite the hearing. 14. Has the situation changed with the passage of time? Two factors have been put forward. The first is that a report from Canadian welfare authorities, which was not available to the judge, indicates that the father is not intent on custody for himself but rather that he does not wish the children to be cut off completely. That is a factor which undoubtedly the Canadian courts will take into consideration but I see no reason to think that that factor alone will make it "highly likely" that the Canadian courts will allow the children to be returned to this jurisdiction: compare In re C (Minors)(2). 15. The second factor is that the children are more settled now than they were last October. However, although they clearly enjoy Hong Kong and the facilities that their present home has to offer, it is equally clear from our interview with them that their attachment to their mother is far greater than their attachment to the place. They wish to remain here, but primarily because at the moment their mother is here. They would be happy to go wherever she goes, including, if she thought it appropriate, back to Canada. Thus neither of these factors significantly detracts from the need for an early and full enquiry which to my mind can only satisfactorily take place in Canada. 16. For these reasons I agree that the appeal should be dismissed and with the terms of the order proposed by my Lord President. Representation: K. Bokhary (Johnson, Stokes & Master) for Appellant. Miss J. Leong (Howell & Co.) for Respondent. (1) 1974 1 All E.R. 913 at p.925h (2) 1977 3 W.L.R. 561 at p.571 |